8
Probation
CHAPTER OUTLINE
I. The History and Development of Probation
A. Benefit of Clergy
1. From the 1200s until it was abolished in 1827
2. One accused of serious offenses in England could appeal for leniency
by reading the text of the 51st Psalm.
3. Originally intended for to protect those under protection of the church
from the King.
4. Came to be known as the “neck verse” as it saved people from capital
punishment.
B. Judicial Reprieve
1. In England judicial reprieve became widespread in the 1800s
2. The judge could elect to suspend either the imposition of execution of
a sentence for a specified length of time, on condition of good
behavior.
3. At the end of that time the offender could apply to the Crown for a
pardon.
4. In the U.S. judicial reprieve took a different form and led to a series of
legal controversies.
5. The discretionary use of such indefinite reprieves was declared
unconstitutional by the Supreme Court in 1916.
C. Recognizance
1. Boston Municipal Court Judge Peter Oxenbridge Thatcher originated
the practice.
2. The main thrust of reprieve and recognizance was to humanize the
criminal law and mitigate its harshness.
3. In 1837 Massachusetts made recognizance with monetary sureties
law.
4. John Augustus was the first to formalize court leniency.
a. He was the first to use the term “probation.”
b. Developed the idea of pre-sentence investigation
c. Social casework
d. Reports to the court
e. And probation revocation.
f. His objective was to help offenders and get them to reform.
D. The Modernization of Probation
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1. Augustus and his followers followed the social worker model.
a. Emphasizes provision of supportive services to meet offender
needs
b. Modern probation tends to lean on the law enforcement model.
c. This has produced a tension in the role of probation in the system
of justice.
2. In the 1940s leaders in probation and other aspects of corrections
began to embrace ideas from psychology about personality and human
development.
a. The medical model dominated the literature, but not the practice.
b. Remained influential until the 1960s.
c. The medical model gave way to the reintegration model.
d. This model assumed crime was a product of social factors such as
poverty.
e. The approach to probation changed from counseling to service
brokerage.
3. In the latter part of the 1970s, thinking about probation changed to the
model that is current today:
a. Rehabilitation and reintegration gave way to risk management.
b. The goal of this model is to minimize the probability an offender will
commit another offense.
c. The process employs tight controls over probationers’ activities with
careful surveillance.
d. Offenders today are placed on probation in one of four ways.
i. Judges impose a sentence of probation (60%).
ii. Judges impose a sentence of probation that is suspended
pending good behavior (22%).
iii. For those already on probation, an additional probation is
imposed, but suspended (9%).
iv. Or, the court may require that some period of incarceration be
served prior to probation. This “split-sentence” approach has
waned most recently.
4. Judges may also impose other sentencing arrangements.
a. Modification of sentence – modified sentence of incarceration to
probation
b. Shock incarceration – released after brief period of incarceration
(the shock) and placed on probation.
c. Intermittent incarceration – spends weekends or nights in jail.
5. Today, 50% of probationers have been convicted of a felony.
6. Probation practices reflect the social forces of the time.
7. Today there is a growing interest in “community justice.”
a. This is a philosophy that emphasizes reparation to the victim and
the community.
b. Problem-solving strategies instead of adversarial procedures
c. Seeks to increase citizen involvement in crime prevention
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II. The Organization of Probation Today
A. Originally, probation was an arm of the court (Eastern U.S. primarily).
1. As it moved west it was placed in the executive branch.
2. Eventually, in some places, it was merged with parole.
3. This has produced three emerging questions.
B. Should Probation Be Centralized or Decentralized? The centralization
issue concerns the location of authority to administer probation services.
1. Decentralization supporters argue it will create a more flexible agency
capable of responding to the particular needs of that community.
2. Centralization supporters claim that localized agencies tend to lack
professionalism.
C. Who should Administer Probation?
1. The recent trend has been away from judicially administered probation
2. Proponents of placing probation under the executive branch argue that
it would result in
a. Better allocation of services
b. Increased interaction
c. Administrative coordination with corrections and allied human
services
d. Increased access to the legislative budget process
e. More appropriate service priorities
f. Besides, the judiciary is ill prepared to administer the human
services operation.
3. Proponents for judicial control argue that
a. Probation would be more responsive to the sentencing judges’
desires.
b. Judicial employees would produce more scrutiny of probationers.
c. Morale would be higher because they would work directly with the
judge.
D. Should Probation Be Combined With Parole?
1. Probation and Parole are analogous services, both supervising
offenders who are serving portions of their sentences in the
community.
