Can I Choose Incarceration Over Probation?

The technical answer is no. The determination of whether or not a defendant receives jail or probation is entirely up to the judge. There’s one big caveat, though. The judge usually follows the recommendation of the prosecutor, who functions as the hand of the Attorney General’s office. But the prosecutor and a defense attorney will normally come to an agreement so a defendant can take a plea deal to avoid trial. 

What this means is simple: A defendant’s attorney has a big say in what the terms of that agreement will be. Does the defendant prefer incarceration over probation? They need only let their attorney know they’ve thought it through, and the attorney is ethically bound to attempt such an agreement. So whereas you can’t technically choose incarceration over probation — there’s the obvious loophole. 

Of course, not everyone would prefer to be jailed instead of enjoying freedom. Then again, there are benefits.

The first and most obvious? In jail, you get free room and board. Outside of jail, there are a plethora of fees associated with probation. They can add up. They might include a reporting fee, fines and court costs, and DWI education or vehicular alcohol lock fees if applicable. Many people who are on probation must also complete a number of hours of community service. That’s not the case when you’re stuck in jail.

Another benefit? Violating probation can result in stiff legal penalties than if you had committed the same crime outside of probation. That’s the point of probation! But if the defendant is likely to commit another crime while on probation, then the best option is to go to jail instead. At the end of the day, it might result in far less incarceration time.

It’s also worth noting that probation and jail time are disproportionate to one another because jail is considered the stiffer punishment. That means probation lasts a lot longer. Want the punishment over faster? Ask for jail.

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