Diversion and Probation: How Most Offenders Are Punished
Chapter Objectives
1. Define diversion and know its objectives.
2. Explain the rationales for diversion.
3. Give examples of stages at which diversion occurs in the criminal justice process.
4. Discuss diversion policy issues.
5. Define probation and know its goals.
6. Explain the reasons for using probation.
7. Describe some of the characteristics of adults on probation.
8. Explain the different ways that probation is administered.
9. Describe the measures used to evaluate probation.
10. Describe the investigation and supervision functions of probation officers.
11. Explain revocation hearings.
Chapter Outline
I. Overview of Diversion and Probation (Probation Video)
· Diversion occurs before trial.
o Probation occurs after a person has been convicted.
· Offenders can be diverted one or more times before they are tried, convicted, and sentenced to probation.
II. Diversion (Diversion Program Video)
· Diversion has been defined as “the halting or suspension, before conviction, of formal criminal proceedings against a person [often] conditioned on some form of counterperformance by the defendant.”
· Counterperformance is the defendant’s participation in exchange for diversion, in a treatment, counseling, or educational program aimed at changing his or her behavior.
· The candidate for diversion is a person who has been or could be arrested for an alleged offense and who is or could become the defendant in a criminal prosecution.
· The overall goal of diversion is to reduce recidivism through rehabilitation.
· In the criminal justice system, diversion is used in two ways.
o It can be used to keep an offender out of the system and help him or her avoid formal prosecution and labeling.
o Diversion can be used to keep an offender from going further into the system.
· Drug courts, are examples of these methods.
TIP: How effective are drug courts? Research different drug courts throughout the United States. Should states create additional drug courts? Why or why not?
A. Rationales for Diversion
· Diversion has four rationales.
o The experience and the stigma of being formally arrested, tried, and convicted can actually encourage more criminal behavior.
o It is less expensive than formally processing an offender through the criminal justice system.
o The public may think formal processing through the criminal justice system is inappropriate for crimes in which the parties to the offense willingly participate even though the offense is committed against the social values and interests represented in and protected by the criminal law.
o A final rationale for using diversion is to give the typical diversion client a better chance in life.
B. The Process of Diversion
· Diversion may occur at any point in the criminal justice process after a criminal complaint has been filed or police have observed a crime.
· Diversion programs offer a variety of remedial responses to defendants’ problems.
· Diversion is also used for persons who are classified as mentally ill or incompetent and either are not equipped to stand trial or need a form of incarceration and treatment other than imprisonment.
C. Diversion Policy Issues
· Diversion has its supporters and critics.
· Supporters believe diversion is the first opportunity to give offenders individualized assistance before they get too far down the path of crime.
· Critics argue that diversion tends to force people to give up some of their freedom without being tried and convicted.
Legal and Ethical Issues
· Unconditional diversion is the termination of criminal processing at any point before adjudication with no threat of later prosecution.
o It affords the best protection for a defendant’s legal rights because dismissal of charges does not require any counterperformance.
· In unconditional diversion, treatment, counseling, and other services are offered on a voluntary basis.
· Conditional diversion is diversion in which charges are dismissed if the defendant satisfactorily completes treatment, counseling, or other programs ordered by the justice system.
· Conditional diversion at or after arraignment, with judicial participation, affords greater protection against prosecutorial overreach and more assurance of informed voluntary decisions by the defendant than does diversion by the police or the prosecutor.
Law Enforcement Issues
· Does diversion weaken law enforcement?
· Does diversion invite more widespread violation of laws by allowing offenders to avoid conviction?
· There is no particular evidence one way or the other.
· If unconditional diversion were practiced extensively, there might be increases in violations.
o However, if unconditional diversion is limited to the first or second charge, then increases in violations are less likely.
Safety Issues
· Some argue that in the long run, diversion can protect the community better than traditional processing can.
· Traditional methods of managing drug offenders depended on the corrections officer first reporting a violation and then a long time after that passed before a hearing occurred and sanctions were imposed.
· Diversion drug courts and veterans courts hold regularly scheduled status hearings, monthly or more frequently, with the offender, prosecutor, defense attorney, treatment providers, probation agents, and others.
Economic Issues
· Presumably, diversion is less conducive to recidivism than is traditional processing.
· The costs of both diversion and its alternatives include the costs of arriving at a decision; the costs of implementing decisions; and the costs of undesired consequences of decisions, such as reinstatement of prosecution, leveling of new charges, or revocation of probation or parole because of a new charge or violation.
· Diversion is not always the appropriate response to criminal behavior.
o When diversion fails to bring about the desired changes in an offender’s behavior, probation is often the next step in the corrections process.
TIP: What would happen if everyone who committed an offense was arrested and prosecuted? How many of the students have committed an offense as a juvenile that could have resulted in them entering the system?
III. Probation
· Probation is the most frequently used form of criminal punishment.
· Probation is the conditional release of a convicted offender into the community under the supervision of a probation officer.
