Probation and Parole: Theory and Practice CHAPTER Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Probation and Parole in Criminal Justice 1

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Probation and Parole in Criminal Justice Criminal justice system has conflicting goals and competing expectations:  Protect society while ensuring rights  Deter offenders without spending a lot of money

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved The “Why?” Probation and Parole 90 percent of all imprisoned offenders are eventually released Incarceration costs 12 times as much as probation and parole supervision Extensive use of probation and parole is, in reality, imposed by economics

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved The “Why?” Probation and Parole Cost of imprisonment and pressure of overcrowding may lead to:  Front-door programs  Back-door programs  Truth-in-sentencing  Three strikes and you’re out

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved The “Why?” Probation and Parole Who is the “average” offender?  About 90% are male  About 60% are younger than age 30  About 70% have not completed high school  Poor, and often from a minority group

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Criminal Justice in America A system that is not systematic:  Police receive about 42% of budget  Courts receive about 22% of budget  Corrections receive about 29% The police arrest more people than the rest of the system can handle

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Criminal Justice in America Courts encourage “bargain justice” Probation and parole feel the pressure of prison overcrowding and understaffing Criminal law reflects power relations in society Those with power are often not even defined as criminal

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved What is a Crime? Criminal? Crime – a violation of the criminal law Criminal – a person convicted of a crime Are you a criminal if you are not arrested or convicted? Prisons populated and repopulated by the least skillful criminals with multiple convictions.

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Early Responses to Crime Primitive systems include:  Lex talionis – eye for an eye  Code of Hammurabi  Restitution  Trial by ordeal  Compurgation

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Classicalism From 18th Century Enlightenment Period Justice based on equality Concepts incorporated into the Declaration of Independence Based on concept of the social contract and natural rights

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Classicalism Influenced by An Essay on Crimes and Punishments – Beccarria (1764) Social contract – Conditions of law are the same for all  All citizens enjoy the same rights  Law should state a penalty for each crime

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Classicalism Identical sentences for same crimes Free will - everyone has the ability to choose between right and wrong Law of rational choice – mens rea Purpose of punishment is deterrence

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Classicalism Humans tend toward hedonism - seek pleasure and avoid pain Purpose of criminal law is retribution and deterrence Additional requirements - certainty and promptness

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved 8 Tenets of Classicalism 1.Humans are rational 2.All persons are created equal 3.All persons have an equal stake in society, and thus, an equal stake in preventing crime 4.Free will endows each person with the power to be law abiding or criminal

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved 8 Tenets of Classicalism 5.People tend toward hedonism 6.The purpose of punishment is deterrence 7.Punishment must be meted out fairly, with absolute equality, and in proportion to the offense 8.Punishment must be prompt and certain

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Neoclassicalism Maintains the belief in free will But also considers: 1.Past criminal record 2.Insanity and retardation 3.Age

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Positivism Method for examining and understanding social behavior Scientific method Classical theory is based on philosophy and law, whereas positivist view is based on empiricism in an effort to determine the cause of crime

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Positivism Influence of social Darwinism: The Criminal Man – Lombroso (1876) Crime considered symptom of some form of biological, psychological, or social pathology Focus on the criminal, not the crime Deterministic basis for criminal behavior not free will

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Comparison Classical View Free will Choice Punishment Deterrence Positivist View Determinism Cause Treatment/ Incarceration

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Entering the System Probable Cause  “Reasonable grounds for suspicion supported by facts and circumstances sufficiently strong in themselves to lead a reasonably cautious person to believe that a person is guilty of a particular crime” (Ohio Adult Parole Authority) Level of evidence required to initiate a probation or parole violation

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Levels of Evidence (From highest to lowest) BEYOND A REASONABLE DOUBT  Guilt in a criminal trial  Finding of delinquency in juvenile court CLEAR AND CONVINCING EVIDENCE  Used in extraordinary civil cases, such as commitment, child custody

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Levels of Evidence PREPONDERANCE OF EVIDENCE  Most civil cases  Status offense cases in juvenile court  Probation and parole revocation hearings

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Levels of Evidence PROBABLE CAUSE  Search warrants/arrest warrants  Summary/Warrantless searches  Probation/Parole preliminary violation hearings

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Pretrial Court Appearance Pretrial court appearances:  Bail and legal representation considered  If defendant is under probation or parole supervision, bail decision is affected  Probation/parole warrant may be filed as a detainer

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Pretrial Hearings Pretrial hearings (initial appearance, preliminary hearing, or arraignment)  Official charges are read  The need for counsel is considered  Bail is set or reviewed If the charge constitutes a felony, a probable cause hearing is held to determine if probable cause justified arrest

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Pretrial Hearings If the judge finds probable cause exists Prosecutor may file an information:  Brings the case to trial Prosecutor may present evidence to a grand jury:  If the grand jury votes a true bill, the defendant is indicted and goes to trial

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Trials or Guilty Pleas Plea Bargaining  About 85 to 95 percent of all criminal convictions are the result of a guilty plea Trial  Prosecutor must prove actus reus and mens rea

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Trials or Guilty Pleas Actus reus  A wrongful act or deed  The need to prove that a crime actually occurred Mens rea  The legal standard that refers to the question of intent

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Trials or Guilty Pleas Guilt must be established beyond a reasonable doubt The jury’s decision for guilt or acquittal must be unanimous, or the result is a hung jury In the event of a hung jury, the prosecution must decide whether to retry the defendant before a different jury

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Goals of Sentencing 1.Retribution 2.Incapacitation 3.Deterrence  Specific  General 4.Rehabilitation 5.Restitution

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Sentences Sentencing complicated by concern for:  Proportionality - that punishment be commensurate with the seriousness of the crime  Equity - that similar crimes receive similar punishment  Social debt - that the severity of punishment should consider the offender’s prior criminal record

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Sentences Judge imposes sentence:  Fine  Suspended sentence  Probation  Incarceration Any Combination of the above

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Appeals Defendant can appeal a guilty verdict Appellate court cannot receive new evidence Decisions rendered can affect other cases by setting a precedent Rulings can govern the actions of criminal justice officials

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Key Terms Front door programs Back door programs Truth-in- sentencing laws “Three strikes and you’re out” System that is not systematic Classicalism Social contract Free will Mens Rea Actus Reus Utilitarianism Neoclassicalism Determinism Social Darwinism

Probation and Parole: Theory and Practice, 12e Howard Abadinsky Copyright © 2015, © 2012 by Pearson Education, Inc. All Rights Reserved Key Terms Preponderance of evidence Beyond a reasonable doubt Level of government Mandatory release National Crime Victimization Surveys Proportionality Probable cause Plea bargain Positivism Lex talionis