Do First Time Offenders Get Probation?

  • Time to read: 5 min.

Answer: It depends. It is common for first time offenders to get probation, but it really depends on what the offense was and the circumstances of the offense.

In the article that follows, we’ll explain.

Do First Time Offenders Get Probation? (Explained)

Disclaimer

The contents of this web page are for informational purposes only, and nothing you read is intended to be legal advice. Please review our disclaimer about law/legal-related information on this website before taking action based upon anything you read or see.

Introduction to Sentencing

Sentencing is the last step of a criminal case.

After the defendant’s plea is entered (either by jury verdict or by the defendant’s admission), the court moves to the penalty phase.

The punishment depends heavily upon the jurisdiction and the laws that are in place there.

In most states, there are guidelines for the judges to follow during sentencing (so the sentences are fair and not too hard or too light).

But in general, absent specific statutes, judges have a lot of freedom to decide what the punishment is to be.

The exceptions are when there are statutes in place that override the judge’s decision-making ability.

Sometimes these statutes are mandatory minimum sentences, which we often see in repeat property offenses or third strike laws.

Sometimes these are statutory programs like “diversion” which allow a defendant to complete a ton of work to earn a dismissal of the case.

These laws vary dramatically state to state, and offense to offense.

Some states prioritize prosecution of specific offenses (like intoxicated driving) while others do not.

While the fact that the offender is a “first time offender” (meaning no prior criminal history) is pretty important in the sentencing, there are many other factors that are just as important, such as:

  • the type of crime charged
  • the number of charges associated with the incident
  • whether people were hurt or killed
  • whether property was damaged and how much
  • who the victim is
  • how the defendant acts
  • whether the acts were intentional or with malice
  • the costs to the government
  • whether jail makes the most sense
  • whether the defendant needs other treatment (substances, mental health, physical health)
  • the existence of a support network to keep the defendant on track
  • whether jail or probation serves the community
  • what is right

Do Many First Time Offenders Get Probation?

Yes, many first time offenders get probation.

But this has less to do with the “first time” aspect and more about the other factors in the case, such as:

  • the fact that the first offense was a relatively minor crime with minimal charges
  • the first offense was involved minimal property damage
  • the first offense was involved minimal financial losses to the victim
  • the first offense was involved lack of physical harm to a victim (if it is a person or animal)
  • the youth of the defendant
  • the existence and proximity of the defendant’s family to support the defendant
  • the need for the defendant to stay in school or go to work
  • the fact that jail wouldn’t help the defendant stay on track (and could encourage worse behavior)

Many first time offenders commit crimes that are very minor, and usually have more to do with impulse control, poor decision-making, or mischief than they do with the intent to commit the crime.

Can a First Time Offender Go To Jail?

Absolutely.

There are many first time offenders who end up going to jail, though the amount of time served depends on the crime.

Some judges will order short sentences (2-10 days) to help get the point across in minor cases.

If the case is majorly serious, then probation might not even be an option, even if the judge wanted to order it.

But if the case is serious enough, even if probation is an option, many judges would choose jail because they think jail is the right thing for the defendant and for the community.

Tips For Earning Probation

Probation is never guaranteed in any criminal case.

But there’s a few things you should consider whether you are trying to earn probation or the best possible sentence.

First, if you can afford it, a private retained attorney could possibly make a difference between prison and probation.

While court appointed lawyers are skilled, they are often over-burdened.

They may not be able to focus on the case as much as is needed.

Second, how defendants behave during the case can make a difference.

Defendants who are cocky and disrespectful to the court (even when the judge is not around) will not receive the best outcome.

The court staff and clerks gossip like crazy and the judges hear everything that happens in the courthouse.

Third, taking responsibility for the actions committed and expressing genuine remorse and a desire to change can make the difference.

This is even true while the case is pending and far from the resolution stage.

Assuming the defendant’s attorney is okay with it, getting a job, enrolling in school, volunteering, going to treatment, getting counseling, paying child support, committing to something in the community can persuade the judge and the prosecution that a more lenient resolution is warranted.

But defendants have to do more than promise to change.

People love to talk but few walk the walk.

Conferring With Defense Counsel

If earning probation over serving time in jail is important to the defendant, it is best for him to confer early on with an experienced criminal defense lawyer who regularly practices in the court where the case will be handled.

This is true even if the charges have not been filed yet, or the defendant is still unsure whether charges will ever be filed.

Wrap Up

Want to learn more about your criminal justice system?

Browse our free legal library guides for more information.

You might also like:

Do First Time Offenders Get Probation