probation

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A sentence whereby a convict is released from confinement but is still under court supervision; a testing or a trial period. It 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 she act in a manner approved by a special officer to whom she 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 two thousand 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 thirty-nine 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 last 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 sentence him to 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 between zero and six months. The act lists offenses for which revocation of probation and imposition of imprisonment is 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 now they endeavor to ensure that the defendant's sentence fits the offenses charged. In other words, the probation officer has become 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 have 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 sixty 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.

See: determinate sentence; presentence investigation.

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• Decisions, Judgments, and Conditions - probation: relief from all or part of prison sentence on promise of proper conduct
• Legal Procedures and Trials - probation: suspension of sentence, allowing convicted offender freedom based on accountability to authorities
• Prison and Punishment - probation: suspension of prison sentence on guarantee of good behavior and regular reporting to authorities

For other uses, see Probation (disambiguation).

Not to be confused with Probate.

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The examples and perspective in this article or section deal primarily with the United States and do not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (November 2011)

Probation literally means testing of behaviour or abilities. In a legal sense, an offender on probation is ordered to follow certain conditions set forth by the court, often under the supervision of a probation officer. Offenders are ordinarily required to refrain from subsequent possession of firearms, and may be ordered to remain employed, abide to a curfew, live at a directed place, obey the orders of the probation officer, or not leave the jurisdiction. The probationer may be ordered as well to refrain from contact with the victims (such as a former partner in a domestic violence case), with potential victims of similar crimes (such as minors, if the instant offense involves child sexual abuse), or with known criminals, particularly co-defendants. Additional restrictions can include: a ban on possession or use of alcoholic beverages, even if alcohol was not involved in the original criminal charges. Offenders on probation might be fitted with an electronic tag (or monitor), which signals their whereabouts to officials. Also, offenders have been ordered to submit to repeated alcohol/drug testing or to participate in alcohol/drug or psychological treatment, or to perform community service work.

Contents 1 Arming and increased authority 2 Types of supervision 3 History 4 Theory 5 Probation violations 6 Probation revocation 7 See also 8 References 9 External links

Arming and increased authority

In the United States, most probation agencies have armed officers. In 39 states, territories and federal probation, such arming is either mandated or optional. Arming is allowed in an increasing number of jurisdictions.^[1]

Probation officers are peace officers who possess limited police powers.

Types of supervision

Intensive probation, home detention, GPS monitoring These are highly intrusive forms of probation in which the offender is very closely monitored, and it is common for violent criminals, higher-ranking gang members, habitual offenders, and sex offenders to be supervised at this level. Some jurisdictions require offenders under such supervision to waive their constitutional rights under the Fourth Amendment regarding search and seizure, and such probationers may be subject to unannounced home or workplace visits, surveillance, and the use of electronic monitoring or satellite tracking. GPS monitoring and home detention are common in juvenile cases, even if the underlying delinquency is minor.

Standard supervision Offenders under standard supervision are generally required to report to an officer, most commonly between biweekly and quarterly, and are subject to any other conditions as may have been ordered, such as alcohol/drug treatment, community service, and so on).

Unsupervised probation does not involve direct supervision by an officer or probation department. The probationer is expected to complete any conditions of the order without the involvement of an officer, perhaps within a period than that of the sentence itself. For example, given one year of unsupervised probation, a probationer might be required to have completed community service, paid court costs or fines, etc., within the first six months. For the remaining six months, he or she may be required merely to refrain from unlawful behavior. Probationers are allowed to go to their workplace, educational institution, or place of worship. Such probationers may be asked to meet with an officer at the onset or near the end of the probationary period, or not at all. If terms are not completed, an officer may file a petition to revoke probation.

Informal supervision is supervised or unsupervised probation without having been convicted of the offense. As with other forms of probation, search clauses or drug testing may be included. At the end of the informal period, the case is dismissed. This is usually offered as part of a plea bargain or pre-trial diversion, and may requires the supervisee to waive Fourth Amendment rights for the duration. Informal probation can also require the supervisee to enter a plea of "Guilty", pending the completion of the terms set forth in the agreement, at which time the charge is typically dismissed.

