Ca2 Reviewer 1
Ca2 Reviewer 1
Introduction
At present, correction as a pillar of our justice system is confronted with so
many problems and controversies. Among of its palpable problems are overcrowded
jails and prison facilities. Despite of public clamor, the government cannot afford to lock-
up all convicted individuals. Society has all the reasons to condemn convicts but in so
doing, they are just pushed for the continuance of their unlawful activities. Study shows
that many convicted persons who have been incarcerated in jails or prisons, when they
return to community are mostly reengaged to the same kind of offense or to some other
type of anti-social activities which if not with the same degree with the first offense, is
more serious.
The occurrence of prison violence, whether sexual or non-sexual assaults;
and economic, psychological and social victimization helped to support the
conclusion that there must be a better way of correcting criminals. The community is the
only place in which the correctional process can be successfully completed. Just as the
community provided the original setting for the crime, so it must provide the ultimate
testing ground for the rehabilitation process. All the resources of the community need to
be mobilized to help offenders restore family ties, obtain employment and education,
and discover their place in society.
It is also an accepted fact that putting all convicted individuals in jail or prison
facilities will definitely prejudicial to the government considering that they consume so
much of government funds and resources.
These are all the common reasons for the promotion of the community-based
correction approach in lieu of institutional corrections. Community-based
corrections are non-institutional based corrections which are being considered
as the best alternative for imprisonment. It is a non-incarcerate system of correction.
It is described as a method of rehabilitating convicted felons without a need of
placing them into jail or prison facilities. It is likewise referred to any sanctions in
which convicts serve all or a portion of their sentence in the community. It is a program
which deal with supervised rehabilitation of convicts within the community. The
idea behind non-institutional correction programs is that, most convicts can be
effectively held accountable for their crimes at the same time that they can fulfill
legitimate living standards in the community. Most convicts do not pose an imminent
danger to themselves or to others and can therefore remain in the community to
maintain relationships. Community-based correctional programs embrace any
activity in the community directly addressed to the offender and aimed at helping him or
her to become a law-abiding citizen.
Prison and jail facilities should be the last resort for correctional problems.
Advantages of Diversion
1. It contributes to decriminalization by reducing involvement in institutional
aspect of corrections.
2. It will prevent social stigma – criminal record is a serious impediment to
rehabilitation.
3. It will prevent collapse of the criminal justice system – this is because few are
actually prosecuted which may result to the loss of faith by the citizen in the
system.
4. It offers an alternative to the counter-productive practice of incarceration –
aside from being costly, prison cannot check recidivism.
5. It enables the community resources to be more widely employed in the
correctional endeavor.
Disadvantages of Diversion
1. Diversion by court gives a dangerous degree of discretion to the judiciary
since there are no established guidelines.
2. It could be subverted by individuals in the system to serve purely personal
objectives.
3. The possibility of screening out serious offenders instead of the lesser
offenders for whom diversion is more appropriate.
Review Questions:
Essay (20 points each)
1. In your own understanding, explain the difference as well as the advantages
and dis-advantages between Institutional Correction and Community-Based
Correction.
Topic 2 - PROBATION
Meaning of Probation
Probation – is derived from the Latin word “probare” which means to prove or
to test.
- It was coined by John Augustus.
- is a disposition, under which a person who is convicted of a criminal
offense is released subject to the conditions imposed by the
sentencing court and to the supervision of a probation officer.
- it is also a privilege granted by the court to a person convicted of a
criminal offense to remain in the community instead of actually going to
jail/prison.
Is a Probation is a right?
- Probation is a mere privilege and as such, its grants rests solely upon the
discretion of the court.
Predecessors of Probation
1. Money Compensation
Which is a precursor of our use of fines and restitution today, introduced
by the Laws of Babylon, Greece and Rome, for those crimes which did not affect
the safety of the state. Slaves having nothing of value to offer as compensation
received unmitigated cruel punishments.
2. Cities of Refuges
Sanctuaries where the accused was safe pending an investigation of his
criminal responsibility, introduced by the Jewish law for those who killed without
--premeditation. The Jews also gives some consideration for the individual in
lesser penalties for impulsive offenses than for planned murder.
