BASIC CONCEPTS
1. Correction vs. Penology
Course Description:
The course focuses on Presidential Decree,
known as the “Probation Law of 1976” as amended,
establishing a probation system in the Philippines, its
historical background, philosophy, concepts, and
operation as a new correctional system, investigation,
selection and condition of Probation, distinction
between incarceration, parole, probation and other
forms of executive clemency, total involvement of
probation in the administration of the Criminal Justice
System.
This course also treats the study of the
Act 4103, as amended otherwise known as the
Indeterminate Sentence Law that created the Board of
Pardons and Parole, system of releasing and
recognizance, executive clemency and pardon.
BACKGROUND OF STUDY
CJS – the crime prevention mechanism
P – POLICE/LAW ENFORCEMENT
P – PROSECUTION
C – COURT
C – CORRECTION
C - COMMUNITY
Correction as a process
1. Institutional
2. non-institutional based correction
BOARD QUESTIONS
Which of the pillars of Philippine Criminal
Justice is the __
1. “Prime mover”?
2. “Investigator/state representative?
3. “Center pillar”?
4. “Reformer”?
5. “Base pillar”?
6. The superstar in the CJS?
7. The forgotten person in the CJS?
What does the __ symbolizes in the context of the
criminal justice system?
1. The lady justice – divine rightness of law
2. The balance – truth and fairness
3. The sword – power of reason
4. The blindfold – objectivity - IMPARTIALITY!
What do you call the judge hammer?
- Mallet or Gavel
2. Positivist vs. Classical Thoughts
3. Correction – Positivist influence
4. Penology – Classical influence
What are the two kinds of
CORRECTION APPROACHES in the Philippines?
1. Institutional Correction – Rehabilitation of
offenders in Jail or Prison.
2. Community-Based Correction – correctional
activities that takes place in the community that
directly addressed to the offender and aimed at
helping him to become a law abiding citizen.
COMMUNTY-BASED CORRECTIONS
1. PROBATION – (PD 968 of 1976)
2. PARDON AND PAROLE - (Act No. 4103 known as
the Indeterminate Sentence Law of 1933)
3. PROBATION
PROBATION
WHAT IS PROBATION?
- By probation, a person convicted of a criminal
offense is not sent to prison by the sentencing
court. Instead, he/she is released and placed
under the supervision of a probation officer
subject to the conditions which the court may
impose.
Probation, in other words: is a disposition under
which an accused, after conviction and
sentence, is released subject to conditions
imposed by the court and to the supervision of a
probation officer.
Probation, also: is a privilege granted by the
court; it cannot be availed of as a matter of
right by a person convicted of a crime.
To be able to enjoy the benefits of probation, it
must first be shown that an applicant has no
disqualifications imposed by law.
IS PROBATION A MATTER OF RIGHT?
No, it is a mere privilege for adult offenders.
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.
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Probation was an OLD PRACTICE. It was the influence of
the following:
BENEFIT OF THE CLERGY
In the 13th Century, a compromise between the
church and the king, wherein any member of
the clergy brought to trial in the king’s court
shall be claimed from the jurisdiction by the
bishop or chaplain representing him and placed
under the authority of the ecclesiastical court.
JUDICIAL REPRIEVE
17th century – the practice of temporary
suspension of the execution of sentence by the
judge either before or after judgment.
Early in the 17th C – with the establishment of
settlements in America, English courts began to
grant reprieves to prisoners under sentence of
death on condition that they accept
deportation.
RECOGNIZANCE “binding over good behavior”
The direct ancestor of probation - involves the
obligation or promise under oath that the
accused must “keep the peace” or “be of good
behavior” Sureties or bail were usually required
usually applied to any felony not capital this led
to the development of the first
British Probation Service.
TRANSPORTATION
Sending or putting away of an offender to
another colony. It was an attempt to substitute
for brutal punishment at home and an
opportunity for rehabilitation in a new country.
DEVELOPMENT OF MODERN PROBATION
Matthew Davenport Hill (1792 – 1872)
English lawyer and penologist; known as Father
of probation in England
John Augustus (1785-1859)
Founder of American Probation – Boston,
Massachusetts (a shoemaker) – his effort led to
the 1st probation legislation in the United
States in 1878 – true Father of Probation.
Hence, the true origin of modern probation was
the US.
John Augustus influence 1887 - a law passed
providing for the appointment of probation
officer for the city of Boston.
An ex-chief of police of Boston, Edward N.
Savage was named probation officer, thus
becoming the first probation officer employed
by the government.
