Probation and Community Sanctions Research Paper

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Both terms “probation” and “community sanctions” referred during more than a century to different realities and practices according to the country where it proceeded. Nevertheless, it is striking to notice that these two concepts became essential to criminal policies following similar developments based on the same grounds. Whereas probation consists in an institution supervising an offender who has been sentenced to certain obligations and constraints, community sanctions are a practical extension of it and can be defined as a penal punishment situated between imprisonment and financial penalties (“intermediate sentence”; Bottoms et al. 2001). Whereas custodial sentence is served inside prison structures, community sanctions are executed in the free society along any form of social interaction. As long as the common sanction was of a custodial nature, its implementation was fulfilled by the prison services. But as soon as other types of sanction appeared in criminal justice systems, a new form of penal punishment had to emanate. Thus, the link between probation and community sanctions goes back to the nineteenth century at a time where modern modalities of sentence execution had to be combined with the emergence of supervising agencies.

In order to understand how it arose in this frame, one way to consider a community sanction considered as “normal” is to expect it to comply with the following criteria: It should not be custodial; it has to reach a balance between harshness and laxity (also proportionality, see Bagaric (1999)); it should not be too onerous and has to be transferred to social services; it has not to be supervised by over-skilled staff; it should be simple and quick in its implementation, and the community sanction and its supervision shall have a control and disciplinary aspect per se (Normandeau 1979). This definition has been shaped over decades through different types of classification. One approach differentiates three types of rationality in which the probation system has prospered: the discipline rationality during the 1850–1940s period; then the welfare rationality along the 1950–1970s, also called the “probation’s golden years”; and lately the security rationality as from the 1980s (da Agra 2010).

Beyond that, a more differentiated and comprehensive step-by-step approach highlights the evolution of probation work. The early days were heavily influenced by the church and charity organizations from origins until 1878 with religious missionaries. The years of professionalization with focus on personality and training arose during the first half of the twentieth century: Probation became a professional undertaking rather than a mission. The third wave is the years of casework including good relationship and diagnosis around the 1960s and consisting in a direct method of intervention relying on a strong and open relationship between the probationer and a trained probation officer. A backlash nourished some years of pessimism and to the necessity to help in the client’s terms (1970 and 1980s): high rates of recidivism conducted to a more personalized but also control-oriented supervision. A way out was then meant as rehabilitation revival insisting on “what works” along with limited “transfer” into the practitioners’ daily work (1990s): The policy emphasis was on procedure and technicality. The current phase concentrates on desistance and other emerging approaches, especially with the return to morality (2000s): Desistance is placed at the intersection between structure, agency, and reflexivity (Durnescu 2012).

The development of community sanctions has followed a parallel path since they are inherently interdependent with probation services, the former being generally supervised by the latter. An attempt to analyze its emergence underlines six rather consecutive phases starting with the origins at a time when community sanctions were considered as privileges. After World War I (1914–1918), supervised community sanctions were introduced. It took half a century to introduce intermediate sanctions characterized by intensive surveillance (1970–1980s), developing then restorative community sanctions in the 1980s, technological community sanctions as of 1990s and postmodern community sanctions with extended supervision as of the end of the 1990s (Durnescu 2009).

Brief History Of Probation Services

Probation, despite all differences among countries around the world, has one “common penal cornerstone” represented by the prison, and its development, besides various independent sociopolitical characteristics, is contingent to critical opinions toward the use of imprisonment and its effectiveness, and “the normative aspirations originally invested in the prison were transferred symbolically (if not always in substance) to noncustodial measures and, in particular, probation in its various forms” (Vanstone 1998, p. 751).

Still, the first practical steps of probation were due to philanthropy, and religious and humanitarian concerns that led to the first probation model in England (Jarvis 1972; van Kalmthout and Durnescu 2010). However, social control and the maintenance of social order remained primordial in the definition and implementation of probation and community sanctions. Criminology at the end of the nineteenth century fed with its new concepts the ideology of promising penal policies while permitting welfare at the same time that it kept control over poor and marginalized social groups (Vanstone 2008). Besides, the post-firstworld-war period was an exciting time for new penal ideas in such a way that two major scientific reviews were launched: the British “Probation Journal” in 1929 and the US “Federal Probation” in 1936.

