Evolution of Probation

California has gone through many changes regarding the role of Probation Departments over the years. To understand how the role of probation has changed and developed, a look at the history of probation in California is important.

Origin of Probation

In the United States, John Augustus is often referred to as the “Father of Probation”. In 1841, John Augustus convinced a judge in Boston to give him custody of a convicted offender, “a common drunkard”. He helped the offender get sober and returned him to court for sentencing appearing rehabilitated.

In 1903, the first Chief Probation Officer in California was named in Los Angeles County. Augustus C. Dobbs became the first chief.

In 1925, the Federal Probation Act of 1925 was enacted. The bill created federal and state systems of probation. They were based on the rehabilitation pioneered by John Augustus.

During the 1960’s there was a strong focus on rehabilitation. Similar to what evidence-based practices show now, there was a belief that each individual was different, and the sentence and treatment should be different for each person. The model was treatment-oriented.

In the 1970’s, there was a change in thinking. It was a period of believing that nothing works in the rehabilitation of an offender. This continued into the 1980’s with a model of probation that focused on control. Many jurisdictions took a zero-tolerance approach and the focus was on incarceration. It was the beginning of the development of intensive supervision programs.

Beginning around 2005, California Probation Departments began implementing evidence-based practices and the Principles of Effective Interventions. These practices were adopted because of their success at reducing recidivism across the juvenile justice system and criminal justice systems. Since the adoption of these practices, the number of people in juvenile detention facilities, camps and ranches, and other juvenile commitment facilities have been greatly reduced.

Key Milestones in Modern History of Adult Probation in California

Proposition 36

Proposition 36 was passed by the voters of the State of California and went into effect on July 1, 2001. Under Proposition 36, an individual convicted of a "nonviolent drug possession offense" would be sentenced to probation and required to complete a drug treatment program, instead of being sentenced to state prison, county jail, or formal probation without drug treatment. The measure defined a nonviolent drug possession offense as a felony or misdemeanor criminal charge for being under the influence of illegal drugs or for possessing, using, or transporting illegal drugs for personal use. The definition excluded cases involving possession for sale, productions, or manufacturing of illegal drugs. Individuals convicted of nonviolent drug possession offenses (with some exclusions) would be sentenced by the court for up to one year of drug treatment in the community and up to six additional months of follow-up care.

Funding for counties was eliminated by the state in Fiscal Year 2010-2011; however, the mandates for drug treatment still apply and counties mostly absorbed the costs. Counties throughout the state vary in how they address Proposition 36 offenders (i.e., drug court programs, specialized caseloads.

Senate Bill 678

The California Community Corrections Performance Incentives Act of 2009 is also known as SB678. The legislature designed the SB678 program to alleviate state prison overcrowding and save state general fund monies. These purposes were to be accomplished without compromising public safety by reducing the number of individuals on felony supervision (i.e., felony probation, mandatory supervision, post release community supervision) who are sent to state prison. Later, the funding formula was revised to also reduce the individuals on mandatory supervision and post release community supervision from being sent to state prison. SB678 established a system of performance-based funding that shares state general fund savings with county Probation Departments that reduce their probation failure rate. County Probation Departments must spend SB678 funds on the implementation or enhancement of evidence-based practices, including, but not limited to, risk and needs assessment, use of graduated sanctions, and provision of evidence-based treatment modalities such as cognitive behavioral therapy.

SB678 required each county to establish a Community Corrections Partnership to serve as an advisory committee to the Chief Probation Officer for the purpose of SB678 funding.

At the time SB678 was implemented, there was no state funding being invested in adult probation services. Probation Departments were very successful at reducing the number of individuals under supervision being sent to state prison, validating that this investment in probation services resulted in positive outcomes. A 10 year report about SB678 policy found the policy helped reduce prison revocations, saved the state over a billion dollars, and did not lead to increases in crime.

Public Safety Realignment

The Public Safety Realignment Act of 2011 (AB109) significantly changed the role of Probation Departments in California. The goal of the act was to reduce the population in state prisons and further reduce state funding in prisons. Each county was required by AB109 to establish a subcommittee of the Community Corrections Partnership (CCP), that was previously put in statute by SB678, called the Executive Committee. The Executive Committee is comprised of seven voting members and is chaired by the Chief Probation Officer. Additional Executive Committee members include the Presiding Judge of the Superior Court or his/her designee, the District Attorney, the Public Defender, the Sheriff, a Chief of Police, and either the Head of Social Services, the Head of Mental Health, or the Head of Alcohol and Substance Abuse Services.

