Probation Decisions

Probation officers’ decisions affect the legal experiences and case outcomes of a substantial number of defendants and offenders. Probation officers exercise discretion and use subjective judgments and standardized assessment tools in making decisions that influence the dispositions of criminal cases and offenders’ progress under community supervision. Probation officers serve the court by providing judges with information, protect the community by enforcing the conditions of probation, and assist offenders to reintegrate into the community by brokering services and other resources. Probation officers make decisions at the pretrial, presentence, and postsentence stages of the criminal justice process.

Pretrial Decisions

At the pretrial level, probation officers evaluate defendants for release on bail or pretrial supervision, which allows them to remain free while their case is pending. The evaluation process focuses on defendants’ risk of flight and their likelihood of continuing their criminal activity. Probation officers collect information on a variety of factors that are related to offenders’ ties to the community and their propensity to continue their criminal activity. Officers use interviewing techniques and data collection forms as the basis for their judgments. They must decide whether to recommend pretrial release and, if so, whether to recommend a bail amount or conditions of pretrial supervision, including curfews, home confinement, and drug testing. They also must decide what constitutes an infraction or violation of those conditions and how to respond to the infraction—for example, asking the judge to issue a warrant for a person’s arrest and ordering that the person be detained in jail until the case is heard in court.

Presentence Decisions

When the case proceeds to the trial or plea bargaining stage, probation officers help judges render sentences through presentence investigation (PSI) reports. Judges order presentence investigations, mostly in felony cases, to obtain background information that will guide them in imposing the most appropriate sanction. In particular, PSIs assist judges in ascertaining whether prison is an appropriate sentence in light of the crime and the offender’s criminal and social history. Information in a PSI places the offense in a larger context that informs the judge in determining whether probation is a sufficiently punitive and fitting alternative to incarceration.

To obtain information for PSIs, probation officers interview offenders; review their criminal, educational, and military records; and contact family members and others who know important details about the offender’s life. The PSI report presents the judge with the offender’s comprehensive social, criminological, and psychological profile. The report covers the offender’s history of treatment for medical, psychiatric, and substance use disorders as well as the circumstances of the offense. In addition, it covers his or her social and family relationships, present living conditions, and financial and housing status.

The PSI report also describes the resources available to help people who might be sentenced to probation and contains specific sentencing recommendations, if requested by the court or required by the statute. A probation officer can present his or her opinions regarding the offender’s motivation and readiness to change and the circumstances surrounding the offender’s criminal involvement. The PSI formulates an appropriate supervision or treatment plan, and if the person is sentenced to prison, it helps prison administrators decide whether the person should be placed in a minimum-, medium-, or maximum-security facility. Probation officers exercise discretion when conducting a PSI, deciding what questions to ask, how to ask the questions, what details to include in or exclude from the report, and whether the offender will be better served by probation or imprisonment.

Probation officers display their own particular styles in the PSI information-gathering process. For example, the officer whose style reflects a social work orientation might focus on psychological data, whereas the officer oriented toward rule enforcement might focus on the offender’s criminal record and current charges. Individual differences among officers and variations in department standards produce wide disparities in the manner in which presentence investigations are prepared by officers and used by judges.

Postconviction Decisions

Probation requires offenders to be supervised in the community under conditions of release. All probationers are subject to statutorily mandated or standard conditions of release, such as reporting to their probation officer and getting permission from the sentencing judge to leave the jurisdiction. They also are prohibited from owning a gun. An arrest on probation constitutes a violation that could result in a prison sentence. The special conditions of probation can be punitive (paying restitution) or rehabilitative (attending drug treatment) and are designed to respond to the particular facts of the case or needs of the offender. Probation officers are responsible for enforcing the conditions of probation and reporting to the court violations of probation.

Shortly after an offender is sentenced to probation, probation officers conduct an intake interview to assess an offender’s risk and needs. Risk assessment strategies evaluate the likelihood that an offender will be rearrested while on probation, whereas need assessment strategies evaluate offenders’ problems and needs for services in areas such as addiction, mental health, and employment. Probation officers use case classification tools that structure their decisions about case management strategies. These tools contain static (age, instant offense, and number of previous convictions) and dynamic (employment, educational level, and substance use disorders) factors. The most common tool, the Level of Service Inventory-Revised, examines both dynamic and static variables to classify cases for supervision and services.

