Evolution of Probation in the Criminal Justice System

Evolution of Probation in the Criminal Justice System

Prison history consists of experiments conducted on individual prisoners. It reveals that a good prison institution should classify its prisoners. There are various types of offenders who differ from one another.

Offenders who commit similar types of crimes also vary in their traits, motivations, and other characteristics. Some offenders show positive signs of returning to normal social life. The fact that offenders differ in their types necessitates flexibility.

The police, prison administration, and other agencies should approach offenders differently. The court should judiciously decide which sanction or option will best serve the ends of justice.

This desired flexibility has been implemented through various mechanisms such as probation, parole, pardon, suspension, and indeterminate sentences.

Due to the humanitarian movement and public opinion, the use of transportation and capital punishment has declined. In their place, imprisonment has become a common mode of punishment, which has become more severe over time.

To mitigate the harshness of imprisonment, probation and parole have emerged. Probation developed out of the necessity to spare selected individuals from the harshness of imprisonment if they are found guilty and willing to return to normal human life.

On the other hand, Parole was developed to alleviate the harshness of imprisonment. Both of these mechanisms serve as ways to ease the pressure on prisons.

Institutional incarceration, an age-old practice, comes with two critical problems.

First, it creates dependence of the offender on the institution and reduces their capacity to cope with the normal conditions of society. Conforming to the strict discipline of prison does not ensure that an offender will be transformed into a law-abiding citizen.

Another crucial problem is that the prisonization of the offender is followed by job loss, separation from family, and mingling with other notorious criminals.

Using probation and parole provides an opportunity for offenders to avoid the above-mentioned problems and, at the same time, creates an environment for the proper rehabilitation of offenders.

Probation

The Latin word “probare” means ‘to test’ or ‘to prove’. Probation originated from this Latin word.

Homer S. Cunnings observed that “probation is a matter of discipline and treatment. If probationers are carefully chosen and supervision work is performed with care and caution, it can work miracles in the field of rehabilitation.”

Donald Taft defines probation “as the postponement of final judgment or sentence in a criminal case, allowing the offender to improve his conduct and to readjust himself to the community, often on conditions imposed by the court and under the guidance or supervision of an officer of the court.

In the case of juvenile probationers, non-criminal procedures are adopted, and they are less formal. Thus, the probation system involves behavior, or conversely, compels him to perform certain required acts which may be irksome or even painful to him.”

“Probation is a supervised or unsupervised non-custodial sanction. Courts may order probation as an alternative to incarceration. Courts may also place an individual on probation after initially imposing – but then suspending—a custodial sentence. In the latter situation, if the offender successfully completes the term of probation, the custodial sentence will not be imposed.”

In Wikipedia, probation has been defined in the following language:

Probation is the suspension of a prison or jail sentence – the criminal who is “on probation” has been convicted of a crime but, instead of serving prison 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 by certain conditions set forth by the Court under the supervision of a probation officer.

General conditions may include maintaining employment, abiding by a curfew, living where directed, abstaining from unlawful behavior, following the probation officer’s orders, and not absconding.

Usually, a probation officer supervises the offender to monitor their performance during the probation period. The probation officer helps the offender adapt to living in the community and guides and helps them behave in a lawful and responsible way.

The main purpose of probation, therefore, is to save the offender from the mischief of incarceration, allow him/her to rectify himself/herself, and maintain a normal life like a law-abiding citizen. Probation, thus, is a treatment device ordered by a court for persons convicted of violating the law.

History of Probation

English criminal law of the Middle Ages gave rise to probation. Harsh punishments were imposed on adults and children for serious and light offenses.

Among the punishments, branding, flogging, mutilation, and execution were common. Certain progressive groups of English society were discontented due to the harsh punishments.

Slowly, various measures were adopted to mitigate the barbarity of punishments. “Royal pardons could be purchased by the accused; activist judges could refrain from applying statutes or opt for a lenient interpretation of them; stolen property could be devalued by the court so that offenders could be charged with a lesser crime. Also, the benefit of clergy, judicial reprieve, sanctuary, and abjuration offered offenders a degree of protection from the enactment of harsh sentences.

