Probation and Parole: Procedural Protection

Except in systems that have adopted legally binding sentencing guidelines, an offender has no legal "right" to receive a sentence of probation. Moreover, sentencing guidelines, mandatory minimum, and other "determinate" sentencing laws often limit the court's power to grant probation. These laws, as well as the general procedural requirements for sentencing, are covered in other entries and will not be further discussed here.

Assuming that an offender is legally eligible for probation, does he have the right to be fairly considered for probation? In one famous case, it was held to be error for a trial judge to refuse to consider for probation all defendants who stood trial (United States v. Wiley, 267 F.2d 453 (7th Cir. 1959), on remand, 184 F.Supp. 679 (N.D. Ill. 1960)). The sentencing judge in Wiley had stated this policy on the record. If he had remained silent, as is the common practice, the judge's sentencing discretion based on unarticulated factors would probably have prevailed. But other decisions support the proposition that it is an abuse of discretion, subject to reversal on appeal, for a judge simply to refuse to hear or consider an eligible applicant for probation.

While probation, like parole, is a form of conditional freedom in the community, its precise form has many variations. Probation may consist of little more than an admonition to commit no new offenses and maintain telephone contact with a probation officer, or it may be far more intensive and include spending some part of the day or evening in a residential facility, and/or specified frequent contacts with the probation officer, drug or alcohol tests, and so on.

An order of probation may also include a fine, restitution to victims, a period of "shock incarceration" (jail), home confinement with or without electronic surveillance, measures designed to shame the offender ("scarlet letter" conditions), substance abuse or sex offender treatment, community service, and various limitations on the offender's freedom of movement, activities, and associations.

For the most part, as long as these conditions do not violate some specific constitutional safeguard, for example, cruel and unusual punishment or First Amendment rights, courts give judges wide latitude in their imposition.