I want to take the opportunity in this article to shed some light on the issue of probation. Probation can be complicated and I certainly cannot explain all the details of its application in one short article. Simply stated, probation is an alternative to incarceration. For instance, if a defendant’s criminal violation provides for a maximum punishment of 6 months in jail, he or she may get 30 days in jail for the offense and the remainder of the sentence is suspended upon the condition that the defendant be placed on probation. Under Tennessee law a defendant cannot receive a suspended sentence without being placed on probation. If not for probation, defendants would have to serve the sentence in full and our jails and correctional institutions would be over-flowing with inmates. Our tax system is not structured to take on that kind of expense. The Supreme Court of the State of Tennessee said this about probation: “The entire theory of probation is that it is in the public interest that those who violate society’s rules of conduct should, in proper cases, be given an opportunity to rehabilitate themselves and to be restored to useful and productive citizenship. More and more society is coming to realize that “warehousing” criminals on an indiscriminate basis is financially, socially and morally unacceptable.” The Supreme Court has also said that, “the public policy of Tennessee favors probation.”
Probation is a benefit for the defendants because it provides them with a way to pay their debt to society without being incarcerated. It is also a benefit to society in that it allows for punishment, correction, and rehabilitation without the expense of incarceration. There are many rules or conditions that the defendants must follow while on probation. Some of the conditions are as follows: the defendant is ordered to not commit any other offenses and remain out of trouble, the defendant is precluded from leaving the state, the defendant must complete whatever community service has been ordered, the defendant must complete all court ordered drug or alcohol rehabilitation, he or she must report monthly to the probation officer, and usually the defendant must submit to random drug screens. The probation office is responsible for insuring that all the conditions of probation are followed, including completion of drug rehab programs such as Teen Challenge. Currently, there are approximately 40 defendants that are court ordered to attend and complete Teen Challenge here in McNairy County. Probation is the way this is monitored. Also, part of the probation process is that it provides a way to collect fines, court costs, and restitution.
I suppose the next logical question is what happens when a defendant violates one of the conditions of probation. As mentioned, if a defendant is placed on probation through either general sessions or circuit court, the probation officer is responsible for insuring that the defendant follows the conditions of probation, including paying whatever fines, costs, or restitution that may have been ordered. If the defendant fails to follow the conditions of probation, the probation officer will file a petition to revoke the defendant’s probation. At that point, either the circuit or general sessions court will hold a hearing to determine whether the defendant violated the conditions of probation. If the court determines that the defendant violated a condition of probation, the court will then decide whether to make the defendant serve all or part of the suspended sentence or reinstate the probation upon additional conditions.
If a defendant’s probation is violated for failure to pay a fine or restitution, the court cannot place a defendant in jail unless the state proves that the defendant had the ability to pay the fine or restitution but willfully failed to do so. A defendant’s probation will not be violated if the defendant is disabled and cannot earn a living. Similarly, if the defendant cannot find employment, he or she should not be violated, because there is no willful failure to pay. However, if the defendant is not disabled and does not make an effort to find employment, or has been employed but simply chooses not to pay, there could be a violation of probation.