Emilio Aguinaldo College

COLLEGE OF CRIMINOLOGY
Manila

Criminology Board Review

Forerunners of Probation:

1. Benefit of the Clergy

This originated in a compromise with the Church which had maintained that a
member of the clergy brought to trial in a King’s Court might be claimed from that
jurisdiction by the bishop or chaplain representing him, on the ground that he, the
prisoner, was subject to the authority of the ecclesiastical courts only

2. Judicial Reprieve
This is a temporary withholding of sentence, either before or after judgment; as,
where the judge is not satisfied with the verdict, or evidence is suspicious, or
indictment is insufficient, or he is doubtful whether the offense be within the
clergy, or sometimes if it be a small felony, or any favorable circumstances
appear in the criminal’s character.

3. Recognizance (Binding over for good behavior)

It originated as a measure of preventive justice, involving an obligation or
promise, sworn to under court order by a person not yet convicted but thought
likely from the information before the court to commit a crime, that he would
“keep the peace” and “be of good behavior”.

4. Transportation
This was chiefly a way of ridding the country of criminals; it later developed as a
plan for supplying new colonies with cheap labor. It was also an attempt to
substitute for brutal punishment at home and an opportunity for rehabilitation in a
new country.

Personalities in the History of Probation

1. JOHN AUGUSTUS – “Father of Probation

2. MATTHEW DAVENPORT HILL – is considered as the “Father of Probation” in
England.
3. TEODOLO S. NATIVIDAD – Father of Philippine Probation

Act No. 4221

– the first Probation Law of the Philippines
– this act became effective on August 7, 1935
– the Supreme Court declared this Act unconstitutional on November 16,
1937

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In People vs. Vera (37 O.G. 164), the constitutionality of Act 4221 was challenged
because of the following grounds:

a) The said act encroaches upon the pardoning power of the

executive
b) That it constitute an undue delegation of legislative power
c) It denies the equal protection of the laws

Six significant ideas and characteristics of probation:

1. A more enlightened and humane correctional system

2. To promote the reformation of offenders
3. Reduction of the incidence of recidivism
4. Extending to offenders individualized and community-based treatment programs
instead of imprisoning them
5. Limited to offenders who are likely to respond thereto favorably
6. The method is less costly than confinement

Philosophy and Concepts of the Probation System

1. There is no single cause for delinquent behavior. Human beings are extremely
complicated.
2. Delinquent and criminal acts are symptoms.
3. That the individual has the ability to change and to modify his anti-social behavior
with the right kind of help.
4. The Central goal of the Probation Administration is to enhance the safety of the
community by reducing the incidence of criminal acts by persons previously
convicted.
5. This is of course not to say that probation should be used in all cases, or that it
will always produce better results.
6. By the same token, however, it is to say that probation is a good bit more than
the “matter of grace” or “leniency” which characterizes the philosophy of the
general public and of many judges and legislators on the subject.
7. Imprisonment as a sole cure for prevalence of crime is no longer recognized.
8. It is generally conceded that probation is a matter of privilege to be granted or
refused at the discretion of the State.
9. No violation should result in automatic revocation.
10. A judge should not pass judgment on a man without a post sentence
investigation report (PSIR).

The Benefits of Probation

a. Probation protects society

1. From the excessive costs of detention
2. From the high rate of recidivism of detained offenders

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 b. Probation protects the victim
1. It provides restitution
2. It preserves justice

c. Probation protects the family

1. It does not deprive the wife and children of a husband and a father
2. It maintains the unity of the home

d. The probation assists the government

1. It reduces the population of prisons and jails
2. It lessens the clogging of courts
3. It lightens the load of prosecutors
4. It sustains law enforcement

e. Probation helps the offender

1. It maintains his earning power
2. It provides rehabilitation in the community
3. It restores his dignity

f. Probation justifies the philosophy of men

1. That life is sacred
2. That all men deserve a second chance
3. That an individual can change
4. That society has a moral obligation to lift the fallen

Advantages of Probation

a. Probation prevents crime by offering freedom and aid only to

those offenders who are not likely to assault the society again.
b. It protects the society by placing under close supervision non-
dangerous offenders while undergoing treatment and rehabilitation
in the community.
c. It conforms to modern humanistic trends in penology.
d. It prevents youthful or first time offenders from turning into
hardened criminals.
e. It is a measure of cutting enormous expense in maintaining jails.
f. It reduces recidivism and overcrowding in jails and prisons.
g. It reduces the burden on the police forces and institutions of
feeding and guarding detainees.
h. It gives the first and light offenders a second chance in life and
provides as opportunity for the reformation of a penitent offender.
i. It makes the offender productive or taxpayers instead of tax
eaters.
j. It restores to successful probationers his civil rights.
k. It has been proven effective in developing countries that have
adopted it.