2. Supporters of combining argue
a. It promotes more efficient hiring and training practices.
b. Promotes better professionalization of community officers
3. Others argue
a. There are subtle and important differences between the two
offender populations.
b. Probationers have less criminal lifestyles.
c. Parolees always face a more difficult time re-entering the
community.
d. These differences call for different handling.
III. The Dual Role of Probation Investigation and Supervision
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A. Investigation involves the preparation of a presentence investigation (PSI)
to be used by the judge in sentencing an offender.
1. Begins with interview with the offender to obtain background
information.
2. The officer then seeks to verify, clarify, and amplify the information,
including any omitted.
3. The final PSI document
a. Summarizes findings
b. Evaluates the offender
c. Recommends a sentence (often)
B. Supervision begins once an offender is sentenced to probation.
1. Officer defines the role of the officer and the probationer.
2. The two establish supervision goals to help offender comply with
conditions established by the court.
3. Officer decides how to terminate probation after examining offender’s
response to probation.
C. Investigation and supervision are divergent functions.
1. In preparing the PSI the officer primarily works with human service
professionals and develops a sense of partnership with the judge.
2. Supervision is fraught with uncertainty.
a. Little sense of accomplishment
b. Rewards are intangible
3. Large departments specialize their staff in order to circumvent this
problem but this can produce inefficiencies.
a. Supervising officer must relearn the information in the PSI.
b. If convicted of another offense, the supervising officer should write
the PSI.
IV. The Investigative Function
A. The purpose of the presentence investigation is to help the judge select an
appropriate sentence for the offender.
1. PSI plays the most important role in sentencing because there are no
uniform rules on sentencing.
2. The PSI must be comprehensive enough to meet the information need
of judges with a variety of sentencing perspectives.
3. Two different goals constrain the influence of the PSI in sentencing.
a. The rehabilitative goal requires assessment of the offender’s
treatment needs.
i. Does the offender have special problems that led to the crime?
ii. Can these be overcome by community services and careful
supervision?
b. The risk management goal assesses the likelihood there will be
reoffending.
i. What is the prior record?
ii. Is the offender’s lifestyle stable?
iii. What is the pattern of adjustment to correctional treatment?
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B.
C.
D.
E.
4. Two circumstances constrain the influence of the PSI on sentencing:
a. Judges often seek a balance between rehabilitation and risk
management.
b. Plea bargaining – here the PSI helps determine if the agreement is
appropriate.
Contents:
1. One of disputes is whether length matters.
a. Early manuals stressed length and completeness.
b. Current thinking is that less may be more and a short and direct
format is becoming more common.
2. PSIs aren’t useful unless the information is valid and reliable.
a. Verification – information should be cross-checked to ensure its
reliability.
b. Objectivity – information should report observed behaviors, not
vague conclusions subject to interpretation.
3. Victim impact statements reflect the impact of the crime on the victim.
a. Probation officer must interview victim and in their words report the
damage.
b. Research has shown, however, that this portion of the PSI had
neither contributed to a greater focus on the damage done or to
harsher sentences.
Recommendations: Sentencing recommendations are a controversial
aspect of the PSI because a person without authority to sentence the
offender is suggesting what the sentence should be.
1. Not all probation systems include this in the PSI.
2. Yet, there is a well-established tradition of recommendations by nonjudicial actors.
3. Congruence between recommendations and actual sentences is in the
range of 70 to 90%.
4. If there is judicial confidence, it may be misplaced – in one study, only
a very few offenders recommended for probation behaved better than
those recommended for prison.
Disclosure: In many states the defense does not receive a copy of the
report; Williams v. NY.
1. 16 states require full disclosure of the PSI.
2. Other states “cleanse” the report and then disclose it.
a. Cleansing involves removing confidential comments from those
known to the offender.
b. Clinical statements or evaluations that might be damaging to the
offender also removed.
3. Many judges allow the defense to present a written challenge of any
disclosed contents of the PSI.
Private PSIs: Private investigative firms have recently begun to provide
judges with presentence investigation reports.
1. Called Client Specific Planning
a. In one model the firm serves as an advocate for the defendant.
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b. In the second, the court hires a private investigator to provide a
neutral PSI.
2. Seen by some as giving unfair advantage to middle class and upper
class offenders
V. The Supervision Function
A. The Officer- Probation officers face role conflict in virtually every aspect of
the job.
1. This is a product of two responsibilities: enforcing the law and helping
the offender.
2. The chief conflict between the two roles arises from their use of power
and authority.
a. Power is the ability to force a person to so something he or she
doesn’t want to do.
b. Lack of substantive power explains why probation officers rely upon
their authority.
c. Authority is the ability to influence the person’s actions in a desired
direction without resorting to force. There are three kinds of
authority employed.
i. Irrational authority – based solely on power
ii. Rational authority – derives from competence in deciding on the
best approach
iii. Psychological authority – the most influential type, reflects
acceptance by both client and officer of jointly determined goals
and strategies of supervision.
