Excerpted from: Probation, 40 Georgetown Law Journal Annual Review of Criminal Procedure 784 (2011) (85 footnotes Omitted)

Imposition of probation is governed by the Sentencing Reform Act of 1984 (“Act”), which applies to all federal defendants convicted of crimes committed on or after November 1, 1987. The Act treats probation as a sentence in its own right rather than as a sentence suspension. The Act limits a court's discretion to grant probation by explicitly prohibiting probation for specified categories of offenses. The Act covers probation impositions and durations, specifies mandatory and discretionary conditions to impose on probationers, and dictates when probation may be revoked. For cases to which United States v. Booker applies, § 3553(b)(1) is invalidated and the Guidelines are advisory; however, courts must still consider the factors listed in the Guidelines.

Imposition and Duration of Probation. The Act prohibits imposing probation when: (1) the defendant is convicted of a Class A or Class B felony; (2) probation is expressly precluded by the statute defining the offense committed; or (3) the defendant is sentenced simultaneously to a term of imprisonment for the same or a different offense. The Act requires the sentencing court, when imposing probation, to consider several factors: (1) the nature of the offense and history and characteristics of the defendant; (2) the need for just punishment, deterrence, or public protection; (3) the need to provide the defendant with educational or vocational training, medical care, or other correctional treatment; (4) the types of sentences available; (5) the Sentencing Guidelines established by the Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities between defendants with similar records for similar conduct; and (7) the need to provide restitution to victims. Additionally, the Sentencing Commission (“Commission”), through the Sentencing Guidelines (“Guidelines”), may further address the availability of probation for crimes not listed in the Act. The sentencing court must also consider the Guidelines and state in open court the reasons for imposing the sentence. In cases in which the sentence departs from the Guidelines' recommended sentencing range, the court should include the reason for the departure in a “written order of judgment and commitment.”

The Guidelines permit a court to impose probation if the minimum prison term in the applicable Guidelines is zero months, but the court is not required to offer probation. If the minimum prison term in the applicable Guidelines ranges from one to six months, the court may order probation if intermittent confinement, community confinement, or home detention is imposed as a condition of probation. If the minimum prison term in the applicable Guidelines is greater than eight months, the Guidelines “do not authorize a sentence of probation.” However, the Guidelines are advisory, and circumstances may warrant a sentence outside the suggestions of the Guidelines.

The Guidelines suggest limits on the court's discretion to determine the length of probation. The Guidelines also allow for the imposition of probation in order to enforce other court sanctions. However, the prosecution may request a downward departure from the Guidelines' minimum if the defendant provided substantial assistance in the investigation or prosecution of another person.

Imposing probation is generally governed by the same procedures that govern imposing any sentence. The Act specifies that a term of probation, unless otherwise ordered by the court, begins on the day it is imposed, runs concurrently with other probation terms, and tolls when the probationer is serving any prison sentence longer than thirty days. Under the Act, probation is final except under a narrow set of circumstances. The sentence may be reduced only if the defendant successfully appeals or if the defendant cooperates in other prosecutions within one year of sentencing.

Conditions of Probation. The Act prohibits a defendant from committing another federal, state, or local crime, or from unlawfully possessing a controlled substance while on probation. It also requires defendants to pay restitution and to notify the court of economic changes that might affect their ability to pay restitution, fines, or special assessments. If probation results from a felony conviction, the court must also require that the probationer: (1) pay a fine; (2) make restitution to a victim of the offense; or (3) perform community service work. If probation results from a first-time domestic violence conviction, the probationer must attend a rehabilitation program for domestic violence offenders. A defendant convicted of a sexual offense must report his address to a probation officer and register with the state as a sex offender. The Guidelines contain a list of standard conditions that are recommended in all cases of probation and a list of special conditions that should be imposed in certain circumstances. Additionally, a court may impose one or more of the Act's twenty-two discretionary conditions or a court-created condition that is reasonably related to the nature and circumstances of the offense, the history and characteristics of the defendant, and the goals of sentencing. Courts have upheld conditions that impinge on constitutional rights, including freedom of speech, freedom of association, freedom of religion, freedom from warrantless searches, and the right to counsel. Courts have also upheld probation conditions limiting a probationer's ability to participate in a given occupation or to run for political office. In all cases, the court must provide the probationer with written notice of the conditions and may, after a hearing, modify them.

The condition that a probationer report his or her activities to a probation officer does, however, raise Fifth Amendment self-incrimination concerns. A probationer may invoke his Fifth Amendment privilege against self-incrimination if he faces revocation of probation or another penalty. The state may compel a probationer to answer, but such answers may not be admitted in criminal proceedings against the probationer. If there is no coercion, however, the probationer must specifically invoke the privilege and remain silent. Otherwise, any incriminating responses to the probation officer may be used against the probationer.

Revocation. Under the Act, probation may be revoked at any time before the end of the probationary period for any violation of a probation condition that occurs during that period. In the case of such a violation, the sentencing court may revoke probation and impose a prison sentence or continue probation with or without extending the term or modifying the conditions. A court may not automatically revoke probation merely because the probationer is unable to pay restitution.

Probation revocation hearings are governed by Rule 32.1 of the Federal Rules of Criminal Procedure. If a probationer is in custody, both due process and Rule 32.1(b)(1) require a prompt preliminary hearing before a magistrate judge to determine if probable cause exists to hold the probationer pending the final revocation hearing. Before the preliminary hearing, the probationer must be notified of the hearing, its purpose, the alleged violation, and the right to be represented by counsel. The probationer must be allowed to appear at the hearing and to present evidence on his or her own behalf. Upon request, the probationer must be granted an opportunity to question witnesses, unless the magistrate finds that justice does not require the appearance of the witness. If the magistrate finds probable cause that the probationer has violated the probation conditions, the probationer must be held for a revocation hearing.

Regardless of whether the probationer is in custody, a final revocation hearing must be held within a reasonable time to determine whether probation should be revoked or whether the terms and conditions of probation are to be made more restrictive. Before the final hearing, the probationer must receive written notice of both the alleged violation and his or her right to counsel. In addition, the government must disclose its evidence against the probationer. The revocation proceedings may be initiated at the probation officer's recommendation or on the court's own initiative. Because this hearing ultimately will determine whether probation is actually revoked, the probationer is entitled to greater protection than he or she received at the preliminary hearing. The probationer may, however, waive this final hearing.

Probation revocation hearings are not criminal proceedings, so not all constitutional procedural protections apply. The probationer has no right to a jury determination at a revocation hearing. Double jeopardy does not apply to revocation hearings because a sentence of probation is always subject to revocation and is not considered final. Also, Fourth Amendment, self-incrimination, and Miranda protections do not fully apply in these proceedings. Not all defenses are available to probationers during probation revocation hearings. The government has the burden of persuasion at probation revocation hearings, but is not required to prove probation violations beyond a reasonable doubt. Finally, admissions of probation violations do not receive the same protections as guilty pleas, and the rules of evidence generally do not apply in revocation hearings.

Despite the absence of some constitutional protections, due process safeguards apply during probation revocation hearings. Due process requires that revocation hearings satisfy the Fourteenth Amendment's guarantee of fundamental fairness. The probationer must have the opportunity to appear in court and present evidence. The probationer also has a constitutional right to question adverse witnesses who appear. Finally, the court must provide a written statement informing the probationer of the reasons that his or her probation was revoked.