1. Chapter 4
Diversion and Probation:
How Most Offenders Are Punished
McGraw-Hill/Irwin © 2013 McGraw-Hill Companies. All Rights Reserved.

2. Diversion
 “The halting or suspension, before conviction, of formal
criminal proceedings against a person, conditioned on
some form of counter performance by the defendant.”
 Counter performance: The defendant’s participation, in
exchange for diversion, in a treatment, counseling, or
educational program aimed at changing his or her
behavior.
 Examples:
 Drug Courts
 Mental Health Courts
 Domestic Violence Courts
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3. Three Objectives of Diversion
1. Prevent future criminal activity by diverting
certain defendants from criminal justice
processing into community supervision and
service.
2. Save prosecution and judicial resources for
serious crimes by offering, for less serious
crimes, alternatives to the usual prosecution
process.
3. Provide, where appropriate, a vehicle for
restitution to communities and victims of crime.
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4. Rationales For Diversion
 The experience and stigma of formal arrest,
trial, and conviction can actually encourage
more criminal behavior.
 Diversion is less expensive than formal
processing through the system.
 Public perceptions of inappropriateness of
formal processing for certain (“victimless”
crimes).
 Diversion gives typical clients a better
chance at life.
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5. Types of Diversion
 Unconditional: Terminates criminal
proceedings at any point before
adjudication with no threat of later
prosecution. Offers treatment, counseling,
and other services, the use of which is
voluntary.
 Conditional: Dismisses charges if the
defendant satisfactorily completes
treatment, counseling, or other programs
ordered by the justice system.
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6. Probation
 The conditional release of a convicted
offender into the community, under the
supervision of a probation officer
 It is conditional because it can be revoked if
certain conditions are not met.
 Types of conditions
 Monetary penalties, drug testing,
employment requirements, and
mandatory treatment.
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7. Reasons for Probation
 Keeps offenders in their communities and
facilitates reintegration
 Avoids the institutionalization and stigma of
imprisonment
 Reduces the expense of supervision
 Fair treatment for offenders whose crimes
do not merit incarceration
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8. Goals Of Probation
 Protect the community
 Carry out court-imposed sanctions
 Identify probationers’ supervision and
service needs
 Support crime victims
 Coordinate and promote use of
community resources
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9. History Of Probation
 Judge Peter Oxenbridge Thatcher laid the
foundation for probation in Boston in 1830.
 Judge Thatcher made the first recorded use of
release on recognizance in the U.S.
 In 1878, the Massachusetts legislature passed
the first statute authorizing probation.
 On March 4, 1925 President Calvin Coolidge
signed the National Probation Act.
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10. Characteristics of Adults on Probation,
January 1, 2008
On January 1, 2010, the number of
adults on probation declined 0.9%, from
4,244,046 to 4,203,967, the first decline
in the probation population since the
Bureau of Justice Statistics began its
annual probation survey in 1980.
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11. Does Probation Work?
 APPA Data
 Amount of restitution collected
 Number of offenders employed
 Amounts of fines and fees collected
 Hours of community service performed
 Number of treatment sessions attended
 Percentage of financial obligations collected
 Rate of enrollment in school
 Number of days of employment
 Number of days drug free
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12. Research on Probation
 1. Researchers found that over three-fourths of
offenders on probation for a misdemeanor successfully
complete their probation, but almost two-thirds of felony
probationers are rearrested.
 2. The percentage of all offenders successfully
completing their probation terms is falling even though a
recent study found that male property offenders on
felony probation had a success rate of 67.7%.
 3. Recidivism rates vary greatly from place to place,
depending on the seriousness of the offense, population
characteristics, average length of probation, and the
amount and quality of intervention, surveillance, and
enforcement.
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13. Duties Of Probation Officers
 Case investigation
 Prepare the presentence report (PSR)
 Client-specific plans
 Supervision
 Intervention – providing offenders access to a
wide variety of services
 Surveillance – monitoring the activities of
probationers
 Enforcement – making probationers
accountable for their behavior and making sure
they understand the consequences of violating
the conditions of probation
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14. Presentence Reports (PSR)
 Provides a social and personal history as well as
an evaluation of a defendant as an aid to the
court in determining a sentence
 Two main purposes:
 Assists the court in reaching a fair sentence
 Outlines a treatment plan for the offender
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15. Presentence Reports (PSR)
 Judges follow the recommendation over 80% of
the time when probation is recommended and
over 60% of the time when prison is
recommended
 90 percent of judges claimed to read the entire
report from the beginning, but only 55 percent of
all respondents (judges, prosecutors, public
defenders, and probation/parole officers)
indicated that they start at the beginning and
read the entire report section by section.
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16. Presentence Reports (PSR)
 The specific content areas of the PSR
vary from jurisdiction to jurisdiction, but
common areas include (1) information
regarding the current offense; (2) the
offender’s past adult and juvenile criminal
record; (3) family history and background;
and (4) personal data about education,
health, employment, and substance abuse
history.
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17. Probation Revocation
 Revocation – the formal termination of an
offender’s conditional freedom
 Revocation hearing - A due process
hearing that must be held to determine
whether the conditions of probation have
been violated before probation can be
revoked and the offender removed from
the community
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18. Revocation Triggers
 Technical violation – A failure to comply
with the conditions of probation.
 Absconding, positive urinalysis, failure to
participate in treatment, and failure to report to
the probation officer are among the most
common violations.
 New offense violation – The arrest and
prosecution for the commission of a new
crime.
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19. Gagnon v. Scarpelli (1973) and
Morrissey v. Brewer (1972)
A probationer is entitled to:
 Written notice of the charge
 Disclosure of the evidence
 The opportunity to be heard and to present
evidence and witnesses
 Confront and cross-examine witnesses
 Judgment by a detached and neutral
hearing body
 A written statement of the reasons for
revoking probation
 Counsel
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