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In the correctional field, probation is a treatment program designed to facilitate the social readjustment of offenders. Suspension of final action is conditional, contingent upon the probationer’s adherence to regulations set by the court or at the judge’s behest. A probationer is supervised and counseled by an agent of the court. It is considered that probation is effective form of punishment because it helps to reduce prison population and avoid a negative impact of a prison on minor offenders.
According to Abadinsky (2005) probation is a treatment program in which final action in an adjudicated offender’s case is suspended, so that he remains at liberty, subject to conditions imposed by or for a court, under the supervision and guidance of a probation worker. The word “probation” derives from the Latin, its root meaning being “a period of proving or trial” (Abadinsky 2005, p. 4). The Catholic Church has used the term to connote a test period undergone by candidates seeking membership in religious orders. In Protestant denominations ministerial candidates may be “on probation” pending ordination. The theory of probation evolved from antecedent practices, all intended to lessen or otherwise mitigate the severities of the penal code (Abadinsky 2005).
Mair (2004) explains that a judge may direct release on recognizance with or without bail, or sureties. And bail is used with or without recognizance. Originally, it was a method of assuring a defendant’s appearance for trial, and also of effecting provisional suspension of final action in a case. Today it is used exclusively for the first purpose. Earlier, the defendant was placed in the custody of those who became bail for his appearance in court. The sureties who “went bail” therefore had a financial interest in seeing to it he abided by the court’s instructions. This necessarily entailed some supervision, to make sure the accused did not decamp. Thus, in bail as a form of deferral of final action social workers had suspension of sentence, freedom instead of incarceration, conditions set upon that freedom, the possibility of its revocation, and some kind of supervision although not by an official agent of the court (Schmalleger, 2006).
The most prevalent form of organization in probation is the county plan, in which the state writes basic probation law while each county, within that framework, appoints staff and administers its own department. Centralized state probation systems are in the minority, but increasing in number. Here, one agency administers the system for the entire state, furnishing counties with requisite service. There has been some trend toward the combined state-administered probation and parole agency (Schmalleger, 2006). One organization furnishes both probation and parole services to the entire state. There are city and town probation units, independent of the counties in which they are located. The city of New York, for instance, has a probation unit attached to certain of its municipal courts while county departments exist in other courts in the metropolitan area. The Federal Government conducts its own probation program for persons coming under the purview of courts at that level. Advocates of the county plan say the centralized state system impairs local autonomy. It does, to an extent. However, a state unit has much to recommend it. Many counties cannot afford adequate probation service. Under a state administration they would receive what they need, on a par with the rest of the state (Stevens 1999).
The effectiveness of probation is explained by the fact that it is available to juveniles and adults, males and females, felons and misdemeanants. Least developed are facilities for misdemeanants. This should concern police officers for these offenders require as much attention as do felons. True, some are accidental violators of law who need little if any help from probation and represent practically no risk in the community (Mair, 2004). Among misdemeanants are also to be found the alcoholics, the drug addicts, the petty thieves, vagrants, and certain types of sex offender. All of these tend to be more disorganized personally, less capable of solving their problems, than are felons. In individual instances they may be more dangerous than the latter. The public considers misdemeanants lesser offenders. The result is that government does not spend much on probation service for these “lesser offenders.” Caseloads are high. Presentence investigations, if made at all, are necessarily superficial (Petersilia, 1997).
The adult offender appears in a court of criminal jurisdiction. If guilt has been ascertained, a presentence investigation is initiated in courts providing such service. On the strength of this, the judge may order the defendant imprisoned or may place him on probation. The juvenile is petitioned into court. Proceedings are informal. In many jurisdictions the investigation is prepared prior to the hearing (Schmalleger, 2006). In such instances, it is not a presentence but a prehearing probation report. While critics have defined probation in such manner as to indicate that the probationer has been convicted of crime or adjudicated into the status of juvenile delinquent, it is possible, in a limited number of jurisdictions, for an individual to be on probation without such conviction or adjudication. To cite one instance, Massachusetts sometimes places complaints on file, thus eschewing trial and conviction where this seems in the public interest. In certain Federal district courts, youthful offenders are treated in similar fashion. In given cases, “the alleged offender being willing, he waives trial and agrees to place himself under voluntary probation” (Schmalleger, 2006, p. 92).
