Supervising Offenders in the Community

A History of Probation Theory and Practice

Maurice Vanstone

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9780754671749
• eBook ISBN: 9781351896924
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

In this work Maurice Vanstone provides an authoritative and original account of the history of probation. This invaluable reference tool offers readers a new way of reading probation history and presents an original context for thinking about current policy and practice. While the study is essentially UK-focused, it also provides a comparative perspective by exploring the history of probation in the USA. The author's research has produced the only history of probation practice that does justice to the mixture of influences on the early probation service and paves the way for today's more evidence-based approach. The work is based in part upon original documents and interviews with retired and serving officers. Supervising Offenders in the Community will greatly interest criminologists and criminal justice, social policy, social history and social work academics and postgraduate students.

Chapter 1

The Origins of the Probation Service: the Orthodox Accounts

The letter of Frederic Rainer to his friend and vicar, Canon Ellison the chairman and co-founder of CETS, has a prominent position in most accounts of the origins of the probation service.¹ Osier (1995) refers to it as legend, and in so far as the original is apparently lost (Page 1992) and cannot therefore be authenticated, he is correct. However, quotes that seem to originate from the letter appear frequently in the literature, the most substantial of which is in an advertisement for the now defunct Rainer Foundation (no date):

…once a person got into trouble through drink or other cause, there seems no hope for him. Offence after offence and sentence after sentence appeared to be the inevitable lot for him or her whose foot had once slipped. Can nothing be done to stop this downward career? I hope that some practical work could (sic) be organised in the police courts, and I enclose five shillings that a fund may be started so that an agent may be appointed to attend the police courts to help the prisoners.

A paraphrase of this is repeated both in a history of the first sixty years of CETS (Church of England Temperance Society 1922), and an account of the Rainer Foundation (Kay: no date). Moreover, a report on a public meeting at Windsor Town Hall held in 1927 to commemorate the unveiling of a plaque to Frederic Rainer (and in attendance at which were his son and the son of Canon Ellison) quotes an address by the Reverend James Bell, chairman of the Advisory Board of the Police Court Mission:

In London he [Rainer] beheld the sight of prisoners and ex-prisoners, helpless and friendless. His heart was moved with pity. He thought of his friend and vicar – Canon Ellison – who was at that time Chairman and founder of the C.E.T.S. He stated the case for prisoners and enclosed 5s. donation, begging that an agent be appointed to attend courts (Windsor, Eton and Slough Express 1927).

The circumstantial evidence of the sending of the letter as an historical event, therefore, is strong. However, legend or fact its true importance lies not in the part it plays in describing how the progenitors of the probation officer came about but rather in its symbolic status in orthodox histories. As argued in the introduction, those histories mostly place the origins of probation within the context of humanitarianism, good works and continual ‘reformist pressure’ (Bochel 1976; Jarvis 1972, 1972a, King 1969; Minn 1950; Timasheff 1941, 1941a) or what more recently Pratt (2000a) has described as the civilising continuum.² The discourse of those histories is imbued with an acceptance of motivation based on an undiluted altruism towards the unfortunate, and its emblem is Rainer’s letter.

It is not the purpose of this history to deny the humanitarian elements in the development of the probation project and subsequent probation practice; its history is incontrovertibly one of humanity and altruistic endeavour but the story is more complicated than that and the majority of histories to date are distinguished by their failure to unravel that complexity. The largely untold early history of probation draws it into a force field of social, religious and political ideologies and arguments, an exploration of which is essential to a full understanding of probation as a concept and a practice. Before taking an excursion into this relatively uncharted territory it is necessary to condense the essence of the orthodoxy to be challenged.

