Probation Round the World

Koichi Hamai, Robert Harris, Mike Hough, Renaud Ville, Ugljesa Zvekic

• Publisher: Routledge
• Year: 2005
• eBook ISBN: 9781134821419
• Edition: 1
• Topic: Medicine
• Subtopic: Health Care Delivery

Whilst they retain a recognisable common core, probation systems round the world are enormously varied, and many are in a state of rapid change. Probation Round the World is a study of probation in ten countries, ranging from the well-resourced and heavily professionalised services of Britain and the old Commonwealth to the reliance on lay-supervisors in Japan and the community-based system which has recently been set up in Papua new Guinea.
Probation Round the World resulted from collaborative research conducted by the United Nations Interregional Crime and Justice Research Institute (UNICRI) and the British Home Office. The first part of the book comprises a review of the development and convergence of probation within the Civil Law and Common Law traditions. The second part describes the origins and functions of systems in the ten countries, drawing out salient differences and similarities.
It will provide invaluable reading for students of criminal justice and criminology and for professionals working in probation managment and government.

Part I
Comparative probation: some
theoretical, methodological and
empirical considerations

Chapter 1
Studying probation
A comparative approach

Robert Harris

The particular importance of comparative social research is that it permits the discovery of possible universals, the specification of which empirical regularities are system-specific, the reassignment of rules not only as intrasystemic or extrasystemic but within those categories…and, finally, the reexamination of concepts and methodologies that is mandated by the discovery of exceptions.

(Grimshaw 1973:15)

Comparative researchers face a number of potential pitfalls and this is as much the case for researchers in the field of probation as for others. Certainly any a priori assumption that probation is a readily identifiable ‘thing’ replicable with only administrative variation in different criminal justice systems should be viewed with scepticism: probation itself requires first problematizing and then clarifying. It does not, however, follow that a relativism which decrees that ‘anything’ can constitute probation must ensue. After all, probation round the world must presumably possess certain characteristics for it to be rendered recognizable, even if what those characteristics are is contested.

One quite precise definition of probation has been offered but perhaps fails to encapsulate the range of systems across the world, as opposed to those in the developed world:

Probation is a method of punishment with a socio-pedagogic basis, characterised by a combination of supervision and assistance. It is applied under the free system to offenders selected according to their criminological personality and their receptiveness, in relation to a system whose aim is to give the

subject the chance of modifying his approach to life in society and to take his place in the social environment of his choice without the risk of violating a penal norm again.

(Cartledge et al. 1981:22)

Our starting point is an earlier, less precise definition offered by the United Nations almost half a century ago which contains assumptions recognizable in almost all probation jurisdictions today:

probation is a method of dealing with specially selected offenders and…consists of the conditional suspension of punishment while the offender is placed under personal supervision and is given individual guidance or ‘treatment’.

(United Nations 1951:4)

This definition contains four main elements: offenders must be selected as suitable; a conditional suspension of punishment is entailed; there is an element of personal supervision; and this involves guidance or treatment. With the caveat that, as will become clear, the conflation of probation and supervision has not been historically invariable and that ‘conditional suspension of punishment’ will emerge as more complicated than it may seem, we say something about each in turn.

SELECTION

The dimension of selection does not of itself take us far, for other than in respect of mandatory sentences a process of selection must precede any determination. With probation, however, when the UN definition is set in the context of the document as a whole it implies a particular character of and procedure for selection, hinted at in the use of the adverb ‘specially’. This is the more so when we recall that the title of a key UN publication was The Selection of Offenders for Probation (United Nations 1959).

If, too, we read ‘specially’ correctly, as involving individual rather than category selection (as might operate in the routine application of a small fine for minor theft), the selection is likely to have been made on grounds tangential to legal variables surrounding the offence (such as gravity, intent or prior criminal record) but central to the perceived psychopathology, or at least personal characteristics of the offender. This implies a mode of selection in which the influence of the human or social science expert strongly influences the decision of the legal expert. Hence the document notes also:

Probation is an essentially modern method for the treatment of offenders and as such, it is rooted in the broader social and cultural trends of the modern era… This modern trend coincides with attempts to prevent crime by the improvement of social conditions and by development of social services. It is characterized, furthermore, by the recognition of the social rehabilitation of the individual offender as a main object of penal policy, and by the rational selection and development of effective means to this end.

