NCJ Number
87745
Journal
New England Journal on Prison Law Volume: 8 Issue: 2 Dated: (Summer 1982) Pages: 367-392
Date Published
1982
Length
26 pages
Annotation
In selecting probation and imposing terms of supervision, the sentencing tribunal should specify with particularity the purposes of the disposition to provide a precise framework for executing the conditions.
Abstract
The most notable contemporary penal topic concerns revision of punishment goals. Modern rehabilitative philosophy, or the rehabilitative ideal, is being discarded in favor of determinate sentencing values advocating retribution and equality. Probation experiences a multiple impact. Sentencing goals are becoming more certain, thus losing their traditional diffuse character. In essence, probation is becoming a just deserts sanction to be applied commensurately with the offender's misconduct. Simultaneously, the criminal justice system is strained by prison populations of unprecedented size. Thus, the use of probation can be expected to expand as prison overcrowding rises and prosecution of white-collar crime intensifies. Probation will assume an administrative orientation emphasizing even-handed supervision combining punitive and rehabilitative terms. The unconstitutional condition doctrine serves as the organizing concept for analyzing probation conditions. Judicial interpretations are important regarding the application of this doctrine to selected probation conditions. The primary goal of probation is the prevention of recidivism. In terms of this goal, during supervision the probationer may be subjected to various forms of search, evaluated by reference to fourth amendment principles. Concerning social and vocational relations, the courts have liberally imposed conditions restricting probationer relationships. Commanding abstention from alcohol and illegal drugs in an ordinary probation term enforceable by mandatory testing procedures. The most controversial questions arise from conditions less directly connected to crime prevention. These conditions involve the enforcement of community mores and suppression of proselytism. Additional problems are caused by the concept of restitution. The article includes 138 footnotes.