Probation
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| Criminal procedure |
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| Criminal investigation |
| Arrest · Warrant |
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| Evidence (law) · Extradition |
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| Parole |
| Probation |
Probation is the suspension of a jail sentence—the individual who is "on probation" has been convicted of a crime, but instead of serving jail time, has been found by the court to be amenable to probation and will be returned to the community for a period in which they will have to abide to certain conditions set forth by the court under the supervision of a probation officer. The probation officer helps the offender adapt to living in the community; to guide and help them to behave in a lawful and responsible way.
Probation and parole are different forms of judicial leniency designed to alleviate costs for the penal system and offer the opportunity of rehabilitation to those found guilty of crimes. As such, they both serve the public interest by making those who have broken the law of their society accountable. Yet, when the offense is not deemed serious, and the perpetrator has demonstrated their acknowledgment of wrongdoing and expressed willingness to conform not only to the laws but to additional conditions, probation satisfies the need for punishment. In an ideal world, all those who violate a law would have such an attitude of remorse and recognition of wrongdoing. In such cases, the purpose of the penal system would become one of rehabilitation rather than retribution; the probation system is an essential feature of this process.
Conditions of probation
Individuals on probation have been found guilty of the crimes with which they are charged. As such, their freedoms are limited as punishment. General conditions of remaining out of prison may include maintaining employment, abiding to a curfew, living where directed, abstaining from unlawful behavior, following the probation officer's orders and not absconding, and refraining from contact with other individuals, who may include victims of the original crime (such as a former partner in a domestic violence case), potential victims of similar crimes (such as minors when the crime involves child sexual abuse), potential witnesses, or those who have partnered with the offender in the earlier crime.
History of probation: Origins and evolution
The concept of probation, from the Latin word probatio—meaning testing period—has historical roots in the practice of judicial reprieve. In English Common Law, the Courts could temporarily suspend the execution of a sentence to allow the defendant to appeal to the Crown for a pardon. Probation first developed in the United States when John Augustus, a Boston boot maker, persuaded a judge in the Boston Police Court, in 1841, to give him custody of a convicted offender, a "drunkard," for a brief period and then helped the man to appear rehabilitated by the time of sentencing. Even before John Augustus, the practice of suspended sentence was used as early as 1830, in Boston, Massachusetts, and became widespread in U.S. Courts, although there was no statutory authorization for such a practice. At first, judges used "release on recognizance" or bail and simply failed to take any further legal action. By the mid-nineteenth century, however, many Federal Courts were using a judicial reprieve to suspend sentence, and this posed a legal question. In 1916, the United States Supreme Court held that a Federal Judge (Killets) was without power to suspend a sentence indefinitely, which is known as the Killets Decision. This famous court decision led to the passing of the National Probation Act of 1925, thereby, allowing courts to suspend the imposition of a sentence and place an offender on probation.
Massachusetts developed the first statewide probation system in 1880, and by 1920, 21 other states had followed suit. With the passage of the National Probation Act on March 5, 1925, signed by President Calvin Coolidge, the U.S./Federal Probation Service was established to serve the U.S. Courts. On the state level, pursuant to the Crime Control and Consent Act passed by Congress in 1936, a group of states entered into agreement by which they would supervise probationers and parolees for each other. Known as the Interstate Compact For the Supervision of Parolees and Probationers, the agreement was originally signed by 25 states in 1937. In 1951, all the states in the United States of America had a working probation system and ratified the Interstate Compact Agreement. In 1959, the newly adopted states, Alaska and Hawaii, in addition the Commonwealth of Puerto Rico, U.S. Virgin Islands, and the territories of Guam and America Samoa ratified the act as well.
Probation began as a humanitarian effort to allow first-time and minor offenders a second chance. Early probationers were expected not only to obey the law but also to behave in a morally acceptable fashion. Officers sought to provide moral leadership to help shape probationers' attitudes and behavior with respect to family, religion, employment, and free time. They aimed to ensure that this was enforced as well, and early probationers were given the opportunity to prove themselves and possibly even reduce their sentence.