Each county’s CCP developed a plan matching local resources and options that are funded by the state. The responsibility for incarceration and supervision of most low-level inmates and parolees was transferred to counties. Two new populations were realigned to county Probation Departments to supervise. First, those low-level inmates leaving prison, deemed as non-violent, non-serious and non-sex offenders, left prison on post release community supervision under the supervision of the Probation Department, rather than State Parole. Secondly, the definition of felony was revised to include specified lower-level crimes that would be punishable in jail or another local sentencing option for more than one year. The population that would serve their sentences in jail in lieu of prison would also be non-violent, non-serious, and non-sex offenders (non-registerable offenses pursuant to Penal Code Section 290). There were approximately 60 non-violent, non-serious, non-sex offenses that were excluded where individuals may continue to be sentenced to State Prison. The local prison sentence could be a straight sentence, meaning the individual was sentenced to all time in custody, with no period of supervision upon release. Or the individual could be sentenced to a split sentence that “split” the time between time in custody followed by a period of time on supervision by the Probation Department. These cases are referred to as mandatory supervision cases.

Proposition 47, the Safe Neighborhoods and Schools Act

Proposition 47 was passed by the voters of the State of California in 2014. Proposition 47 implemented three broad changes to felony sentencing laws. First, it reclassified certain theft and drug possession offenses from felonies to misdemeanors. Second, it authorizes individuals currently serving sentences for felony offenses that would have qualified as misdemeanors under the proposition to petition courts for resentencing under the new misdemeanor provisions. Third, it authorizes individuals who have completed their sentences for felony convictions that would have qualified as misdemeanors under the proposition to apply to reclassify those convictions to misdemeanors.

Pretrial/Bail Reform

The Chief Justice of California implemented a Pretrial Detention Reform workgroup in 2016. However, prior to this reform effort, there were already many Probation Departments throughout the state that were operating pretrial programs pursuant to authority granted to them by their superior court. The guiding principles of the Chief Justice’s Pretrial Detention Reform workgroup included:

• Pretrial custody should not occur just because the person cannot afford bail.
• Public safety was the fundamental consideration when determining pretrial custody.
• The individual should be released from custody as early as possible based on a pretrial assessment of risk to public safety and the risk of returning to court.
• Mitigate the risk of implicit bias in decision-making.
• Reform recommendations would consider local resources.
• Non-financial release options should be considered.
• Establish consistent practices for making pretrial release and supervision decisions.

The workgroup completed their work in 2017. Many Probation Departments started to operate pretrial programs and the court subsequently funded a pilot program for counties to implement pretrial programs following these principles. In 2018, Senate Bill 10 was passed, which abolished money bail and moved to a pretrial release system. However, SB 10 was never enacted as a referendum was qualified for a statewide ballot initiative and the voters rejected it in the 2020 general election.

Probation Departments operate pretrial programs throughout the State and follow the guidelines set by the workgroup. Although these programs vary, pretrial programs are used by Probation Departments so that detention is reserved for those individuals that pose a risk to the community or are at-risk for failure to appear in court. Utilizing a validated pretrial assessment tool can assist in determining whether individuals should be released or remain detained pending their court proceedings. Pretrial programs are used to assess the likelihood of pretrial failure, provide information to the court for release decisions, and monitor individuals in the community to mitigate the risk of pretrial failure (failure to appear in court and/or commits a new offense). Pretrial monitoring provides a range of alternatives to detention, allowing lower-risk individuals to remain at home in the community while going through the court process. The goal of a pretrial monitoring program is to provide a continuum of services based on the individual’s risk to reoffend and likelihood to appear in court.

Assembly Bill 1950

Assembly Bill 1950 was passed in 2020 as a probation reform bill. The bill amended Penal Code section 1203(a). The amendment changed the term of probation for a misdemeanor limiting it to one year. It also amended PC 1203.1 to reduce the term of probation for felonies to a maximum of two years. This changed the law which was previously a three to five year term that was determined by court discretion. Most felonies around the state were previously three year grants of formal probation; however, there were also counties where the common felony grant of probation was five years. The bill did not impact the set period of formal probation for certain offenses such as domestic violence and driving under the influence. It also does not apply to certain violent offenses such as rape, arson, and assault. Exceptions are for financial crimes involving more than $25,000; crimes that “includes specific probation lengths within its provisions”; and, violent felonies as defined by Section 667.5 of the Penal Code.

Key Milestones in the Modern History of Juvenile Probation in California

Separation of Child Welfare from Juvenile Probation/Child Welfare

Probation Departments were responsible for the investigation of child abuse investigations and removal of children from their abusive homes until the mid 1980’s. In 1984, county board of supervisors voted to move that responsibility to Child Welfare Services. This change was complete by 1985. Since that time, probation has been responsible for WIC 601 and WIC 602 youth while child welfare services is responsible for all youth under WIC 300. Currently, cases can be shared between the two departments in court cases where the judge orders dual jurisdiction.