Until the end of the eighteenth century, there was no kind of help or support foreseen for released prisoners, also because deprivation of liberty as a penal punishment, (conditional) release, and aftercare measures were not regulated by criminal law. In countries where these types of sanctions existed, charity organizations took care of prisoners and, incidentally, of the released ones. The origins of probation go back to England and the philanthropist John Howard (1726–1790) as one of its key-thinkers. He believed in the importance, even the necessity for a society to provide released prisoners with law-abiding resources to survive. His concept led shortly after his death to a law dealing with patronage (1792). In many countries, charitable clubs and societies were the only bodies officially recognized to deal with detained or released offenders by giving them material and spiritual (often Christian) support (van Kalmthout and Durnescu 2010). Their work involved a strong moral component and focused deeply on the offender’s personality.

Two Founding Fathers Of Probation

Matthew Davenport Hill, at that time a young British lawyer, assisted in a court in 1820 at a new way for magistrates to prevent juvenile criminals going to prison. The idea was to condemn to solely 1 day of imprisonment, provided that the juvenile has to be given back to his father or tutor with the obligation to be kept and surveyed more carefully (United Nations 1951). Later in 1840, as a judge at the Birmingham court, he kept practicing this symbolic 1-day sentence under the condition that the offender remains under supervision of an adult. M. Hill regarded individual cases as hopeful, because he thought that most of the people are not entirely criminals and it is always possible to “correct” them. Moreover, the supervision by responsible and willing persons who are in position to commit themselves to support young offenders shall, in Hill’s mind, give better reintegration opportunities than custodial facilities. There was no system of legal surveillance, but Hill requested the police head officer to proceed to steady inquiries on offenders’ behavior. This can be seen as an early form of police surveillance in the area of community sanctions. After 7 years of practicing this experience, the judge Hill presented his results as follows: “[.. .] young offenders who kept to the straight and narrow are much more numerous among those who have been treated this way than those who haven’t had this privilege and served prison sentences (United Nations 1951). Another judge, Edward William Cox, developed the concept with the designation of an inquiry agent who was in charge of supervising several offenders. This task was then taken over in 1876 by the Church of England Temperance Society that appointed “police court missionaries” who tried to keep offenders away from consuming alcohol and help them to resettle (van Kalmthout and Durnescu 2008, p. 4). The first mentioning of probation is to be found in the 1886 “Probation of First Offenders Bill,” definitely structuring the field with the 1907 “Probation of Offenders Act” creating probation services all around the country.

A second character has also shaped the probation history (Vanstone 2008) since John Augustus (1784–1859) is considered as being the first probation officer. Born in Woburn, Massachusetts, he was a thriving shoemaker living in Boston. Taking part as a spectator at a police court audience in 1841, he asked the judge to guarantee a patronage to a drinking offender during a period of probation. After extending his supervision activities to other types of offense, he published a sum of his achievements under the title “A report of the Labors of John Augustus, for the last 10 years, in aide of the unfortunate.” He instituted during this period some working criteria for modern probation services such as the selection of probationers (he favored first-time offenders), social enquiries with criminal background, and personality check, he controlled individuals’ behavior and made sure that they would go to school or to work (United Nations 1951). In the wake of Augustus’ experiences, Massachusetts became the first US State to pass a law on probation in 1878. The development in other states was so dynamic that within 60 years, both the federal State and 34 US states had also introduced probation laws.

Creation Of Probation Services In Other Countries

Probation was introduced in national legislations around the world mostly between 1878 and 1920 (Vanstone 2008) under the influence of modern criminal law that emphasized on individualization of the sentence execution and reintegration of the offender. New penal instruments arose: conditional and suspended sentence, conditional release and parole, bail, house arrest, etc. (van Kalmthout and Durnescu 2010).

In the Netherlands, the establishment of probation in 1823 took example to the English system. It offered school training and religious support, conducted with private funding and voluntary workers. In 1910, the State undertook the tasks of probation, focusing on the criminal’s treatment in order to protect the society and involving a national association dealing with offenders (J€ager 2010). The probation officers gained professionalization with a 1947 regulation (Reclaseringsregeling) that structured their activities and curriculum. After some back and forth, the probation associations and the state justice agencies found in the mid-1980s a balance between autonomy and control.

In Germany, influenced by the French and Belgium systems, the first practice of probation (Bewa€hrung) took place at the end of the nineteenth century in the frame of supervision for juveniles (Schoch 2003). Even if some associations already accompanied released prisoners, today’s German probation structure was experimented in 1951 and then implemented in 1953 in both penal code and juvenile court law (J€ager 2010, p. XIV). Confined to a control aspect of the probationers, probation duties extended 1969 to further help and support activities, connecting with the extension of suspended sentences (up to 2 years) that came into force the same year. Federal statistics show since 1963 and their first data an increase of probationers, from 27,401 up to 131,381 in 1990 and 180,074 in 2010, which represents a growth of 37 % within the last 20 years, much more than the general population evolution with 2.6 % between 1990 and 2010. Though, the lack of performance or efficiency evaluation has remained controversial (Dunkel and Spiess 1983).

