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NCJ Number: 49892 Find in a Library
Title: DISCRETIONARY POWER AND PROCEDURAL RIGHTS IN THE GRANTING AND REVOKING OF PROBATION
Journal: JOURNAL OF CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE  Volume:60  Issue:4  Dated:(DECEMBER 1969)  Pages:479-493
Author(s): J BASSETT
Corporate Author: Northwestern University
School of Law
Managing Editor
United States of America

Williams and Wilkins Co
United States of America
Date Published: 1969
Page Count: 15
Sponsoring Agency: Northwestern University
Chicago, IL 60611
Williams and Wilkins Co
Baltimore, MD 21202
Format: Article
Language: English
Country: United States of America
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)
Index Term(s): Alternatives to institutionalization; Judicial discretion; Probation; Probation conditions; Probation hearing; Probation or parole decisionmaking; Revocation; Right to Due Process
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=49892

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