Probation in
criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
is a period of supervision over an
offender, ordered by the court often in lieu of incarceration.
In some jurisdictions, the term ''probation'' applies only to
community sentences (
alternatives to incarceration
Decarceration in the United States involves government policies and community campaigns aimed at reducing the number of people held in custody or custodial supervision. Decarceration, the opposite of incarceration, also entails reducing the rate ...
), such as
suspended sentence
A suspended sentence is a sentence on conviction for a criminal offence, the serving of which the court orders to be deferred in order to allow the defendant to perform a period of probation. If the defendant does not break the law during that ...
s. In others, probation also includes supervision of those conditionally released from prison on
parole
Parole (also known as provisional release or supervised release) is a form of early release of a prison inmate where the prisoner agrees to abide by certain behavioral conditions, including checking-in with their designated parole officers, or ...
.
An offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a
probation officer
A probation and parole officer is an official appointed or sworn to investigate, report on, and supervise the conduct of convicted offenders on probation or those released from incarceration to community supervision such as parole. Most probati ...
. During the period of probation, an offender faces the threat of being incarcerated if found breaking the rules set by the court or probation officer.
Offenders are ordinarily required to maintain law-abiding behavior, and may be ordered to refrain from possession of firearms, remain employed, participate in an educational program, abide a
curfew, live at a directed place, obey the orders of the probation officer, or not
leave the jurisdiction. The probationer might be ordered as well to refrain from contact with the victims (such as a former partner in a
domestic violence
Domestic violence (also known as domestic abuse or family violence) is violence or other abuse that occurs in a domestic setting, such as in a marriage or cohabitation. ''Domestic violence'' is often used as a synonym for ''intimate partner ...
case), with potential victims of similar crimes (such as minors, if the instant offense involves
child sexual abuse), or with known criminals, particularly co-defendants. Additionally, offenders can be subject to refrain from use or possession of alcohol and drugs and may be ordered to submit alcohol/drug tests or participate in alcohol/drug psychological treatment.
Offenders on probation might be fitted with an
electronic tag
Electronic tagging is a form of surveillance that uses an electronic device affixed to a person.
In some jurisdictions, an electronic tag fitted above the ankle is used for people as part of their bail or probation conditions. It is also used i ...
(or monitor), which signals their movement to officials. Some courts permit defendants of limited means to perform community service in order to pay off their probation fines.
History
The concept of probation, from the Latin, ''probatio,'' "testing", has historical roots in the practice of ''judicial'' ''reprieve''. In English common law, prior to the advent of democratic rule, the courts could temporarily suspend the execution of a sentence to allow a criminal defendant to appeal to the monarch for a
pardon
A pardon is a government decision to allow a person to be relieved of some or all of the legal consequences resulting from a criminal conviction. A pardon may be granted before or after conviction for the crime, depending on the laws of the ju ...
.
United States
Probation first developed in the United States when
John Augustus, a
Boston
Boston (), officially the City of Boston, is the state capital and most populous city of the Commonwealth of Massachusetts, as well as the cultural and financial center of the New England region of the United States. It is the 24th- mo ...
cobbler, 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 to help the man to appear rehabilitated by the time of sentencing.
Even earlier, the practice of suspending a sentence was used as early as 1830 in Boston, Massachusetts, and became widespread in U.S. courts, although there was no statutory provision for such a practice. At first, judges, most notably Peter Oxenbridge Thatcher of Boston, used "release on recognizance" or bail and simply refrained from taking any further action. In 1878, the mayor of Boston hired a former police officer, the ironically named "Captain Savage", to become what many recognize as the first official probation officer. By the mid-19th 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
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
, in ''Ex parte United States Petitioner Mandamus Judge Killets'' (also known as the Killets Case), held that Federal Judge Killets was without power to suspend a sentence indefinitely.
This decision led to the passing of the National Probation Act of 1925, thereby, allowing courts to suspend the imposition of incarceration and place an offender on probation.
developed the first statewide probation system in 1878, 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
Calvin Coolidge (born John Calvin Coolidge Jr.; ; July 4, 1872January 5, 1933) was the 30th president of the United States from 1923 to 1929. Born in Vermont, Coolidge was a History of the Republican Party (United States), Republican lawyer ...
