How Can You Get Probation Instead of Prison Time?

Yes, it is possible to get probation even if you are looking at prison time, especially under certain circumstances where the court finds substantial and compelling reasons to deviate from the presumptive sentence outlined by Kansas’ sentencing grid. The sentencing grid helps determine whether a defendant should receive prison time or probation based on the severity of the offense and the defendant's criminal history. However, there are options for a court to grant a downward dispositional departure (probation instead of prison) if compelling reasons exist.

Key Ways to Obtain Probation Instead of Prison

1. Dispositional Departure

A dispositional departure allows the court to sentence a defendant to probation instead of prison, even if the presumptive sentence calls for incarceration. A defendant (or the State) may file a motion for such a departure. The judge must be provided with reasons—reasons that are substantial and compelling—that justify granting probation. These reasons can come from statutory law or may arise from case law, and they depend heavily on the facts of the case and the defendant's background.

2. Statutory Compelling Reasons for Probation

Kansas law, specifically K.S.A. 21-6815, lays out several potential reasons that may justify a downward departure to probation:

• The Victim was an Aggressor or Participant
  If the victim played a role in instigating or escalating the criminal conduct, probation may be justified. In State v. Grady, the court granted probation to the defendant after finding that the victim, armed with a knife, was the aggressor in a confrontation. Although the defendant did not fully act in self-defense, the victim’s aggressive behavior played a role in the court’s decision to grant probation instead of prison time.

• Duress or Coercion
  If the defendant committed the crime under duress—even if not sufficient to prove a complete defense—it may justify probation. For example, if the defendant played a minor role in the crime and was pressured or coerced, this could be considered a substantial and compelling reason for a downward departure.

• Physical or Mental Impairment
  If the defendant suffers from a physical or mental impairment (excluding those caused by drugs or alcohol), this could be a reason for the court to consider probation. In State v. Ussery, the defendant's youth and immaturity, compounded by peer pressure from older individuals, helped secure probation instead of prison.

• Abuse by the Victim
  If the victim had abused the defendant or the defendant’s children (physically or sexually) and the crime was committed in response to that abuse, it can be a reason for probation.

• Slight Harm Caused by the Crime
  When the harm caused by the crime is minimal or far less than what typically results from the offense, probation may be appropriate. For example, in State v. Favela, the defendant received probation despite being convicted of attempted murder, in part because the harm caused to the victim was relatively minor.

• Veteran Suffering from Combat-Related Disorder
  A defendant who is a veteran and suffers from a combat-related disorder, such as PTSD, may be eligible for probation instead of prison. This recognizes the impact of military service on the defendant's actions and mental health.

3. Court-Decided Compelling Reasons for Probation

Beyond the statutory reasons, Kansas courts have also recognized other compelling factors that can justify probation:

• Good Behavior Despite a Criminal History
  Courts have ruled that a defendant who has demonstrated long periods of good behavior despite a past criminal record may be eligible for probation. In State v. Heath, the court considered the defendant’s long period of law-abiding behavior as a significant factor in granting probation for a new offense.

• Children to Care For and Amenability to Rehabilitation
  If the defendant has children who depend on them and demonstrates a strong likelihood of rehabilitation, this may be a compelling reason for probation. In State v. Crawford, the court considered the defendant’s role as a mother and her willingness to seek help for her issues as reasons for probation.

• Statements by the Victim or Victim’s Family
  If the victim or the victim’s family testifies on behalf of the defendant, asking for leniency or stating that the crime had a less severe impact, this can influence the court’s decision. In some cases, the victim's family may express forgiveness or understanding, which could lead to a sentence of probation.

How to Argue for Probation

• Present Strong Mitigating Evidence
  When seeking probation, your attorney will need to present compelling evidence to the court showing why you deserve a downward departure. This could include proof of your role as a caregiver, a detailed explanation of the circumstances surrounding the offense, or any psychological evaluations that demonstrate mental or emotional struggles.

• Demonstrate Amenability to Rehabilitation
  Courts are more likely to grant probation if they believe you are amenable to rehabilitation. If you have taken steps toward self-improvement, such as completing drug or alcohol counseling or anger management, or if you have a support system in place to help you stay out of trouble, it may sway the court in your favor.

• Utilize the Victim’s Perspective
  If the victim or their family is willing to provide a statement or testify on your behalf, this can be a significant factor in convincing the court to grant probation.

Conclusion

Even if you are facing prison time, Kansas law allows for probation as an alternative sentence when substantial and compelling reasons exist. Working with your attorney to present the right evidence, demonstrating that you are amenable to rehabilitation, and highlighting any mitigating factors in your case will be crucial in making a successful argument for a downward departure.