The
Aspects of Probation and its Relevance to Criminal Sentencing in the United
States
Leslie
K. Penny
Final
Project
Chancellor
University
Abstract
The following essay gives a brief
overview of probation and parole to include: the definition of both probation
and parole, the extent of both, federal probation and federal parole, the two
types of patrol, the conditions of both, of advantages and disadvantages of
both, probation and parole in the legal environment, probation and parole as a
career (responsibilities, challenges, education and ethics), alternative
sentencing options and what the future holds for probation and parole.
The
Aspects of Probation and its Relevance to Criminal Sentencing in the United
States
Probation. One
can't say that word without those in
listening distance popping images up in their heads, thoughts, and opinions
. Many know instantly what probation is
but most can only give a short definition when, in fact, it's a much broader
topic covering those of all ages and all crimes that plays an integral part of
our criminal justice system. The
following essay will provide an in depth look at all aspects of probation and
parole incorporating concepts from the inception of probation to what is in store for probation
in years to come.
To begin with, a convicted offender is put on parole when
they are "conditionally released from prison by a paroling authority before
the expiration of his or her sentence" where they are placed with a
probation officer and must follow the conditions of their parole (Schmalleger, 2011). Probation for adults is when a sentence of
incarceration has been suspended or added onto a period of incarceration, where
the released offender must meet certain conditions of behavior that a judicial
officer has bestowed upon him or her for a given amount of time (Schmalleger, 2011). One would think the two are similar but they
are not. To be specific, probation is ordered by a judge; parole is granted by a
parole board. Probation is an alternative to prison; parole is the
early release from prison. Probation is
reserved for persons convicted of
less serious offenses; parole is given to persons convicted of serious offenses (Probation, 2012).
Parole is designated
into two major models, a parole board that "grant parole based on their
judgment and analysis" in which
their "decisions are termed discretionary parole" while
"statutory decrees produce mandatory parole, with release dates usually
set near the completion of the inmate's prison sentence, minus time off for
good behavior and other special considerations" (Schmalleger, 2011). Probation for juveniles is for individuals who
are under the age of 18 that have been tried as juveniles. This type of probation helps juvenile
offenders rise above the circumstances that put them in the situation they
found themselves in as well as to teach juveniles more effective ways to become
productive members of their community with the use of correctional counseling
and behavioral skills counseling as well as taking them out of abusive
situations (Juvenile Probation vs. Adult Probation, 2012).
Now that probation and parole has been identified as two
separate entities, one can better understand their origins and their
extent. Probation can be traced back to
English criminal law during the 14th century (Schmalleger, 2011) where English society wanted a more
humane form of punishment over sentences that consisted of branding, flogging,
mutilation , and execution, therefore, the courts began using the practice of
"binding over for good behavior" where the offender was given "a
form of temporary release during which offenders could take measures to secure
pardons or lesser sentences" (History of Probation, 2012). Parole originated five centuries after
probation in 1876, in New York's Elmira Reformatory, where it was a successful,
and still is, tool used to give youthful offenders the behavioral incentive
needed to motivate them to reform (Schmalleger, 2011).
The extent of probation has made it the "most common
form of criminal sentencing in the United States" where "between 20%
and 60% of those found guilty of crimes are sentenced to some form of
probation" (Schmalleger, 2011).
Schmalleger goes on to state that probation has increased 300% since
1982 where violent offenders have about
a 1 in 5 chance of getting a probationary term. Parole doesn't quite reach near the extent of
probation, however, 25% of freed inmates from prison are still paroled by a
parole board (Schmalleger, 2011).
The basis for this decline is from determinate sentencing schemes, where
inmates only have to serve a short time period, also known as mandatory
release, which has caused a striking "reduction in the average time spent
under post-prison supervision" (Schmalleger, 2011), that of which has
had minimal, if at all, impact on the amount of offenders that have been
released from prison.
Probation and parole conditions have their differences
but in both an offender is being supervised and is expected to follow certain
rules and guidelines. Conditions of
probation consist of the offender being subjected "to many of the same
conditions of serving time in jail including curfew rules, requirements to
participate in rehab programs, and monthly or more frequent drug testing by
urinalysis" (What is the difference between probation and parole?, 2012). Schmalleger points out that probation
conditions can be broken down into two types, general and specific. General conditions relate to all probationers
in a specified jurisdiction which generally requires that the offender
"obey all laws, maintain employment, remain within the jurisdiction of the
court, possess no firearms, allow the probation officer to visit at home or at
work, and to pay a fine to the court (Schmalleger, 2011).
Special conditions of probation consist of requirements
mandated by a judge for probationers who need a particular type of guidance or
control such as "surrendering his or her driver's license; submit at
reasonable times to warrantless and unannounced searches by a probation
officer; supply breath, urine, or blood samples as needed for drug or alcohol
testing; complete a specified number of hours of community service; or pass the
GED test within a specified time" and the judge could also dictate special
conditions specifically for a probationers situation such as prohibiting
"the offender from associating with named others (a codefendant, for
example), they may require that the probationer be at home after dark, or they
may demand that the offender complete a particular treatment program within a
set time" (Schmalleger, 2011).
