prosecutor, would revoke his freedom. This time the judge would set a sentence, or reinstate the previous 
sentence, and the sentence would be executed. The common law authority of a judge to spend a sentence 
was questionable, but many judges regularly exercised that authority. 
Since the defendant released on a suspended sentence was not subject to formal supervisions, judges tended 
to suspend sentences only in minor cases. In the late 1800s, courts began to experiment with a combination 
of a suspended sentence and careful supervision that could be applied to more serious offenses. This new 
procedure, called probation, soon was authorized by statute and provision was made for the appointment of 
special probation officers.” 
2 
Probation is one of the most common alternatives to incarceration. Both probation and parole involve 
supervision of the offender in a community setting rather than in jail or prison. The primary purpose 
of probation is to rehabilitate the defendant. Thus, the court releases the offender to the supervision of 
a probation officer who then monitors the offender to ensure that he or she abides by the conditions of 
probation. With parole, the offender is first incarcerated and is later released from prison to supervised 
control. Under both procedures, offenders who violate the terms of their supervision can be imprisoned to 
serve the remainder of their sentences. 
The Court has said little on probation since 1932 when it announced that probation conditions must 
serve “the ends of justice and the best interest of both the public and the defendant.” Burnes v. United States, 
287 U.S. 216 (1932). According to the Ninth Circuit Court of Appeals, “The only factors which the trial 
judge should consider when deciding whether to grant probation are the appropriateness and attainability 
of rehabilitation and the need to protect the public by imposing conditions which control the probationer’s 
activities.” Higdon v. United States, 627 F.2d 893 (9th Circ. 1980).  The Court has fashioned a two-step process 
for reviewing conditions of probation: first, it determines whether the conditions are permissible, and, if so, 
it determines whether there is a reasonable relationship between the conditions imposed and the purpose of 
probation. 
Many states follow California’s standard for testing the reasonableness of probation conditions. This 
approach holds that probation conditions do not serve the ends of probation and are not valid if (1) the 
condition of probation has no relationship to the crime of which the offender was convicted, (2) the 
condition relates to conduct which is not in itself criminal, or (3) the condition requires or forbids conduct 
which is not reasonably related to future criminal act. People v. Dominguez, 64 Cal. Rptr. 290 (Cal. App. 1967) 
The court struck down a condition that the “probationer not become pregnant without being married,” 
saying it was unrelated to her offense or to future criminality. 
Courts have invalidated the following probation conditions: 
• 
Requiring the offender to refrain from using or possessing alcoholic beverages when nothing 
in the record showed any connection between alcohol consumption and the weapons violation 
of which the probationer had been convicted. Biller v. State, 618 So. 2d 734 (Fla 1993). 
• 
Requiring the defendant to submit to a search of herself, her possessions, and any place 
2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 339). West Publishing Company. 
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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