CHAPTER 21.-PROBATION (Sections 2101-2106) This chapter governs the employment of a sentence to probation. In keeping with modern criminal justice philosophy, probation is stated as a form of sentence rather than, as in current law, a suspension of the imposition or execution of sentence.1 1. In General SECTION 2101. SENTENCE OF PROBATION Section 2101 authorizes the imposition of a sentence of probation in all cases except for a Class A felony or for an offense for which probation has been expressly precluded, and specifies the maximum permissible term of probation. Separate terms are set forth for felonies (not less than one nor more than five years), misdemeanors (not more than two years) and infractions (not more than one year.) 2. Present Federal Law 18 U.S.C. 3651 authorizes the court to suspend imposition or execution of a sentence after a judgment of conviction as to any offense not punishable by death or life imprisonment, and provides for a maximum term of five years. 3. Provisions of S. 1, as Reported Section 2101 excludes Class A felony offenders from receiving a sentence to probation thus, like current law, eliminating those offenders subject to a penalty of life imprisonment or death. In addition, probation is unavailable to an offender who is convicted of an offense that specifically precludes the employment of a sentence to probation.2 Unlike 18 U.S.C. 3651, the section does not on its face allow for split sentences. However, as a condition of probation the court may impose a term of imprisonment not to exceed six months,3 the same period permitted by current law. The major distinction between the proposed section and existing law is that the latter allows a term of probation of up to five years without regard to the severity of the offense. Section 2101, on the other hand, provides for differing terms depending on the seriousness of the violation. Where the offense is a felony there is a minimum term of one year and a maximum of five years. A misdemeanor conviction may lead to a term of probation up to two years with no required minimum. 1 Cf. section 2001; ABA, Standards Relating to Probation, p. 25. See sections 1811(b) (Trafficking in an Opiate) and 1823 (Using a Weapon in the Course of a Crime). Even with regard to sentences to imprisonment imposed for these offenses, however, offenders are immediately eligible for parole absent affirmative preclusion of such eligibility by the sentencing court. See sections 2301(d), 2302 (c), 3831. 3 Section 2103. The same section provides for confinement to a treatment institution as a condition of probation. An infraction may result in up to one year's probation, again with no minimum.* The section, like current law, permits the court full exercise of its discretion in the sentencing decision, subject only to the considerations set forth in the next section; it creates no presumption for or against probation. SECTION 2102. IMPOSITION OF SENTENCE OF PROBATION 1. In General Section 2102 enumerates the criteria to be considered in determining whether to impose a sentence of probation and in determining the length of the term and the conditions of probation. It also makes clear that, despite the susceptability of a term of probation to modification or revocation, such a sentence constitutes a final judgment. 2. Present Federal Law 18 U.S.C. 3651 authorizes the court to impose probation when it is "satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby." Probation is a matter of discretion and not of right." While the statutory law is silent on the subject of the finality of a judgment that includes probation, the courts have held that such a judgment, whether it suspends execution of the sentence or suspends imposition of sentence, constitutes a final judgment for purposes of appeal. 3. Provisions of S. 1, as Reported The criteria set out in section 2102 (a) are couched as mandatory items for consideration by the court. In the abstract, they create no presumption either for or against probation. They are enumerated merely to make more specific the considerations traditionally taken into account by the courts under the broad language of 18 U.S.C. 3651 and to assure their being given appropriate weight in all cases, while retaining the courts' authority to make reasonable exercises of discretion. The effect of these considerations is to require the court to focus carefully upon the needs of the defendant and the needs of society. Those who emphasize the rehabilitative purpose of sentencing to the exclusion of other purposes have supported the view that probation should be the sentence of preference. Others who would emphasize the necessity of providing effective deterrence to criminal conduct and to insure just punishment of offenders in a time of rapidly rising crime rates have suggested that there should be a presumption against the utilization of the sentence of probation. There is no doubt but that imprisonment, when compared with probation, is more effective as a punishment qua punishment; is more readily perceived for deter 4 The National Commission had proposed inflexible periods of five, two, and one year's duration for felonies, misdemeanors, and infractions, respectively. The Committee believes that such fixed periods may unduly restrict the court's options. See the recommendation of the National Legal Aid and Defender Association. Hearings, p. 1420. 5 United States v. Birnbaum, 421 F.2d 993 (2nd Cir.), cert. denied, 397 U.S. 1044, rehearing denied. 