In France, probation is a recent institution in relation with other countries. Even if conditional release was already adopted in 1885 and supervised freedom (mise en liberte´) in 1908, special structures for released prisoners were introduced only after the Second World War in 1946. Called “comities for help and placement of released prisoners” and placed under the hierarchy of the court president, they supervised conditional released and supported released prisoners having served the complete sentence. The contemporary probation scheme was formed by a 1958 governmental law creating the enforcement judge responsible for the execution of sentences (Juge de l’Application des Peines (JAP)), the suspended sentence with obligations (Sursis avec Mise a` l’Epreuve (SME)), and the comity of probation and help to release prisoners (Comite´ de probation et d’assistance aux libe´re´s (CPAL)). The professionalization of educators (1966) was a further step toward more numerous, and better trained staff, assimilating then in 1967 the probation functions of social workers to educators delegated to probation.

In Switzerland, albeit the Fribourg canton organized actions to support released prisoners as early as 1842, the probation movement appeared in some districts (so in Basel or Zurich) only at the end of the nineteenth century, during which societies acted to protect released prisoners from banishment – hence its appellation Schutzverein (protection association). At the same time, a priest named Meyer, who was during years intervening in prisons, published a brochure entitled “Call and project of status for the creation of a patronage society in favor of released prisoners,” which took some decades until its first creation in 1888. Eventually, this private body was integrated and transformed into a public service in 1941 and structured in its contemporary shape in 1967, taking its current denomination of “probation service” in 2005.

On the other side of the Atlantic, directly inspired by the 1887 British “Probation of First Offenders Act,” probation has been developed in Canada as of 1889 through the law enabling conditional release for first-time offenders with neither surveillance nor time limit. The first Canadian criminal code from 1892 stipulated that offenders convicted of a petty crime and sent to prison could have their sentence suspended and be released with the obligation to sign an agreement in which he commits himself to behave properly. The Canadian Parliament added in 1921 the notion of surveillance operated by a person nominated by the court. Ontario was the first province to legislate on the creation of probation services in 1922, later followed by British Columbia in 1946, which was still not the case for Quebec in 1956, even if there were already functioning help associations for released prisoners and further social agencies to control offenders under supervision. It is only in 1967 that the Ministry of Justice hired the first probation officers, embedded in a 1969 law on probation and custody. The evolution of Quebec probation services can be observed aid of the number of probation officers: 28 in 1970, then a considerable increase within 4 years (140 in 1974) and 335 in 2011.

Probation Services Today

Probation services become a reality in almost every jurisdiction in the world, especially in Europe. The comments in this section are based on the survey conducted by van Kalmthout and Durnescu in 2008 (where the source is different, it is indicated accordingly). Depending on the country size, the administrative structure, or the judicial traditions, probation services are organized either by the prosecution service (The Netherlands, Luxembourg), by the social service (Scotland), or independently close to the court system. A special group of countries have their probation service located in the third sector (The Netherlands, Austria). In their case although the probation activity is delivered by the NGOs, they are contracted and monitored by the Ministry of Justice. At the national level, some of them are coordinated by independent departments within the Ministry of Justice (Portugal, Romania) or by the prison and probation departments (France, Denmark, Estonia, England and Wales, some Federal States in Germany). Looking at the recent history, one could claim that as a European trend, probation services tend to be more and more associated with the prison departments. Most of the time, reasons for amalgamating these two structures have to do with reducing the administrative costs and with the need for a better and closer relationship between these two institutions.

The federal states however tend to display a more mixed picture. In Switzerland, for instance, the probations services are organized at the canton level. In Germany, probation service is structured around the regional courts in some Landers while in others, it is incorporated within the social services but still under the coordination of the Ministry of Justice. In the USA, probation activities are delivered by hundreds and hundreds of organizations and structures, sometimes at the federal or state level but other times even at the municipal level. As a result, probation systems in the USA are highly fragmented and local oriented with no standards and no coherence at the federal level (Burrell 2010).