Deinstitutionalization of Welfare and Institutions Code 601 Population

Historically, youth could be detained in a juvenile detention facility for charges under WIC 601 and WIC 602. This resulted in youth being detained for status offenses such as truancy or curfew violations. In 1996, it was determined that status offenders were better served outside of a custodial setting and the code section was revised to reflect this change. WIC 207 states youth brought into detention strictly for a WIC 601 charge may not be detained in a secure setting except for short exceptions for finding parent(s) or guardian(s) or checking for outstanding warrants. If detained, the youth may not come into contact with those youth being held on WIC 602 charges.

Challenge Grants

Senate Bill 1760 was passed in 1996. This bill created the Juvenile Crime and Enforcement Accountability Challenge Grant Program. Every county received a planning grant to prepare a comprehensive multi-agency juvenile justice plan for the competitive grants subsequently awarded for the purpose of reducing juvenile crime and delinquency. A county that applied for a grant under this bill was required to have a multiagency Juvenile Justice Coordinating Council (JJCC). The council prepared a plan following an assessment of their individual jurisdiction which took into account crime rates, existing services available, and neighborhoods with higher crime. Funding was originally given for three years. Additional funding became available through Senate Bill 681.

California Youth Authority Sliding Scale

The California Youth Authority, now known as the Division of Juvenile Justice (DJJ) under the California Department of Corrections and Rehabilitation, began charging counties for a youth committed to the state facility. Starting in 1947, counties were charged $25 per month, per youth, in the facility. The rate increased in 1996 and was based on a rating scale. Youth entering the system were categorized one through seven based on the seriousness of their offense. The rate was increased for those in category one through four from $25 per month to $150 per month. The goal being to reduce those youth with less serious offenses from entering a state facility. Category five through seven were on a sliding scale. Eventually, in 2007, the sliding scale was changed to a standard rate of $24,000 per year. Youth who entered DJJ from adult criminal court were not billed to the county. Additionally, certain offenses also ensured the county not pay for care in a state facility.

Juvenile Justice Crime Prevention Act (JJCPA)

The Crime Prevention Act of 2000 (Chapter 353) later referred to as the Juvenile Justice Crime Prevention Act provided a stable funding source for local juvenile justice programs aimed at curbing crime and delinquency among at-risk youth and juvenile offenders (Government Code Section 30061(b)(4)).

JJCPA funds are available to address a continuum of responses including prevention, intervention, supervision, and incarceration. State law requires JJCPA-funded programs be modeled on strategies that have demonstrated effectiveness in curbing juvenile delinquency. Beyond that, counties have broad discretion in how they use JJCPA funds to support and enhance their juvenile justice systems.

To encourage coordination and collaboration among the various local agencies serving at-risk youth and young offenders, JJCPA requires a county Juvenile Justice Coordinating Council (JJCC) to develop and modify the county’s comprehensive multiagency juvenile justice plan. The JJCC is chaired by the county’s Chief Probation Officer and its members include representatives from the district attorney’s office, the public defender’s office, the sheriff’s office, the board of supervisors, the department of social services, the department of mental health, a community-based drug and alcohol program, a city police department, the county office of education or a school district, an at-large community representative, and representatives from nonprofit community-based organizations providing services to youth. The JJCC is required to meet annually to review and update the county’s comprehensive multiagency juvenile justice plan.

Proposition 21

Proposition 21 was passed by the voters in 2000. This proposition impacted by juvenile justice system and criminal court in a variety of ways. For juvenile justice, there were changes on how youth could be moved to adult criminal court. The new law gave the district attorney discretion to file charges in criminal court without the permission of the juvenile court. There were also certain charges that were not eligible for juvenile court for youth aged fourteen and older. Probation had the authority to decide which youth to maintain in detention after an arrest. Proposition 21 took away that discretion in about thirty types of offenses and the youth were required to remain in detention until they were in court at the Detention Hearing. Another change for juvenile probation was that removal of the ability to have informal supervision in felony cases. A new section was added for deferred entry of judgment. Lastly, there were changes to juvenile confidentiality. This law barred the sealing of records for those fourteen and older who committed a serious or violent offense. The youth would have to wait six years before being eligible to request record sealing.

Prop 21 also changed laws in the adult criminal justice system. This law increased the prison terms for certain gang offenses and defined a gang. Additionally, there were longer sentences provisions for serious and violent felonies and these would count as a strike under the three strikes law.