A. Reasons for and Goals of Probation
· Probation is used for at least four reasons.
o Probation permits the offender to remain in the community for reintegration purposes.
o Probation avoids prison institutionalization and the stigma of incarceration.
o Probation is less expensive than incarceration, more humanitarian, and at least as effective as incarceration in reducing future criminal.
o Probation is fair and appropriate sentence for offenders whose crimes do not merit incarceration.
· Most probation programs share five goals:
o Protect the community by preparing the presentence report (PSR) to assist judges in sentencing and supervising offenders.
o Carry out sanctions imposed by the court.
o Conduct a risk-needs assessment to identify the level of supervision and the services probationers need.
o Support crime victims by collecting information that describes the losses, suffering, and trauma experienced by a crime victim or by the victim’s survivors.
o Coordinate and promote the use of community resources.
B. History of Probation
· Probation in America developed during the 19th century.
Probation Begins in America
· It was in the Boston courtroom of municipal court judge Peter Oxenbridge Thatcher, in 1830, that the groundwork for probation was laid.
· In 1841, when 57-year-old John Augustus, a wealthy Boston shoemaker, became interested in the operation of the courts, the practice of probation began to emerge.
Early Probation Statutes
· In 1878, the Massachusetts legislature passed the first statute authorizing probation and provided for the first paid probation officer.
· In 1880, a new law authorized probation as an option in all cities and towns in Massachusetts.
· On March 4, 1925, President Calvin Coolidge signed the National Probation Act.
o The act authorized each federal district court to appoint one salaried probation officer with an annual income of $2,600.
· By 1925, probation was available for juveniles in every state; by 1956, it was available for adults in every state.
C. Characteristics of Adults on Probation
· At 2011 yearend, 3, 971,310 were on probation, down 2.0 percent , or almost 82,000 offenders from the beginning of the year.
o The average length of probation is 37 months for those convicted of one felony to 43 months for those convicted of two or more felonies.
· At 2011 yearend, 1,662 adults were on probation for every 100,000 persons age 18 and older in the United States, down from 1,715 per 100,000 at yearend 2010.
o Among the states with declining probation populations, California, Florida, Georgia, Michigan, and Texas accounted for 56 percent of the total decrease.
D. Who Administers Probation?
· Currently, probation in the 50 states is administered by more than 2,000 separate agencies, reflecting the decentralized and fragmented character of contemporary corrections.
· Probation is commonly considered a part of the correctional system, although it is technically a function of the court system.
Privatizing Probation
· There is also movement toward privatization in community corrections, including offender assessment, drug testing and treatment, electronic monitoring, halfway house management, and probation field services.
· Critics argue that for-profit probation is unfair to poor people, needlessly supervises persons who are not a threat to society, and carries the risk of unnecessary incarceration because persons on probation can be arrested for technical violations such as missing a meeting with a probation officer.
E. Does Probation Work?
· Recidivism—generally defined as rearrest—continues to be the primary outcome measure for probation, as it is for all corrections programs.
· Today, the push for evidence-based corrections highlights the importance of using scientific research to study correctional policy.
· Recidivism rates vary from place to place, depending on the seriousness of the offense, population characteristics, average length of probation, and the amount and quality of intervention, surveillance, and enforcement.
· The APPA, representing U.S. probation officers nationwide, argues that recidivism rates measure just one probation task while ignoring others.
· The APPA has urged its member agencies to collect data on other outcomes, such as the following:
o Amount of restitution collected
o Number of offenders employed
o Amounts of fines and fees collected
o Hours of community service performed
o Number of treatment sessions attended
o Percentage of financial obligations collected
o Rate of enrollment in school
o Number of days of employment
o Educational attainment
o Number of days drug free
IV. What Probation Officers Do
· Probation officers have two important roles—case investigation and client supervision.
· Probation and parole officer work can be dangerous.
o However, the physical dangers of the job are not the major sources of a probation officer’s stress.
o It’s high caseloads, paperwork overload, and deadline pressure.
· National Institute of Justice (NIJ) researchers found that when they asked probation and parole officers how they deal with stress in a positive way, more officers cited physical exercise than any other technique.
· On the negative side, many officers reported dealing with stress by taking extra sick days, requesting transfers, or applying for early retirement.
· In addition to dealing with stress, building a relationship with the offender and developing rapport are also important.
A. Case Investigation
· Case investigation includes the preparation of a presentence reports (PSR), which the judge uses in sentencing an offender.
· The PSR is prepared by the probation department of a court; it provides a social and personal history as well as an evaluation of a defendant as an aid to the court in determining a sentence.
Purposes of Presentence Report
· The PSR has two main purposes:
o The PSR assists the court in reaching a fair sentencing decision.
§ The specific content areas of the PSR vary from jurisdiction to jurisdiction, but common areas include:
v Information regarding the current offense
v The offender’s past adult and juvenile criminal record
v Family history and background
v Personal data about education, health, employment, and substance abuse history
o The second purpose of the PSR is to outline a treatment plan for the offender.
· In most cases, the court orders the PSR after conviction but before sentencing.
Creating a Presentence Report
· The PSR starts with an interview between the PO and the defendant.
o The interview follows a structured format for obtaining information on the offense and the offender.
