What is Probation and Why Does it Exist
The imposition of a suspended sentence by the judge of a criminal court allows for the criminal probation of an adjudicated criminal defendant ("defendant"). The suspended sentence gives a defendant the opportunity to avoid incarceration and allows for a (hopefully) rehabilitative approach to the punishment of criminal activity. According to the Georgia Department of Community Supervision ("DCS"), millions of adults in Georgia are placed on probation each year. Nationwide, around one-third of states have over 100,000 people on probation at any given time. While other states have different numbers, it is clear that thousands, if not millions, of adults are on probation throughout the United States.
In Georgia, probation may be for a definite length of time, until further order of the court, or as otherwise provided for by law. The defendant is supervised by the DCS, which is an agency composed of officers who monitor and supervise offenders placed on probation for criminal offenses, including DUI charges. Supervision may be with or without a charge for needs-based services such as alcohol or drug treatment, family counseling, or education or vocational training . While there is no definite limit on the number of times a defendant may be placed on probation, a defendant cannot be placed on probation more than twice for a single charge. Probation may also be revoked by a judge.
When placed on probation, the court may impose restrictions on the defendant through the use of standard or special conditions of probation. Standard conditions of probation include the following: Many standard conditions are objective, do not vary, and must be understood by each defendant placed on probation in Georgia. Special conditions, on the other hand, are tailored to the specific defendant and his or her case, criminal history, and personal background. Special conditions may include the following: Special conditions of probation will vary from case to case and may be more flexible, depending on the defendant and the crime charged. In fact, the judge who imposes special conditions of probation for DUI charges may decide on different conditions at a probation revocation hearing or may change the conditions previously imposed.
Some Common Special Conditions
In addition to the standard conditions of probation, you may also be subjected to certain special conditions of probation. There are no uniform guidelines for special conditions and the list is potentially limitless. Common examples include:
- community service;
- substance abuse treatment programs;
- mental health treatment programs;
- reporting (if you live out of state);
- electronic monitoring;
- drug patch;
- drug court;
- job search;
- curfews;
- random screenings;
- parenting classes;
- life skills classes;
- education programs;
- personal or group therapy;
- anger management programs;
- sex offender management programs;
- RCAL programs;
- not socializing with other felons;
- not frequenting places where anyone is engaging in illegal activity;
- not traveling outside the state;
- obtaining and maintaining employment; and
- many others.
Again, the above list is in no way intended to be a comprehensive list of conditions and some of these examples may not be listed as special conditions in certain states.
What Factors Influence Conditions
So what other factors do judges consider when adding special conditions of probation?
Judges can consider: the nature and purpose of the crime; the offender’s particular character and propensity; the offender’s age and health; the offender’s family ties to this district; the offender’s role in this crime, including his or her capacity to commit further crimes; the offender’s education history and employment history; the offender’s compliance on bond, pretrial release, or supervised release; the deterrent effect a sentence would have; the need to avoid unwarranted sentencing disparities among similarly situated offenders; the need to provide restitution to victims; the need to protect the public from further crimes of this offender; and the nature and seriousness of the danger to the community posed by the defendant’s criminal conduct.
Consequences of Violating Special Conditions
Legal Consequences of Violating Special Conditions of Probation
The obvious legal consequence for violating any condition of probation is a revocation. The judge could revoke you and impose a different sentence. The judge could give you nothing. The judge could order you to make restitution (with the underlying determination of ‘ability to pay’ or ‘ability to do so’ if this is for a fine). The judge could order you to serve any jail time as ‘day for day’.
Here is an example: Driving after consuming alcohol is an impatient, dangerous, and illegal choice. If you are on probation and that is a condition of your probation, there would be no ‘reinstatement’ but rather you could get 8 months in the county jail and have this probated out with supervision for the next year.
Here is another example: You could still have revocation as an option, but the way that the judge would handle it may be that she tells the probation officer to go check on the person a few times , then send them back because the violation was so minor and probation is working.
Here is an example that rarely happens: We were in a revocation hearing on a Federal case. The judge had trial on Monday. That meant that the sheriff was going to take my client from court back to jail before his probation hearing on Thursday. I argued that she should let him stay with his wife and if he gets jailed, the wife will not be able to work the way that they need. While I am sure the judge heard, I am not sure she was moved, and they took him to jail. But even though the judge lost the opportunity to hear about the impact of incarceration, the prosecutor did hear it and recommended no incarceration at all. When it came time for the judge to speak, she admitted that she didn’t hear any of the conversation, but agreed with the outcome. My client was sentenced to do some community service.
