Federal probation is guided by 18 U.S.C. §3563 – Conditions of probation.
The authorized terms of probation for federal offenses are—
(1) for a felony, not less than one nor more than five years;
(2) for a misdemeanor, not more than five years; and
(3) for an infraction, not more than one year.
Federal Conditions of Probation
Mandatory Conditions of Federal Probation
These conditions apply to all defendants sentenced under federal law to any period of probation:
(1) for a felony, a misdemeanor, or an infraction, that the defendant not commit another Federal, State, or local crime during the term of probation;
(2) for a felony, that the defendant also abide by at least one condition set forth in subsection (b)(2) or (b)(12), unless the court has imposed a fine under this chapter, or unless the court finds on the record that extraordinary circumstances exist that would make such a condition plainly unreasonable, in which event the court shall impose one or more of the other conditions set forth under subsection (b);
(3) for a felony, a misdemeanor, or an infraction, that the defendant not unlawfully possess a controlled substance;
(4) for a domestic violence crime as defined in section 3561(b) by a defendant convicted of such an offense for the first time that the defendant attend a public, private, or private nonprofit offender rehabilitation program that has been approved by the court, in consultation with a State Coalition Against Domestic Violence or other appropriate experts, if an approved program is readily available within a 50-mile radius of the legal residence of the defendant;
(5) for a felony, a misdemeanor, or an infraction, that the defendant refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant’s presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant;
(6) that the defendant— (A) make restitution in accordance with sections 2248, 2259, 2264, 2327, 3663, 3663A, and 3664; and (B) pay the assessment imposed in accordance with section 3013;
(7) that the defendant will notify the court of any material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay restitution, fines, or special assessments;
(8) for a person required to register under the Sex Offender Registration and Notification Act, that the person comply with the requirements of that Act; and
(9) that the defendant cooperate in the collection of a DNA sample from the defendant if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000.
If the court has imposed and ordered a fine and placed the defendant on probation, payment of the fine or adherence to the court-established installment schedule will be a condition of the probation.
Discretionary Conditions of Federal Probation
These are discretionary conditions that the judge may order as further conditions of a sentence of federal probation, as long as the ordered conditions are reasonably related to federal sentencing factors and to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary for the purposes of federal sentencing, that the defendant—
(1) support his dependents and meet other family responsibilities;
(2) make restitution to a victim of the offense under section 3556 (but not subject to the limitation of section 3663(a) or 3663A(c)(1)(A));
(3) give to the victims of the offense the notice ordered pursuant to the provisions of section 3555;
(4) work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip him for suitable employment;
(5) refrain, in the case of an individual, from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the offense, or engage in such a specified occupation, business, or profession only to a stated degree or under stated circumstances;
(6) refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons;
(7) refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), without a prescription by a licensed medical practitioner;
(8) refrain from possessing a firearm, destructive device, or other dangerous weapon;
(9) undergo available medical, psychiatric, or psychological treatment, including treatment for drug or alcohol dependency, as specified by the court, and remain in a specified institution if required for that purpose;
(10) remain in the custody of the Bureau of Prisons during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment authorized for the offense, during the first year of the term of probation or supervised release;
(11) reside at, or participate in the program of, a community corrections facility (including a facility maintained or under contract to the Bureau of Prisons) for all or part of the term of probation;
(12) work in community service as directed by the court;
(13) reside in a specified place or area, or refrain from residing in a specified place or area;
(14) remain within the jurisdiction of the court, unless granted permission to leave by the court or a probation officer;
(15) report to a probation officer as directed by the court or the probation officer;
(16) permit a probation officer to visit him at his home or elsewhere as specified by the court;
(17) answer inquiries by a probation officer and notify the probation officer promptly of any change in address or employment;
(18) notify the probation officer promptly if arrested or questioned by a law enforcement officer;
(19) remain at his place of residence during nonworking hours and, if the court finds it appropriate, that compliance with this condition be monitored by telephonic or electronic signaling devices, except that a condition under this paragraph may be imposed only as an alternative to incarceration;
(20) comply with the terms of any court order or order of an administrative process pursuant to the law of a State, the District of Columbia, or any other possession or territory of the United States, requiring payments by the defendant for the support and maintenance of a child or of a child and the parent with whom the child is living;
(21) be ordered deported by a United States district court, or United States magistrate judge, pursuant to a stipulation entered into by the defendant and the United States under section 238(d)(5) of the Immigration and Nationality Act, except that, in the absence of a stipulation, the United States district court or a United States magistrate judge, may order deportation as a condition of probation, if, after notice and hearing pursuant to such section, the Attorney General demonstrates by clear and convincing evidence that the alien is deportable;
(22) satisfy such other conditions as the court may impose or;
(23) if required to register under the Sex Offender Registration and Notification Act, submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of probation or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer’s supervision functions.
Modifications of Federal Probation Conditions
The court may modify, reduce, or increase the conditions of a sentence of probation at any time prior to the expiration or termination of the term of probation, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the conditions of probation.
Applicability of Federal Probation
This court’s ability to penalize a defendant is not unlimited. Instead, the penalties for each conviction are limited by the United States Code, which authorizes this Court to order limited punishment for a defendant convicted of a particular offense. Pursuant 18 U.S.C. § 3551, this court only has the power to impose (1) a term of probation, (2) a fine as authorized, or (3) a term of imprisonment. The Court must choose one penalty but cannot impose all of them — note Congress’ use of a disjunctive “or” instead of a conjunctive “and” in the enumeration of the penalties. An exception is carved out in 18 U.S.C. § 3551 for a fine — a fine is explicitly permitted to be tacked to another penalty. No other tacking or conjunctive exceptions are specified.
Then, 18 U.S.C. § 3561(a)(c) repeats Congress’ limitation on the Court to order both probation and imprisonment, stating that probation may be ordered unless the defendant is sentenced a term of imprisonment for the same offense. Therefore, federal law requires a district court to choose between probation and imprisonment when imposing a sentence.
