Probation

History

The roots of probation can be traced to ancient times and to those who tried to mitigate the harshness of the criminal law. As the Bible and Mosaic Law explain, the idea of the “right to sanctuary” allowed those accused of crimes to avoid punishment: to escape vengeance from a victim's family an offender could go to certain cities and find refuge (Bianchi 1994). During the Middle Ages in England, the right to sanctuary was replaced by the “benefit of clergy.” From the thirteenth century until this practice was abolished by statute in 1827, persons accused of serious offenses could appeal to the judge for leniency by reading in court the text of the Fifty-First Psalm. The original purpose of this practice was to protect persons who were under church authority, such as monks and nuns, from the punitive power of the state represented by the king's law. Because this benefit was gradually extended to protect ordinary citizens from capital punishment—the predominant sanction for serious offenses under English law in those days—the Fifty-First Psalm came to be known as the “neck verse.” For a short period the benefit of clergy was practiced in the United States, but it eventually fell into disrepute because of its unequal application and confused legal character. Criticisms once leveled against it—arbitrariness and favoritism—are often directed today at probation: Detractors assert that the cynical penance of the privileged and socially advantaged affords them a leniency denied to less reputable offenders.

Also in England, a common law practice called “judicial reprieve” became widespread in the nineteenth century. If a convicted offender requested, the judge could elect to suspend either the imposition or execution of a sentence for a specified length of time, on condition of good behavior. At the expiration of that time, the offender could apply for a pardon. In the United States during the nineteenth century, judicial reprieve and later “recognizance” were introduced. Recognizance allowed an individual to be responsible for his or her own behavior until a future court hearing. The main thrust of reprieve and recognizance was to humanize the criminal law and mitigate its harshness. They foreshadowed the movement toward individualized punishment that would dominate corrections a century later. By the nineteenth century, then, the major justifications for probation—the need for flexibility in sentencing, and individualized punishment—already had strong support. Yet an institutionalized way of performing recognizance functions was still needed.

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