Probation and parole are two different types of community amendment originally developed to tone down severe punishment for those who committed crimes or disobeyed the state’s rules and norms, though not visible in some countries or states. Probation is a procedure wherein the offender remains under the court’s supervision for certain period of time with a set of guidelines to avoid jail or prison, while parole is a time period after a person is released from jail or prison while under supervision.
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The practice of the two community correction was the result of opposing beliefs of philosophers, classicalists, and positivists. Classicalists believe that when a person committed crime, he is responsible for his actions and therefore must be punished. On the other hand, positivists believe that the offenders have reasons that forced him to do such acts and deserve a chance to make himself better.
Between 1841 and 1859, John Augustus insisted the practice of giving a temporary release for prisoners while serving the community as a lift in their sentence.
The guiding philosophy of probation is rehabilitation. Augustus undoubtedly stated, “It became pretty generally known that my labors were upon the ground of reform, that I confined my efforts mainly to those who were indicted for their first offence, and whose hearts were not wholly depraved, but gave promise of better things . . .”[2]Augustus’ efforts were favored.
A French word “parol” literally means “word of honor” as used by the prisoners of war when they take an oath of never to engage again in the warfare if released.
In some states during 1938, parole, as a conditional pardon, was already practiced. The first recorded official practice of an early release of a convict was during the time of Samuel Howe. It was favored because of the problem in overcrowding in prison increased.[3]
In Tennessee, a board of probation and parole, an independent State Commission composed of seven members appointed by the governor, decides whether the offender will be granted the privilege of a conditional release or if he will remain in prison[4]. The factors that parole board considers in granting parole are public safety, age, mental stability, marital status, educational background, repentance, time served, criminal records, level of severity of the offense, actions, rehabilitative efforts, and conduct while incarcerated.[5]
A parole is a privilege and not a right, the possibility of denying a parole will happen when the parole board finds that: One, there is a great risk for the defendant to defy the conditions of the release program; secondly, if granting of the release will cause decrease in practicing of the crime that the offender is guilty of or it will promote disrespect for the law; next is if it will have an unpleasant effect on institutional discipline; and lastly, if the release will effective for the enhancement of the convict’s capacity to live a law-abiding life.[6] A prosecutor and a judge decide for probation requests.
When under probation or parole the requirements include obey all laws of the society, report change of employment or address to probation officers, refrain from using drugs or alcohol, undergo random several drug tests, and limit traveling unless permitted by a probation officer.[7] States differ in the time span of probation and parole depending on the offense and behavior of the offender. Probation has a maximum of sixty months or five years while parole can be lifetime supervision if a person is paroled because of a murder case or given a penalty of a life sentence.[8]
In California, there are two types of probation, the formal probation and the informal probation. In formal probation, the defendant is scheduled, usually once a month, to meet with the assigned probation officer for a regular report. In informal probation, scheduled meetings are not necessary but the defendant must complete the terms of sentence and should not be engaged in trouble.
The defendant’s sentence may take account of different sanctions such as community service like cleaning public places, medical and educational mission programs of the government; counseling or rehabilitation, several unannounced drug testing, paying of required fines and penalties based on financial status of the offender and the intensity of the crime committed, reimbursement to the victim, and even house confinement under monitor or imprisonment. [9]
Intensive supervised probation is a form of release wherein the offender undergoes a close monitoring and strict conditions. Individuals on ISP are those who have committed serious crimes like for an example murder. They are given excessive restrictions including regular meeting with the officers for reports because of the belief that these will discourage, or at least meddle, any possible criminal acts that is ongoing.
Shock probation is another form in which the offender is initially sentenced with imprisonment. After being brought before a judge after thirty, sixty or ninety days, his sentence is lifted into probation. In split sentence, the sentence of the offender includes imprisonment and probation. Appearing before a judge is also not required. The person will be jailed first, and then will undergo probation. Split sentence and shock probation are often used interchangeably.[10]
If the convicted person violated his probation or parole, the possible sanctions are: increase in the level of supervision or imposing more strict regulations, house arrest with close monitoring, revocation of probation or parole, or jail confinement.[11] How can probation be violated?
The most common violation includes the following situations: a person under probation or parole is required to pay fines and restitution as reimbursement to the victim, if he failed to do so a violation is committed; failure to complete required programs such as rehabilitation and community service; he is required to attend required court appearance for a progress report and not appearing is also a form of violation; defying of rules like when he is limited to visit some persons or travel into places but then he still insists; failure to attend on scheduled reports to a probation officer; changing his identity, employment, or other status conditions without reporting it to the officers; possession of illegal substances for instance drugs, alcohols or weapons; and lastly engaging in new crimes for he is required to stay out of trouble to avoid new offenses that may lead to revocation of the privilege.
