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Probation
Introduction
Probation is a form of disposition made by the cour. It
suspends final judgment and instead of commitment to a penal
or correctional institution it provides treatment while the of-
fender continues to live in the community. The National Com-
mission on Law Observance and Enforcement defined it as"ao
process of treatment-prescrihehy the-_ourt for persons con-
victed of offenses against the law during which the individual
on_probation lives in the community and regulates his own life
under conditions im~posed by the court- (or other constituted
authority) and is su Ject to supervision by a probation officer."'
It is in the nature of a contract, in which the offender agrees to
certain terms imposed by the court in return for his release.
When he fails to fulfil these terms or commits another offense
,he has violated his probation and' is subject to return to the
court for other disposition.
Legally probation rests on the right of the court to suspend
sentence, and without exception the appellate courts have up-
held this principle either as an inherent power or as one which
may be conferred by statute. The practice of suspending sen-
tence and releasing on recognizance goes far back into Anglo-
Saxon history and was brought to the colonies as part of the
common law. Suspensions may be of two kinds, suspension of
the imposition of the sentence or of its execution. In the first
instance the court imposes no sentence. In the second instance
the court imposes the sentence and suspends or defers its execu-
tion. In either case the court releases the offender conditionally.
In a few states'probation may be used before conviction or be-
fore sentence is imposed or suspended.2
If the imposition of a sentence is suspended and the offender
INational Commission on Law Observance and Enforcement Report on Penal Institutions,
Probation and Parole Washington, D. C., Government Printing Office, 1931, p. 184
2Gilbert Cosulich Adult Probation L ws of the United States New York. National Pro.
bation Association, 1940, p. 16
PROBATION
violates the terms of probation, the judge may then impose any
sentence he might have imposed originally. If a sentence was
imposed but its execution suspended, and the offender violates
the terms, the judge may then order the execution of the sen-
tence. Probation is different from mere suspension of sentence,
however. It implies specific conditions and treatment under super-
vision, while suspension of sentence implies only general condi-
tions, without supervision.
Probation is not to be interpreted as leniency or mercy,
allowed because the court has been swayed emotionally. LIt is a
form of treatment consciously chosen because there is reason to
believe that the interests of society can be protected, while at
the same time the needs of the offender can be met in this man-
ner better than in any other. .
Probation should not be confused with parole. Parole comes
after sentence has been imposedand a period of imprisonment
served. Furthermore, 1 robation extends the power of court over
the conduct and destiny of the offender, while in parole the court
has already surrendered its authority through commitment to
an institution 'Probation is usually connected directly with the
courts and is a matter of judicial discretion, while parole is con-
nected with the administrative side of government and is de-
termined by a paroling authority. Both are conditional release
however; the conditions imposed are similar and the methods
of case work treatment are the same.
From a social point of view probation implies constructive
treatment. The emphasis has been changed from punishment
and retribution to- an effort to readjust the individual so that
he will cease his antisocial behavior. Thus it is preventive in
nature. Theoretically there is recognition that in certain be-
havior problems commitment may be unnecessary or may be
unsuitable to the type of case involved.
Probation permits a normal family life in the community
and avoids the bad effects of prison. It preserves the natural
lExceptions to this exist in some states in the use of judicial or bench parole for prisoners
in county penal institutions and in cases of children committed to co. rectional institutions.
PROBATION AND PAROLE
agency and there is no reason why the same method should not
be extended to probationers. In its philosophy this idea re-
sembles somewhat the thinking of those who would divide the
functions of the court.' In fact there are some who would go
so far as to give to another authority, such as the Youth Cor-
rection Authority, even the power to decide whether to use
probation or not. It is felt that the judges are not necessarily,
fitted to carry on a large and complicated piece of administra-
tive work. Their education lies in another direction and they
are not always familiar with standards of good case work. Fur-
thermore, they have heavy judicial duties which limit the time
they can devote to administrative details.
The attitude of the judiciary toward probation has undue
importance because an unsympathetic judge can render even a
good probation law ineffective. Interviews with 270 state and
federal judges made during the Attorney General's survey of
release procedures' showed that while many of them expressed
sympathy with probation in general terms, their practice re-
vealed that they did not understand its use as treatment.
Learning in the law is not sufficient, there should be social-
mindedness and a sympathetic interest in people. There should
also be administrative skill and knowledge of how a probation
department should be set up and run, a task which requires
executive leadership from some one specifically trained and ex-
perienced in the field. To mitigate the situation there has been
a consolidation of the probation services in some of the larger
courts so that one probation department, with an executive offi-
cer in charge, covers the work of all courts in a county or city.
At the same time a trend in another direction is toward state
participation or control. This takes two major forms: super-
vision of services, and complete administrative control. The
early efforts were supervisory in nature, largely for the purpose
of giving technical aid and collecting statistics. The first state
probation service was established in New York in 1907, the
iSee discussion p. 76 ff.
2Attorney General's Survey ol Release Procedures Volume II, p. 411
PROBATION AND PAROLE
Interstate Compacts
The problem of state boundaries is important in both pro-
bation and parole. There are two major aspects, the escape of
probationers across state lines and the supervision of those who
IPeople v. Fabian, 192 N. Y. 443
PROBATION AND PAROLE
Flexner, Bernard and others The Child, the Family and the Court
Washington, D. C., United States Children's Bureau, 1933
Glueck, Sheldon, editor Probation and Criminal Justice New York,
Macmillan, 1933
Halpern, Irving W. A Decade of Probation New York, Court of Gen-
eral Sessions, 1938
John Augustus, First Probation Officer (reprint of Report of John
Augustus Boston, 1852) New York, National Probation Associa-
tion, 1939
Johnson, Fred R. Probationfor Juveniles and Adults New York, Cen-
tury, 1928
National Commission on Law Observance and Enforcement Report on
Penal Institutions Probation and Parole Washington, D. C., Gov-
ernment Printing Office, 1931
Sutherland, Edwin H. Principles of Criminology Philadelphia, Lippin-
cott, 1939, Chapter XX
Timasheff, N. S. One Hundred Years of Probation New York, Ford-
ham University Press, 1941, Part I
Trought, Thomas W. Probationin Europe Oxford, England,-Blackwell,
1927
Williamson, Margaretta A. The Social Worker in the Prevention and
Treatment of Delinquency New York, Columbia University Press,
1935
Young, Pauline V. Social Treatment in Probation and Delinquency
New York, McGraw-Hill, 1937
Manuals