“We cannot incarcerate people as we keep lager beer in the cellar. We must utilize the time of their confinement for resocialization or rehabilitation efforts.”
Mueller: 1962
About The Author
Mincy M Chandi is a 4th semester student pursuing 3 year LLB at Government Law College, Thiruvanathapuram.
INTRODUCTION
The cornerstone of a traditional penal system remains imprisonment, not probation or other non-custodial penalties. The fundamental indicator of the severity and certainty of punishment is still imprisonment. The punishment paradigm changed to become prison-centric once imprisonment replaced other forms of punishment based on the principles of total elimination (such as the death penalty) or spatial separation (community exclusion; travel abroad), as well as corporal punishment and numerous non-custodial restitution and integration-oriented sanctions. The importance of incarceration should be investigated from two perspectives: the perspective of its volume of use and that of its use as a benchmark in criminal justice and penal philosophy. With recidivism and prison overcrowding becoming major issues for most legal systems, many states have come to the realization that developing non-custodial measures is essential when dealing with offenders. The reasons for this are that the sentencing philosophies of retribution and deterrence, which dominated the criminal justice system worldwide before the 20th century, failed.
PROBATION SERVICE IN THE UNITED STATES OF AMERICA
The concept of probation originated in the United States in 1841, when JohnAugustus, a Boston cobbler, convinced a judge in the Boston Police Court togrant him temporary custody of a convicted criminal, a “drunkard,” in order to assist the man in appearing rehabilitated at the time of sentencing. Federal probation laws were not established until much later, despite the fact that many states had passed probation laws, starting with Massachusetts .Suspended sentences have been used by federal courts for many years as a kind of probation. The United States Department of Justice, on the other hand, became less in favor of the suspended sentence, arguing that it violated the president’s constitutional pardoning authority. In Ex parte United States Petitioner Mandamus Judge Killets (also known as the Killets Case), the US Supreme Court ruled in 1916 that Federal JudgeKillets lacked the authority to revoke a sentence permanently. Probation laws are one remedy recommended by the Supreme Court. As a result of this ruling, the National Probation Act of 1925 was passed, granting judges the authority to postpone the imposition of jail time in favor of probation.
Federal courts (apart from the District of Columbia) are required to implement a probation system under the Probation Act of 1925. It allows judges to put defendants on probation for a set amount of time under the most favorable terms and conditions and to postpone the imposition or execution of sentences. Additionally, the Act gave courts the authority to designate one salaried probation officer and one or more unpaid supervisors. The U.S. Department of Justice’s Office of the Attorney General was initially in charge of overseeing federal probation. The superintendent of prisons, who oversaw the parole and prison industries, had direct supervision authority. In 1940, the Federal Bureau of Prisons gave the Administrative Office of the U.S. Courts general control over the probation system, altering the previous setup. In order to decrease crime committed by those who are released into the community while they await trial and to minimize needless pretrial detention, the Congress enacted the Speedy Trial Act in 1974 and established pretrial services agencies in ten judicial districts.
Pretrial services officers
- Pretrial services officers supervise defendants released pending trial.
- Collaborate with accused individuals “pre-trial,” following their federal criminal charges, and during their pending trial.
- Assist in making sure that defendants who are released into the community prior to trial don’t commit any crimes while they’re waiting to go to court or as needed.
Probation officers
- Collaborate with convicted federal offenders “post-conviction,” that is, following their release from prison and subsequent trial.
- Facilitate the enforcement of law compliance among released offenders to prevent them from committing new crimes.
Officer assistants
- Assist probation and pretrial services officers with their investigative and oversight responsibilities by offering guidance and technical support across a variety of topics.
- Complete case-related tasks like information gathering, report writing, and letter drafting.
- In order to lessen the danger that defendants and offenders pose to the public; officers oversee them in the community.
PROBATION SERVICE IN IRELAND
As a division of the Department of Justice, the Probation Service in Ireland works to reduce victimization and promote safer communities by managing and accessing offenders effectively, confronting their behavior, and assisting ex-offenders in reintegrating into society.The Probation Service works to achieve a safer and fairer Ireland by:
- Ensuring the execution of court orders
- Lowering the possibility of public injury
- Lowering the chance of reoffending
- Making amends for the harm caused by criminal activity (reparations and restorative justice).
The Probation Service delivers services to contribute to public safety, improve communities, and support offenders to change. Its role in this context is to:
- Work with communities and neighborhoods to manage offenders so as to reduce offending behavior.
- Challenge the offending behavior.
- Facilitate the integration of ex-offenders into society so that they do not re-offend.
- Manage through effective partnerships between offenders and those at risk of causing harm.
For both adult and juvenile offenders, the service offers probation supervision, community service, community return, offending behavior programs, and specialized support services. In order to help with inmate reintegration and the rehabilitation of offenders, it also offers probation services to jails and other correctional facilities. Every year, the Service is in charge of overseeing 15,000 offenders who are housed in communities across the country.
Probation Assistant (Executive Officer)
New to the Probation Service is the position of Probation Assistant (Executive Officer). In a collaborative setting, a probation assistant’s job is to help with appropriate interagency work as well as the oversight and management of criminals. A probation assistant may be assigned duties in courts and communities, prisons or places of detention, young person’s probation, or other particular assignments that may arise in the service.The Probation Service’s current strategic priorities include the following areas that are likely to have an impact on the work of a probation assistant: ensuring that community sanctions continue to be a relevant and workable alternative for the court; expanding the range of community sanctions and approaches to offender rehabilitation available to the Department of Justice, the Courts, and other relevant authorities; creating new avenues for collaboration with our criminal justice partners, including a greater integration of work practices in the management of offenders; creating a more victim-sensitive approach in our work with offenders as well as advancing restorative justice interventions and services for victims.