Conditions of parole incorporate very similar guidelines
as probation except parole has the added task of trying to reintegrate an
offender back into society (What is the difference between probation and parole?, 2012). According to Schmalleger, "general
conditions of parole usually include agreement not to leave the state as well
as to obey extradition requests from other jurisdictions, periodically report
to parole officers, and parole officers may visit parolees at their homes and
places of business, often arriving unannounced" (pg. 426). Continued employment is a major factor
stressed upon parolees who must find employment within 30 days or they could
potentially face parole revocations and fines can also be ordered just as with
probation, and just like probation, "special parole conditions may be
added by the judge and might require the parolee to pay a 'parolee supervisory
fee' (often around $15 to $20 per month)" (Schmalleger, 2011).
Now that the conditions for each probation and parole have been thoroughly explained, one must be
aware of the differences on the federal level.
Federal probation came around in 1925 via the National Probation Act
which "gave the courts the power to suspend the imposition or execution of
sentence and place defendants on probation for such period on such terms and
conditions as they deemed best" and it also "authorized courts to
appoint one or more persons to serve as probation officers without compensation
and one salaried probation officer" (Beginnings of Probation and Pretrial Services ). One can imagine the problems that came about
hiring a very limited amount of parole officers. As a matter of fact, Schmalleger points out
that at the time the act was put into place not enough money was allocated for
officer salaries which meant that instead of one officer per federal judge,
there were only 8 that served 132 judges (pg. 422). This led to the use of many voluntary
probation officers. Eventually congress
got it together and provided the funding needed to hire more probation officers.
It's important to point out that federal probation
officers are, in fact, federal law enforcement officers who have
"statutory authority to arrest or detain individuals suspected or
convicted of federal offenses, as well as the authority to arrest probationers
for a violation of the conditions of probation" (Schmalleger, 2011).
Schmalleger explains that probation officers should obtain an arrest
warrant from a court where it will be executed by the U.S. Marshals
Service.
Unlike federal probation, federal parole decisions are
made by the U.S. Parole Commission which is comprised of hearing examiners that visit federal prisons where they ask
inmates to explain why they should be paroled (Schmalleger, 2011).
The examiners also evaluate in a report the "inmate's job
readiness, home plans, past record, accomplishments while in prison, good
behavior and previous experiences on probation or parole" (Schmalleger, 2011). By 1984 Congress had eliminated parole for
offenses that happened after November 1, 1987 with the 1984 Comprehensive Crime
Control Act, however, the U.S. Parole Commission continues to operate in
regards to "federal offenders that are eligible for parole for offenses
that occurred before 1987, certain other offenses, military offenders, and
offenders who are in the federal witness protection program" (Guthrie, 2010). Under the act cited above, the U.S. Parole
Commission was supposed to be abolished by 1992 but a range of legislation has
kept the commission up and running (Schmalleger, 2011).
With probation and parole comes the advantages and
disadvantage of each which so happens to be in the same category. Advantages of probation and parole include:
"low cost, increased employment, restitution, community support, reduced
risk of criminal sanctions, increased use of community services and better
rehabilitation" (Advantages and Disadvantages of Probation and Parole, 2012). The disadvantages of both include:
"relative lack of punishment, increased risk to community, higher social
cost, and discriminatory and unequal effects" (Advantages and Disadvantages of Probation and Parole, 2012).
When it comes to the legal environment of this subject
there are eleven particularly important U.S. Supreme court decisions that give
the legal structure for probation and parole the supervision that is necessary (Schmalleger, 2011). The first to discuss is Griffin v. Wisconsin
(1987) where the supreme court ruled that probation officers can conduct
searches of the homes or residence of an offender who is on probation without a
search warrant or having probable cause (Advantages and Disadvantages of Probation and Parole, 2012). Other important court decisions include:
Pennsylvania Board of Probation and Parole v. Scott (1998), U.S. v. Knights
(2001), Sampson V. California (2006), (Escoe v. Zerbst), Mempa v. Rhay (1967),
Morrissey v. Brewer (1972), Gagnon v. Scarpelli (1973), Greenholtz v. Nebraska
Penal Inmates (1979), Bearden v. Georgia (1983), and Minnesota v. Murphy (1984)
(Schmalleger, 2011).
One last thing to touch on under this subject are revocation hearings
and conditional release which were very important in a handful of the U.S.
Supreme court decisions listed above. A
revocation hearing is "a hearing used to determine whether a parole or
probationer has violated the conditions and requirements of his or her parole
or probation" while conditional release " is when a prisoner is
released from prison in order to perform particular conditions while under
community supervision for the remainder of their parole (Schmalleger, 2011).
One important thing that hasn't been discussed thus far
is the probation and parole officer themselves.
