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

PD 968 - THE PROBATION LAW OF 1976

- approved on 24 July 1976; effectivity date is 3 January 1978

AMENDATORY LAWS TO PD 968

PD 1257 – effectivity date, 01 December 1977; amended the period within which
application for probation must be made

BP 76 – effectivity date, 13 June 1980; amended the maximum penalty for qualification
for probation

PD 1990 - effectivity date, 15 January 1986; amended BP 76 back to original form and
made probation and appeal exclusive remedies

PROBATIONER
- is a person placed on probation

PROBATION OFFICER (now Probation and Parole Officer)

- is one who investigates for the court a referral for probation or supervises a
probationer or both

FORERUNNERS OF PROBATION
1. BENEFIT OF CLERGY
This originated in a compromise with the Church which had maintained
that a member of the clergy brought to trial in a King’s Court might be claimed
from that jurisdiction by the bishop or chaplain representing him, on the ground
that he, the prisoner, was subject to the authority of the ecclesiastical courts only.

2. JUDICIAL REPRIEVE
This is a temporary withholding of sentence, either before or after
judgment; as where the judge is not satisfied with the verdict, or evidence is
suspicious, or indictment is insufficient, or he is doubtful whether the offense be
within the clergy, or sometimes if it be a small felony, or any favorable
circumstances appear in the criminal’s character.

3. RECOGNIZANCE (BINDING OVER FOR GOOD BEHAVIOR)

It originated as a measure of preventive justice, involving the release of
the person accused of committing a crime to the custody of a person of reputable
character, who shall have the responsibility of bringing the accused to court
whenever the court requires.

4. TRANSPORTATION
This was chiefly a way of ridding the country of criminals; it later
developed as a plan for supplying new colonies with cheap labor. It was also an

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 attempt to substitute for brutal punishment at home and an opportunity for
rehabilitation in a new country.

IMPORTANT PERSONALITIES IN THE HISTORY OF PROBATION

JOHN AUGUSTUS
- “Father of Probation” in the US

MATTHEW DAVENPORT HILL

- is considered as the “Father of Probation” in England

TEODOLO S. NATIVIDAD
- Father of Philippine Probation

Act No. 4221

– the first Probation Law of the Philippines
– this act became effective on August 7, 1935
– the Supreme Court declared this Act unconstitutional on November 16,
1937

In People vs. Vera (37 O.G. 164), the constitutionality of Act 4221 was challenged
because of the following grounds:
a) The said act encroaches upon the pardoning power of the
executive
b) That it constitute an undue delegation of legislative power
c) It denies the equal protection of the laws

SIX SIGNIFICANT IDEAS AND CHARACTERISTICS OF PROBATION

1. A more enlightened and humane correctional system;
2. To promote the reformation of offenders;
3. Reduction of the incidence of recidivism;
4. Extending to offenders individualized and community-based treatment programs
instead of imprisoning them;
5. Limited to offenders who are likely to respond thereto favorably;
6. The method is less costly than confinement.

PHILOSOPHY AND CONCEPTS OF THE PROBATION SYSTEM

1. There is no single cause for delinquent behavior. Human beings are extremely
complicated.
2. Delinquent and criminal acts are symptoms a more serious underlying condition.
3. That the individual has the ability to change and to modify his anti-social behavior
with the right kind of help.
4. The Central goal of the Probation Administration is to enhance the safety of the
community by reducing the incidence of criminal acts by persons previously
convicted.
5. This is of course not to say that probation should be used in all cases, or that it
will always produce better results.
6. By the same token, however, it is to say 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 subject.
7. Imprisonment as a sole cure for prevalence of crime is no longer recognized.

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 8. It is generally conceded that probation is a matter of privilege to be granted or
refused at the discretion of the State.
9. No violation should result in automatic revocation.
10. A judge should not pass judgment on a man without a post sentence
investigation report (PSIR).