In the intake assessment process, probation officers must determine the degree to which offenders are likely to recidivate and identify which members of their caseloads pose a threat to public safety. Based on this determination, officers devise and implement a supervision strategy that monitors probationers at a level commensurate with their likelihood of future criminal activity. The officer’s duty as a control agent is to ensure that the conditions of probation are fully satisfied, investigate reports or indications of behavior that could jeopardize the safety of others, and initiate probation revocation proceedings to remove offenders from the community for failing to comply with the conditions of their probation sentence.

The reintegration of offenders into the community requires an evaluation of probationers’ needs and an identification of their major problem areas and deficiencies. The purpose of the evaluation is to formulate a treatment plan that will encourage offenders to fulfill the probation contract. Officers act as counselors in their efforts to rehabilitate offenders. The probation officer’s basic function in this area is to support the probationer in making important transitions: from law-abiding free citizen to convicted offender under supervision, and finally a return to free citizen.

Although probation officers are usually the principal change agent in offenders’ lives, they are often unable to deliver all the interventions necessary to accomplish the successful reintegration of offenders. Limited departmental programs and personnel and large caseloads demand the use of community resources. The probation officer as resource broker assesses the service needs of the probationer, locates the social service agencies that address those needs, refers the probationer to the appropriate program, and verifies that the probationer has actually received services. The officer is responsible for facilitating the delivery of services that are unavailable in the community.

Probation officers perform a number of tasks throughout the probation process to protect the community and foster offender change. The supervisory decision, which is central to the surveillance or control aspect of probation, consists of two components. The first component pertains to the frequency with which a probationer reports to the officer. Although limited by legal statute and specified at the time of sentencing, the frequency of contacts is typically modified in accordance with the court’s or officer’s assessment of the offender’s risk of continued criminal behavior (potential threat to the community). Probationers can report on a monthly (the prescribed and most common frequency), bimonthly, or weekly basis. In general, offenders who are at greater risk report more often.

The second component pertains to the type or mode of supervision. An officer can monitor a probationer through office visits, telephone contacts, mail-in reports, or electronic contacts. An offender’s assessed level of risk determines the selection of a supervision mode. For example, felony probationers are required to visit the probation office regularly or observe a curfew; people who have committed less serious offenses are allowed mail-in reports. Related to the determination of a supervisory mode is the officer’s decision to assume a particular interactive posture with different members of their caseload. The changes in posture involve shifts in a probation officer’s attitudes, focus, and emotional tone during contacts with offenders.

Officers’ supervisory styles are altered in response to probationers’ demeanor on report days; their genuine willingness to cooperate in the rehabilitation process; and their expressed resolve to lead a productive and law-abiding life (e.g., find a job, finish school, and refrain from gang activity). These factors are generically referred to as the probationer’s “attitude.” Offenders who are honest in their self-disclosures and willingly accept the conditions of their sentence are viewed as possessing a positive attitude. A negative attitude, in contrast, is expressed in a probationer’s belligerence, indifference, sarcasm, or blatant attempts to patronize or curry favor with an officer. Such behaviors are indicative of a poor adjustment to probation.

At any point during the probation sentence, an officer can initiate collateral contacts or cultivate relationships with a probationer’s spouse, parent, teacher, friends, or employer or representatives of other agencies serving the offender. These contacts verify information such as residence, employment, and compliance with special conditions. They can also be initiated to enlist the aid of significant others in efforts to control, rehabilitate, and reintegrate the offender. If officers suspect that a probationer has resumed illegal activities, they can request reports that detail subsequent arrests or charges that the probationer might have incurred during the probation sentence.

Another discretionary decision of probation officers involves the determination of whether the probationer can benefit from counseling or extradepartmental resources. This decision consists of a gross evaluation of major problem areas (emotional, physical, interpersonal, and financial). During initial meetings with a probationer, the officer searches for telltale signs and symptoms of drug or alcohol abuse, psychological disorders, intellectual deficits, or inadequate social or vocational skills.

