This Article is authored by Niranjana K S, Final Year Unitary LL.B Student enrolled in Government Law College, Kozhikode and Adv. Vinaya Joseph, pursuing final year of LLM from Government Law College Ernakulam.

“The whole man is a healthy man, and every man is born good. Criminality is a curable deviance”

-Justice v r krishna iyer

INTRODUCTION

Probation laws worldwide are enormously varied, and many are in a state of rapid change. This article covers probation laws in eight countries, including the UK & India, Canada, the US, Australia, Israel, Japan, and China. The findings paint a picture of probation systems in flux. Faced with rising crime, many countries have placed renewed importance on probation as a means of reducing reoffending and containing overcrowding in prison populations. This has led to more overtly correctional systems, as clienteles include a growing proportion of more serious offenders.

In many countries, probation is employed as an alternative to incarceration for specified categories of adult offenders^[1] (Cartledge et al., 1981; Hamai et al., 1995). Nevertheless, there is considerable variation in the conceptualization and implementation of probation between countries. Probation programs differ from one another in elements ranging from their legal bases to their assumptions about the causes of crime, the goal of punishment, and the aims of probation, as well as the professional ideology, strategies, and tasks of the probation officer, to name only the most salient aspects^[2] (Cartledge et al. 1981; Duffee, 1984; Gray, 1986; Clear and Rumgay, 1992; Hamai and Ville, 1995; Harris, 1995; Hough, 1995).

However, probation services differ not only between countries but can also change dramatically over time within specific national settings. Prime examples of this are developments within the British probation service over the last decades. Over this period, the British service has been transformed from a more social work-oriented system to one based primarily upon punishment in the community^[3] (Fever and Smith, 1994; Harris, 1994; Hough, 1995; Linder, 1994). Not surprisingly, this transformation was not uncontested, and indeed it was accompanied by an intensive debate both within the probation service and without the aims and values of the probation service^[4] (Ford et al., 1997; James, 1995; Nellis, 1995; May 1991; Spencer, 1995).

Roughly speaking, two main approaches can be identified: the rehabilitative approach, which regards probation as an alternative to punishment, and the punitive approach, which perceives it as an alternative form of punishment. Programs within the first approach attribute crime to the offender’s intra-psychic problems or social deprivation; they maintain that the goal of punishment is rehabilitation and that probation aims to change the individual, the community, or the relationship between them; and they employ strategies that focus on helping the offender, whether in the form of psychological treatment, integration in the community, or instrumental assistance.Programs within the second approach place the blame for crime entirely on the criminal; they define the goal of punishment as deterrence, retribution, or incapacitation, and the aim of probation as effecting these goals; and they tend to favor strategies of supervision and control. Within each approach, there are quite a several models of probation, which differ in specifics and emphases.

Models of probation based on the rehabilitation approach may emphasize individual intra-psychic treatment^[5] (May 1971) or more community-oriented case management^[6] (Dell’apa et al., 1976; Dietrich, 1979), providing help as defined by the clients^[7] (Bottoms and McWilliams, 1979), or radical social change^[8] (Walker and Beaumont, 1981).

Punitive probation models may place an emphasis on deterrence, retribution, justice, or supervision. These differences make it necessary to characterize any probation service one may wish to evaluate, discuss or compare with other programs.

Indeed, initial efforts to characterize probation programs worldwide have been undertaken by authors in several different countries^[9] (Cartledge et al., 1981; Clear and Rumgay, 1992; Hamai et al., 1995). These studies have generally tended to be based on content analysis of existing legislation and expert knowledge. The findings in them indicate that there are significant differences between the probation services of different countries. This article seeks to contribute to this effort by creating a practical comparative framework for characterizing probation service worldwide.

PROBATION LAWS IN THE UK & INDIA

The first probation statute in England, the Summary Jurisdiction Act of 1879, provided for the release of offenders on their recognizance by courts of summary jurisdiction and codified what was practiced under common law.

The 1887 Probation of First Offenders Act extended these provisions to first offenders convicted of significant crimes. The Probation of Offenders Act of 1907 established supervisory mechanisms, including salaried probation officers.^[10]

This law was superseded by the 1948 Criminal Justice Act, which allowed courts to impose specific requirements on probation orders and clarified many probation procedures.