Under the umbrella of “probation,” a lot of activities are delivered or enforced. What they all seem to have in common is the desire to prevent re-offending. Some of these activities are based on a court decision (supervision, enforcement, programs, electronic monitoring, etc.). Some other activities are based on the law (victim assistance, half-way houses) or on a more general vision that probation service should serve the community (prevention in schools or other hot spots). There are also countries that are more and more involved in diversionary measures or even provide mediation services (Czech Republic, Slovakia, etc.). Probation services in Scotland and England and Wales deliver bail advice and supervision to prevent pretrial detention. Having admitted the huge variety of tasks that probation service is called upon, there are core probation activities that can be found in almost all the jurisdictions. They are decision support (presentence reports, social inquiry reports, etc.), supervision of offenders in the community, and they provide assistance to cover the so-called criminogenic needs. Since the early 1970s, more and more countries have introduced community service orders as an intermediate sanction. The organization and supervision of community service belongs to the tasks of the probation services (as far as it is not transferred to private organizations of the third sector).

Aiming at changing the offending behavior, most of the probation services recruit probation staff among the graduates of social/behavioral sciences. In some countries, probation staff has to graduate from a social work school (Denmark, Germany, Italy, the Netherlands, Norway, Scotland, etc.) or other related fields. In England and Wales, there is a special Diploma on probation that trains probation officers in a blended model: education and practice.

One major difficulty admitted by a large majority of the European jurisdictions is work overload. Depending on geographical distribution, judicial practice, or the season of the year, the workload varies between 35–50 clients (in Denmark, Estonia, etc.) and 50–100 clients (Switzerland, Luxembourg, etc.). In most cases, the maximum number of cases that one probation worker could supervise is not regulated firmly in any regulation. As it was shown in the literature, work overload has a significant impact on probation effectiveness. Another side effect of probation is the one noticed especially in the USA where intensive supervision was introduced. It seems that the more surveillance probation service provides, the more recall into prison it produces (see for instance Solomon et al. 2005).

A Future For Probation?

Looking at the history of probation around the world, one can project a future of it obviously with a high level of generalization and oversimplifications.

As suggested in the first section of this research paper, probation services were called initially to “save the souls” of offenders. Increasingly, over the years, probation services started to treat and to supervise sick or unadapted deviants. Probation orders and latter suspended sentences were invented locally and diffused around the world with some local adaptations. What is almost common around Europe is that in the last 20 years, the supervision element of probation became more and more prevalent. Electronic monitoring and extended supervision are only two examples of how surveillance and controlling captured the probation discourse in some Western countries. In other countries, like in the German-speaking or Scandinavian states, probation service is still seen predominantly as a rehabilitation agency. Central and Eastern European countries seem to develop probation services according to their local needs and to what it seems to be fashionable in the West. One example of this mood is the risk assessment tools that were exported massively and sometimes uncritically from the West to the Central and Eastern European countries. Sometimes, this policy transfer comes within the evidence-based rhetoric, but sometimes, it comes with the package in different EU programs. There are reasons to believe that penal policy transfer will intensify on a short and medium run.

Apart from the national or regional diversity drivers, there are also more and more forces acting toward Europeanization. The European Council adopted in 2008 a framework decision (2008/947/JHA) aiming at facilitating rehabilitation through transferring supervision among EU countries. The Conference European of Probation (CEP), an intergovernmental association of probation, also fights for a common set of principles and values for probation in Europe. The EU Commission funds many projects that support states to develop probation systems with the help of other states. An Erasmus project is also running, aiming at setting up a European probation curriculum for probation. These are only a few examples of how harmonization forces work toward a European probation system.

Once electronic monitoring was introduced either as a stand-alone measure or as a tool to implement other measures (like house arrest), it was created the premises of involving the private sector into the control industry. In most of the European countries, handling of the electronic monitoring equipment is in the hands of the private sector.

There are countries where electronic monitoring is delivered fully only by the private sector (see England and Wales). Within the context of neoliberalism and facilitated by the budgetary austerity, the private sector becomes more and more visible in delivering probation activities. For instance, Serco, a security company, in partnership with London Probation Trust, has started in October 2012 to carry out “community payback” sentences (or community service or unpaid work, in other jurisdictions). Although this probation privatization is not necessarily a general trend, it might be an indication of how probation and probation activities could look like in the future.

Fortunately, as it was illustrated above, developments in the probation world are, sometimes in spite of the harmonization drivers, incremental and local. It took decades from the moment suspended sentence was introduced in France and Belgium till the moment of upgrading it to the suspended sentence under supervision in almost all over Europe. Electronic monitoring was also introduced after several years of piloting. The time between the introduction and testing of a new penal technology until this technology is fully implemented is shorter and shorter, but still one cannot hope for revolutionary changes in the probation world. Every change will be introduced slowly, with a lot of resistance from many levels and in the end the core idea of probation – to rehabilitate offenders – will probably rise again and again in different shapes and forms.


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