, the U.S.
Federal Probation Service
The U.S. Probation and Pretrial Services System, also called the Office of Probation and Pretrial Services, part of the Administrative Office of the United States Courts, is the probation office of the federal judiciary of the United States. It s ...
was established. On the state level, pursuant to the Crime Control and Consent Act of 1936, a group of states entered into an agreement wherein they would supervise probationers and parolees who reside in each other's jurisdictions on each other's behalf. Known as the Interstate Compact For the Supervision of Parolees and Probationers, this agreement was originally signed by 25 states in 1937. By 1951, all the states in the United States of America had a working probation system and ratified the Interstate Compact Agreement. In 1959, the new states of
Alaska
Alaska ( ; russian: Аляска, Alyaska; ale, Alax̂sxax̂; ; ems, Alas'kaaq; Yup'ik: ''Alaskaq''; tli, Anáaski) is a state located in the Western United States on the northwest extremity of North America. A semi-exclave of the U.S., ...
and
Hawaii
Hawaii ( ; haw, Hawaii or ) is a state in the Western United States, located in the Pacific Ocean about from the U.S. mainland. It is the only U.S. state outside North America, the only state that is an archipelago, and the only stat ...
, the Commonwealth of
Puerto Rico
Puerto Rico (; abbreviated PR; tnq, Boriken, ''Borinquen''), officially the Commonwealth of Puerto Rico ( es, link=yes, Estado Libre Asociado de Puerto Rico, lit=Free Associated State of Puerto Rico), is a Caribbean island and Unincorporated ...
, and the territories of the
Virgin Islands
The Virgin Islands ( es, Islas Vírgenes) are an archipelago in the Caribbean Sea. They are geologically and biogeographically the easternmost part of the Greater Antilles, the northern islands belonging to the Puerto Rico Trench and St. Croix ...
,
Guam
Guam (; ch, Guåhan ) is an organized, unincorporated territory of the United States in the Micronesia subregion of the western Pacific Ocean. It is the westernmost point and territory of the United States (reckoned from the geographic cent ...
, and
American Samoa
American Samoa ( sm, Amerika Sāmoa, ; also ' or ') is an unincorporated territory of the United States located in the South Pacific Ocean, southeast of the island country of Samoa. Its location is centered on . It is east of the International ...
ratified the act as well.
Probation in Child Support in the United States
When child support nonpayment was criminalized in the early 20th century, probation was the primary punishment levied on nonsupporters.
Those in favor of criminalizing nonsupport wanted a penalty that "would maximize deterrence, preserve the family (at least in a financial sense), and lighten the burden on charities and the state to support women and children."
When New York authorized probation as a punishment in 1901, the New York City magistrates cited four benefits to probation as opposed to incarceration: "(1) 'Punishment without disgrace, and effective without producing embitterment, resentment or demoralization,' (2) judicial discretion to make the punishment fit the crime, (3) '
nishment that is borne solely by the guilty and displacing a system that frequently involved the innocent and helpless,' and (4) punishment attended by increased revenue to the City and by a saving in expense.'"
The existence of probation officers in child support cases made it so the state was involved in family life in previously unprecedented ways.
Probation officers would often attempt to reconcile separated couples, encourage husbands to drink less alcohol, and teach wives housekeeping skills.
Employing probation in nonsupport cases also led to more revenue captured by nonsupporting spouses.
The National Probation Association (NPA) was instrumental in the creation of designated
family courts
Family courts were originally created to be a Court of Equity convened to decide matters and make orders in relation to family law, including custody of children, and could disregard certain legal requirements as long as the petitioner/plaintiff ...
in the United States as well, which subsequently assumed jurisdiction of nonsupport cases.
Arming and increased authority
In the United States, most probation agencies have armed probation officers. In 39 states, territories and federal probation, such arming is either mandated or optional. Arming is allowed in an increasing number of jurisdictions.