Subsequent laws have extended probation officers’ responsibilities to include certain classes of offenders released from institutions, expanded community service programs, and established day training centers for probationers. For the first time, the 1972 legislation allowed the combination of mandatory supervision and a suspended sentence.

The Code of Criminal Procedures provided for probation and several States subsequently enacted probation laws however the central government did not pass legislation to bring uniformity to the probation system until 1958. The central statute covers a broader range of offenses than the State laws and requires presentence reports by the probation officer for offenders under 21.^[11]

In India, persons treated under the probation system do not suffer from legal stigmas, such as ineligibility to enter government service. Unlike in the United Kingdom, the Indian judiciary has shown little interest in probation work, and progress has been slow.

A system of hostels for probationers and persons released on bail has been established in Britain, and open prisons could probably alleviate India’s problems of overcrowded prisons. Mechanisms like a National Association of Probation or other Correctional Officers are also required in India to develop professional service standards.

Probation’s main aim is to reform the law breakers permanently, and it involves molding the habits into constructive ways by rehabilitation and reformation. The objective is to give a chance to the anti-social person to cooperate with society willingly, and it will give him social protection and security. It acts as a substitution for imprisonment. The objective of Probation Law is more to reform the offender than punish him.

Probation Officer

A probation official is a court officer who meets with people sentenced to supervised probation on a regular basis.^[12] Generally, these people are perpetrators and lower-level criminals, and most offenders placed on Probation are first-time offenders.

Placing anyone on probation is a way for the court to keep offenders out of jail. Many on Probation live in our neighborhoods, stay home, work, or participate in an educational program and raise their children. The justice system’s objective is to have a person put on Probation as a responsible member of society while retaining contact with their family and community support sources.

Appointment of Probation Officer

Section 13 of the Probation of Offenders Act 1958 states about the appointment of a Probation Officer:

1. A person appointed or recognized as a probation officer by the Government of the State.

2. A person to whom a company recognized on behalf of the State Government has made provision.

3. According to a court, any other person is fit to act as a probation officer in an exceptional case under the particular circumstances of the case.^[13]

Responsibilities of a Probation Officer

◦ A probation officer must meet their client monthly or weekly.

◦ The probation officer may decide the level of supervision that a person requires based on an assessment of risk/needs (minimum, medium, or maximum).

◦ It helps to determine how much assistance a person requires.

◦ Evaluations assess how a person is engaged in a group, often referred to as their community relations. It also determines the likelihood that another person will commit additional crimes.

◦ Any time a probation client visits their probation officer, a report form needs to be filled out.

◦ Meeting with a client allows the probation officer to see where additional support is required for the client to succeed.

◦ Therefore, when a person starts at a maximum supervisory level (weekly meetings), this does not mean they must remain at this level during their probationary period.

◦ Probation officers must regularly revise a probationer’s case plan.

Duties of Probation Officer

Section 14 under the Probation of Offenders Act 1958 gives details concerning the duties of probation officers that, subject to such conditions and limitations as may be imposed, a probation officer is expected to do:

Investigate the circumstances or domestic environment of any person accused of an offence with the intention, by any direction of the court, to help the court determine and report the most appropriately advised approach to his dealing with it.

Supervising the probationers and other persons and seeking suitable employment where necessary.

Counseling and supporting victims in the payment by the court of penalties or costs.^[14]

Advise and assist persons released under Section 4 in such situations and manner

A probation agent’s primary functions are investigation, supervision, guidance, and counseling. As an inspiring, guiding, and supporting probationer, this probation officer facilitates the rehabilitation of the criminal as a law-abiding member of society.

◦Counseling and supervision by a probation officer: Continuous supervision of the probationer’s work is neither necessary nor feasible. Supervision of Probation can, therefore, only be carried out through field visits and intermittent contacts. The Probation Officer will fully understand and prescribe steps to resolve issues that may impede the offender’s re-adjustment in society. He must actively assist the probationer in his rehabilitation process. The probationer is not constantly pressured or controlled.

◦ The probation officer oversees the probationer according to Section 14(b) & Section 18.

Preparation of Pre-sentence Report by a Probation Officer

◦ The preparation of a pre-sentence report for guidance by a Court to grant or not the benefit of Probation is one of the major tasks of a PO entrusted under Section 14 (a) of the Act.

