Probation

PROBATION

A sentence whereby a convict is released from confinement but is still under court supervision; a testing or a trial period. Probation can be given in lieu of a prison term or can suspend a prison sentence if the convict has consistently demonstrated good behavior.

The status of a convicted person who is given some freedom on the condition that for a specified period he or she act in a manner approved by a special officer to whom the person must report.

An initial period of employment during which a new, transferred, or promoted employee must show the ability to perform the required duties.

Probation is the period during which a person, "the probationer," is subject to critical examination and evaluation. The word probation is derived from probatum, Latin for "the act of proving." Probation is a trial period that must be completed before a person receives greater benefits or freedom.

In the criminal justice system probation is a particular type of sentence for criminal defendants. The judicial authority to order a sentence of probation is granted in statutes on the federal and state levels. Generally, probation allows a convicted defendant to go free with a suspended sentence for a specified duration during good behavior. Probationers are placed under the supervision of a probation officer and must fulfill certain conditions. If the probationer violates a condition of probation, the court may place additional restrictions on the probationer or order the probationer to serve a term of imprisonment.

A judge also may order probation in addition to a period of incarceration. For example, a sentence might consist of a jail term and, after release, probation for a specified period of months or years. Probation is generally reserved for persons sentenced to short terms in jail: it is not combined with a long prison sentence. If a person is subjected to supervision after a stay in prison, the supervision is conducted by a parole officer.

Both probation and parole involve the supervision of convicted criminals, but the systems are distinct. 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.

The concept of probation in the criminal law was inspired in the mid-nineteenth century by john augustus, a resident of Boston. Augustus encountered a man about to be sentenced in a Boston court and believed him to be capable of reform. Augustus posted bail for the man and succeeded in getting his sentence reduced. From 1841 to 1859 Massachusetts judges released approximately 2000 offenders into Augustus's custody instead of ordering incarceration.

In 1878 Massachusetts enacted the first probation statute, and Boston hired its first probation officer. In 1880 the Massachusetts legislature approved the first statewide hiring of probation officers. By 1925 all states had laws governing probation for juveniles, and by 1939 approximately 39 states were maintaining laws on probation for adults. By 1967 adult probation was allowed by statute in all states.

Probation statutes generally identify the crimes available for a sentence of probation, or, conversely, they identify crimes for which probation may not be ordered. In Alaska, for example, a court may not order probation if the person has been convicted of sexual assault or if the person's conviction is his second assault or robbery offense within the previous ten years (Alaska Stat. § 12.55.085 [1965]).

Statutes may also identify conditions of probation. These are actions that a probationer must do or refrain from doing during probation. Though conditions may be spelled out in statutes, a sentencing judge retains wide discretion to fashion conditions according to the best interests of both the public and the defendant. In most states a probationer must not possess a firearm, commit another offense, or possess illegal drugs during the probation period. Probationers must also report regularly to a probation officer.

A judge may place additional conditions on a probationer. For example, if a defendant pleads guilty to assault, the court may order him to stay a specified distance away from the victim of the assault. In a conviction for a small amount of marijuana a judge may order the defendant to complete treatment for drug use. If a probationer violates any condition of probation, the court may order additional conditions or impose a prison sentence that does not exceed the maximum term of imprisonment that could have been imposed for the crime.

Judges in state court generally have wide discretion in sentencing. In determining whether to sentence a defendant to probation, the court may consider a variety of factors, including the nature and circumstances of the offense and the defendant's criminal history.

Probation became a sentencing option for federal judges with the 1925 passage of the Federal Probation Act (18 U.S.C.A. § 3651). This act authorized federal courts to suspend imposition of a sentence, or the execution of a sentence, in favor of probation. A defendant could be placed on up to five years' probation "upon such terms and conditions as the court deemed best" when the court was satisfied that "the ends of justice and the best interest of the public as well as the defendant [would] be served thereby."

Probation as a criminal sentence was the product of a reform movement in the criminal justice system in the early twentieth century. Part of this movement was devoted to abolition of determinate sentencing or the legislative imposition of specific sentences for specific crimes. The reform movement fought for indeterminate sentencing, a method that left sentencing to the discretion of the judge and allowed the judge to fashion a sentence according to the rehabilitative needs of the criminal defendant.

Congress reversed indeterminate sentencing in federal court with the Sentencing Reform Act of 1984 (18 U.S.C.A. §§ 3551–3556). The act replaced the Federal Probation Act and established sentencing guidelines for federal judges, allowing a judge to order probation only if the offense calls for a term of imprisonment of six months or less. The act lists offenses for which revocation of probation and imposition of imprisonment are mandatory.

The Sentencing Act also changed the role of federal probation officers in the federal criminal justice system. Under the act, probation officers must gather and present evidence on facts relevant to the sentencing guidelines. This is a shift in the focus of probation officers' work. Probation officers once worked to ensure that the sentence fit the individual offender, but subsequently they endeavored to ensure that the defendant's sentence fits the offenses charged. In other words, the probation officer became less like a social worker intent on the rehabilitation of the probationer and more like an informant for the court against the probationer.

Revocation of probation in federal court in conjunction with the federal sentencing guidelines has led to confusion over the application of probation. In United States v. Granderson, 511 U.S. 39, 114 S. Ct. 1259, 127 L. Ed. 2d 611 (1994), Ralph Stuart Granderson Jr. was convicted of destruction of mail and sentenced to five years' probation and a fine. While on probation, Granderson tested positive for cocaine. Under 18 U.S.C.A. § 3565 (a) (1984), the court was required to revoke Granderson's probation "and sentence [him] to not less than one-third of the original sentence."

At the revocation hearing the government argued that this requirement meant a term of imprisonment not less than one-third the probationary period originally ordered by the court. The court agreed and resentenced Granderson to 60 months in prison. Under the federal sentencing guidelines, Granderson could have been initially sentenced to a term of imprisonment between zero and six months.

Granderson appealed, arguing that "original sentence" did not mean a term of imprisonment equal to the length of the probationary sentence imposed but instead referred to the prison sentence that the judge initially could have ordered. The U.S. Court of Appeals for the Eleventh Circuit agreed and vacated Granderson's sentence and ordered his release from prison. According to the court of appeals, it was "legal alchemy" to convert a long-term sentence of conditional liberty into an equally long term of imprisonment (United States v. Granderson, 969 F.2d 980 [11th Cir. 1992]). The federal government appealed to the U.S. Supreme Court, which affirmed the ruling.

further readings

Abadinsky, Howard. 2003. Probation and Parole: Theory and Practice. 8th ed. Upper Saddle River, N.J.: Prentice Hall.

Bieluch, Brian G. 2002. "Probation." Georgetown Law Journal 90.

Bunzel, Sharon M. 1995. "The Probation Officer and the Federal Sentencing Guidelines: Strange Philosophical Bedfellows." Yale Law Journal 104.

Morris, Norval, and Michael H. Tonry. 1990. Between Prison and Probation: Intermediate Punishment in a Rational Sentencing System. New York: Oxford Univ. Press.

Petersilia, Joan. 2002. Reforming Probation and Parole in the 21st Century. Lanham, Md.: American Correctional Association

Rosenberg, Nancy Taylor. 1995. First Offense. New York: Signet.

Smith, Michael George. 1995. "The Propriety and Usefulness of Geographical Restrictions Imposed as Conditions of Probation." Baylor Law Review 47.

Taxman, Faye S. 2002. "Supervision—Exploring the Dimensions of Effectiveness." Federal Probation 66.

cross-references

Parole; Presentence Investigation.