BENEFITS OF PROBATION
a. Probation protects society
1. From the excessive costs of detention
2. From the high rate of recidivism of detained offenders

b. Probation protects the victim

1. It provides restitution
2. It preserves justice

c. Probation protects the family

1. It does not deprive the wife and children of a husband and a father
2. It maintains the unity of the home

d. Probation assists the government

1. It reduces the population of prisons and jails
2. It lessens the clogging of courts
3. It lightens the load of prosecutors
4. It sustains law enforcement

e. Probation helps the offender

1. It maintains his earning power
2. It provides rehabilitation in the community
3. It restores his dignity

f. Probation justifies the philosophy of men

1. That life is sacred
2. That all men deserve a second chance
3. That an individual can change
4. That society has a moral obligation to lift the fallen

ADVANTAGES OF PROBATION
a. Probation prevents crime by offering freedom and aid only to
those offenders who are not likely to assault the society again.
b. It protects the society by placing under close supervision non-
dangerous offenders while undergoing treatment and rehabilitation
in the community.
c. It conforms to modern humanistic trends in penology.
d. It prevents youthful or first time offenders from turning into
hardened criminals.
e. It is a measure of cutting enormous expense in maintaining jails.
f. It reduces recidivism and overcrowding in jails and prisons.
g. It reduces the burden on the police forces and institutions of
feeding and guarding detainees.
h. It gives the first and light offenders a second chance in life and
provides as opportunity for the reformation of a penitent offender.

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 i. It makes the offender productive or taxpayers instead of tax
eaters.
j. It restores to successful probationers his civil rights.
k. It has been proven effective in developing countries that have
adopted it.

SUSPENSION OF EXECUTION OF SENTENCE

The court convicts and sentences the defendant but the execution of the
sentence, whether it imposes a term of imprisonment or a fine only, is suspended and
the defendant is released on probation.

PROBATION IS ONLY A PRIVILEGE, NOT A RIGHT

Probation is not demandable as a matter of right. It is a privilege. Its grant
depends upon the discretion of the court.

NECESSITY OF APPLICATION
Probation may not be granted except upon application of the defendant.

TIME FOR APPLICATION

The law says that the application for probation should be made within the period
for perfecting an appeal, or within fifteen (15) days from promulgation of notice of
judgment.

EFFECT ON APPEAL
The filing of application (for probation) shall be deemed a waiver of the right to
appeal. In such case the accused cannot, even by withdrawing his application for
probation, reinstate his appeal or right to appeal.

EFFECT ON MOTION FOR RECONSIDERATION OR NEW TRIAL

There is nothing in the Probation Law which indicates that the defendant’s right
to move for a reconsideration of the judgment of conviction, or his right to ask for new
trial, is waived or suspended by his application for probation, or that such application has
the effect of an automatic withdrawal of a pending motion for reconsideration or new
trial, although there is likewise nothing in the law which suggests that the filing of the
application for probation interrupts the running of the period for reconsideration or new
trial.

FORM OF APPLICATION
The law does not prescribe any particular form and therefore it may be in any
form, written or oral. For recording purposes, however, oral applications should be
reduced to writing.

POST SENTENCE INVESTIGATION

The Probation Law provides that “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".

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 The probation officer shall submit to the court the investigation report on an
applicant not later than sixty (60) days from receipt of the order of the said court to
conduct the investigation.

The court shall resolve the petition for probation not later than fifteen (15) days
after receipt of said order.

DENIAL OF PROBATION TO DISQUALIFIED OFFENDER WITHOUT PRIOR

INVESTIGATION
However, there is nothing in the law which requires that such an investigation
should be conducted in every case as an essential condition before the court may deny
an application for probation.

COURT MAY ORDER INVESTIGATION SO LONG AS APPLICANT IS NOT SERVING

SENTENCE

If there is an application and the defendant does not appear to be disqualified,

the court may order such investigation only after a sentence of conviction by the trial
court for the reason that the same would be premature if made prior to said conviction,
considering that the judgment might eventually be an acquittal or, even if it be conviction,
the court might find as a fact in its decision that the defendant is a disqualified offender,
in either of which cases the order for investigation would serve no purpose.

POST SENTENCE INVESTIGATION, NOT PRE-SENTENCE INVESTIGATION

Under our Probation Law, the investigation for probation is a post-sentence, not
pre-sentence investigation; meaning that the investigation is after, not before, the
sentence. The sentence referred to is the sentence of the trial court.

SCOPE OF INVESTIGATION
The inquiry should be a thorough investigation into the character, antecedents,
environment, mental and physical condition of the offender, and available institutional
and community resources, as well as all other matters bearing the following questions:

(a) Whether or not the offender is in need of correctional treatment

that can be provided most effectively by his commitment to an
institution;
(b) Whether or not there is undue risk that during the period of
probation the offender will commit another crime;
(c) Whether or not probation will depreciate the seriousness of the
offense committed.