In the past, probation officers relied on their own sensitivity, common sense, and subjective judgments to alert them to probationer needs and direct them in formulating problem-solving strategies. For example, studies have shown that probation officers, especially veterans, have stereotypes of offenders (“burglar,” “white-collar criminal,” “gang member”) that affect their decisions about supervision. The type of counseling services delivered by officers typically follows a didactic, instructional model. Officers are reluctant to render treatment services because of their educational backgrounds, which have not prepared them to conduct actual psychotherapy sessions. However, officers are increasingly likely to use cognitive behavioral therapy, which is an evidence-based technique for changing offender behavior.

Officers are faced with two limitations in selecting an appropriate treatment: The time they spend counseling or advising an offender is restricted because of large caseloads, and the choice of referrals is dictated by situations or factors outside the officer’s control (e.g., economic conditions that limit the number of job referrals; a lack of government funds, which limits openings in drug treatment programs). Therefore, officers must be highly selective in choosing probationers who need treatment most and are most likely to benefit from interventions. Offenders who take the initiative in requesting services or are younger, have shorter criminal records, and display a positive attitude are generally considered the best candidates for counseling and adjunctive resources.

Probation officers can recommend an offender for early termination if the offender is no longer a significant risk to the community, has exhibited exemplary behaviors (taken the necessary steps toward becoming a functional member of society), and has shown that the continuation of the sentence might disrupt the offender’s pursuit of a noncriminal lifestyle (early termination can be recommended on the basis of an offender’s request to leave the state for gainful employment). In contrast, officers can ask the court to extend periods of supervision beyond the expiration of the original sentence. Final authority in this matter rests with the court. However, because judges are so dependent on the information furnished by probation officers, they generally concur with the officer’s request.

The prospect of early termination is an incentive for good behavior and demonstrates to probationers that cooperation and compliance with rules are rewarded. A key factor in the decision to recommend early termination is the regularity of the offender’s reporting. If a probationer has been reporting regularly, it increases the likelihood that his or her case will be reviewed for early termination. The best probationers are those who routinely report at their scheduled times. If a cancellation is unavoidable, they promptly call their officers to inform them about the extenuating circumstances that prevented their attendance. The probationers who are frequently tardy, periodically skip appointments, and call with untenable excuses for failing to report are evaluated negatively. In fact, when queried about the progress of a case, officers are likely to respond on the basis of a quick tally of the number of times the particular individual has missed a report day.

The final discretionary task of a probation officer is the decision to initiate revocation proceedings. In most circumstances, if offenders have perpetrated a crime during the probation term, their sentence is automatically revoked. However, if the violation does not involve a new offense or the breaking of a serious rule, the officer can evaluate the offender’s criminal history, attitude, report behavior, and employment status before filing a violation of probation petition to the court. A probationer who is seen as having potential for healthy change is often “given a pass” for minor transgressions. The officer carefully screens and selects the violations that are eventually brought to the court’s attention.

Following the filing of a revocation petition, the officer must decide whether or not to recommend revocation and a sentence to prison or a continuance or extension of the probation sentence. This determination is based on the same set of factors as the one used to decide whether to file a violation-of-probation petition. On occasion, officers will suggest a short stay in jail when the probationer seems to have promise but needs to be “jolted” by serving some “hard time.” The court does not always follow the probation officer’s recommendations. Nonetheless, as in the case of early termination, the court usually abides by the officer’s suggested course of action.

References:

  1. Abadinsky, H. (2005). Probation and parole: Theory and practice (7th ed.). Upper Saddle River, NJ: Prentice Hall.
  2. Champion, D. J. (1998). Probation, parole, and community corrections (3rd ed.). Upper Saddle River, NJ: Prentice Hall.
  3. Larivee, J. J. (2001). Returning inmates: Closing the public safety gap. Corrections Compendium, 26, 1-12.
  4. Lurigio, A. J., & Carroll, J. S. (1985). Probation officers’ schemata of offenders: Content,development, and impact on treatment decisions. Journal of Personality and Social Psychology, 48, 1112-1126.
  5. Mackenzie, D. L, Browning, K., Skroban, S., & Smith, D. A. (1999). The impact of probation on the criminal activities of offenders. Journal of Research in Crime and Delinquency, 36, 423-434.
  6. Petersilia, J. (2001). Reforming probation and parole in the 21st century. Lanham, MD: American Correctional Association.
  7. Stevens, D. J. (2005). Community corrections: An applied approach. Upper Saddle River, NJ: Prentice Hall.

Return to the overview of Sentencing and Incarceration in Forensic Psychology.