Chapter 3 The Administration of Probation and Parole
| Jurisdiction | United States |
Chapter 3 The Administration of Probation and Parole
While jails and prisons are the more visible forms of punishment, many more convicted offenders serve their sentences in the community. This form of punishment is usually referred to as community supervision, with the most salient category being probation. Yet, parole, in which a prisoner is released in the community in lieu of remaining in prison, is also a form of community supervision, and it can be granted by correctional officials and early release boards, known as parole boards. Compared with prison, community supervision can seem like a "light" form of punishment, but in fact offenders lose significant rights while under supervision, and in some cases are not subject to the normal standards of due process. Moreover, the payment of fines or restitution may play a major condition of the imposed sentence. Accordingly, some will argue that under these conditions, parole and probation also serve the goals of restitution. And because offenders are living and visible in the community, their punishment can serve as deterrence both for themselves and for others.
The administrative structure of community supervision, in the form of both probation and parole, varies widely from state to state, and in some states, probation and parole are combined. There are state-administered probation systems and locally administered systems. For example, in New York, probation is locally administered under the general supervision of the state. This has some important judicial implications that relate to the legislation of that state, as probation is operating under different statutory frameworks. Further, comparisons across states and jurisdictions raise questions about the great variations in measures that characterize probation operations (Cushman & Sechrest, 1992) and how such variations affect modes of administration and operational management that makes them conducive to litigation and judicial intervention.
While the variations in structure and administrative operations of these agencies may be confusing to some, the terms are fairly consistent. Probation is a sentence requiring offenders to serve a period of correctional supervision in the community in lieu of incarceration (MacKenzie, 2011); essentially, it is the suspension of imprisonment, in which the judge often sentences the defendant to imprisonment but suspends the sentence in favor of community supervision, in order to minimize the potential harm that may be associated with removal from society and the family. The term "probation" was coined by John Augustus, who is considered the founding father of probation. The term comes from the Latin word probare, which means to test or to prove; thus, these elements guided community supervision through the years, testing and proving that offenders can remain in society as productive members. Parole, on the other hand, is a period of conditional supervised release in the community following a prison term. It includes parolees released through discretionary or mandatory supervised release from prison, those released through other types of post-custody conditional supervision, and those sentenced to a term of supervised release. Parole is considered an early release for the sake of rehabilitation and reintegration. It is usually granted to those offenders who demonstrate good behavior and make successful attempts at bettering themselves; it normally converts imprisonment time for those serving more than two-thirds of their sentence.
More so, probation is one of the most commonly imposed criminal sanctions (Branham, 2013). According to a report by Kaeble, Maruschak, and Bonczar (2015), at year-end 2014 there were 3,864,100 adult offenders serving time in the community under probation supervision. While probation supervision has experienced some decline in recent years (at year-end the number of offenders found under probation supervision was slightly lower than that found at year-end 2014, and was 3,789,800), early release on parole increased to an estimated 856,900, at year-end 2014 (additional increase was observed at year-end 2015, with 870,500 people under parole supervision). Such numbers add up to 4,708,100 adults serving their sentence in the community. These numbers are a clear indication that there are more convicted offenders in the community than are currently imprisoned in this nation's correctional facilities (estimated at about 2.2 to 2.3 million). Accordingly, it is of great importance and relevance to the discussion of laws and peno-logical ideology that these two practices be examined. Accordingly, this chapter will aim to examine the administration of both probation and parole to better understand judicial intervention and legal issues that involve and revolve around the administration of community supervision.
As mentioned earlier, probation in its most basic definition is a suspension of an imprisonment sentence. When an offender is convicted of a crime and sentenced to serve his or her punishment in the community under probation supervision, a judge, taking recommendations made by a probation officer after he or she has completed a presentence investigation, will decide any conditions that a probation must abide by or fulfill. Often, judges will allow probation officers to set other conditions as deemed proper, and a probationer is required to abide by these additional conditions. which can include, for instance, abstinence from alcohol, compliance with curfew, employment, avoiding association with known criminals, etc. If the probationer violates any of these conditions, the terms of probation may become more restrictive (e.g., intensive supervision) or it may result in a complete revocation of probation, resulting in imprisoning the offender. According to Branham (2013: 122), "probation is not a monolithic sanction." Probation sentences may vary tremendously in their scope, conditions, and limitations imposed on the convicted offender. Many times, probation supervision requires only minimal/ symbolic supervision, where the offender is required to meet with the probation officer once a month, or talk with the officer once a week over the telephone. Even less restrictive is the development in which offenders can fulfill their supervision-contact requirement by reporting to an automated kiosk report center, similar to an ATM—a response to an overcrowded and overburdened community supervision system (Hicks, 1995; Jannetta & Halberstadt, 2011). However, for those probationers who require intensive supervision, greater restrictions and more appearances before a probation officer may be required. Specifically, those sentenced to intensive supervision may be required to meet with their probation officer several times each week, and these probationers may further be subjected to unannounced home and workplace visits that may include random searches and/or compliance with urinalysis testing for drug use.
Because intensive supervision is designed to address the risk and needs of certain high-risk offenders and in particular those who suffer from substance abuse and mental illness, it may also include active reporting and participating in relevant treatment. Contrary to what many people may think, offenders sentenced to probation are not just those convicted of minor legal infractions, misdemeanors, and the like. In fact, the probation population includes many offenders who have been convicted of felonies and even sexual assault (Cushman & Sechrest, 1992; Siegal & Bartollas, 2016). According to Kaeble, Maruschak, and Bonczar (2015), 56% of offenders on probation were serving their sentence for a felony, with 42% of probationers serving a sentence for a misdemeanor. Considering this, it is not surprising that only 35% of the total probation population complete their sentence and exit from their probation status without any major infraction or difficulty.
While probation is considered by many as a "slap on the wrist" that does not punish but allows offenders to get off free, in actuality probation is an alternative sanction that carries with it varying degrees of restraints on liberty (Cripe, Pearlman, & Kosiak, 2013). Courts that sentence offenders to probation supervision usually enjoy very broad discretion regarding the conditions by which each offender must abide. However, the conditions judges set must follow some penological rationale that demonstrates the benefit of the sentence, and argues that the conditions reasonably relate to the crime committed. However, such conditions cannot violate constitutional rights. Examining seven years of studies completed by the National Association of Criminal Justice Planners (NACJP), Cushman and Sechrest (1992) argued that differences in the statutory frameworks among the states clearly account for some of the penological variation as it applies to sentencing offenders to probation. For example, they found that courts in states with determinate sentencing (that is, with no parole board) tend to use probation much more frequently than courts in states with indeterminate sentencing (with a parole apparatus). California, a determinate sentencing state, and its counties sentence offenders to probation in the range of 60% of cases, while states such as New York, an indeterminate sentencing state, and its counties sentence much lower, around 40% of cases.
Presentencing Investigation Report
A probation officer's work begins before the offender is sentenced in court, with the presentencing investigation report (PSI). Within this scope, the probation officer is tasked with obtaining relevant information about the defendant, the...
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