Twilight Zones in Probation

Abstract

In the area of probation dealing with restitution there seems to be much confusion among probation officers. Some workers find it an irritant and negate the value of restitution as a tool in the treatment of a certain type of offender on probation; some employ it haphazardly vaguely conceiving it as a means of punishment only; and others find in it elements of practical value for rehabilitation purposes. The writer includes himself among the last and has briefly advocated an integration of restitution in the probation services.' The ensuing article, therefore, is a follow up appraisal in which it is hoped some light will be shed on the causative factors behind this confusion. It will attempt to show that there is a zone in the Law, the liberal interpretation of which, can help materially to reduce this confusion and enable probation and restitution to be employed more effectively than they are now. The law in our democracy, as a living instrument of the people, early recognized the need for a dichotomy of function in order to arrive at equal justice under the law. There was thus established with the development of the law, a civil branch and a criminal branch of jurisprudence. With time, each developed along parallel lines, a code of procedure to fit its needs. But the prime consideration that remained throughout their respective complex growths was that all matters civil be brought before the Civil Courts, all matters criminal be brought before the Criminal Courts. However, true to all living instruments, there never has been rigid, definitive structural growth so that there are times when matters that appear to be civil have criminal elements and vice versa. Those cases which fell into this penumbra of the law where the criminal and civil elements merge, have too often been placed on the Criminal Calendars. Seldom has a long term perspective been brought to bear upon the problem nor any reflection upon the implications to society and the offender of permitting these cases to be made criminal offenses rather than civil offenses. In these