History

The concept of probation, from the Latin, probatio, "testing," has historical roots in the practice of judicial reprieve. In English common law, prior to the advent of democratic rule, the courts could temporarily suspend the execution of a sentence to allow a criminal defendant to appeal to the monarch for a pardon. Probation first developed in the United States when John Augustus, a Boston cobbler, persuaded a judge in the Boston police court in 1841 to give him custody of a convicted offender, a "drunkard," for a brief period and then helped the man to appear rehabilitated by the time of sentencing. Even earlier, the practice of suspending a sentence was used as early as 1830 in Boston, Massachusetts, and became widespread in U.S. courts, although there was no statutory provision for such a practice. At first, judges, most notably Peter Oxenbridge Thatcher of Boston, used "release on recognizance" or bail and simply refrained from taking any further action. In 1878 the mayor of Boston hired a former police officer, the ironically named "Captain Savage," to become what many recognize as the first official probation officer. By the mid-19th century, however, many Federal Courts were using a judicial reprieve to suspend sentence, and this posed a legal question. In 1916, the United States Supreme Court, in the Killets Decision, held that a Federal Judge (Killets) was without power to suspend a sentence indefinitely. This decision led to the passing of the National Probation Act of 1925, thereby, allowing courts to suspend the imposition of incarceration and place an offender on probation.

Massachusetts developed the first state-wide probation system in 1880, and by 1920, 21 other states had followed suit. With the passage of the National Probation Act on March 5, 1925, signed by President Calvin Coolidge, the U.S. Federal Probation Service was established. On the state level, pursuant to the Crime Control and Consent Act of 1936, a group of states entered into an agreement wherein they would supervise probationers and parolees who reside in each other's jurisdictions on each other's behalf. Known as the Interstate Compact For the Supervision of Parolees and Probationers, this agreement was originally signed by 25 states in 1937. By 1951, all the states in the United States of America had a working probation system and ratified the Interstate Compact Agreement. In 1959, the new states of Alaska and Hawaii, the Commonwealth of Puerto Rico, and the territories of the Virgin Islands, Guam, and American Samoa ratified the act as well.

Theory

Probation began as a humanitarian effort to allow first-time and minor offenders a second chance. Early probationers were expected not only to obey the law but also to behave in a morally acceptable fashion. Officers sought to provide moral leadership to help shape probationers' attitudes and behavior with respect to family, religion, employment, and free time. They aimed to ensure that this was enforced as well, and early probationers were given the opportunity to prove themselves and possibly even reduce their sentence.

From the 1920s through the 1950s, the major developments in the field of psychology led probation officers to shift their emphasis from moral leadership to therapeutic counseling. This shift brought three important changes. First, the officer no longer primarily acted as a community supervisor charged with enforcing a particular morality. Second, the officer became more of a social worker whose goal was to help the offender solve psychological and social problems. Third, the offender was expected to become actively involved in the treatment. The pursuit of rehabilitation as the primary goal of probation gave the officer extensive discretion in defining and treating the offender's problems. Officers used their judgment to evaluate each offender and develop a treatment approach to the personal problems that presumably had led to crime. Many states offered to dismiss or expunge the conviction if the probationer fulfilled the terms of the probation.

During the 1960s, major social changes swept across the United States. These changes also affected the field of community corrections. Rather than counseling offenders, probation officers provided them with concrete social services such as assistance with employment, housing, finances, and education. This emphasis on reintegrating offenders and remedying the social problems they faced was consistent with federal efforts to wage a "War on Poverty." A probation officer became less of a counselor or therapist, and more of an advocate, dealing with private and public institutions on the offender's behalf.

In the late 1970s the orientation of probation changed again as the goals of rehabilitation and reintegration gave way to "risk management." This approach, still dominant today, seeks to reduce the likelihood that an offender will commit a new offense. Risk management reflects two basic goals. First, in accord with the deserved-punishment ideal, the punishment should fit the offense, and correctional intervention should neither increase nor diminish the severity of punishment. Second, according to the community protection criterion, the amount and type of supervision are determined according to the risk that the probationer will return to lawbreaking.

Probation violations

A probation officer may imprison a probationer and petition the court for a violation of probation. The court will request that the defendant prove their innocence at an order to show cause hearing. If the defendant is unable to challenge the presumption of guilt at the hearing, the officer or prosecutor may request that additional conditions of probation be imposed, that the duration be extended, or that a period of incarceration be ordered, followed by a return to probation. There is no invariant rule as to what circumstances warrant a violation hearing, although conviction of a subsequent offense, or failure to report (to the officer) are nearly universal.