PROBATION in the PHILIPPINES
August 7, 1935 – Public Act No. 4221 – was
passed to and became known as the
Probation Act.
However, it was abolished after two years as it
was declared unconstitutional by the Supreme
Court in the case of People v. Vera, 37 O.G. 164.
(As a case of Class legislation) In 1972, House
Bill No. 393 was filed in Congress, which would
establish a probation system in the Philippines.
This bill avoided the objectionable features of
Act 4221 that struck down the 1935 law as
unconstitutional. The bill was passed by the
House of Representatives, but was pending in
the Senate when Martial Law was declared and
Congress was abolished.
House Bill No. 393
Was filed by Teudolo C. Natividad and Ramon
Bagatsing. This was the second Bill that
attempts to establish an adult probation in the
Philippines after its forerunner Act No. 4221 of
1935 was declared unconstitutional.
On July 24, 1976, Presidential Decree No. 968,
also known as Adult Probation Law of 1976, was
signed into Law by then President Marcos.
Features of PD 968
Application for Probation
The application for probation shall be filed by a
sentenced or convicted offender whose
sentence is not more than 6 years
imprisonment. It shall be filed with the court
that tried and sentenced the offender.
Will probation be automatically granted to
one whose sentence is six (6) years or less?
No, the applicant may be denied by the court if
the offender would be better rehabilitated if
he/she is sent to prison to serve his/her
sentence. If there is undue risk that the
offender will likely commit another crime;
Probation will depreciate the seriousness of the
offense committed.
Will probation be automatically granted to
one whose sentence is six (6) years or less?
Under Sec. 70 of R.A. 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.
Is there a need to apply for probation to avail of
its benefits?
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Yes, it will not be granted except upon the
application by the accused. “The trial court
may, after it shall have convicted and sentenced
a defendant and upon application by said
defendant within the period of perfecting an
appeal” – Sec 4
When can a petitioner file his application for
probation?
The law says that the application should be
made within the period for perfecting an appeal
or within 15 days from the promulgation of
notice of judgment.
However, under Section 42 of R.A. 9344, the
Juvenile Justice and Welfare Act of 2006 – The
court may, after it shall have sentenced a Child
in Conflict with the Law and upon application at
anytime placed the child on probation in lieu of
service of his sentence.
Is there a form prescribed for the application
for probation?
Yes, it shall be in the form approved be the
Secretary of justice as recommended by the
Administrator or as may be prescribed by the
Supreme Court.
Where can we file the application for
probation?
The application for probation be filed directly to
the trial court that heard and sentenced the
person applying for probation.
What then be the duty of the court after receipt
of the application?
The trial court may notify the concerned
prosecuting officer of the application at a
reasonable time before the scheduled hearing
thereof.
What are the procedures in applying for
Probation?
1. The offender or his counsel files a
petition with the convicting court
2. The court determines convict
qualifications and notifies the
prosecutor of the filing of the petition
3. The prosecutor submits his comments
on such application within 10 days from
receipt of the notification
4. If petitioner is qualified, his application
is referred to the probation officer for
post-sentence investigation
5. The post-sentence investigation report
6. (PSIR) is submitted by the probation
officer to the court within 60 days
7. The court grants or denies the petition
for probation within 15 days upon
receipt of the PSIR.
What are the effects of filing an application for
Probation?
1. The court may, upon receipt of the
application suspend the execution of
sentence imposed in the judgment;
2. Pending the submission of the PSIR and
the resolution on the application, the
applicant may be allowed on temporary
liberty under his bail, on a new bail, or
released on recognizance.
How many times can one be granted probation?
ONLY ONCE!!
What are the Disqualifications for Probation
application?
1. Those who were sentenced to more
than 6 years
2. Those who were convicted of crimes
against the security of the state (Art.
134 to 157 except 135, 140 and 152 of
the RPC)
3. Those previously convicted and
punished of not less than 1 month and
1 day imprisonment and/or fine of not
less than 200 pesos (include those
punished with destierro)
4. Those that were previously granted
probation under P.D. 968
5. Those who were already serving their
sentence when probation became
applicable.
The Court will not grant Probation if it finds:
1. The offender can be treated better in a
mental institution or other places for
correction
2. The offender is a risk to the community
3. The offense is grievous to the eyes of
the community
When Probation is granted, what conditions are
imposed by the court?
1. The probationer must present himself
to his probation officer within 72 hours
2. Report to his probation officer at least
once a month
3. Not to commit another crime
4. Comply with any other lawful
conditions imposed by the court.