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Definition of Terms

PROBATION – is a disposition under which a defendant, after conviction and sentence,

is released subject to conditions imposed by the court and to the supervision of a
probation (and parole) officer.

PROBATIONER – is a person placed on probation.

PROBATION OFFICER (now Probation and Parole Officer) – is one who investigates
for the court a referral for probation or supervises a probationer or both.

PD 968 (SECTION 4)

Suspension of Execution of Sentence

The court convicts and sentences the defendant but the execution of the
sentence, whether it imposes a term of imprisonment or a fine only, is suspended and
the defendant is released on probation.

Probation is only a privilege, not a right

Probation is not demandable as a matter of right. It is a privilege. Its grant
depends upon the discretion of the court.

Necessity of Application
Probation may not be granted except upon application by the defendant.

Time for Application

The law says that the application for probation should be made within the period
for perfecting an appeal, or within fifteen (15) days from promulgation of notice of
judgment.

Effect on Appeal
The filing of application (for probation) shall be deemed a waiver of the right to
appeal. In such case the accused cannot, even by withdrawing his application for
probation, reinstate his appeal or right to appeal.

Effect on Motion for Reconsideration or New Trial

There is nothing in the Probation Law which indicates that the defendant’s right
to move for a reconsideration of the judgment of conviction, or his right to ask for new
trial, is waived or suspended by his application for probation, or that such application has
the effect of an automatic withdrawal of a pending motion for reconsideration or new
trial, although there is likewise nothing in the law which suggests that the filing of the
application for probation interrupts the running of the period for reconsideration or new
trial.

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Form of Application
The law does not prescribe any particular form and therefore it may be in any
form, written or oral. For recording purposes, however, oral applications should be
reduced to writing.

Post Sentence Investigation (No grant of probation without prior investigation)

The Probation Law provides that “no person shall be placed on probation except
upon prior investigation by the probation officer and a determination by the court that the
ends of justice and the best interest of the public as well as that of the defendant will be
served thereby".
The probation officer shall submit to the court the investigation report on a
defendant not later than sixty (60) days from receipt of the order of the said court to
conduct the investigation.
The court shall resolve the petition for probation not later than fifteen (15) days
after receipt of said order.

Denial of probation to disqualified offender without prior investigation

However, there is nothing in the law which requires that such an investigation
should be conducted in every case as an essential condition before the court may deny
an application for probation.

Court may order investigation so long as defendant is not serving sentence

If there is an application and the defendant does not appear to be disqualified,
the court may order such investigation only after a sentence of conviction by the trial
court for the reason that the same would be premature if made prior to said conviction,
considering that the judgment might eventually be an acquittal or, even if it be conviction,
the court might find as a fact in its decision that the defendant is a disqualified offender,
in either of which cases the order for investigation would serve no purpose.

Post-sentence Investigation, not Pre-sentence Investigation

Under our Probation Law, the investigation for probation is a post-sentence, not
pre-sentence investigation; meaning that the investigation is after, not before, the
sentence. The sentence referred to is the sentence of the trial court.

Scope of Investigation
The inquiry should be a thorough investigation into the character, antecedents,
environment, mental and physical condition of the offender, and available institutional
and community resources, as well as all other matters bearing the following questions:

(a) Whether or not the offender is in need of correctional treatment

that can be provided most effectively by his commitment to an
institution;
(b) Whether or not there is undue risk that during the period of
probation the offender will commit another crime;
(c) Whether or not probation will depreciate the seriousness of the
offense committed.

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No right to counsel
The Probation Law has no provision guaranteeing the right to counsel in the
investigation of a petitioner. The constitutional guarantee of right to counsel will not apply
because the investigation by the probation and parole officer is neither prosecutory nor
accusatory in character.

Privilege against self-incrimination not available

Probation and parole officer are not clothed with subpoena powers under the
Probation Law. There is nothing to prevent them, however, from requesting the court to
issue subpoenas requiring the attendance of witnesses in their investigations.

