CONSIDERATIONS RESPECTING SENTENCING AFTER PROBATION REVOCATION - IS THIS FLEXIBLE INSTRUMENT OF JUSTICE UNDER-UTILIZED?

• NCJ Number: 58911
• Journal: San Fernando Valley Law Review Volume: 6 Issue: 2 Dated: (SPRING 1978) Pages: 93-116
• Author(s): R M CARSTAIRS
• Date Published: 1978
• Length: 26 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE MAIN ISSUE IN THIS ARTICLE ON THE NATURE OF PROBATION AND RIGHTS AND DUTIES OF PROBATIONERS IS PROBATION REVOCATION AT THE DISCRETION OF TRIAL COURTS IN THE EVENT OF REPEATED CRIMINAL CONDUCT.

Abstract

PROBATION SIGNIFIES LIBERTY UNDER CERTAIN IMPOSED CONDITIONS. ITS BASIC PURPOSE IS TO PROVIDE A PROGRAM THAT GIVES OFFENDERS THE OPPORTUNITY TO REHABILITATE THEMSELVES WITHOUT CONFINEMENT. IN EVERY STATE, TRIAL COURTS ARE AUTHORIZED TO IMPOSE A SENTENCE THAT DOES NOT ENTAIL CONFINEMENT IN AN INSTITUTION AND CAN ALLOW OFFENDERS TO LIVE IN THE COMMUNITY, SUBJECT TO COMPLIANCE WITH CERTAIN CONDITIONS. FAILURE TO COMPLY WITH THESE CONDITIONS CAN RESULT IN A PRISON OR JAIL TERM. IN THE ORDER GRANTING PROBATION, THE COURT CAN SUSPEND THE IMPOSITION OR THE EXECUTION OF THE SENTENCE. THERE ARE TWO FORMS OF SUSPENSION: (1) IMPOSITION OF SENTENCE IS SUSPENDED, WITH NO JUDGMENT IMPOSED AND THE DEFENDANT PLACED ON PROBATION; AND (2) SENTENCE IS PRONOUNCED AND IMPOSED, WITH EXECUTION OF THE SENTENCE OR SOME PART OF IT SUSPENDED AND THE DEFENDANT PLACED ON PROBATION. THERE IS CONFLICT IN THE REVOCATION OF PROBATION BETWEEN DISCRETIONARY POWERS OF TRIAL COURTS AND MINIMUM REQUIREMENTS OF DUE PROCESS. OTHER IMPORTANT CONSIDERATIONS IN PROBATION AND PROBATION REVOCATION ARE THE ADMISSIBILITY OF EVIDENCE IN PROBATION HEARINGS, WHETHER TO CONDUCT VIOLATION HEARINGS BEFORE TRIAL, STANDARDS OF PROOF IN PROBATION REVOCATION, PARAMETERS OF DISCRETION AND FLEXIBILITY IN DISCRETIONARY PROCEDURES, AND THE EFFICACY OF THE PROBATION AND SENTENCING SUBSYSTEM IN CALIFORNIA (NETWORK OF COMPUTER TERMINALS TO SERVE MUNICIPAL COURTS IN HANDLING MISDEMEANOR CASES AND FELONY PRELIMINARY HEARINGS). THE CONCEPT OF PROBATION IS A FLEXIBLE AND USEFUL ASPECT OF THE CRIMINAL JUSTICE SYSTEM. IT IS ESSENTIAL, HOWEVER, THAT A COURT BE ABLE TO RECONSIDER ITS DECISION OF GRANTING PROBATION WHEN IT BECOMES LIKELY THAT AN INDIVIDUAL WILL REPEAT CRIMINAL CONDUCT. CASE LAW IS CITED. (DEP)