With the job of probation comes responsibilities and challenges but
before one can even get there, they must have the education level required as
well as experience and they must also have ethics and behave in a professional
manner. Education requirements consist
of a bachelor's degree from an accredited college or university, and in some
cases, at least 24 semester hours in any mixture of psychology, sociology,
social work, criminology, education, criminal justice administration, penology
or police science (Probation and Parole Officer). The knowledge, skills and abilities are not
level specific in the probation and parole officer job family. Job responsibilities include but are not
limited to: "presentence investigations, intake procedures, needs
assessment or diagnosis, and supervision of clients" and the job challenges
include: "balancing conflicting roles, large caseloads, frequent lack of
opportunities for upward mobility, stress" (Schmalleger, 2011).
Another topic that will be touched on briefly are
alternative sentencing options called intermediate sanctions which is "the
use of non-traditional sentences in lieu of imprisonment and fines" that
"offer alternatives that fall somewhere between simple probation and
outright incarceration" (Schmalleger, 2011).
Types of intermediate sanctions include: "split sentences, shock
probation/parole, shock incarceration, mixed sentences and community service,
intensive supervision and home confinement and electronic monitoring" (Schmalleger, 2011).
Split sentencing is basically when an offender serves up
to half of the term of imprisonment in jail and the other half on probation (Split Sentence Law & Legal Definition, 2012). Shock probation consist of sending an offender
to prison but then, shockingly, allowing them probationary release after
applying for it (Schmalleger, 2011).
Shock incarceration is a boot-camp style prison used to make an impact
on offenders of what real prison is actually like (Schmalleger, 2011).
Mixed sentences call for offenders to serve their weekends or a
particular specified period in confinement while still undergoing community
probation supervision (Schmalleger, 2011).
Community service is one that many are familiar with where offenders are
designated a certain amount of time working for community agencies for no pay
as their punishment. There is intensive
probation supervision which so happens to be the strictest form of probation
using frequent face-to-face contact with their probation officer as well having
a mandatory curfew, employment is required, the offenders arrest record is
check frequently and the offender must abide to unannounced drug testing (Schmalleger, 2011). Lastly, offenders can be given the
opportunity to be put on house arrest where people generally wear an electronic
monitoring device. This type of sanction
is frequently used for pregnant women, geriatric offenders and the terminally
ill (Schmalleger, 2011).
Many points have been discussed thus far including the
origin of probation and parole and what's led up to today. But what of the future? It seems advocates for parole will continue
to struggle with those that don't think probation and parole's benefits
outweigh the negatives but they do warn that doing away with parole can be a
detriment to public safety as well as wasting tax payers hard earned dollars (Schmalleger, 2011). Others are coming up with solutions that
might deter the termination of parole by using beneficial concepts of reentry
that could possibly be a successful tool to help released inmates be successful
in their community using institutional and community programs, among others (Schmalleger, 2011). The future outlook for probation consists of
regaining public trust and reinvestment for those that favor just deserts over
probation (Schmalleger, 2011).
Time will tell when it comes to parole but this writer believes
probation has a long life ahead of itself.
To conclude, as anyone can see, probation and parole
covers a vast array of topics, including an impressive history, influential
U.S. Supreme court decisions and has reign over many offenders. This topic will continue to be an important
one, especially for criminal justice majors, because most individuals in that
field will always have something to do with probation or parole at one time or
another. As with anything one has
interest in, learning as much as possible is key to being not only a probation
officer or on a parole board, but also part of the criminal justice community
in general.
Works Cited
Advantages and Disadvantages of Probation and Parole. (2012). Retrieved October 20, 2012, from
Slideshare: http://www.slideshare.net/warren142/chapter12-2834024
Beginnings of Probation and Pretrial Services . (n.d.). Retrieved October 19, 2012, from United States
Courts:
http://www.uscourts.gov/FederalCourts/ProbationPretrialServices/History.aspx
Guthrie,
C. T. (2010, August 17). Parole in the Federal Court System. Retrieved
October 20, 2012, from Mississippi Criminal Defense blog: http://mississippicriminaldefenseblog.com/2010/08/17/parole-in-the-federal-court-system/
History of Probation. (2012).
Retrieved October 19, 2012, from NYC Department of Probation:
http://www.nyc.gov/html/prob/html/about/history.shtml
Juvenile Probation vs. Adult Probation. (2012). Retrieved October 21, 2012, from Laws; prison:
http://prison.laws.com/probation/juvenile-probation-vs-adult-probation
Probation. (2012). Retrieved 10
18, 2012, from The Free Dictionary:
http://legal-dictionary.thefreedictionary.com/probation
Probation and Parole Officer.
(n.d.). Retrieved October 21, 2012, from ok.gov:
http://www.ok.gov/opm/jfd/i-specs/i40.htm
Schmalleger,
F. (2011). Criminal Justice Today: An Introductory Text for the 21st
Century. New Jersey : Prentice Hall.
Split Sentence Law & Legal Definition. (2012). Retrieved October 21, 2012, from USLegal:
http://definitions.uslegal.com/s/split-sentence%20/
What is the difference between probation and parole? (2012). Retrieved October 19, 2012, from Free Advice :
http://criminal-law.freeadvice.com/criminal-law/parole_probation/probation_parole_pardon.htm
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