No subpoena powers
Probation and parole officer are not clothed with subpoena powers under the
Probation Law. There is nothing to prevent them, however, from requesting the court to
issue subpoenas requiring the attendance of witnesses in their investigations.

Submission of Investigation Report

The investigation report having been completed, the Chief Probation and Parole
Officer should submit his report to the court, “not later than 60 days from receipt of
the order of the court to conduct the investigation”. The same period is merely
directory, not mandatory, in the sense that an investigation report submitted after 60
days would still be a valid report.

No copy of report for defendant

The investigation report as well as the supervision history “shall be privilege and
shall not be disclosed directly or indirectly to anyone other than the parole and Probation
Administration or the court concerned.

No right of defendant to comment on report

There is nothing in the Probation Law which entitles the defendant to submit any
comment, or demand that the court should consider the same.

Hearing not required

There is nothing in the Probation Law which requires the court to set for hearing
the investigation report or the application for probation, although it may of course, in its
discretion do so, preserving at all times, however, the confidentiality of the report.
The court is mandated to resolve the petition for probation not later than 15 days
after receipt of the investigation report. The period, however, seem tobe merely
directory, not mandatory.

Bail or Recognizance pending petition for probation

Pending submission of investigation report and the resolution of the petition fro
probation, the defendant may be allowed temporary liberty under his bail filed in the
criminal case. In case no bail was filed or the defendant is incapable of filing one, the

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court may allow the release of the defendant on recognizance to the custody of a
responsible member of the community who shall guarantee his appearance whenever
required by the court.

GRANT OR DENIAL OF PROBATION

Probation discretionary
Barring disqualified offenders, the grant or denial of probation is a matter of
discretion on the part of the court.

Issuance of Probation Order

A probation order shall take effect upon its issuance, at which the time the court
shall inform the offender of the consequences thereof and explain that upon his failure to
comply with any of the conditions prescribed in the said order or his commission of
another offense, he shall serve the penalty impose for the offense under which he was
placed fro probation. In the event that violation of any of the conditions of probation is
established, the court need not revoke the probation; it has the discretion to revoke or
continue the probation and modify the condition thereof.

Defendant may reject grant of probation

The law does not oblige the defendant to accept the probation granted by the
court. He should be allowed to turn down the same grant, especially since he might feel
that the terms and conditions thereof are to onerous for him.

Grant or denial of probation not appealable but CERTIORARI may lie

Civil liability not affected

Probation is a substitute for imprisonment (including subsidiary imprisonment in
case of non-payment of fine) and other criminal penalties, not a mode of discharging the
civil liability, which is owed not to the State but to the offended party.

Coverage or scope of application of decree

A. Non-offenders not covered

Consistently with the concept and purpose of probation, the
Decree applies only to offenders.

B. Offenders covered
The Decree declares, “it shall apply to all offenders”.

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 C. Offenders who are excluded
Not all offenders, however, fall within its coverage:

1. It expressly excludes from its operation “those entitled to the benefits of PD 603,
as amended (otherwise known as the Child and Youth Welfare Code) and similar
laws.
2. Even if the offender does not fall under the terms of the Child and Youth Welfare
Code and the ”similar laws” just mentioned, he would not be entitled to the
Benefits of the Decree if he has not been convicted and sentenced.
3. An offender who is already serving sentence or is otherwise specifically
disqualified under Sec. 9.
4. Under Sec. 264, BP 881 as amended by BP 882, 883 and 884, state that “any
person found guilty of any election offense under this code shall be punished with
imprisonment of not less than 1 year but not more than 6 years and shall not be
subject to probation.
5. Sec. 9, Pd 1987 (An act Creating the Videogram Regulatory Board, dated
October 5, 1985) states “The provisions of PD 968, as amended shall not apply
in cases of violations of this Decree, including its implementing rules and
regulations.
6. Sec. 12 of the Wage Rationalization Act (RA 6727)provides that the violators of
the law shall not be entitled to the benefits of the Probation Law.