B. The Offender – the offender’s response has a great influence on the
overall effectiveness of probation and depends on part on his/her
perception of the officers power as the relationship increases.
1. Some respond well, while others resent it.
2. Offender’s response depends upon the perception of the officer’s
power.
3. Officers must decide between two styles of supervision:
a. Supportive
b. Controlling
C. The Bureaucracy - imposes both formal and informal constraints on
supervision.
1. Formal constraints are the “legal conditions” of probation which are set
by the court or written into the law. There are three kinds of conditions
for probation.
a. Standard – imposed on all probationers
b. Punitive – fines, community service, restitution, etc.
c. Treatment – force probationer to deal with a significant problem
(e.g. substance abuse).
2. Formal organizational policy constraints frequently pale compared to
informal constraints.
a. Case control
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b. Case management structure
c. Competence
VI. The Effectiveness of Supervision
A. Case Management Systems: “model system” developed for case
management based on
1. Statistical risk assessment – the use of statistically developed risk
assessment instruments reduces “over-prediction” and improves the
accuracy of risk classification.
2. Systematic needs assessments – requires evaluation according to a
list of potential needs areas.
3. Contact supervision standards – offenders are classified into
supervision “levels, with each having a minimum contact level.”
4. Case planning – written plan gives a better fit between client’s
problems and officers’ supervision strategy and improves officer work
evaluation.
5. Workload accounting – time studies that estimate the number of staff
needed to carry out supervision – it is a better measure than merely
counting cases.
B. Specialized Supervision Programs
1. The needs of probationers vary dramatically.
a. Because case loads often exceed 100, officers have grouped
offenders with similar problems into a single case load.
b. This approach has shown some promise.
2. Recent interest in the problem of substance abuse has increased the
attention given to probationers with drug and alcohol problems by
using new technologies.
a. Urinalysis – tests if the probationer is using
b. Antabuse – a drug that simulates nausea when combined with
alcohol
c. Methadone – reduces craving for heroine
3. Another specialized program pairs a probation officer more closely with
street police officers.
4. Specialized programs (and therefore officers) create conflict between
“specialized” officers and those who handle “regular” case officers.
Regular cases become regarded as less attractive.
C. Performance-based Supervision – questions about the effectiveness of
community supervision have spawned this reform.
1. This approach emphasizes the importance of results in setting
priorities and selecting activities.
2. This approach places a new emphasis on public safety in probation.
3. Sometimes called “broken windows probation”
4. Focus on public safety is expressed in two ways.
a. They choose supervision strategies that reflect what is known about
the effectiveness of supervision.
b. They set goals for improved supervision outcomes with their clients.
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D. Is Probation Effective Regardless?
1. Most studies of supervision effectiveness compare different probation
strategies.
2. Most studies show no differences in outcomes.
3. However, these studies never compare “doing nothing” to other
strategies.
4. One recent study, however, showed a few cases factors predicted new
criminal behavior yet most offenders showed a large and abrupt
reduction in offending after being placed on probation.
VII. Revocation and Termination of Probation
A. Probation status is ended in one of two ways: person successfully
completes the probation and is terminated or the person’s probationary
status is revoked because of misbehavior.
1. Rules violations that result in revocations are technical violations
2. Revocation for technical violations is controversial because these are
things that are not illegal.
3. The most common reason for revocation is another offense.
4. Somewhere between one fourth and one third of probationers do not
abide by their conditions.
5. A RAND study found much higher rates of offending:
a. More than one third were arrested or charged with a technical
violation.
b. Of these, 65% were arrested, while 51% were actually convicted.
6. It is possible probation works better in some places than others.
B. The approved practice is to handle the revocation in 3 stages because the
offender has several due process rights. The approved practice is
1. Preliminary hearing (stage one) – determine if probable cause exists
for the arrest (sometimes waived).
2. Hearing (stage two) – The facts of the allegation are heard and
determined. Probationer has right to counsel.
3. Sentencing (stage three) – whether to impose confinement or amend
the probation conditions.
VIII. Probation in the Coming Decade
A. Two increasingly divergent types of probation:
1. One is largely a paper exercise with services being brokered
2. The remaining probations (a minority) will receive close attention and
supervision.
B. Probation administrators are changing the way they want to be evaluated.
1. Traditional measure has been arrest rates.
2. Some want to measure “performance indicators.”
a. Number of community projects offenders participate in
b. Amount of fees and restitution collected
c. Number of days free from drugs
d. Employment rates, etc.
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C. Probation finds itself at a crossroads.
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