Is Probation the Best Option for Me – the Answer isn’t Always Obvious:

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Is Probation the Best Option for Me – the Answer isn’t Always Obvious:

Probation can be and often is a great option for people who have been convicted of a crime, especially if the prospect of jail or other executed sentence was a possibility. However, it may not always be the best option for some. Why? This blog will attempt to answer that question.

Many defendants often choose probation, even if it means receiving a much lengthier sentence, because it is considered the “easier” sentence — because, again, the defendant need not execute any time in jail, but rather can go home, wherever that may be. Many times this is chosen because it is also perceived as the quick, less painful route. It is the proverbial bird in the hand. After all, why would you choose jail, home detention, or work release when you can just choose probation and go home now? While that may seem obvious, it isn’t always.

First let’s do the math. For example 1, a defendant is given a sentence of 730 days, with all 730 days suspended to probation.  For example 2, the defendant is given a 730 day sentence, with 365 days ordered executed on home detention, followed by 365 days probation. For example 3, you are given 365 days jail, and no probation.

In the first option, you are going to be under probation’s authority for a full 2 years, every single day. In option two, assuming the sentence was to a Level 6 or lower, you will serve 182 actual days on home detention followed by 365 actual days on probation. So, the total sentence is actually 545 days of being “watched.” In example 3 you will serve 182 days in jail and the sentence will end — nothing more.

In example one, yes the sentence is lesh harsh as there is no executed portion. However, you are under the proverbial hammer for 2 full years. In example two, your sentence is cut down by doing a little home detention. However, in example three, if you can stomach 6 months in jail, you are done completely. No probation, no drug screens, no supervision. Nothing.

Some People Can’t Make it Through Probation without Violating. There have been many times a client has said they can’t go 2 years, as in example 1, without: (1) getting in trouble, (2) without drinking, (3) without smoking marijuana, etc. In those circumstances, some chose the harsher, but shorter sentence knowing that they would rather take the penalty now rather than harsher down the road? How could it be harsher? Again, let’s do the math.

In example 3, you will do 182 actual days in jail. Again, that’s it. You don’t answer to anyone (assuming you aren’t on parole for a DOC sentence). In example one, however,  you can go a full 729 days, 23 hours, 59 minutes, and 59 seconds without getting in trouble, but if you do get in trouble in that final second, they can go after you for the full 730 days. Yep, the full 730 days. You don’t get any credit for the nearly 2 years you stayed out of trouble. So, while you just spent that huge amount of time supervised, you don’t get any credit when the penalty time comes (should that happen). The judge could order you, because of that violation in the last second, to serve the 730 days in jail. Again, assuming it’s a level 6 or lower, that means 365 actual days in jail. So, while example 1 seemed less harsh, the math proved otherwise. 729 days supervised with no credit + 365 actual days in jail for the violation. That’s 3 years of your life as opposed to a guaranteed 6 months in option 3.

Now, obviously, not every violation results in full backup, but it can. To avoid the risk, some will choose the harsher, shorter option to avoid the longtime risk. There are also examples of people being unable to transfer probation out of state for lower level misdemeanors and level 6 felonies. In those circumstances, those out of state individuals may choose jail as a quick way to avoid long term supervision or being denied transfer.

If you are very facing the option of probation versus an executed sentence, obviously the best person to speak to is your lawyer. They can explain the options and the pros and cons.Should you have any questions, please call Banks & Brower, LLC 24/7/365 at 317-870-0019 or email at