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If the probationer committed a crime while
under probation, what would be the
consequences?
1. The probationer will be arrested for
violation of the condition of probation
2. Prosecution of the new crime
committed
3. The court will order the serving of the
original sentence of the previous
offense
How long is the period of probation?
1. Not more than 2 years if the sentence is
imprisonment for 1 year or less
2. Not more than 6 years if the sentence is
imprisonment for more than 1 year but
not more than 6 years.
Note: Probation starts upon issuance of the
court granting probation.
Can the offender be released pending
application for probation?
1. On the same bond he filed during trial
2. On a new bond
3. To the custody of a responsible
member of the community if unable to
file bond (recognizance)
When can the Court Modify the Conditions for
Probation?
At any time during supervision after
summary hearing when the probationer
violated any of its conditions upon
application by the probation officer or
the probationer himself
Note: only the judge who heard and
decided the case has the power to
grant, deny, modify, revoke and
terminate probation.
What are the Rules on Outside Travels?
Probation officer authorized the
probationer to travel outside the area
of the operation for a period of 10 days
but not exceeding 30 days. If 30 days,
Probation must file 5 days before travel
a request to travel outside for the
approval of Probation authorities. If
more than 30 days, probation
authorities shall recommend for Court
approval.
What are the Rules on Change of Residence?
The probationer must file a request for
change of residence at the city or
provincial Parole and Probation officer
to the court approval.
If approved, the RTC which has
jurisdiction over the place shall have full
control of the probationer.
Who is a volunteer Probation Aide?
He/she is a civilian of good repute and
integrity, at least 18 years of age,
appointed by the Probation
Administration to assists the POs in the
investigation and supervision. A VPA is
not entitled to salary but is given a
reasonable travel allowance.
When is Probation terminated?
After the probationer has satisfactorily
completed the probation period, the
Probation Officer shall submit termination
report to the court containing the ff:
1. condition of probation
2. program of supervision /response
to treatment
3. recommendation
What are the ways of terminating probation?
1. After period of probation with
satisfactory compliance with conditions
of probation.
2. Other ways of terminating probation
a. Termination before the
expiration of the period (served
at least 1/3 of the imposed
period but not less than 6
months)
b. Termination by pardon of the
probationer
c. Deportation of the probationer
- when an alien on probation is
deported, probation will
necessary be terminated.
d. Death of probationer.
What are the rights restored after termination
of Probation?
1. All civil rights suspended when the
offended was convicted and sentenced
are restored after the termination of
probation
2. Liability to pay a fine is also discharged
in case of subsidiary imprisonment.
How Can Probation help in the
Prevention of Crime?
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 When in the community, he is helped
and given opportunities to be
productive and responsible instead of
going to prison hopefully, these
situations restrain the probationer from
committing crime.
How can Community help in the Success of
Probation?
1. Community accepting the probationers,
giving them a feeling of belongingness
2. Community agencies and schools are
being open for the training and
treatment of probationers
3. Community leaders and layman
allowing the participation of
probationers in developmental
programs
4. Religious organizations giving the
probationers spiritual advice and
extending their social action programs
to probationers
5. Various organizations providing
temporary housing for probationers
6. The community playing an equally
important role after the termination of
probation, it should be ready for the
reintegration of the individual into
community life
THE PAROLE SYSTEM
HISTORICAL ACCOUNTS
The first parole law was passed in
Massachusetts in 1837. At about same time,
Alexander Maconochie introduced a system
whereby a prisoner was given a “ ticket of leave
“ ( the equivalent of parole ) after earning a
certain required number of marks – known as
the MARK SYSTEM.
From this, Maconochie gained the fame as
FATHER of PAROLE!
Parole was also a feature of the Irish Prison
system which was established in 1856 based on
an indeterminate sentence & the mark system.
The Elmira Reformatory, likewise, had a limited
form of indeterminate sentence and a method
of marks similar to the Irish system, and parole
based on marks.
Parole System in the Philippines
LEGAL BASIS
Act No. 4103, as amended, otherwise known as
the "Indeterminate Sentence Law” which was
approved on December 5, 1933. This law
created the Board of Pardons and Parole!
WHAT IS PAROLE?
It is the release of a prisoner from prison after
serving the minimum period of his
indeterminate sentence.
What is the difference between determinate sentence
with an indeterminate sentence?
Under determinate sentencing, the criminal
must serve the entire sentence. The date of
release remains objective.
Under indeterminate sentences, a criminal will
serve a range of years as determined by the
judge. The minimum time period is usually set
and after the minimum sentence passes, the
case will go before a parole board which sets
the actual date of release.
