Probation officers’ discretionary decisions in responding to probation violations: The case of Lithuania
| Published date | 01 March 2021 |
| Date | 01 March 2021 |
| DOI | 10.1177/0264550520980057 |
| Subject Matter | Articles |
Article
The Journal of Community and Criminal Justice
Probation Journal
Probation officers’
2021, Vol. 68(1) 28–46
ª The Author(s) 2020
discretionary decisions in
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0264550520980057
responding to probation
journals.sagepub.com/home/prb
violations: The case
of Lithuania
Simonas Nikartas , R¯
uta Vaiˇci¯
unien _e,
and Gintar _e Rinkeviˇci¯
ut _e
Law Institute of Lithuania, Lithuania
Abstract
This paper investigates Lithuanian probation officers’ discretionary decisions on
probation violations under strict legal regulation. Based on a quantitative survey, this
paper analyses hypothetical discretionary decisions according to the type of violation
committed by the probationer. The relationship between discretionary decisions and
variables such as the probationer’s risk level and sociodemographic characteristics
are also analysed. The study revealed that, despite strict legal regulations, which
generally require severe action for probation violations, probation officers tend to
make more lenient decisions. The study also found that violation type, offender risk
level, and probation officer’s age are potential predictors of discretionary decisions.
Keywords
probation, discretionary decisions, probation officers, probationer, probation rules
violation
Introduction
Among European countries, Lithuania is known for its repressive penal policy, one
of the most rooted legacies of the Soviet period (Sakalauskas, 2014). In 2017, the
Corresponding Author:
Simonas Nikartas, Law Institute of Lithuania, Criminal Justice Research Department, Ankˇstoji g. 1A, Vilnius
LT-01109, Lithuania.
Email: simonas.nikartas@teise.org
Nikartas et al.
29
1579
1579
1487
1487
1373
1373
1150
1150
940
940
835
839
591
574
574
421
421
419
419
400
451
400
396
2013
2014
2015
2016
2017
2018
2019
Probaon service appeals to courts for probaon revocaon
Appeals approved by court
Figure 1. Appeals of Probation Services to Courts for the probation revocation in 2013–2019
in Lithuania (abs. numb.). (Prison Department, 2013-219.)
rate of prisoners in Lithuania was 232 per 100,000 inhabitants, the largest number
among all countries in the European Union (Eurostat, 2020). Statistics on persons
serving community sanctions and measures (CSM) or under probation are similar,
with an average of 275 per 100,000 inhabitants per year between 2007 and
2015, again one of the highest among European countries (Nikartas, 2018).
Recently, among possible sanctions for violation of probation conditions, impri-
sonment has been frequently employed. Compared to 2015, the number of appeals
to courts for probation revocation in 2016 and 2017 increased by 37% and 40%,
respectively. Although the courts dismissed more than half of the judgements, 3252
people were imprisoned because of probation violations over these 7 years (Prison
Department, 2013-2019) (see Figure 1).
Penal populism and, consequently, strict legal regulation is one of the main
factors behind the increase in the number of people imprisoned for probation vio-
lations. In cases of breach of probation conditions without justifiable reasons,
probation law obliges probation officers to apply to the court for the revocation of
probation, which in practice means imprisonment (Seimas of the Republic of
Lithuania, 2012). In 2016, in response to a murder case where a probationer killed
four women, new amendments to the Lithuanian Probation Law were introduced to
limit the discretion of probation officers. The most significant change was that
probation officers must apply to the court within one working day after the probation
violation was committed. These restrictions deprived probation officers of the ability
to assess circumstances, personalize, and adapt measures proportionate to the
offence and the personality of the offender.1 Probation officers are statutory and
uniformed officials, subject to the same statute as police and other law enforcement
30
Probation Journal 68(1)
agencies.2 Their activities are characterized by high subordination and hierarchy;
hence, a wide interpretation of the law is not allowed. Subordination, in this case,
means not only obedience to a superior but also obedience to the letter of the law.
