Justice and Modern Probation - Case Study Example

Running Head: Justice…. Justice Order#: 316505 Topic: Justice Introduction: When an offender is constantly nagged and abused, condemned and ostracized by the society, he turns into a viler and bitter individual. Even showering pity will not help him one bit. Heartfelt care and concern, an understanding approach, and tender regard for his feelings are necessary prerequisites to heal his wounds .Coupled with this, we need to learn to forgive and forget his past in order to help him build a new identity. The inner core of every human being is essentially good, even that of the worst villain. It just needs to be revealed to help him align with his true personality. Steps need to be taken to arrest the downward march of an individual and help him towards the upward march, to make him a worthy individual, proud and responsible citizen. Assimilation of an offender in the mainstream of society is a difficult process but an attainable reality. The probation procedure has the intrinsic strength to provide tangible solutions, in creating a relaxed atmosphere in the crime world. 1. What are the aspects of the system used by John Augustus that remain a basic part of modern probation? The probation procedure is the outcome of the necessity mentioned in the introduction above—the basic concern of the society to help an individual facing legal action. An individual takes to crimes, walks on the unlawful path due to a variety of reasons. Compelling circumstances and mind-set, pushes one onto the track of self-destruction. Apart from the offenders, many innocents also happen to be in the prison, being the victims of the travesty of truth and personal animosities. Prison is the tortuous place for an innocent to live in, caught in the wrong end of the law. The most systematic suppression is caused to his spirit within the four walls of the prison. During the pre-conviction period, what hurts the inmate most is the slow-moving process of law and the unhelpful attitude of the law-enforcing authorities. He has no remedies against all the adverse factors due to resource-crunch and the will-crunch. Moreover, all laws, just because they are the laws of the land, are not faultless. A difficult law implemented in a worst manner, is the ultimate calamity for the under-trial. Probation becomes all-important under these trying circumstances when the alleged offender goes through the processes of judicial interventions and finally convicted. John Augustus, “Father of Probation,” is known as the first true probation officer. Augustus was born in Woburn, Massachusetts, in 1785. Trust an offender and give an opportunity to reform-this is the basic underlying principle of probation. Augustus saw distinction between the first offenders and the habitual offenders. He believed in helping the offenders rather than giving mindless punishment to them. “Augustus selected for supervision men who were first offenders. He made a thorough examination of each individuals history. The same is done today through pre-sentence investigations. Offenders under Augustus supervision were either sent to school or supplied with honest work. He also made impartial reports to the court and maintained a careful register of all his cases. Each of these things is to this day, part of the procedure of the community supervision office.” (epcounty.com….)The art and science of probation has improved tremendously since the first probation secured by John Augustus in the year 1841. 2. In addition to statutory provisions, what elements (and why) can affect the granting of probation? Since the first probation secured by John Augustus, the subject of probation has been going through the churning process and periodical changes/amendments were carried out to the procedures. Notwithstanding the statutory provisions, the human element involved in implementing the procedures plays an important role. Punishment of the offender is not the final objective; reformation is! No two offences are alike, no two offenders are alike. Between 1920s and 1950s, the field of psychology saw major advancements. This made probation officers recast their procedures. From moral leadership, the emphasis shifted to therapeutic counseling. The role of the officer changed to a clinical social worker and his objective was to assist the offender to sort out his psychological and social problems. The offender actively involved in the processes of treatment. His rehabilitation and assimilation in the mainstream of the society became the main goal and for this, officers used their judgment in each case and developed special treatment approach suitable for a particular individual. What led the offender to the area of crime? -- This was the moot question. “The important element is an attempt to establish trust between the community and the probation service. This will require a very real engagement with the community over its concerns, but not an approach that either identifies or names offenders. The more the community is involved in the process of reintegration the more it will be able to manage the diverse nature of the task and provide appropriate and proper support for those returning to the community.”(Mair, 2004, p.225) Granting of probation is a responsive procedure related to the jurisprudential analysis of the subject of crime as a whole. Modern Criminal Jurisprudence has positively affirmed that no criminal is born; he is made. The socio-economic milieu—poverty and illiteracy are the dominant factors that push an individual to the path of crime. Probation and parole are part of the total system designed for reformation and rehabilitation of an offender. 