Probation and Judicial Reprieve

Contemporary probation practice developed from earlier models, such as judicial reprieve. Looking for alternatives to required severe sentences, courts in [Page 339]the 19th century found ways to give certain offenders a second chance, which began a long period of individualized, offender-based correctional practice. Through the religious and humanitarian efforts of people like John Augustus, legislatures took note and began enacting laws authorizing probation officers. A number of probation laws existed by 1900, and they expanded through the next century.

While formal criminal procedure developed slowly in England from 1215 on, penalties for most crimes remained severe until the modern era. Because of the routine application of severe punishments and the cruel conditions in prisons, by the 1700s judges began to look for ways to prevent harsh punishments for some offenders. For centuries, some criminals had been given “release on recognizance,” meaning that they became indebted to the state for a financial sum, often requiring sureties, but that the debt later would be forgiven if they committed no more crime. Another method, “judicial reprieve,” arose, which allowed the judge to postpone the imposition or execution of an offender's sentence temporarily in order for the offender to petition the Crown for a pardon. Judges did so for a variety of reasons, including when the indictment was weak, the evidence suspicious, or the crime was slight and the criminal sympathetic. Judges opted for this leniency because, under the common law at the time, criminals were not granted new trials or appeals. Eventually, judicial reprieve was permitted in order to deport persons sentenced to death to British penal colonies.

By the 1800s, judicial reprieve became widespread in England, and judges in the United States began similar use of the practice, known as “suspended sentences,” to prevent outcomes that would otherwise end in a miscarriage of justice. The legal permissibility of such raw judicial power would be called into question later, but all of these practices foreshadowed the rising correctional shift toward individualized justice that would take hold for the next 100 years.

The movement toward humanizing punishment through such penal innovations appeared almost simultaneously in the mid-1800s in England and the United States, taking further form with the work of Matthew Davenport Hill and John Augustus. Hill was a British barrister and activist who was appointed recorder (judge). Having seen nominal jail time given to juveniles who would be supervised afterward, Hill decided to do the same thing in his court, except to give suspended sentences instead of nominal jail time. However, in the United States it is Augustus who is seen as the father of modern probation, with his influence on probation policy in Massachusetts, which eventually spread legally throughout the country.

Born in Massachusetts and a shoemaker by trade, Augustus frequented the courts because of his desire to help reform those struggling to obey the law, especially drunkards. Augustus believed that if such persons could have their sentences temporarily suspended, with his assistance they could reform themselves and thereafter convince the judge that their sentences should be suspended permanently. Thus, he began “bailing” offenders—that is, posting the recognizance bond for certain offenders he believed could be reformed. After three weeks, Augustus brought the persons back to court to report on their progress, to the general approval of judges. He sometimes referred to this as “probation,” although in the sense of a period of trial as opposed to the legal term it later grew to be.

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