NCJ Number
49892
Journal
JOURNAL OF CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE Volume: 60 Issue: 4 Dated: (DECEMBER 1969) Pages: 479-493
Date Published
1969
Length
15 pages
Annotation
THE FUNCTION OF JUDICIAL DISCRETION IN THE IMPLEMENTATION OF PROBATION IS EXAMINED, AND THE NEED FOR GUIDELINES AND FOR PROCEDURAL SAFEGUARDS AGAINST ARBITRARY JUDICIAL ACTIONS IN GRANTING AND REVOKING PROBATION IS DISCUSSED.
Abstract
CONGRESS AND ALL OF THE STATE LEGISLATURES HAVE ENACTED PROBATION STATUTES, BUT FEW OF THE LAWS ARE SPECIFIC ABOUT WHEN OR HOW TO GRANT OR REVOKE PROBATION. INDIVIDUAL TRIAL COURTS HAVE EXERCISED BROAD DISCRETIONARY POWER, AND OCCASIONALLY THIS POWER HAS BEEN ABUSED. IN GRANTING PROBATION, ABUSE TAKES PLACE IN THE SELECTION OF OFFENDERS FOR PROBATION AND IN THE IMPOSITION OF CONDITIONS OF PROBATION. A NUMBER OF PROBLEMS ARISE WHEN PROBATION CONDITIONS ARE VAGUE. HOWEVER, SEEKING TO GAIN AND SEEKING TO CONTINUE PROBATION STATUS HAVE DIFFERENT PROCEDURAL IMPLICATIONS, AND UNLIMITED JUDICIAL DISCRETION IS A GREATER PROBLEM IN PAROLE REVOCATION THAN IN PAROLE GRANTING. DISCRETIONARY POWER UNCHECKED BY PROCEDURAL PROTECTIONS CAN PREVENT PROBATIONERS FROM PRESENTING A VALID DEFENSE AT A REVOCATION HEARING. THE GATHERING OF RESEARCH AND STATISTICAL DATA SHOULD ENABLE PROBATION TO BECOME A BEHAVIORAL SCIENCE, WITH IMPROVED TECHNIQUES AND GUIDELINES FOR SUPERVISION. IN THE MEANTIME, THE STATES AND THE FEDERAL GOVERNMENT SHOULD PLACE AND ENFORCE LIMITATIONS ON THE CONDITIONS THAT MAY BE IMPOSED ON PROBATIONERS. HOWEVER, MERE LIMITATIONS WILL NOT JUSTIFY THE PLACE OF DISCRETIONARY POWER IN THE FACTUAL DETERMINATIONS OF A PROBATION REVOCATION PROCEEDING. HERE, DISCRETIONARY POWER SHOULD BE ELIMINATED, AND APPROPRIATE PROCEDURAL PROTECTIONS AFFORDED TO PROBATIONERS. (AUTHOR ABSTRACT MODIFIED--LKM)