3. How does a preliminary probation violation hearing differ from a revocation hearing? Problems do arise even in the well-intentioned and noble area of probation. A preliminary and final revocation of probation hearings are needed by Due Process. It is for the judicial body overseeing the revocation hearings to determine if the parolee or the probationer requires counsel. If representation is denied, the same needs to be documented in the record of the Court. The probation sentence of an individual can not be revoked without a proper hearing. If a violation of probation is committed, the sentence can be revoked after holding a final violation hearing. Probation violation is a legal question tempered with personal opinion. The Parole Officer’s view of the probationer’s conduct can not be the unilateral one. The difference needs to be resolved by due process, before the revocation becomes final. Finding the fact and the informed use of discretion, need to be appropriate and without bias. The probationer’s liberty can not be taken away unjustifiably. In the revocation hearing, the State has to ensure that it is not interrupting a concerted effort for rehabilitation of the probationer and does not in any way prejudice the safety of the community. In a revocation hearing the probationer can not take the plea that an arguable defense would be perfect only by availing the services of a lawyer. One must remember that the right of a probationer is restricted, during the process of revocation hearing because he has been convicted of a crime, after meeting the due processes of law. Granting of probation is a subsequent act, in pursuance of the ideal of social justice for reformation and rehabilitation of the concerned offender. “Research and inspection have consistently highlighted failure to enforce community sentences and post-release supervision as one of the probation service’s most important weaknesses. The recent Home Affairs Committee report Alternatives to Prison Sentences emphasized that, if community sentences are to be credible, they must be enforced stringently. Ministers want to see early and significant improvements in performance in this regard.” [DOC] PROBATION….) 4. What are the three theories of probation that were overturned by the Supreme Court? Practical aspects related to implementation of probation do at times pose serious problems, and judicial or executive intervention becomes necessary. The conclusions of Kansas Supreme Court as for issues related to probation are as under: “1. Probation from serving a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right. The procedure to be followed when a judge acts upon a defendants violation of a condition of probation is set out in K.S.A. 22-3716. 2. Implicit in our statutory provisions for probation is the understanding that, unless required by law, the court need not grant probation, but if it does so, the probationer is entitled to retain his or her liberty as long as he or she abides by the conditions on which probation is granted. 3. To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probation, it is not necessary that the commission of the violation be established by proof beyond a reasonable doubt. Rather, a preponderance of the evidence is sufficient.”(78447….) Defendant’s rights in probation revocation hearings are restricted. Here an individual who has been convicted, after the due process of law faces the judiciary for lenient disposition of his probation plea. He does not enjoy any special privilege and is totally at the mercy and discretion of the court. Apart from the above observations by the Supreme Court, no theories of probation were overturned by US Supreme Court. Normally, Supreme Court does not deal with theories; it gives judgment on case to case basis on issues related to probation, taking into consideration the State probation and Federal probation laws, on the basis of constitutional requirements. Offenders on probation are entitled to a limited form of due process. Probation is a form of custody. 5. Contrast the arguments in favor of probation being part of the judicial and executive branches of government. If probation is to be considered as part of the judicial and executive branches of government, the purpose for which the procedure of probation came to be practiced stands defeated. Strict legal interpretation of issues does not always help the human being. Executive decisions also go by the rule book. Probation relates to the important issue of transforming an individual. To punish an individual is the easiest of the jobs and to transform an individual and totally detach him from the crime world is the most difficult task. Judicial Officers or the staff of the executive branch does not have the time needed to take care of each probationer. People who understand the core mission on the subject of probation can handle this issue. Therefore, the parole agencies and community supervision agencies need to deal with the subject of probation. Materialistic civilization, the industrial and internet revolutions, aggrandizement of the human beings to amass wealth, have created unprecedented crime situations and the number of ex-offenders re-entering the community has substantially increased. The number of men and women on parole runs into millions. Executive and judicial agencies will not be able to handle this voluminous pressure of work. Dedicated professionals who ceaselessly work to make the neighborhoods safe have been rightly entrusted with this job. The agencies no more function in the traditional sense. Science has provided technology and electronic monitoring services, wherever it is necessary to employ them to effectively monitor and supervise the offenders in probation. With the increase in their numbers, funding their rehabilitation activities will be an uncomfortable job for the executive and an impossible responsibility for the judiciary. The voluntary agencies alone can handle such humanitarian activities with dedication and with a sense of involvement. When several such agencies are involved in the task, a sense of competition amongst them to excel, works well for the system of probation. Conclusion: The relationship between the judiciary, executive and the agencies supervising probation of the offenders can be compared to a scale. Both arms of the scale are equally important to strike the correct balance. Rules governing probation are responsive and not absolute. An offence has been committed; an individual can look forward to the process of probation to mitigate hardship to the extent possible. But one thing is certain. The efforts of the various agencies assisting the cause of probation have brought rich dividends for the executive and judiciary, improved the discipline, and has created a relaxed atmosphere in the society. ******** References: [DOC] Probation Circular 35/1998 Effective Practice... - Retrieved on August 21, 2009 epcounty.com - West Texas Community Supervision and Corrections ...John Augustus, the "Father of Probation," is recognized as the first true - Cached - Retrieved on August 21, 2009 Mair, George. What Matters in Probation: Willan Publishing, 2004. 78447 -- State v. Lumley -- Lockett -- Kansas Supreme Court 1992), the Indiana court struck down a probation condition -Retreived on August 21, 2009 Read More