According to Petersilia (1997) the objective is to spare the offender. On the other hand, this practice involves some hazard. Suppose the offender violates probation. Trying him at that point might be difficult or impossible. Witnesses might be unavailable. If available, their recollection of events might no longer be accurate. However, so few cases are involved, percentage-wise, that no serious problems seem to have developed through this informal use of probation. Judges seem to have recognized that the probation investigation is an invaluable prognostic guide (Crighton and Towl, 2005). To be sure, a judge who is required to have a presentence or prehearing report before him may not read it, or, if he does, may pay it little respect; but the statutes obviously intend to have him expose himself to it. These laws fall into three categories: (1) the judge may decide whether and when he wants a report; (2) reports must be prepared prior to sentence if probation is being considered; (3) investigations are to be made and reports submitted before sentence whether or not probation is under consideration (Mair, 2004). There are variations on these patterns, as where reports are mandatory in felony but not misdemeanor cases. By law, or reasonable implication, every juvenile court is required to have an investigation report before it at some point. Only a minority of states require a presentence investigation in all adult cases, whether or not probation is contemplated (Crighton and Towl, 2005). “A ‘soft machine’ consisting of psychiatrists, psychologists, social workers, therapists and probation officers evolved to diagnose and treat offenders both in prisons and in the community” (Mair 2004, p. 63).
Restrictions of some sort are placed upon the majority of courts in the matter of eligibility for probation. Juvenile courts are affected. In adult jurisdictions, statutory limitations fall into two broad categories: (1) those forbidding probation for defendants charged with designated offenses; and (2) those excluding persons convicted of felony more than once. Only seven states have no restrictions whatever. In fourteen, the sole limitation is that those convicted of crimes punishable by death or by life imprisonment are ineligible (Schmalleger, 2006). Since for the most part (but not exclusively) this means prisoners who have committed murder, the disqualification is of slight importance numerically.
Among states disqualifying on the basis of offense there is no uniformity. Following Abadinsky (2005) theoretically, each law seeks to make ineligible those defendants guilty of the most serious crimes. As a serious crime, ten states specify arson and rape. Michigan, while not disbarring such cases, does exclude armed robbers and night burglars. “Thus individuals are cycled ‘from probation to prison because of probation violations, from prison to parole, and back to prison because of parole violations” (Mair 2004, p. 67). As to repeated convictions, ten states forbid probation for individuals convicted of two or more felonies; two, if there has been a prior term of imprisonment of whatever nature; and two states exclude those convicted three times, whether for felony or misdemeanor. For instance, In Tennessee it is illegal to grant probation to a defendant convicted of a crime punishable by a sentence of more than five years. Alabama obviously takes a different position on what constitutes serious crime, for it excludes those punishable by terms of more than ten years. In Louisiana the jury must recommend probation before it can be extended in a jury case (Schmalleger, 2006).
The main problem and weakness of probation is that laws vary widely where adults are concerned. The term must not exceed the maximum period of commitment which could have been meted out for the offense, unless — rarely -the statute specifically authorizes such extension (Abadinsky, 2005). Within this framework, the length of the probation period is discretionary with the judge in most jurisdictions. In some states it may not exceed a stipulated period of time. For example, in Mississippi first offenders may be placed on probation for a term not to exceed five years. In other states, the stipulated maximum varies by offense, type of court, or other factor. A robbery conviction might carry a maximum probation term of five years; a burglary count, three. A defendant in a court of felony jurisdiction might be subject to a five-year maximum; one in a lower court, to two years. In a few states restrictions have to do with minima rather than maxima. A New Jersey probationer must remain under supervision at least a year. In Idaho, Montana, and Wisconsin, felony offenders on probation are required to remain in that status at least as long as the minimum term of imprisonment to which they were subject.