WHO CANNOT BE GRANTED PAROLE?
Generally, those sentenced to a term of
imprisonment of one (1) year or less, or to a
straight penalty, or to a prison sentence
without a minimum term of imprisonment.
WHEN MAY A PRISONER BE GRANTED PAROLE?
Whenever the BPP finds that there is a
reasonable probability that, if released, the
prisoner will be law-abiding and that his release
will not be incompatible with the interest and
welfare of society and when a prisoner has
already served the minimum penalty of his/her
indeterminate sentence of imprisonment.
WHO MAY GRANT PAROLE TO A PRISONER?
The Board of Pardons and Parole, an agency
under the Department of Justice.
WHO MAY BE QUALIFIED FOR PAROLE?
A prisoner shall be eligible for the grant of parole
upon showing that –
1. He is confined in a jail or prison to serve an
indeterminate prison sentence, the
maximum period of which exceeds one
year, pursuant to a final judgment of
conviction
2. He has served the minimum period of said
sentence less the Good Conduct Time
Allowances (GCTA) earned.
3. There is a reasonable probability that if
released, he will be law-abiding
4. His release will not be incompatible with
the interests and welfare of society.
What are the disqualifications for the Grant of Parole?
1. Those convicted of an offense punished with
Death Penalty, Reclusion Perpetua or Life
imprisonment;
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 2. Those convicted of treason, conspiracy or
proposal to commit treason or espionage;
3. Those convicted of misprision of treason,
rebellion, sedition or coup d'etat;
4. Those convicted of piracy or mutiny on the high
seas or Philippine waters;
5. Those who are habitual delinquents i.e. those
who, within a period of ten (10) years from the
date of release from prison or last conviction of
the crimes of serious or less serious physical
injuries, robbery, theft, estafa and falsification,
are found guilty of any of said crimes a third
time or oftener;
6. Those who escaped from confinement or
evaded sentence;
7. Those who were granted Conditional Pardon
and violated any of the terms thereof;
8. Those whose maximum term of imprisonment
does not exceed one (1) yr or those with
definite sentence;
9. Those suffering from any mental disorder as
certified by a government
psychiatrist/psychologist;
10. Those whose conviction is on appeal;
11. Those who have pending criminal case/s.
What is the Difference of Probation
from Imprisonment and Parole?
1. Probation is an alternative to imprisonment.
Instead of being confined in prison, the
probationer is released to the community by
the court with conditions to follow and is placed
under the supervision of PO.
2. Parole is a conditional release of a prisoner
whereby he is placed under the Supervision of a
Parole Officer after serving his minimum
sentence.
3. Probation is a community-based approach to
reformation of offenders, while imprisonment
adopts the institutionalized approach.
4. Probation is judicial function while Parole is an
administrative function.
5. Probation is handled by the Probation
Administration while parole is administered by
the Parole Board Probation is enjoyed only once
while Parole may be granted more than once,
depending on good behavior during
imprisonment.
6. Probation is more beneficent because it
restores full civil rights to the probationer upon
termination unlike parole.
WHAT COMPOSED OF THE BOARDS OF PARDON AND
PAROLE?
1. Chairman - Secretary of the DOJ
Ex-Officio - Probation Administrator of the
Parole and Probation Administration
2. Members: Sociologist, Clergyman/Educator,
Psychiatrist, Person qualified for the work by
training/experience and a member of the
Philippine BAR.
THE EXECUTIVE CLEMENCIES
Pardon
An act of executive clemency by a head of state
for the purpose of exempting an individual from
the punishment imposes upon him by a court of
law.
It is an act of grace and the recipient is not
entitled to it as a matter of right.
Kinds of Pardon
Absolute Pardon
It is an absolute pardon when it is
granted by the Chief Executive without
any conditions attached. Absolute
pardon serves to wipe away the guilt of
a pardonee and makes him innocent as
if he has not committed any crime.
Conditional Pardon
It is conditional when it is granted by
the Chief Executive subject to the
conditions imposed on the recipient
and accepted by him. Usually, the
person granted with conditional pardon
has served a portion (at least ½ of the
minimum of his indeterminate
sentence) of his sentence in prison.
Limitations of the Pardoning Power of the President
1. It may not be exercised for offenses in
impeachment cases;
2. It may be exercised only after conviction by final
judgment;
3. It may not be exercised over civil contempt (As
for refusing to answer a proper question as a
witness in a case);
4. In case of violation of election law or rules and
regulations, no pardon, parole, or suspension of
sentence maybe granted;
5. It cannot be exercised to violation of tax laws.
OTHER FORMS OF EXECUTIVE CLEMENCY
Amnesty
Is a general pardon extended to a group of
persons generally exercised by the Chief
Executive with the concurrence of congress.