Eventually, the courts began the practice of “binding over for good behavior,” a form of temporary release during which offenders could take measures to secure pardons or lesser sentences. Controversially, certain courts, in due time, began suspending sentences.”

Some have pointed out that the history of probation has its roots in the medieval concept of “benefit of clergy.” This was in vogue in England and America until the middle of the nineteenth century.

Under the ‘benefit of clergy,’ clergy and other literates got an opportunity to escape the severity of punishment. Under this system, the execution of the sentence was suspended for some time. The suspension was extended indefinitely as long as the offender behaved properly.

In the UK, in 1905, a separate court for the trial of teenage criminals was established in Birmingham. The Probation of Offenders Act was passed in 1907.

The Act was amended in 1908 and again in 1914. Probation as a correctional justice device was extended throughout England by the Criminal Justice Act 1948.

Later on, probation was introduced for women and successfully worked and yielded wonderful results. The English Criminal Justice Act 1982 recommended the reorganization of probation committees in England.

The system of probation, supervision, and conditional release on license has proved its potential as an effective after-care program for the treatment and rehabilitation of offenders in England.

Probation in the USA

The history of probation is related to the name of John Augustus, a shoemaker in Boston, America. He was the pioneer of probation. His shop was adjacent to the court in Boston. In 1841, John Augustus volunteered to stand bail for a person convicted of drunkenness in a local court.

The defendant expressed signs of rectification. John Augustus requested the judge to enlarge the offender under his custody.

The judge ordered a nominal fine and enlarged the offender under the custody of John Augustus. This incident immensely inspired him and became surety for more and more offenders. He sincerely helped the offenders and supervised them so they could return to society’s normal life.

Later on, he helped delinquent women and children to be properly rehabilitated. In this way, John Augustus saved more than two thousand persons from the hardships of incarceration.

John Augustus was very careful in selecting offenders and selected those who had not totally deviated and expressed some signs of rectification. He sent suitable offenders to school and provided them with some good employment and lodging.

He maintained an up-to-date record of all the cases he had handled. A modern probation system has been erected on the systematic work of John Augustus.

Subsequently, Father Cook of Boston did a lot to rehabilitate young offenders. He convinced the courts that these young offenders were mostly victims of their surrounding environment and were corrigible if placed under proper supervision.

In matters of juvenile trials, he associated himself with the criminal courts of Boston to advise the judges.

In 1878, probation law was formally enacted in Massachusetts State for the first time. Five states had probation statutes by 1900. By 1915, thirty-three states had probation statutes; by 1957, all had them. In the last part of the nineteenth century, American society encountered a high rise in juvenile delinquencies.

Juvenile courts were established to minimize the problem, and the probation system was extended to these courts. The juvenile court was established in 1899 in Chicago.

The probation movement got great impetus due to this establishment, and it became very popular by the middle of the twentieth century. From that time on, the probation system was extensively utilized in cases of adults, juveniles, and women.

Probation in Other Countries

As a measure of treatment and an effective weapon of corrective justice, the probation system functions in different countries. France, Germany, and Russia have accepted probation as a measure of social defense.

Austria made probational remedies compulsory for offenders under 18 years of age. As a correctional device, Greece, Ireland, Israel, Italy, Switzerland, and the Netherlands have accepted probation.

In the field of correctional justice, Sweden is internationally reputed for its progressive penal policy. Only 20 percent of the total number of offenders are sent to prison. The remaining 80 percent are provided with probation, parole, halfway houses, work centers, etc.

The prison authority constantly reviews the cases of prisoners to see who conforms to the rules and regulations of prisons and responds positively. The prison authority does so because prisoners having good records will be transferred for non-institutional service. Volunteers of the ‘Commission of Trust’ have been enjoined to supervise the offenders under probation.

