Ethics and Discretion in Probation "…Encourage relationships with colleagues of such character to promote mutual respect and cultivate a professional cooperation with each segment…" [and] "respect, serve and empathize with the victims of law violations allegedly committed by children…"

(Denton County Juvenile Probation Department)

What ethical considerations are important in probation departments in the United States? What are the ethical expectations for communities when there are offenders out from prison and on probation? What discretion do probation officers have vis-a-vis offenders they are responsible for? These and other issues will be presented in this paper.

Potential Ethical Conflicts in the Field of Probation

Mitchell Silverman writes in the peer-reviewed International Journal of Offender Therapy and Comparative Criminology that there are two potential conflicts that emerge from the two "major roles" that are typically given to probation officers. First, the probation "agent" is trained to help offenders get on their feet socially (which can create a conflict of interest if the agent becomes too close as a friend to the offender); and secondly, the probation officer is sworn to enforce all legal conditions associated with his or her assigned offender, and there can be no compromise of ethics in that role (Silverman, 1993).

Other ethical problems can emerge based on the "…pressures place on the probation officer as a result of the organizational structure of a given department," and the level of government (local, county, regional, state or national level of government) (Silverman, 85).

There are additional conditions and factors that can place ethical pressure on probation officers, Silverman continues. For example, during economic downturns there may be extra pressure on a given department due to budget cutbacks (and hence, a shortage of resources) from which ethical issues could arise. Also, in a given county or city there might be a large number of "violent offenders in the population of probationers" which can be problematic for probation officers (Silverman, 85). And moreover, a probation officer may be given a caseload that can "…prohibit adequate supervision" which can create conditions that put the probation officer in a position in which decisions must be made that have "serious ethical implications" (Silverman, 85).

Silverman notes that as prison populations increase throughout the country, there will be a need for more probation officers, and new programs will need to be developed to cope with these increasing case loads for probation officers.

A Case that Illustrates the Need for Ethics and Discretion

In professor Joycelyn Pollack's book, Ethical Dilemmas and Decisions in Criminal Justice, the author presents a dilemma that brings ethics into the spotlight. A probation officer with a large caseload has a young woman (a single mother) as a client. She was arrested for shoplifting food and baby formula and is staying out of trouble and reporting properly to her probation officer. The probation officer makes a house call and finds that the client is back at work and her boyfriend (who, upon further research, has numerous arrests for drugs, violent assaults, etc.) is taking care of her baby (Pollack, 2012, 366).

The conditions of her probation are that she can't have contact with "known criminals"; but she insists that because he's paying her rent and without him in the house she can't work. Obviously the boyfriend can't be trusted and it appears he may in fact be implicated with a local street gang that controls the drug market in that part of town. What should be done?

One, the probation officer could revoke her probation based on her association with a known offender; after all, she is technically in violation of the rule of "no-association" with criminals albeit she has not committed a crime. In many probation departments, the officer is expected to write a "violation report" when there is a violation he or she becomes aware of; but in many instances, unless the violation is serious, the officer has the discretion to not write a violation report because in this case, for example, he really doesn't want to see her go to prison which a judge might do upon receipt of the violation report (Pollock, 366). But clearly, there is an ethical decision that must be made by the probation officer.

Should the probation officer invoke the concept of utilitarianism in this case -- meaning, a decision will be made that creates the greatest good for the most people? Pollock doesn't believe utilitarianism fits into this case because "…the harm to her children outweighs the existing benefit," and...

But on the other hand "certain harm" will come to her if the probation officer revokes her probation and she goes to prison (Pollock, 366).
What should be instituted in this case is what Pollock refers to as the "ethics of care." If the probation officer could involve the ethics of care -- and find a way to help her financial situation (so she can pay her rent without the offender in the picture) or locate subsidized housing for her -- this would meet ethical issues and would also meet the conditions of utilitarianism. Hence, a solution, providing she accepts it could be found. But as Pollock notes, if the probation officer offers her this ethical way out of her dilemma, and she refuses; indeed if she "…chooses the man over her freedom and children" the probation officer can feel as though he or she did the best possible thing for the client by offering her a way out of a return to prison (366).

Discretion -- How does it Work in Probation Departments?

Authors Tony Evans and Antony Evans pose the question, who decides when it is the proper time for the probation officer to "shift" from discretionary judgment to procedures? (Evans, 2010, 60). The decisions usually fall in the lap of the probation officer because he or she is the one who fully understands the situations and makes ethical interpretations; however, in many cases the supervisor may not give that discretion to the probation officer. But if the supervisor gives the probation officer the option of using discretion, the officer knows that he or she doesn't have to simply apply rules; that in fact rules only apply in "given situations" (Evans, 60).

Moreover, the presence of rules does not imply that there is no discretion or freedom for the probation officer, Evans continues. The absence of rules doesn't mean there will not be freedom either, Evans goes on (62). That is because not rules, but "managerialism, as an ideology, now dominates practice" in the field of social work including probationary services (Evans, 62). In other words, managers that dominate departments tend to minimize the use of discretion, but from a "street-level perspective," the probation officer would like to able to use his or her "practical discretion" (Evans, 65). Hence, the relationship between the probation officer and the manager in the office will, in the end, determine the amount of discretion the probation officer will be able to utilize with any given client.

Revocation and Discretion in Probation Work

Professors Lior Gideon and Hung-En Sung -- in their book, Rethinking Corrections: Rehabilitation, Reentry, and Reintegration -- assert that a "substantial number of probationers fail to comply with release conditions" and hence find themselves back in prison (Gideon, et al., 2010). Essentially the person on probation has a contract with the court of law that issued the probation conditions. Gideon claims on page 105 that in 2006, just 57% of probationers were successful in carrying out their part of the probation terms; eighteen percent were incarcerated (4% for a new crime; 9% for violation of the terms of their probation; and 5% for "other reasons"); "four percent absconded" and 12% were seen as not completing their probation successfully (Gideon, 105).

Besides the options that the probation officer in the previous reference had when dealing with the single mother, there are other sanctions, Gideon explains. But the most serious sanction is in fact revocation because just the threat of revocation of probation is intended as a deterrent; "…the threat of revocation is often used as a means of coercing treatment" (and treatment can be counseling or therapy with a psychologist or psychiatrist) (Gideon, 105).

Meanwhile, traditionally, probation officers have used "a great deal of discretion in choosing between the various sanctions" that are made available to them through the rules and the ethical codes of probation departments. There are differing responses to the use of discretion within departments, the authors continue; in some cases probation officers make decisions not just based on ethics, but based on the need to "…gain approval of immediate supervisors" (Gideon, 105). In other cases, probation officers exhibit more punitive attitudes to the same offenses that other officers in other departments treat with leniency.

For example, Gideon points out that if a probation officer supports rehabilitation he or she might well be more willing to overlook "minor violations" simply to establish a good relationship with the client (105). And contrary to some of the literature presented in this paper, Gideon asserts that the decision to…