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Chapter 6: Probation

At the end of this chapter the student should be able to:

• Define Probation
• Enumerate the Purpose, objectives, and Advantages of
Probation
• Understand the Historical Background of Probation in the
Philippines

Probation

Probation as a term and as a

procedure is derived from the Latin word
"Probare" meaning to prove. Therefore, as
the term Latin Etymology states,
probation involves the testing of an
offender as he proves that he is worthy of
his freedom. Probation can be defined as
a sentence imposed by the courts on
offenders who have either pleaded guilty
or have been found guilty. Instead of being
incarcerated, an offender placed on
probation is retained in the community under the supervision of a probation
agency. The offender is provided with supervision and services. Continuation of
probation depends on the offender's compliance with the rules and conditions of
the probation sentence.

Probation generally follows a trial at which the person has been found guilty,
or a plea of guilty is entered in lieu of an actual trial. It permits the offender to
remain within the community subject to good behavior, no involvement in further

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illegal behavior, and other conditions imposed by the court, such as restitution to
victims or to attend the alcoholics anonymous group sharing sessions. Probation
not only prevents further stigma of imprisonment and its damaging effects; the
offender to continue to work and support any dependents.

In the U.S., another variation on the concept of probation has become known
as "shock probation" or "shock imprisonment." In a strict sense it is not part of a
probation system, as does not involve incarceration. In shock probation, it allows
the sentencing judge to impose the legal sentence and order incarceration of the
offender, only to recall the legal sentence and order incarceration of the offender,
only to recall him after a brief, legislatively defined period of imprisonment (in
Ohio, a maximum of 130 days). The system derived its name from the shock
effects of short-term incarceration, believed to be sufficient to convince certain
individuals who have never before been imprisoned that further criminal behavior
is too risky and likely to be met with severe punishment. The offender presumably
does not know that his term will be shortened, and part of the shock is that he
anticipates a long period in prison until the sudden release. (Allen, Friday,
Roebuck, and Sagarin, Punishment, 1981 ed., p. 362)

Something similar to shock probation is found in the federal courts, and is

known as "split sentencing." Here the offender is actually sentenced to a term in
prison, but is notified in advance that, after a given brief period of satisfactory
behavior, he can serve the remainder of his sentence on probation. (ibid)

As practiced in the Philippines, probation implies a contract between the

court and the offender in which the former promises to hold a prison term in
abeyance while the latter promises to adhere to a set of rules or conditions
required by the court. If the rules are violated, especially if the probationer
commits another criminal offense, probation may be revoked; this means that the
contract is terminated and the original sentence enforced. Probation may be
revoked simply because the rules and conditions of probation have not been met,
even if the offender has not committed another crime.

Historical Context of Probation

Probation developed out of various practices used under English common

law. One such practice, known as benefit of clergy, seems to be the earliest device
for softening brutal severity of punishment. It allowed certain accused individuals
to appeal to the court for leniency in sentencing by reading from the Bible. Another
practice was judicial reprieve, whereby a convicted offender could ask the judge

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to suspend the sentence on the condition that the offender displays future good
behavior. It is a temporary withholding of sentence, practiced by the English Court
in early 17th century, where they grant reprieves to prisoners under sentence of
death on the condition that they accept deportation or transportation.

Two names are closely associated with the founding of probation: Matthew
Davenport Hill, an 18th-century English barrister and judge; and John Augustus,
a 19th-century Boston boot-maker.

As a young professional in England, Hill had witnessed the sentencing of

youthful offenders to one day terms, on the condition that they are returned to a
parent or guardian who would closely supervise them. When he eventually became
the Recorder of Birmingham, a judicial post, he used a similar practice for
individuals who did not seem hopelessly corrupt. If offenders demonstrated a
promise for rehabilitation, they were placed in the hands of generous guardians
who willingly took charge of them. Hill had police officers pay periodic visits to
these guardians in an effort to track the offender's progress and keep a running
account.

The more immediate origins of modern probation lie in the efforts of John
Augustus (1785-1859), a Boston shoemaker, who is considered the "father of
probation," and recognized as the first true probation officer. Augustus was born
in Woburn, Massachusetts in 1785. Starting in the early 1840s, Augustus
volunteered to stand bail and assume custody for select, less serious offenders in
exchange for the judge's deferring the sentence/Augustus was responsible for
monitoring offenders' activities and later reporting to the judge on their
performance in the community. If the judge was satisfied with the community
performance, charges were dropped; if not, sentencing proceeded. Augustus
received no pay for his 18 years of court work. He used his own money and
voluntary contributions from others to finance his effort.

In 1870, Father Cook, another Bostonian, continued the work of Augustus

by identifying youthful offenders being tried in the courts and whose cases were
committed by force of circumstance and not due to the criminal nature of the
accused, After finding that the offender is not a hardcore felon and can still be
reformed, Father Cook presented himself before the court as adviser to the
offender. Realizing the value of what he is doing, the courts usually consented to
placing convicted youths under his charge to be reformed.

Influenced by the efforts of Augustus, the United States, probation came to

be regulated by a statute for the first time in 1878 when Massachusetts passed a

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law providing for the appointment of a paid probation officer for the courts of
criminal jurisdiction in the city of Boston/The first Probation Law was passed by
the Legislature of Massachusetts and signed into law by Governor Alexander B.
Rice on April 26, 1878. By a statute of 1880 the right to appoint probation officers
was extended to all cities and towns in Massachusetts. In 1887, the city of Boston
appointed the First government probation officer in the name of Edward H.
Savage, the former chief of police of Boston City.

