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LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS
Page 1
NON- INSTITUTIONAL CORRECTIONS
The course will primarily focus on the different forms, types or kinds of Non-Institutional
Correction/Community Based Corrections or Non-Confinement Corrections. It includes the different
methods, forms, type or kinds of clemency. The processes of the grant, revocation, cancellation, or
disqualification of the party concerned as provided in the law, rules, guidelines or manual.
LEARNING OBJECTIVES:
 identify the Advantages and Disadvantages of Non-Institutional Correction or Community
Based Corrections;
 trace the Historical accounts of Pardon, Amnesty, Parole, and Probation;
 explain the Total and Partial Extinction of Criminal Liability, including
 relevant provisions of the law on Allowance for Good Conduct, and Special Time Allowance
for Loyalty for PDLs under PNP, NBI, BJMP, Provincial Jails, BUCOR and others;
 discuss the Social and Political Justifications for early discharge or early release of PDLs;
 compare the different Types of Clemency; and
 demonstrate knowledge on the Processes, Petition or Application and the Grant of Pardon
Absolute or Conditional, Parole, and Probation as provided in their respective Laws, IRR,
Guidelines, Rules, and Manual of procedure
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COMMUNITY-BASED CORRECTION
LESSON III. THE HISTORICAL DEVELOPMENT
OF PROBATION IN THE PHILIPPINES
LESSON II. THE NATURE OF PROBATION IN
THE PHILIPPINES
LESSON 1. INTRODUCTION TO
COMMUNITYBASED CORRECTION
LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS
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THE PRESENT PHILIPPINE CORRECTIONAL SET-UP
A. WHAT IS CORRECTION? Correction is the branch of the
administration of CJS charged with the responsibility for the custody,
supervision and rehabilitation of convicted offenders.
It is also defined as the STUDY OF JAIL OR PRISON MANAGEMENT
AND ADMINISTRATION as well as the rehabilitation and reformation
of criminals.
Further, it is defined as a GENERIC TERM that includes all government agencies, facilities, programs,
procedures, personnel, and techniques concerned with the investigation, intake, custody,
confinement, supervision, or treatment of alleged offenders.
B. DUAL PURPOSE OF CORRECTIONS
1. To punish and
2. To rehabilitate the offender.
C. THE CORRECTIONS AS A COMPONENT OF CRIMINAL JUSTICE SYSTEM
Correction is the fourth pillar of the PCJS, and identified as the weakest pillar. As a field of criminal
justice administration, it utilizes the body of knowledge and practices of the government and the
society in general involving the process of handling individuals who have been convicted of offenses
for purposes of crime prevention and control.
Among the five pillars of the criminal justice system, corrections is the least heard, known or
understood society seems to have some reluctance to look at it although its role in the reformation
and rehabilitation of offenders cannot be overemphasized. Furthermore, jail administration and
control in our country is distributed to at least, four agencies:
The BUREAU OF CONNECTIONS (BUCOR), under the DOJ; which has
supervision over the national penitentiary and its penal farms;
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The BUREAU OF JAIL MANAGEMENT AND PENOLOGY (BJMP), under the DILG; which has the
exclusive control over all city, municipal and district Jails nationwide;
The PROVINCIAL GOVERNMENTS, under DILG; which supervise and control their respective
provincial and sub-provincial Jails; and
the DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT (DSWD), which
takes care of, among others, youthful offenders entered in detention centers
for juveniles.
Other agencies under this pillar are the: (Community Based Correction)
1. The Parole and Probation Administration (PPA) under the Department of Justice (DOJ); and
2. The Board of Pardons and Parole also under the Department of Justice.
Generally, corrections, as a component of the system are responsible for:
1. The MAINTENANCE of institution such as prisons, jails, halfway houses, and others.
2. The PROTECTION of law-abiding members of society by keeping convicted offenders from
preying on society.
3. The REFORMATION and rehabilitation of offenders in preparation for their eventual
reintegration to the mainstream of society and helping them lead a normal life after release.
4. The DETERRENCE of crimes, experience in prison and the fear of isolation and denial of
liberty will influence inmates and potential offenders to lead a life not in conflict or afoul with
the law.
A. DECONGESTION OF JAILS
There are several laws, decrees and circulars which we implement to decongest our jails. But
before we discuss these, allow me to show you how congested our jails are as far as the national
capital region is concerned.
Jail congestion is not a recent phenomenon, nor is it confined in the Philippines alone. Jail
congestion is WORLDWIDE. Some industrialized countries like the United States, experience it, let
me cite a few examples: Rikkers Island in New York is actually an island prison facility. It is
overcrowded. To cushion the effect of congestion, two floating dormitories were constructed to
confine offenders therein; in 1995 or four years ago. Director General Keith Hamburger of the
Queensland services commission of Australia reported that congestion is also a problem in his
country.
In January of 1994, in Manila, Ronald W. Nikkel, president of prison fellowship international who had
toured some of the jails in the National Capital Region (NCR) and the New Biliid Prisons of the
Bureau of corrections in Municipal City observed and commented that in the 41 countries of the
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world he had traveled, most have a problem on congestion. He added that this problem is
PREVALENT IN THIRD WORLD COUNTRIES.
In our country, jail congestion, particularly in big cities and municipalities, has been a PERENNIAL
PROBLEM ever since. This problem, to borrow a parallelism, is a sleeping giant. Unfortunately, for
jail administrators and personnel, the giant has taken up and is stretching its enormous arms and
legs. OPLAN DECONGESTION must be put in place to
lay this giant back to sleep. OPLAN DECONGESTION
was formalized through the execution of a
memorandum of agreement on February 12, 1993.
Among the public attorney’s office, the parole and
probation administration, the Board of Pardons and
Parole which are all under the Department of Justice,
and the Bureau of Jail Management and Penology
which is under the Department of the Interior and
local government. The avowed PURPOSE of said
agreement (MOA) was jail decongestion through
collective and cooperative efforts. Realizing that all
helps available must be harnessed to effectively combat overcrowding or congestion in jails, the
said memorandum of agreement was EXPANDED on August 17, 1993 with the inclusion of the
National Prosecution service or (NAPROS) as the fifth party thereto.
True to its form, the MOA spreads up its intent through seminars. These offered opportunities to
officials and personnel of the tasked agencies to familiarize themselves with the mechanics of the
agreement, as well as to offer avenue to discuss various aspects of how jails are to be decongested.
B. LAW AND DECREES USUALLY AVAILED OF TO DECONGEST JAILS
1. Presidential Decree No. 603, known as the child and young welfare code, suspends sentence
of minor offenders whose ages range from nine (9) years to under eighteen (18) years and
place them in rehabilitation centers under the supervision of the Department of Social
Welfare and Development before they are released to the custody of their parents or to any
responsible person.
2. Batas Pambansa Bilang 85, authorizes the release of a detainee who has undergone
preventive imprisonment equivalent to the maximum imposable sentence for the offense he
is charged with
3. Article 96 of the Revised Penal Code, provides that in meritorious cases, the commutation of
the prisoner’s sentence through presidential action shall be upon the recommendation of the
court which imposed the same; and ARTICLE 97, which provides that a prisoner shall be
entitled to a deduction from his prison term for good conduct; and
4. DOJ Memorandum Circular no. 6 which directs all wardens or anyone in-charge of local jails
to effect the immediate transfer of national prisoners to the Bureau of corrections.
5. Republic Act No. 9165- Comprehensive Dangerous Drug Act of 2002 (July 4, 2002) - 1st time
minor offender (probation) for use 2 possession only./deport
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6. Republic Act No. 9344 + Juvenile & Justice welfare Act of 2006 (May)
7. Republic Act No. 6036, known as the release on recognizance law, provides for the release of
offenders charged with an offense whose penalty is not more than six (6) months and/or a
fine of Two Thousand pesos (2,000) or both, to the custody of a responsible person in the
community, instead of a bail bond.
8. Republic Act No. 6127, fully deducts the period of the offenders’ preventive detention from the
sentence imposed by the courts;
9. Republic Act No. 4103, as amended, creating the Board of Pardons and Parole tasked to look
into the physical, mental and moral record of prisoners to determine who shall be eligible for
parole or conditional pardon
10. Presidential Decree No. 968 July 24, 1976 is the Philippine Probation Law of 1976. Probation is,
of course, a very important legal instrument that contributes to the decongestion of Philippine
jails.
C. APPROACHES OF PHILIPPINE CORRECTIONAL SYSTEM
The Philippine Correctional System has two approaches, and these are, the Community based and
institution-based systems.
1. The Institution-Based Approach-The rehabilitation of offenders in jail or prison
The institution-based approaches has three levels and are manned by three different government
agencies responsible for the supervision and control of the numerous institutional facilities
nationwide which provide safekeeping and rehabilitation of inmates, namely;
1. The national prison’s and penal farms under the Department of justice;
2. The provincial and sub-provincial jails under the provincial government; and
3. The City, Municipal and District Jails under the Department of Interior and Local Government.
The Bureau of corrections, headed by a non-uniformed director, under the department of Justice,
supervises and controls the national prisons and penal farms.
2. Non-Institutional Correction or Community-Based Approach- It refers to correctional activities
that may take place within the community or the method of correcting sentenced offenders without
having to go to prison.
Not all convicted offenders have to serve their sentence behind bars. Some of them are
allowed to stay in the community, subject to the conditions imposed by the court
They are either granted probation, parole, conditional pardon or recognizance. The parole
and probation Administration under the Department of Justice is the government agency that
supervises the activities of the probationer, parolee and pardonee and monitors his compliance with
conditions imposed.
What is a Community correction?
It is a sanction in which offenders serve some or all their sentence in the community. It is
sometimes referred to as non-institutional corrections. The subfield of corrections in which
offenders are supervised and provided services outside jail or prison.
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DISTINCTION BETWEEN INSTITUTIONAL AND NON-INSTITUTIONAL CORRECTION
Institutional Non-Institutional
That aspect of the correctional
enterprise that involves the
incarceration and rehabilitation
of adults and juveniles convicted
of offenses against the law, and
the confinement of persons
suspected of a crime awaiting
trial and adjudication
That aspect of the correctional
enterprise that includes pardon,
probation, and parole activities,
correctional administration not
directly connectable to
institutions, and miscellaneous
(activity) not directly related to
institutional care.
I. COMMUNITY-BASED CORRECTION PROGRAMS IN THE PHILIPPINES
The Community-Based Treatment Programs are those programs that are intended to treat
criminal offenders within the free community as alternatives to confinement. It includes all
correctional activities directly addressed to the offender and aimed at helping him to become
a law-abiding citizen.
Community-based correction programs began in the 1970s, 1980s, and 1990s. The
programs offer an alternative to incarceration within the prison system. Many criminologists
believed a significant number of offenders did not need incarceration in high security prison
cells. Some inmates, who might otherwise have been ready to turn away from a life of crime,
instead became like the hardened criminals they associated with in prison.
In response, states, counties, and cities established local correctional facilities and
programs that became known as community-based corrections. These facilities, located in
neighborhoods, allowed offenders normal family relationships and friendships as well as
rehabilitation services such as counseling, instruction in basic living skills, how to apply for
jobs, and work training and placement.
 ADVANTAGES OF COMMUNITY-BASED CORRECTION
1. Family members need not be victims also for the imprisonment of a member because the
convict can still continue to support his family.
2. Rehabilitation will be more effective as the convict will not be exposed to hardened
criminals in prisons who will only influence him to a life of crime.
3. Rehabilitation can be monitored by the community thus corrections can be made and be
more effective.
4. It is less costly on the part of the government. Cost of incarcerations will be eliminated
which is extremely beneficial on the part of the government.
II. THE ROLE OF COMMUNITY CORRECTIONS IN THE CRIMINAL JUSTICE SYSTEM
Community sentence seeks to repair the harm the offender has caused the victim or the
Community, provide for public safety and rehabilitate and promote effective reintegration.
A community correction has traditionally emphasized REHABILITATION as its goal. The staff
of community correctional programs has two potentially competing roles that reflect different
goals:
a. Seeing that offenders comply with the orders of community sentences.
b. Helping offenders identify and address their problems and needs.
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III. BASIC PRINCIPLES UNDERLYING THE PHILOSOPHY OF COMMUNITYBASED TREATMENT
PROGRAMS
The following are the basic principles underlying the philosophy of community-based
treatment programs:
1. Humanitarian Aspect - Imprisonment is not always advisable. Placing a person to
custodial coercion is to place him in physical jeopardy, thus drastically narrowing his
access to sources of personal satisfaction and reducing his self-esteem.
2. Restorative Aspect - There are measures expected to be achieved by the offender, such
as an establishment of a position in the community in which he does not violate the laws.
These measures may be directed at changing and controlling the offender. The failure of
the offender to achieve these can result to recidivism.
3. Managerial Aspect - Managerial skills are special importance because of the sharp
contrast between the per capital cost of custody and any kind of community program. It is
easier to manage those undergoing community-based treatment programs than that of
custodial control.
IV. SUBJECT COVERAGE
1. Probation - One of the most common forms of community correction is probation.
Probation can be thought of as a type of post-trial diversion from incarceration. A term
coined by John Augustus, from the Latin verb “probare”- to prove, to test.
It is a disposition under which a defendant after conviction of an offense, the penalty of
which does not exceed 6 years of imprisonment, is released subject to the conditions
imposed by the releasing court and under the supervision of a probation officer
Furthermore, it is define as a sentence in which the offender, rather than being
incarcerated, is retained in the community under the supervision of a probation agency
and required to abide by certain rules and conditions to avoid incarceration.
2. Diversion + For juvenile offender or CICL
3. Restitution - In recent years it has become increasingly common for jurisdictions to
include restitution orders as part of probation.
Money paid or services provided to victims, their survivors, or to the community by a
convicted offender to make up for the injury inflicted.
4. Halfway houses - Community-based residential facilities that are less secure and
restrictive than prison or jail but provide a more controlled environment than other
community correctional programs.
Goal of Halfway House: The goal of halfway houses is to provide offenders with a
temporary period of highly structured and supportive living so that they will be better
prepared to function independently in the community upon discharge.
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What is home Confinement? It is a program that requires offenders to remain in their homes except
for approved periods of absence; commonly used in combination with electronic monitoring. Home
confinement is also known as home incarceration, home detention, and house arrest.
OTHER ASPECTS OF CORRECTIONS
1. Parole - It is the process of suspending the sentence of a convict after having serve the
minimum of his sentence without granting him pardon, and the prescribing term upon
which the sentence shall be suspended.
2. Executive Clemency- It shall refer to Absolute Pardon, Conditional Pardon with or without
Parole conditions and Commutation of Sentence as may be granted by the President of the
Philippines upon the recommendation of the Board of Pardon and Parole.
a. Pardon-It is a form of executive clemency granted by the President of the Philippines as a
privilege to a convict as a discretionary act of grace. It is an act of grace is extended to prisoners as
a matter of right, vested to the Chief Executive (The President) as a matter of power. Neither the
legislative nor the judiciary branch of the government has the power to set conditions or establish
procedures for the exercise of this Presidential prerogative. The following are the two types of
pardon:
1. Absolute Pardon-It refers to the total extinction of the criminal liability of the individual to
whom it is granted without any condition whatsoever and restores to the individual his civil
rights and remits the penalty imposed for the particular offense of which he was convicted.
Purpose:
a. To right a wrong
b. To normalize a tumultuous political situation
Absolute Pardon is also granted by a President to an imprisoned president the incumbent has
deposed. Absolute Pardon is granted in order to restore full political and civil rights to convicted
persons who have already served their sentenced and have reached the prescribed period for the
grant of Absolute Pardon
2. Conditional Pardon-It refers to the exemption of an individual, within certain limits or
conditions; from the punishment that the law inflicts for the offense he has committed
resulting in the partial extinction of his criminal liability.
It is also granted by the President of the Philippines to release an inmate who has been
reformed but is not eligible to be released on parole.
b. Amnesty - A general pardon extended to a group of persons, such a political offenders purposely
to bring about the return of dissidents to their home and to restore peace and order in the
community.
c. Commutation of Sentence - An act of the president changing/ reducing a heavier sentence to a
lighter one or a longer term into a shorter term. It may alter death sentence to life sentence or life
sentence to a term of years. It does not forgive the offender but merely to reduce the penalty
pronounce by the court.
d. Reprieve - A temporary stay of the execution of sentence especially the execution of the death
sentence. Generally, Reprieve is extended to prisoners sentenced to death.
The date of execution of sentenced is set back several days to enable the Chief to study the petition
of the condemned man for commutation of sentenced or pardon.
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Most correctional authorities believed that probation is one of the most effective and
economical tools which society now has available for the care, treatment and rehabilitation of
certain adult and juvenile offenders against the law. Probation is a procedure wherein a sentence of
offender is temporarily suspended and he is permitted to remain in the community, subject to the
control of the court and under the supervision and guidance of a probation officer. It is a privilege
granted by the court to a person convicted of a crime or criminal offense to remain with the
community instead of actually going to prison.
Presidential Decree No. 968 otherwise known as the Probation Law of 1976 recognizes
such trend. However, the Decree separates adult probation from juvenile probation for it expressly
excludes those entitled to the benefits under the provisions of Presidential Decree No. 603, known
as the Child and Youth Welfare Code, and similar laws.
Statements of the principles, goals and objectives of the Probation Law are found in its Preamble.
The Preamble indicates six essential goals, to wit:
1. An enlightened and humane correctional system;
2. The reformation of offenders;
3. The reduction of the incidence of recidivism;
4. To extend to offenders individualized and community-based treatment programs instead of
inprisonment;
5. It is limited only to offenders who are likely to respond to probation favorably; and
6. It is economical or less costly than confinement to prisons and other institutions with
rehabilitation programs.
To provide a less costly alternative to the imprisonment of firsttime offenders, then
President Ferdinand E. Marcos issued on July 24, 1976 Presidential Decree No. 968 known as the
Probation Law of 1976. Under PD 968, the court may, after it shall have convicted and sentenced an
accused and upon application of said accused, suspend the execution of said sentence and place the
accused on probation for such period and upon such terms and conditions as it may deem best.
First-time offenders were given a second chance to maintain their place in society through a
process of reformation, which is better achieved when he is not mixed with hardened criminals
within prison walls.
PROBATION DEFINE
 The word probation is from the Latin word “probatio” which means testing. the word
probation is also said to be originated from the Latin verb “probare” which means to prove.
 In criminal law it is a period of supervision over an offender, ordered by a court instead of
serving time in prison.
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 In the case of Frad v. Kelly, "Probation is a system of tutelage under the supervision and
control of the court which has jurisdiction over the convicted defendant, has the record of his
conviction and sentence, the records and reports as to his compliance with the conditions of
his probation, and the aid of the local probation officer, under whose supervision the
defendant is placed." It consists of the conditional suspension of punishment while the
offender is placed under personal supervision and is given individual guidance or treatment.
