Lore Rutz-Burri and Kate McLean
In addition to incarceration and monetary sanctions, the defendant may be sentenced to some form of community-based sanction.
Community Shaming
Some judges, seeking alternatives to jail or prison, have imposed creative sentences such as requiring offenders to post billboards, make public apologies, place signs on the door reading “Dangerous Sex Offender, No children Allowed,” or attach bumper stickers proclaiming their crimes. These sentences are intended to shame or humiliate the offender and satisfy the need for retribution. Shame is part of the restorative justice movement, but for it to be effective it needs to “come from within the offender. … Shame that is imposed without almost always hardens the offenders against reconciliation and restoration of the damage done” <footenote> Retzinger, S. & Scheff, T. (2000). Shame and Shaming in Restorative Justice. The Red Feather Journal of Postmodern Criminology. http://www.critcrim.org/redfeather/journal-pomocrim/vol-8-shaming/scheff.html </footnote>
Community Service
Although not necessarily specified in the criminal code, judges frequently sentence offenders to complete community service as a condition of probation. Generally, a probation officer or probation staff member will act as the community service coordinator. His or her job is to link the offender to the positions and verify the hours worked.
Probation
Kerper describes how states began to use probation as a sanction for criminal behavior.
“The authority to grant probation probably grew out of the traditional practice of judges of “suspending sentences.” The judge would simply fail to set a sentence or set the sentence and fail to direct that it be executed. The offender would then be released. If the offender’s subsequent behavior was satisfactory, nothing more would be done. If he had further difficulty with the law, the judge, usually on request of the prosecutor, would revoke his freedom. This time the judge would set a sentence, or reinstate the previous sentence, and the sentence would be executed. The common law authority of a judge to suspend a sentence was questionable, but many judges regularly exercised that authority. [1]
Probation is one of the most common alternatives to incarceration. Both probation and parole involve supervision of the offender in a community setting rather than in jail or prison. The primary purpose of probation is to rehabilitate the defendant. Thus, the court releases the offender to the supervision of a probation officer who then monitors the offender to ensure that he or she abides by the conditions of probation. With parole, the offender is first incarcerated and is later released from prison to supervised control. Under both procedures, offenders who violate the terms of their supervision can be imprisoned to serve the remainder of their sentences.
The Court has said little on probation since 1932 when it announced that probation conditions must serve “the ends of justice and the best interest of both the public and the defendant” (Burnes v. United States, 287 U.S. 216 (1932)). According to the Ninth Circuit Court of Appeals, “The only factors which the trial judge should consider when deciding whether to grant probation are the appropriateness and attainability of rehabilitation and the need to protect the public by imposing conditions which control the probationer’s activities” (Higdon v. United States, 627 F.2d 893 (9th Circ. 1980)). The Court has fashioned a two-step process for reviewing conditions of probation: first, it determines whether the conditions are permissible, and, if so, it determines whether there is a reasonable relationship between the conditions imposed and the purpose of probation.
Courts have invalidated the following probation conditions:
- Requiring the offender to refrain from using or possessing alcoholic beverages when nothing in the record showed any connection between alcohol consumption and the weapons violation of which the probationer had been convicted. Biller v. State, 618 So. 2d 734 (Fla 1993).
- Requiring the defendant to submit to a search of herself, her possessions, and any place where she may be with or without a search warrant, on request of a probation officer. (The Court noted that search of a probationer and his or her residence, with or without a warrant, based on reasonable suspicion that probationer violated the terms of probation would be valid.) Commonwealth v. LaFrance, 525 N.E. 2d 379 (Mass. 1988).
- Prohibiting custody of children unless it had a clear relationship to the crime of child abuse.
- Prohibiting marriage and pregnancy. Rodriguez v. State, 378 So.2d 7 (Fla. App. 1979).
- Prohibiting the defendant from fathering any children during the probation period. Burchell v. State, 419 So.2d 358 (Fla. App. 1982).
- Requiring the defendant to maintain a short haircut. Inman v. State, 183 S.E.2d 413 (GA. App. 1971)(The court found this condition was an unconstitutional invasion of the right to self-expression).
Courts have upheld the following conditions:
- Prohibiting offenders convicted of child pornography from having access to the internet, possessing a computer, and requiring the offender to submit to polygraph testing. See, United States v. Zinn, 321 F.3d. 1084 (11th Cir. 2003), United States v. Rearden, 349 F.3d 608 (9th Cir. 2003), State v. Ehli, 681 N.W. 2d 808 (N.D. 2004), People v. Harrisson, 134 Cal.App.4th 637 (2005).
- Prohibiting the probationer from fathering any additional children unless he could demonstrate he had the financial ability to support them, and that he was supporting the nine children he had fathered. State v. Oakley, 629 N.W. 2d 200 (Wis. 2001).
- Requiring probationers to pay all fees, fines, and restitution, refrain from contacting the victim, undergo treatment for substance abuse, participate in alternatives to violence classes, stay in school, not leave the state without permission, abstain from alcohol, not drive. These conditions that apply to all probationers are referred to as “general conditions of probation.”
Many jurisdictions authorize split probation and allow the judge to sentence the offender to a short period of jail as a condition of probation. In some cases, the offender will serve his jail time before he returns to the community under probation supervision. In others, he will be released first and serve his time on weekends. The federal system uses a similar procedure involving a more substantial jail sentence. The judges impose a split sentence under which the probationer is imprisoned for a period up to six-month and then is released on probation.
- Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 339). West Publishing Company. ↵