◦ For Section 14(a) of the Act, the PO shall submit relevant facts, the information in the report as requested by the court, following inquiries into the character of a criminal, his social circumstances, and the financial and other circumstances of his family.^[15]

◦ The case shall be outlined with a statement of facts. PO’s case review assists the court in determining the best way to deal with the defendant after it has been found guilty.

◦ If submitted to the Court one day before its judgment, the report shall be treated as ‘confidential’ and delivered to the court on the specified date; it shall be included in a sealed cover.

◦ If the PO determines that the probationer has matured enough that further supervision is no longer required, he will request the release of the bond in consultation with the district probation officer.

Role of the Probation Officer in Decision Making and Rehabilitation.

While deciding on the probationer under his responsibility, the probation officer should remember that his decisions are crucial for the offender and the community’s safety. So that the probationary officer does not resort to violence, he shall assist with social rehabilitation. For this purpose, the probation officer will attempt to secure the probationer:

1. Facilities of training,

2. Opportunities for jobs,

3. Any financial support needed, and

4. Contacts and groups such as Boy Scouts and Girl Guides, youth programs, and civic initiatives for regular citizens and co-organizations.

To monitor progress in rehabilitating discharged probationers during such periods as prescribed by the Chief Probation Superintendent and to submit a follow-up report to the district probation officer and the Chief Probation Superintendent, the Probation officer will continue to keep in contact with discharged probationers where appropriate, aftercare schemes and organizations such as Nav Jeevan Mandals and District Probation and After Care Association will participate .

PROBATION LAWS IN CANADA

In Canada, probation is an exclusively provincial jurisdiction. Probation services exist in all provinces and are responsible for preparing presentence reports that focus on the accused’s background. The reports may suggest that the offender make restitution to the victim or perform some community service as part of their punishment. The report may also recommend that the offender be required to take treatment for alcohol or drug problems or to accept counseling on mental health concerns or social skills. Although authorities concerned with the legal and sociological aspects of law enforcement agree that probation is more effective and less expensive than institutional confinement for the rehabilitation of most offenders, relatively few countries adhere to the principles that underpin its success: careful selection of suitable cases, suspension of sentence for offenders selected for probation, supervision by trained personnel, and release of the probationer at the end.^[16]

PROBATION LAWS IN THE US

Probation can be overseen by either the state or the federal government. The felon’s crime will determine who will supervise their probation.

State probation: Individuals who have been convicted of violating state laws in the United States may be placed on probation. In this case, the state where the felon was sentenced will be in charge of supervising the probation. It is possible if the felon wishes to relocate to another state before the probationary period ends. However, the transfer of probation supervision must be approved by both state governments. If neither state agrees to the transfer, the felon will be unable to relocate.^[17]

Federal probation: Individuals convicted of federal offences will be monitored by the Office of Probation and Pretrial Services. This department’s supervision unit is in charge of supervising people on federal probation.^[18]

You must follow your probation conditions whether you are on federal or state probation. You will be punished if you violate the terms of your probation and it is discovered.

Several people have claimed that federal probation is harsher than state probation. This is because federal officers may have more resources at their disposal. While supervising offenders, probation officers are allowed to use their discretion. As a result, some officers may be more lenient than others.

1. Duration of the probation: Individuals convicted of misdemeanors will be on probation for six months to 1 year. Felons, on the other hand, may be on probation for at least 18 months. If the felon violates the terms of their probation, their sentence may be lengthened.

2. The supervising body: Most misdemeanor probation is supervised by the state or county. Felony probation is usually supervised by the Office of Probation and Pretrial Services.

3. Transfer of sentence: If a felon wishes to move to a different state, the felony probation can be transferred to another state. Misdemeanor probation, on the other hand, cannot be transferred as easily.

4. Terms of probation: Individuals placed on misdemeanor probation have a standard set of conditions they must comply with while on probation. Felons on probation must comply with stricter and modified probation terms.

PROBATION LAWS IN AUSTRALIA

When an offender is found guilty of a crime, they may be sentenced to community service.