 The Philippine Probation Law of 1976, as enacted by Presidential Decree No. 968, defines
probation as, "a disposition under which a defendant, after conviction and sentence, is
released subject to conditions imposed by the court and to the supervision of a probation
officer." This decree will take effect on January 2, 1978.
TERMS TO PONDER
As used in Section 3 of PD 968 and Section 4 of Parole and probation administration omnibus rules
on probation methods and procedure. The following shall, unless the context otherwise requires, be
construed thus:
Amicus Curiae + Means friend of the court
Absconding Petitioner- a convicted accused whose application for probation has been given
due course by the court but fails to report to the parole and probation office or cannot be
located within a reasonable period of time.
Absconding Probationer- an accused whose probation was granted but failed to report for
supervision within the period ordered by the court or a probationer who fails to continue
reporting for supervision and/or whose whereabouts are unknown for a reasonable period of
time.
Defense Counsel/Counsel- lawyer of the petitioner
Petition- application for probation
Petitioner - a convicted defendant who files an application for probation.
Probationer - means a person placed on probation
Probation- is a disposition under which a defendant, after conviction and sentence, is
released subject to conditions imposed by the court and to the supervision of a probation
officer
Probation Investigation - The process of selection, diagnoses and planning with the client.
Probation Supervision- The continuous process of helping the client to follow through with
the plans, reevaluation and working with the client in the process of planning his life to meet
dynamic situation.
Probation Officer - public officer like the Chief Probation and Parole Officer (CPPO),
Supervising Probation and Parole Officer (SPPO), Senior Probation and Parole Officer
(SrPPO), Parole and Probation Officer II (PPOII), or Parole and Probation Officer I (PPOI), who
investigates for the Trial Court a referral for probation or supervises a probationer or does
both functions and performs other necessary and related duties and functions as directed.
Probation Office - refers either to the Provincial or City Probation Office directed to conduct
investigation or supervision referrals as the case may be;
Probation Order - order of the trial court granting probation
Prosecutor- lawyer of the victim
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Trial Court - refers to the Regional Trial Court (RTC) of the Province or City/Municipal Court
which has jurisdiction over the case.
Volunteerism - is a strategy by which the parole and probation administration may be able to
generate maximum citizen participation or community involvement in the overall process of
client rehabilitation.
I.CONCEPT AND PHILOSOPHY OF PROBATION
A. CONCEPT OF PROBATION
P.D 968 as amended, otherwise known as the probation law of 1976 defines probation.
The court convicts and sentences the defendant but the execution of the sentence, whether it
imposes a fine only or a term of imprisonment is suspended and the defendant is released on
probation. Probation implies that during the period of time fixed by the court, the defendant is
provided with individualized community based treatment including conditions he is required by the
court to fulfill his correction and rehabilitation which might be less probable if he were to serve a
prison sentence, and for this purpose, he is placed under the actual supervision and visitation of a
probation officer.
If the defendant violates any of the conditions of his probation, the court may revoked
his probation and order him to serve the sentence originally imposed. On the other hand, if he fulfills
with the terms and conditions of his probation, he shall be discharge by the court after the period of
probation, where upon the case against him shall be deemed terminated. His final discharged shall
operate to restore to him all civil rights lost or suspended as result of his conviction and to fully
discharge his liability for any fine imposed as to the offense for which probation was granted.
However, he shall continue to be obliged to satisfy liability resulting from the crime committed by
him.
The basic legal conceptions of probation in the Decree are twofold: First, it as a
conditional suspension of the execution of sentence - It denotes that the court assumes a primary
role because a grant of probation is judicially dispensed and controlled. Second it is a personal care
or treatment and supervision over the probationer - It indicates the administrative aspect of
probation through the supervision of a probation officer and from the point of view of social
workers, a social casework treatment.
PROBATION IS A COURT FUNCTION
In the Probation Law, the court assumes a dual role. First, when it acts in accordance
with the jurisdiction it acquires over the accused and proceeds to determine his guilt. Assuming an
affirmative finding of the offender's guilt beyond reasonable doubt, the court would convict and
sentence said offender. Second, when the court determines whether or not to grant probation upon
application of the offender. Sections 3(a) and 4 of the Decree clearly shows this dichotomy.
The Decree defines probation in Section 3 as "a disposition under which the defendant,
after conviction and sentence, is released subject to the conditions imposed by the court and to the
supervision of a probation officer. It is evident from this provision that an offender will be released
on probation only after conviction and sentence. Furthermore, Section 4 underlines the necessity of
filing an application with the trial court before the suspension of the execution of the court's
judgment. The petition for probation may be filed by a petitioner directly with the trial court which
exercises jurisdiction over his case. If the court finds that the petition is in due form and that the
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petitioner is not disqualified from the grant of probation it shall refer the same to the Provincial or
City Probation Officer within its jurisdiction as the case may be. The court shall order the Provincial
or City Probation Office to conduct a post-sentence investigation of the petitioner. Only upon the
filing of an application for probation after conviction and sentence and a determination that the
offender does not fall under any of the disqualifications set forth in the Decree may the court
suspend the execution of sentence.
The Post-Sentence Investigation is an indispensable requisite to a grant of probation.
The Probation Law provides: "No person shall be placed on probation except upon prior
investigation by the probation officer and a determination by the court that the ends of justice and
the best interest of the public as well as that of the defendant will be served thereby."
The scope of the investigation must be consistent with the purposes of probation. In
general, it is a fact finding inquiry into all information relative to the character, antecedents,
environment, mental and physical condition of the offender, and available institutional and
community resources.
Upon the termination of the Post-Sentence Investigation, the probation officer shall
submit to the court the investigation report on a defendant not later than sixty days from receipt of
the order of said court to conduct the investigation. The purpose of the report is to assist the court
in determining whether or not the ends of justice and the best interest of the public as well as that
of the defendant will be served thereby.
The recommendation contained in the report is merely persuasive and is in no way
binding upon the court. Considering the foregoing and compliance therewith, the court will
promulgate a probation order. Probation is a privilege and, as such, its grant rests solely upon the
discretion of the court. The grant of probation results in the release of the petitioner subject to the
terms and conditions imposed by the court, and to the supervision of the Probation Office.33 As to
the conditions to be imposed by the court, they are enumerated in Section 10 of the Presidential
Decree No. 968.
The jurisdiction and control of the court which arises from an imposed sentence,
remains with the court even after a grant of probation. This is evident in Sections 32 and 40 of the
Rules On Probation Methods and Procedures. Section 32 provides: "During the period of probation
the court, motu proprio, or on motion of the probation officer or of the probationer, may revise or
modify the conditions or terms of the probation order." In case of violation of the terms and
conditions imposed by the court, Section 40 provides "if the violation is established, the court may
revoke or continue his probation and modify the conditions thereof. If revoked, the court shall order
the probationer to serve the sentence originally imposed and shall commit the probationer." This
power of the court underlines the non-punitive and non-repressive aspect of probation. Such
constitutes a sufficient threat to the probationer to fulfill all terms and conditions imposed by the
court.
PROBATION IS AN ADMINISTRATIVE PROCESS
Once the court has granted probation to an offender and has duly imposed the terms and
conditions of the probation, the probation officer has the bounden duty to see to it that the
probationer observes all terms and conditions imposed by the court. Probation supervision is then a
primarily an administrative process.
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The primary purposes of probation supervision are:
a) To carry out the conditions set forth in the probation order;
b) To ascertain whether the probationer is following said conditions; and
c) To bring about the rehabilitation of the probationer and his reintegration into the community
To carry out these purposes the Probation Law upon its approval carried with it the
establishment of a Probation Administration an agency under the Department of Justice, which shall
exercise general supervision over all probationers. The Administration shall have regional offices
organized in accordance with the field service area pattern established under the Integrated
Reorganization Plan. There shall be at least one probation officer in each province and city who shall
be appointed by the Secretary of Justice upon recommendation of the Administrator and in
accordance with civil service law and rules.
At this juncture, it is to be emphasized that in spite of the fact that the Probation
Administration is an executive agency, control of the courts over the probationer is not lost. The
basis for such is the first paragraph of Section 13 of the Decree which provides that "the probationer
and his probation program shall be under the control of the court who placed him on probation
subject to actual supervision and visitation by a probation officer."
A. PHILOSOPHY OF PROBATION
The Probation adheres to the following philosophy:
1. There is no single cause for delinquent behavior. Human beings are extremely complicated. It
is not possible to trace complex pattern of Human behavior to any single cause;
2. Delinquent and criminal acts are symptoms. The offender against our law is exhibiting a
symptom of social or psychological disturbance, just as a headache is a symptom of a
physical disturbance. This means that the juvenile delinquent or adult offender is in need of
treatment. The job of Probation Administration is to find out what the problems are beneath
the symptom and to recommend appropriate treatment plans;
3. That the individual has the ability to change and modify his anti-social behavior with the right
kind of help;
4. The central goal of probation Administration is to enhance the safety of the community by
reducing the incidence of Criminal acts by person previously convicted. The goal is to achieve
through counseling, guidance, assistance, surveillance and restraint of the offender to enable
their reintegration into society as law abiding and productive members;
5. The basic idea underlying a sentence to probation is very simple. Sentencing is in large part
concerned with avoiding future crimes by helping the defendant learn to live productively in
the community which he has offended;
6. This is of course not to say that probation should be used in all cases, or it will always
produce better results. There are many goals of sentencing some of which in given case may
require the imposition of a sentence to imprisonment even in the face of a conclusion that the
probation is more likely to assure that the public that the particular defendant will not offend
again.
7. By the same token however, it can be said that probation is a good bit more than the “matter
of grace” or “leniency” which characterizes the philosophy of the general public and of many
Judges and legislators on the subjects. Probation is an affirmative correction too, a tool
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which is used not because is maximum benefits to the defendant, but society which is sought
to be served by the sentencing criminals;
8. An adequate correctional system will place great reliance on appropriately funded and
manned probation services. Within such context probation services. Within such context
probation can lead to significant improvement in the preventive effects of the criminal law, at
much less of a financial burden than the more typical prison sentence;
9. Imprisonment as a sole cure for prevalence of Crime is no Longer recognized. Prisons are in
themselves often productive of crime and Destructive of the keepers as well as kept.
10. It is generally concealed that probation a matter of privilege to be granted refused at
discretion of the State. The applicant has already been convicted and sentenced by the court
and it is only the mercy of that he may be given probation;
11. No violation of probation conditions should result in automatic revocation;
12. No physical would undertake to prescribe treatment for sick man unless he has repot of his
ailment and condition (diagnosis), a judge should not pass judgment on a man without post-
sentence investigation report.
II. ELEMENTS AND CHARACTERISTICS OF PROBATION
A. ELEMENTS OF PROBATION
a. FOUR (4) ESSENTIAL ELEMENTS OF PROBATION
1. A post sentence investigation report which will serve as the informational for the court’s
decision to grant or deny probation
2. The conditional suspension of execution of sentence by the court
3. Condition of probation imposed by the court to protect public safety and to faster the
rehabilitation and reformation of the probationer.
4. Supervision, guidance and assistance of the offender by a probation officer.
b. ESSENTIAL ELEMENTS OF THE PROBATION SYSTEM UNDER PRESIDENTIAL DECREE NO. 968
The following are the essential elements of the probation system under Presidential
Decree No. 968:
1. Probation is a single or one-time" affair.
2. Probation system is highly selective.
3. Persons under probation retain their civil rights, like the right to vote, or practice one's
profession, or exercise parental or marital authority
B. CHARACTERISTICS OF PROBATION
1. More enlightened and humane correctional treatment
2. It aims to promote the reformation of the offenders.
3. It reduces the incidence of recidivism.
4. It extends to offenders individualized and community based treatment programs instead
of imprisoning them.
5. It is limited to offenders who are likely to respond favorably there to.
6. It is less costly than the confinement of all offenders in prisons.
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III.OBJECTIVES AND PURPOSE OF PROBATION
A. OBJECTIVES OF PROBATION
The following are the fundamental objectives of a Probation Agency
1. Assist the court in matters pertaining to sentencing
2. Promote community protection by supervising and monitoring the activities of persons on
probation
3. Promote the betterment of offenders by ensuring that they receive appropriate rehabilitation
services
B. THE PURPOSE OF THE PROBATION LAW
The purpose of the Probation Law as stated in Section 2 thereof reiterates the
abovementioned characteristics and vests in them the mandate of law. It provides that the purpose
of the Decree is to:
1. Promote the correction and rehabilitation of an offender by providing him with individualized
treatment;
2. provide an opportunity for the reformation of a penitent offender which might be less
probable if he were to serve a prison sentence; and
3. Prevent the commission of offenses.
IV.ADVANTAGES, BENEFITS AND SAVINGS OF PROBATION
A. ADVANTAGES OF PROBATION
The implementation of the Probation Law will confer benefits and advantages not only to society in
general but more soon the part of the offender and the government. Specifically, the following are
the advantage of probation:
1. Probation prevents crime by offering freedom and aid only to those who are not likely to
assault society again.
2. It protects the society by placing under close supervision non-dangerous offenders while
undergoing treatment and rehabilitation in the community.
3. It conform the modern humanistic trends in Penology.
4. It prevents youthful of first time offenders from turning into hardened criminals.
5. It is a measure of cutting enormous expends in maintaining jails.
6. It reduces recidivism and overcrowding of jails and prisons.
7. It reduces the burden of police forces and institution in feeding and guarding detainees.
8. It gives the first and light offenders a second chance in life.
9. It makes the offender productive or taxpayers instead of tax eaters.
10. It restores to successful probationers his civil rights which was previously lost or suspended
as a result of conviction.
11. It has been proven effective in developing countries that have adopted it.
12. . It is advocated by the United Nations in its various congresses in crime prevention and
treatment of offenders.
B. BENEFITS OF PROBATION
Probation has the following benefits:
1. It protects society
a. from the excessive cost of detention
b. from the high rate of recidivism of detained offender
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2. It protects the victim
a. it provides restitution
b. it preserves justice
3. It protects the family
a. it does not deprive the wife and children of husband and father
b. it maintains the unity of a home
4. It assists the government
a. it reduces the population of prisons and jail
b. it lessens the clogging of courts
c. it lightens the load of prosecutors
5. It helps the offender
a. it maintains his earning power
b. it provides rehabilitation in the community
c. it restores his dignity
6. It justifies the philosophy of men
a. that life is sacred
b. that all men deserve a second chance
c. that and individual can change
d. that society has the moral obligation to lift the fallen
C. SAVINGS OF PROBATION
The following are the savings of probation:
1. Probation is one tenth the cost of detention. As illustrated, the per capita cost of maintaining
one offender in the Philippines is estimated at Php 11,000.00 annually, while it costs only Php
300.00 to maintain one offender on probation.
2. This means savings of Php 30,000.00 when 10,000 of 40,000 offenders are on probation
annually. It is expected that at least one third of the prisons and jail population in the country
would benefit from probation.
3. The average per capita income of a Filipino in 2003 according to the National Statistics and
Coordination Board (NSCB) was Php 30,703.00. It means that when 10,000 probationers are
making a living they will produce Php 307,030,000.00 in goods and service annually. A part of
this goes to the government in forms of taxes. Indeed, detention makes tax eaters while
probation makes TAX PAYERS.
4. The cost of constructing and preparing prisons and jails is enormous which would run to at
least Php10,000,000 annually in order to accommodate 40,000 offenders.
5. The probation system saves the government a total of Php 4.678 Billion in terms of prisoners
maintenance in jails and prisons all over the country.
6. Philippine Probation System adheres to the concept of Restorative Justice. Thus, a total of
Php 137.923 Million has been paid to clients’ victims and/or their heirs
7. The biggest savings of probation aside from money are, however, in the forms of human
resources, dignity, time and opportunity for development, which are most needed by our
society.
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VI.PROBLEM AREAS OF THE PROBATION LAW
1. Presidential Decree No. 968 will cover civilians tried and convicted by military tribunals.
Section 1 provides: "it shall apply to all offenders except those entitled to the benefits under
the provisions of Presidential Decree No. 603 and similar laws." Section 9 on disqualified
offenders does not include those convicted by military tribunals.
What are the "similar laws" referred to in Section 1? Two can readily be mentionedThe
Dangerous Drugs Act of 1972 and the Articles of War.
2. The cut-off point at six years imprisonment for extending the benefits of probation refers to
the sentence actually imposed, not that prescribed by law for the offense committed.
3. The probation law does not disqualify one who has been convicted of an offense penalized by
DESTIERRO, such as that of killing or inflicting serious physical injuries under the exceptional
circumstances in Article 247 of the Revised Penal Code or concubinage insofar as the
concubine is concerned in Article 334, of the same. Unlike Section 9(a), Section 9(c) has
reference to the penalty imposed by law.
Under Section 9(d), one who has been on probation only under the Juvenile Delinquency
Act of 1924, Article 80 of the Revised Penal Code, or the Child and Youth Welfare Code
will not be disqualified.
Under disqualification (e), those who will serve sentence after the substantive provisions of
the Decree shall become operative will be permitted to do so, according to one view. The
reason given is that otherwise it would have been unnecessary for the law to specify the time
at which the offender concerned should be serving his sentence. Another view, however,
points to the principle of separation of powers.
4. Probation, it is argued, as laid out by the Decree is primarily a judicial function, while the
service or execution of sentence is an executive one. When the convict is delivered to the
hands of the prison authorities, to subsequently allow the judiciary to reach him by
suspending the further service of his sentence and placing him on probation would constitute
an intrusion into the prerogatives of the executive to whom belongs the exclusive power to
grant reprieves, commutations and pardons and remit fines and forfeitures.
Therefore, according to this view, offenders who are already serving sentence, no matter
when they start or may be found to be serving sentence, are NOT qualified for the benefits of
the Decree.
5. It cannot be made at any time after conviction and sentence, but rather extends only up to the
actual commitment of the defendant to prison for the service of his sentence, and not
thereafter. The defendant may apply for probation in case of appeal from a judgment of
conviction. He may apply for probation as long as he has not begun serving his sentence, and
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obviously this does not happen if the sentence has not become final and executory, such as
during the pendency of an appeal.
6. The rule of automatic withdrawal of pending appeal applies in case the application for
probation is made when the appellate court has already rendered its decision, there being no
indication in the probation law to the contrary, and the operation of such rule being in
accordance with the maxim that laws should be liberally construed in favor of the accused.
7. The application for probation may be in any form, whether written or oral. While Section 4 of
the Decree states that the application shall be filed with the court, this does not necessarily
mean that it should be in writing, even if a written form would definitely be more convenient
to the court. A liberal construction of the law beneficial to the accused would not consider the
use of the term 'filed' by the law, as impliedly requiring a written form.