Probation officers are commonly
peace officers who possess limited police powers and in some instances, are employed via the court system and take on a more
bureaucratic,
social worker
Social work is an academic discipline and practice-based profession concerned with meeting the basic needs of individuals, families, groups, communities, and society as a whole to enhance their individual and collective well-being. Social work ...
role.
Types
![Robert Patten Probation Detention Center](https://upload.wikimedia.org/wikipedia/commons/4/4b/Robert_Patten_Probation_Detention_Center.jpg)
Intensive
Home detention, GPS monitoring and computer management are highly intrusive forms of probation in which the offender is very closely monitored. It is common for violent criminals, higher-ranking
gang members, habitual offenders, and sex offenders to be supervised at this level. Some jurisdictions require offenders under such supervision to waive their constitutional rights under the
Fourth Amendment regarding search and seizure, and such probationers may be subject to unannounced home or workplace visits, surveillance, and the use of
electronic monitoring
Electronic tagging is a form of surveillance that uses an electronic device affixed to a person.
In some jurisdictions, an electronic tag fitted above the ankle is used for people as part of their bail or probation conditions. It is also used in ...
or satellite tracking. Under terms of this kind of probation, a client may not change their living address and must stay at the address that is known to probation.
GPS monitoring
The Global Positioning System (GPS), originally Navstar GPS, is a satellite-based radionavigation system owned by the United States government and operated by the United States Space Force. It is one of the global navigation satellite sys ...
and home detention are common in juvenile cases, even if the underlying delinquency is minor. Some types of supervision may entail installing some form of monitoring software or conducting computer searches to ascertain what an offender is doing online. Cybercrime specialist in corrections,
Art Bowker, noted “This is an area more and more community corrections officers are going to have to get up to speed on, learning how to enforce conditions that restrict and/or monitor cyber offenders' computer and internet use.” Bowker, also observed "The use of social media is taking off in the field of community corrections".
Standard
Offenders under standard supervision are generally required to report to an officer, most commonly between biweekly and quarterly, and are subject to any other conditions as may have been ordered, such as alcohol/drug treatment, community service, and so on.
Unsupervised
Some probation does not involve direct supervision by an officer or probation department. The probationer is expected to complete any conditions of the order with no involvement of a probation officer, and perhaps within a period shorter than that of the sentence itself. For example, given one year of unsupervised probation, a probationer might be required to have completed community service and paid court costs or fines within the first six months. For the remaining six months, the probationer may be required merely to refrain from unlawful behavior. Probationers are allowed to go to their workplaces, educational institutions, or places of worship. Such probationers may be asked to meet with an officer at the onset or near the end of the probationary period, or not at all. If terms are not completed, an officer may file a petition to revoke probation.
Informal
Informal probation may occur with
deferred adjudication, without the defendant's having been convicted of a criminal offense, or may occur following a guilty plea pending the completion of terms set forth in a plea agreement. As with other forms of probation, terms may include
drug test
A drug test is a technical analysis of a biological specimen, for example urine, hair, blood, breath, sweat, or oral fluid/saliva—to determine the presence or absence of specified parent drugs or their metabolites. Major applications of drug ...
ing or waiver of Fourth Amendment rights for the duration of the term of probation. At the end of the informal period, the case is typically dismissed. This is usually offered as part of a plea bargain or pre-trial diversion.
Shock
Some programs give a sentencing judge the power to reconsider an original jail sentence. The judge may recall the inmate from jail and put him or her on probation within the community instead. The courts have a theory that a short term in jail may “shock” a criminal into changing their behavior. Shock probation can be used only between a specific period of 30–120 days after the original sentence, and is not available in all states.
Grant
Community corrections officials are key personnel in helping decide whether a criminal is granted probation. They determine whether the offender is a serious risk to public and recommend to the court what action to take. Correction officials first go through an investigation process during the pretrial period. They assess the offender's background and history to determine whether he or she can be released safely back into the community. The officers then write a report on the offender. The courts use the report to determine whether the offender shall be put on probation instead of going to jail. After the offender is found guilty, the probation officer puts together a pre-sentence investigation report (PSI). Courts base their sentencing on it. Finally, courts make their decisions as to whether to
imprison the convict or to assign him or her probation. If a court decides to grant a person probation, they must then determine how to impose the sentence based on the seriousness of the crime,
recidivism
Recidivism (; from ''recidive'' and ''ism'', from Latin ''recidīvus'' "recurring", from ''re-'' "back" and ''cadō'' "I fall") is the act of a person repeating an undesirable behavior after they have experienced negative consequences of th ...
