One of the commenters asked a question about which offenses warrant prison and which probation. Dashed good question, too.
If only I could answer it.
But let me try. I suppose first one needs to chalk up the purposes of the two options, probation and prison. Boiling them down to their essentials, I come up with:
Probation = rehabilitation
Prison = punishment
Sure, there are punitive elements to probation and one always hope for self-betterment in prison but from the stand-point of the prosecutor, those seem to be the basics. (I'd thought of adding "community safety" to the prison category but if rehabilitation is achieved, then probation gets us there, too). For a more detailed discussion of probation and its goals, look at last week's post, here.
Now, some offenses do seem inherently amenable to probation: any offense with an addiction underlying it, assuming the probation addresses that addiction, is something I always try to do. Obvious, and common, examples include the various drug possession offenses and DWI. If the defendant wants treatment, if treatment will prevent the crime from being repeated, then probation is a good solution. We can make it punitive as well as restorative if we want by adding a fine or jail time, but stopping the crime from being repeated is key, obviously.
Some crimes are less amenable, by their nature, to probation: the legislature has ruled out murder, for example, saying there is no murder for which probation is the appropriate sentence.
I have discussed this topic with colleagues and some have said that some crimes warrant punishment and do not invite either treatment or leniency afforded by probation. Examples provided include cruelty to animals and stalking. The thought is that both crimes exhibit a mean and harmful behavior that is premeditated and thoroughly intentional. I'm not sure I would ever make a blanket statement on the matter, but I can definitely see that argument.
As the comments to the previous probation-related entry suggest, there are times when a defendant and/or his lawyer recognize that probation will be more of a burden than jail time. That tends to be true, of course, when the defendant is looking at several years of probation measured against a few months in the county jail.
That's pretty much what I have to say about probation for now, feel free to leave comments or questions as ever.