· In the PSR, the PO estimates the offender’s degree of risk to the community and need factors (sociological, psychological, and economic) that impact criminal behavior.
· The PO summarizes the information gathered and, in most jurisdictions, makes a sentence recommendation.
o Copies of the PSR are filed with the court and made available to the judge, the prosecutor, and the defense attorney.
Disclosure of Presentence Reports
· One of the most important questions about the PSR is whether the defendant has a constitutional right to see it and challenge the statements contained in it.
· Some judges and probation officers oppose disclosure for several reasons:
o They fear that persons having knowledge about the offender will refuse to give information if the defendant knows they have given information about him or her.
o They believe that, if the defendant challenges information in the PSR, court proceedings may be unduly delayed.
o They believe that to give the defendant some kinds of information, such as psychological reports, might be harmful to that defendant.
o They argue the PSR is a private and confidential court document.
· On the other hand, advocates of disclosure argue that fundamental fairness and due process demand that convicted persons should have access to the information in the PSR on which their sentence is based so they can correct inaccuracies.
· The trend today is toward limited disclosure of information to the defendant’s attorney.
Technology and Case Investigations.
· Software packages can generate PSRs from data from official records and interviews entered by probation officers.
o The software programs can also calculate risk assessment reports.
· The trend toward telecommuting is also affecting probation officers’ case investigations.
o Telecommuting (or teleworking) is usually defined as an employee working at home or other telework facility for at least one day a week during regularly scheduled business hours, supported by the necessary hardware and software.
B. Supervision
· The second major role of probation officers is client supervision.
· Probation supervision has three main elements:
o Resource mediation means providing offenders access to a wide variety of services such as job development and substance abuse treatment, counseling, and education.
o Surveillance means monitoring the activities of probationers through office meetings, home and work visits, drug and alcohol testing, and contact with family, friends, and employers.
o Enforcement means making probationers accountable for their behavior and making sure they understand the consequences of violating the conditions of probation.
Caseload
· The average PO in the United States supervises approximately 139 offenders.
o Such large caseloads do not allow probation officers time for adequate resource mediation, surveillance, or enforcement.
· A number of jurisdictions are experimenting with Probation Automated Management (PAM).
· Recognizing the need for straightforward caseload standards, in 2006 the APPA consulted experienced practitioners and researchers.
o It found that with the emergence in the 1990s of the body of research on correctional treatment effectiveness known as evidence-based principles, a robust set of effective strategies of correctional treatment could guide the development of caseload standards.
Technology and Supervision
· There are a wide variety of technological tools to help POs in client supervision that only a few years ago did not exist.
o Computer programs can track fine and probation payments, alert POs when their clients are behind on payments, and help them track whether probationers have satisfied the conditions of their sentences.
· Another technological innovation, one of the more interesting strategies for managing the three elements of probation supervision, is mapping technology or geographic information systems (GIS).
o Mapping has helped law enforcement locate hot spots of crime.
Revocation of probation
· A revocation hearing is a due process hearing that must be conducted by the court or probation authority to determine whether the conditions of probation have been violated before probation can be revoked and the offender removed from the community.
o Revocation is the formal termination of an offender’s conditional freedom.
· Revocation is a serious matter for four reasons.
o The offender might lose his or her freedom to remain in the community.
o The handling of probation violators by supervision agencies and courts consumes a significant portion of the court’s time, energy, and resources.
o The cost of keeping an offender under probation supervision is much lower than that required for care and treatment in prison or jail.
o Imprisoning offenders who otherwise would have been placed on probation may force their families to go on welfare or make greater demands on community resources.
· Still, revocation is the only way to protect the community from some offenders who refuse to abide by the conditions of probation.
Violations That Trigger Revocation
· Revocation is triggered in one of two ways.
o Either offenders willfully violate the technical conditions of their probation or they commit new offenses.
· A technical violation is failure to comply with conditions of probation.
o It is not a criminal act; most revocations are the result of technical violations.
o The most commonly committed technical violations are positive urinalysis, failure to participate in treatment, absconding (fleeing without permission of the jurisdiction in which the offender is required to stay), and failure to report to the probation officer.
· A new offense violation is the arrest and prosecution for the commission of a new crime.
o Depending upon the seriousness of the new offense, the court may, in response to a violation of probation based on a new offense, impose a sentence of incarceration upon revocation of probation, plus any new sentence of incarceration that may be imposed for the new offense.
Revocation Hearings
· Revocation hearings are governed by the 1973 U.S. Supreme Court decision known as Gagnon v. Scarpelli (1973).
o In this case, the Court said that there was no difference between probation and parole revocation because both of them resulted in a loss of liberty.
· The Court extended the same rights to probationers that it granted to parolees a year earlier in Morrissey v. Brewer.
The Scope of Community Supervision
· At yearend 2011, 1 in 33 adults in the United States was under community supervision.
· Probation receives only 10 percent of the corrections budget but supervises 80 percent of the correctional population.
· By contrast, prisons receive 90 percent of the corrections budget while supervising only 20 percent of the correctional population.