The statutory officers’ authority in this respect differs from that of judges who make
decisions, compared to probation officers who must follow not only the law but also
the principles of the law along with their own inner beliefs.
Thus, it is particularly interesting to study how probation officers make discre-
tionary decisions in the context of this rigorous and punitive environment. The article
discusses the results of a survey aimed at analysing how probation officers tend to
respond to typical probation violations. The study attempts to categorize probation
officers’ hypothetical decisions according to probation violation type and rela-
tionships between discretionary decisions and sociodemographic variables of
probation officers.
Legal framework
Based on the Law on Probation of the Republic of Lithuania, persons under proba-
tionary supervision are (1) persons for whom the court has imposed a custodial
sentence, postponing its enforcement, or (2) persons conditionally released from
prisons. In both cases, the court determines the probation conditions – obligations
that the probationer must perform during the prescribed term of probation. Proba-
tion conditions may include the following obligations: (a) comply with curfews; (b)
remain in the city/district of the place of residence unless permission of the institu-
tion supervising the sentenced person is obtained; (c) avoiding visiting certain areas
or communicating with certain persons or groups of persons; (d) avoiding the use of
psychoactive substances; (e) avoiding the use of or acquiring specific goods or
engaging in certain activities; (f) starting work or study or continuing work or edu-
cation; (g) making restitution payments; (h) apologizing to the victim of the crime; (j)
providing the victim with assistance while he or she is being treated; (k) performing
community service hours; (l) attending behaviour correction programme meetings;
(m) participating in addiction treatment or rehabilitation (with agreement); and (n)
educating and caring for their underage children. Additionally, probationers must
abide by the general rules of probation (e.g. the obligation to work or officially
register in an employment agency within 14 days, not commit administrative mis-
demeanours3, or to carry out measures imposed by the probation officer4).
In case of violations, probation officers make discretionary decisions that may
include applying administrative probation measures (e.g. warning, intensification
of supervision, application of additional measures) or appealing to a court for
additional measures, extension of the probation period, or revocation of probation
(imprisonment). According to the Probation Law, in all cases where the probationer
fails to fulfil the probation conditions imposed by a court without justifiable reason,
the probation officer must submit a request to the court for the revocation of pro-
bation. When probation conditions are not fulfilled for justifiable reasons (e.g.
disease, care of children, work, a car accident), the court can extend the probation
period. In cases where the probationer fulfils the conditions of probation but
Nikartas et al.
31
commits administrative misdemeanours or fails to comply with general rules of
probation, he or she may be subject to additional obligations (probation condi-
tions), which can be imposed only by a court at the request of the probation officer.
Where, after the imposition of additional obligations, the probationer commits an
administrative misdemeanour repeatedly or repeatedly fails to comply with the
general rules on probation, the probation officer must submit a request to the court
for the revocation of the probation.
Although administrative measures are not established in the law as sanctions for
probation violations, they are applied in practice. These are, in particular, mea-
sures to be taken in cases of non-compliance with the duties assigned by the pro-
bation officer, such as failing to arrive at the probation service on time or to
undertake the measures prescribed by the probation officer (e.g., behavioural
correction programmes). A warning is usually issued in cases of minor first-time
violations, particularly in the presence of justifiable reasons. Intensification of
supervision is also applied as an additional measure to sanctions imposed by the
court (except revocation of probation) or in cases when a court refuses the probation
officer’s appeal.
Literature review
A wide range of literature has identified various factors affecting probation officers’
discretionary decisions. On the one hand, researchers emphasize the correlation
between offenders’ characteristics and discretionary decisions. Numerous empiri-
cal studies reveal that legal factors (e.g. type of offence and conviction history) and
extra-legal factors (e.g. offender’s social-demographical characteristics and geo-
graphical features) are important in predicting the decisions made by criminal
justice practitioners (Anderson and Spohn, 2010; Ishoy and Dabney, 2018; Kochel
et al., 2011; Novak et al., 2011; Schulenberg, 2015; Steen and Opsal, 2007).
On the other hand, empirical evidence indicates that probation officers’ discre-
...
To continue reading
Request your trial