It is an act of sovereign power granting oblivion
or general pardon for past offense and rarely, if
ever, exercised in favor of single individual is
usually exerted in behalf of certain classes of
person who are subjected to trial but not have
been convicted.
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 Note: Amnesty can be availed of before, during
and after the trial of the case, even after
conviction.
Differences between Amnesty and Pardon
As to the number of those who can avail -
Pardon includes any crime and is exercised
individually by the Chief Executive, while
amnesty is a blanket pardon granted to a group
of prisoners, generally political prisoners.
As to the Time to Avail - Pardon is exercised
when the person is already convicted, while
amnesty maybe given before trial or
investigation is done.
As to the Consent of Congress - Pardon is
granted by the Chief Executive and such is
private act, which must plead and proved by the
person pardoned because the court takes no
choice thereof.
While amnesty is by proclamation with
concurrence of congress, and it is a public act,
which the court should take judicial notice.
As to the Effect - Pardon is an act of forgiveness,
i.e. it relieves the offender from the
consequences of the offense, while amnesty is
an act of forgetfulness. i.e. it puts into
nothingness the offense of which one is charged
so that the person as if he had never committed
the offense.
As to the Crime committed - Pardon is granted
for infractions of the peace of the State while
amnesty, for crimes against sovereignty of the
state (ex. political offense)
COMMUTATION OF SENTENCE
WHAT IS COMMUTATION OF SENTENCE?
It is a change of the decision of the court made
by the Chief Executive by reducing the degree
of the penalty inflicted upon the convict, or by
decreasing the length of the imprisonment of
the original sentence.
What specific cases commutation maybe granted?
1. When the convict sentenced to death is over 70
years of age;
2. When justices of the Supreme Court failed to
reach a decision for the affirmation of the death
penalty; in other cases, the degree of the
penalty is reduced from Death to Reclusion
Perpetua.
In Commutation of Sentence, consent of the
offender is not necessary. The public welfare, not
his consent, determines what shall be done.
WHAT IS REPRIEVE?
REPRIEVE is the temporary stay of the execution
of sentence (applicable only to death sentence).
WHAT IS GCTA?
It is a privilege granted to a prisoner that shall
entitle him to a deduction of his term of
imprisonment. Under Art.97, RPC. Special Time
Allowance for Loyalty (Art. 158, RPC) A
deduction of 1/5 of the period of the sentence
of any prisoner who evaded the service of
sentence on the occasion of disorders due to
conflagrations, earthquakes, or other calamities
shall be granted if he returns to authorities
within 48 hours after the president declared
that the calamity is over.
Once granted shall not be revoked!!
OTHER VIPs TO REMEMBER
PD1257 – participation of the prosecutor in the
determination of the application for probation.
P.D. 76 – the period of punishment which is
probationable is extended from 6 years and 1 day.
P.D. 1990 – the period of punishment which is
probationable is lowered again from 6 years and 1 day
to 6 years or less
E.0.292 - renamed the Probation Administration into
Parole & Probation Administration
Probationer – a person placed on probation
Absconding probationer – a person whose probation
was granted but failed to report for supervision or fails
to continue reporting for supervision or whose
whereabouts are unknown for a reasonable period of
time.
Probation officer – one who investigates for the court a
referral for probation or one who supervises a
probationer or both.
Petitioner – an accused or defendant who files a formal
petition for probation
Absconding petitioner – a convicted defendant whose
application for probation has been given due course by
the court but fails to report to the probation office or
cannot be located within a reasonable period of time.
Parole – refer to the conditional release of an offender
from a penal institution after he has served the
minimum period of his prison sentence.
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Parolee - refer to a person who is released on parole

Pardonee – refer to a person who is released on

conditional pardon.

Client – refer to a pardonee/parolee who is place on

supervision

CASE STUDY NO. 1

Matt was found guilty of drug trafficking while his

younger brother Jeff was found guilty of possession of
equipment, instrument, apparatus and other
paraphernalia for dangerous drugs under Section 12 of
Republic Act No. 9165. Matt filed a petition for
probation. Jeff appealed his
conviction during the pendency of which he also filed a
petition for probation. The brothers’ counsel argued
that they being first time offenders, their petitions for
probation should be granted.
How would you resolve the brothers’ petitions for
probation?
Explain.