Probation and Parole

The origins

Some authorities trace the roots of probation to the middle ages, when devices such as benefit of clergy and the law of sanctuary made it possible either to avoid or at least to postpone punishment. It is more likely that there was no continuous linear development, although one can point to forerunners: the judicial reprieve, by which the court suspended the imposition or execution of a sentence, and the practice of releasing an offender on his own recognizance. Probation was probably more directly an outgrowth of the different methods in England and America for suspending sentence.

Under the common law the courts of England had for many years bound over petty offenders to sureties or released them on their own recognizance even without sureties. Such practices were common in some American colonies, especially Massachusetts, which in 1836 recognised by law the release of minor offenders with sureties, and in 1869 authorised the placement, after investigation, of youthful offenders in private homes under the supervision of an agent of the state.

Credit for the first use of the term probation goes to John Augustus, a Boston shoemaker, who became interested in befriending violators of the law, bailed many of them out of jail and provided them with sympathetic supervision, as early as 1841.

The first probation law was passed in 1878, Massachusetts again taking the lead: the mayor of Boston was given power to appoint probation officers, and two years later, in 1880, the law was extended to other communities in the state. In 1891 Massachusetts passed a second law requiring the extension of probation to the criminal courts. By 1900 only five states recognised probation legally — Massachusetts, Missouri, Rhode Island, New Jersey and Vermont. By 1933 all states except Wyoming had juvenile probation laws and all but thirteen had adult probation laws; by 1950 that latter group had been cut to five: Mississippi, Nevada, New Mexico, Oklahoma and South Dakota.

The variety of American legislation may have stemmed from the Supreme Court's denial in the Killits case that there existed any inherent judicial power to suspend sentence or any other process in the administration of the criminal code, and from the different points of view about the practice; the result has been to give the courts a fairly wide discretion in the use of probation. With the creation of the Cook County Juvenile Court in 1899, probation as a principle and a practice received great momentum.

The five conceptions

1. Probation as a legal disposition only. Probation is simply a suspension of sentence: since sentence is not imposed, the offender remains in the community until the length of the sentence has expired, unless in the meantime he has engaged in conduct warranting the carrying out of the sentence. This leaves everything to the probationer and makes probation a simple policing procedure; it implies two things to him — another chance, and the threat of punishment should he fail to improve his behaviour. Judge McKenzie Cleland put it in 1908 as a plan of suspending over offenders the maximum sentence permitted by law and allowing them to determine by their subsequent conduct whether they should lose or retain their liberty, with the full knowledge that further delinquency meant severe punishment.

2. Probation as a measure of leniency. Only one author in the literature took this approach, but it probably best represents the general lay point of view as well as that of most probationers — which presents a basic problem to professional personnel who view probation as treatment. Many offenders, especially juveniles, feel their acts are unfortunate slips and, however inexplicable, are in the final analysis choices between right and wrong which they feel capable of controlling; so in their own minds they are not sick persons or products of undesirable environments and are certainly in no need of treatment.

3. Probation as a punitive measure. On this view probation must be presented to the probationer as a form of punishment which permits him to escape commitment and its stigma but which makes other demands; if those demands are not met he can expect the same type of punishment as other offenders. The assumption is that it is the certainty of punishment which deters.

4. Probation as an administrative process. The earlier ideas of reform and rehabilitation attached to probation probably arose as a reaction to the abuses associated with the imprisonment of children, and a great deal of sentiment was tied to the concept in its beginnings. On this conception probation consists in the execution of concrete measures aimed at helping the offender stay out of further trouble — arranging medical treatment, making appointments for tests, effecting school transfers, seeking employment, checking on his activities. It is a fairly negative approach, the ultimate goal of complete rehabilitation being more hoped for than worked for, consisting mainly of things done for the offender in the hope that they will somehow deter him from a further career in crime.

5. Probation as social casework treatment. Legally, in the case of an adult offender, probation is the suspension of sentence during a period of freedom on condition of good behaviour; in the case of a delinquent child, it is a form of case disposition allowing the child to live at liberty in his own home or in the custody of a suitable person under the supervision of an agent of the court and on such conditions as the court determines. Socially, probation is a form of treatment administered by probation officers on a casework basis.

Between eighty-five and ninety per cent of the literature since 1940 views probation as some form of treatment, more often than not as casework treatment. The composite definition drawn from the professional literature is this: probation is the application of modern, scientific casework to specially selected offenders who are placed by the courts under the personal supervision of a probation officer, sometimes under conditional suspension of punishment, and given treatment aimed at their complete and permanent social rehabilitation.