Vermont Act of 1898 was the second state-enacted probation law. Unlike
in Massachusetts, here, the offender or probationer was the one who pays the
trial cost. At first, all state probation officers were on part time, but after 1936,
full-time officers were assigned in districts to have charge of parole as well as
probation.

The first Federal Probation Bill was introduced by the Lower and Upper
Chamber of U.S. Congress sponsored by Representative Mc. Call of
Massachusetts and Senator Robert T. Owen of Oklahoma, respectively. However,
these two legislative proposals were both failed. The second Federal Probation
Bill was introduced by Senator Royal S. Copeland of New York on December 12,
1923 sponsored by Representative George S. Graham which was later on
approved by the two separate chambers. On March 4, 1925, President Calvin
Coolidge signed the Federal Probation Act of 1925 into law.

Section 3. Meaning of Terms. As used in this Decree, the following shall, unless
the context otherwise requires, be construed thus:

(a) "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 for the court a referral for probation officer.
(b) "Probationer" means a person placed on probation.
(c) "Probation Officer" means one who investigates probation or supervises a
probationer or both.

Nature and Concept of Probation

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 officer (Section 3[a], P.D. No. 968, as amended). It is
actually a suspension of sentence during the period the defendant is placed on

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probation upon application to the court by the defendant. (Section 4, P.D. No. 968,
as amended)

Probation is a mere privilege and its grant rests solely upon the discretion
of the court. Probation is not a right of the accused, but rather an act of grace and
clemency or immunity conferred by the State which may be granted by the court
to a seemingly deserving defendant who thereby escapes the extreme rigors of
the penalty imposed by law for the offense of which he stands convicted. Probation
affects only the criminal aspects of the case but it is not a penal statute. (Francisco
vs. Court of Appeals, 243 SCRA 595)

Privilege is a peculiar benefit or immunity conferred by law on a person or

group of persons, not enjoyed by others or by all; special enjoyment of a good or
exemption from evil; it is a special prerogative granted by law to some persons.
Accordingly, the grant of Probation rests solely upon the discretion of the court.
This discretion is exercised primarily for the benefit of an organized society and
only incidentally for the benefit of the accused (Bolo v. Martinez, G.R. No. 67301,
January 29, 1990)

Three-fold Purpose of the Probation Law

1. To promote the correction and rehabilitation of an offender by providing

him with individualized treatment;
2. To provide an opportunity for the reformation of a penitent offender which
might be less probable if he were to serve a prison sentence;
3. To prevent the commission of offenses.

Objectives of the Probation Law

1. To promote the correction and rehabilitation of an offender by providing

him with individualized treatment
2. To provide an opportunity for the reformation of a penitent offender which
might be less probable if he were to serve a prison sentence;
3. To prevent the commission of offenses,
4. To decongest our jails or prisons; and
5. To save the government much needed finance for maintaining convicts in
jail.

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Advantages of Probation

1. Prevents crimes by offering freedom and aimed only to those offenders who
are not likely to assault society again.
2. Protects society by placing under close supervision non-dangerous
offenders while undergoing treatment and rehabilitation in the community
3. Conforms to modern humanistic trends in penology.
4. Prevents youthful or first-time offenders from turning into hardened
criminals.
5. Is a measure of cutting enormous expense in maintaining jails.
6. Reduces recidivism and overcrowding jails and prisons.
7. Reduces the burden on the police force and institutions of feeding and
guarding detainees.
8. Gives the first and light offenders a second change in life and provides for
the reformation of penitent offenders.
9. Makes the offenders productive taxpayers instead of tax eaters.
10.Restores to successful probationers their civil rights lost in view of the
offense.
11.Has been proven effective in developing countries that have adopted it.
12.Is advocated by the United Nations (UN) in its various congresses in crime
prevention and treatment of offenders.

The Four (4) Essential Elements of Probation

As provided for by the Probation Act of 1976, there are four (4) essential
elements of the Adult Probation System, to wit:

1. A post-sentence investigation report which will serve as the informational

basis for the court's decision to grant or deny probation (Secs. 5, 6, and 7,
P.D. No. 968, as amended);
2. The conditional suspension of execution of sentence by the court (Sec. 4,
P.D. No. 968, as amended);
3. Conditions of probation imposed by the court to protect public safety and to
foster the rehabilitation and reformation of the probationer (Sec. 10, P.D.
No. 968, as amended); and
4. Supervision, guidance and assistance of the offender by a probation officer
(Sec. 13, P.D. No. 968, as amended)

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Except where Death Penalty is Imposed, a Judgment of Conviction in a Criminal
Case, Becomes Final when:

1. no appeal is seasonably perfected;

2. the accused commences to serve the sentence;

3. the right to appeal is expressly waived in writing;

4. the accused applies for probation, thereby waiving his right to appeal.

Who may apply for Probation?

The probation law shall apply to all offenders except those entitled to the
benefits under the provisions of Presidential Decree Numbered Six Hundred and
Three and similar laws. (Sec. 1)

Necessity of Application

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

Such is the manifest intent of the law when it states that the court may, after it
shall have convicted and sentenced a defendant within the period for perfecting
an appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best.
(Francisco vs. Court of Appeals, 60 SCAD 444, 243 SCRA 384)

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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