Some offenders may also be put on probation instead of being sent to prison. This is usually done for first-time offenders, and it can offer a chance for criminals to show that their behavior has changed for good. The sentence or probation usually comes with additional education, rehabilitation programs, employment, and services designed to aid personal development.^[19]

These programs are designed to help an offender become a productive member of society.Several benefits are typically associated with a person serving their sentence in the community and staying out of prison. It is hoped that the offender will develop a greater appreciation of their offending behavior and become a more responsible community member by staying within the community.

Additionally, the offender can often give back to the community within which the offence occurred. Any offence against a community citizen is considered by the law to be an act against the entire community. This is why the state frequently hires prosecutors to prosecute offenders. Some of the benefits of serving a sentence out in the community instead of prison include:

Employment: The offender can keep their job in most cases, which can help decrease the chance of committing the same crime.

Housing: An offender doesn’t have to uproot themselves and potentially lose their place of residence, and this makes getting back on their feet more efficient.

Family Life: Maintaining a consistent family life can contribute to the offender’s well-being. Still, it also reduces the likelihood of their children growing up in a broken home.

Morale: An offender may end up in prison and emerge with negative influences from more nefarious individuals. This situation is frequently avoidable by serving one’s sentence in the community.

Cost: The cost of putting a defendant to work in the community is much less than it would cost to send them to prison. On average, it only costs about $24 per day to manage community members, and it’s $292 per day for an offender that is sent to prison.^[20]

PROBATION LAWS IN ISRAEL

During the Mandatory period, the British introduced probation in Palestine (1922-48). There are separate adult and youth probation departments, each with six geographic districts. Since probation is not a punishment, administrative responsibility lies with the Ministry of Labour and Social Affairs, and the court exercises no control over probation officers. ^[21]

Adult probation officers conduct psychosocial investigations on offenders, write reports, treat offenders, and serve as parole agents for those who have been released. Juvenile probation officers have similar duties and use casework and group work methods.

The probation service in Israel tends to emphasize the intra-psychic treatment model. According to this model, crime stems from psychological causes, and the goal of probation is to induce intra-psychic change in the offender. As such, probation officers are primarily engaged in therapy to identify the probationer’s pathology and treat it. This probation model differs significantly from that which characterizes probation services in the UK and the USA.

The model that dominates probation in Israel, in contrast to the dominant models in probation services in Britain and the United States, is the individual treatment model. Israel’s dominant individual treatment model is characterized by a limited emphasis on control or surveillance or upon social action and non-therapeutic assistance. By contrast, this model focuses on individual therapeutic methods employed in dealing with probationers, whose offence is explained in psychological terms.^[22]

PROBATION LAWS IN JAPAN

The offender rehabilitation system is essential to Japan’s criminal justice system. It has been developed with the support of private citizens since the governmental framework integrates the public-private partnership concept in criminal rehabilitation.^[23]

It formally started with the Offender Prevention and Rehabilitation Act enacted in 1949 in Japan; however, its history can be traced even before the enactment. Historically, private organizations and volunteers mainly led probation, and this community involvement was preserved in the later criminal law enactments. Juvenile offender’s probation is The 2007 Offender Rehabilitation Act is the latest reform in rehabilitation law. It was enacted to reduce recidivism and aid the rehabilitation of offenders by utilizing the public-private partnership model. The object of the Act is laid down as follows:

“to provide proper treatment to persons that have committed crimes and juvenile delinquents, to prevent them from re-offending or stop their delinquencies and assist them in becoming self-reliant as sound members of society and improving and rehabilitating themselves, thereby protecting society and enhancing the welfare of individuals and the public” [Offender Rehabilitation Act, Art. 1]^[24]

The Act has the following components relating to probation:

1.The Probation Office:

The Offender Rehabilitation Act provides for the creation of the Probation Office to conduct probation supervision, ensure crime prevention, create awareness, provide medical care, etc.^[25]

2.The Probation Officer:

A probation officer is a government official qualified in sociology, psychology, and other related fields. They supervise and coordinate crime prevention activities and measures for crime victims. They work collaboratively with volunteer probation officers known as hogoshi.^[26]

3.Volunteer Probation Officers:

One of the salient features of offender rehabilitation in Japan is the strong voluntary private sector and community participation culture known as the hogoshi system. Volunteer probation officers are referred to as hogoshi. Historically, this culture can be traced to the late 1800s, when private individuals assisted in rehabilitating offenders. They were known as “Probation Staffers” and were legally recognized by the Juridical Rehabilitation Services Act in 1939. ^[27]