NO RIGHT TO COUNSEL
The Probation Law has no provision guaranteeing the right to counsel in the
investigation of a petitioner. The constitutional guarantee of right to counsel will not apply
because the investigation by the probation and parole officer is neither prosecutory nor
accusatory in character.

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PRIVILEGE AGAINST SELF-INCRIMINATION NOT AVAILABLE
The information contained in the post-sentence investigation report shall be
“privileged” and could not be used as evidence against any person, no matter how
incriminating the information may be.

NO SUBPOENA POWERS
Probation and parole officer are not clothed with subpoena powers under the
Probation Law. There is nothing to prevent them, however, from requesting the court to
issue subpoenas requiring the attendance of witnesses in their investigations.

SUBMISSION OF INVESTIGATION REPORT

The investigation report having been completed, the Chief Probation and Parole
Officer should submit his report to the court, “not later than 60 days from receipt of
the order of the court to conduct the investigation”. The same period is merely
directory, not mandatory, in the sense that an investigation report submitted after 60
days would still be a valid report.

NO COPY OF REPORT FOR APPLICANT

The investigation report as well as the supervision history “shall be privilege and
shall not be disclosed directly or indirectly to anyone other than the Parole and Probation
Administration or the court concerned.

NO RIGHT OF APPLICANT TO COMMENT ON REPORT

There is nothing in the Probation Law which entitles the applicant to submit any
comment, or demand that the court should consider the same.

HEARING NOT REQUIRED

There is nothing in the Probation Law which requires the court to set for hearing
the investigation report or the application for probation, although it may of course, in its
discretion do so, preserving at all times, however, the confidentiality of the report.

The court is mandated to resolve the petition for probation not later than 15 days
after receipt of the investigation report. The period, however, seem to be merely
directory, not mandatory.

BAIL OR RECOGNIZANCE PENDING PETITION FOR PROBATION

Pending submission of investigation report and the resolution of the petition for
probation, the defendant may be allowed temporary liberty under his bail filed in the
criminal case. In case no bail was filed or the defendant is incapable of filing one, the
court may allow the release of the defendant on recognizance to the custody of a
responsible member of the community who shall guarantee his appearance whenever
required by the court.

GRANT OR DENIAL OF PROBATION

PROBATION DISCRETIONARY
Barring disqualified offenders, the grant or denial of probation is a matter of
discretion on the part of the court.

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ISSUANCE OF PROBATION ORDER
A probation order shall take effect upon its issuance, at which time the court shall
inform the offender of the consequences thereof and explain that upon his failure to
comply with any of the conditions prescribed in the said order or his commission of
another offense, he shall serve the penalty impose for the offense under which he was
placed for probation. In the event that violation of any of the conditions of probation is
established, the court need not revoke the probation; it has the discretion to revoke or
continue the probation and modify the conditions thereof.

APPLICANT MAY REJECT GRANT OF PROBATION

The law does not oblige the defendant to accept the probation granted by the
court. He should be allowed to turn down the same grant, especially since he might feel
that the terms and conditions thereof are too onerous for him.

GRANT OR DENIAL OF PROBATION NOT APPEALABLE BUT CERTIORARI MAY

LIE

CIVIL LIABILITY NOT AFFECTED

Probation is a substitute for imprisonment (including subsidiary imprisonment in

case of non-payment of fine) and other criminal penalties, not a mode of discharging the
civil liability, which is owed not to the State but to the offended party.

COVERAGE OR SCOPE OF APPLICATION OF DECREE

A. Non-offenders not covered

Consistently with the concept and purpose of probation, the
Decree applies only to offenders.

B. Offenders covered
The Decree declares, “it shall apply to all offenders”.

C. Offenders who are excluded

Not all offenders, however, fall within its coverage:

1. It expressly excludes from its operation “those entitled to the benefits of PD 603,
as amended (otherwise known as the Child and Youth Welfare Code) and similar
laws.
2. Even if the offender does not fall under the terms of the Child and Youth Welfare
Code and the “similar laws” just mentioned, he would not be entitled to the
Benefits of the Decree if he has not been convicted and sentenced.
3. An offender who is already serving sentence or is otherwise specifically
disqualified under Sec. 9.
4. Under Sec. 264, BP 881 as amended by BP 882, 883 and 884, which state, “any
person found guilty of any election offense under this code shall be punished with
imprisonment of not less than 1 year but not more than 6 years and shall not be
subject to probation.
5. Sec. 9, Pd 1987 (An Act creating the Videogram Regulatory Board, dated
October 5, 1985) states “The provisions of PD 968, as amended shall not apply

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 in cases of violations of this Decree, including its implementing rules and
regulations.
6. Sec. 12 of the Wage Rationalization Act (RA 6727) provides that the violators of
the law shall not be entitled to the benefits of the Probation Law.