8. Defendant is not entitled as a matter of right to the assistance of counsel in the investigation.
The probation law does not have a provision guaranteeing the right to counsel in such
investigation. The constitutional guarantee that in all criminal prosecutions the accused shall
enjoy the right to be heard by himself and counsel and that any person under investigation for
the commission of an offense shall have the right to counsel would not seem to apply
because the investigation by the probation officer is neither prosecutory nor accusatory in
character. It is merely a fact-finding inquiry.
9. Neither is the constitutional guarantee against self-incrimination that no person shall be
compelled to be a witness against himself, available in the investigation. The said guarantee
does not depend upon the nature of the proceedings in which it is invoked, of course, and it
may be availed of as long as the questions objected to would incriminate the person who 'is
asked to answer the same. But it is an established doctrine that where the answer to a
question, however self-incriminating, may not be used as evidence of criminal liability of the
respondent because there is a law prohibiting its use for that purpose, then the privilege
against self-incrimination may not be validly invoked to justify refusal to answer the question.
Section 17 of the Probation Law provides that the investigation report and the supervision
history of the probationer obtained under this decree shall be privileged, i.e., it may not
legally be used as· evidence of liability.
We raise one question, though. The same Section 17 itself provides that "the investigation
report and the supervision history x x x shall be privileged and shall not be disclosed directly
or indirectly to anyone other than the Probation Administration or the court concerned x x x."
If the defendant cannot invoke the privilege against self-incrimination during the
investigation, would not the incriminating answers given prejudice the court in deciding
whether it will grant probation or not?
10. Pending submission of the investigation report and the resolution of the petition for
probation, the defendant may be allowed on temporary liberty under his bail filed in the
criminal case, or on recognizance.
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11. While the grant or denial of probation is not appealable, certiorari will lie, under the general
law on certiorari. This is not appeal for he does not question the findings of fact of the trial
court but only the reasonableness of the order based thereon and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified petition in the proper,
court alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceeding as the law requires of such tribunal, board or officer. The petition
shall be accompanied by a certified true copy of the judgment or order subject thereof,
together with copies of all pleadings and documents relevant and pertinent thereto.
12. The grant of probation does not erase, modify of otherwise affect the offender's CIVIL
LIABILITY. Probation is a substitute for imprisonment and other criminal penalties, not a
mode of discharging the civil liability, which is owed not to the State but to the offended party.
The sentence, which is suspended from execution, means only the imposition of the criminal
penalties, not the civil liability. If it were otherwise, the offended party would have to file a
separate civil action thereby creating multiplicity of suits, contrary to public policy. In fact,
civil indemnification might be imposed as a condition for probation under Section 10 (k) of the
Probation Law. Indeed, under Article 112 in relation to Article 113, of the Revised Penal Code,
except in case of extinction of his civil liability in accordance with the provisions of the civil
law, the offender shall continue to be obliged to satisfy the civil liability resulting from the
crime committed by him, even if he has served his sentence consisting of deprivation of
liberty or other rights, or has not been required to serve the same by reason of amnesty,
pardon, commutation of service, or any other reason.
VII. PROBATION UNDER PD NO. 603 AS AMENDED BY REPUBLIC ACT NO. 9344
The Presidential Decree (PD) 603 is known as the Child and Youth Welfare Code. The
Decree was signed by his Excellency President Ferdinand Marcos on December 10, 1974 and took
effect on June 10, 1975. It provides for the grant of probation to youthful offender as an alternative to
imprisonment. It is considered as the second probation law of the Philippines which is intended only
for minors.
Presidential Decree No. 603 applies to youthful offenders. It suspends the sentence of
minor offenders whose ages range from 9 years old but not more than 21 years old (now 18) the time
of the commission of the offense and places them to rehabilitation center. It states, "if after hearing
the evidence in the proper proceedings, the court should find that the youthful offender has
committed the acts charged against him, the court shall determine the imposable penalty, including
any civil liability chargeable against him. However, instead of pronouncing judgment of conviction,
the court shall suspend further proceedings and shall commit such minor to the custody or care of
the Department of Social Welfare, or to any training institution operated by the government, or duly
licensed agencies or any other responsible person, until he shall have reached 21 years of age (now
18), or for a shorter period as the court may deem proper.
NOTA BENE: The age of minority is lowered from 21 to 18 years old
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RELATED PROVISIONS UNDER REPUBLIC ACT NO. 9344
Sec. 5 of Republic act No. 9344: Rights of the Child in Conflict with the Law. - Every child in conflict
with the law shall have the following rights, including but not limited to:
xxx (m) the right to probation as an alternative to imprisonment, if qualified under the Probation
Law; xxx
Sec. 42 of Republic act No. 9344: Probation as an Alternative to Imprisonment. - The court may, after
it shall have convicted and sentenced a child in conflict with the law, and upon application at any
time, place the child on probation in lieu of service of his/her sentence taking into account the best
interest of the child. For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as
the "Probation Law of 1976", is hereby amended accordingly.
Sec. 43 of Republic act No. 9344: Confidentiality of Records and Proceedings. - All records and
proceedings involving children in conflict with the law from initial contact until final disposition of
the case shall be considered privileged and confidential. The public shall be excluded during the
proceedings and the records shall not be disclosed directly or indirectly to anyone by any of the
parties or the participants in the proceedings for any purpose whatsoever, EXCEPT to determine if
the child in conflict with the law may have his/her sentence suspended or if he/she may be granted
probation under the Probation Law, or to enforce the civil liability imposed in the criminal action.
The component authorities shall undertake all measures to protect this confidentiality of
proceedings, including non-disclosure of records to the media, maintaining a separate police blotter
for cases involving children in conflict with the law and adopting a system of coding to conceal
material information which will lead to the child's identity. Records of a child in conflict with the law
shall not be used in subsequent proceedings for cases involving the same offender as an adult,
except when beneficial for the offender and upon his/her written consent.
A person who has been in conflict with the law as a child shall not be held under any
provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her
failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to
him/her for any purpose.
Sec. 67 of Republic act No. 9344: Children Who Reach the Age of Eighteen (18) Years Pending
Diversion and Court Proceedings. - If a child reaches the age of eighteen (18) years pending
diversion and court proceedings, the appropriate diversion authority in consultation with the local
social welfare and development officer or the Family Court in consultation with the Social Services
and Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the
appropriate disposition. In case the appropriate court executes the judgment of conviction, and
unless the child in conflict the law has already availed of probation under Presidential Decree No.
603 or other similar laws, the child may apply for probation if qualified under the provisions of the
Probation Law.
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DISTINCTION BETWEEN PROBATION UNDER PRESIDENTIAL DECREE NO. 603 AND UNDER
PRESIDENTIAL DECREE NO. 968
Presidential Decree No. 603 Presidential Decree No. 968
Under Presidential Decree No. 603 the youthful
offender is neither convicted nor sentenced
although the court finding him guilty determines
the imposable penalty and orders his
commitment as a matter of course to any of the
trustees for his correction and rehabilitation,
even without his asking for it and without any
prior investigation
Under Presidential Decree No. 968, the offender
is convicted and sentenced. Section 3 defines
probation as a disposition under which a
defendant, after conviction and sentence, is
released subject to conditions imposed by the
court and to the supervision of a probation
officer. The probationer is not committed to any
institution but is set free under the constructive
custody of the court which heard his application
for probation. Section 4 of the Probation Decree
requires that defendant should apply for
probation.
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The concept of probation, from the Latin, probatio, "testing," has historical roots in the
practice of judicial reprieve.
In English common law, prior to the advent of democratic rule, the courts could
temporarily suspend the execution of a sentence to allow a criminal defendant to appeal to the
monarch for a pardon. Probation first developed in the United States when John Augustus, a Boston
cobbler, persuaded a judge in the Boston police court in 1841 to give him custody of a convicted
offender, a "drunkard," for a brief period and then helped the man to appear rehabilitated by the time
of sentencing.
Even earlier, the practice of suspending a sentence was used as early as 1830 in Boston,
Massachusetts, and became widespread in U.S. courts, although there was no statutory provision
for such a practice.
At first, judges, most notably Peter Oxenbridge Thatcher of Boston, used "release on
recognizance" or bail and simply refrained from taking any further action. In 1878 the mayor of
Boston hired a former police officer, the ironically named "Captain Savage," to become what many
recognize as the first official probation officer. By the mid-19th century, however, many Federal
Courts were using a judicial reprieve to suspend sentence, and this posed a legal question.
In 1916, the United States Supreme Court, in the Killets Decision, held that a Federal
Judge (Killets) was without power to suspend a sentence indefinitely. This decision led to the
passing of the National Probation Act of 1925, thereby, allowing courts to suspend the imposition of
incarceration and place an offender on probation. Probation developed from the efforts of a
philanthropist, John Augustus, who looked for ways to rehabilitate the behavior of criminals
Massachusetts developed the first state-wide probation system in 1880, and by 1920, 21
other states had followed suit. With the passage of the National Probation Act on March 5, 1925,
signed by President Calvin Coolidge, the U.S. Federal Probation Service was established. On the
state level, pursuant to the Crime Control and Consent Act of 1936, a group of states entered into an
agreement wherein they would supervise probationers and parolees who reside in each other's
jurisdictions on each other's behalf. Known as the Interstate Compact for the Supervision of
Parolees and Probationers, this agreement was originally signed by 25 states in 1937.
By 1951, all the states in the United States of America had a working probation system
and ratified the Interstate Compact Agreement. In 1959, the new states of Alaska and Hawaii, the
Commonwealth of Puerto Rico, and the territories of the Virgin Islands, Guam, and American Samoa
ratified the act as well.
I. HISTORICAL DEVELOPMENT OF PROBATION
A. HISTORICAL DEVELOPMENT OF PROBATION IN ENGLAND
Early in the 19th century the English magistrates initiated experiments to save young and
inexperienced offenders from stigma of prison. They made use of the latitude allowed then under
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the common law to bind over defendants, who should be brought back for sentence if the conditions
of release were violated.
The need for supervision and assistance to those so released was met by assigning the
young offender to the care and guardianship of his parents or his employer with an occasional
check on his progress by the police.
WHO IS MATHEW DAVENPORT HILL?
Mathew Davenport Hill is considered the father of
probation in England. He left an interesting account of his
experiments in the Birmingham court. He was in the forefront of
reforming juvenile offenders. He finds persons who act as
guardians of the juvenile offender. Then at an unexpected period,
the confidential officer visits the guardian, makes inquiries and
keeps notes of information received.
He conducted his experiment in the Birmingham Court.
Beginning in the early years of 1481, he acted for and in behalf of juvenile offenders, when he
believes:
1. The individual is not fully corrupt
2. There was reasonable hope of reformation
3. When there could be found persons to act
As guardian they are kind enough to take charge of the young convict. In the belief that
there is better hope for reformation under such guardians than in prison.
At unexpected period, confidential officers visits the guardians, make inquiries and register
facts. He was thus informed and records were kept.
B. HISTORICAL DEVELOPMENT OF PROBATION IN UNITED STATES
The first state to enact a real probation law in United States is Massachusetts. The first
practical demonstration of probation, first use of the term as court service, and the enactment of the
first probation law occurred in Massachusetts.
Volunteer services evolved in Maryland. The prisoners Aid Association of Maryland,
organized in 1869, employed agents to visit the prison and assist released prisoners and gradually
they began to investigate cases and assist offenders before the Baltimore courts. A 1894 law
provided that any court in the state might release on probation for “good conduct” a person
convicted of any offense not capital, if no previous conviction was proved against him, upon his
entering into a recognizance, with or without sureties, and during such period as the court may
direct to appear and received judgment when called upon, and in the meantime to keep the peace
and be of good behavior.
Another state adopting a partial measure was Missouri with its “parole of convicted
person’s law of 1897.”
The second state to enact a real probation law. The Vermont like Missouri and unlike
Massachusetts provided for probation only after suspension of the execution of sentence. The bills
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in both states were supported by the state correctional agencies. Many features of the
Massachusetts law were incorporated, with several innovations since followed elsewhere. Vermont
was the first to adopt a county plan.
The third state to enact a real probation law is Rhode Island. A complete state-
administered probation system appeared first in Rhode Island. The Act of 1899 empowered the board
of state charities and corrections to appoint a state probation officer and additional probation
officers, “one of whom at least shall be a women,” to serve all courts in the state. The Act followed
Massachusetts in permitting the use of probation before the imposition of sentence and even
without conviction but the limitation of probation to less serious offenses was an unfortunate
departure from the laws of Massachusetts and Vermont.
Success of probation became known in other English speaking countries. Illinois and
Minnesota in 1899 Plan for children only. New Jersey and New York enacted probation law in 1900.
Finally, on March 4, 1925 the UNITED STATES FEDERAL PROBATION ACT was enacted.
WHO IS JOHN AUGUSTUS?
John Augustus is the father of probation in the USA. He is a Boston
shoemaker, first to develop a sustained service to promote
temperance and to reclaim drunkards. Although later he begun to take
men and woman charged with other crimes, then eventually children.
As indicated by the story of the first case, his method was to provide
bail for a temporary suspension or postponement of sentence, during
which he sought to counsel and assist such persons find homes,
securing employment and adjusting family difficulties. At the end of the
probation period, he brought back the offender to court, and if no
further complaint had been lodged against the offender, the judged
imposed a nominal fine with costs. If the man was too poor, Mr. Augustus advanced the amount,
usually as loan.
John Augustus originated in rudimentary form, many of the techniques of probation
officers and other social workers today, including casework, foster home placement, and protective
work for women and children.
This was brought about by the changing attitudes of the people towards law breaker and
the removal of the inherited attitudes from the PURITANS.
John Augustus was born in 1785 at Woburn Massachusetts and moved to Lexington Green
and became a Cordwainer or Bootmaker. He prospered and acquired large track of land apart
conveyed to Lexington Academy to erect a school. Which he became a trustee. In 1827 he moved to
Boston and set up a shop at Franklin Avenue near the Courthouse. He began to visit courthouse
because of his membership with the Washington Total Abstinence Society, formed in Boston in 1841
to promote temperance and to reclaim drunkards. During the first year, he took only men charge
with drunkenness. Then men and women charge with other offense and then children/ number of
cases increases each year
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METHODS OF AUGUSTUS
1. Provide bail for temporary suspension of punishment of sentence
2. Then he sought counsel and assists his charges in finding homes, securing employment and
adjusting family difficulties.
3. At the end of probation he brought offender back to court-if no further charges are found-
judge imposes a nominal fine with cost if man is poor, Augustus advance fine as a loan
AUGUSTUS EXPERIMENT
 August 1841- Rugged drunk man
 3 weeks -The drunkard was brought back to court where the judge cannot recognize him.
Imposes a fine of $ 3.76.
 Augustus died on June 21, 1859. And out of 2000 person whom he extended his help, only 10
were ungrateful. And out of 1100 cases, only one case was forfeited.
 Massachusetts became the 1st country to enact a probation law on April 21, 1878
WHO IS GOVERNOR ALEXANDER H. RICE?
He provided appointment and prescribed duties for paid
probation officers.
WHO IS PRESIDENT CALVIN COOLIDGE?
The former governor of Massachusetts.
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C. HISTORY OF PROBATION IN THE PHILIPPINES
A. The Adult Probation Law of 1935
The Philippine Legislature enacted the first probation of the Philippines. The first
legislation was Act No. 4221 enacted by the Philippine legislature on August 07, 1935 and which
created a Probation Offices under the Department of Justice led by a Chief Probation Officer
appointed by the American Governor General with the advice and consent of the United States. This
Law provided probation for the first time offenders, eighteen years of age and over, convicted of a
certain crime.
However, the law stayed in the statue Books for only Two years. The act subsequently
declared unconstitutional by the Supreme Court on Nov. 16, 1937 in People vs. Vera 37 O.G. 164.
NOTA BENE: The ill-fated Act was only procedural framework that was antagonistic with the
constitution/charter.
Section 11 of Act no 4221, the fatal provision of the Act, provided that "This Act shall apply only in
those provinces in which the respective provincial boards have provided for the salary of a
probation officer . . ..’’
The declaration of unconstitutionality of the Probation Act of 1935 created a gap in the
criminal justice system in the Philippines. The criminal justice system is the machinery which
society uses in the prevention and control of crimes. Its components are the police, the courts, the
penal institutions, the probation and the parole systems the components are highly dependent upon
one another. The failure of one can destroy the effectiveness of all the others within the system.
In order to heighten the awareness of interdependency and cooperation among the
components of the criminal justice system, as well as to improve judicial process and to reduce the
level of criminality, the National Police Commission created an Inter-Disciplinary Committee in 1974
to prepare a National Crime Prevention Program. On July 24, 1976, a "National Strategy to Reduce
Crimes" was finalized and presented to the President of the Philippines. The Strategy proposed a
two-pronged attack to reduce crime in the country, namely: (1) to give emphasis on the prevention
and control of high-fear and economic crimes by implementing a number of priorities of actions; and
(2) to improve the quality of the criminal justice system by facilitating teamwork among its
interdependent components.
The following priorities of action were recommended:
1. Improvement of the quality of the criminal justice system among its interdependent
components;
2. Improvement of the management skills of law enforcement;
3. Reducing the delays in the criminal justice processes;
4. Making corrections more attuned to its role of rehabilitating law offenders; and
5. Increasing the community participation in crime prevention.
There were a number of projects recommended under each of these priorities of action,
among which was the establishment of an adult PROBATION SYSTEM. It was a priority action under
(4).
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The rationale for recommending priority consideration to the establishment of a
probation system is clearly apparent.
1. The penal system in the country is characterized by substandard treatment of prisoners.
To try to train lawbreakers to obey the law in a substandard system is self-defeating.
2. The deterrent potentiality of the prisons is grossly exaggerated. No one has ever proved
that the threat of severe punishment actually deters crime.
3. Prisons heighten the offenders' weaknesses and erode their capacity for responsibility
and sociability.
4. The maintenance of penal institutions is costly on the part of the government. In view of
these considerations, an alternative to institutionalization for certain types of offenders
was proposed. Such proposal was subsequently translated into a law on July 24, 1976,
which is now known as the "Probation Law of 1976" or Presidential Decree No. 968.
WHO IS TEODULO C. NATIVIDAD?
He is the Father of Probation in the Philippines. He headed the committee
(IDCCP) primarily tasked with the drafting of the adult probation law.
A. THE ADULT PROBATION LAW OF 1976
It took a long time before another attempt was made with introduction then by
Congressman Teodulo C. Natividad in collaboration with former Congressman Ramon D. Bagatsing,
House Bill No. 393. The measure was passed in the Lower House and was pending in the senate
when Martial Law was proclaimed in 1972.
The Presidential decree No. 968, established a probation system less costly alternative to
the imprisonment of the offender who are likely to respond to individualized, community-based
treatment program is the second legislation that enforces a probation system in the country.