The Volunteer Probation Officers (Hogoshi) Act of 1950 brought structure to the modern hogoshi system in Japan. It provides for the missions, service terms, duties, etc. The mission and the hogoshi must ensure the public’s welfare by rehabilitating offenders and creating awareness.^[28] According to the Act, the hogoshi is a part-time national government official assisting the probation officer and the probation office in discharging their duties.^[29] A hogoshi is appointed by the Minister of Justice for a term of two years, renewable until the volunteer’s retirement. Furthermore, the Hogoshi Act also establishes a Screening Commission to aid the appointment and discharge of volunteer probation officers and The Volunteer Probation Officers’ Association, including hogoshi at different administrative levels.

Any member of the public or private organization can become a hogoshi if they:

(a) Possess a good character and conduct in the community;

(b) Have sufficient time and are enthusiastic;

(d) Are active and healthy.

Disqualifications for a hogoshi include:

(a) A person sentenced to imprisonment without work or more;

(b) A politician who aims to overthrow the Constitution of Japan or the government constituted under it.

4.Probation Districts

The Minister of Justice divides districts into probation districts which include one or more administrative units with stipulations regarding the number of hogoshi and their duties.

5.The Rehabilitation Coordinator:

They are government officials with professional certification in psychiatric social work who supervise and coordinate treatment and activities related to the medical framework.

6.Offenders under Japanese Probation Law

Offenders under Japanese rehabilitation law are divided into juvenile offenders and adult offenders. Juvenile offenders are entitled to probation as a protective measure under the Juvenile Act (Art. 24, para. (1), item 1) until their twentieth birthday or the court’s decision.^[31] The court gives adult probationers probation for a minimum of one year and five years.

PROBATION LAWS IN CHINA

Criminal Probation in China takes on the name of “suspended sentence.” In a criminal trial, the court, according to the criminal circumstances and performance of the guilty plea, prescribes a certain probation period and suspends the execution of the sentence. A system in which the original sentence will not be executed if certain conditions are met during the probation period. So, a suspended sentence is the conditional non-enforcement of the sentence imposed.

The probation period refers to a specific period during which a prisoner whose sentence has been suspended is inspected. The probation period for probation varies according to the sentence imposed. Article 73 of the Criminal Law of the People’s Republic of China stipulates that the test period is as follows:

The probation period for probation for criminal detention is not less than two months, not more than one year, and not less than the original sentence.^[32]
The probation period of probation for fixed-term imprisonment is not less than one year, not more than five years, and not less than the original sent.^[33]

According to Article 72 of the “Criminal Law,” a criminal who has been sentenced to criminal detention or fixed-term imprisonment of not more than three years may be declared “suspended” if he meets the following conditions at the same time:

The circumstances of the crime are relatively minor;
showing repentance;
There is no danger of re-offending;
Declaring a suspended sentence has no significant adverse impact on the community where he lives.^[34]

Criminals who are declared suspended shall abide by the following provisions:

Abide by laws and administrative regulations, and obey supervision;
Report their activities under the regulations of the inspection agency;
Comply with the regulations of the inspection agency on receiving guests;
Leaving the city or county where they live or moving to another place should be reported to the inspection agency for approval.

Suppose a criminal whose sentence has been suspended commits a new crime during the probationary period of suspended sentence or is found to have committed other crimes before the judgement is announced. In that case, the original judgment shall be revoked, and a judgment shall be made on the new crime or the discovered omission of the criminal. The combined punishment for several crimes re-determines the punishment to be carried out on them. Suppose a criminal whose sentence is suspended violates laws, administrative regulations, or the supervision and management regulations of the public security department of the State Council on a suspended sentence during the probation period of suspended sentence. If the circumstances are severe, the suspended sentence shall be revoked, and the original sentence shall be executed.^[35]

CONCLUSION & THE WAY FORWARD:

Promoting probation internationally is a long process of research, training, and networking, including communication and dissemination of information. It is in the latter context that this article finds its raison d’être. The debate on criminal law has always been characterized by a shift from absolute to relative theories of penology.