Once more it must be remarked that if police officers are to individualize offenders, restrictions on probation term should be at the irreducible minimum and related to treatment needs and community protection rather than to preconceived legal formulae (Abadinsky, 2005). The time a probationer spends under care is called the supervision period,” a somewhat unfortunate designation, since it places all the emphasis upon the directive and protective function while seemingly ignoring the equally important treatment role. The other problem is that the probation and parole agencies in the United States are not agreed. “One senior probation officer was quoted as describing these programmes as ‘the biggest experiment in social engineering this country has ever seen’” (Mair 2004, p. 53). Actually, the probationer is under supervision and treatment. Community protection and individual guidance go hand in hand. Supervision, to use the conventional term, runs the gamut in quality from routine acceptance of mailed reports to exercise of the most advanced techniques in social work (Stevens 1999). Fear of consequences is of small value in helping a parolee steer a true course. Fear is a negative factor and, as such, it has little if any influence upon the parolee who is full of hope and whose efforts are winning social and economic acceptance in his community.
Every probation statute, by express language or reasonable implication, provides that probation may be revoked for any violation of conditions. Probation, like parole, is a privilege, not a right (Schmalleger, 2006). The probationer has been permitted to remain at large by grace of the court. The judge sets conditions upon that freedom. He has the power to order revocation. Whether stipulated in law or not, most courts give probationers cited for violation an opportunity to be heard before action is taken (Abadinsky, 2005). Not many years ago, the correctional worker who suggested that probation (or parole) was less than perfect in operation was regarded by many of his colleagues as subversive. Workers now engage in considerable self-evaluation. They are more ready to acknowledge that a wide gap exists between theory and practice, the ideal and the real. They point to the need for better recruitment techniques, higher standards of administration, more effective treatment (Mair, 2004). According to Abadinsky (2005) it is encouraging that young people are pouring into the field, scrutinizing it objectively, telling the world what they see.
The newcomer feels no need to defend older ways. A consequence has been a greater acceptance of the need for research. Today, practitioners make objective investigations, seek answers to their questions, and are not afraid of those answers. Research is accumulating in professional journals, replacing acceptance on faith (Abadinsky, 2005). the other problem is that the majority of correctional agencies do not recruit through a merit system, although the trend is in that direction. Civil service and other merit systems offer no panaceas in recruitment. They tend to overprotect the mediocre and average and to offer insufficient opportunity for advancement to the above average worker. Nevertheless, they are superior to a system of recruitment via the spoils system (Mair, 2004). Caseload is another reason why workers abandon this work. The bulk of probation and parole agencies frankly admit they place upon the worker a load so great as to make casework treatment difficult in the extreme, if not impossible. The parole officer should not be a policeman. He is a peace officer but not a policeman. Every policeman is a peace officer, but not every peace officer is a policeman. The correctional worker’s peace officer functions are not precisely and altogether those of a policeman, and to say so is to set up a straw man with the intention of demolishing him.
In sum, probation is effective solution to the problem of punishment but it is based on diverse state laws and lacks agreement between different law enforcement agencies. Probation is effective if it is based on special plans and programs developed for a particular offender. One of the most persistent debates in the corrections field has to do with how far the probation and parole officer should go in performing the law enforcement function with which he is charged. No one denies he is so charged. Few would have him altogether forget he has such function in law. The aim of probation and parole, with adult or juvenile, male or female, is so to help the individual that he no longer wants to harm society. When that time comes the law enforcement function becomes quiescent. Until then, realistic administrative considerations dictate that this function be not relegated to the scrap heap. The public would eventually rise up against such administration and tear down the good with the bad.
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Abadinsky, H. (2005). Probation and Parole: Theory and Practice. Prentice Hall; 9 edition.
Allen, H. E. (2006). Corrections in America. Prentice Hall; 11 edition.
Crighton, D., Towl, G. (2005). Psychology in Probation Services. Wiley-Blackwell.
Mair, G. (2004). What Matters in Probation. Willan Publishing.
Petersilia, J. (1997). Community Corrections: Probation, Parole, and Intermediate Sanctions. Oxford University Press, USA.
Schmalleger, F. (2006). Criminal Justice Today: An Introductory Text for the 21st Century. Prentice Hall; 9 edition.
Stevens, D, N., Off the Mapp: Parole Revocation Hearings and the Fourth Amendment. Journal of Criminal Law and Criminology, 89 (1999): 1047.