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As early as the reign of King Hammurabi in Babylon, from 1792 to 1750 B. C., laws for dealing with crime has been codified. The Code of Hammurabi consisted of a collection of 282 judgments used in actual cases during that time. According to these case laws, if someone wronged another, repayment (often with interest) or a punishment in kind was required (Klein, 1996). Principles that supported this code included that the strong should not injure the weak and punishment should fit the crime." Over time, other legal perspectives evolved that have influenced the present United States justice system. King William I, who conquered England in 1066 A. D., imposed royal authority on the courts to ensure the supremacy of the king. He decreed that crimes were a disruption of the King's peace. Offenders were held accountable to the King's Courts rather than their victims and communities. This system bolstered the king's power over his subjects and increased his wealth, as fines were paid to the court rather than restitution being paid to victims (Quinn, 1996).
The result of this evolutionary process is a modern justice system that focuses on symbolic punishment by the State rather than accountability of offenders to their victims (Pranis, 1998). American justice has emerged as a structure that generally is controlled by the State and focused on the offender. However, beginning with the victims' and women's rights movements in the 1970s, the needs of the wronged victim and the community gained greater recognition. Presently, the criminal and juvenile justice systems find themselves being redefined and reshaped.
This paper shall compare and contrast the development of the parole and probation system for England and the United States. This will also discuss how the practices of parole and probation in the United States have evolved in order to meet the needs of the society.
The origins of probation can be traced to English criminal law of the Middle Ages. Harsh punishments were imposed on adults and children alike for offenses that were not always of a serious nature. Sentences such as branding, flogging, mutilation and execution were common for menial crimes. During the time of King Henry VIII, for instance, no less than 200 crimes were punishable by death, many of which were minor offenses.
This harshness eventually led to discontent in certain progressive segments of English society concerned with the evolution of the justice system. Slowly, yet resolutely, in an effort to mitigate these inhumane punishments, a variety of measures were devised and adopted. Royal pardons could be purchased by the accused; activist judges could refrain from applying statutes or could opt for a lenient interpretation of them; stolen property could be devalued by the court so that offenders could be charged with a lesser crime. Also, benefit of clergy, judicial reprieve, sanctuary, and abjuration offered offenders a degree of protection from the enactment of harsh sentences.
Eventually, the courts began the practice of binding over for good behavior, a form of temporary release during which offenders could take measures to secure pardons or reduced sentences. In due time, English courts began suspending sentences though the process was still controversial.
In the United States, particularly in Massachusetts, different practices were being developed.
Security for good behavior, also known as good aberrance, was much like modern bail: the accused paid a fee as collateral for good behavior. Filing was also practiced in cases that did not demand an immediate sentence. Using this procedure, indictments were laid on file or held in abeyance. To mitigate unreasonable mandatory penalties, judges often granted a motion to quash based upon minor technicalities or errors in the proceedings. Although these American practices were genuine precursors to probation, it is the early use of recognizance and suspended sentence that are directly related to modern probation.
Historically, the philosophic core of probation has always been humanitarian. Rejecting the harsh concept of punishment, it has insisted that in many instances the best protection for the public from crime is the rehabilitation of the offender (McAnany 1976). Rehabilitation has been accepted as a legitimate means of dealing with offenders. Rehabilitation has achieved an 'entrenched and established position' in many parts of the world (Bean 1976). There is a difference, however, between acceptance and practice, and this may help to explain the decline of probation especially in England.
If we do not rehabilitate those offenders who have the potential to be rehabilitated, they could remain at risk of reoffending. For these offenders, community service work may merely delay their entry into the prison system. Community service work was designed as one alternative to imprisonment. If it becomes an alternative to probation, not only will our criminal justice system become less humane, but also less effective and efficient at combating crime. When probation is implemented in accordance with its objectives, it has the capacity to keep people out of prison.
Bean, P. 1976, Rehabilitation and Deviance, Routledge and Kegan Paul, London.
Klein, A. R. (1996), Probation/Parole Manual for the Supervision of Domestic Violence Cases, Cambridge, MA: Polaroid Corporation
McAnany, P. D. 1976, 'Recommendations For Improving The Ailing Probation System', in Contemporary Issues in Criminal Justice, ed. R. J. Gerber, Kennikat Press, Port Washington, New York.
Pranis, K. (1998). Promising practices in community justice: Restorative justice. In K. Dunlap (Ed.), Community Justice Concepts and Strategies. Lexington, KY: American Probation and Parole Association.