During the 1920s through the 1950s, the major developments in the field of psychology led probation officers to shift their emphasis from moral leadership to therapeutic counseling. This shift brought three important changes. First, the officer no longer primarily acted as a community supervisor charged with enforcing a particular morality. Second, the officer became more of a clinical social worker whose goal was to help the offender solve psychological and social problems. Third, the offender was expected to become actively involved in the treatment. The pursuit of rehabilitation as the primary goal of probation gave the officer extensive discretion in defining and treating the offender's problems. Officers used their judgment to evaluate each offender and develop a treatment approach to the personal problems that presumably had led to crime.
During the 1960s, major social changes swept across the United States. These changes also affected the field of community corrections. Rather than counseling offenders, probation officers provided them with concrete social services such as assistance with employment, housing, finances, and education. This emphasis on reintegrating offenders and remedying the social problems they faced was consistent with federal efforts to wage a "war on poverty." Instead of being a counselor or therapist, the probation officer served as an advocate, dealing with private and public institutions on the offender's behalf.
In the late 1970s, the orientation of probation changed again as the goals of rehabilitation and reintegration gave way to "risk management." This approach, still dominant today, seeks to minimize the probability that an offender will commit a new offense. Risk management reflects two basic goals. First, in accord with the deserved-punishment ideal, the punishment should fit the offense, and correctional intervention should neither raise nor lower the level of punishment. Second, according to the community protection criterion, the amount and type of supervision are determined according to the risk that the probationer will return to a life out of compliance with the law.
Probation officer
Probation officers and parole officers function as agents or officers of the courts. Parole officers generally function as agents or officers of the Parole Board or the Department of Corrections. Probation officers serve under the court system as the enforcing arm of the court's sentence of someone who has been placed on supervised probation.
Probation and parole in the United States
In the United States, there can be probation officers at the city, county, state, or Federal level—wherever there is a court of competent jurisdiction. Probation Officers, depending on the jurisdiction, may or may not also be Parole Officers. Since the abolishment of parole in the Federal System in 1984, there are essentially no Parole Officers on the Federal Level of the United States. However, there is a small and decreasing number of parolees still being supervised, that were sentenced before 1984, or court-martialed military service personnel, and U.S. Probation Officers serve as parole officers in that capacity. Most all jurisdictions require officers to have a four year college degree, and prefer a Graduate level degree for full consideration for probation officer positions on the Federal level.
Generally, Probation Officers investigate and supervise defendants who have not yet been sentenced to a term of incarceration. Transversely, Parole Officers supervise offenders released from incarceration after a review and consideration of a Warden, Parole Board, or other parole authority. Parolees are essentially serving the remainder of their incarceration sentence in the community due to the excellent adjustment and behavior while an inmate. However, some jurisdictions are modifying or abolishing the practice of parole and giving post-release supervision obligations to a community corrections agent, generically referred to as a Probation Officer. Typically, probation and parole officers do not wear a uniform, but simply dress in business or casual attire. Probation officers are usually issued a badge/credentials and, in many cases, may carry concealed weapons and pepper spray for self protection or serving arrest warrants. Parole Officers, in many jurisdictions, are also issued a badge and firearm and often have full police powers. Probation/Parole officers with law enforcement powers, technically classified as peace officers, must attend a police academy as part of their training and certification.
Probation Agencies have a loosely based paramilitary command structure and are usually headed by a Chief Probation Officer or Director. The chain-of-command usually flows to Deputy Chief or Assistant Director, then to Supervisor or Senior Probation Officer, then to the line probation officer. Some Parole and Probation Officers supervise general caseloads with offenders who are convicted of a variety of offenses. Others hold specialist positions, and work with specific groups of offenders such as Sex Offenders, offenders sentenced to electronic monitoring (house arrest) or GPS Monitoring, cases with severe mental health, substance abuse, and violent histories.