Indeed, punishment should not be an end in itself, and that would be tantamount to advocating revenge. In the past, growing skepticism toward these ideas paved the way for developing alternative ideas to imprisonment. There is no doubt that a proportion of prisoners are beyond restoration, whatever is done to rehabilitate them. However, there is no doubt that the great majority of offenders can change and become responsible and productive citizens. Probation presents such a promising and exciting alternative.

Imprisonment is still considered the most appropriate sentence for several crimes and offenders, experiences in countries where probation is an option have indeed demonstrated that it is far less costly and far more humane than imprisonment. Non-custodial sanctions remain an area of interest and hope for a more rehabilitative, less punitive, and less costly way of controlling and preventing crime.

A well-thought court probation plan can, in many instances, do more to protect the public than committing the offender to prison. It should be clearly understood, on the other hand, that the granting of probation must remain within the sole discretion of the court. However, the working relationship between the courts and the probation officer is also significant. For this purpose, there must be trust and frequent communication between the two sides.

Probation is not the only answer to the crime problem, but it is an integral part of the whole solution. There are several reasons why probation is to be viewed favorably: over-population of prisoners is one of them, sanitary reasons, age, and social conditions, are other reasons; it also dramatically reduces the financial costs to the public treasury for an effective control system, it affirmatively promotes the rehabilitation of the offender and offers the offender an opportunity to redress the community from the harm done by the offence.

ENDNOTES

^[1] Weiss, I., 2001. The Ideology, Policy and Practice of Adult Probation Service in Israel. British Journal of Social Work, 31(5), pp.775-789.

^[2] Ibid.

^[3] Ibid

^[4] James, A., 1995. Probation Values for the 1990s – and Beyond?. The Howard Journal of Criminal Justice, 34(4), pp.326-343.

^[5] Weiss, I. and Wozner, Y., 2002. Ten Models for Probation Supervision Compared Across Eight Dimensions. Journal of Offender Rehabilitation, 34(3), pp.85-105.

^[6] Ibid.

^[7] BOTTOMS, A. and McWILLIAMS, W., 1979. A Non-Treatment Paradigm for Probation Practice. The British Journal of Social Work,.

^[8] Walker, H. and Beaumont, B., 1981. Probation work. Oxford: B. Blackwell.

^[9] Ibid.

^[10] Bhattacharyya, SK., 1979. Probation Legislation in Britain and India. Social Defence, pp. 17-27.

^[11] Bhattacharyya, SK., 1979. Probation Legislation in Britain and India. Social Defence, pp. 17-27.

^[12] Probation of Offenders Act, 2.

^[13] Probation of Offenders Act, 13.

^[14] Probation of Offenders Act, 14.

^[15] Probation of Offenders Act, 14(a).

^[16] Ontario.ca. 2022. [online] Available at: <https://www.ontario.ca/page/probation-and-parole#:~:text=A%20probation%20order%3A,or%20terminates%20the%20order%20early.> [Accessed 25 June 2022].

^[17] Justia. 2022. Parole and Probation. [online] Available at: <https://www.justia.com/criminal/parole-and-probation/> [Accessed 25 June 2022].

^[18] Ibid.

^[19] NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE, 1998. Probation: An Overview.pp. 1-5.

^[20] Benjamin Leonardo: The Defenders. 2022. UNDERSTANDING PROBATION AND PAROLE IN AUSTRALIA. [online] Available at: <https://www.thedefenders.com.au/understanding-probation-and-parole-in-australia/> [Accessed 25 June 2022].

^[21] Weiss, I., 2001. The Ideology, Policy and Practice of Adult Probation Service in Israel. British Journal of Social Work, 31(5), pp.775-789.

^[22] Ibid.

^[23] REHABILITATION BUREAU MINISTRY OF JUSTICE JAPAN, 2021. Offender Rehabilitation of Japan. Tokyo, pp. 1 – 5.

^[24] Offenders Rehabilitation Act. 1.

^[25] Ibid.

^[26] Ibid.

^[27] REHABILITATION BUREAU MINISTRY OF JUSTICE JAPAN, 2021. Offender Rehabilitation of Japan. Tokyo.

^[28] Volunteer Probation Officers (Hogoshi) Act, 1.

^[29] Offender Rehabilitation Act, 32.

^[30] Ibid.

^[31] Juveniles Act, 24.

^[32] Criminal Law of the People’s Republic of China, 73.