DISQUALIFIED OFFENDERS

Sec. 9. Disqualification Offenders – The benefits of this Decree shall not be extended
to those:
(a) sentenced to serve a maximum term of imprisonment of
more than six years;
(b) convicted of subversion or any crime against the national
security or public order;
(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 a fine of not less than
Two Hundred Pesos;
(d) who have been once on probation under the provisions
of this Decree; and
(e) who are already serving sentence at the time the
substantive provisions of this Decree became applicable
pursuant to Sec. 33 hereof

When the court must deny probation

The court shall deny an application for probation whenever it finds that:

a. the offender is in need of correctional treatment that can be

provided most effectively by his commitment to an institution;
b. there is undue risk that during the period of probation the offender
will commit another crime;
c. probation will depreciate the seriousness of the offense
committed.

PERIOD OF PROBATION

a. The period of probation of a defendant sentenced to a term of

imprisonment of not more than one (1) year shall not exceed two
(2) years, and in all other cases, said period shall not exceed six
(6) years.

b. When the sentence imposes a fine only and the offender is made
to serve a subsidiary imprisonment in case of insolvency, the
period of probation shall not be less than nor more than twice
the total number of days of subsidiary imprisonment as
computed in the rate established in Art. 39 of the Revised Penal
Code, as amended.

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CONDITIONS OF PROBATION
1. General or Mandatory Conditions

(a) Present himself to the probation (and parole) officer designated to

undertake his supervision at such place as may be specified in the order
within 72 hours from receipt of said order;

(b) Report to the probation (and parole) officer at least once a month at such
time and place as specified by the said officer.

2. Special or Discretionary Conditions

The court may also require the probationer to:

(a) cooperate with the program of supervision;

(b) meet his family responsibilities;
(c) devote himself to specific employment and not to change said
employment without prior written approval of the probation (and parole)
officer;
(d) undergo medical, psychological or psychiatric examination and treatment
and enter and remain in a specified institution, when required for the
purpose;
(e) pursue a prescribed secular study or vocational training;
(f) attend or reside in a facility established for instruction, recreation or
residence of persons on probation;
(g) refrain from visiting houses of ill-repute;
(h) abstain from drinking intoxicating beverages to excess;
(i) permit the probation (and parole) officer or an authorized social worker to
visit his home and place of work;
(j) reside at premise approved by it and not to change his residence without
its prior written approval; or
(k) satisfy any other condition related to the rehabilitation of the defendant
and not unduly restrictive of his liberty or incompatible with his freedom
of conscience

MODIFICATION OF PERIOD AND CONDITIONS OF PROBATION

A. Period of probation
The period of probation may either be shortened or made
longer, but not to exceed the period set in the law.

B. Conditions of probation
During the period of probation, the court may, upon application
of either the probationer or the probation officer, revise or modify
the conditions of probation.

The court shall inform in writing the probation officer

and the probationer of any change in the period and
conditions of probation.

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REVOCATION OF PROBATION
A. Concept of violation of probation
“A violation of probation shall be understood to mean any act
or any commission on the part of the probationer with
respect to the terms and conditions specified in the probation
order.

B. Arrest of the probationer

At any time during probation, the court may issue a warrant
for the arrest of the probationer for violation of any of the
conditions of probation.

TERMINATION OF PROBATION
A. After the period of probation and upon
consideration of the report and recommendation of
the probation and parole officer, the court may
order the final discharge of the probationer upon
finding that he has fulfilled the terms and conditions
of his probation and thereupon the case is deemed
terminated.

B. Other ways of terminating probation:

1. Termination before the expiration of the period
2. Termination by pardon of the probation
3. Deportation of the probationer
4. Death of the probationer

C. Effect of final discharge

The final discharge of the probationer shall operate to
restore to him all civil rights lost or suspended as a
result of his conviction and to fully discharge his liability
for any fine imposed as to the offense for which
probation was granted.

