Research Paper on "Shock Probation"

Research Paper 5 pages (1609 words) Sources: 4

[EXCERPT] . . . .

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The term shock probation refers to a practice that combines a short-term incarceration with a probation program. "Shock probation allows defendants an opportunity to receive probation after a short period of time in a correctional facility" (U.S. Legal, 2012). The idea is that shock probation can be used on either first time offenders or petty offenders who have escalated in criminality in order to show them the reality of prison life without prolonged exposure. "The typical amount of time spent in a correctional facility varies from jurisdiction to jurisdiction and case to case. A typical term of incarceration in a shock probation sentence is 30 days or less" (Broemmel, 2012).

Shock probation began in Ohio in 1965. This pilot program involved 4,014 prisoners who served only the initial 60 to 90 days of their original sentences (Pasquesi, 2012). This initial program showed some success, which led to other jurisdictions adopting shock probation programs. For example, the recidivism rate among these prisoners was 9%, which was lower than the national average of 65% at that time (Pasquesi, 2012). This led to Kentucky and Indiana adopting shock probation programs in the 1960s (Pasquesi, 2012). Other jurisdictions followed suit, and currently those states as well as Georgia, Texas, Alabama, Iowa, and Maine have shock probation programs (Pasquesi, 2012). Even more significantly, any jurisdiction can have informal shock probation, as a judge can structure the sentence in a way that mimics shock probation.

How it Works

Many judges are reluctant to give probation to first-time offenders for fear that doing so will reinforce the idea that criminal behavior will be tolerated and encourage recidivism. However, prison space is also limited in many jurisdictions, so that it is not realistic for a judge to sentence an offender to the desired sentence. Moreover, there is a concern that putting an offender in prison long-term may actually encourage rather than discourage further criminality. Shock probation is meant to expose an offender to the "trauma of incarceration" without requiring them to suffer "its long-term ill effects" (Pasquesi, 2012).

Shock probation is a form of split sentencing. Split sentencing is any law that allows a sentence to be split between incarceration and probation/parole (Pasquesi, 2012). In fact, almost all states allow parole as a possibility for most offenses, which means that almost all convictions are actually split sentencing. Shock probation is a form of split sentencing, but does not encompass all of split sentencing. "While shock probation is a form of split sentencing, what sets it apart is the brevity of incarceration compared to probation. Also, shock probation includes a required pre-release program as well as an additional appearance before the judge" (Pasquesi, 2012).

In fact, one of the elements about shock probation that differentiates it from the traditional sentencing process is that the defendant is generally involved in seeking the punishment. Generally, one must be a first-time offender convicted of a non-violent felony or misdemeanor to seek shock probation (Pasquesi, 2012). Furthermore, sex offenders are not eligible for shock probation, though, of course it is important to keep in mind that the determination of whether one is a sex offender is not based on the underlying allegations but upon the crime for which one has been convicted (Pasquesi, 2012). Shock probation can occur in a number of different ways; the jury can recommend shock probation for a defendant; the judge can order shock probation, or the defendant can petition the sentencing judge for shock probation instead of extended incarceration (Pasquesi, 2012).

Generally, shock probation does not result in incarceration in a traditional prison. Instead, they frequently use boot camps in lieu of prison settings. If a prisoner is accepted to a shock probation program, "the prisoner will immediately enter a "bootcamp-style" pre-release program, usually involving strenuous physical exercise, work/vocational assignments, classes in decision making, education and drug rehabilitation. After successfully completing this program (30-90 days long), the prisoner reappears before the judge to be sentenced to probation. During this hearing, the terms of probation are set and the prisoner is released into the community" (Pasquesi, 2012). Once the prisoner is released on probation, the terms of the probation are the same as the terms one would generally encounter on probation, but, due to the brevity of the time served, the probationary period often exceeds what the probationary period following other sentences (Pasquesi, 2012). Moreover, it is important to understand that shock probation is not a suspended sentence or judgment. The conviction is a real conviction, which will remain on a defendant's criminal record (Pasquesi, 2012).

For shock probation to work, a judge has to be selective and really consider the merits of each individual defendant prior to determining whether shock probation is a valid option. Judges already do and should engage in cost-benefit analysis when making sentencing decisions; the scarcity of resources in the criminal justice system dictates that they do so (Branham, 2012). However, judges may not be the best professionals to engage in this cost benefit analysis. Instead, it may be appropriate for sentencing professionals to develop pre-sentence reports aimed at gathering the type of information that judges need to have in order to make decisions about punishment, particularly about shock probation (Branham, 2012). Ensuring that judges are informed about individual defendants does not subvert the legislative process by evading mandatory sentencing procedures, but provides for exactly the type of specificity mandated by those guidelines.

Viability

The efficacy of shock probation programs really determines on how selective those programs are. The goal is for these programs to target those first time offenders who do not seem committed to a criminal lifestyle and for whom this type of program will help prohibit future criminality. For example, the original shock probation program seemed to reduce recidivism rates by a factor of 6. "However, this effectiveness owes largely to the discerning eyes of the judges who grant shock probation. On average, nine of every ten applications are rejected, meaning that those accepted truly are "exceptional cases." Also, because each application is reviewed by the judge who oversaw the original trial, the final decision is a truly informed one" (Pasquesi, 2012).

However, it would be inappropriate to suggest that shock probation is always successful. Shock probation was developed to be used with first-time offenders and for offenders without a history of violence. The reality is that it is frequently used as a way to divert offenders away from overcrowded prisons. For example, in 2006, Demetrius Bradley, a felon with multiple prior convictions and two pending felony cases, was given shock probation rather than incarceration. Unfortunately, Bradley, who never should have been considered for the shock probation program, fatally shot a man and wounded a woman during a home robbery (Ripley, 2007). While this isolated story does not condemn shock probation, it does highlight the problem of a program aimed at a specific subgroup of offenders being applied beyond its original parameters. In fact, in the same county as Bradley, there was an epidemic of stories about shock probation gone wrong. A " Courier-Journal analysis of 260 shock probations granted to felons in Jefferson County last year shows that 120 have been arrested or charged again -- in crimes ranging from murder, rape and armed robbery to drug use and driving drunk. More than 60% of those new arrests were for felony charges" (Ripley, 2007). As in many other areas, these figures were driven by prison overcrowding and judges turning to shock probation in scenarios where it really should not have been applicable.

The failure of the program in one county does not mean that shock probation is ineffective. However, it does serve as a cautionary tale that shock probation is not for every offender. Instead, shock probation should be a very selective punishment. Only… READ MORE

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