Why might some probationers be kept in the community after a technical violation rather than having their probation revoked?

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Probation violations usually fall into one of two categories—substantive and technical. Substantive violations happen when a probationer is charged with a new crime while on probation and often result in the offender being sent back to prison and their original suspended penalties reinstated.

Technical violations occur when the probationer fails...

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Probation violations usually fall into one of two categories—substantive and technical. Substantive violations happen when a probationer is charged with a new crime while on probation and often result in the offender being sent back to prison and their original suspended penalties reinstated.

Technical violations occur when the probationer fails to meet a condition of their probation. Since the goal of probation is to keep the offender out of prison, these less severe violations may not necessarily result in reincarceration. It is often up to the discretion of a judge or probation officer to determine what the consequences of a technical violation could be. If they feel that the offender made an honest mistake that resulted in the violation or that the violation can be remedied through less severe actions, then they often will be permitted to remain in the community.

A technical violation might be something like missing curfew, failing to maintain employment, or missing a meeting with the probation officer. This might result in the conditions of the probation being modified to be made stricter. However, they seldom result in being reincarcerated because this is seen as counter-productive to rehabilitation. Returning someone to jail for a technical violation will ultimately make it harder for them to reintegrate into the community. It is also more costly to the state or county in the long run. Most probation officers see it as a minor set-back and will work with the probationer to help prevent such violations in the future.

This is not to say that technical violations never result in reincarceration. Repeated and unapologetic violations may end up with the offender back in prison if a judge considers the probation to be ineffective.

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The reason for this is that technical violations of probation are often not serious enough to warrant revoking a person’s probation and putting them back in prison.  In such cases, it makes more sense, both financially for the state and in terms of the probationer’s welfare, to keep the probationer in the community.

Technical violations of probation are similar to status offenses among juveniles.  In other words, these are actions that are only illegal because of the person’s status as a probationer (or as a juvenile in the case of status offenses).  In the case of probation, these could be offenses such as missing a visit to one’s probation officer, failing to be home before a set curfew, or using alcohol.  These are actions (or failures) that are not serious and would not have been illegal were it not for the fact that the person was on probation. 

When a probationer commits such an offense, they are often not sent back to prison.  Returning them to prison would seem like a very harsh punishment for something that is, in essence, a minor offense.  This is one reason why probation is often not revoked for technical violations unless there is a clear and persistent pattern of such violations.  Revoking probation seems like a disproportionate punishment.

In addition to being unfair, revoking probation would harm both the offender and society.  It would harm the offender by putting them back in prison, making it harder for them to maintain family ties, to keep jobs, and to ever return to being productive members of society.  It would also, however, hurt society.  It costs much more to keep an inmate in prison than to have that person out on probation.  Therefore, it does not make sense to incarcerate someone for a minor technical violation so long as the violation seems to be an unusual occurrence.

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