The Origins of Recognizance

While the essential facts contained in these accounts are consistent, there is variation in the speculations about the origin of this concept of releasing people from court without conviction on some kind of condition that they behave themselves in the future. Put together they provide a useful backdrop to our understanding of statutory probation. One commentator, in discussing the obscure beginnings of the principle of binding over, refers to an attempt to establish Athelstane, Anglo-Saxon king as the originator of probation:

…men should slay none younger than a fifteen winters’ man [and] if his kindred will not take him nor be surety for him, then swear he as the bishop shall teach him, that he shall shun all evil, and let him be in bondage for his price. And if after that he steal, let man slay him or hang him, as they did his elders (Report of the Departmental Committee on the Treatment of Young Offenders 1927, quoted in Le Mesurier 1935: 19).

Novel though it might be Chute and Bell (1956) consider this ‘one of the earliest recorded examples of the modification of rigid criminal laws’ (11). Le Mesurier (the editor of the first handbook of probation) also refers to part of a verse in Chaucer’s Shipman’s Tale.³ In addition, she publicises Sheldon Glueck’s assertion made in 1930 that the idea of probation is much older than the work of John Augustus (the first known probation officer who lived in Boston).⁴ According to him, that credit is due to the Pilgrim Fathers in so far as the Records of the Courts of Assistants of the Colony of Massachusetts reveal ‘illustrations of the seventeenth century use of what looks like probation. For instance, the General Court respited the case of Mrs. Harding until the next Court, and ordered that in the meantime she be dealt with by Mr. Cotton, Mr. Wilson and the Church, to see “if she may be convinced and give satisfaction” …. John Cooper, Junior, was for some offence “committed to his father for correction”’ (Glueck 1930, quoted in Le Mesurier 1935: 20-1).

Grinnell (1917) adds weight to this view in a discussion of the application of criminal justice before the adoption of the American Constitution which he characterizes as ‘the bloody period of criminal administration’ (595). He identifies three practises that might fairly be identified with the principles underlying probation. The first, Benefit of Clergy was an exemption from prosecution ‘which originated in the claims of ecclesiastics to be exempt from criminal process before the secular courts [and was] subsequently extended by various English statutes […] to commoners who could establish themselves as ‘clerks’ by proving that they could read’ (Grinnell 1941: 73). According to Grinnell, as early as the 17^th century, bishop’s clerks performed the function of the modern probation officer in providing an opinion to the court on the eligibility of the prisoner’s claim to Benefit of Clergy (Grinnell 1917: 597).⁵ The practice was brought to America by colonists and survived up to the Constitution but afterwards because of concerns about its arbitrary application it was abolished by statute in 1841 (Chute and Bell 1956). The second method of alleviating severe punishments for relatively minor offences, the provision of security for good behaviour (or ‘good abearance’), was a common practice throughout the New England States during the 18^th century. For example, in a New Hampshire case in 1746, Justice Burns commented: ‘I lately granted the good behavior against one for that he had bought Ratsbane and mingled the same with Corn and then wilfully and maliciously did cast the same among his Neighbors (sic) Fowls, whereby most of them died…’ (600). The third method, Grinnell describes as the subjecting of indictments ‘to the keenest technical scrutiny and granting motions to quash after verdict with the result of freeing the prisoner’ (600). Thus the courts were able to introduce a degree of humanity and ‘practical justice’ into a harsh system. He does not argue that each necessarily represents a pure form of probation but rather his concern is with the relevance of their core principle: in his view, the subsequent probation system can be described accurately as ‘a modern scientific application of the underlying principle in these methods’ (601). This analysis leads him to the conclusion that whilst the recorded history of probation began in Massachusetts with the case of Commonwealth v. Chase, it is ‘quite probable’ that probation in some form was applied some time before.

