Violations of probation represent a serious problem for those on probation. The possibility of them being filed makes a sentence of probation a less attractive option than perhaps it might otherwise seem. Here’s why.
While a person is on probation he is assigned a probation officer to whom he must report. A person who is on probation is also subject to a number of restrictions, that might include a curfew, the requirement to stay in school or at work, or other conditions. Also, a person who is on probation is expected to avoid further criminal activity.
If someone fails to abide by any of the conditions of probation, his probation officer has the power to file a Violation of Probation (or VOP) with the Court. In a VOP, the person is usually brought before the judge who originally sentenced him to the probation and formally accused of violating probation.
There are essentially two categories of potential violations. First there are “technical” violations related to following administrative requirements like reporting to the probation officer as directed. Second, there are more “substantive” violations like committing a new crime while on probation. Although “technical” violations may seem less important than violations related to the commission of new crimes, both can serve to violate a person on probation equally.
Also, a person can be violated on probation AT ANY TIME during the course of probation and still face the same amount of punishment for the violation. This means that if you violate probation on your first day of probation, you face the same amount of time for violating that probation as you would for violating probation on the last day of probation. In other words, you don’t get “credit for time served” for time you spend outside of jail on probation.
A person who is violated on probation is entitled to a hearing on whether or not he actually violated probation. This hearing is usually conducted by the judge who sentenced the person to probation. The VOP hearing is conducted without a jury. The judge decides the facts and determines the outcome. In order to find a person guilty of violating probation, the judge need only decide the case on the burden of proof called “preponderance of evidence”. Essentially that means that if the judge believes that the person probably did what probation says he did to violate probation, then the judge will find him guilty. Because the burden of proof with respect to VOPs is so low, and because the judge is the finder of facts, the judge’s decision in a VOP hearing is realistically almost unappealable.
And there lies the great difficulty associated with VOPs. Because judges’ decisions after VOP hearings are virtually unappealable, AND because judges KNOW that their decisions after VOP hearings are virtually unappealable, a person charged with a VOP is almost entirely at the mercy of the judge. The bottom line is the judge can just about do whatever he or she likes with almost any VOP, almost without regard to argument, explanation, or defense by the attorney.
Therefore, most VOPs are resolved by agreement with the judge under the theory that whatever can be agreed to in advance of a formal hearing will be a better deal than the likely sentence after forcing the judge to conduct a formal hearing.
The range of possible sentences for a VOP depends on the crime to which the defendant originally pleaded guilty.
VOP Sentencing
For example, suppose defendant pleads guilty to a Class 4 non-violent felony and is sentenced to 5 years probation. The original plea was to a Class 4 non- violent felony. The maximum sentence on a plea to a Class 4 non-violent is 2-6 years in state prison. Therefore, if he violates probation at any time for the next five years (even after 4 years, 11 months, and 29 days), the defendant could be sentenced by the judge to up to 6 years in state prison.
Many times people are violated on probation for seemingly minor “technical” reasons (called specifications or “specs”) like failure to report or failure to notify of a new address. In such cases it is often possible to convince the judge to agree to give the defendant another opportunity. In extremely minor cases, some judges might even agree simply to dismiss the violation and restore the defendant to probation right there and then.
On other occasions the judge may want the defendant to plead guilty to the violation of probation, but agree to hold off on sentencing. The defendant is then monitored in court periodically to make sure he continues to do the right thing. This is sort of a “probation probation”. If the defendant satisfies the court that he is back on track, the sentence becomes to restore the defendant back to probation. If the defendant continues to perform unfavorably, the judge then usually discontinues probation and imposes a jail or prison sentence.
When defendants are violated on probation because of new arrests, some special difficulties are presented. One might expect that a probation judge must wait until the underlying criminal case is resolved before deciding whether or not there has been a violation of probation.
This is NOT the case. A probation judge is in NO WAY bound by the outcome of an underlying criminal case of a person on probation. A person with a new case could take the new case to trial, BE FOUND NOT GUILTY, and the judge could still find that he violated probation by the conduct alleged in the new case.
The reason for this goes back to the difference between the burden of proof in a criminal case and the burden of proof in a VOP. If a person is found not guilty after a trial, that technically only means that the Government has not proved the case beyond a reasonable doubt. Beyond a reasonable doubt is an extremely high burden of proof.
But VOPs are not decided by the standard of proof beyond a reasonable doubt. VOPs are decided based on the standard of proof by a preponderance of evidence. The “preponderance” standard is far LOWER than the beyond a reasonable doubt standard. That means that a person could be NOT GUILTY for the purposes of a criminal accusation, but GUILTY of the violation of probation. Therefore, notions of Double Jeopardy do not apply to VOPs.