On Nov. 13, 1974, the Inter-Disciplinary Committee on Crime Prevention (IDCCP) was
created to formulate a national crime prevention program for the courtly.
NOTA BENE: The committee places emphasis on “Pro-action (crime prevention) rather than Reaction
(action after occurrence of the crime).
INTER-DISCIPLINARY COMMITTEE ON CRIME PREVENTION (IDCCP)
The delegation’s official report served as the turning point for the Inter-Disciplinary
Committee on Crime Prevention of the commission to formulate for a national crime prevention
program. As mandated under Section 4(k) of republic Act no. 4864, otherwise known as the police
Act of 1966”, the National Police Commission, on November 13, 1974, created the IDCCP. The IDCCP
then under the charge of Commissioner Teodulo C. Natividad, was asked by the Secretary and
Chairman of NAPOLCOM, Juan Ponce Enrile to draft the adult probation decree.
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This Committee, the Inter-Disciplinary Committee, is composed of authorities and
representative from the five pillars of the criminal justice system. After a laborious period of
eighteen technical hearings involving sixty source persons, came out with the draft decree for
presentation at a seminar on the Probation System sponsored by the National Police Commission
and the U.P. Law Center on April 24, 1976 subsequently attended by 369 participants.
The Proposal was reviewed by a mixture of Jurist, Penologist, Policemen, Educators
subsequently civic leaders, social and behavioral scientist, media men blue- and white-collar
workers and housewives. Two (2) foreign experts participated namely Dr. Torsten Erickson, former
United Nations Inter-Regional Adviser on Crime Prevention Justice and Dr. A. Lamonth Smith.
Director for Research Program Planning and Elicit comments on the adoption of adult probation
system in the country.
A survey was made to elicit comments on the adoption of the adult probation system in
the country. Favorable resulted showed 87.1% in favor of the adoption, 7.1% apprehensive and 5.8%
non-committal.
Thereafter, the draft was sent to the Secretary of the Department of the National Defense,
Secretary of the Department of the Justice and to the Supreme Court for review and endorsement of
the President.
The final forum of the proposed institutionalization of adult probation in the country was
the First National Conference on Crime Control, which was held at Camp Aguinaldo from July 22 to
July 24, 1976. It was on this historic last day of the Conference that the Presidential Decree No. 968
and thereby Transported the criminal justice system of the country to the twentieth century. In the
process, the president also appointed as the first Probation Administration, NAPOLCOM Chairman,
Teodolo C. Natividad in a concurrent capacity.
THE MULTI- SECTORAL BODY
As advocated by the United Nations, the five-penal multi-sectoral body is composed of
experts from the various sectors and disciplines comprising the five pillars of criminal justice
system, namely: Police, Prosecution, Court, Correction and Community Participation. The panel on
community participation has sub-panels on education, welfare, religion, Barangay, health and
economics.
Under the leadership of Commissioner Teodulo C. Natividad, the IDCCP, after barely two
months of work evolved a proposed system of probation for adults based on evaluation of projects
on crime prevention and treatment of offenders in the courtly, notably the Bacolod City experiment
on social defense.
This was later incorporated as part of PD 968 which was signed into law by Pres.
Ferdinand E. Marcos on July 24, 1976. Note: Jan. 3, 1978 + affectivity of the substantive provisions of
PD 968.
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II. BASIC DIFFERENCES BETWEEN P.D. 968 AND THE PROBATION ACT OF 1935
Presidential Decree 968
(Probation Law of 1976)
Act no. 4221
(Probation Law of 1935)
As to Applicability of the
probation law
It expressly and explicitly provides
that "There shall be at least one
probation officer in each province
and city who shall be appointed by
the Secretary of Justice upon
recommendation of the
Administrator and in accordance
with civil service law and rules."
(Section 23)
 The Probation Law applies to
all provinces and cities,
uniformly and without
discrimination
 The salary of the probation
officer in each province or city
is provided for by law, no
longer subject to the discretion
of the respective provincial
boards.
 The law expressly provides
that "The Provincial or City
Probation Officer shall receive
an annual salary of at least
eighteen thousand four
hundred pesos.”
It expressly and explicitly provides
that this Act shall apply only in
those provinces in which the
respective provincial boards have
provided for the salary of a
probation officer . . . " (Section 11)
 The Probation Law applies only
to provinces and cities in which
their respective provincial
boards have provided for the
salary of a probation officer
 The salary of the probation
officer is to the discretion of the
respective provincial boards.
 The Probation Law divests the
provincial boards of the power
to determine whether or not
salary of a probation officer in
their respective provinces would
be appropriated.
As to the condition of the
probation order
The conditions of Probation make
it MANDATORY for the Court to
issue a probation order containing
specific conditions for the
probationer to fulfill. (Section 10)
 The reparation or restitution by
the probationer to the
aggrieved parties for actual
damages or losses caused by
his offense is DELETED
The imposition of the said
conditions on the probationer was
merely DISCRETIONARY on the part
of the Court issuing the probation
order. (Section 3)
 There is reparation or restitution
by the probationer to the
aggrieved parties for actual
damages or losses caused by
his offense.
As to the period of
probation
It provides that "in all other cases,
the probation period shall not
exceed 6 years. (Section 14)
The new law, therefore, provides
for a definite and shorter
probation period.
It provides that the period of
probation of a probationer found
guilty of "any other offense" did not
exceed twice the maximum time of
imprisonment to which he might be
sentenced. (Section 7)
As to the appealability of
the order granting or
The Law provides that an order
granting or denying probation
Nowhere in the old Probation Law
can there be found a provision to
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denying probation shall not be appealable. (Section
4)
this effect.
As to the offenses not
covered
It contains a GENERAL
enumeration. It provides that the
benefits of this Decree shall not be
extended to those:
a) sentenced to serve a maximum
term of imprisonment of more
than 6 years;
b) convicted of any offense
against the security of the
State;
c) who have previously been
convicted by final judgment of
an offense punished by
imprisonment of not less than
one month and one day and/or
fine of not less than two
hundred pesos;
d) who have been once on
probation under the provisions
of this Decree;
e) who are already serving
sentence at the time the
substantive provisions of this
Decree became applicable. . .. "
(Section 9)
N.B. Thus, besides a general
enumeration of the offense not
covered, the said Section further
broadened the scope of the
inapplicability of the Law.
Additional exemption from
coverage can be found in the
offenses enumerated under
Section 9 (a, c, d and e)
abovementioned.
It gave an enumeration of the
offenses not covered by the Act.
This enumeration SPECIFIED the
crimes not covered. These were:
1. Homicide
2. Treason
3. Misprision of treason
4. Sedition
5. Espionage
6. Conspiracy or proposal to
commit treason
7. Piracy
8. Brigandage
9. Arson
10. Robbery in band
11. Robbery with violence on
persons when it was found
that they displayed a deadly
weapon and
12. Corruption of minors."
(Section 8)
As to modification or
revision of the conditions
of probation
The modification or revision of the
conditions of probation,
Presidential Decree No. 968,
Section 12 provides in part, that
"During the period of probation,
the court may, UPON
APPLICATION of either the
probationer or the probation
officer, revise or modify the
conditions or period of probation. .
.. "
N.B. Contrasting the two Sections,
It provided that "The Court MAY, at
any time, revise, modify or enlarge
the conditions or period of
probation."
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it is evident that under the new
law, application of either the
probationer or the probation
officer is needed in order that the
Court may exercise its discretion
to revise or modify the conditions
or period of probation whereas the
old law granted to the Court the
exclusive discretionary power of
revision and modification without
need of prior application by the
probationer or the probation
officer concerned.
It is clear therefore, that under the
new law, the Court relies heavily
upon the probation officer and
places great faith in him.
As to name of probation
office and its head
 Office - Probation
Administration
 Probation Administrator - the
Executive Officer of the
Probation Administration
 Office - Probation Office
 Chief Probation Officer - the
Head of the Probation Office
III. FORERUNNERS OF PROBATION
The following are the forerunner of probation:
1. Benefits of the Clergy- earliest for softening of the brutal severity of punishment. This was a
compromise between the church and the king that, if any member of the clergy was brought
to trial before the king’s court, such clergy could be claimed from the jurisdiction by the
bishop or chaplain representing him on the ground that the prisoner was subject to the
authority of the Ecclesiastical Court only. There was greater leniency in sentencing and
particularly escape from death penalty. Acquittal or guilt was established by a Jury of Twelve
Clerks.
2. Judicial Reprieve- withdrawal of sentence for an internal of time whereby the execution of
the sentence is suspended either before or after judgment such as when there is a favorable
circumstance in the criminal’s character in order to give him opportunity to apply to the King
for either an absolute an or conditional pardon. Early English courts began to grants
reprieves to prisoners under sentence of death on condition that they accept deportation to
English settlements in America.
3. Recognizance or “Binding over for good behavior” + this is considered as the direct ancestor
of probation. This involves an obligation or promise sworn to under court order by a person
not yet convicted of crime he would keep the peace and be of good behavior.
4. Transportation- this was developed from an ancient practice of banishment and flourished for
more than two hundred years as a principal method of disposing offenders. It served mainly
as cheap source of supplying labor to the colonies of England.
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IV. THE PROBATION LAW AND ITS AMENDMENT
AMENDMENTS PRESIDENTIAL
DECREE NO. 968
Presidential
Decree No.
1257
Section 1 xxx
The prosecuting officer concerned shall be notified by the
court of the filling of the application for probation and he may
submit his comment on such application within ten days
from receipt of the notification.
xxx
Nota Bene: The prosecutor participates in the determination
of the application for probation. It is therefore mandatory the
prosecuting officer concerned shall be notified by the court
of the filling of the application for probation and submits
comment within 10 days from receipt.
NONE
Section 2
Xxx
The court shall resolve the application for probation not
later than fifteen days after receipts of said report."
Xxx
N.B. PD no. 257 extended the period of resolving the
application for probation by the court from five (5) days to
fifteen (15) days.
Section 7
xxx
The court shall
resolve the petition
for probation not
later than five days
after receipt of said
report.
xxx
Section 3
Xxx
In the hearing, which shall be summary in nature, the
probationer shall have the right to be informed of the
violation charged and to adduce evidence in his favor. The
court shall not be bound by the technical rules of evidence
but may be inform itself of all the facts which are material
and relevant to ascertain the veracity of the charge. The
State shall be represented by a prosecuting officer in any
contested hearing.
Xxx
N.B. The defendant has the right to be informed of the
violation charged and to adduce evidence in his favor. NONE
Sec. 4
xxx
That the application of its substantive provisions concerning
the grant of probation shall only take effect on January 3,
1978."
xxx
sec. 33
xxx
That, the application
of its substantive
provisions
concerning the
grant of probation
shall only take
effect twelve
months.
xxx
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Batas
Pambansa
Blg. 76
The probation system shall not be extended to a convicted
offenders sentenced to serve a maximum term of
imprisonment of more than six (6) years and one (1) day.
N.B. The probational period is extended to six (6) years and
one (1) day and below
The probation
system shall not be
extended to a
convicted offenders
sentenced to serve
a maximum term of
imprisonment of
more than six (6)
years.
N.B. The probational
period is six (6)
years and below.
xxx
Any person sentenced to maximum penalty of six years and
one day on January 3, 1978 and thereafter may be placed on
probation upon his application therefore with the court of
origin. However, such person serving sentence shall remain
in jail pending the approval of his application.
XXX
NONE
Presidential
Decree No.
1990
The decree restore the provision of section 9 of PD 968 that
probation shall not be extended to a convicted offenders
sentenced to serve a maximum term of imprisonment of
more than six (6) years. It that senses the decree impliedly
amended the provision of BP 76.
Section 1 amending Section 4 of PD no. 968.
Xxx
Provided; That NO APPLICATION FOR PROBATION
SHALL BE ENTERTAINED OR GRANted if the
defendant has perfected the appeal from the judgment of
conviction.
Xxx
NB: Appeal and probation is a mutually exclusive remedy;
meaning once a defendant filed his appeal it is a deemed
waiver of the filing of probation.
The period of perfecting an appeal is also the period of
perfecting an application/filing for probation. In general, the
period of perfecting an appeal is fifteen (15) days from the
promulgation of sentence.
N.B. 1990 + The period of punishment which is probationable
is lowered again from 6 years and 1 day to 6 years or less
NONE
Executive
Order No. 292
It renamed the Probation Administration created under PD
968 into Parole and probation Administration.
It also extended the powers and function of the PPA. It
includes the following:
a. Administer the parole and probation system;
b. Exercise general supervision over all parolees and
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probationers;
c. Promote the correction and rehabilitation of
offenders; and
d. Such other functions as may hereafter be provided by
law.
xxx
(2)The Administration shall have a Technical Service under
the Office of the Administrator which shall serve as the
service arm of the Board of Pardons and Parole in the
supervision of parolees and pardonees.
The Board and the Administration shall jointly determine the
staff complement of the Technical Service.
xxx
Bautista, F.S. and Guevara, R. M. (2013). Comprehensive Penology Institutional and Non-Institutional
Corrections. Quezon City: Wiseman’s Books Trading Inc.
Esmeralda, R.M. (2016). Non-Institutional (Probation, Parole ad Executive Clemency). Isabela: Isabela
State University
Foronda, M. E. (2013). Correctional Administration (Non-Institutional Corrections). Quezon City:
Wiseman’s Books Trading Inc.
Enhanced by:
RHEYMA P. ANOR, RCrim
Part-time Instructor
Reviewed by:
JEFFSON G. NAUNGAYAN, MS CRim
Program Chairperson, CJE
REFERENCES
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THE RULES AND LIMITATIONS IN THE GRANT OF
PROBATION
I. GRANT OF PROBATION
Section 4 of PD 968 - Subject to the provisions of this Decree, the court may, after it shall have
convicted and sentenced a defendant and upon application at any time of said defendant, suspend
the execution of said sentence and place the defendant on probation for such period and upon such
terms and conditions as it may deem best. Probation may be granted whether the sentence imposes
a term of imprisonment or a fine only. An application for probation shall be filed with the trial court,
with notice to the appellate court if an appeal has been taken from the sentence of conviction. The
filing of the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal
of a pending appeal. (As amended by PD 1990).
II. CRITERIA FOR PLACING AN OFFENDER ON PROBATION (SECTION 8 OF PD NO. 968
Under Section 8 of PD No. 968, in determining whether an offender may be placed on probation, the
court shall consider all information relative, to the character, antecedents, environment, mental and
physical condition of the offender, and available institutional and community resources. Probation
shall be denied if the court finds that:
1. The offender is in need of correctional treatment that can be provided most effectively by his
commitment to an institution; or
2. There is undue risk that during the period of probation the offender will commit another
crime; or
3. Probation will depreciate the seriousness of the offense committed.
However, under Sec. 70 of Republic Act No. 9165, the Comprehensive Dangerous Drugs Act
of 2002, the first-time minor offender who upon promulgation of the sentence, the court may, in its
discretion, placed the accused under probation, even if the sentence provided under Sec. 11 of the
Act is higher than that provided under Probation Law.
SECTION 70 OF REPUBLIC ACT NO. 9165. Probation or Community Service for a FirstTime Minor
Offender in Lieu of Imprisonment. + Upon promulgation of the sentence, the court may, in its
discretion, place the accused under probation, even if the sentence provided under this Act is higher
than that provided under existing law on probation, or impose community service in lieu of
imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be
undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and
the Probation Administration. Upon compliance with the conditions of the probation, the Board shall
submit a written report to the court recommending termination of probation and a final discharge of
the probationer, whereupon the court shall issue such an order.
LESSON I. NATURE OF GRANTING
PROBATION
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Application for Probation can be denies on the ground that it will depreciate the seriousness
of the offense committed.
SEC. 5. Post Sentence Investigation.* No person shall be placed on probation except upon
prior investigation by the probation officer and a determination by the court that the ends of justice
and the best interest of the public as well as that of the defendant will be served thereby.
Sec. 8. Criteria for Placing an Offender on Probation.*In determining whether an offender
may be placed on probation, the court shall consider all information, relative to the character,
antecedents, environment, mental and physical condition of the offender and available institutional
and community resources. Probation shall be denied if the court finds that:
III.PROBATION IS NOT A MATTER OF RIGHT BUT A PRIVILEGE
The Supreme Court held that, probation is a mere privilege and its grant rests solely upon the
discretion of the court. This discretion is to be exercised primarily for the benefit of organized
society and only incidentally for the benefit of the accused.
Probation cannot be demanded as a matter of right. It is a privilege. Hence, only those
persons who are qualified may apply for probation. Its grant depends upon the discretion of the trial
court. No person shall be placed on probation except upon prior investigation by the probation
officer and a determination by the court that the ends of justice and the best interest of public as
well as that of the defendant will be serve thereby.
The grant of probation results in the release of the petitioner subject to the terms and
conditions imposed by the court and to the supervision of Probation Officer.
However, under R.A. 9344 or Juvenile Justice and Welfare Act of 2006, a Child in Conflict
with the Law (CICL) is granted the right to probation as an alternative to imprisonment if qualified
under the Probation Law
IV.BASIS OF GRANTING PROBATION
In DELA CRUZ VS. CALLEJO; the basis of granting probation is the sentence imposed by the
trial court. Convicted for highway robbery sentence to 11 years, 4 months and 1 day 12 years penalty
was reduced to 1 year, 8 months and 5 months and 1 day. He applied for probation on the basis of the
appellate court. Trial court denied. Supreme Court denial is proper to the provision of the law.
V. PROBATION IS NOT A SENTENCE
In Baclayon vs. Mutia, 129 SCRA 148 (April 30, 1984) it was held that an order placing defendant on
"PROBATION" IS NOT A "SENTENCE" but is rather in effect a suspension of the imposition of
sentence. It is not a final judgment but is rather an "interlocutory judgment" in the nature of a
conditional order placing the convicted defendant under the supervision of the court for his
reformation, to be followed by a final judgment of discharge, if the conditions of the probation are
complied with, or by a final judgment of sentence if the conditions are violated.
Probation is not a suspension of sentence. A suspension of sentence postpones execution of
sentence for a definite time, while probation suspends sentence during good behavior.
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VI.HOW MANY TIMES CAN ONE BE GRANTED PROBATION?
An offender can be granted probation ONLY ONCE IN HIS LIFETIME
VII. GRANTING OR DENYING PROBATION NOT BE APPEALABLE
Under PD No. 1990, an order granting or denying probation shall not be appealable.
VIII. PROBATION AND APPEAL IS MUTUALLY EXCLUSIVE REMEDIES
Later, the amendment of Section 4 of P.D. No. 968 by P.D. No. 1990 imposed a condition upon
the grant of probation, thus: "Provided, that no application for probation shall be entertained or
granted if the defendant has perfected an appeal from the judgment of conviction." The application
for probation was no longer allowed if the accused has perfected an appeal from the judgment of
conviction.