In acknowledging the significance of the Commonwealth v. Chase case, Grinnell speculates that the judgement of the presiding judge, Peter Oxenbridge Thatcher, might be ‘the earliest recorded judicial discussion of the subject of probation in its modern sense’ (601).⁶ The basic facts of the case are that the defendant, Jerusha Chase, had pleaded guilty to theft from a dwelling house, and the indictment was placed on file because she entered into recognizance with sureties to come before the court in the future if required. Subsequently, she was tried for an offence of theft and was acquitted; following this verdict the County Attorney filed for sentence on the original offence. Judge Thatcher established the legal concept of probation with the following words:

But it is asked by her counsel, where an indictment has been suffered to sleep upon the files of the court for several terms, and no notice has been taken of it on the record or docket to keep it alive, whether it is competent to call it up at a future period, and to proceed upon it as a living process? But I do not understand that a prosecution like this can ever be said to be dead in law. If it should be said, however, to be hard measure to pronounce judgment after it has been suspended for years, I answer, that the party might at any time have appeared in court, and demanded the judgment of law. It has been delayed from tenderness and humanity, and not because it ceased to be the right of government to claim judgment. By mutual consent, therefore, the judgment has been delayed till this time, and this consent takes away all error in the proceedings. (Quoted in Grinnell 1917: 602-1).⁷

Moreland (1941) seems to provide confirmation of embryonic probation in Massachusetts as argued by Grinnell when he challenges the traditional view that probation began with John Augustus, and instead asserts it ‘came from the enlightened legal thought of Boston judges in the decade before him’ (2). According to his version, people had been given a form of probation in Boston as early as 1830, and had been supervised by voluntary probation officers. However, Moreland emphasises the importance of Augustus in as much as he provided an exemplar of a ‘treatment process, which would gain the interest, understanding and respect of the courts’. Without this, he argues, probation could not have been developed from its embryonic form in ‘legal thought and practice’ (2).

Like other commentators, Timasheff (1943) highlights the importance of existing institutions which historically in North America and Britain had been part of the framework of ‘preventative justice’; namely, suspension of sentence, recognizance for peace and good behaviour, and the ‘friendly’ supervision of ex-prisoners and young offenders by benevolent people and charitable organizations. He acknowledges the use of recognizance in Massachusetts during the 17^th century, and accepts that there are no recorded cases in Britain until the 19^th century; nevertheless, he cites Blackstone’s reference to the issuing of recognizance as a well established institution⁸ to support his contention that the practice occurred in Britain a century earlier (Timasheff 1941).

In their discussion of the development of probation for juveniles Flexner and Baldwin (1914) identify the roots of child protection and correction through the ‘constructive work of the court’ as the power used by English Chancellors through which children were made wards of the King (or wards of the State in America) by the Chancery Court (7). The application of this power was confined to children who were neglected or destitute, and it was the juvenile courts which extended the practice to children who had offended.

Others also refer to what according to Bochel (1976: 4) is ‘widely accepted as the legal origins of the probation system’, namely, the medieval common law concept of recognizance (Brownlee 1998; Jarvis 1972; King 1969). However, Ayscough (1929)⁹ points out that the International Prison Congresses had promoted the use of continental law as a means of imposing a conditional sentence, a procedure which was different to the English system in that it involved a conviction. Inherent in the principle of recognizance is the suspension of sentencing and conditional release, and it was this Flexner and Baldwin (1914) argue that led inevitably to the court requiring ‘some record of the conduct of those so treated’, thus stimulating the introduction of some form of oversight (79). Notwithstanding these arguments there is general agreement that it is in the refinement of this concept that the influence of Massachusetts is most significant, for as Le Mesurier (1935: 21) puts it: ‘[e]ven if America borrowed from us a valuable legal instrument, we must gratefully acknowledge that it was returned to us tempered by imaginative insight and forged to new purposes’. Johnson, F. R. (1928)¹⁰ has no doubts that probation originated in America, and proclaims that its development in Europe ‘in large measure followed American antecedents’ (14).

