Probation and Parole: History, Goals, and Decision-Making

Probation and parole agencies have always been responsible for two functions. First, the agencies must assist with the decision process. For probation officers this is the investigative aspect of their work and it involves assisting the court in the decision to sentence to probation in lieu of a prison sentence. For parole, the decision must be made to release an inmate from prison. The second responsibility of both agencies is to provide supervision for those offenders who are judged suitable for release to the community.

The decision to grant probation. The majority of individuals convicted of a crime are not given a prison sentence. Fifty-four of every one hundred felony arrests result in a conviction. Of those convicted, twenty-two are given a probation sentence, eighteen a jail sentence and fourteen are sent to prison (Boland, Mahanna, and Stones). Community corrections officials are critical players in these sentencing decisions. They must assess the level of risk offenders present to the public safety and make recommendations to the court about the appropriate sentence.

Probation officers often begin the investigative process during the pretrial period by examining an offender's background and history to assist in determining whether a defendant can safely be released on his own recognizance or bail. The report from the officer is frequently the primary source of information the court uses in this decision. At this point the court may defer adjudication or offer pretrial diversion and require probation supervision.

Once an offender is convicted, the probation officer prepares a presentence investigation report (PSI). The PSI is the major source of information on which courts base sentences. The primary function of the PSI report is to provide the sentencing court with timely, relevant, and accurate data about the offender. Such information is used to determine the sentence and classify offenders as to risk and therapeutic needs. The information is used to plan programming in institutions and in the community, to set conditions of supervision, and for release planning.

In determinate-sentencing jurisdictions the statutes specify similar sentences for offenders convicted of similar offenses. The PSI in these jurisdictions places the emphasis on offense-based reports where the dominant focus is on the offense and the offender's culpability in the offense. Where the court uses sentencing guidelines to determine the appropriate sentences the emphasis of the report is on providing verifiable information on the defendant's criminal record and aggravating or mitigating circumstances. Unlike the PSI provided by the indeterminate-sentencing jurisdictions, the primary focus is on the crime and not the criminal.

Typically, the PSI includes information on the seriousness of the crime, the defendant's risk for recidivism, the defendant's circumstances (living arrangement, employment, family), the legally permissible sentencing options, and a recommended sentence. Today with the increased concern with victim issues, the PSI may contain a victim impact statement that describes the impact of the offense on identifiable victims or the community.

Over 90 percent of all felony cases are eventually resolved through negotiated pleas so the major decision of the court is whether or not to imprison the offender. The PSI is critically important in this regard. Research has shown that the judge's knowledge of the case is limited to the information contained in the PSI. Furthermore, there is a high correlation between the recommendations provided by the probation officer in the PSI and the judge's sentence. Such recommendations are accepted between 65 and 95 percent of the time.

Eighty percent of all adults convicted of misdemeanors and 60 percent of all adults convicted of felonies are sentenced to probation or a combination of probation and jail. Thus, two-thirds of all convictions result in a sentence of probation. Research shows that people are less likely to be given probation if they: have more conviction counts, have more prior convictions, were on probation or parole at the time of arrest, were drug addicts, or used a weapon in the crime or seriously injured victims (Petersilia and Turner).

For those who receive probation, the court must also decide how to impose the sentence. Commonly, the judge gives a jail or prison sentence and then suspends the sentence in favor of probation. The jail or prison term is held in abeyance to be used if the offender fails to abide by the conditions of probation. About 50 percent of all probations sentences are suspended in this way (Latessa and Allen, 1997). The judge also imposes conditions that the probationer is required to follow during the community supervision.

Parole Release. The parole board (or parole commission), an administrative body, is empowered to decide whether inmates shall be conditionally released from prison prior to the completion of their sentence. The board is also responsible for determining whether to revoke parole and to discharge from parole those who have satisfactorily completed the terms of their sentence. In most jurisdictions, once the parole board makes the decision to grant parole, the responsibility for supervision in the community is turned over to parole officers who are supervised by the department of corrections.

The decision to grant parole is usually based on a review of the individual offender's case file (including the PSI) and an interview with the inmate. Eligibility for parole is determined by statutory requirements and is usually based on the completion of the minimum sentence less any good-time credits earned during incarceration. Technically, parolees are still prisoners who can be recalled to serve the remainder of their sentence in prison if the parole board decides they have not fulfilled the terms of their release.

Parole boards have traditionally had great leeway in deciding when to grant parole. During the hearing stage when the board met with the inmate they were expected to observe whether the prospective parolee demonstrated his or her rehabilitation, a willingness to accept responsibility, and self-understanding. Decisions were not based on formally articulated criteria or policies but on subjective and intuitional judgments of the individuals on the board. Few courts have reviewed parole decision-making and those that have appear to agree with the contentions of paroling authorities that to impose even minimal due-process constraints on the decision-making process would interfere with the board's goals of diagnosis and prediction (Cromwell and Del Carmen).

Most parole boards appear to accept an incapacitation or a modified justice model when making release decisions (Petersilia, 1998). They reported that the single most important factor they considered in the release decision was the nature of the current offense (Runda, Rhine, and Wetter). Following this they considered any history of prior violence, prior felony convictions, and possession of a firearm during the crime. These indicators of dangerousness were used to determine how much time an offender should serve prior to parole. Board members did not consider any factors related to rehabilitation or program participation to be important to consider in making parole decisions.

Critics of parole release decisions characterize the system as arbitrary and capricious. This is one of the reasons some jurisdictions have abolished parole. Other jurisdictions have instituted guidelines to be used to structure decisions without completely removing discretion. The parole guidelines used by the U.S. Parole Commission for making parole release decisions served as a model for parole guidelines developed in many other jurisdictions. The commission developed a system for decision-making based on the seriousness of the offense and the risk of recidivism. An actuarial device, the Salient Factor Score, was used to determine the potential risk of a parole violation. Decision-makers then use the guidelines to determine the customary time to be served for a range of offenses based on the severity of the offense. Decision-makers may deviate from the guidelines but they are required to explain the specific factors considered in the decision to override the score. Other jurisdictions have developed "risk assessment" or prediction instruments to assist parole boards in making decisions about release.

The move toward the justice model of corrections and the use of incapacitation has led to questions about the viability of parole, but for different reasons. Justice advocates argue that the indeterminancy inherent in the parole system is unfair because the board must make decisions based on what will occur in the future. Furthermore, they assert it is impossible to tell when an offender is rehabilitated. Incapacitation advocates also argue against parole. From their point of view, a sentence to prison prohibits an offender from committing more crimes in the community; parole release does not. Both of these perspectives have been influential in changing sentencing in many jurisdictions, and in the past thirty years sentencing changes have dramatically affected the use of parole. Prior to 1975 sentencing codes of every state had some form of indeterminancy. Since then, every state in the nation has revised, replaced, or seriously considered determinate sentencing and the abolishment of parole (Petersilia, 1998). This has led to a dramatic decline in the percent of state prisoners released through discretionary parole (Bureau of Justice Statistics, 1996). In 1977 over 70 percent of offenders released from prison were released on parole. By 1994, this was reduced to 37 percent. An increasing percent of the releases were through mandatory release and expiration of sentence.