1. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Chapter 4 Diversion and Probation: How Most Offenders Are Punished 1

2. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Diversion “The halting or suspension, before conviction, of formal criminal proceedings against a person, conditioned on some form of counter performance by the defendant.” “The halting or suspension, before conviction, of formal criminal proceedings against a person, conditioned on some form of counter performance by the defendant.” Counter performance: The defendant’s participation, in exchange for diversion, in a treatment, counseling, or educational program aimed at changing his or her behavior. Counter performance: The defendant’s participation, in exchange for diversion, in a treatment, counseling, or educational program aimed at changing his or her behavior. True Diversion: Keeps an offender out of the system and helps him or her avoid formal prosecution and labeling. True Diversion: Keeps an offender out of the system and helps him or her avoid formal prosecution and labeling. Minimization of Penetration: Keeps an offender from going further into the system. Minimization of Penetration: Keeps an offender from going further into the system. 2

3. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Three Objectives of Diversion 1. Prevent future criminal activity by diverting certain defendants from criminal justice processing into community supervision and service. 2. Save prosecution and judicial resources for serious crimes by offering, for less serious crimes, alternatives to the usual prosecution process. 3. Provide, where appropriate, a vehicle for restitution to communities and victims of crime. 3

4. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Rationales For Diversion The experience and stigma of formal arrest, trial, and conviction can actually encourage more criminal behavior. The experience and stigma of formal arrest, trial, and conviction can actually encourage more criminal behavior. Diversion is less expensive than formal processing through the system. Diversion is less expensive than formal processing through the system. Public perceptions of inappropriateness of formal processing for certain crimes. Public perceptions of inappropriateness of formal processing for certain crimes. Diversion gives typical clients a better chance at life. Diversion gives typical clients a better chance at life. 4

5. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Types of Diversion Unconditional: Terminates criminal proceedings at any point before adjudication with no threat of later prosecution. Offers treatment, counseling, and other services, the use of which is voluntary. Unconditional: Terminates criminal proceedings at any point before adjudication with no threat of later prosecution. Offers treatment, counseling, and other services, the use of which is voluntary. Conditional: Dismisses charges if the defendant satisfactorily completes treatment, counseling, or other programs ordered by the justice system. Conditional: Dismisses charges if the defendant satisfactorily completes treatment, counseling, or other programs ordered by the justice system. 5

6. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Probation The conditional release of a convicted offender into the community, under the supervision of a probation officer. The conditional release of a convicted offender into the community, under the supervision of a probation officer. It is conditional because it can be revoked if certain conditions are not met. It is conditional because it can be revoked if certain conditions are not met. Types of conditions Types of conditions Monetary penalties, drug testing, employment requirements, and mandatory treatment. Monetary penalties, drug testing, employment requirements, and mandatory treatment. 6

7. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Reasons for Probation Keeps offenders in their communities and facilitates reintegration. Keeps offenders in their communities and facilitates reintegration. Avoids the institutionalization and stigma of imprisonment. Avoids the institutionalization and stigma of imprisonment. Reduces the expense of supervision. Reduces the expense of supervision. Fair treatment for offenders whose crimes do not merit incarceration. Fair treatment for offenders whose crimes do not merit incarceration. 7

8. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Goals Of Probation Protect the community. Protect the community. Carry out court-imposed sanctions. Carry out court-imposed sanctions. Identify probationers’ supervision and service needs. Identify probationers’ supervision and service needs. Support crime victims. Support crime victims. Coordinate and promote use of community resources. Coordinate and promote use of community resources. 8

9. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill History Of Probation Judge Peter Oxenbridge Thatcher laid the foundation for probation in Boston in 1830. Judge Peter Oxenbridge Thatcher laid the foundation for probation in Boston in 1830. Judge Thatcher made the first recorded use of release on recognizance in the U.S. Judge Thatcher made the first recorded use of release on recognizance in the U.S. In 1878, the Massachusetts legislature passed the first statute authorizing probation. In 1878, the Massachusetts legislature passed the first statute authorizing probation. On March 4, 1925 President Calvin Coolidge signed the National Probation Act. On March 4, 1925 President Calvin Coolidge signed the National Probation Act. 9

10. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Characteristics of Adults on Probation, January 1, 2006  4.1 million adults  77% male and 23% female  55% white, 30% black, 13% Hispanic, 1% other other  49% felony and 50% misdemeanor  57% had a direct sentence to probation  59% successfully completed probation in 2005 2005 10

11. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Probation Statistics 11

12. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Does Probation Work? The repetition of criminal behavior (recidivism) The repetition of criminal behavior (recidivism) Amount of restitution collected Amount of restitution collected Number of offenders employed Number of offenders employed Amounts of fines and fees collected Amounts of fines and fees collected Hours of community service performed Hours of community service performed Number of treatment sessions attended Number of treatment sessions attended Percentage of financial obligations collected Percentage of financial obligations collected Rate of enrollment in school Rate of enrollment in school Number of days of employment Number of days of employment Number of days drug free Number of days drug free 12

13. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Suggestions for Effective Probation Programs Implement high-quality programs and aggressively enforce them. Implement high-quality programs and aggressively enforce them. Invest adequate resources in treatment and surveillance. Invest adequate resources in treatment and surveillance. Show that probation is tough on crime. Show that probation is tough on crime. Target drug offenders. Target drug offenders. Make probation research a priority. Make probation research a priority. 13

14. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Duties Of Probation Officers Case investigation Case investigation Prepare the presentence report (PSR). Prepare the presentence report (PSR). Client-specific plans. Client-specific plans. Supervision Supervision Intervention – providing offenders access to a wide variety of services. Intervention – providing offenders access to a wide variety of services. Surveillance – monitoring the activities of probationers. Surveillance – monitoring the activities of probationers. Enforcement – making probationers accountable for their behavior and making sure they understand the consequences of violating the conditions of probation. Enforcement – making probationers accountable for their behavior and making sure they understand the consequences of violating the conditions of probation. 14

15. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Presentence Reports (PSR) Provides a social and personal history as well as an evaluation of a defendant as an aid to the court in determining a sentence. Provides a social and personal history as well as an evaluation of a defendant as an aid to the court in determining a sentence. Two main purposes: Two main purposes: Assists the court in reaching a fair sentence. Assists the court in reaching a fair sentence. Outlines a treatment plan for the offender. Outlines a treatment plan for the offender. Judges follow the recommendation over 80% of the time when probation is recommended and over 60% of the time when prison is recommended. Judges follow the recommendation over 80% of the time when probation is recommended and over 60% of the time when prison is recommended. 15

16. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Probation Revocation Revocation – the formal termination of an offender’s conditional freedom. Revocation – the formal termination of an offender’s conditional freedom. Revocation hearing - A due process hearing that must be held to determine whether the conditions of probation have been violated before probation can be revoked and the offender removed from the community. Revocation hearing - A due process hearing that must be held to determine whether the conditions of probation have been violated before probation can be revoked and the offender removed from the community. 16

17. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Revocation Triggers Technical violation – A failure to comply with the conditions of probation. Technical violation – A failure to comply with the conditions of probation. Absconding, positive urinalysis, failure to participate in treatment, and failure to report to the probation officer are among the most common violations. Absconding, positive urinalysis, failure to participate in treatment, and failure to report to the probation officer are among the most common violations. New offense violation – The arrest and prosecution for the commission of a new crime. New offense violation – The arrest and prosecution for the commission of a new crime. 17

18. © 2009 The McGraw-Hill Companies, Inc. All rights reserved. McGraw-Hill Gagnon v. Scarpelli (1973) and Morrissey v. Brewer (1972) A probationer is entitled to: Written notice of the charge Written notice of the charge Disclosure of the evidence Disclosure of the evidence The opportunity to be heard and to present evidence and witnesses The opportunity to be heard and to present evidence and witnesses Confront and cross-examine witnesses Confront and cross-examine witnesses Judgment by a detached and neutral hearing body Judgment by a detached and neutral hearing body A written statement of the reasons for revoking probation A written statement of the reasons for revoking probation Counsel Counsel 18