They get advice from probation officers. Treatment and supervisory services through probation in the non-institutional sector have been intensified by a number of initiatives at different times.

Japan has accommodated progressive ideas of penal policy into its criminal justice system. The Japanese Code of Criminal Procedure, 1922, gave discretionary power to the probation officers to suspend prosecution and execution of sentences.

Offenders of different ages, specifically juvenile delinquents, are subjected to probationary supervision.

In 1955, Japan introduced probationary supervision to those who are granted suspension of the execution of a sentence. Japan has developed a network of probation officers to look after the probationers.

Among the total number of probationers, 20 percent are allowed probation under supervision, while the remaining 80 percent are placed on probation without supervision.

Basic Elements and Objectives of Probation

V. V. Devasia and L. Devasia have identified four elements of probation:

  • a postponement of sentence;
  • a period of re-socialization for the criminal in the community;
  • the criminals’ observance of the conditions imposed by the court; and
  • the supervision of the criminal by the probation officer.

The general goals of probation are:

  • Protection of the community and enhancement of public safety through supervision of offenders and enforcement of the conditions of probation;
  • Provision of opportunities to offenders which can assist them in becoming and remaining law-abiding citizens; and
  • Provision of accurate and relevant information to the courts to improve the ability to arrive at rational sentencing decisions.

Penal Reform International has identified five basic objectives of probation:

  • To maintain supervision over convicted offenders;
  • To require offenders to abide by specified conditions that are focused on rehabilitation, treatment, and the prevention of any reoccurrences in criminal behavior;
  • To promote human dignity and encourage positive behavior of offenders;
  • To conserve government resources and reduce costs; and
  • To promote community involvement in dealing with crime and the rehabilitation of offenders.
  • Major Functions of the Probation Officer

The success of the probation system largely depends on the functions of the probation officer. If the probation officer disposes of his/her responsibilities properly, that can strongly assist in the rectification and rehabilitation of the probationer.

Investigation of the history of the probationer, pre-sentence report, surveillance, and supervision of the probation officer is very important, as the proper dispensation of all these responsibilities will result in the successful reintegration of the probationer into normal life.

Utility of Probation

Probation occupies a very important place in penal policy in any country. It is a correctional measure and a very strong instrument of reformative justice. Probation wants to reconcile the conflicting demands of treatment and punitive reactions to crime.

How a penal policy should be devised and what policies it should adopt to react to crime, that is a delicate question. The conditional suspension of sentence under probation has served both the purposes provided by deterrent and reformative theories.

Probation caters to necessary assistance and guidance to the probationer for proper rehabilitation in society. This reformative aspect of probation helps the probationer rectify him/herself.

The threat of being brought back and subjected to a suspended sentence works as sufficient deterrence, and the probationer keeps himself/herself away from criminality. Probation, therefore, serves the society in general and the probationer and his family in particular in several ways.

  1. First, probation tries to keep the probationer away from criminal activities. If the probationer is unconditionally set free without sufficient supervision, s/he may think that society has accepted his/her untoward activities and may continue committing delinquent acts. Effective supervision keeps a probationer leading a normal human life.
  2. Second, the fear of punishment in case of violation of the conditions of probation has a psychological effect on the offender. It deters him/her from the commission of criminal activity. Proper guidance and fear of punishment jointly motivate the probationer to become a law-abiding citizen of society.
  3. Third, probation saves the probationer from the mischief of incarceration. In this way, the probationer is prevented from getting mixed with notorious criminals and later on from developing a criminal career. Confining an offender within a jail stigmatizes the offender, which will obstruct his/her rehabilitation in society. Enlarging an offender on probation saves him/her from stigmatization and provides a path to come back to normal life.
  4. Fourth, probation enables the probationer to move freely in society. That helps the probationer get used to the law-abiding behavior of a normal citizen. Moreover, the probationer, if provided with a suitable job, will handle domestic responsibilities and provide financial support to his/her family.
  5. Fifth, the supervision of the probation officer and the fear of punishment in case of violation inculcate self-responsibility in the probationer. This sense of self-esteem will be a motivating force for the probationer in his later life.
  6. Sixth, probation saves public money by not sending the offender to jail on the one hand and makes the probationer committed to his family on the other.