The Work of Matthew Davenport Hill and Edward Cox

Whatever the truth about these various interpretations of history the influence of John Augustus in America and the Warwickshire magistrates, Matthew Davenport Hill and Edward Cox in Britain is unchallengeable (Bochel 1976; Jarvis 1972; Page 1992). In this country in the 1820s, the Warwickshire magistrates adopted the practice of committing young people who came before them to the care of their employer following, it is suggested, imprisonment for a day. They did not use bail, recognizance, or any system by which they could follow up a case to find out if it was successful. Matthew Hill practised as a lawyer in those courts and was influenced by magistrates at Stretton – on – Dunsmoor who in 1817 established reformatories that aimed to reform juveniles through outdoor work and a family atmosphere (Bartrip 1975).¹¹ Later in 1841 when appointed as Recorder in Birmingham, he determined ‘to try the experiment myself (Hill 1887: 351) but he introduced what he believed to be an improvement on the Warwickshire magistrates’ system by including the keeping of a register and follow-up inquiries by ‘a confidential officer’ (Bochel 1976: 5).¹² In addition, he made it a requirement that the parents or guardians signed a statement that they took on ‘the obligation to do their best for the child’ (Minn 1950: 128). Accounts such as these focus exclusively on Hill’s humanitarian attitudes to juvenile offenders; but he had particular and strongly held views about the treatment of offenders which provide a broader canvas for his portrait. These will be examined later; for the moment, it is illuminating to draw on a more contemporary account of his practice. In his charge to the Grand Jury of Birmingham in 1848 it is noted that:

for a period of seven years, beginning early in the year 1841, he had thus acted with regard to juvenile offenders:- that when there was ground for believing that the individual was not wholly corrupt – when there was reasonable hope of reformation – and when persons to act as guardians kind enough to take charge of the young convict (which at first sight would appear to present a great difficulty, but which in practice furnished little impediment to the plan), he had felt himself justified in at once handing over the young offender to their care, in the belief that there would be better hope of amendment under such guardians than in the gaol of the county (Hill 1857: 117).

Hill built checks into his system by using a confidential officer to visit whoever had agreed to act as guardian in order to investigate and collect and register details of what was happening. It is reported that during a seven year period 166 juveniles were dealt with in this way; of these 71 were deemed to have been of good conduct (and most of those were completely reformed), 40 were assessed as being doubtful, 53 as bad, and two were dead. The system appears to have been successful (the first What Works bandwagon and similar to modern rates), and later he applied his system to adult offenders. However, Hill’s views were consistent with contemporary judgements about the purposes of punishment. He believed that pain should be ‘a necessary incident to the course of life’ of those sent to prison but that it ‘ought not to be inflicted in a vindictive spirit as retribution for the past’: rather it should retain the purpose of reforming the individual (102).

Later, as described in these accounts, Edward Cox when he was both the Recorder of Portsmouth and Chairman of the Second Court of the Middlesex Sessions from 1870 to his death in 1879 used a combination of a special inquiry officer and recognizance. He was reluctant to imprison first offenders who he argued should have the opportunity to redeem themselves, and this left him with two alternatives: either he could reprimand the offender or he could ‘place him under recognisances (sic) to come up for judgement when called on, with a threat of how tremendous that punishment will be if he offends again’ (Cox 1877: 37). The latter, which ‘require[d] the convict to find surety for his own coming up for judgement’ and was followed by discharge without punishment, ‘proved entirely successful’, and he had used it for a number of years (44). Before releasing a person on recognizance, Cox was concerned to ascertain through ‘c...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Foreword to the Paperback Edition
• Preface to the Paperback Edition
• Acknowledgements
• Preface to the Hardback Edition
• Praise for the Hardback Edition
• 1.  The Origins of the Probation Service: the Orthodox Accounts
• 2.  The ‘Crusade’ Begins: the Origins of the Probation Service Revisited
• 3.  Early Practice: Redemption, Pledges and Terrible Warnings
• 4.  From Awakening the Conscience to Providing Insight
• 5.  Folk Theories, Practice and the Heyday of Treatment
• 6.  The Emergence of Doubt: the Non-Treatment Paradigm and Alternative Therapy
• 7.  The Rise to Dominance of Evidence-Based Practice
• 8.  Conclusion: Back to Where we Started
• Appendices
• Bibliography
• Index