, the circumstances of the convict, and the recommendations from the corrections officials.
Violation
A probation officer may imprison a probationer and petition the court to find that the probationer committed a violation of probation. The court will request that the defendant appear at a
show cause hearing at which the prosecutor must demonstrate by a preponderance of the evidence that the defendant committed a probation violation.
If the defendant pleads guilty to a probation violation, or is found guilty of a probation violation after the hearing, the officer or prosecutor may request that additional conditions of probation be imposed, that the duration be extended, or that a period of incarceration be ordered, possibly followed by a return to probation.
No law specifies when probation violation proceedings must be commenced, although probation violation proceedings are nearly certain to occur following the defendant's conviction of a subsequent offense or failure to report to the probation officer as ordered.
If a violation is found, the severity of the penalties may depend upon the facts of the original offense, the facts of the violation, and the probationer's criminal history. For example, if an offender is on probation for a gang-related offense, subsequent "association with known criminals" may be viewed as a more serious violation than if the person were on probation for driving a car with a suspended license; the reverse may be true if the initial offense were for
driving under the influence
Driving under the influence (DUI)—also called driving while impaired, impaired driving, driving while intoxicated (DWI), drunk driving, operating while intoxicated (OWI), operating under the influence (OUI), operating vehicle under the infl ...
. Similarly, penalties for violation may be greater if a subsequent offense is of greater severity (such as a
felony
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...
, following a
misdemeanor
A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than adm ...
), or if the original offense and subsequent offense are of the same type (such as a
battery
Battery most often refers to:
* Electric battery, a device that provides electrical power
* Battery (crime), a crime involving unlawful physical contact
Battery may also refer to:
Energy source
*Automotive battery, a device to provide power t ...
following an
assault
An assault is the act of committing physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in crim ...
, or
retail theft
Shoplifting is the theft of goods from an open retail establishment, typically by concealing a store item on one's person, in pockets, under clothes or in a bag, and leaving the store without paying. With clothing, shoplifters may put on items ...
following retail theft).
Revocation
When a probation violation is extremely severe, or after multiple lesser violations, a probation revocation hearing could be scheduled. A judge at the hearing will consider reports from the probation officer, and if probation is revoked, the probationer will often be incarcerated in jail or prison. However, the term of incarceration might be reduced from the original potential sentence for the alleged crime(s). It is possible that an innocent defendant would choose to accept a
deferred sentence rather than incur the risk of going to trial. In such a case, a probation revocation can result in conviction of the original criminal charges and a permanent record of conviction.
See also
*
Lifetime probation
*
Parole
Parole (also known as provisional release or supervised release) is a form of early release of a prison inmate where the prisoner agrees to abide by certain behavioral conditions, including checking-in with their designated parole officers, or ...
*
Private probation
* ''
Probation Journal
The ''Probation Journal: The Journal of Community and Criminal Justice'' is a peer-reviewed academic journal covering criminal justice and probation
Probation in criminal law is a period of supervision over an offender, ordered by the court of ...
''
*
Rehabilitation policy
*
Suspended sentence
A suspended sentence is a sentence on conviction for a criminal offence, the serving of which the court orders to be deferred in order to allow the defendant to perform a period of probation. If the defendant does not break the law during that ...
References
External links
Probation – what it is (Directgov, England and Wales)Video clip about Desistance and Probation Practice Researchby th
Scottish Centre for Crime and Justice ResearchCommunity Corrections (Probation and Parole)Bureau of Justice Statistics
The Bureau of Justice Statistics (BJS) of the U.S. Department of Justice is the principal federal agency responsible for measuring crime, criminal victimization, criminal offenders, victims of crime, correlates of crime, and the operation of crim ...
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