Evaluation of the Probation System

Some argue that undue emphasis on probation may deepen social insecurity because of the increased rate of crime and their repetition. Against this backdrop, the probation system can hardly be appreciated as a part of a sound penal policy.

The critics of the probation system argue that probation gives more emphasis on the offender. The interests of the victim and the security of the community are not properly taken care of. This is, in their view, against the basic norms of justice.

Moreover, enlarging all young and first offenders on probation, irrespective of their antecedents, may lead to recidivism, as many of them may not respond favorably to the terms and conditions of probation.

The success of the probation system greatly depends on qualified and dedicated probation staff.

Professor Chute mentioned that the lack of properly qualified personnel, the lack of adequate supervision, and the excessive burden of casework are three major reasons why the probation system does not work efficiently.

When commenting on the probation system, Donald Taft said that the acid test of success or failure of probation is its effect on recidivism.

But this examination can never be exactly worked out as a number of factors influence the commission of crimes.

Moreover, the functioning of the probation system varies from time to time and from place to place. In spite of many limitations, there is an agreement that probation is one of the most prospective methods of protecting society from delinquents.

It has expanded the functioning of the criminal justice system beyond the traditional trial-sentence process. It has transcended the age-old crime punishment concept and enables people with advanced ideas to suit the progressive demands of correctional justice.

Probation, as one of the correctional treatment programs, tries to achieve its stated objectives. Though it does not always succeed, it endeavors to serve broader social needs. Some probationers fail because they repeat delinquent activity; some even become career criminals.

Nevertheless, the success rate of probation is very high. Probation becomes successful because most offenders placed on probation will not be professional criminals. When evaluating probation in the USA, Samuel Walker put the conditions in the following language:

Probation is the most common sentence given to convicted criminals. More than half of all convicted adult felons are placed on probation, and the rate is even higher for juveniles. Sentencing practices vary widely across the country.

Detroit sends only 38 percent of its adult felons to prison, while Indianapolis incarcerates 75 percent. Probation is even common in juvenile courts. As many as 80 to 90 percent of juveniles who receive a formal disposition are placed on probation.

When evaluating probation and parole in the USA, Sue Titus Reid depicted the following picture:

Probation and parole have been the most frequently used and probably the most controversial alternatives to prison… Historically, probation and parole have enjoyed extensive use in U.S. criminal justice systems. Since 1967, the percentage of offenders on probation has increased much faster than the percentage of incarcerated offenders.

The latest available data show that over 5 million adult Americans were under correctional custody or supervision, with almost 75 percent of them in community supervision. Of those, 2,962,000 were on probation and 690,000 on parole.

Those populations had tripled since 1980. The state and federal prison populations increased by almost 90,000, representing the largest one-year population increase ever recorded, to a total of 1,104,074 persons. An additional 483,717 adults were incarcerated in local jails.

A number of devices have been introduced to achieve the progressive goal of reformative justice. Probation, parole, and open-air camps are different methods to achieve the aims of correctional justice. The purpose of the probation system is to narrow the gap between the confined life of prisoners and the free life of society.

The institutional system of probation will work better if it can engage commoners in administering the probation successfully. The involvement of common people will break down the prejudices about probation in them.

At the same time, they will develop some sense of responsibility to assist the convicted persons to understand their mistake and come back to normal life. When taking decisions about what sort of treatment a convicted person requires, Swedish courts take assistance of the committees of laymen.

The joint effort of the court and lay citizens creates an environment conducive to the reformation of offenders. In the United States of America, many honorable citizens help and advise the inmates in the capacity of “Big Brother” or “Big sister.” Engagement of laymen and members of civil society has great utility in rehabilitating the probationers.