(United Nations 1951:15)

And again:

the considerations specified as those to which the court should have regard in selecting offenders for release on probation, should not only be compatible with, but should be directly related to, the essential purpose of probation…. The only appropriate criteria seem to be (a) the amenability of a specific offender to successful treatment on probation, and (b) the consideration of general prevention.

(United Nations 1951:231)

The centrality of the experts in determinations is not, however, constitutive of probation, and a willingness to revere probation officers as powerful therapists is no prerequisite for the establishment of a probation system. Indeed, as the years up to 1951 saw in many countries the gradual displacement of the legal by the therapeutic discourse in relation to probation, so have the years since 1951 seen a move away from the therapeutic principles of the UN document in the majority of developed probation systems, not back to a principle of unsullied legalism but towards increasing juridical control of the experts.

It would be too simple to perceive this reversion to justice merely as a crude response to a more punitive environment: though it is true that such an environment exists in a number of western nations, the toughening of punishment is as much product as cause of the various political and economic transformations which have taken place. These transformations include:

• The deteriorating world economic situation following the oil crisis of the mid-1970s. Economic recession is characteristically detrimental to liberal social policies, and in particular there is evidence of an association between such recession and a reversion to the principles of classical justice (Paternoster and Bynum 1982).
• The empirical limitations of therapeutic endeavours which have come to be exposed by the increasing attention now paid to the relative effectiveness of different professional tactics. The conventional position today is more optimistic than that of the 1970s when a mood of nihilism, usually referred to in shorthand as ‘nothing works’, based on what was arguably a misreading of an influential ‘evaluation of evaluations’ (Martinson 1974), was à la mode. Nevertheless, even if we accept that some things sometimes work, evaluation research has too often fallen back on a methodology more suited to clinical drug trials than the evaluation of the intricate work of individual professionals working with individual offenders. In particular, by comparing different therapies and regarding professionals as interchangeable variables—taking supervision as a constant irrespective of the individual inputs of officer and offender—much evaluation research presents a model of probation as amenable to randomized application. Beyond this, however, little credence is currently accorded theories which, by granting aetiological status to individual psychopathology, justify a social response based on clinical treatment. Accordingly a return to the relatively unbridled power of the expert is almost nowhere a plausible political reality.
• In a number of major western countries since the 1970s the therapeutic professions have come under pressure not only from the new right but from the radical left, who have regarded their extensive therapeutic powers as covert social control (Cohen 1985). This pincer movement has if anything strengthened during the 1980s and early 1990s. From the right’s specific attack on social professionals for tending, in Mrs Thatcher’s phrase, to produce ‘sociological alibis’ for bad acts has emerged a broader-based critique of the role and function of professionals generally. Hence, in the United Kingdom, the 1980s have seen:

the removal of professional monopolies (such as those of solicitors and opticians), funding squeezes and job losses (for example in the Universities). Similarly, the decade has witnessed a transformation of the employment conditions of

doctors and other health workers, the introduction of a national curriculum in schools, and radical proposals for the reform of our antiquated but powerful legal system. Scrutiny units have been instituted, with independent private sector expertise bought-in, and civil servants in particular have been subjected to hitherto unimagined forms of monitoring. New auditing agencies have been formed and existing regulatory institutions given enhanced authority. In short, the élites have felt a similar cold draught to that which has traditionally chilled mainly blue collar workers.

(Harris 1994:38–9)

The challenge from the left has diversified too, from a predominantly class-based platform during the 1970s and early 1980s which perceived professional action as imposing middle-class norms on working-class families (see for example Donzelot 1980; Meyer 1983; Harris and Timms 1993a) to a more specific critique that to give undue discretion to individuals is to give free rein to systematic discrimination against already disadvantaged social groups (see for example Hudson 1993). This perspective has coalesced perfectly with the concern of the right to ‘manage’ professionals to justify the formation of an increasingly ‘evaluative state’ (Henkel 1991a; 1991b).