The judge and the prosecutor reflect on many factors in considering a probation violation. These includes: the nature and seriousness of the probation violation; the records of the offender in committing violations; the unlawful activity close to the probation violation; justifying conditions of violating the probation; the officer’s view of the violation whether he sees the violation as a big deal or something that can be dealt with; and the time when the violation is committed whether it happened in the beginning, middle or the end of the probation term or period.[12]
In case of a serious violation, a parole violation hearing is required. It will be composed of the parolee, the probation officer and a board of selected individuals. Lawyers are excluded in the hearing. In a probation violation hearing, the defendant is allowed to seek help from his lawyer to represent him in the court. In case of a minor violation, sometimes, it can be dealt with the probation officer and no need to take the case in the court, which will just include some verbal warnings.[13]
Probation and parole are just temporary release and if technical violations, like failure to follow the parole or probation conditions, or new offense, like performing another criminal act, are committed during the period of supervision, then the privilege can be revoked. Probation revocation is initiated by the probation officer. The defendant will be sent with a notification letter of the alleged violation, and then will undergo a preliminary hearing at which a legal authority will decide whether the evidence and claims are acceptable to pursue the hearing, if warranted; the revocation process will take place. During revocation trials, probationers are permitted to state under oath in their own behalf and have witnesses and lawyers at hand.
The proofs that are presented in the revocation hearing are not as standard as of the usual criminal hearings, usually, simple evidence are enough. The possible decisions of the hearing, if found guilty, may include return to supervision, notice with re-establishment to supervision, or jail time. The revocation of parole is almost similar to probation; the difference is that probation is administrated by judicial decisions while the other is through administrative measures. When arrest warrants are issued, the officers are empowered to take custody of the parolee with the maximum time of forty-eight hours.
This happens when the offender is found to be a great threat to the community like when he is committing more severe crimes such as murder, rape, burglary and many others. However, when alleged of violation, a parolee has the right to receive a written notice before the revocation proceeding. He is also allowed to verify accusations of violating parole as well as the right to explain himself whether the evidences presented are correct and reliable that will prove that the violation actually happened. He may confront and interrogate petitioners. He should also receive a written explanation for the decisions concerning the revocation of the parole and what evidence was presented and considered in the outcome of the case. [14]
Here are some statistical reports in probation and parole cases according to United States of America’s Department of Justice: At the end of the year 2005, over 4.9 million adults were under Federal, State, or local probation or parole authority; more or less 4.2 million on probation and eight hundred thousand on parole. There was a 0.06% increase in the population of probationers and parolees –an increase of thirty thousand during the year– which is greater than a fifth of the average annual increase of 2.8% since 1995.
There are twenty-three percent and twelve percent women in the nation’s population of probationers and parolees, respectively. Adults on probation are composed of fifty-five percent white, thirty percent black and thirteen percent Hispanic while those on parole have forty-one percent white, forty percent black, and eighteen percent Hispanic.
Convicts released from prison because of parole board decision dropped to thirty-one percent from fifty percent in 2005, while compulsory discharge based on a constitutional prerequisite turn into fifty-one from a previous record of forty-five percent. Since 1995 to 2005, forty-five percent of the parolees completed their terms and conditions while thirty-eight percent were returned to jail, and eleven percent of them escaped. As of 2001, fifteen US states and the federal government had abolished parole programs[15].
Even with probation and parole programs, the number of offenders is still increasing. Law-breakers are everywhere and the governments of different states and countries never stop in seeking for the resolution for this problem. Aside from probation and parole, petitions for pardons and a death penalty charge has been passed to the government and is being implemented to some states and countries. But then, overcrowding in jail or prison is still the greatest challenge to the correctional institution.[16]
Probation and parole are both implemented so that an offender may still have the chance to live in the community, though under supervision but at least free from the cold bars of jail, while still paying for the crime that he committed proving he is capable of obeying the law and abiding the society’s norms.
As Augustus said, every person has the right for second chances. Not because an individual made a mistake once, he should be punished for the rest of his life. The driving force that pushed him to do such criminal acts should be changed and rehabilitated to prevent more serious crimes in the future. But before a privilege is granted, everything must first undergo the legal process.
[1] http://www.legalmatch.com/law-library/article/parole-and-probation.html
[2] http://law.jrank.org/pages/1817/Probation-Parole-History-Goals-Decision-Making-Origins-probation-parole.html
[3] http://law.enotes.com/everyday-law-encyclopedia/probation-and-parole
[4] http://www2.state.tn.us/bopp/bopp_faq.htm
[5] http://www.legalmatch.com/law-library/article/parole-and-probation.html
[6] http://www.hmichaelsteinberg.com/probationparole.htm
[7] http://www.legalmatch.com/law-library/article/parole-and-probation.html
[8] http://www.hmichaelsteinberg.com/probationparole.htm
[9] Law Library-American Law and Legal information::Crime and Justice Vol.3 retrieved July 2, 2007 from http://law.jrank.org/pages/1817/Probation-Parole-History-Goals-Decision-Making-Origins-probation-parole.html
[10] http://law.enotes.com/everyday-law-encyclopedia/probation-and-parole
[11] Encyclopedia of Everyday Law retrieved July 3, 2007 from http://law.enotes.com/everyday-law-encyclopedia/probation-and-parole
[12] http://www.probationviolationattorney.com
[13] http://www.probationviolationattorney.com
[14] http://law.enotes.com/everyday-law-encyclopedia/probation-and-parole
[15] http://www.ojp.usdoj.gov/bjs/pandp.htm
[16] Encyclopedia of Everyday Law retrieved July 3, 2007 from http://law.enotes.com/everyday-law-encyclopedia/probation-and-parole
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