Chapter 12-2 Probation: Doing Time in the Community
12-2 Probation: Doing Time in the Community
Probation stands as the most prevalent form of punishment in the United States. Although its administration varies across jurisdictions, probation is generally defined as the legal status of an offender who, after a crime conviction, is directed by the sentencing court to remain in the community. This is done under the supervision of a probation service for a specific period, subject to conditions imposed by the court or by law.
As depicted in Figure 12.1, the majority of convicts under the control of the American corrections system are on probation.
The rationale behind probation is that the legal system can treat certain offenders more economically and humanely by placing them under controls while allowing them to live in the community. A key advantage of probation is that it facilitates the rehabilitation of offenders while reducing the financial burden of incarceration on society. However, the effectiveness of probation in achieving its rehabilitative goals is questioned by some in the criminal justice system. Critics argue that the large number of probationers, including violent felons, indicates that the system's idealistic principles have been compromised.
12-2a Sentencing and Probation
Probation Overview:
Probation is an agreement between the sentencing authorities and the offender.
The offender complies with specific terms for a set time.
In return, the offender serves their sentence in the community.
A major benefit is that probation is shorter than prison.
Figure 12.2 Average Length of Sentence: Prison Versus Probation
The average probation sentence is shorter than the average prison sentence for most crimes.
Alternative Sentencing Arrangements
Judges can combine probation with incarceration through:
Split sentences (Shock probation):
Offender serves time in prison/jail, followed by probation.
Shock incarceration:
Brief prison/jail time, then probation (discussed later).
Intermittent incarceration:
Offender spends time in jail/workhouse weekly (e.g., weekends).
Split sentences combine treatment and punishment.
About 3% of federal sentences are split sentences (United States Sentencing Commission).
Learning Objective 2: Conditions for Probation Denial
Offenders are likely to be denied probation if they:
Are convicted on multiple charges.
Were on probation/parole at the time of arrest.
Have two+ prior convictions.
Are addicted to narcotics.
Seriously injured the victim.
Used a weapon during the crime.
The chance of probation depends on the crime's seriousness.
Only 22% of probationers committed violent crimes (including domestic violence and sex offenses).
Most probationers committed property, drug, or public order crimes (e.g., drunk driving).
Probation recognizes that some offenders are less blameworthy.
Example: Catessa Barnum case
Barnum got probation for manslaughter (accidental killing).
No prior record, homicide was accidental.
Judge James Gleason sentenced her to probation because there was no previous record and the homicide was clearly accidental.
Suspended Sentences
Inappropriate probation supervision cases:
Judge can give a suspended sentence (conditional discharge).
Defendant is convicted and sentenced to jail.
Sentence is served in the community.
Reoffending results in immediate incarceration.
Example: Juan Rodriguez case
Conditional discharge for reckless endangerment after infant twins died in an overheated car.
The prosecutor acknowledged that there was no reason to place Rodriguez under the supervision of a probation officer, much less put him behind bars.
Called the incident a tragic, unfortunate accident.”
12-2b Conditions of Probation
Probation conditions serve as a "contract" between the judge and the offender. If these conditions are violated, probation can be revoked, leading to imprisonment.
Revocation:
The formal process of ending probation due to the probationer's failure to comply with the set conditions.
Often results in the probationer serving the original jail or prison term.
Figure 12.3: Conditions of Probation
Judges have considerable discretion in setting probation terms, which may include:
Prohibitions (e.g., no animals for animal cruelty convicts).
Mandatory actions (e.g., mental health treatment, job applications).
Example: Oscar Thompson case
Convicted of animal cruelty in Florida.
Ordered not to live with or possess any animals.
Required to undergo mental health treatment and anger management counseling.
Had to graduate from high school and apply for at least three jobs a week until hired.
Principles of Probation
Judges must adhere to general principles when setting probation conditions:
Rehabilitation of the Probationer:
Conditions should aim to help the offender reintegrate into society.