Though the UN document of 1951 presupposes that selection is based on therapeutic criteria, subsequent events have seen probation become increasingly central in penal policy in the west at a time when psychopathology has been widely repudiated as a general cause of crime. In Britain for example, government policy is increasingly to identify probation as part of an integrated criminal justice strategy including crime prevention, policing, victim support and the management of offenders (see for example Moxon 1985; Locke 1990; Harris 1992). This conjunction in turn means that a different set of principles for probation is coming to be articulated, based on public policy priorities such as the imposition of cheap, non-custodial punishment for offenders whose crimes are not deemed to justify the dedication of a costly prison place (see for example Greenwood with Abrahamse 1982; and, contentiously, Lemert 1993).

CONDITIONAL SUSPENSION OF PUNISHMENT

Probation’s suspensiveness takes different forms, and discussing it will preoccupy us in Chapter 2. Suspensiveness does not mean that probation cannot be punishment, albeit that in its original formulation in Massachusetts in 1878 reference was made to people being ‘reformed without punishment’.¹ It is widely believed that any punishment entailed in probation should at least regard rehabilitation as a desirable by-product, and in many countries probation is regarded as a means to a constructive end albeit that how the end is to be achieved is sometimes unclear.

Whether probation is defined as punishment or ‘an authoritarian method of treatment’ (United Nations 1951:187), it is a strategy of control simultaneously constructive and suspensive. Its controlling characteristics are embedded in this dualism: probation is an act of kindness offered as an opportunity for reformation, but containing in its fabric the possibility of overt punishment in the event of infraction (Harris and Webb 1987). Hence, while probation offers support and encouragement to those willing to take advantage of opportunity, when faced with infraction or failure probation officers are influential in determining when undesirable behaviour becomes unacceptable. At that point it becomes their duty to initiate coercion. Intrinsic to probation, therefore, are interwoven strands of liberation and constraint (Harris 1989b): probation offers criminals an opportunity, but in a context which means that any choice open to them is heavily constrained (Raynor 1978). To decline the offer of probation is possible in some jurisdictions, though to do so is likely to have negative consequences. For many offenders probation accordingly becomes an offer hard to refuse.

It follows that a purely voluntary social service for offenders without sanction in the event of infraction would not be probation. Probation’s etymology is germane: probatio, a noun, has the sense of ‘proving oneself, while probator is ‘an approver’; and while probation officers may in individual cases offer unconditional support on a voluntary basis—to ex-prisoners, distressed offenders who have been otherwise dealt with or people suffering marital disharmony—this is not constitutive of probation and if it was all probation officers did they would not in this definition be probation officers.

SUPERVISION AND GUIDANCE OR TREATMENT

Depending on contemporary ideologies the guidance or treatment entailed in probation may be psychologically or psychiatrically derived therapy, a confrontational stance based on maintaining anxiety (an approach often used with paederasts), a social skills-based approach to encouraging offenders to reject temptation (McGuire and Priestley 1985) or a low key activity reflecting precisely the etymology of ‘supervision’— watching over someone, possibly in the kindliest of ways.

One way of tracing the dominant ideologies of probation is by the changing training literature. Only in Britain is this literature at all extensive, however, and even there only in the last twenty years. Until recently the literature was clinical in orientation, emphasized the problems of adolescence and presented probation officers as benign and skilled therapists sensitive to the inner turmoils of ‘clients’ but by no means impervious to their external disadvantages (see, successively, Le Mesurier 1935; Friedlander 1947; Glover 1949; King 1958; Monger 1964). The United Nations expressed it thus:

The scientific foundation of probation as a method for the treatment of offenders is to be found in the contemporary sciences of human behaviour, i.e., the social, psychological and behavioural sciences, and in the application of these sciences to the problems of criminal behaviour.

(United Nations 1951:268)

The role of the probation officer, who in Britain worked primarily with adolescents, was to become an ‘auxiliary ego’ (see in particular Blos 1962) to augment an internal ego which, in the language of ego psychology (Freud 1937), was weakened in adolescence by a massive implosion of id. Hence the probation officer was to be a mature father figure who ‘suppo...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• ILLUSTRATIONS
• PREFACE
• ACKNOWLEDGEMENTS
• EDITORS’ INTRODUCTION
• PART I: COMPARATIVE PROBATION: SOME THEORETICAL, METHODOLOGICAL AND EMPIRICAL CONSIDERATIONS
• PART II: COMPARATIVE CASE STUDY ON PROBATION SERVICES AND PRACTICES
• BIBLIOGRAPHY