The reason for the disallowance of probation where an appeal has been made by the accused
is stated in the preamble of P.D. No. 1990, thus: "WHEREAS, it has been the sad experience that
persons who are convicted of offenses and who may be entitled to probation still appeal the
judgment of conviction even up to the Supreme Court, only to pursue their application for probation
when their appeal is eventually dismissed".
In view of this change, jurisprudence treated appeal and probation as MUTUALLY EXCLUSIVE
REMEDIES. Thus, where the penalty imposed by the trial court is not probationable, and the
appellate court modifies the penalty by reducing it to within the probationable limit, the same
prohibition should still apply and he is not entitled to avail of probation.
In Sable v. People, G.R. No. 177961, April 7, 2009, 584 SCRA 619, 625. the Supreme Court
stated that "[Section 4 of] the Probation Law was amended to put a stop to the practice of appealing
from judgments of conviction even if the sentence is probationable, for the purpose of securing an
acquittal and applying for the probation only if the accused fails in his bid." Thus, probation should be
availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated; who
manifest spontaneity, contrition and remorse.
The Supreme Court explained that the intention of the new law is to make appeal and
probation mutually exclusive remedies. Jurisprudence at that time stated that the Probation Law
requires that an accused must not have appealed his conviction before he can avail himself of
probation. This requirement "outlaws the element of speculation on the part of the accused- -to
wager on the result of his appeal--that when his conviction is finally affirmed on appeal, the
moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for
probation as an `escape hatch' thus rendering nugatory the appellate court's affirmance of his
conviction."
However, in the fairly recent case of Colinares vs. People, G.R. No. 182748, December 13,
2011, the Supreme Court took another look at the probation law, and allowed the grant of probation
to an accused who has appealed his conviction. In this case, the accused was originally sentenced
by the Regional Trial Court to imprisonment exceeding 6 years and one day, which disqualified from
applying for probation. Upon his appeal of the case to the Court of Appeals, the appellate court
lowered the penalty to less than 6 years and one day. The Supreme Court reasoned that since the
trial court imposed a (wrong) penalty beyond the probationable range, thus depriving the accused of
the option to apply for probation when he appealed, the element of speculation that the law sought
to curb was not present.
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CA2-LECTURE-MIDTERMNOTES FOR CRIMINOLOGY_104617.pdf
CA2-LECTURE-MIDTERMNOTES FOR CRIMINOLOGY_104617.pdf
CA2-LECTURE-MIDTERMNOTES FOR CRIMINOLOGY_104617.pdf
CA2-LECTURE-MIDTERMNOTES FOR CRIMINOLOGY_104617.pdf

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CA2-LECTURE-MIDTERMNOTES FOR CRIMINOLOGY_104617.pdf

  • 1. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 1 NON- INSTITUTIONAL CORRECTIONS The course will primarily focus on the different forms, types or kinds of Non-Institutional Correction/Community Based Corrections or Non-Confinement Corrections. It includes the different methods, forms, type or kinds of clemency. The processes of the grant, revocation, cancellation, or disqualification of the party concerned as provided in the law, rules, guidelines or manual. LEARNING OBJECTIVES:  identify the Advantages and Disadvantages of Non-Institutional Correction or Community Based Corrections;  trace the Historical accounts of Pardon, Amnesty, Parole, and Probation;  explain the Total and Partial Extinction of Criminal Liability, including  relevant provisions of the law on Allowance for Good Conduct, and Special Time Allowance for Loyalty for PDLs under PNP, NBI, BJMP, Provincial Jails, BUCOR and others;  discuss the Social and Political Justifications for early discharge or early release of PDLs;  compare the different Types of Clemency; and  demonstrate knowledge on the Processes, Petition or Application and the Grant of Pardon Absolute or Conditional, Parole, and Probation as provided in their respective Laws, IRR, Guidelines, Rules, and Manual of procedure
  • 2. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 2 COMMUNITY-BASED CORRECTION LESSON III. THE HISTORICAL DEVELOPMENT OF PROBATION IN THE PHILIPPINES LESSON II. THE NATURE OF PROBATION IN THE PHILIPPINES LESSON 1. INTRODUCTION TO COMMUNITYBASED CORRECTION
  • 3. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 3 THE PRESENT PHILIPPINE CORRECTIONAL SET-UP A. WHAT IS CORRECTION? Correction is the branch of the administration of CJS charged with the responsibility for the custody, supervision and rehabilitation of convicted offenders. It is also defined as the STUDY OF JAIL OR PRISON MANAGEMENT AND ADMINISTRATION as well as the rehabilitation and reformation of criminals. Further, it is defined as a GENERIC TERM that includes all government agencies, facilities, programs, procedures, personnel, and techniques concerned with the investigation, intake, custody, confinement, supervision, or treatment of alleged offenders. B. DUAL PURPOSE OF CORRECTIONS 1. To punish and 2. To rehabilitate the offender. C. THE CORRECTIONS AS A COMPONENT OF CRIMINAL JUSTICE SYSTEM Correction is the fourth pillar of the PCJS, and identified as the weakest pillar. As a field of criminal justice administration, it utilizes the body of knowledge and practices of the government and the society in general involving the process of handling individuals who have been convicted of offenses for purposes of crime prevention and control. Among the five pillars of the criminal justice system, corrections is the least heard, known or understood society seems to have some reluctance to look at it although its role in the reformation and rehabilitation of offenders cannot be overemphasized. Furthermore, jail administration and control in our country is distributed to at least, four agencies: The BUREAU OF CONNECTIONS (BUCOR), under the DOJ; which has supervision over the national penitentiary and its penal farms;
  • 4. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 4 The BUREAU OF JAIL MANAGEMENT AND PENOLOGY (BJMP), under the DILG; which has the exclusive control over all city, municipal and district Jails nationwide; The PROVINCIAL GOVERNMENTS, under DILG; which supervise and control their respective provincial and sub-provincial Jails; and the DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT (DSWD), which takes care of, among others, youthful offenders entered in detention centers for juveniles. Other agencies under this pillar are the: (Community Based Correction) 1. The Parole and Probation Administration (PPA) under the Department of Justice (DOJ); and 2. The Board of Pardons and Parole also under the Department of Justice. Generally, corrections, as a component of the system are responsible for: 1. The MAINTENANCE of institution such as prisons, jails, halfway houses, and others. 2. The PROTECTION of law-abiding members of society by keeping convicted offenders from preying on society. 3. The REFORMATION and rehabilitation of offenders in preparation for their eventual reintegration to the mainstream of society and helping them lead a normal life after release. 4. The DETERRENCE of crimes, experience in prison and the fear of isolation and denial of liberty will influence inmates and potential offenders to lead a life not in conflict or afoul with the law. A. DECONGESTION OF JAILS There are several laws, decrees and circulars which we implement to decongest our jails. But before we discuss these, allow me to show you how congested our jails are as far as the national capital region is concerned. Jail congestion is not a recent phenomenon, nor is it confined in the Philippines alone. Jail congestion is WORLDWIDE. Some industrialized countries like the United States, experience it, let me cite a few examples: Rikkers Island in New York is actually an island prison facility. It is overcrowded. To cushion the effect of congestion, two floating dormitories were constructed to confine offenders therein; in 1995 or four years ago. Director General Keith Hamburger of the Queensland services commission of Australia reported that congestion is also a problem in his country. In January of 1994, in Manila, Ronald W. Nikkel, president of prison fellowship international who had toured some of the jails in the National Capital Region (NCR) and the New Biliid Prisons of the Bureau of corrections in Municipal City observed and commented that in the 41 countries of the
  • 5. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 5 world he had traveled, most have a problem on congestion. He added that this problem is PREVALENT IN THIRD WORLD COUNTRIES. In our country, jail congestion, particularly in big cities and municipalities, has been a PERENNIAL PROBLEM ever since. This problem, to borrow a parallelism, is a sleeping giant. Unfortunately, for jail administrators and personnel, the giant has taken up and is stretching its enormous arms and legs. OPLAN DECONGESTION must be put in place to lay this giant back to sleep. OPLAN DECONGESTION was formalized through the execution of a memorandum of agreement on February 12, 1993. Among the public attorney’s office, the parole and probation administration, the Board of Pardons and Parole which are all under the Department of Justice, and the Bureau of Jail Management and Penology which is under the Department of the Interior and local government. The avowed PURPOSE of said agreement (MOA) was jail decongestion through collective and cooperative efforts. Realizing that all helps available must be harnessed to effectively combat overcrowding or congestion in jails, the said memorandum of agreement was EXPANDED on August 17, 1993 with the inclusion of the National Prosecution service or (NAPROS) as the fifth party thereto. True to its form, the MOA spreads up its intent through seminars. These offered opportunities to officials and personnel of the tasked agencies to familiarize themselves with the mechanics of the agreement, as well as to offer avenue to discuss various aspects of how jails are to be decongested. B. LAW AND DECREES USUALLY AVAILED OF TO DECONGEST JAILS 1. Presidential Decree No. 603, known as the child and young welfare code, suspends sentence of minor offenders whose ages range from nine (9) years to under eighteen (18) years and place them in rehabilitation centers under the supervision of the Department of Social Welfare and Development before they are released to the custody of their parents or to any responsible person. 2. Batas Pambansa Bilang 85, authorizes the release of a detainee who has undergone preventive imprisonment equivalent to the maximum imposable sentence for the offense he is charged with 3. Article 96 of the Revised Penal Code, provides that in meritorious cases, the commutation of the prisoner’s sentence through presidential action shall be upon the recommendation of the court which imposed the same; and ARTICLE 97, which provides that a prisoner shall be entitled to a deduction from his prison term for good conduct; and 4. DOJ Memorandum Circular no. 6 which directs all wardens or anyone in-charge of local jails to effect the immediate transfer of national prisoners to the Bureau of corrections. 5. Republic Act No. 9165- Comprehensive Dangerous Drug Act of 2002 (July 4, 2002) - 1st time minor offender (probation) for use 2 possession only./deport
  • 6. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 6 6. Republic Act No. 9344 + Juvenile & Justice welfare Act of 2006 (May) 7. Republic Act No. 6036, known as the release on recognizance law, provides for the release of offenders charged with an offense whose penalty is not more than six (6) months and/or a fine of Two Thousand pesos (2,000) or both, to the custody of a responsible person in the community, instead of a bail bond. 8. Republic Act No. 6127, fully deducts the period of the offenders’ preventive detention from the sentence imposed by the courts; 9. Republic Act No. 4103, as amended, creating the Board of Pardons and Parole tasked to look into the physical, mental and moral record of prisoners to determine who shall be eligible for parole or conditional pardon 10. Presidential Decree No. 968 July 24, 1976 is the Philippine Probation Law of 1976. Probation is, of course, a very important legal instrument that contributes to the decongestion of Philippine jails. C. APPROACHES OF PHILIPPINE CORRECTIONAL SYSTEM The Philippine Correctional System has two approaches, and these are, the Community based and institution-based systems. 1. The Institution-Based Approach-The rehabilitation of offenders in jail or prison The institution-based approaches has three levels and are manned by three different government agencies responsible for the supervision and control of the numerous institutional facilities nationwide which provide safekeeping and rehabilitation of inmates, namely; 1. The national prison’s and penal farms under the Department of justice; 2. The provincial and sub-provincial jails under the provincial government; and 3. The City, Municipal and District Jails under the Department of Interior and Local Government. The Bureau of corrections, headed by a non-uniformed director, under the department of Justice, supervises and controls the national prisons and penal farms. 2. Non-Institutional Correction or Community-Based Approach- It refers to correctional activities that may take place within the community or the method of correcting sentenced offenders without having to go to prison. Not all convicted offenders have to serve their sentence behind bars. Some of them are allowed to stay in the community, subject to the conditions imposed by the court They are either granted probation, parole, conditional pardon or recognizance. The parole and probation Administration under the Department of Justice is the government agency that supervises the activities of the probationer, parolee and pardonee and monitors his compliance with conditions imposed. What is a Community correction? It is a sanction in which offenders serve some or all their sentence in the community. It is sometimes referred to as non-institutional corrections. The subfield of corrections in which offenders are supervised and provided services outside jail or prison.
  • 7. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 7 DISTINCTION BETWEEN INSTITUTIONAL AND NON-INSTITUTIONAL CORRECTION Institutional Non-Institutional That aspect of the correctional enterprise that involves the incarceration and rehabilitation of adults and juveniles convicted of offenses against the law, and the confinement of persons suspected of a crime awaiting trial and adjudication That aspect of the correctional enterprise that includes pardon, probation, and parole activities, correctional administration not directly connectable to institutions, and miscellaneous (activity) not directly related to institutional care. I. COMMUNITY-BASED CORRECTION PROGRAMS IN THE PHILIPPINES The Community-Based Treatment Programs are those programs that are intended to treat criminal offenders within the free community as alternatives to confinement. It includes all correctional activities directly addressed to the offender and aimed at helping him to become a law-abiding citizen. Community-based correction programs began in the 1970s, 1980s, and 1990s. The programs offer an alternative to incarceration within the prison system. Many criminologists believed a significant number of offenders did not need incarceration in high security prison cells. Some inmates, who might otherwise have been ready to turn away from a life of crime, instead became like the hardened criminals they associated with in prison. In response, states, counties, and cities established local correctional facilities and programs that became known as community-based corrections. These facilities, located in neighborhoods, allowed offenders normal family relationships and friendships as well as rehabilitation services such as counseling, instruction in basic living skills, how to apply for jobs, and work training and placement.  ADVANTAGES OF COMMUNITY-BASED CORRECTION 1. Family members need not be victims also for the imprisonment of a member because the convict can still continue to support his family. 2. Rehabilitation will be more effective as the convict will not be exposed to hardened criminals in prisons who will only influence him to a life of crime. 3. Rehabilitation can be monitored by the community thus corrections can be made and be more effective. 4. It is less costly on the part of the government. Cost of incarcerations will be eliminated which is extremely beneficial on the part of the government. II. THE ROLE OF COMMUNITY CORRECTIONS IN THE CRIMINAL JUSTICE SYSTEM Community sentence seeks to repair the harm the offender has caused the victim or the Community, provide for public safety and rehabilitate and promote effective reintegration. A community correction has traditionally emphasized REHABILITATION as its goal. The staff of community correctional programs has two potentially competing roles that reflect different goals: a. Seeing that offenders comply with the orders of community sentences. b. Helping offenders identify and address their problems and needs.
  • 8. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 8 III. BASIC PRINCIPLES UNDERLYING THE PHILOSOPHY OF COMMUNITYBASED TREATMENT PROGRAMS The following are the basic principles underlying the philosophy of community-based treatment programs: 1. Humanitarian Aspect - Imprisonment is not always advisable. Placing a person to custodial coercion is to place him in physical jeopardy, thus drastically narrowing his access to sources of personal satisfaction and reducing his self-esteem. 2. Restorative Aspect - There are measures expected to be achieved by the offender, such as an establishment of a position in the community in which he does not violate the laws. These measures may be directed at changing and controlling the offender. The failure of the offender to achieve these can result to recidivism. 3. Managerial Aspect - Managerial skills are special importance because of the sharp contrast between the per capital cost of custody and any kind of community program. It is easier to manage those undergoing community-based treatment programs than that of custodial control. IV. SUBJECT COVERAGE 1. Probation - One of the most common forms of community correction is probation. Probation can be thought of as a type of post-trial diversion from incarceration. A term coined by John Augustus, from the Latin verb “probare”- to prove, to test. It is a disposition under which a defendant after conviction of an offense, the penalty of which does not exceed 6 years of imprisonment, is released subject to the conditions imposed by the releasing court and under the supervision of a probation officer Furthermore, it is define as a sentence in which the offender, rather than being incarcerated, is retained in the community under the supervision of a probation agency and required to abide by certain rules and conditions to avoid incarceration. 2. Diversion + For juvenile offender or CICL 3. Restitution - In recent years it has become increasingly common for jurisdictions to include restitution orders as part of probation. Money paid or services provided to victims, their survivors, or to the community by a convicted offender to make up for the injury inflicted. 4. Halfway houses - Community-based residential facilities that are less secure and restrictive than prison or jail but provide a more controlled environment than other community correctional programs. Goal of Halfway House: The goal of halfway houses is to provide offenders with a temporary period of highly structured and supportive living so that they will be better prepared to function independently in the community upon discharge.
  • 9. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 9 What is home Confinement? It is a program that requires offenders to remain in their homes except for approved periods of absence; commonly used in combination with electronic monitoring. Home confinement is also known as home incarceration, home detention, and house arrest. OTHER ASPECTS OF CORRECTIONS 1. Parole - It is the process of suspending the sentence of a convict after having serve the minimum of his sentence without granting him pardon, and the prescribing term upon which the sentence shall be suspended. 2. Executive Clemency- It shall refer to Absolute Pardon, Conditional Pardon with or without Parole conditions and Commutation of Sentence as may be granted by the President of the Philippines upon the recommendation of the Board of Pardon and Parole. a. Pardon-It is a form of executive clemency granted by the President of the Philippines as a privilege to a convict as a discretionary act of grace. It is an act of grace is extended to prisoners as a matter of right, vested to the Chief Executive (The President) as a matter of power. Neither the legislative nor the judiciary branch of the government has the power to set conditions or establish procedures for the exercise of this Presidential prerogative. The following are the two types of pardon: 1. Absolute Pardon-It refers to the total extinction of the criminal liability of the individual to whom it is granted without any condition whatsoever and restores to the individual his civil rights and remits the penalty imposed for the particular offense of which he was convicted. Purpose: a. To right a wrong b. To normalize a tumultuous political situation Absolute Pardon is also granted by a President to an imprisoned president the incumbent has deposed. Absolute Pardon is granted in order to restore full political and civil rights to convicted persons who have already served their sentenced and have reached the prescribed period for the grant of Absolute Pardon 2. Conditional Pardon-It refers to the exemption of an individual, within certain limits or conditions; from the punishment that the law inflicts for the offense he has committed resulting in the partial extinction of his criminal liability. It is also granted by the President of the Philippines to release an inmate who has been reformed but is not eligible to be released on parole. b. Amnesty - A general pardon extended to a group of persons, such a political offenders purposely to bring about the return of dissidents to their home and to restore peace and order in the community. c. Commutation of Sentence - An act of the president changing/ reducing a heavier sentence to a lighter one or a longer term into a shorter term. It may alter death sentence to life sentence or life sentence to a term of years. It does not forgive the offender but merely to reduce the penalty pronounce by the court. d. Reprieve - A temporary stay of the execution of sentence especially the execution of the death sentence. Generally, Reprieve is extended to prisoners sentenced to death. The date of execution of sentenced is set back several days to enable the Chief to study the petition of the condemned man for commutation of sentenced or pardon.