If a violation is found, the severity of the penalties may depend upon the facts of the original offense, the facts of the violation, and the probationer's criminal history. For example, if an offender is on probation for a gang-related offense, subsequent "association with known criminals" may be viewed as a more serious violation than if the person were on probation for driving a car with a suspended license; the reverse may be true if the initial offense were for driving under the influence. Similarly, penalties for violation may be greater if a subsequent offense is of greater severity (such as a felony, following a misdemeanor), or if the original offense and subsequent offense are of the same type (such as a battery following an assault, or retail theft following retail theft).

Probation revocation

When a probation violation is extremely severe, or after multiple lesser violations, a probation revocation hearing could be scheduled. A judge at the hearing will consider reports from the probation officer, and if probation is revoked, the probationer will often be incarcerated in jail or prison. However, the term of incarceration might be reduced from the original potential sentence for the alleged crime(s). In cases where a defendant opted to accept probation rather than incur the time or risk of going to trial, a probation revocation can result in conviction of the original criminal charges. Thus, an innocent defendant could agree to probation but later be judged in severe probation violation, causing revocation, a jail term, and a permanent record of conviction.

See also

• Probation Journal
• Suspended sentence
• South Carolina Department of Probation, Parole, and Pardon Services
• Parole
• Rehabilitation Policy
• Cannabis drug testing
• Private Probation

References

1. ^ http://www.appanet.org/resources/surveys/National_Firearms/index.htm

External links

Wikimedia Commons has media related to: Probation

• Probation - what it is (Directgov, England and Wales)
• Video clip about Desistance and Probation Practice Research by the Scottish Centre for Crime and Justice Research
• Probation Officer Salary
• How to become a Probation Officer

This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)

Dansk (Danish)
n. - prøvetid

idioms:

• on probation    være under tilsyn
• probation officer    tilsynsværge

Nederlands (Dutch)
proeftijd, voorwaardelijke vrijlating

Français (French)
n. - mise à l'épreuve, délai probatoire, sursis, (Jur) sursis avec mise à l'épreuve, probation, mise en liberté surveillée, période d'essai

idioms:

• on probation    à l'essai
• probation officer    agent de probation, (Jur) délégué à la liberté surveillée

Deutsch (German)
n. - Bewährung, Probezeit

idioms:

• on probation    auf Probe
• probation officer    Bewährungshelfer

Ελληνική (Greek)
n. - δοκιμασία, περίοδος δοκιμασίας, (νομ.) αστυνομική επιτήρηση

idioms:

• on probation    (τελών) υπό αστυνομική επιτήρηση
• probation officer    κοινωνικός λειτουργός που επιτηρεί αποφυλακισμένο υπό όρους

Italiano (Italian)
libertà condizionata

idioms:

• on probation    con la condizionale, regime di semilibertà, libertà vigilata
• probation officer    ufficiale di sorveglianza

Português (Portuguese)
n. - experiência (f), provação (f), sursis (m) (Jur.)

idioms:

• on probation    em experiência, em liberdade condicional
• probation officer    oficial encarregado de supervisionar pessoas em liberdade condicional

Русский (Russian)
условное осуждение, испытательный срок

idioms:

• on probation    условно осужденный
• probation officer    надзиратель над условно осужденных

Español (Spanish)
n. - libertad condicional, libertad vigilada

idioms:

• on probation    a prueba, en libertado condicional
• probation officer    encargado de la vigilancia de los que están en libertad condicional

Svenska (Swedish)
n. - prov, prövning, prövotid, skyddstillsyn, övervakning, villkorlig dom (jur.)

中文（简体）(Chinese (Simplified))
试用, 鉴定, 见习

idioms:

• on probation    作为试用, 察看, 缓刑
• probation officer    缓刑犯监督官, 缓刑犯观护员

中文（繁體）(Chinese (Traditional))
n. - 試用, 鑒定, 見習

idioms:

• on probation    作為試用, 察看, 緩刑
• probation officer    緩刑犯監督官, 緩刑犯觀護員

한국어 (Korean)
n. - 검정, 시험, 입증

日本語 (Japanese)
n. - 試験, 見習い, 試練, 保護観察, 仮及第期間, 執行猶予, 仮採用

idioms:

• on probation    試験のため, 見習いに
• probation officer    保護観察官

العربيه (Arabic)
‏(الاسم) فترة اختبار‏

עברית (Hebrew)
n. - ‮מערכת פיקוח על אסיר ששוחרר לתקופת ניסיון, תקופת מבחן בתפקיד חדש‬

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