A probation officer can perform any function assigned to him or her by the court. However, their usual mandate is to supervise offenders placed on supervision, and to investigate offender's personal and criminal history for the Court prior to sentencing. Probation and parole officers are required to possess excellent oral and written communication skills and a broad knowledge of the criminal justice system and the roles, relationships, and responsibilities distributed among the courts, the parole authority, the Bureau of Prisons or Department of Corrections and/or local jails, police, substance abuse counseling and social services agencies, applicable case law, sentencing guidelines (if applicable), and the prosecutor. Additionally, they must have an ability to work with an extremely diverse population and wide variety of government agencies and community organizations and accept the potential hazards of working closely with a criminal population.
Pre-sentence investigation
Probation Officers who prepare pre-sentence reports must be especially skilled in gathering, organizing, and analyzing information. In the report and accompanying sentencing recommendation, the probation officer must assess the probability of risk to the community in the form of future criminal behavior, the harm the offense caused and the need for restitution, any profit the defendant received from the crime, and the defendant's ability to pay sanctions such as a fine, restitution, or cost. The officer must identify the defendant's need for treatment to correct characteristics, conditions, or behavioral patterns that limit motivation or ability to obey the law and must assess the availability and suitability of rehabilitative programs. The preparation of pre-sentence reports is critical not only to the individual offender and those directly affected by the offense, but to the systematic administration of criminal justice.
In the U.S, pursuant to the Privacy Act of 1974, a copy of the Pre-sentence Report must be provided to each offender, or their counsel, before sentencing and, depending on the jurisdiction, must provide both counsels with a copy of the sentencing guidelines (if applicable) and be able to explain the calculations, resolve disagreements and noted objections to the Court. After sentencing, the pre-sentence writer should provide the offender with a written explanation of his or her conditions of supervision. In addition, the probation officer should forward a copy of the Pre-sentence Report to the incarceration agency to be used in classification of the inmate to ensure proper placement of the inmate and a better utilization of prison programs and resources.
Probation and parole officers in England and Wales
The National Probation Service is charged with supervising offenders and compiling relevant data regarding offender supervision and its modern form was set out in April 2001, by the Criminal Justice and Court Services Act. It has existed since the 1907 The Probation of Offenders Act, but the practice of placing offenders on probation was routinely undertaken in the London Police Courts by voluntary organizations such as The Church of England Temperance Society as early as the late 1800s. These earlier probation services provided the inspiration for similar ideas in the humane treatment and supervision of offenders throughout the British Empire and also in former colonies of Britain as missionaries and members of the British criminal justice system traveled the globe.
In modern times, the duties of probation officers mirror the duties of their U.S. counterparts with some notable exceptions. Probation officers make regular recommendations to sentencers regarding an offender's progress and potential to contribute to the community after release, although recent legislation creating new orders such as the Drug Treatment and Testing Order have introduced U.S. style reporting to the English Courts for the first time. Additionally, probation officers will supervise a Restorative Justice plan that provides the victim of a crime an opportunity to address the impact of the crime to the offenders. In England and Wales, some attempts have been made to follow the United States and Canada style corrections services but this has sometimes led to poor or inappropriate implementation of politically expedient ideas for changes in the supervision of offenders that do not fit easily with the stable and somewhat conservative criminal justice System in England and Wales.
Probation and parole officers in Australia
Parole Officers in Australia serve an active role in recommending parole to Judges (who, in Australia, determine if Parole should be granted). Probation Officers are expected to not only supervise an offender while he performs community service, but to also develop the community service plans themselves.
ReferencesISBN links support NWE through referral fees
- Abadinsky, Howard. Probation and Parole: Theory and Practice. Prentice Hall, 2005. ISBN 0131188941
- Allen, Harry. Probation and Parole in America. Free Press, 1985. ISBN 0029004403
- Champion, Dean. Probation, Parole and Community Corrections. Prentice Hall, 2007. ISBN 0136130585
- Gibbons, Stephen. Probation, Parole, and Community Corrections in the United States. Allyn & Bacon, 2004. ISBN 0205359469
- Morris, Norval. Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System. Oxford University Press, 1991. ISBN 0195071387
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