Quinn, T.J. (1996). Corrections and restorative justice. In Community Justice: Striving for Safe, Secure, and Just Communities. Washington, DC: National Institute of Corrections, U.S. Department of Justice.
Sanctions for Probation of Parole and Revocation
Intermediate sanctions include a range of punishment options between probation and imprisonment. These programs are also referred to as intermediate penalties and intermediate punishments. The principal forms of intermediate sanctions include: intensive supervision programs (ISP); boot camps; day reporting centers; home confinement (with or without electronic monitoring); monetary penalties (fines and restitution); compulsory labor in the form of community service; and halfway houses.
Each of these programs can be used on its own as a penalty or in conjunction with other correctional options, mainly probation and parole. Typically, offenders given intermediate sanctions are under some form of probation supervision, whether it is regular probation or intensive supervision probation. They are assigned conditions that include home confinement, electronic monitoring, and other intermediate sanctions. For instance, an offender on ISP may also be required to pay restitution and perform community service when he or she is financially able to make restitution and can perform the types of labor that could benefit the community.
There is a generally increasing trend in the use of alternative sanctions. first implemented by the Florida Department of Corrections in 1983. This program has increased sanctions over probation. Offenders placed in this form of supervision often have already been supervised on probation, and violated or had offenses serious enough to "score them out" to a term in state prison. The program was designed as an alternative to prison attempting to relieve prison overcrowding.
Since 1983, 60,000 offenders have been placed under Community Control. Florida has the largest house arrest program in the nation. Each officer carries a caseload of 25 to 30 offenders. Offenders are prohibited from leaving their residences without express permission from their officers. Very tight control, particularly through frequent contact, is maintained over these offenders.
Probation Restitution Centers are half-way facilities designed to assist the offender who has had difficulty adjusting to supervision. These offenders are generally youthful offenders who have demonstrated a disregard for the conditions of their supervision and are delinquent in the payment of monetary obligations, i.e., court costs, restitution, and court impact fees. The center emphasizes employment and educational development. Offenders are required to maintain employment while in custody at the facility. The facility is not secured and offenders can leave at any point, which unfortunately, occurs from time to time.
Offenders are committed to the facility for an average of six months. During this time, an offender participates in a number of rehabilitative programs designed to assist in complying with the conditions of probation and Community Control.
In Florida, first time, third degree felony offenders may be offered pretrial intervention after they have been diverted from the judicial process, but prior to a determination of guilt by the court. Those defendants, who complete the program and all of the requirements imposed, are eligible to have prosecution canceled, the charges completely dismissed, and their records possibly sealed.
Graduated sanctions hold promise for increasing compliance. Drug Courts, which have advanced the concept, have shown that the approach reduces substance abuse rates (Harrell and Cavanaugh 1998). Oregon, which legislatively gave probation officers the authority to use short periods of incarceration to respond to positive drug tests, reported reductions in positive drug tests among probationers (CESAR 1994). South Carolina reported declines in prison intake (Burke 1997). Illinois, Connecticut, and other states have adopted administrative sanctions in probation to foster more proactive monitoring. New state and federal initiatives, including the National Institute of Justice's Break the Cycle and the Office of Justice Programs' Residential Substance Abuse Treatment (RSAT) block grants employ the graduated sanctions concept to manage offender behavior (Office of Justice Programs 1998). Thus the early indications are that graduated sanctions have promise as a technique to address problematic offender behavior and reinvigorate probation services as a viable sentencing option.
An underlying issue in graduated sanctions is the clear distinction of supervision responsibilities. Current practices focus on revocations and on addressing problems through the revocation process. The probation system has not adapted to the changing characteristics of the probation population and the increasing use of conditions of supervised release (Petersilia 1997).
Thus the emphasis on revocation negates the importance of the supervision process in that it focuses on the "product" instead of designing a production process that improves the quality of the product. Yet, a graduated sanction model as discussed above resolves the implementation issues of the 1980's by ensuring that both probation and the judiciary have a clear focus on the issue of compliance. This model also provides the incentive to change the current status quo from reactive monitoring to proactive supervision. Finally, the concepts of graduated sanctions are equally important in another area not discussed here-the concept of graduated incentives to reward positive behavior. A fully proactive supervision system would include both elements graduated rewards and sanctions as central components of the supervision strategy to improve overall compliance with the conditions of release and to change offender behavior.