Protection of the Community:
Conditions should ensure public safety.
Constitutional Rights:
Probation conditions must not violate the U.S. Constitution.
Probationers generally retain the same constitutional rights as other prisoners.
However, probationers give up some rights by consenting to probation terms, resulting in a diminished expectation of privacy.
Home Visits:
Probation officers can conduct spot checks of residences to check for prohibited items or associations.
United States v. Knights (2001):
The Supreme Court upheld warrantless searches of a probationer’s home based on the likelihood of re-offense.
Law enforcement can focus on probationers more than ordinary citizens due to this higher risk.
Learning Objective 3: Categories of Probation Conditions
Probation conditions fall into three general categories:
Standard Conditions:
Imposed on all probationers.
Include regular reporting to the probation officer, notifying the agency of address changes, not leaving the jurisdiction without permission, and remaining employed.
Punitive Conditions:
Reflect the seriousness of the offense and increase punishment.
Include fines, community service, restitution, drug testing, and home confinement.
Treatment Conditions:
Aim to reverse self-destructive behaviors.
Include counseling for drug and alcohol abuse, anger management, and therapy for mental health issues.
Comprise approximately 27% of probation sentences.
Concerns About Overly Restrictive Conditions
Some observers, like the late Professor Carl B. Klockars, argue that judges sometimes impose overly restrictive conditions.
Klockars claimed that very few probationers could complete their terms without violation if probation rules were strictly enforced.
The fact that most probationers do complete their terms suggests either:
Probation officers are unaware of minor violations.
They exercise discretion in reporting these violations.
Coronavirus Outbreak (Early 2020s):
Probation officers were more likely to overlook minor violations to reduce jail
12-2c The Supervisory Role of the Probation Officer
Two Basic Roles of a Probation Officer:
Investigative: Conducting the presentence investigation (PSI). This involves gathering information about the offender's background, circumstances, and the nature of the offense to assist the court in making an informed sentencing decision. (Reference Chapter 11)
Supervisory: Begins after the offender is sentenced to probation. The officer monitors the probationer's compliance with the terms and conditions of their probation, provides support and guidance, and ensures community safety.
In smaller agencies, the same officer may handle both roles.
Larger jurisdictions often separate these responsibilities for efficiency.
Peggy McCarthy: Lead Probation Officer
Versatility of the Job:
Daily tasks vary widely, including court appearances, meetings with defendants, case plan development, jail visits for statements, field visits, surveillance, and administrative duties.
Requires adaptability and readiness to respond to various situations.
Rewards of the Job:
Assisting defendants in making positive changes.
Examples: Overcoming substance abuse, securing employment, obtaining a GED or diploma.
Social Media Tip:
Maintain separate personal and career-oriented social media accounts.
Be aware that even personal content can be seen by professional contacts.
Fast Facts: Lead Probation Officer
Job Description:
Working with offenders sentenced to probation.
Interacting with the courts.
Investigating backgrounds, writing presentence reports, and recommending sentences.
Required Training:
Bachelor’s degree in criminal justice, social work/psychology, or a related field.
Minimum age of 21; no felony convictions.
Strong writing and interview skills.
Multicultural outreach experience is a plus.
Annual Salary Range:
$$40,000–$90,000
Role Conflict
Probation officers face a conflict between:
Guiding probationers to successfully complete their terms.
Protecting the community from further criminal activity.
This conflict requires officers to use their discretion within sometimes vague guidelines.
The Use of Authority
An ideal officer-offender relationship is based on mutual respect, honesty, and trust. However, this is often difficult to achieve.
Self-reporting of wrongdoing can lead to probation revocation, making offenders hesitant to be truthful.
Officers may feel pressure to punish clients for violations.
Many officers balance helping their clients with the need to maintain their own job security.
Authority is a key tool for guiding offenders, based on:
The power to revoke probation.
The ability to impose lesser sanctions (e.g., overnight lockup for failing to attend treatment programs).
Establishing authority early is crucial for influencing behavior.