  • 10. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 10 Most correctional authorities believed that probation is one of the most effective and economical tools which society now has available for the care, treatment and rehabilitation of certain adult and juvenile offenders against the law. Probation is a procedure wherein a sentence of offender is temporarily suspended and he is permitted to remain in the community, subject to the control of the court and under the supervision and guidance of a probation officer. It is a privilege granted by the court to a person convicted of a crime or criminal offense to remain with the community instead of actually going to prison. Presidential Decree No. 968 otherwise known as the Probation Law of 1976 recognizes such trend. However, the Decree separates adult probation from juvenile probation for it expressly excludes those entitled to the benefits under the provisions of Presidential Decree No. 603, known as the Child and Youth Welfare Code, and similar laws. Statements of the principles, goals and objectives of the Probation Law are found in its Preamble. The Preamble indicates six essential goals, to wit: 1. An enlightened and humane correctional system; 2. The reformation of offenders; 3. The reduction of the incidence of recidivism; 4. To extend to offenders individualized and community-based treatment programs instead of inprisonment; 5. It is limited only to offenders who are likely to respond to probation favorably; and 6. It is economical or less costly than confinement to prisons and other institutions with rehabilitation programs. To provide a less costly alternative to the imprisonment of firsttime offenders, then President Ferdinand E. Marcos issued on July 24, 1976 Presidential Decree No. 968 known as the Probation Law of 1976. Under PD 968, the court may, after it shall have convicted and sentenced an accused and upon application of said accused, suspend the execution of said sentence and place the accused on probation for such period and upon such terms and conditions as it may deem best. First-time offenders were given a second chance to maintain their place in society through a process of reformation, which is better achieved when he is not mixed with hardened criminals within prison walls. PROBATION DEFINE  The word probation is from the Latin word “probatio” which means testing. the word probation is also said to be originated from the Latin verb “probare” which means to prove.  In criminal law it is a period of supervision over an offender, ordered by a court instead of serving time in prison.
  • 11. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 11  In the case of Frad v. Kelly, "Probation is a system of tutelage under the supervision and control of the court which has jurisdiction over the convicted defendant, has the record of his conviction and sentence, the records and reports as to his compliance with the conditions of his probation, and the aid of the local probation officer, under whose supervision the defendant is placed." It consists of the conditional suspension of punishment while the offender is placed under personal supervision and is given individual guidance or treatment.  The Philippine Probation Law of 1976, as enacted by Presidential Decree No. 968, defines probation as, "a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer." This decree will take effect on January 2, 1978. TERMS TO PONDER As used in Section 3 of PD 968 and Section 4 of Parole and probation administration omnibus rules on probation methods and procedure. The following shall, unless the context otherwise requires, be construed thus: Amicus Curiae + Means friend of the court Absconding Petitioner- a convicted accused whose application for probation has been given due course by the court but fails to report to the parole and probation office or cannot be located within a reasonable period of time. Absconding Probationer- an accused whose probation was granted but failed to report for supervision within the period ordered by the court or a probationer who fails to continue reporting for supervision and/or whose whereabouts are unknown for a reasonable period of time. Defense Counsel/Counsel- lawyer of the petitioner Petition- application for probation Petitioner - a convicted defendant who files an application for probation. Probationer - means a person placed on probation Probation- is a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer Probation Investigation - The process of selection, diagnoses and planning with the client. Probation Supervision- The continuous process of helping the client to follow through with the plans, reevaluation and working with the client in the process of planning his life to meet dynamic situation. Probation Officer - public officer like the Chief Probation and Parole Officer (CPPO), Supervising Probation and Parole Officer (SPPO), Senior Probation and Parole Officer (SrPPO), Parole and Probation Officer II (PPOII), or Parole and Probation Officer I (PPOI), who investigates for the Trial Court a referral for probation or supervises a probationer or does both functions and performs other necessary and related duties and functions as directed. Probation Office - refers either to the Provincial or City Probation Office directed to conduct investigation or supervision referrals as the case may be; Probation Order - order of the trial court granting probation Prosecutor- lawyer of the victim
  • 12. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 12 Trial Court - refers to the Regional Trial Court (RTC) of the Province or City/Municipal Court which has jurisdiction over the case. Volunteerism - is a strategy by which the parole and probation administration may be able to generate maximum citizen participation or community involvement in the overall process of client rehabilitation. I.CONCEPT AND PHILOSOPHY OF PROBATION A. CONCEPT OF PROBATION P.D 968 as amended, otherwise known as the probation law of 1976 defines probation. The court convicts and sentences the defendant but the execution of the sentence, whether it imposes a fine only or a term of imprisonment is suspended and the defendant is released on probation. Probation implies that during the period of time fixed by the court, the defendant is provided with individualized community based treatment including conditions he is required by the court to fulfill his correction and rehabilitation which might be less probable if he were to serve a prison sentence, and for this purpose, he is placed under the actual supervision and visitation of a probation officer. If the defendant violates any of the conditions of his probation, the court may revoked his probation and order him to serve the sentence originally imposed. On the other hand, if he fulfills with the terms and conditions of his probation, he shall be discharge by the court after the period of probation, where upon the case against him shall be deemed terminated. His final discharged shall operate to restore to him all civil rights lost or suspended as result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. However, he shall continue to be obliged to satisfy liability resulting from the crime committed by him. The basic legal conceptions of probation in the Decree are twofold: First, it as a conditional suspension of the execution of sentence - It denotes that the court assumes a primary role because a grant of probation is judicially dispensed and controlled. Second it is a personal care or treatment and supervision over the probationer - It indicates the administrative aspect of probation through the supervision of a probation officer and from the point of view of social workers, a social casework treatment. PROBATION IS A COURT FUNCTION In the Probation Law, the court assumes a dual role. First, when it acts in accordance with the jurisdiction it acquires over the accused and proceeds to determine his guilt. Assuming an affirmative finding of the offender's guilt beyond reasonable doubt, the court would convict and sentence said offender. Second, when the court determines whether or not to grant probation upon application of the offender. Sections 3(a) and 4 of the Decree clearly shows this dichotomy. The Decree defines probation in Section 3 as "a disposition under which the defendant, after conviction and sentence, is released subject to the conditions imposed by the court and to the supervision of a probation officer. It is evident from this provision that an offender will be released on probation only after conviction and sentence. Furthermore, Section 4 underlines the necessity of filing an application with the trial court before the suspension of the execution of the court's judgment. The petition for probation may be filed by a petitioner directly with the trial court which exercises jurisdiction over his case. If the court finds that the petition is in due form and that the
  • 13. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 13 petitioner is not disqualified from the grant of probation it shall refer the same to the Provincial or City Probation Officer within its jurisdiction as the case may be. The court shall order the Provincial or City Probation Office to conduct a post-sentence investigation of the petitioner. Only upon the filing of an application for probation after conviction and sentence and a determination that the offender does not fall under any of the disqualifications set forth in the Decree may the court suspend the execution of sentence. The Post-Sentence Investigation is an indispensable requisite to a grant of probation. The Probation Law provides: "No person shall be placed on probation except upon prior investigation by the probation officer and a determination by the court that the ends of justice and the best interest of the public as well as that of the defendant will be served thereby." The scope of the investigation must be consistent with the purposes of probation. In general, it is a fact finding inquiry into all information relative to the character, antecedents, environment, mental and physical condition of the offender, and available institutional and community resources. Upon the termination of the Post-Sentence Investigation, the probation officer shall submit to the court the investigation report on a defendant not later than sixty days from receipt of the order of said court to conduct the investigation. The purpose of the report is to assist the court in determining whether or not the ends of justice and the best interest of the public as well as that of the defendant will be served thereby. The recommendation contained in the report is merely persuasive and is in no way binding upon the court. Considering the foregoing and compliance therewith, the court will promulgate a probation order. Probation is a privilege and, as such, its grant rests solely upon the discretion of the court. The grant of probation results in the release of the petitioner subject to the terms and conditions imposed by the court, and to the supervision of the Probation Office.33 As to the conditions to be imposed by the court, they are enumerated in Section 10 of the Presidential Decree No. 968. The jurisdiction and control of the court which arises from an imposed sentence, remains with the court even after a grant of probation. This is evident in Sections 32 and 40 of the Rules On Probation Methods and Procedures. Section 32 provides: "During the period of probation the court, motu proprio, or on motion of the probation officer or of the probationer, may revise or modify the conditions or terms of the probation order." In case of violation of the terms and conditions imposed by the court, Section 40 provides "if the violation is established, the court may revoke or continue his probation and modify the conditions thereof. If revoked, the court shall order the probationer to serve the sentence originally imposed and shall commit the probationer." This power of the court underlines the non-punitive and non-repressive aspect of probation. Such constitutes a sufficient threat to the probationer to fulfill all terms and conditions imposed by the court. PROBATION IS AN ADMINISTRATIVE PROCESS Once the court has granted probation to an offender and has duly imposed the terms and conditions of the probation, the probation officer has the bounden duty to see to it that the probationer observes all terms and conditions imposed by the court. Probation supervision is then a primarily an administrative process.
  • 14. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 14 The primary purposes of probation supervision are: a) To carry out the conditions set forth in the probation order; b) To ascertain whether the probationer is following said conditions; and c) To bring about the rehabilitation of the probationer and his reintegration into the community To carry out these purposes the Probation Law upon its approval carried with it the establishment of a Probation Administration an agency under the Department of Justice, which shall exercise general supervision over all probationers. The Administration shall have regional offices organized in accordance with the field service area pattern established under the Integrated Reorganization Plan. There shall be at least one probation officer in each province and city who shall be appointed by the Secretary of Justice upon recommendation of the Administrator and in accordance with civil service law and rules. At this juncture, it is to be emphasized that in spite of the fact that the Probation Administration is an executive agency, control of the courts over the probationer is not lost. The basis for such is the first paragraph of Section 13 of the Decree which provides that "the probationer and his probation program shall be under the control of the court who placed him on probation subject to actual supervision and visitation by a probation officer." A. PHILOSOPHY OF PROBATION The Probation adheres to the following philosophy: 1. There is no single cause for delinquent behavior. Human beings are extremely complicated. It is not possible to trace complex pattern of Human behavior to any single cause; 2. Delinquent and criminal acts are symptoms. The offender against our law is exhibiting a symptom of social or psychological disturbance, just as a headache is a symptom of a physical disturbance. This means that the juvenile delinquent or adult offender is in need of treatment. The job of Probation Administration is to find out what the problems are beneath the symptom and to recommend appropriate treatment plans; 3. That the individual has the ability to change and modify his anti-social behavior with the right kind of help; 4. The central goal of probation Administration is to enhance the safety of the community by reducing the incidence of Criminal acts by person previously convicted. The goal is to achieve through counseling, guidance, assistance, surveillance and restraint of the offender to enable their reintegration into society as law abiding and productive members; 5. The basic idea underlying a sentence to probation is very simple. Sentencing is in large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended; 6. This is of course not to say that probation should be used in all cases, or it will always produce better results. There are many goals of sentencing some of which in given case may require the imposition of a sentence to imprisonment even in the face of a conclusion that the probation is more likely to assure that the public that the particular defendant will not offend again. 7. By the same token however, it can be said that probation is a good bit more than the “matter of grace” or “leniency” which characterizes the philosophy of the general public and of many Judges and legislators on the subjects. Probation is an affirmative correction too, a tool
  • 15. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 15 which is used not because is maximum benefits to the defendant, but society which is sought to be served by the sentencing criminals; 8. An adequate correctional system will place great reliance on appropriately funded and manned probation services. Within such context probation services. Within such context probation can lead to significant improvement in the preventive effects of the criminal law, at much less of a financial burden than the more typical prison sentence; 9. Imprisonment as a sole cure for prevalence of Crime is no Longer recognized. Prisons are in themselves often productive of crime and Destructive of the keepers as well as kept. 10. It is generally concealed that probation a matter of privilege to be granted refused at discretion of the State. The applicant has already been convicted and sentenced by the court and it is only the mercy of that he may be given probation; 11. No violation of probation conditions should result in automatic revocation; 12. No physical would undertake to prescribe treatment for sick man unless he has repot of his ailment and condition (diagnosis), a judge should not pass judgment on a man without post- sentence investigation report. II. ELEMENTS AND CHARACTERISTICS OF PROBATION A. ELEMENTS OF PROBATION a. FOUR (4) ESSENTIAL ELEMENTS OF PROBATION 1. A post sentence investigation report which will serve as the informational for the court’s decision to grant or deny probation 2. The conditional suspension of execution of sentence by the court 3. Condition of probation imposed by the court to protect public safety and to faster the rehabilitation and reformation of the probationer. 4. Supervision, guidance and assistance of the offender by a probation officer. b. ESSENTIAL ELEMENTS OF THE PROBATION SYSTEM UNDER PRESIDENTIAL DECREE NO. 968 The following are the essential elements of the probation system under Presidential Decree No. 968: 1. Probation is a single or one-time" affair. 2. Probation system is highly selective. 3. Persons under probation retain their civil rights, like the right to vote, or practice one's profession, or exercise parental or marital authority B. CHARACTERISTICS OF PROBATION 1. More enlightened and humane correctional treatment 2. It aims to promote the reformation of the offenders. 3. It reduces the incidence of recidivism. 4. It extends to offenders individualized and community based treatment programs instead of imprisoning them. 5. It is limited to offenders who are likely to respond favorably there to. 6. It is less costly than the confinement of all offenders in prisons.
  • 16. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 16 III.OBJECTIVES AND PURPOSE OF PROBATION A. OBJECTIVES OF PROBATION The following are the fundamental objectives of a Probation Agency 1. Assist the court in matters pertaining to sentencing 2. Promote community protection by supervising and monitoring the activities of persons on probation 3. Promote the betterment of offenders by ensuring that they receive appropriate rehabilitation services B. THE PURPOSE OF THE PROBATION LAW The purpose of the Probation Law as stated in Section 2 thereof reiterates the abovementioned characteristics and vests in them the mandate of law. It provides that the purpose of the Decree is to: 1. Promote the correction and rehabilitation of an offender by providing him with individualized treatment; 2. provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and 3. Prevent the commission of offenses. IV.ADVANTAGES, BENEFITS AND SAVINGS OF PROBATION A. ADVANTAGES OF PROBATION The implementation of the Probation Law will confer benefits and advantages not only to society in general but more soon the part of the offender and the government. Specifically, the following are the advantage of probation: 1. Probation prevents crime by offering freedom and aid only to those who are not likely to assault society again. 2. It protects the society by placing under close supervision non-dangerous offenders while undergoing treatment and rehabilitation in the community. 3. It conform the modern humanistic trends in Penology. 4. It prevents youthful of first time offenders from turning into hardened criminals. 5. It is a measure of cutting enormous expends in maintaining jails. 6. It reduces recidivism and overcrowding of jails and prisons. 7. It reduces the burden of police forces and institution in feeding and guarding detainees. 8. It gives the first and light offenders a second chance in life. 9. It makes the offender productive or taxpayers instead of tax eaters. 10. It restores to successful probationers his civil rights which was previously lost or suspended as a result of conviction. 11. It has been proven effective in developing countries that have adopted it. 12. . It is advocated by the United Nations in its various congresses in crime prevention and treatment of offenders. B. BENEFITS OF PROBATION Probation has the following benefits: 1. It protects society a. from the excessive cost of detention b. from the high rate of recidivism of detained offender
  • 17. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 17 2. It protects the victim a. it provides restitution b. it preserves justice 3. It protects the family a. it does not deprive the wife and children of husband and father b. it maintains the unity of a home 4. It assists the government a. it reduces the population of prisons and jail b. it lessens the clogging of courts c. it lightens the load of prosecutors 5. It helps the offender a. it maintains his earning power b. it provides rehabilitation in the community c. it restores his dignity 6. It justifies the philosophy of men a. that life is sacred b. that all men deserve a second chance c. that and individual can change d. that society has the moral obligation to lift the fallen C. SAVINGS OF PROBATION The following are the savings of probation: 1. Probation is one tenth the cost of detention. As illustrated, the per capita cost of maintaining one offender in the Philippines is estimated at Php 11,000.00 annually, while it costs only Php 300.00 to maintain one offender on probation. 2. This means savings of Php 30,000.00 when 10,000 of 40,000 offenders are on probation annually. It is expected that at least one third of the prisons and jail population in the country would benefit from probation. 3. The average per capita income of a Filipino in 2003 according to the National Statistics and Coordination Board (NSCB) was Php 30,703.00. It means that when 10,000 probationers are making a living they will produce Php 307,030,000.00 in goods and service annually. A part of this goes to the government in forms of taxes. Indeed, detention makes tax eaters while probation makes TAX PAYERS. 4. The cost of constructing and preparing prisons and jails is enormous which would run to at least Php10,000,000 annually in order to accommodate 40,000 offenders. 5. The probation system saves the government a total of Php 4.678 Billion in terms of prisoners maintenance in jails and prisons all over the country. 6. Philippine Probation System adheres to the concept of Restorative Justice. Thus, a total of Php 137.923 Million has been paid to clients’ victims and/or their heirs 7. The biggest savings of probation aside from money are, however, in the forms of human resources, dignity, time and opportunity for development, which are most needed by our society.
