Most defendants who are facing jail time are very satisfied with a probationary sentence in lieu of incarceration. However, defendants sentenced to probation do not always realize that the sentence comes with a list of terms and conditions with which they must comply during their period of supervision. Some terms and conditions are fairly standard. These typically include remaining arrest-free, maintaining employment, going to school, and remaining drug and alcohol free. The sentencing judge can also impose more case-specific or defendant-specific terms and conditions that can be very creative, and are designed to meet the unique needs of the matter at hand.
The failure to comply with the terms and conditions can result in the filing of a violation by the probation officer responsible for the case. The Court will then schedule a hearing on the violation. If the violation is sustained, the Court could impose penalties that range from a lengthening of the probationary term to a sentence in state prison. Under current law, the maximum term of probation in New Jersey is 60 months, or five years. Certain defendants may be eligible for early termination if they can show compliance with all conditions and requirements. Defendants must always remember that being on probation is not always easy, and the likelihood of a violation typically increases with the length of the probationary term. Put somewhat differently, defendants who are placed on probation for long periods of time are at greater risk of facing a violation.
State v. Mosley, decided by the New Jersey Supreme Court on March 6, 2017, reminds us that probation violation hearings are not criminal trials. The State bears the burden of proving the violation, but the standard of proof is much lower than what is required at trial. This is largely because probation violation hearings are not viewed as part of a criminal prosecution, but as part of the corrections process. Continue reading