The probation officer and the Federal Sentencing Guidelines: strange philosophical bedfellows.

Author:Bunzel, Sharon M.

The federal probation officer sits uneasily in today's federal criminal justice system. A product of the rehabilitative penal philosophy that evolved as a tool for indeterminate and individualized sentencing, the probation officer is now an important player in a criminal justice system dominated by the Federal Sentencing Guidelines (the Guidelines).(1) Philosophically opposed to the rehabilitation model, the Guidelines are a product of a movement that focused on a retributive or "just deserts" penal philosophy. The Guidelines were a direct reaction against everything that the probation officer originally represented: They established a determinate sentencing system to end the "disparity" resulting from individualized treatment of offenders.

Despite this philosophical clash, the probation officer, once the "social worker" of the criminal justice system,(2) has been vested with a new title: the "guardian" of the Guidelines.(3) Early probation officers had limited contact with the legal intricacies of sentencing. Their focus was on the offender, and their expertise was in the investigation of an offender's life history, the assessment of his character, and the analysis of his potential for rehabilitation. The probation officer's purpose in the pre-Guidelines criminal justice system was to facilitate sentences that fit individual offenders. In contrast, under the Guidelines regime, the probation officer ensures that sentences fit offenses. Probation officers are considered to have the most expertise and familiarity with the Guidelines.(4) Officers have primary responsibility for collecting and presenting the facts relevant to Guidelines calculations,(5) and sentencing judges often adopt probation officers' Guidelines recommendations.(6) The Guidelines' guardian also acts as a conduit to the United States Sentencing Commission (the Commission) of information that is used to assess and amend the Guidelines.(7)

This Note questions the propriety of these new responsibilities. It argues that the probation movement developed from a philosophical posture antithetical to that of the Guidelines, and that, in light of this conflict, the probation officer is not the proper "guardian" of the Guidelines. Like the proverbial fox guarding the chicken coop, the probation system is fundamentally unsuited to the task of implementing a sentencing structure to which it is philosophically opposed. More important, playing the role of guardian forces the probation officer to betray daily her philosophical origins and to portray a false vision of the probation systems.

Part I of this Note examines the rehabilitative model of criminal justice and how it gave rise to the probation movement. Part II illustrates how this philosophical foundation influenced the institutional structure of the probation system and the responsibilities given to the probation officer. The Part focuses on one of the officer's most important responsibilities, the preparation of the presentence report. An examination of the original purpose and contents of the report demonstrates that the probation officer acted as an integral component of a system of individualized, indeterminate sentencing. The Note then analyzes the philosophical opposition between the probation and Guidelines movements, and critiques the probation officer's current "uncomfortable fit" in the Guidelines regime. Part III provides a brief outline of the Guidelines' historical background, focusing primarily on the philosophical foundations of the determinate sentencing movement out of which the Guidelines arose. The Part suggests that the probation officer and the presentence report--the former tools of individualized justice--were gradually transformed by a shift in the philosophical focus of the criminal justice system away from rehabilitation and toward just deserts. Part IV presents the radical transformation of the probation officer co-opted by a system antithetical to the probation movement's philosophical origins. The Part situates the probation officer in the Guidelines-dominated criminal justice system, analyzing how the probation officer has fared now that rehabilitation is no longer the dominant goal of the criminal justice system. For purposes of comparison, Part IV documents the transformation of the early presentence report from a diagnostic tool for rehabilitation into a component of determinate sentencing. This Note concludes by discussing the strained position in which this transformation has left the probation officer, and by questioning the propriety of the current role of the probation officer in the Guidelines regime.


    The history of probation--both its antecedents in English common law and its origins in the United States--reveals an institution concerned almost exclusively with the individualization of justice and the rehabilitation of offenders. At common law, the development of mechanisms to mitigate the severity of the criminal law provided a model focus--the individual offender--for the pioneers of the probation movement. The development of the rehabilitative penal philosophy provided a philosophical starting point for the early probation movement, which sought to treat criminals as individuals with unique problems that the criminal justice system could address with correspondingly unique treatments. This Part will address briefly each of these historical roots of the probation officer.

    1. Common Law Antecedents: Individualization of Punishment

      Probation finds antecedents in practices in early English common law that were "attempts to avoid the mechanical application of the harsh and cruel precepts of a rigorous, repressive criminal law."(8) Judge-made mechanisms, including the benefit of clergy,(9) judicial reprieve,(10) and recognizance,(11) allowed judges to exercise discretion in dealing with individual defendants rather than being bound by rigid statutory schemes. These equitable principles were the forerunners of probation: Dependence on judicial discretion and a focus on individual offenders rather than on a mechanistic application of law would become central components of the movement that created and sustained the probation officer.

    2. The Dominance of the Rehabilitative Model

      The probation movement is an expression of the penal philosophy of rehabilitation. "[T]he rehabilitative ideal is the notion that a primary purpose of penal treatment is to effect changes in the characters, attitudes, and behavior of convicted offenders, so as to strengthen the social defense against unwanted behavior, but also to contribute to the welfare ... of offenders."(12) In stark opposition to a retributory penal philosophy, the rehabilitation model fashions appropriate punishment by focusing on the offender rather than on the offense: The rehabilitation philosophy "is part of a humanistic tradition which, in pressing for ever more individualization of justice, has demanded that we treat the criminal, not the crime.... As a kind of social malfunctioner, the criminal needs to be 'treated' or to be... rehabilitated. Rehabilitation is... the opposite of punishment."(13)

      The rehabilitative theory was the impetus behind various reform movements--all philosophical brethren of the probation movement. One of the most important and widespread manifestations of the rehabilitation model was indeterminate sentencing, under which the length of imprisonment was determined not by the sentence imposed upon conviction, but by the offender's progress toward rehabilitation during incarceration.(14) Judges and parole boards were empowered to adjust an initial sentence accordingly.

      The indeterminate sentence concept emerged in 1870(15) as a central component of the program advocated by the National Congress of the American Prison Association at Cincinnati.(16) Rehabilitative reformers, who saw determinate sentencing as antithetical to the rehabilitative ideal,(17) triumphed by the early twentieth century. The rehabilitative model was firmly entrenched in state and federal criminal justice systems. Indeterminate sentencing structures became the norm;(18) "good time" laws were enacted;(19) and parole was established in most states and in the federal system.(20)

      Discretion was central to indeterminate sentencing. Criminal statutes typically set only maximum penalties and/or fines for crimes, permitting the sentencing judge to impose any sentence as long as it did not exceed that maximum.(21) Indeed, a judge could choose to impose no prison time at all.(22) The parole board also wielded significant discretion in releasing offenders from prison after a statutorily required fraction of their sentences had been served. The probation officer played an important role in the wielding of this discretion, providing the judge and the parole board with information necessary to meet rehabilitative goals. This role in indeterminate sentencing would prove to be a key factor in organizing the probation system.(23)

    3. History of Probation in America

      The probation movement was a manifestation of the rehabilitative ideal. A quest for rehabilitation of offenders and a focus on individualized sentences formed the core of the probation movement in America. An examination of the movement's history reveals these institutional aims, which the determinate sentencing movement would later explicitly reject.

      A recounting of the history of probation in this country invariably begins with the story of John Augustus, the "Father of Probation." In 1841, John Augustus became the first probation officer when, encountering a man about to be sentenced in the Boston courts and finding him "not yet past all hope of reformation," Augustus bailed him and succeeded in getting his sentence reduced.(24) From that day forward, Augustus sought out suitable candidates for what he termed "probation." He would petition the court to suspend a defendant's sentence and to grant the defendant conditional liberty under...

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