  • 18. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 18 VI.PROBLEM AREAS OF THE PROBATION LAW 1. Presidential Decree No. 968 will cover civilians tried and convicted by military tribunals. Section 1 provides: "it shall apply to all offenders except those entitled to the benefits under the provisions of Presidential Decree No. 603 and similar laws." Section 9 on disqualified offenders does not include those convicted by military tribunals. What are the "similar laws" referred to in Section 1? Two can readily be mentionedThe Dangerous Drugs Act of 1972 and the Articles of War. 2. The cut-off point at six years imprisonment for extending the benefits of probation refers to the sentence actually imposed, not that prescribed by law for the offense committed. 3. The probation law does not disqualify one who has been convicted of an offense penalized by DESTIERRO, such as that of killing or inflicting serious physical injuries under the exceptional circumstances in Article 247 of the Revised Penal Code or concubinage insofar as the concubine is concerned in Article 334, of the same. Unlike Section 9(a), Section 9(c) has reference to the penalty imposed by law. Under Section 9(d), one who has been on probation only under the Juvenile Delinquency Act of 1924, Article 80 of the Revised Penal Code, or the Child and Youth Welfare Code will not be disqualified. Under disqualification (e), those who will serve sentence after the substantive provisions of the Decree shall become operative will be permitted to do so, according to one view. The reason given is that otherwise it would have been unnecessary for the law to specify the time at which the offender concerned should be serving his sentence. Another view, however, points to the principle of separation of powers. 4. Probation, it is argued, as laid out by the Decree is primarily a judicial function, while the service or execution of sentence is an executive one. When the convict is delivered to the hands of the prison authorities, to subsequently allow the judiciary to reach him by suspending the further service of his sentence and placing him on probation would constitute an intrusion into the prerogatives of the executive to whom belongs the exclusive power to grant reprieves, commutations and pardons and remit fines and forfeitures. Therefore, according to this view, offenders who are already serving sentence, no matter when they start or may be found to be serving sentence, are NOT qualified for the benefits of the Decree. 5. It cannot be made at any time after conviction and sentence, but rather extends only up to the actual commitment of the defendant to prison for the service of his sentence, and not thereafter. The defendant may apply for probation in case of appeal from a judgment of conviction. He may apply for probation as long as he has not begun serving his sentence, and
  • 19. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 19 obviously this does not happen if the sentence has not become final and executory, such as during the pendency of an appeal. 6. The rule of automatic withdrawal of pending appeal applies in case the application for probation is made when the appellate court has already rendered its decision, there being no indication in the probation law to the contrary, and the operation of such rule being in accordance with the maxim that laws should be liberally construed in favor of the accused. 7. The application for probation may be in any form, whether written or oral. While Section 4 of the Decree states that the application shall be filed with the court, this does not necessarily mean that it should be in writing, even if a written form would definitely be more convenient to the court. A liberal construction of the law beneficial to the accused would not consider the use of the term 'filed' by the law, as impliedly requiring a written form. 8. Defendant is not entitled as a matter of right to the assistance of counsel in the investigation. The probation law does not have a provision guaranteeing the right to counsel in such investigation. The constitutional guarantee that in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel and that any person under investigation for the commission of an offense shall have the right to counsel would not seem to apply because the investigation by the probation officer is neither prosecutory nor accusatory in character. It is merely a fact-finding inquiry. 9. Neither is the constitutional guarantee against self-incrimination that no person shall be compelled to be a witness against himself, available in the investigation. The said guarantee does not depend upon the nature of the proceedings in which it is invoked, of course, and it may be availed of as long as the questions objected to would incriminate the person who 'is asked to answer the same. But it is an established doctrine that where the answer to a question, however self-incriminating, may not be used as evidence of criminal liability of the respondent because there is a law prohibiting its use for that purpose, then the privilege against self-incrimination may not be validly invoked to justify refusal to answer the question. Section 17 of the Probation Law provides that the investigation report and the supervision history of the probationer obtained under this decree shall be privileged, i.e., it may not legally be used as· evidence of liability. We raise one question, though. The same Section 17 itself provides that "the investigation report and the supervision history x x x shall be privileged and shall not be disclosed directly or indirectly to anyone other than the Probation Administration or the court concerned x x x." If the defendant cannot invoke the privilege against self-incrimination during the investigation, would not the incriminating answers given prejudice the court in deciding whether it will grant probation or not? 10. Pending submission of the investigation report and the resolution of the petition for probation, the defendant may be allowed on temporary liberty under his bail filed in the criminal case, or on recognizance.
  • 20. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 20 11. While the grant or denial of probation is not appealable, certiorari will lie, under the general law on certiorari. This is not appeal for he does not question the findings of fact of the trial court but only the reasonableness of the order based thereon and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper, court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceeding as the law requires of such tribunal, board or officer. The petition shall be accompanied by a certified true copy of the judgment or order subject thereof, together with copies of all pleadings and documents relevant and pertinent thereto. 12. The grant of probation does not erase, modify of otherwise affect the offender's CIVIL LIABILITY. Probation is a substitute for imprisonment and other criminal penalties, not a mode of discharging the civil liability, which is owed not to the State but to the offended party. The sentence, which is suspended from execution, means only the imposition of the criminal penalties, not the civil liability. If it were otherwise, the offended party would have to file a separate civil action thereby creating multiplicity of suits, contrary to public policy. In fact, civil indemnification might be imposed as a condition for probation under Section 10 (k) of the Probation Law. Indeed, under Article 112 in relation to Article 113, of the Revised Penal Code, except in case of extinction of his civil liability in accordance with the provisions of the civil law, the offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by him, even if he has served his sentence consisting of deprivation of liberty or other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of service, or any other reason. VII. PROBATION UNDER PD NO. 603 AS AMENDED BY REPUBLIC ACT NO. 9344 The Presidential Decree (PD) 603 is known as the Child and Youth Welfare Code. The Decree was signed by his Excellency President Ferdinand Marcos on December 10, 1974 and took effect on June 10, 1975. It provides for the grant of probation to youthful offender as an alternative to imprisonment. It is considered as the second probation law of the Philippines which is intended only for minors. Presidential Decree No. 603 applies to youthful offenders. It suspends the sentence of minor offenders whose ages range from 9 years old but not more than 21 years old (now 18) the time of the commission of the offense and places them to rehabilitation center. It states, "if after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him, the court shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court shall suspend further proceedings and shall commit such minor to the custody or care of the Department of Social Welfare, or to any training institution operated by the government, or duly licensed agencies or any other responsible person, until he shall have reached 21 years of age (now 18), or for a shorter period as the court may deem proper. NOTA BENE: The age of minority is lowered from 21 to 18 years old
  • 21. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 21 RELATED PROVISIONS UNDER REPUBLIC ACT NO. 9344 Sec. 5 of Republic act No. 9344: Rights of the Child in Conflict with the Law. - Every child in conflict with the law shall have the following rights, including but not limited to: xxx (m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law; xxx Sec. 42 of Republic act No. 9344: Probation as an Alternative to Imprisonment. - The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child. For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as the "Probation Law of 1976", is hereby amended accordingly. Sec. 43 of Republic act No. 9344: Confidentiality of Records and Proceedings. - All records and proceedings involving children in conflict with the law from initial contact until final disposition of the case shall be considered privileged and confidential. The public shall be excluded during the proceedings and the records shall not be disclosed directly or indirectly to anyone by any of the parties or the participants in the proceedings for any purpose whatsoever, EXCEPT to determine if the child in conflict with the law may have his/her sentence suspended or if he/she may be granted probation under the Probation Law, or to enforce the civil liability imposed in the criminal action. The component authorities shall undertake all measures to protect this confidentiality of proceedings, including non-disclosure of records to the media, maintaining a separate police blotter for cases involving children in conflict with the law and adopting a system of coding to conceal material information which will lead to the child's identity. Records of a child in conflict with the law shall not be used in subsequent proceedings for cases involving the same offender as an adult, except when beneficial for the offender and upon his/her written consent. A person who has been in conflict with the law as a child shall not be held under any provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him/her for any purpose. Sec. 67 of Republic act No. 9344: Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court Proceedings. - If a child reaches the age of eighteen (18) years pending diversion and court proceedings, the appropriate diversion authority in consultation with the local social welfare and development officer or the Family Court in consultation with the Social Services and Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate disposition. In case the appropriate court executes the judgment of conviction, and unless the child in conflict the law has already availed of probation under Presidential Decree No. 603 or other similar laws, the child may apply for probation if qualified under the provisions of the Probation Law.
  • 22. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 22 DISTINCTION BETWEEN PROBATION UNDER PRESIDENTIAL DECREE NO. 603 AND UNDER PRESIDENTIAL DECREE NO. 968 Presidential Decree No. 603 Presidential Decree No. 968 Under Presidential Decree No. 603 the youthful offender is neither convicted nor sentenced although the court finding him guilty determines the imposable penalty and orders his commitment as a matter of course to any of the trustees for his correction and rehabilitation, even without his asking for it and without any prior investigation Under Presidential Decree No. 968, the offender is convicted and sentenced. Section 3 defines probation as a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer. The probationer is not committed to any institution but is set free under the constructive custody of the court which heard his application for probation. Section 4 of the Probation Decree requires that defendant should apply for probation.
  • 23. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 23 The concept of probation, from the Latin, probatio, "testing," has historical roots in the practice of judicial reprieve. In English common law, prior to the advent of democratic rule, the courts could temporarily suspend the execution of a sentence to allow a criminal defendant to appeal to the monarch for a pardon. Probation first developed in the United States when John Augustus, a Boston cobbler, persuaded a judge in the Boston police court in 1841 to give him custody of a convicted offender, a "drunkard," for a brief period and then helped the man to appear rehabilitated by the time of sentencing. Even earlier, the practice of suspending a sentence was used as early as 1830 in Boston, Massachusetts, and became widespread in U.S. courts, although there was no statutory provision for such a practice. At first, judges, most notably Peter Oxenbridge Thatcher of Boston, used "release on recognizance" or bail and simply refrained from taking any further action. In 1878 the mayor of Boston hired a former police officer, the ironically named "Captain Savage," to become what many recognize as the first official probation officer. By the mid-19th century, however, many Federal Courts were using a judicial reprieve to suspend sentence, and this posed a legal question. In 1916, the United States Supreme Court, in the Killets Decision, held that a Federal Judge (Killets) was without power to suspend a sentence indefinitely. This decision led to the passing of the National Probation Act of 1925, thereby, allowing courts to suspend the imposition of incarceration and place an offender on probation. Probation developed from the efforts of a philanthropist, John Augustus, who looked for ways to rehabilitate the behavior of criminals Massachusetts developed the first state-wide probation system in 1880, and by 1920, 21 other states had followed suit. With the passage of the National Probation Act on March 5, 1925, signed by President Calvin Coolidge, the U.S. Federal Probation Service was established. On the state level, pursuant to the Crime Control and Consent Act of 1936, a group of states entered into an agreement wherein they would supervise probationers and parolees who reside in each other's jurisdictions on each other's behalf. Known as the Interstate Compact for the Supervision of Parolees and Probationers, this agreement was originally signed by 25 states in 1937. By 1951, all the states in the United States of America had a working probation system and ratified the Interstate Compact Agreement. In 1959, the new states of Alaska and Hawaii, the Commonwealth of Puerto Rico, and the territories of the Virgin Islands, Guam, and American Samoa ratified the act as well. I. HISTORICAL DEVELOPMENT OF PROBATION A. HISTORICAL DEVELOPMENT OF PROBATION IN ENGLAND Early in the 19th century the English magistrates initiated experiments to save young and inexperienced offenders from stigma of prison. They made use of the latitude allowed then under
  • 24. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 24 the common law to bind over defendants, who should be brought back for sentence if the conditions of release were violated. The need for supervision and assistance to those so released was met by assigning the young offender to the care and guardianship of his parents or his employer with an occasional check on his progress by the police. WHO IS MATHEW DAVENPORT HILL? Mathew Davenport Hill is considered the father of probation in England. He left an interesting account of his experiments in the Birmingham court. He was in the forefront of reforming juvenile offenders. He finds persons who act as guardians of the juvenile offender. Then at an unexpected period, the confidential officer visits the guardian, makes inquiries and keeps notes of information received. He conducted his experiment in the Birmingham Court. Beginning in the early years of 1481, he acted for and in behalf of juvenile offenders, when he believes: 1. The individual is not fully corrupt 2. There was reasonable hope of reformation 3. When there could be found persons to act As guardian they are kind enough to take charge of the young convict. In the belief that there is better hope for reformation under such guardians than in prison. At unexpected period, confidential officers visits the guardians, make inquiries and register facts. He was thus informed and records were kept. B. HISTORICAL DEVELOPMENT OF PROBATION IN UNITED STATES The first state to enact a real probation law in United States is Massachusetts. The first practical demonstration of probation, first use of the term as court service, and the enactment of the first probation law occurred in Massachusetts. Volunteer services evolved in Maryland. The prisoners Aid Association of Maryland, organized in 1869, employed agents to visit the prison and assist released prisoners and gradually they began to investigate cases and assist offenders before the Baltimore courts. A 1894 law provided that any court in the state might release on probation for “good conduct” a person convicted of any offense not capital, if no previous conviction was proved against him, upon his entering into a recognizance, with or without sureties, and during such period as the court may direct to appear and received judgment when called upon, and in the meantime to keep the peace and be of good behavior. Another state adopting a partial measure was Missouri with its “parole of convicted person’s law of 1897.” The second state to enact a real probation law. The Vermont like Missouri and unlike Massachusetts provided for probation only after suspension of the execution of sentence. The bills
  • 25. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 25 in both states were supported by the state correctional agencies. Many features of the Massachusetts law were incorporated, with several innovations since followed elsewhere. Vermont was the first to adopt a county plan. The third state to enact a real probation law is Rhode Island. A complete state- administered probation system appeared first in Rhode Island. The Act of 1899 empowered the board of state charities and corrections to appoint a state probation officer and additional probation officers, “one of whom at least shall be a women,” to serve all courts in the state. The Act followed Massachusetts in permitting the use of probation before the imposition of sentence and even without conviction but the limitation of probation to less serious offenses was an unfortunate departure from the laws of Massachusetts and Vermont. Success of probation became known in other English speaking countries. Illinois and Minnesota in 1899 Plan for children only. New Jersey and New York enacted probation law in 1900. Finally, on March 4, 1925 the UNITED STATES FEDERAL PROBATION ACT was enacted. WHO IS JOHN AUGUSTUS? John Augustus is the father of probation in the USA. He is a Boston shoemaker, first to develop a sustained service to promote temperance and to reclaim drunkards. Although later he begun to take men and woman charged with other crimes, then eventually children. As indicated by the story of the first case, his method was to provide bail for a temporary suspension or postponement of sentence, during which he sought to counsel and assist such persons find homes, securing employment and adjusting family difficulties. At the end of the probation period, he brought back the offender to court, and if no further complaint had been lodged against the offender, the judged imposed a nominal fine with costs. If the man was too poor, Mr. Augustus advanced the amount, usually as loan. John Augustus originated in rudimentary form, many of the techniques of probation officers and other social workers today, including casework, foster home placement, and protective work for women and children. This was brought about by the changing attitudes of the people towards law breaker and the removal of the inherited attitudes from the PURITANS. John Augustus was born in 1785 at Woburn Massachusetts and moved to Lexington Green and became a Cordwainer or Bootmaker. He prospered and acquired large track of land apart conveyed to Lexington Academy to erect a school. Which he became a trustee. In 1827 he moved to Boston and set up a shop at Franklin Avenue near the Courthouse. He began to visit courthouse because of his membership with the Washington Total Abstinence Society, formed in Boston in 1841 to promote temperance and to reclaim drunkards. During the first year, he took only men charge with drunkenness. Then men and women charge with other offense and then children/ number of cases increases each year
  • 26. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 26 METHODS OF AUGUSTUS 1. Provide bail for temporary suspension of punishment of sentence 2. Then he sought counsel and assists his charges in finding homes, securing employment and adjusting family difficulties. 3. At the end of probation he brought offender back to court-if no further charges are found- judge imposes a nominal fine with cost if man is poor, Augustus advance fine as a loan AUGUSTUS EXPERIMENT  August 1841- Rugged drunk man  3 weeks -The drunkard was brought back to court where the judge cannot recognize him. Imposes a fine of $ 3.76.  Augustus died on June 21, 1859. And out of 2000 person whom he extended his help, only 10 were ungrateful. And out of 1100 cases, only one case was forfeited.  Massachusetts became the 1st country to enact a probation law on April 21, 1878 WHO IS GOVERNOR ALEXANDER H. RICE? He provided appointment and prescribed duties for paid probation officers. WHO IS PRESIDENT CALVIN COOLIDGE? The former governor of Massachusetts.
  • 27. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 27 C. HISTORY OF PROBATION IN THE PHILIPPINES A. The Adult Probation Law of 1935 The Philippine Legislature enacted the first probation of the Philippines. The first legislation was Act No. 4221 enacted by the Philippine legislature on August 07, 1935 and which created a Probation Offices under the Department of Justice led by a Chief Probation Officer appointed by the American Governor General with the advice and consent of the United States. This Law provided probation for the first time offenders, eighteen years of age and over, convicted of a certain crime. However, the law stayed in the statue Books for only Two years. The act subsequently declared unconstitutional by the Supreme Court on Nov. 16, 1937 in People vs. Vera 37 O.G. 164. NOTA BENE: The ill-fated Act was only procedural framework that was antagonistic with the constitution/charter. Section 11 of Act no 4221, the fatal provision of the Act, provided that "This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of a probation officer . . ..’’ The declaration of unconstitutionality of the Probation Act of 1935 created a gap in the criminal justice system in the Philippines. The criminal justice system is the machinery which society uses in the prevention and control of crimes. Its components are the police, the courts, the penal institutions, the probation and the parole systems the components are highly dependent upon one another. The failure of one can destroy the effectiveness of all the others within the system. In order to heighten the awareness of interdependency and cooperation among the components of the criminal justice system, as well as to improve judicial process and to reduce the level of criminality, the National Police Commission created an Inter-Disciplinary Committee in 1974 to prepare a National Crime Prevention Program. On July 24, 1976, a "National Strategy to Reduce Crimes" was finalized and presented to the President of the Philippines. The Strategy proposed a two-pronged attack to reduce crime in the country, namely: (1) to give emphasis on the prevention and control of high-fear and economic crimes by implementing a number of priorities of actions; and (2) to improve the quality of the criminal justice system by facilitating teamwork among its interdependent components. The following priorities of action were recommended: 1. Improvement of the quality of the criminal justice system among its interdependent components; 2. Improvement of the management skills of law enforcement; 3. Reducing the delays in the criminal justice processes; 4. Making corrections more attuned to its role of rehabilitating law offenders; and 5. Increasing the community participation in crime prevention. There were a number of projects recommended under each of these priorities of action, among which was the establishment of an adult PROBATION SYSTEM. It was a priority action under (4).
  • 28. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 28 The rationale for recommending priority consideration to the establishment of a probation system is clearly apparent. 1. The penal system in the country is characterized by substandard treatment of prisoners. To try to train lawbreakers to obey the law in a substandard system is self-defeating. 2. The deterrent potentiality of the prisons is grossly exaggerated. No one has ever proved that the threat of severe punishment actually deters crime. 3. Prisons heighten the offenders' weaknesses and erode their capacity for responsibility and sociability. 4. The maintenance of penal institutions is costly on the part of the government. In view of these considerations, an alternative to institutionalization for certain types of offenders was proposed. Such proposal was subsequently translated into a law on July 24, 1976, which is now known as the "Probation Law of 1976" or Presidential Decree No. 968. WHO IS TEODULO C. NATIVIDAD? He is the Father of Probation in the Philippines. He headed the committee (IDCCP) primarily tasked with the drafting of the adult probation law. A. THE ADULT PROBATION LAW OF 1976 It took a long time before another attempt was made with introduction then by Congressman Teodulo C. Natividad in collaboration with former Congressman Ramon D. Bagatsing, House Bill No. 393. The measure was passed in the Lower House and was pending in the senate when Martial Law was proclaimed in 1972. The Presidential decree No. 968, established a probation system less costly alternative to the imprisonment of the offender who are likely to respond to individualized, community-based treatment program is the second legislation that enforces a probation system in the country. On Nov. 13, 1974, the Inter-Disciplinary Committee on Crime Prevention (IDCCP) was created to formulate a national crime prevention program for the courtly. NOTA BENE: The committee places emphasis on “Pro-action (crime prevention) rather than Reaction (action after occurrence of the crime). INTER-DISCIPLINARY COMMITTEE ON CRIME PREVENTION (IDCCP) The delegation’s official report served as the turning point for the Inter-Disciplinary Committee on Crime Prevention of the commission to formulate for a national crime prevention program. As mandated under Section 4(k) of republic Act no. 4864, otherwise known as the police Act of 1966”, the National Police Commission, on November 13, 1974, created the IDCCP. The IDCCP then under the charge of Commissioner Teodulo C. Natividad, was asked by the Secretary and Chairman of NAPOLCOM, Juan Ponce Enrile to draft the adult probation decree.