What casework is said to be

Casework may be defined as a process of attempting to understand the needs, impulses and actions of an individual and of helping him to recognise these in a way that is satisfying to himself and yet in accord with the demands of social living. Treatment cannot be forced on another person: to help another we must accept him as he is, with honest respect for his capacity as well as regard for his need to solve his own problem; the caseworker assists the individual to realise his own capacities and orients him to the resources in his environment. Change, to be effective, depends on the individual's willingness to help himself, and he must be assisted in finding his own way at his own pace.

Biestek's seven principles answer seven needs of the client: to be treated as an individual — individualization; to express feelings — purposeful expression of feelings; to get a sympathetic response to problems — controlled emotional involvement; to be recognised as a person of worth — acceptance; not to be judged — non-judgmental attitude; to make his own choices and decisions — client self-determination; and to keep secrets about himself — confidentiality.

McGuire's three phases are social inquiry into the total situation of the client; social diagnosis, that is inquiry into his relationships and attitudes; and social casework treatment, whose objectives are to induce right notions of conduct, to induce motives assuring loyalty to good norms, and to develop latent abilities. Treatment divides into mechanistic devices — the utilisation of the resources of community agencies — and deep therapy, the process of changing attitudes and giving insight through interpretation.

Casework in probation follows psychiatric conceptions in that insight by the probationer into the reasons for his behaviour is the chief goal of treatment: a person with such insight is felt to be unlikely to repeat his delinquent activities. The primary method consists of intensive interviews through which the probation officer comes to understand the probationer and the probationer to understand himself; an identification with the probation officer then helps the offender emulate his behaviour until finally the probationer becomes independent of the identification and can carry on socially acceptable behaviour on his own.

The criticisms, and probation in reality

The casework point of view represents a shift from the social conditions of behaviour to individual behaviour itself — a shift from a social to a clinical frame of reference. Crime and delinquency are acts containing social implications, but it is chiefly the individual personality which interests the caseworker.

What is depicted in the literature does not often represent a very accurate representation of what exists in reality. Abject worship at the shrine of psychoanalysis has not produced scientifically validated techniques for the treatment of offenders on probation; few probation officers, either in the literature or in the field, give a clear and specific description of what they mean by treatment, casework or otherwise. Probation officers frequently express the opinion that just about anything done in the way of investigation of cases comes under the heading of casework treatment, including any service, advice, counselling or surveillance. Part of the difficulty is that the field of social work seems to have no well-defined and consistent theory it can call its own.

The field evidence is damning. At one juvenile court more than half the probation officers did active work with only thirty to forty per cent of their caseload; even counting telephone conversations and correspondence as contacts, sixty-four per cent of the staff had fewer than six contacts with a child over a year; and more than half considered that the most important part of their work consisted of contacts during the investigation period before the hearing. Half reported they did no planning on any of their cases; a quarter approached five to ten per cent of their caseload with a plan; the remaining quarter said this was true of forty to fifty per cent. Thirty-five per cent felt that many of the children under their supervision could probably get along without any probation service at all, and ninety-five per cent felt that some could.

Asked to define probation, twenty of the most experienced probation officers from eight courts produced twenty different answers, of which not one mentioned casework by name — although fourteen gave an unqualified yes to the question whether casework is an essential part of probation, five thought it essential but precluded by limited time, and one answered no.

The operational definition, therefore: probation is a legal disposition which allows the offender his usual freedom during a period in which he is expected to refrain from unlawful behaviour. Operationally it is primarily a process of verifying the behaviour of an offender, through periodic reports by the offender and his family to the probation officer and through the incidence or absence of adverse reports from the police and other agencies; and secondly a process of guiding and directing behaviour by means of intensive interviewing utilising ill-defined casework techniques. In practice probation remains an administrative function, and the observation made decades earlier remains accurate: probation is a term that gives no clue to what is done by way of treatment.

The character of the Act

The Probation of Offenders Act 1958, Act 20 of 1958, is an Act to provide for the release of offenders on probation or after due admonition. It is a milestone in the progress of the modern liberal trend of reform in the field of penology, and is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Its provisions must be viewed in the light of that laudable reformatory object.

Section 3 — release after admonition — applies where a person is found guilty under sections 379, 380, 381, 404 or 420 of the Penal Code, or of any offence punishable with not more than two years' imprisonment or fine or both, where no previous conviction is proved, and where the court thinks it expedient having regard to the circumstances of the case including the nature of the offence and the character of the offender.

Section 4 — release on probation of good conduct — applies where a person is found guilty of an offence not punishable with death or imprisonment for life and the court is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is expedient to release him. The court may then direct release on a bond, with or without sureties, to appear and receive sentence when called upon during a period not exceeding three years, and meanwhile to keep the peace and be of good behaviour. The proviso requires that the offender or his surety have a fixed place of abode or regular occupation within the court's jurisdiction or where the offender is likely to live. A supervision order under section 4(3) may place him under a named probation officer for not less than one year.