Getting LinkedIn
Juvenile probation offers specialized career opportunities.
Search “juvenile probation” on LinkedIn for more information and networking.
The Caseload Dilemma
A caseload is the number of clients a probation officer is responsible for at one time.
Heavy caseloads are common due to the ability to add “just one more” client.
Determining the ideal caseload size is difficult due to varying supervision needs.
Consequences of excessive caseloads:
Difficulty enforcing conditions.
Lack of surveillance and control.
Undermining the probation system.
Some jurisdictions use private probation services to alleviate pressure.
Myth vs. Reality: Modern-Day Debtor’s Prisons?
The Myth: Debtor’s prisons no longer exist in the United States due to federal and state bans.
The Reality:
Individuals can be jailed for failure to pay fines and fees, particularly when private probation services (PPS) are involved.
Unpaid fees can lead to a cycle of debt and incarceration, especially for poorer defendants.
Some cities and states defray incarceration costs by imposing fees and surcharges, leading to jail time for non-payment.
Example: Jennings, Missouri, settled a lawsuit for $4.7 million, compensating people jailed for not paying fines and fees.
Public defenders argue that modern practices effectively create debtor’s prisons.
For Critical Analysis
Distinguishing Between “Unable” and “Unwilling” Defendants:
Courts must differentiate between defendants who are genuinely unable to pay fines and those who willfully refuse to pay. This can be challenging, but courts may consider:
Employment status and income:
Verifying current employment and sources of income.
Assessing whether the defendant's income is sufficient to cover basic living expenses and fines.
Assets and debts:
Evaluating assets (e.g., property, vehicles, savings) and outstanding debts to determine financial capacity.
Efforts to pay:
Examining if the defendant has made any effort to pay the fines, even in small increments.
Documenting attempts to seek financial assistance or alternative payment arrangements.
Financial affidavits:
Requiring defendants to submit detailed financial affidavits under oath.
Verifying the information through independent sources, such as bank statements and tax returns.
Alternatives to jail for poor defendants who are unable to pay their fines:
Community service:
Allowing defendants to work off their fines through community service hours.
Ensuring the type of work is meaningful and contributes to the community.
Payment plans:
Establishing affordable, long-term payment plans tailored to the defendant’s financial situation.
Avoiding excessively high monthly payments that may lead to default.
Fine reduction or waiver:
Reducing the fine amount based on the defendant’s inability to pay.
Waiving fines entirely for defendants with extremely limited financial resources.
Alternative sanctions:
Implementing alternative sanctions such as attendance at financial literacy programs or job training.
Focusing on rehabilitation and addressing underlying issues contributing to financial instability.
Day reporting centers:
Requiring defendants to report to a day reporting center where they can access services such as job search assistance, counseling, and educational programs, rather than being incarcerated.
12-2d Revocation of Probation
Probation Period Outcomes:
Successful fulfillment of conditions.
Revocation due to misbehavior, leading to jail or prison term.
Discretion in Revocation:
Revocation after a technical violation is at the discretion of the probation officer.
Technical violations include failing to report a change of address or testing positive for drug use.
Learning Objective 4: Causes and Consequences of Probation Revocation
Most Common Causes:
Breaking the law.
failing to report a change of address
Testing positive for drug use
Consequences of Revocation:
jail or prison term
Probation and the Constitution
Constitutional Rights:
Probationers do not always enjoy the same protections under the U.S. Constitution as other members of society.
The Supreme Court has not stripped these offenders of all rights.
Mempa v. Rhay (1967):
Probationers were entitled to an attorney during the revocation process.
Morrissey v. Brewer (1972) and Gagnon v. Scarpelli (1973):
Established a three-stage procedure to protect the due process rights of probationers in potential revocation situations:
Preliminary hearing:
Facts of the violation or arrest are presented before a “disinterested person.”
Determination of whether probable cause for revoking probation exists.
This hearing can be waived by the probationer.
