Probation & Community Custody
What is Probation and What Does it Mean for Me?
We often use the term "probation" generically, both in everyday life and in the criminal justice system. However, the term can mean many different things depending on the circumstance. Probation can be as onerous as having a probation officer searching your home and making you take lie detector tests (polygraph), or it can be as simple as a court clerk checking your criminal record for new offenses ever year. I will try to explain the different levels of probation, and how they differ.
Probation means that the court has retained jurisdiction over a defendant, even though their case has been resolved. If a person is found not guilty, there cannot be probation, since the court has lost jurisdiction. If a person is found guilty a court typically will retain jurisdiction for a set period of time to ensure that conditions of sentence are followed. In misdemeanor or gross misdemeanor cases the period of probation is usually two to five years, but can be shorter. In felony cases the period of probation usually ranges from several years to a defendant's lifetime, depending on the offense.
This is the most lenient level of supervision. It is often imposed by district and municipal courts, but also in superior courts. Courts often choose to impose unsupervised probation when a person has minimal criminal history, and the charged offense is minimal. Unsupervised probation costs less for the court to impose, and therefore a defendant will have to pay less in probation fees for this level of probation.
When a person is placed on unsupervised probation, like the wording implies, they will not have a probation officer supervising them. They may have the same conditions that someone has on supervised probation, but they are not reporting to a probation officer. For instance, a person required to do community service or alcohol/drug treatment would file their treatment progress report directly with the court clerk, instead of with a probation officer. If a person had a new criminal charge while on unsupervised probation, the court clerk could find it during a periodic review of court records while checking to ensure compliance.
When someone has a probation violation while on unsupervised probation, it is likely that the court will send them a summons for a hearing before the sentencing judge, to decide first if a violation has occurred, and what the sanction should be if there was a violation. In this situation the defendant should seek the services of their defense attorney.
This type of probation provides enhanced scrutiny, and means that a person will have regular appointments with a probation officer who may impose drug/alcohol screening. The probation officer is responsible for ensuring compliance and reporting noncompliance to the court for any follow up. These probation officers may even have the power to have their probationers arrested, depending on the court and situation. This enhanced level of probation is more costly for courts to provide, and therefore higher probation fees will be imposed upon defendants at the time of sentencing.
In some cases it is beneficial for a defendant to have a probation officer. They can be of assistance in obtaining services, and for those defendants that lack motivation or ability to follow through with their court obligations, a probation officer can help keep them on track.
When someone has a probation violation while on supervised probation, it is likely that the court or their probation officer will summons them to a hearing before the sentencing judge, to first decide if a violation has occurred, and what the sanction should be if there was a violation. In this situation the defendant should retain the services of their defense attorney.
When a judge does not want to impose supervised probation, they may elect to supervise the defendant themselves. This is essentially the same as unsupervised probation, in that the judge will usually rely on the defendant to file proof of compliance with the court clerk, and will rely on their clerk to perform periodic record checks to ensure compliance. Judges may also require periodic review hearings, where the defendant is required to appear before them and show compliance. Judges are doing less and less bench probation these days, because the review hearings and clerk time can end up taking up a substantial amount of time and resources.
This level of supervision is performed by Community Custody Officers (CCOs), who work for the State of Washington under the Department of Corrections (DOC). They supervise those convicted of felony offenses or some misdemeanor offenses which were originally charged as felonies in Superior Courts. They supervise both those who are released from prisons and jails, as well as those who never were required to serve time.
CCOs are able to arrest and incarcerate individuals they supervise without court or police involvement, and they can either bring them to probation violation hearings that occur before a sentencing judge or in DOC administrative hearings. A person on DOC supervision may not have the right to a defense attorney at administrative violation hearings, but they do at hearings that occur in court. Administrative hearings usually result in penalties that range from days to months in prison, while court hearings can mean of sentences that range from days to life in prison.
CCOs take a very active role in the lives of the persons they supervise. They may perform in home visits, require alcohol/drug testing, they may have to approve a residence or occupation, and they even can require polygraph (lie detector) tests in certain cases.