CONFIDENTIALITY OF RECORDS

The probation records may be found, firstly, in the court concerned. Secondly, in
the office of the Chief Probation and Parole Officer assigned in the city or province.
Thirdly and fourthly, copies of these records are being forwarded to the Regional Parole
and Probation Office and the Parole and Probation Administration (Central Office).

OTHER FORMS OF NON-INSTITUTIONAL CORRECTIONS

EXECUTIVE CLEMENCY
- collective term for absolute pardon, conditional pardon and commutation of
sentence

PARDON
- an act of grace proceeding from the power entrusted with the execution of the
laws which exempts the individual on whom it is bestowed from the

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 punishment that the law inflicts for a crime he has committed; pardoning
power is exercised by the President

KINDS OF PARDON
1) ABSOLUTE PARDON - the extinction of the criminal liability of the
individual to whom it is granted without any condition and restores to the
individual his civil rights
2) CONDITIONAL PARDON - the extinction of the criminal liability of an
individual, within certain limits or conditions, from the punishment which the
law inflicts for the offense he has committed

EFFECTS OF PARDON
1) It removes penalties and disabilities and restores full civil and political rights;
2) It does not discharge the civil liability of the convict to the individual he has
wronged, as the President has no power to pardon a private wrong;
3) It does not restore offices, property or rights vested in others in consequence
of the conviction. Under our law, a pardon shall not work the restoration of
the right to hold public office or the right of suffrage unless such rights be
expressly restored by the terms of the pardon.

LIMITATIONS UPON THE PARDONING POWER

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; and
4) In case of violation of election law or rules and regulations, no pardon, parole
or suspension of sentence may be granted without the recommendation of
the Commission on Elections.

ELIGIBILITY FOR CONDITIONAL PARDON

He must have served at least one half (1/2) of the minimum of his indeterminate
sentence or the following portions of his prison sentence:

- at least two (2) years of the minimum sentence if convicted of Murder or Parricide
but not sentenced to Reclusion Perpetua
- at least one (1) year of the minimum sentence if convicted of Homicide
- at least nine (9) months if convicted of Frustrated Homicide
- at least six (6) months if convicted of Attempted Homicide

COMMUTATION OF SENTENCE
- an executive clemency changing a heavier sentence to a less serious one, or a
longer prison term to a shorter one

ELIGIBILITY FOR COMMUTATION OF SENTENCE

He must have served at least one third (1/3) of the minimum of his indeterminate
sentence or the following portions of his prison sentence consisting of Reclusion
Perpetua:

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 - at least ten (10) years if convicted of Robbery with Homicide, Robbery with Rape,
or Kidnapping with Murder
- at least eight (8) years if convicted of Simple Murder, Parricide, Rape or Violation
of anti-drug laws
- at least twelve (12) years if given two or more sentences of Reclusion Perpetua
- at least twenty (20) years in case of two (2) sentences for Reclusion Perpetua,
provided that at least one (1) of the sentences had been automatically commuted
from a death sentence

REPRIEVE
- the postponement of the execution of a death sentence

AMNESTY
- an act of the sovereign power granting oblivion or general pardon for a past
offense usually granted in favor of certain classes of persons who have
committed crimes of a political character, such as treason, sedition or rebellion

PAROLE
- a method by which a prisoner who has served a portion of his sentence is
conditionally released but remains in legal custody, the condition being that in
case of misbehavior, he shall be imprisoned

ELIGIBILITY FOR PAROLE

A prisoner shall be eligible for the grant of parole upon showing that he is
confined in jail or prison to serve an indeterminate prison sentence, the maximum period
of which exceeds one (1) year, pursuant to final judgment of conviction and that he has
served the minimum period of said sentence less the good conduct time allowance
earned.

GOOD CONDUCT TIME ALLOWANCE

- the statutory shortening of the maximum sentence of an inmate because of good
behavior; granted by the Director of Prisons

ALLOWANCE FOR GOOD CONDUCT TIME ALLOWANCE

The good conduct of any prisoner in any penal institution shall entitle him to the
following deductions from the period of his sentence:

first two years = 5 days deduction for each month (60 days/year)
3rd to 5th year = 8 days deduction for each month (96 days/year)
6th to 10th year = 10 days deduction for each month (120 days/year)
11th year onwards = 15 days deduction for each month (180 days/year)

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