The Application of Shock Probation in Judicial Practice

• Published date: 01 January 1977
• Author: Edward W. Bohlander,Raymond J. Michalowski
• Date: 01 January 1977
• DOI: 10.1177/0306624X7702100105
• Subject Matter: Articles

The Application of Shock Probation
in Judicial Practice
Raymond J. Michalowski and Edward W. Bohlander
CRIMINAL justice research has given considerable attention to
the
roles of the police and the prosecutor in the administration of
justice. Particular attention has been given to the correspondence
between the discretionary judgements governing their behaviors
(Skolnik 1966, Newman 000, Goldstein 1960, Gray 1967, Reiss
1972). While some research has been focussed upon the court and
the general problems faced by it in the daily administration of
justice (Blumberg 1967, 1971, Downie 1972, Cicourel 1968) little
attention has been given to the actual judicial decision-making
process.
In the area of sentencing and sentencing practices, judicial dis-
cretion is particularly important. This paper presents an analysis
of judicial compliance with the statutory and case law limitations
upon the administration of a particular sentencing alternative, and
highlights the need for further research specifically designed to
evaluate the role of the judiciary in the administration of penal
sanctions.
Shock Probation
Traditionally, convicted felons in the State of Ohio, as well as
many other jurisdictions, faced two probable sentencing alternatives:
probation or imprisonment. This rather clear-cut distinction between
probation, as a sentencing alternative not involving incarceration,
and imprisonment resulting in eventual parole was substantially
altered, and the two formerly separate principles conjoined by the
passage in 1966 of the &dquo;shock probation&dquo; statute (Ohio Revised
Code 2947.061). This legislated sentencing alternative provides that
a convicted and incarcerated felon may, upon his own motion or
the motion of the court, petition for suspension of the remainder of
his sentence. If such petition is granted, the felon is released from
prison and remanded to probation authorities under the conditions
prescribed by the court.
This is not a particularly new phenomenon in the judicial adminis-
tration of sentences insofar as the convicted felon, within the term
of court imposing sentence, could have the balance of his sentence
*This paper was supported in part by a grant (380-OOJ70) from the Law
Enforcement Assistance Administration through the State Planning Agency
of the Ohio Department of Economic and Community Development to the
Ohio State University Center for the Study of Crime and Delinquency. Such
support of funding does not necessarily indicate concurrence with the con-
tents or recommendations within.
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vacated and be placed on probation. However, this new legislation,
as amended in 1969 (Ohio House Bill 686) introduces two pro-
cedural requirements for such release which heretofor did not exist.
It permits the prisoner to petition for reconsideration of sentence
after the expiration of the term of court under which he was sen-
tenced, and it obligates the court to hear and act upon a motion
for reconsideration of sentence within a specified number of days
after the filing of such a motion. t
The shock probation statute provides a maximum time limit after
which a prisoner cannot be released, and also specifies time para-
meters within which the various procedural steps culminating in a
&dquo;shock&dquo; release must be completed. Application for relief under
the shock law must be made between 30 and 60 days after incar-
ceration. Any application made before 30, or after 60 days is
statutorily invalid. By the 120th day after incarceration the review-
ing judge must hold a hearing on any application so made, and a
final decision must be reached no later than 10 days after the hear-
ing. Thus, 130 days is the statutory maximum number of days any
prisoner released under the authority of the shock probation statute
may remain in prison.
A second procedural requirement is found in case law (State v.
Viegel, 34 00 (2d) 96), wherein it is stated:
&dquo;In hearing such a motion, the defendant’s good conduct in the
penal institution after his incarceration is not material in deter-
mining whether the court should suspend further execution of
sentence and place the defendant on probation&dquo;.
Based upon this stipulation, the authors consider that any request
for a report of the petitioner’s institutional conduct is at variance
with case law governing the administration of shock probation.
As part of a recent study of the usages of shock probation in
the State of Ohio, the authors sought to determine to what extent
the judiciary complied with the procedural mandates prescribed for
the administration of shock probation as a sentencing alternative.
The sample for this study was drawn from three of Ohio’s seven
correctional institutions, and included all individuals granted shock
probation from these institutions in 1966 and 1970, plus a control
sample of persons eligible for shock probation but not...