  • 29. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 29 This Committee, the Inter-Disciplinary Committee, is composed of authorities and representative from the five pillars of the criminal justice system. After a laborious period of eighteen technical hearings involving sixty source persons, came out with the draft decree for presentation at a seminar on the Probation System sponsored by the National Police Commission and the U.P. Law Center on April 24, 1976 subsequently attended by 369 participants. The Proposal was reviewed by a mixture of Jurist, Penologist, Policemen, Educators subsequently civic leaders, social and behavioral scientist, media men blue- and white-collar workers and housewives. Two (2) foreign experts participated namely Dr. Torsten Erickson, former United Nations Inter-Regional Adviser on Crime Prevention Justice and Dr. A. Lamonth Smith. Director for Research Program Planning and Elicit comments on the adoption of adult probation system in the country. A survey was made to elicit comments on the adoption of the adult probation system in the country. Favorable resulted showed 87.1% in favor of the adoption, 7.1% apprehensive and 5.8% non-committal. Thereafter, the draft was sent to the Secretary of the Department of the National Defense, Secretary of the Department of the Justice and to the Supreme Court for review and endorsement of the President. The final forum of the proposed institutionalization of adult probation in the country was the First National Conference on Crime Control, which was held at Camp Aguinaldo from July 22 to July 24, 1976. It was on this historic last day of the Conference that the Presidential Decree No. 968 and thereby Transported the criminal justice system of the country to the twentieth century. In the process, the president also appointed as the first Probation Administration, NAPOLCOM Chairman, Teodolo C. Natividad in a concurrent capacity. THE MULTI- SECTORAL BODY As advocated by the United Nations, the five-penal multi-sectoral body is composed of experts from the various sectors and disciplines comprising the five pillars of criminal justice system, namely: Police, Prosecution, Court, Correction and Community Participation. The panel on community participation has sub-panels on education, welfare, religion, Barangay, health and economics. Under the leadership of Commissioner Teodulo C. Natividad, the IDCCP, after barely two months of work evolved a proposed system of probation for adults based on evaluation of projects on crime prevention and treatment of offenders in the courtly, notably the Bacolod City experiment on social defense. This was later incorporated as part of PD 968 which was signed into law by Pres. Ferdinand E. Marcos on July 24, 1976. Note: Jan. 3, 1978 + affectivity of the substantive provisions of PD 968.
  • 30. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 30 II. BASIC DIFFERENCES BETWEEN P.D. 968 AND THE PROBATION ACT OF 1935 Presidential Decree 968 (Probation Law of 1976) Act no. 4221 (Probation Law of 1935) As to Applicability of the probation law It expressly and explicitly provides that "There shall be at least one probation officer in each province and city who shall be appointed by the Secretary of Justice upon recommendation of the Administrator and in accordance with civil service law and rules." (Section 23)  The Probation Law applies to all provinces and cities, uniformly and without discrimination  The salary of the probation officer in each province or city is provided for by law, no longer subject to the discretion of the respective provincial boards.  The law expressly provides that "The Provincial or City Probation Officer shall receive an annual salary of at least eighteen thousand four hundred pesos.” It expressly and explicitly provides that this Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of a probation officer . . . " (Section 11)  The Probation Law applies only to provinces and cities in which their respective provincial boards have provided for the salary of a probation officer  The salary of the probation officer is to the discretion of the respective provincial boards.  The Probation Law divests the provincial boards of the power to determine whether or not salary of a probation officer in their respective provinces would be appropriated. As to the condition of the probation order The conditions of Probation make it MANDATORY for the Court to issue a probation order containing specific conditions for the probationer to fulfill. (Section 10)  The reparation or restitution by the probationer to the aggrieved parties for actual damages or losses caused by his offense is DELETED The imposition of the said conditions on the probationer was merely DISCRETIONARY on the part of the Court issuing the probation order. (Section 3)  There is reparation or restitution by the probationer to the aggrieved parties for actual damages or losses caused by his offense. As to the period of probation It provides that "in all other cases, the probation period shall not exceed 6 years. (Section 14) The new law, therefore, provides for a definite and shorter probation period. It provides that the period of probation of a probationer found guilty of "any other offense" did not exceed twice the maximum time of imprisonment to which he might be sentenced. (Section 7) As to the appealability of the order granting or The Law provides that an order granting or denying probation Nowhere in the old Probation Law can there be found a provision to
  • 31. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 31 denying probation shall not be appealable. (Section 4) this effect. As to the offenses not covered It contains a GENERAL enumeration. It provides that the benefits of this Decree shall not be extended to those: a) sentenced to serve a maximum term of imprisonment of more than 6 years; b) convicted of any offense against the security of the State; c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or fine of not less than two hundred pesos; d) who have been once on probation under the provisions of this Decree; e) who are already serving sentence at the time the substantive provisions of this Decree became applicable. . .. " (Section 9) N.B. Thus, besides a general enumeration of the offense not covered, the said Section further broadened the scope of the inapplicability of the Law. Additional exemption from coverage can be found in the offenses enumerated under Section 9 (a, c, d and e) abovementioned. It gave an enumeration of the offenses not covered by the Act. This enumeration SPECIFIED the crimes not covered. These were: 1. Homicide 2. Treason 3. Misprision of treason 4. Sedition 5. Espionage 6. Conspiracy or proposal to commit treason 7. Piracy 8. Brigandage 9. Arson 10. Robbery in band 11. Robbery with violence on persons when it was found that they displayed a deadly weapon and 12. Corruption of minors." (Section 8) As to modification or revision of the conditions of probation The modification or revision of the conditions of probation, Presidential Decree No. 968, Section 12 provides in part, that "During the period of probation, the court may, UPON APPLICATION of either the probationer or the probation officer, revise or modify the conditions or period of probation. . .. " N.B. Contrasting the two Sections, It provided that "The Court MAY, at any time, revise, modify or enlarge the conditions or period of probation."
  • 32. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 32 it is evident that under the new law, application of either the probationer or the probation officer is needed in order that the Court may exercise its discretion to revise or modify the conditions or period of probation whereas the old law granted to the Court the exclusive discretionary power of revision and modification without need of prior application by the probationer or the probation officer concerned. It is clear therefore, that under the new law, the Court relies heavily upon the probation officer and places great faith in him. As to name of probation office and its head  Office - Probation Administration  Probation Administrator - the Executive Officer of the Probation Administration  Office - Probation Office  Chief Probation Officer - the Head of the Probation Office III. FORERUNNERS OF PROBATION The following are the forerunner of probation: 1. Benefits of the Clergy- earliest for softening of the brutal severity of punishment. This was a compromise between the church and the king that, if any member of the clergy was brought to trial before the king’s court, such clergy could be claimed from the jurisdiction by the bishop or chaplain representing him on the ground that the prisoner was subject to the authority of the Ecclesiastical Court only. There was greater leniency in sentencing and particularly escape from death penalty. Acquittal or guilt was established by a Jury of Twelve Clerks. 2. Judicial Reprieve- withdrawal of sentence for an internal of time whereby the execution of the sentence is suspended either before or after judgment such as when there is a favorable circumstance in the criminal’s character in order to give him opportunity to apply to the King for either an absolute an or conditional pardon. Early English courts began to grants reprieves to prisoners under sentence of death on condition that they accept deportation to English settlements in America. 3. Recognizance or “Binding over for good behavior” + this is considered as the direct ancestor of probation. This involves an obligation or promise sworn to under court order by a person not yet convicted of crime he would keep the peace and be of good behavior. 4. Transportation- this was developed from an ancient practice of banishment and flourished for more than two hundred years as a principal method of disposing offenders. It served mainly as cheap source of supplying labor to the colonies of England.
  • 33. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 33 IV. THE PROBATION LAW AND ITS AMENDMENT AMENDMENTS PRESIDENTIAL DECREE NO. 968 Presidential Decree No. 1257 Section 1 xxx The prosecuting officer concerned shall be notified by the court of the filling of the application for probation and he may submit his comment on such application within ten days from receipt of the notification. xxx Nota Bene: The prosecutor participates in the determination of the application for probation. It is therefore mandatory the prosecuting officer concerned shall be notified by the court of the filling of the application for probation and submits comment within 10 days from receipt. NONE Section 2 Xxx The court shall resolve the application for probation not later than fifteen days after receipts of said report." Xxx N.B. PD no. 257 extended the period of resolving the application for probation by the court from five (5) days to fifteen (15) days. Section 7 xxx The court shall resolve the petition for probation not later than five days after receipt of said report. xxx Section 3 Xxx In the hearing, which shall be summary in nature, the probationer shall have the right to be informed of the violation charged and to adduce evidence in his favor. The court shall not be bound by the technical rules of evidence but may be inform itself of all the facts which are material and relevant to ascertain the veracity of the charge. The State shall be represented by a prosecuting officer in any contested hearing. Xxx N.B. The defendant has the right to be informed of the violation charged and to adduce evidence in his favor. NONE Sec. 4 xxx That the application of its substantive provisions concerning the grant of probation shall only take effect on January 3, 1978." xxx sec. 33 xxx That, the application of its substantive provisions concerning the grant of probation shall only take effect twelve months. xxx
  • 34. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 34 Batas Pambansa Blg. 76 The probation system shall not be extended to a convicted offenders sentenced to serve a maximum term of imprisonment of more than six (6) years and one (1) day. N.B. The probational period is extended to six (6) years and one (1) day and below The probation system shall not be extended to a convicted offenders sentenced to serve a maximum term of imprisonment of more than six (6) years. N.B. The probational period is six (6) years and below. xxx Any person sentenced to maximum penalty of six years and one day on January 3, 1978 and thereafter may be placed on probation upon his application therefore with the court of origin. However, such person serving sentence shall remain in jail pending the approval of his application. XXX NONE Presidential Decree No. 1990 The decree restore the provision of section 9 of PD 968 that probation shall not be extended to a convicted offenders sentenced to serve a maximum term of imprisonment of more than six (6) years. It that senses the decree impliedly amended the provision of BP 76. Section 1 amending Section 4 of PD no. 968. Xxx Provided; That NO APPLICATION FOR PROBATION SHALL BE ENTERTAINED OR GRANted if the defendant has perfected the appeal from the judgment of conviction. Xxx NB: Appeal and probation is a mutually exclusive remedy; meaning once a defendant filed his appeal it is a deemed waiver of the filing of probation. The period of perfecting an appeal is also the period of perfecting an application/filing for probation. In general, the period of perfecting an appeal is fifteen (15) days from the promulgation of sentence. N.B. 1990 + The period of punishment which is probationable is lowered again from 6 years and 1 day to 6 years or less NONE Executive Order No. 292 It renamed the Probation Administration created under PD 968 into Parole and probation Administration. It also extended the powers and function of the PPA. It includes the following: a. Administer the parole and probation system; b. Exercise general supervision over all parolees and
  • 35. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 35 probationers; c. Promote the correction and rehabilitation of offenders; and d. Such other functions as may hereafter be provided by law. xxx (2)The Administration shall have a Technical Service under the Office of the Administrator which shall serve as the service arm of the Board of Pardons and Parole in the supervision of parolees and pardonees. The Board and the Administration shall jointly determine the staff complement of the Technical Service. xxx Bautista, F.S. and Guevara, R. M. (2013). Comprehensive Penology Institutional and Non-Institutional Corrections. Quezon City: Wiseman’s Books Trading Inc. Esmeralda, R.M. (2016). Non-Institutional (Probation, Parole ad Executive Clemency). Isabela: Isabela State University Foronda, M. E. (2013). Correctional Administration (Non-Institutional Corrections). Quezon City: Wiseman’s Books Trading Inc. Enhanced by: RHEYMA P. ANOR, RCrim Part-time Instructor Reviewed by: JEFFSON G. NAUNGAYAN, MS CRim Program Chairperson, CJE REFERENCES
  • 36. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 36 THE RULES AND LIMITATIONS IN THE GRANT OF PROBATION I. GRANT OF PROBATION Section 4 of PD 968 - Subject to the provisions of this Decree, the court may, after it shall have convicted and sentenced a defendant and upon application at any time of said defendant, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction. The filing of the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal. (As amended by PD 1990). II. CRITERIA FOR PLACING AN OFFENDER ON PROBATION (SECTION 8 OF PD NO. 968 Under Section 8 of PD No. 968, in determining whether an offender may be placed on probation, the court shall consider all information relative, to the character, antecedents, environment, mental and physical condition of the offender, and available institutional and community resources. Probation shall be denied if the court finds that: 1. The offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or 2. There is undue risk that during the period of probation the offender will commit another crime; or 3. Probation will depreciate the seriousness of the offense committed. However, under Sec. 70 of Republic Act No. 9165, the Comprehensive Dangerous Drugs Act of 2002, the first-time minor offender who upon promulgation of the sentence, the court may, in its discretion, placed the accused under probation, even if the sentence provided under Sec. 11 of the Act is higher than that provided under Probation Law. SECTION 70 OF REPUBLIC ACT NO. 9165. Probation or Community Service for a FirstTime Minor Offender in Lieu of Imprisonment. + Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if the sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer, whereupon the court shall issue such an order. LESSON I. NATURE OF GRANTING PROBATION
  • 37. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 37 Application for Probation can be denies on the ground that it will depreciate the seriousness of the offense committed. SEC. 5. Post Sentence Investigation.* No person shall be placed on probation except upon prior investigation by the probation officer and a determination by the court that the ends of justice and the best interest of the public as well as that of the defendant will be served thereby. Sec. 8. Criteria for Placing an Offender on Probation.*In determining whether an offender may be placed on probation, the court shall consider all information, relative to the character, antecedents, environment, mental and physical condition of the offender and available institutional and community resources. Probation shall be denied if the court finds that: III.PROBATION IS NOT A MATTER OF RIGHT BUT A PRIVILEGE The Supreme Court held that, probation is a mere privilege and its grant rests solely upon the discretion of the court. This discretion is to be exercised primarily for the benefit of organized society and only incidentally for the benefit of the accused. Probation cannot be demanded as a matter of right. It is a privilege. Hence, only those persons who are qualified may apply for probation. Its grant depends upon the discretion of the trial court. No person shall be placed on probation except upon prior investigation by the probation officer and a determination by the court that the ends of justice and the best interest of public as well as that of the defendant will be serve thereby. The grant of probation results in the release of the petitioner subject to the terms and conditions imposed by the court and to the supervision of Probation Officer. However, under R.A. 9344 or Juvenile Justice and Welfare Act of 2006, a Child in Conflict with the Law (CICL) is granted the right to probation as an alternative to imprisonment if qualified under the Probation Law IV.BASIS OF GRANTING PROBATION In DELA CRUZ VS. CALLEJO; the basis of granting probation is the sentence imposed by the trial court. Convicted for highway robbery sentence to 11 years, 4 months and 1 day 12 years penalty was reduced to 1 year, 8 months and 5 months and 1 day. He applied for probation on the basis of the appellate court. Trial court denied. Supreme Court denial is proper to the provision of the law. V. PROBATION IS NOT A SENTENCE In Baclayon vs. Mutia, 129 SCRA 148 (April 30, 1984) it was held that an order placing defendant on "PROBATION" IS NOT A "SENTENCE" but is rather in effect a suspension of the imposition of sentence. It is not a final judgment but is rather an "interlocutory judgment" in the nature of a conditional order placing the convicted defendant under the supervision of the court for his reformation, to be followed by a final judgment of discharge, if the conditions of the probation are complied with, or by a final judgment of sentence if the conditions are violated. Probation is not a suspension of sentence. A suspension of sentence postpones execution of sentence for a definite time, while probation suspends sentence during good behavior.
  • 38. LEARNING MODULE IN NON-INSTITUTIONAL CORRECTIONS Page 38 VI.HOW MANY TIMES CAN ONE BE GRANTED PROBATION? An offender can be granted probation ONLY ONCE IN HIS LIFETIME VII. GRANTING OR DENYING PROBATION NOT BE APPEALABLE Under PD No. 1990, an order granting or denying probation shall not be appealable. VIII. PROBATION AND APPEAL IS MUTUALLY EXCLUSIVE REMEDIES Later, the amendment of Section 4 of P.D. No. 968 by P.D. No. 1990 imposed a condition upon the grant of probation, thus: "Provided, that no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction." The application for probation was no longer allowed if the accused has perfected an appeal from the judgment of conviction. The reason for the disallowance of probation where an appeal has been made by the accused is stated in the preamble of P.D. No. 1990, thus: "WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may be entitled to probation still appeal the judgment of conviction even up to the Supreme Court, only to pursue their application for probation when their appeal is eventually dismissed". In view of this change, jurisprudence treated appeal and probation as MUTUALLY EXCLUSIVE REMEDIES. Thus, where the penalty imposed by the trial court is not probationable, and the appellate court modifies the penalty by reducing it to within the probationable limit, the same prohibition should still apply and he is not entitled to avail of probation. In Sable v. People, G.R. No. 177961, April 7, 2009, 584 SCRA 619, 625. the Supreme Court stated that "[Section 4 of] the Probation Law was amended to put a stop to the practice of appealing from judgments of conviction even if the sentence is probationable, for the purpose of securing an acquittal and applying for the probation only if the accused fails in his bid." Thus, probation should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated; who manifest spontaneity, contrition and remorse. The Supreme Court explained that the intention of the new law is to make appeal and probation mutually exclusive remedies. Jurisprudence at that time stated that the Probation Law requires that an accused must not have appealed his conviction before he can avail himself of probation. This requirement "outlaws the element of speculation on the part of the accused- -to wager on the result of his appeal--that when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an `escape hatch' thus rendering nugatory the appellate court's affirmance of his conviction." However, in the fairly recent case of Colinares vs. People, G.R. No. 182748, December 13, 2011, the Supreme Court took another look at the probation law, and allowed the grant of probation to an accused who has appealed his conviction. In this case, the accused was originally sentenced by the Regional Trial Court to imprisonment exceeding 6 years and one day, which disqualified from applying for probation. Upon his appeal of the case to the Court of Appeals, the appellate court lowered the penalty to less than 6 years and one day. The Supreme Court reasoned that since the trial court imposed a (wrong) penalty beyond the probationable range, thus depriving the accused of the option to apply for probation when he appealed, the element of speculation that the law sought to curb was not present.