In each county, the Superior Court maintains a probation department to supervise people who have been sentenced to court-ordered supervision. A sentence to probation supervision may also include up to 364 days incarceration in the county jail. However, it is the noncustodial part of a sentence that involves the probation department.
Generally, a person sentenced to a term of probation, which may be ordered for one to five years, is assigned to a probation officer to monitor his or her lifestyle for the period of probation. Monitoring can include home or employment visitation. Drug and alcohol counseling and testing are frequent components of structured probation supervision. When a person is ordered to perform community service or pay restitution as a part of probation supervision, the probation officer monitors compliance.
A probationary sentence is considered a successful result for a criminal defense attorney and his client in cases where a conviction for a crime cannot be avoided. The client does not go to prison.
However, preparation for the possibility of a probationary sentence should begin during the initial interview between the client and his or her criminal defense attorney. When the lawyer takes a thorough client history, including medical facts, and especially the relevant psychological history, the stage is set to negotiate a probationary sentence. A client’s school and work background, licenses, clubs, hobbies and family history are equally important to present a complete picture of the client. A skilled criminal defense attorney also develops a client’s religious affiliation as part of the entire personality. All this information plays a crucial role in preparing a case for trial, diversion through pretrial intervention or a sentence of probation.
A criminal defense attorney provides the client’s background to the probation department in letters, meetings and by preparing his client to create a positive impression with the probation officer, including the case manager who prepares the pre-sentencing probation report. The pre-sentence report charts the entire course of a probationary term. Letters from family, friends and employers, psychological evaluations and reports from substance abuse counselors all play a critical role in ensuring that the client is not incarcerated and that the term of probation can be successfully completed.
However, serious problems develop when a person does not follow the conditions established at the first meeting after sentencing between the probation officer and the client, as well as any special conditions imposed by the sentencing judge. A violation of the terms, a new arrest, failure to perform community service or pay restitution leads to a hearing before the sentencing judge. If the judge concludes that the conditions of probation have been violated, the defendant can be re-sentenced to serve the maximum term in prison the conviction allows.
A criminal defense attorney can be instrumental in protecting a client by thorough investigation and preparation for the possibility of probation. He can assist the client throughout the probationary term. Finally, he can represent his client at a violation of probation hearing to convince the judge not to impose a prison sentence.
Another way a criminal defense attorney can assist a client is to petition to terminate probation before the full term is served. This can make life easier for the client and his family and shorten the time for filing a petition to expunge the record of conviction.
Probation can be a successful conclusion to the trauma that a criminal charge presents to a client and family. It can also be a dangerous path, but a criminal defense lawyer can be the guide, who helps the client safely navigate and reach freedom.
The same preparation is required especially when a client faces a sentence of imprisonment. Persuasive arguments and effective negotiations using the arsenal of a client’s personal history lead to a lesser term than the prosecutor might desire.
When a person is sentenced to prison, release after serving the term is called parole. It is a program operated by the State Division of Parole. It begins with calculations made by the Department of Corrections that will determine the time of parole eligibility and release from prison.
Some important factors govern release on parole before a sentence is completed. Some people serving state prison sentences can apply for release into the Intensive Supervisory Parole program which is commonly called ISP. This program allows release after serving approximately five to seven months of a prison sentence. The client is released to a community support group made up of family and friends. There is intensive supervision by special parole officers and a strict electronically monitored curfew. Unfortunately, not all people serving prison sentences qualify. Certain crimes do not qualify for ISP, including most sex offenses, drug distribution and violent crimes. Anyone serving a sentence with a mandatory minimum period of parole ineligibility imposed by the sentencing judge cannot apply for ISP until the minimum period is served. For example, vehicular homicide is considered a crime of violence under the No Early Release Act (NERA). Therefore, a person convicted of that crime will receive a prison sentence because it is a crime of the second degree. Since the crime falls under NERA, the person must serve 85% of his sentence before parole eligibility. By that time the person will be released on parole without the involvement of the ISP program.
Another form of parole supervision is Community Supervision for Life, a special parole required by law in certain sex offenses. A special parole officer is assigned to monitor the client for life. Community supervision for life can substantially affect a person’s job and family relationships.
As with probation, violations of parole result in a denial of freedom by re-incarceration until the full sentence is served. Therefore, it is wise to comply with parole requirements in order to stay out of prison.
Criminal defense lawyers can be a valuable asset by helping clients prepare for a prison sentence, especially in representing the client at an ISP hearing. If a person violates parole, a lawyer provides representation in an effort to defend the charge. Finally, in cases involving community supervision for life, certain violations can be prosecuted as crimes. A criminal defense attorney may be instrumental in avoiding or minimizing a prison sentence.