PROBATION IN THE REPUBLIC OF KAZAKHSTAN
On December 30, 2016, the Law of the Republic of Kazakhstan “On Probation” was adopted. The Law “On Probation” is based on the many years of experience the penal enforcement system has had and the requirements of the new norms of the Criminal Code (Criminal Code of the Republic of Kazakhstan), the Criminal Procedure Code of the Republic of Kazakhstan, and the Penal Enforcement Code of the Republic of Kazakhstan with regard to probation issues. It also considers the expertise of international and national non-governmental human rights organizations, the Public Council regarding the activities of internal affairs bodies, and legal experts.
The law distinguishes and provides four types based on probation.
- Pretrial probation: a set of procedures and actions for putting together a report prior to trial; Pretrial probation is imposed voluntarily on suspects and/or accused parties, minors; the disabled; women: aged 58 and above; pregnant women; adults with young children under the age of three. Men: aged 63 and above; an adult raising young children under the age of three alone. People who have been placed under house arrest or other preventive measures are not eligible for pre-trial probation.
- Sentencing probation is an action and a collection of procedures for establishing and carrying out probation control with regard to individuals who have been sentenced to imprisonment or probation, as well as for offering them social and legal support.
- Penitentiary probation refers to a program of activities and protocols designed to assist those serving prison sentences in institutions of the penal enforcement system in reintegrating into society.
- Post penitentiary probation is a program and set of actions designed to provide social and legal support to people who have been released from correctional facilities while also establishing and enforcing probation control over them.
PANDEMIC ALTERNATIVES FOR IMPRISONMENT
- Regarding supervision, many nations, including the Netherlands, have switched to a “blended” form of probation (online and in-person contact) created during the pandemic and will be further refined for use in the future. This could be advantageous for the client and the probation service in terms of efficiency, but the effect of less in-person contact has not yet been assessed.
- In Chile before the pandemic, no office in the country’s capital, Santiago, reported meeting clients less than once a month, with most (58%) meeting 2-3 times a week. Since the pandemic, however, almost half reported meeting clients less than once a month, with an increasing reliance on phone calls and videoconferencing. While most people serving probation in the country (70%) have a home phone or cell phone, less than half have access to emails, smartphones, or video conference facilities, and less than a quarter have a computer with access to the internet at home, posing difficulties in this new modus operandi.
- Non-custodial measures and sanctions increased by 3% throughout all of Europe in 2019 and 2020. All countries, with the exception of eight, had high rates of both prison and probation populations. This was revealed by analyzing the ratio between the populations of the two groups. It appears from this that community punishments and measures are applied in addition to, rather than as a substitute for, incarceration. If infractions result in detention, then an increase in non-custodial sanctions may also result in higher rates of incarceration. This has been the case in the US, where the most recent data indicates that nearly one in five (18%) of all inmates are being held due to a probation or parole violation.
- Reducing the number of prisons associated with COVID-19 has been shown to be more sustainable in nations where alternative forms of detention or reform programs are already in place. The country-wide trend in Ireland to shift away from short sentences and toward more community service orders and non-custodial sanctions was mirrored in the 15% decrease in numbers obtained as a result of the COVID-19 release measures. Research reveals that the availability of current alternatives to incarceration has made it possible to respond to crises in prison population reduction more successfully. Changes to substitute non-custodial sentences for short ones have been made; these changes are unrelated to COVID-19. A proposal to make it simpler for those serving short prison terms to ask for alternative forms of supervision has been approved by the federal parliament of Additionally, it will no longer be possible for judges to sentence people to prison for very minor offenses like vandalism and some traffic infractions.
- In Kuwait, those sentenced to less than three years in prison are now eligible to serve their sentence at home under electronic surveillance.
- In Sweden, probation officers utilize a database program in which facts are inputted to form a supervisory plan. Sweden started a ‘risk ward’ where individuals who are sentenced to more than four years of imprisonment are sent. This place has been designed to meet the offenders’ needs.
HOW CAN INDIA IMPROVE THE PROBATION SYSTEM?
The imperative need to bridge the gap between probation theory and practice in India is underscored by the limited application of non-custodial measures despite legal provisions. To address this, a comprehensive regulatory framework is recommended, advocating for the establishment of probation departments in local government offices and courts. Suggestions include the creation of a professional probation unit as in Malta , risk assessment involving categorizing offenders into high- and low-risk offenders for calculating the probability of reoffending, the gravity of the offense, and the response to risk, modernization of probation laws, and innovative approaches such as “double team supervision” mostly for sexual offenders and hard-core criminals can be tried as followed in Canada and religious institutions can also be involved. Additionally, the adoption of Japan model volunteer-driven probation services, community involvement, and political commitment are suggested. The importance of research, training, and access to data for policymakers to optimize the effectiveness of probation as a non-custodial sentencing option is to be emphasized. Finally, the use of volunteers should be consistent with the United Nations Standard Minimum Rules for Non-Custodial Measures, known as ‘the Tokyo Rules’.
In tandem with these recommendations, there is significance of aligning new legislation, such as the Model Prisons Act 2023, with evolving global trends in probation services. The emphasis on community engagement, political support, and inter-agency collaboration emerges as crucial for promoting probation effectiveness. Overall, the recommendations span legal, organizational, and community-based measures to enhance the efficiency and effectiveness of probation in the country.
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