Senate Bill 81

SB 81 was passed in 2007. This realigned of the Division of Juvenile Justice (DJJ), previously known as the California Youth Authority. This bill reduced the number of youth placed in DJJ by restricting the offenses eligible for placement in a state facility. Only the most serious offenses were eligible for DJJ and included WIC 707(b) offenses and some sex offenses. This bill also restricted those youth on parole from DJJ from returning to the facility for a new offense. If the new offense was not eligible for DJJ, the youth was held in a county facility. Because more youth were being held locally, the Corrections Standard Authority, now known as the Board of State and Community Corrections, could authorize a county to house those who were 19 up until their 21st birthday in a juvenile facility and allow contact with others in the facility. Counties must request permission to do this.

SB 81 also created the Youthful Offender Block Grant to fund counties to enhance their capacity for appropriate rehabilitative and supervision services for youth. These funds were given annually after a county submitted a plan for the use of the funds.

Following the enactment of SB 81, there was a further decline in the number of commitments to DJJ and more innovative programs being developed at the county level.

Division of Juvenile Justice (DJJ) Parole Realignment

Prior to 2010, youth who had been committed to DJJ were assigned to a state parole agent upon their release. After 2010, parole for these youth or young adults was transferred to county Probation Departments. As part of the Fiscal Year 2010-2011 budget package, the state realigned juvenile parole from the state to the counties. The Juvenile Reentry Grant was established to provide funding to the counties based on the number of parolees under their supervision and the number of parolees held in county institutions for violating their supervision.

Continuum of Care Reform

California Child Welfare Services and Probation Departments began implementing the Continuum of Care Reform after the passage of Assembly Bill 403 (AB 403). Passed in 2015, this bill made significant changes to the foster care system with the goal of improving the lives of youth who required out-of-home care. The assessment process was improved so when a youth was removed from the home, the goal was the youth’s first placement would be their only placement. The bill stated youth are to be in the most home-like setting if removal was necessary. Foster homes, now known as resource families, receive additional training to be able to care for these youth with the hope of less placement changes due to behavioral issues. For those youth who require more intensive services, short-term intensive programs were developed to provide intensive programming with the goal of returning the youth back into a family setting as quickly as possible. These short-term residential therapeutic programs (STRTP) were designed for six-month programs although additional time could be added with an order from the juvenile court judge. Additionally, counties were to provide more programs to youth in care to assist in the transition back home. Child welfare and probation staff were also given additional training to assist in the care of out-of-home youth. Counties developed children and family teams to inform the process of placement and services to youth in out-of-home care or youth at-risk of out-of-home care.

Proposition 57

Proposition 57, the Public Safety and Rehabilitation Act, was signed in 2016. Part of the proposition looked at those in the California prison system and increased the ability for offenders to earn credits towards discharge by attending educational, vocational, and rehabilitative programs.

Additionally, changes were made in juvenile prosecution. When Proposition 21 was passed in 2000, the district attorney had discretion in certain cases to direct file in adult criminal court. With the signing of Proposition 57 in 2016, it became the responsibility of the judge to determine if a case could be filed in adult court. The district attorney could request the court consider moving the case to adult court. The Probation Department is then ordered to complete a Transfer Report giving the judge critical information to make the decision on where the case will be filed. The court considers all five criteria prior to making the ruling. These criteria are:

1. the level of sophistication used in commission of the crime;
2. whether the youth can be rehabilitated prior to the expiration of the juvenile courts jurisdiction;
3. the youth’s previous delinquent history;
4. the success of previous efforts to rehabilitate the youth; and
5. the circumstances and gravity of the offense.

The Transfer Report must include information on all five criteria as well as the social history of the youth. Reports can also include a written statement by the victim. The court may also order the probation officer to make a recommendation to the court after looking at all the information gathered.

Family First Prevention Services Act (FFPSA)

In 2018, the Family First Prevention Services Act (FFPSA) was signed into law. The FFPSA enhances support services for families to help children remain at home and reduce the use of unnecessary congregate care placements by increasing options for prevention services, increased oversight and requirements for placements, and enchasing the requirements for congregate care placement settings.

Closure of Division of Juvenile Justice/Senate Bill 823 Realignment

Senate Bill 823 was signed by the governor in 2020. Implementation will be completed over time with the goal of completely closing the Division of Juvenile Justice (DJJ). Starting July 1, 2021, the state will shift responsibility of all youth adjudicated by the court to county governments. No youth may be transferred to DJJ after that date except in a very few instances. Each county is expected to convene a multidisciplinary group that will build the county plan. Each county will determine the best placement options for the youth in their community and must designate a facility for youth who previously would have been placed in a state facility. Counties may develop multi-county programs. A state funding stream will go to counties for this effort. The age of jurisdiction for youthful offenders changed from twenty-five to twenty-three in most cases. The Office of Youth and Community Restoration will be developed at the state level to assist with this transition.