Section 5 allows an order for compensation for loss or injury and for costs, recoverable as a fine, to be taken into account by a civil court awarding damages in a suit arising out of the same matter.

Section 6 restricts the imprisonment of offenders under twenty-one, and is dealt with below.

Section 12 is the provision students forget and courts rely on: a person dealt with under section 3 or 4 shall not suffer any disqualification attaching to a conviction, unless after release under section 4 he is subsequently sentenced for the original offence.

The relation with the Code

Where the provisions of the Probation Act are applicable, section 360 of the Code is not to be used; doing so would be an illegality resulting in highly undesirable consequences which the legislature wanted to obviate. Section 360(10) itself makes clear that nothing in that section shall affect the provisions of the Probation Act, and the enforcement of the Probation Act in an area excludes the applicability of sections 360 and 361 of the Code in that area. Section 361 nevertheless obliges the court to apply one or other of the beneficial provisions, and their applicability can be withheld only by providing special reasons.

The three differences that make the two irreconcilable, and which explain the exclusion:

• Section 360 relates only to persons not under twenty-one convicted of an offence punishable with fine only or with imprisonment for seven years or less, and to any person under twenty-one or any woman convicted of an offence not punishable with death or life. The scope of section 4 of the Probation Act is much wider, applying to any person found guilty of an offence not punishable with death or life imprisonment.
• Section 360 provides no role for probation officers in assisting the courts in relation to supervision and other matters; the Probation Act does.
• Section 12 of the Probation Act removes disqualification; the Code contains no parallel provision.

Abdul Qayum v State of Bihar (1972) — the reformatory object

On Vijayadashmi day in 1964 a purse containing Rs 56 was picked from the pocket of a man watching a procession; the appellant, about sixteen at the time of the offence and about eighteen at conviction, was caught with the help of members of the public after passing the money to an associate who escaped. He was convicted under section 379 and sentenced to six months' rigorous imprisonment.

The trial court had called for a report from the probation officer, who recommended that the appellant be given the benefit of the Act. The recommendation was rejected. The reasons recorded were that he was apparently an associate of an accused who was a hardened criminal and a person of doubtful character; that incidents of pickpocketing were rampant in the subdivision; and that it was just a stray chance that he was caught. The appeal was dismissed and the High Court rejected the revision, relying on the appellant's association with a hardened criminal and pickpocket.

Held: neither the trial court, the appellate court nor the High Court applied their mind to the requirement of the provisions of the Act. The Act differentiates offenders below twenty-one guilty of an offence punishable with death or life imprisonment from those guilty of a lesser offence; only in the latter case is an injunction issued to the court not to sentence them to imprisonment unless satisfied that it is not desirable to deal with them under sections 3 and 4; and section 6(2) requires the court to call for and consider a probation officer's report together with any other information relating to the character and physical and mental condition of the offender.

Dalbir Singh v State of Haryana (2000) — the limit on section 4

A Haryana Roadways bus driver knocked down a cyclist in front of the main gate of the Board of School Education at Bhiwani on 4 July 1994 at 6.15 p.m.; the bus dragged him some distance and he was crushed to death. The driver was convicted under sections 279 and 304-A of the Penal Code and sentenced to three months and one year's imprisonment respectively. His pleas that he was not the driver and that the accident was due to the cyclist's negligence were rejected; both courts found that the incident happened within a town area where offices are situated, so that the need to be greatly circumspect was not adhered to.

He pleaded for the benefit of section 4 of the Probation Act, relying on Aitha Chander Rao, where the benefit had been extended to a driver. The Court distinguished it: the Bench there had acted having regard to the peculiar circumstances of that case, none of which was specified except that the driver's negligence was only contributory, so it cannot be treated as authority for a normal rule that the court should invoke the Probation Act on a conviction under section 304-A.

Held. The conditions for applying section 4 are delineated in its commencing words, and one circumstance which cannot be sidelined in forming the opinion is the nature of the offence. Parliament left it to the court to decide when and how such opinion should be formed, providing sufficient indication that release must appear expedient — a word thoughtfully employed to mean apt and suitable to the end in view, and defined as suitable and appropriate for the accomplishment of a specified object. Section 4 may therefore be resorted to when the court, considering the circumstances and particularly the nature of the offence, forms the opinion that releasing the offender is suitable and appropriate for accomplishing a specified object.

And the policy that governs road-death cases: when automobiles have become death traps, any leniency shown to drivers found guilty of rash driving would be at the risk of further escalation of road accidents. All those manning the steering of automobiles, particularly professional drivers, must be kept under constant reminder of their duty to adopt utmost care and of the consequences of dereliction; one of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere, and any latitude would tempt them to make driving frivolous and a frolic. As Krishna Iyer J had said, rashness and negligence are relative concepts, not absolute abstractions, and the law under section 304-A must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces.

