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

Origins Of Probation And Parole

Despite the differences between probation and parole, there are many similarities between the two types of community corrections. Both were initially developed as methods to mitigate the severity of punishment.

The origin of probation. Probation as it is known today can be traced to the use of several judicial practices exercised in English and later, American courts. "Release on recognizance" or bail, for example, allowed defendants who agreed to certain conditions of release to return to the community to await trial. After setting bail, judges sometimes failed to take further action (Abidinsky). Thus, similar to modern-day probation, defendants were released to the community conditionally. If they failed to meet the condition of release, they were faced with the threat of revocation. And in some instances, they were spared further contact with the criminal justice system.

In English courts, judicial reprieve empowered judges to temporarily suspend either the imposition or execution of a sentence in order to permit a defendant to appeal to the Crown for a pardon (Abidinsky; Allen et al.). Although suspension was intended to be temporary, further prosecution of such cases was sometimes abandoned (Allen et al.). Judges in the United States exercised a similar power, enabling them to suspend the sentence of a convicted defendant if justice had in any way been miscarried. The use of judicial power to suspend a sentence was extended to cases in which there existed no miscarriage of justice. Sentences were suspended seemingly to give defendants another chance. Documentation of this practice in Boston dates back to 1830. Such suspensions were challenged near the turn of the twentieth century in a New York state court (1894) and later in the Supreme Court (1916). Both courts held that absent a legislative directive judges did not possess the authority to suspend sentences.

During roughly the same time period, a shoemaker-philanthropist in Boston, named John Augustus, began the practice of bailing offenders out of court and assuming responsibility for them in the community. Bailing hundreds of offenders between the years 1841 and 1859, John Augustus is most often credited as being the founder of probation in the United States. Augustus bailed the offenders out after conviction. As a result of this favor and with further acts of friendliness such as helping the offender obtain employment and aiding the offender's family in other ways, the offender was indebted to Augustus and was willing to abide by agreements. After a period of supervision in the community, the bailed offenders returned to court armed with Augustus's sentencing recommendations. Due to his efforts John Augustus's charges were typically spared incarceration.

John Augustus's probation bears much resemblance to probation as it is practiced today. Augustus took great care in deciding which prisoners were promising candidates for probation. He considered the person's "character," age, and factors that would impact the offender after release. In dubious cases, he required the offender to attend school or to be employed. Thus, Augustus's activities provided the origins for the presentence investigation as well as common conditions of present-day community supervision such as education or employment.

Not long after John Augustus published an account of his work in 1852, the Massachusetts legislature in 1878 passed a bill authorizing the city of Boston to hire a probation officer (Abidinsky). The practice of probation spread through the state of Massachusetts and was later adopted by numerous states around the turn of the twentieth century. Between 1897 and 1920, for example, twenty-six states and the District of Columbia passed adult probation statutes (Champion). By 1927, all states except Wyoming had adopted some type of probation law for juveniles. However, probation was not available for all adult offenders in the United States until 1956.

Regardless of whether the origins of probation are traced to judicial reprieve or to the work of John Augustus, it is clear that the guiding philosophy of probation was rehabilitation. John Augustus leaves no room for doubt, stating: "It became pretty generally known that my labors were upon the ground of reform, that I confined my efforts mainly to those who were indicted for their first offence, and whose hearts were not wholly depraved, but gave promise of better things . . ." (Augustus). Probation implies "forgiveness" and "trial," or a period during which offenders may prove themselves capable of obeying the law and abiding by society's norms. Court opinions as well as state statutes generally affirm that the overarching purpose of probation is rehabilitation (Brilliant).

Origins of parole. Prior to the mid-nineteenth century most offenders were sentenced to flat or determinate sentences in prison. Under this type of sentencing, an offender received a specific amount of time to serve in prison for a specific crime. This created a major problem when prisons became crowded. Governors were forced to issue mass pardons or prison wardens had to randomly release offenders to make room for entering prisoners.

Credit for developing early parole systems is usually given to an Englishman, Captain Alexander Maconochie, and an Irishman, Sir Walter Crofton. In 1840, Maconochie was appointed governor of the notorious English penal colony at Norfolk Island off the coast of Australia. At the time, English criminals were being transported to Australia and those sent to Norfolk Island were considered "twice condemned"; they had been shipped to Australia from England and from Australia to the island. Conditions were so bad that, allegedly, men who received reprieves from the death penalty wept. The first thing Maconochie did was to eliminate the flat sentence structure used in Norfolk at the time of his arrival. Instead of requiring convicts to serve their sentences with no hope of release until the full sentence had been served, Maconochie initiated a "mark system" whereby a convict could earn freedom by hard work and good behavior in the prison. The earned marks could be used to purchase either goods or a reduction in sentence. Prisoners had to pass through a series of stages beginning with strict imprisonment through conditional release to final freedom. Movement through the stages was dependent upon the number of marks accredited.

Like Maconochie, Sir Walter Crofton believed the length of the sentence should not be an arbitrary period of time but should be related to the rehabilitation of the offender. After becoming the administrator of the Irish Prison System in 1854, Crofton initiated a system incorporating three classes of penal servitude: strict imprisonment, indeterminate sentences, and tickets-of-leave. This indeterminate system or Irish system, as it came to be known, permitted convicts to earn marks to move from solitary confinement to a return to the community on a conditional pardon or ticket-of-leave.

Zebulon Brockway, a Michigan penologist, is usually credited with initiating indeterminate sentences and parole release in the United States. Similar to Maconochie and Crofton, Brockway believed inmates should be able to earn their way out of prison through good behavior. Thus, they should receive a sentence that could vary in length depending upon their behavior in prison. In his opinion, this had two advantages. First, it would provide a release valve for managing prison populations. Second it would be valuable in reforming offenders because they would be earning release by demonstrating good behavior.

Brockway had the opportunity to pioneer this proposal into practice in 1876 when he was appointed superintendent of Elmira Reformatory for youthful offenders in New York. Inmates at Elmira were graded on their conduct, achievement, and education. On the basis of their behavior in the reformatory, they were given parole. Volunteer "guardians" supervised the parolees and submitted written reports documenting their behavior in the community. A condition of the parole was that the offender report to the guardian each month.

Thus, by the turn of the century the major concepts underlying parole were in place in the United States: (1) a reduction in the sentence of incarceration based on good behavior in prison; (2) supervision of the parolee in the community; and (3) indeterminate sentences. By 1901, twenty states had parole statutes and by 1944, every jurisdiction in the United States had some form of parole release and indeterminate sentencing.

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Law Library - American Law and Legal InformationCrime and Criminal LawProbation and Parole: History, Goals, and Decision-Making - Origins Of Probation And Parole, Changing Goals Of Community Corrections, Neo-classical Models, Probation And Parole Decision-making