Revocation hearing:
Probation agency presents evidence to support its claim of violation.
Probationer can attempt to refute this evidence.
Probationers have the right to know the charges being brought against them.
Probationers can testify on their own behalf and present witnesses in their favor, as well as confront and cross-examine adverse witnesses.
A “neutral and detached” body must hear the evidence and rule on the validity of the proposed revocation.
Revocation sentencing:
If the presiding body rules against the probationer, then the judge must decide whether to impose incarceration and for what length of time.
In a revocation hearing dealing with technical violations, the judge will often reimpose probation with stricter terms or intermediate sanctions.
“Bare-Bones” Approach to Due Process:
Most of the rules of evidence that govern regular trials do not apply to revocation hearings.
Probation officers are not, for example, required to read offenders their Miranda rights before questioning them about crimes they may have committed during probation.
Minnesota v. Murphy (1984):
The Supreme Court ruled that a meeting between a probation officer and client does not equal custody.
Therefore, the Fifth Amendment protection against self-incrimination does not apply, either.
Limiting Revocation
Impact of Revocation:
Probation (and parole) revocation accounts for a significant portion of prison admissions in many states.
Research shows that revoking probation for technical violations does not increase community safety.
Low-level offenders sent to prison for technical violations are more likely to reoffend than if they are able to avoid incarceration.
Graduated Sanctions:
Policy makers recently have been focusing on graduated sanctions to keep those who violate the terms of their probation out of jail or prison.
These sanctions move upward on a scale of severity, punishing offenders more harshly with each misstep.
Kansas Example:
First technical violation = a modification of the terms of probation.
Second technical violation = a short stint in jail, not more than six days per month for three consecutive months.
Third technical violation = imprisonment for three months.
Fourth technical violation = imprisonment for four months.
Fifth technical violation = parole revocation and restoration of original sentence.
Incentives for Good Behavior:
Kansas offers certain low-level offenders the chance to end their probationary term after one year, regardless of the length of the sentence
12-2e Does Probation Work?
Introduction:
Ryan Walker case: Violated probation conditions, then charged with murder.
Data: 11% of suspects arrested for violent crimes (13% for murder) were on probation.
Question: Is probation worthwhile?
To evaluate probation effectiveness, look at its purpose: reintegrate and divert offenders while protecting the public by preventing recidivism.
Risk Factors for Recidivism:
About 15% of probationers exit probation by being sent to prison or jail.
Risk factors:
Antisocial personality patterns (impulsive, pleasure-seeking, aggressive).
Procriminal attitudes (negative views of authority, rationalizing crime).
Social supports for crime (offender friends, negative environment).
Substance abuse.
Unemployment.
Study: Officers spend equal time with all probationers regardless of risk level.
Recommendation: High-risk probationers should receive more supervision.
Crime-Prediction Software:
Jurisdictions use software to determine recidivism risk and supervision levels.
Philadelphia's APPD: Uses "random forest modeling" based on criminal history, time since last offense, and ZIP code to put offenders into 3 risk categories.
APPD High-risk probationers are 13x more likely to recidivate than low-risk probationers and are supervised accordingly.
“Swift and Certain” Sanctions:
Traditional sanctions can take months to be enforced, weakening the connection between the crime and the punishment.
James Wilson: The parent-child discipline analogy.
Implemented via strategies that operate on the principle of providing “swift and certain” sanctions for probation violations.
Hawaii’s Opportunity Probation with Enforcement (HOPE) program:
Rules: Substance abuse probationers call daily to check for random drug tests.
Positive test: Automatic short jail term (1-2 weeks).
Results: Reduced positive drug tests, less rearrest.
Effectiveness: Some studies question reduced recidivism and cost savings, most effective with low-risk probationers.
Ethics Challenge:
Philadelphia uses ZIP codes to determine a probationer’s risk category.
Observers criticize it as potential racial and ethnic discrimination.
Question: Should using ZIP codes be prohibited in offender risk assessment?