Sudesh Kumar v State of Uttarakhand (2008) — the crucial date under section 6

The appellant was convicted under section 392 read with section 34 for a highway robbery committed on 7 March 1981, and sentenced on 26 July 1985 to five years' rigorous imprisonment. Before the Supreme Court, and for the first time, he claimed the benefit of section 6, saying he was under twenty-one at the date of the offence.

Held. The object of section 6, broadly, is to see that young offenders are not sent to jail for the less serious offences mentioned, because of the grave risk to their attitude to life from close association with hardened and habitual criminals who may be inmates of the jail; and section 6 lays down an injunction, as distinguished from the discretion under sections 3 and 4, not to impose imprisonment unless reasons are recorded.

On the crucial date, a four-Judge Bench in Ramji Missar v State of Bihar had held that the age is relevant not for determining guilt but for determining punishment, so the age referred to in section 6(1) must be that when the court is dealing with the offender — the point at which the court has to choose between imprisonment and the Act. Where an appellate court modifies the trial court's judgment, the crucial date remains that upon which the trial court had to deal with the offender, on the theory that the order passed by an appellate court is the correct order which the trial court should have passed. Masarullah v State of Tamil Nadu, a two-Judge Bench, had spoken of the age at the date of commission, but had not noticed Ramji Missar.

The Constitution Bench decision in Pratap Singh v State of Jharkhand, holding that for juvenility the reckoning date is the date of the commission of the offence, does not carry over: the objects of the Probation of Offenders Act and of the juvenile legislation are not in pari materia, and a section of one statute is not construed by reference to another unless the underlying objects are.

On the facts, even taking the alleged date of birth, the appellant was over twenty-one on the date of conviction and sentence; and the plea, raised for the first time in the special leave petition on a certificate not before either court below, lacked credible and trustworthy evidence. Although no technical objection should be raised merely because the plea was not taken below, there must still be credible and trustworthy material in support of it.

Parole is the provisional release of a prisoner who agrees to certain conditions prior to the completion of the maximum sentence period, the term deriving from the French parole, meaning voice or spoken words, and having become associated during the Middle Ages with the release of prisoners who gave their word.

It differs greatly from amnesty or commutation of sentence in that parolees are still considered to be serving their sentences and may be returned to prison if they violate the conditions of their parole. Medical parole or compassionate release is the release of prisoners on medical or humanitarian grounds. Conditions often include obeying the law, refraining from drug and alcohol use, avoiding contact with the parolee's victims, obtaining employment, and maintaining required contacts with a parole officer. It is not the same as supervised release, which in some systems follows the service of the entire prison sentence.

Probation distinguished from parole in one line: both are alternatives to incarceration; probation occurs prior to and often instead of jail or prison time, while parole is an early release from prison; in both, the party is supervised and expected to follow certain rules and guidelines.

Probation distinguished from a suspended sentence. Release on probation really results in suspension of sentence, since the person released must execute a bond under the Probation of Offenders Act requiring the maintenance of good conduct during the probationary period, the failure of which finds him in prison again; the Act contains provisions for varying the conditions and sets down the procedure where an offender fails to observe them.

The place of parole in prison administration. Parole reduces overcrowding, being a conditional release after part of the sentence has been served, and its liberal use has been recommended as a penological innovation to check recidivism. Premature release is an accepted mode of incentive to a prisoner, since it saves him from an extra period of incarceration and helps in reformation and rehabilitation. It is one of the features of the open air prison system, alongside release on probation, home leave, the wage system, and educational, moral and vocational training.

Where this course stops. The conditions of parole under State rules, the procedure on parole violation, the supervision of parolees, and the distinction between parole and furlough are not set out in this course, and you should not attempt to state them.

- On the meaning of probation, give the five conceptions and then the operational definition; a candidate who says only that probation is a suspension of sentence has given the view that had disappeared from the literature by 1908. - On the Act, always name section 4 for the general power, section 6 for the injunction in favour of those under twenty-one, and section 12 for the removal of disqualification, which is the practical difference from section 360 of the Code. - On when probation will and will not be given, pair Abdul Qayum with Dalbir Singh: the first shows a court failing to apply its mind to the Act's reformatory object; the second shows that the nature of the offence can properly exclude it, and that road deaths are a class where a deterrent element is retained. - On the age question, be exact: the date of sentence for section 6 of the Probation Act, the date of the offence for juvenility, and the reason is that the two statutes are not in pari materia. - On parole, give the definition, the three distinctions, and the administrative case for it; do not invent State rules. </content>