Disqualified Offenders

Sec. 9. Disqualification Offenders – The benefits of this Decree shall not be extended
to those:
(a) sentenced to serve a maximum term of imprisonment of
more than six years;
(b) convicted of subversion or any crime against the national
security or public order;
(c) who have previously been convicted by final judgment of
an offense punished by imprisonment of not less than
one month and one day and/or a fine of not less than
Two Hundred Pesos;
(d) who have been once on probation under the provisions
of this Decree; and
(e) who are already serving sentence at the time the
substantive provisions of this Decree became applicable
pursuant to Sec. 33 hereof

When the court must deny probation

The court shall deny an application for probation whenever it finds that:

a. the offender is in need of correctional treatment that can be

provided most effectively by his commitment to an institution;
b. there is undue risk that during the period of probation the offender
will commit another crime;
c. probation will depreciate the seriousness of the offense
committed.

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Period of Probation

a. The period of probation of a defendant sentenced to a term of

imprisonment of not more than one (1) year shall not exceed two
(2) years, and in all other cases, said period shall not exceed six
(6) years.

b. When the sentence imposes a fine only and the offender is made
to serve a subsidiary imprisonment in case of insolvency, the
period of probation shall not be less than nor more than twice the
total number of days of subsidiary imprisonment as computed in
the rate established in Art. 39 of the Revised Penal Code, as
amended.

The Conditions of Probation

1. General or Mandatory Conditions

(a) Present himself to the probation (and parole) officer designated to

undertake his supervision at such place as may be specified in the order
within 72 hours from receipt of said order;

(b) Report to the probation (and parole officer at least once a month at such
time and place as specified by the said officer.

2. Special or Discretionary

The court may also require the probationer to:

(a) cooperate with the program of supervision;

(b) meet his family responsibilities;
(c) devote himself to specific employment and not to change said
employment without prior written approval of the probation (and parole)
officer;
(d) undergo medical, psychological or psychiatric examination and treatment
and enter and remain in a specified institution, when required for the
purpose;
(e) pursue a prescribed secular study or vocational training;
(f) attend or reside in a facility established fro instruction, recreation or
residence of persons on probation;
(g) refrain from visiting houses of ill-repute;
(h) abstain from drinking intoxicating beverages to excess;
(i) permit the probation (and parole) officer or an authorized social worker to
visit his home and place of work;
(j) reside at premise approved by it and not to change his residence without
its prior written approval; or
(k) satisfy any other condition related to the rehabilitation of the defendant
and not unduly restrictive of his liberty or incompatible with his freedom
of conscience

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Modification of period and conditions of probation

A. Period of probation
The period of probation may either be shortened or made
longer, but not to exceed the period set in the law.

B. Conditions of probation
During the period of probation, the court may, upon application
of either the probationer or the probation officer, revise or modify
the conditions of probation.

The court shall inform in writing the probation officer

and the probationer of any change in the period and
conditions of probation.

Revocation of probation

A. Concept of violation of probation

“A violation of probation shall be understood to mean any act
or any commission on the part of the probationer with
respect to the terms and conditions specified in the probation
order.

B. Arrest of the probationer

At any time during probation, the court may issue a warrant
for the arrest of the probationer for violation of any of the
conditions of probation.

Termination of Probation

A. After the period of probation and upon

consideration of the report and recommendation of
the probation and parole officer, the court may
order the final discharge of the probationer upon
finding that he has fulfilled the terms and conditions
of his probation and thereupon the case is deemed
terminated.

B. Other ways of terminating probation:

1. Termination before the expiration of the period

2. Termination by pardon of the probation
3. Deportation of the probationer
4. Death of the probationer

C. Effect of final discharge

The final discharge of the probationer shall operate to
restore to him all civil rights lost or suspended as a
result of his conviction and to fully discharge his liability

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 for any fine imposed as to the offense for which
probation was granted.

Confidentiality of probation records

The probation records may be found, firstly, in the court concerned. Secondly, in
the office of the Chief Probation and Parole Officer assigned in the city or province.
Thirdly and fourthly, copies of these records are being forwarded to the Regional Parole
and Probation Office and the Parole and Probation Administration (Central Office).

Which records are confidential?

The investigation report and the supervision history of the probationer.

Ways of de-classifying confidential records

The confidentiality of the investigation report and the supervision history is not
absolute. The court may, in its wise discretion, permit the probationer and his attorney to
inspect them whenever the best interest of the probationer requires such disclosure.

Penalty for violation of confidentiality of probation records

The penalty of imprisonment ranging from six (6) months and one (1) day to six
(6) years and a fine ranging from six hundred pesos to six thousand pesos shall be
imposed upon any person who violates the confidentiality of the records.

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