398 U.S. 944 (1970). 6 Korematsu v. United States, 319 U.S. 432 (1943). 7 See Hearings, p. (statement on behalf of the National Legal Aid and Defenders Association); cf. A.B.A., Standards Relating to Probation, section 1.3 (a) and comment at 30-31. rent purposes; and is clearly the most effective means of incapacitation for protection of the public. It is less clear that probation is necessarily the best means for providing the educational opportunity, vocational training, or other correctional treatment required for rehabilitation. Nevertheless, on balance, the Committee feels that the preferable course is to provide no presumption either for or against probation as opposed to imprisonment, but to allow the courts the full exercise of informed discretion in tailoring sentences to the circumstances of individual cases. In its application to particular cases, the required consideration of the purposes of sentencing should serve to sharpen the court's focus on all matters pertinent to its decision. The Committee is of the view that in the past there have been many cases in which probation has been granted because the offender required little or nothing in the way of rehabilitative measures and because society required no insulation from the offender, without due consideration being given to the fact that the heightened deterrent effect of incarceration and the readily perceivable receipt of just punishment accorded by incarceration were of critical importance. The placing on probation of an embezzler, a confidence man, a corrupt politician, a businessman who has repeatedly violated regulatory laws, an operator of a pyramid sales scheme, or a tax violator, may be perfectly appropriate in cases in which, under all the circumstances, only the rehabilitative needs of the offender are pertinent; such a sentence may be grossly inappropriate, however, in cases in which the circumstances mandate the necessity of the sentence carrying deterrent or punitive impact. Consequently, during a period in which the incidence of a particular kind of crime is increasing rapidly, it may be entirely appropriate for the court to give paramount emphasis to the deterrent purpose of sentencing. Conversely, in a situation involving an offense of little notoriety and of less than rampant frequency that is committed under circumstances indicating little likelihood of recidivism, the singular significance of the rehabilitative purpose of sentencing may well almost mandate a sentence to probation. In all cases, the section's concentration of attention upon the aims of the criminal justice system is designed to encourage the intelligent balancing of often competing considerations and the intelligent exercise of judicial discretion. The application of the specified considerations requires the court first to consider the nature of the offense and the history and characteristics of the offender. With that in mind, it is to consider the four basic principles of sentencing as established in section 101 and expanded upon in this section. Having considered these factors, the court is then required to determine whether probation would be priate and, if so, the length and conditions of such a term. appro The language of section 2102(b) is intended to codify current judicial decisions which hold that judgments imposing probation are 8 This is not meant to imply that the Committee considers a sentence of imprisonment to be the only form of sentence that may effectively carry deterrent or punitive weight. It may very often be that release on probation under imaginative conditions designed to fit the particular situation will adequately satisfy any appropriate deterrent or punitive purpose. See e.g., 16 Cir. L. 2178-2183 (Nov. 1974) (transcript of interview with Judge Charles B. Renfrew of the Northern District of California). Similarly, the Committee expects that in situations in which rehabilitation is the only appropriate purpose of sentencing there will be some cases in which such a purpose may be served best by release on probation subject to certain conditions and other cases in which the purpose will be served best by incarceration. In sum, the paramountcy of the same objective in different cases will not always lead to the same sentencing decision. final judgments for all purposes, particularly for purposes of appeal, even though the sentence is conditional and revocable." 1. In General SECTION 2103. CONDITIONS OF PROBATION Section 2103 (a) requires, as the only mandatory condition of probation, that the defendant not commit another Federal, State, or local crime during the term of probation. Section 2103 (b) sets out other optional conditions which may be imposed, the last of which makes clear that the enumeration is suggestive only, and not intended as a limitation on the courts' authority to consider and impose other conditions. Section 2103 (c) authorizes the court to modify or enlarge the conditions during the term of the probation. Section 2103 (d) requires that the court provide to the defendant a written statement clearly setting out all the conditions of the sentence to probation. 2. Present Federal Law 18 U.S.C. 3651 authorizes the imposition of probation "upon such terms and conditions as the court deems best." The section also states specific conditions which may be required, i.e., payment of a fine, making of restitution, supporting of dependents, and submission to treatment. These, however, in view of the broad general grant of statutory authority, have been viewed as examples rather than limitations. 