Another example: An employee in a large organization mistakenly copied and sent documents to another department. The employee thought it was an honest mistake. The judge learned it was not an honest mistake, nor a ‘slip of the lip’. The judge revoked the employee’s probation and sent him to prison.
Challenging Unreasonable Special Conditions
Both the District Court and the state of Colorado Supreme Court have held that the guidelines in the Colorado Sex Offender Management Board (SOMB) for special conditions of probation are presumptively unreasonable (the Prosecutor’s Office is free to recommend special conditions more stringent than those that are presumptively reasonable).
If you are listed as a sex offender or an SVP under Colorado law, it is the entry of a sex offense conviction on your criminal record which provides the basis for an automatic SOMB assessment at the state level and a SOMB guideline. In practical terms, what all this means is that if you are convicted of a sex offense, the court is required to order Sex Offender Registration. That’s a given. The court is ALSO required to designate you a sex offender. That’s a given too.
In most cases, however, the court cannot or should not impose special conditions without first holding a hearing, and you should be provided with an opportunity to be heard.
If you have been deemed either a sex offender or an SVP and have been sentenced to probation (probation is ALWAYS initially unsupervised with sex offenses), and you are not receiving the benefit of a hearing at the outset of your probationary period, you should immediately consult with an experienced criminal defense attorney who focuses on handling sex offense convictions and probation matters. The attorney’s job begins with convincing the judge that a hearing is required, and then convincing the judge at hearing that the special conditions should be limited only to those that are reasonably related to the legitimate goals of probation.
For example, in other states, a probation condition requiring a sex offender to participate in a rehabilitative program may be perfectly reasonable in many cases, but if the probation condition during sentencing provides for a probation condition specifying a single specific program, such as the Colorado Sex Offender Treatment and Monitoring Program (SOTMP), this is not necessarily reasonable due to SOTMP’s highly restrictive nature. If a person has an issue with drinking, or drug use, they must first complete a substance abuse evaluation, and follow through with the recommendations, together with any other medical issues they may have, i.e., general counseling or mental health therapy. To impose as a condition of probation that person complete one specific program—SOTMP—without allowing that person to seek treatment from within the private sector is an unreasonable penalty and takes away an individual’s choice, but also places that individual on the state registries for the longest period of time, since the minimum time requirement for participation in SOTMP is 3 years.
The case of People v. Kessler outlines both the Colorado Supreme Court’s guidelines for the imposition of special conditions of probation for sex offenses, and the relationship of those special conditions to the underlying philosophies of probation. These philosophies mandate that probation conditions should be: (1) designed to protect the public; (2) not placed in a manner that causes unwarranted harm to the offender; and (3) fair and proportionate to the seriousness of the offense committed.
Most importantly, in terms of actual practice, the special conditions of any sex offense probation supervision must be reasonably related to the goals of probation, i.e., public safety, rehabilitation, and community re-entry.
Good Outcomes and Rehabilitation
There are many examples of individuals who have successfully complied with special conditions of probation. Some who find themselves under the control of the Department of Community Supervision have been able to live fulfilling, productive lives after the completion of their sentences. Adult drug court programs are one promising approach to rehabilitation. A study by the National Drug Court Institute found that "substance abusing criminal offenders who receive proper treatment…are just as successful as non-offenders in the community and less likely to commit new offenses than comparable offenders who do not receive treatment." A similar study by the United States National Institute of Justice found that parolees who participated in drug court were less likely to be re-arrested or return to prison than those who were not part of the program. Furthermore, studies show that offending behavior is less likely to recur for individuals who underwent treatment programs, which can include counseling, rehabilitation services, substance abuse treatment, and mental health treatment . This success was sustained even years later, suggesting that rehabilitation was effective in breaking the cycle of criminal behavior.
Another example of how conditions of probation can aid in rehabilitation involves the Georgia Commission on Family Violence. In recent years, policymakers and communities have recognized the importance of balancing offenders’ needs for accountability with a compassionate, educational approach. Innovative programs like the Georgia Commission on Family Violence have been established to bridge the gap between law enforcement and rehabilitative services. Members of this group traveled around the state, meeting directly with offenders who faced conditions of probation in order to explain with compassion the purpose of the special conditions and how they could work with the probation officer to avoid further problems.