It must not be forgotten that there are always some pitfalls in best of the systems which may pose a threat to the system itself. However, this should not discourage our efforts. Needless to say that probation as a method is much more cheaper and effective than incarceration. It is a modern technique in the field of correctional therapy which must be used extensively for treatment of offenders.
There are some critics who look probation as a form of leniency towards the offenders. To quote Dr. Walter Reckless, “probation like parole, seems to the average laymen a sap thrown to the criminal and a slap at society.” Some scholars criticise probation because it involves undue interference of non-legal agencies in the judicial work which hampers the cause of justice.
Despite the criticism of probation from certain quarters, the fact remains that it is perhaps the only reformative technique which fully endorses the cause of human dignity. Probation, in fact, is an opportunity to an offender to “struggle to recapture self-respect”.
It lays greater emphasis on individual rather than his act and desires that potentialities of the offender for rehabilitation must be thoroughly explored before admitting him to the benefit of probation. It is therefore, abundantly clear that the system of probation is fully in conformity with the modern reformative trends of punishment.
In spite of the merits of the probation technique, there are certain pit-falls in the system which also need to be mentioned. They are:—
(1) The advocates of probation system assert that this correctional method of treatment of criminals being compatible with the advances in social and medical science, is the only scientific approach and hence the concept of punishment must be modified, if not dissipated. This logic really destroys the very foundation of our present sentencing justice. Keeping in view the increasing crime rate and its frightening dimensions, undue emphasis on “individual” offender at the cost of societal insecurity can hardly be appreciated as a sound penal policy.
(2) Probation system lays greater emphasis on the offender and in the zeal of reformation; the interests of the victim of the delinquent’s act are completely lost sight of. This obviously, is against the basic norms of justice.
(3) Admitting all young offenders and first offenders to probation regardless of their antecedents, personality and mental attitude, might lead to recidivism because many of them may not respond favourably to this reformative mode of treatment. Section 3 of the Probation of Offenders Act, 1958 provides that the Court at its discretion, can order unsupervised release of the offender after due admonition in offences such as theft, cheating etc. This section does not require the Court to call for a pre-sentence report from the probation officer. As such, the Court does not possess necessary information regarding character and antecedents of the offender. As a result of this, there is possibility of dangerous offenders being released under this provision which may defeat the very purpose of corrective justice.
(4) In many cases, it is difficult to ascertain whether the delinquent is a first offender or a recidivist. Therefore, there is a possibility that an offender who is otherwise a recidivist, might be admitted to probation and he may not respond favourably to this correctional technique.
(5) Section 4 of the Probation of Offenders Act, which is a key section of the Act, does not make supervision of a person released on probation mandatory when the Court orders release of a person on probation on his entering into a bond with or without sureties. This is not in accordance with the probation philosophy which considers supervision essential in the interests of the offender.
(6) Although Section 6 of the Act requires the Court to take into consideration the probation officer’s report when decision to grant or refuse probation to an offender who is below 21 years is to be taken, but many a times courts do take decision without such report. This is again, against the spirit of the philosophy enshrined in the Probation Act.
(7) Perhaps the lack of real interest for social service among the probation personnel presents a major problem in selecting right persons for this arduous job. Prof. Chute attributes lack of properly qualified personnel, want of adequate supervision and excessive burden of case-work as the three major causes of inefficiency of the probation staff. Particularly, in India, probation is reduced to a mere farce and the correctional task is being handled by persons who are mostly inexperienced and inadequately trained for this work. The lack of enthusiasm for social service and inadequate resources for implementation of probation programme are perhaps the two main causes of slow progress of probation service in India.
As rightly pointed out by Donald Taft, the acid test of success or failure of probation is its effect on recidivism. But this test can never be accurately carried out because of a variety of other factors influencing criminality and the quality of probation also varies according to time and place. It is generally agreed that probation is one of the most promising methods of protecting society against crime and criminals.
Studies on probation have shown that the advantages of this correctional method far outweigh its shortcomings. A case study conducted by Morris Caldwell on 1800 probationers during his period of probation supervision reveals that a total of only 23.1 per cent either violated probation law or absconded. This fairly demonstrates the success of probation as a method of reforming the offender within the community itself.