18 U.S.C. 3651 also authorizes the court to revoke or modify any condition of probation and change the period of probation. 3. Provisions of S. 1, as Reported Section 2103 (a) goes beyond the requirements of current law in requiring as a mandatory condition of probation that the defendant not commit another crime during the term of probation.10 It should be emphasized, however, that this is the only mandatory condition of probation. The court is not required, for example, to specify as a condition of probation even that the offender report regularly to a probation officer. The list in section 2103 (b) of discretionary conditions that may be placed on a probationer's freedom, all of which have been used and sanctioned in appropriate cases under the current statute, is not exhaustive, nor are the listed conditions mandatory. The conditions, many of which closely follow the proposals of the National Commission,11 are designed to provide the trial court with a suggested listing of some of the available alternatives which might be desirable in the rehabilitation of a particular offender.12 It is anticipated that, in determining the conditions upon which a defendant's probation is to be dependent, the court will review the listed examples, weigh other 9 Nix v. United States, 131 F.2d 857 (5th Cir.), cert. denied, 318 U.S. 771 (1943); Buhler v. Pescor, 63 F. Supp. 632 (W.D. Mo., 1945). 10 By use of the term "crime" rather than the term "offense", the noncommission of minor infractions is not made a mandatory condition of parole. See section 111. 11 Final Report § 3103. 12 Some of the listed alternatives, of course, would also tend to effect the punitive and deterrent purposes of sentencing-and even, to a certain degree, the incapacitive purpose in a limited kinds of cases. possibilities suggested by the case, and, after evaluation, impose those that appear to be appropriate under all the circumstances. Among the conditions which are suggested in appropriate cases are several worth noting. Paragraph (2) provides that payment of a fine may be a condition of probation, thus making the recalcitrant offender face the possibility of a summary increase in punishment for such a probation violation as opposed to leaving him to face only the limited contempt power of the court. Paragraph (3) provides that the defendant may be required to make direct restitution to a victim, taking into account the financial resources of the defendant and the burden that such restitution will impose. The phrase, "direct restitution" is intended to make clear that the reparation meant is not that which may result from a government program of reparation to victims of crime,13 but rather restitution or reparation made directly by the offender to the victim.14 Paragraph (6) suggests the condition that the defendant refrain from engaging in a specific occupation, or engage therein only under specified circumstances. The condition is stated, however, to relate the proscribed occupation to the nature of the offense. Thus, a bank teller who embezzles bank funds might be required not to engage in an occupation involving the handling of funds in a fiduciary capacity.15 Paragraph (7) allows the court to require the offender to refrain from frequenting specified kinds of places or associating with specified persons.16 As in the case with the other discretionary conditions of probation listed in section 2103, the conditions suggested by this paragraph would have to be tailored to the particular circumstances of the defendant. For example, if the defendant were a convicted drug trafficker it might ordinarily make sense to condition his probation upon his avoidance of other know drug traffickers, but if he were to be employed during the period of his probation by a business that, as a public service, makes a practice of hiring former offenders to assist in their rehabilitation, the application of such a condition would have to be designed to avoid any suggestion that the defendant could not engage in necessary occupational associations with his co-workers. Paragraph (10) notes the availability of the condition that the defendant undergo medical or psychiatric treatment and remain in a specified institution if required for medical or psychiatric purposes. Under this paragraph a court may require a defendant to participate in the program of a narcotic treatment facility, regularly visit a psychiatrist, participate in recognized group therapy programs, or undergo other forms of treatment for physical or emotional problems. Paragraph (11) authorizes as a condition that the probationer remain in the custody of the Bureau of Prisons for a period or intervals of time not to exceed in the aggregate 180 days. This provision permits short term commitment to a training center or institution as a part of a rehabilitative program, and also permits the shock and punitive im 18 Subchapter B of chapter 41. 14 This follows current law. See United States v. Savage, 440 F.2d 1237 (5th Cir. 1971). 15 The constitutional permissibility of such a condition has ben recognized. See Whaley v. United States, 324 F.2d 356 (9th Cir. 1963), cert. denied, 376 U.S. 911 (1964). 18 This kind of provision has also been recognized as permissible. See Malone v. United States, 496 F.2d 462 (9th Cir. 1974). |