What is the difference between probation and parole?

Probation and parole are both alternatives to incarceration. However, probation occurs prior to and often instead of jail or prison time, while parole is an early release from prison. In both probation and parole, the party is supervised and expected to follow certain rules and guidelines. These guidelines are called conditions of parole, or probation conditions, and in both circumstances, the party is expected to submit to warrantless searches, without probable cause.

Probation

Probation refers to a period of time before a person is actually sent to prison or jail. When defendants receive probation, instead of pronouncing the sentence and sending them straight to prison or jail, the judge gives them an opportunity to show that they want to rehabilitate themselves. In this case, either the party is given probation without a pre-determined sentence, or the judge will find the defendant guilty, and temporarily suspend the sentence while the defendant is on probation. If defendants do everything the judge instructs them to do, then they will not be sent to prison to finish their sentence or given a new sentence based on the probation violation and initial crime.

Conditions of Probation

Even though the person is not in jail, they may be subject to many of the same conditions of serving time in jail including curfew rules, requirements to participate in rehab programs, and monthly or more frequent drug testing by urinalysis. While on probation, a defendant can be ordered to pay a fine, court costs, restitution, and any court appointed attorney fees.

The length of time that a person is on probation can range from one year to up to ten years. Many states will cap the length of time that a person can remain on probation.

Probation is managed by a probation officer. The probation officer monitors a defendant’s progress and file reports with the judge, advising them of any failure to abide by probation terms or conditions. If the judge is not happy with a defendant’s performance, the judge can order a capias to be issued and require a defendant to be returned to his court for final sentencing. After sentencing, a defendant is ordered to serve actual time in prison. If the defendant had a suspended prison term, he is usually sent straight to prison to serve his time.

Parole

Parole refers to the period of time after a defendant is released from prison. A defendant on parole will face many of the same controls or safeguards as probation. Conditions of parole may include requiring a defendant to stay in a halfway house and continuing with payments on fines and other financial obligations.

Instead of a probation officer, a defendant on parole usually reports to a parole officer. The parole officer explains the rules of parole and expectations of a party on parole to the defendant and monitors his progress. As with a regular probation, if a defendant fails to comply with his parole conditions, then the parole officer could file a report with the parole board. The parole board may, based on the defendant's behavior while on parole, order the defendant returned to prison to finish the balance of his sentence.

Probation and Parole Differences

The functions of the probation and parole process tend to be very similar. Both are concerned with a defendant breaking the bad habits or behaviors that caused them to break the law. Even though both probation and parole have a strong rehabilitation component, each process has the additional goal of protecting the community.

Parole has the additional function of trying to reintegrate a defendant into society. Depending on the nature of a defendant’s offense, a defendant’s conditions of probation or parole can be amended or changed.  For example, if a defendant is convicted of molesting a child, a defendant may be ordered to stay away from parks and playgrounds where children frequent. 

The conditions of both parole and probation must somehow relate to a defendant’s rehabilitation or underlying offense. How conditions are set depend on whether a defendant is on probation or parole. A defendant on probation is usually still subject to the jurisdiction of the court. This means the judge has the right to amend or modify a defendant’s conditions of probation. Any changes usually come in the form of an order that modifies a defendant’s conditions.

Parole changes are not usually the result of a court order. Instead, parole conditions are usually set by the parole board, and they are for all defendants. For example, all defendants are banned from committing new offenses. Changes in conditions or procedures related to those conditions do not come from the original judge, but instead come from the parole officer or parole board. Instead of criminal proceeding, these changes are referred to as administrative proceedings. This is an important distinction, because a defendant is afforded more state and constitutional protections in a criminal case than an administrative hearing. 

Consequences of a Parole Violation

If a defendant fails to comply with his parole conditions, he could be brought before the parole board to decide on appropriate consequences. The Board can revoke a defendant’s parole and order the defendant returned to prison to finish his sentence. The Board can also reinstate a defendant on parole and then allow him to continue on parole. A defendant doesn’t have the option of a jury trial. Unlike probation, the cap on parole tends to follow the sentence. For example, if a defendant is sentenced to thirty years in prison, then a defendant can be on and off parole for up to thirty years. 

Departments that Handle Parole and Probation

A defendant on probation or parole should maintain a good relationship with his probation or parole officer. Some states will divide their functions into separate divisions including the Parole Department and the Probation Department. Other states will combine the functions into one office. In Louisiana, for example, a defendant could be on probation, get revoked, go to prison, get released and potentially have the same person who managed his probation managing his parole. On the other hand, in the state of Texas, the agencies are split and a defendant will have one officer while on probation, and report to a completely different officer for parole. 

Protecting Your Rights

Most people are very concerned about having good representation when they are first facing a criminal charge. This is a valid concern. However, most states provide several state and constitutional protections to ensure that a defendant receives due process. Defendants should use as much diligence in procuring good counsel to assist with parole issues as they did with the initial crime. Part of the reason for this is that the constitutional procedures and protections tend to be much lower in parole revocation situations because they are more administrative in nature. When there are less built in protections, a defendant needs external protections the most.