3. Benefits of Clergy
Seems to be the earliest device for softening brutal severity of
punishment. Dating back to reign of Henry II in the 13 th century originated in a
compromise with the church which had maintained that a member of the clergy
brought to trial by a King’s Court might be claimed from that jurisdiction by the
bishop of chaplain representing him, on the ground that he, the prisoner, was
subject to authority of the ecclesiastic courts only.
Note: The benefit resulting from this compromise which maintained
jurisdiction in the King’s Court was greater leniency in sentencing, and
particularly escapes from death penalty.
4. Judicial Reprieve
A temporary withholding of sentence, practiced by the English Court in
early 17th century, where they grant reprieves to prisoners under sentence of
death on condition that they accept deportation/transportation.
5. Banishment
Any description of the treatment of the crime in England must include
the system of transportation to her colonies, which grew from the ancient
practice of banishment and flourished for more than 200 years as a principal
method of disposing of offenders
6. Recognizance
The direct ancestors of probation, means “binding over for good
behavior”. An ancient practice developed also in England in the 14 th century,
originated as measure of preventive justice, involving an obligation of promise,
sworn to under court order by a person not yet convicted.
Note: Sureties or bail were usually required and the person who
stood surety had the power and the duty to enforce the conditions and
return the offender to court if he committed an offense during the specified
period or failed to comply with other conditions of his release.
Evolution of Probation
- Harsh Punishment were imposed on adults and children alike for
offences that were not always of a serious nature during the Middle ages.
Sentences such as branding, flogging, mutilation, and execution were common,
during the time of King of Henry VIII, for instance, no less than 200 crimes were
punishable by death, many of which were minor offenses.
- This harshness eventually led to discontent in certain progressive
segments of English society that were concerned with the evolution of the justice
system. Slowly but resolutely, in an effort to mitigate these inhumane
punishments, a variety of measures were devised and adopted.
- Eventually, the courts began the practice of “binding over for a good
behavior,” a form of temporary release during which offenders could take
measures to secure pardons or lesser sentence. Controversially, certain courts
began suspending sentences.
Pioneers in the field of Probation
Two main individuals closely associated for the establishment of Probation;
1. Matthew Davenport Hill (1792-1872) ,an 18th century English barrister and
judge.
- Father of Probation in England
- English lawyer and penologist
- Born on the 6th of August 1792, at Birmingham
- As a young professional in England, Hill had witnessed the sentencing
of youthful offenders to one-day terms, on the condition that they will
be returned to a parent or guardian who could closely supervise them.
- When he eventually became the Recorder of Birmingham, a judicial
post, he used a similar practice for individuals who did not seem
hopelessly corrupt. If offenders demonstrated a promise for
rehabilitation, they were placed in the hands of generous guardians
who willingly took charge of them.
- Hill had police officers pay periodic visits to these guardians in an effort
to track the offender’s progress and keep a running account.
2. John Augustus (1785-1859), a 19th century Boston- boot maker.
- Father of Probation
- Augustus was born in Woburn, Massachusetts in 1785.
- Recognized as the first true probation officer.
- By 1829, he was a permanent resident of Boston and the owner of a
successful boot-making business.
- In 1841, John Augustus attended the police court to bail out a
“common drunkard”, the first probationer. The offender was ordered to
appear in court three weeks later for sentencing. He returned to court a
sober man, accompanied by Augustus. To the astonishment of all in
attendance, his appearance and demeanor had dramatically changed.
- Augustus thus began an 18-year career as a volunteer probation
officer. Not all of the offenders helped by Augustus were alcohol
abusers, nor were all prospective probationers taken under his wing.
Close attention was paid to evaluating whether or not a candidate
would likely prove to be a successful subject for probation. The
offender’s character, age, and the people, places, and things apt to
influence him or her were all considered.
- He was subsequently credited with the founding the investigation
process, one of the three main concepts of modern probation, the
other two being intake and supervision. Augustus, who kept detailed
notes on his activities, was also the first to apply the term “probation” to
his method of treating offenders.
- By 1858, he had provided bail for 1,946 men and women. Reportedly,
only ten of this number forfeited their bond, a remarkable
accomplishment when measured against any standard. His reformer’s
zeal and dogged persistence won him the opposition of certain
segments of Boston society as well as the devotion and aid of many
Boston philanthropists and organizations.
- The first probation statute, enacted in Massachusetts after his death in
1859, was widely attributed to his efforts.
Following the passage of that first statute, probation spread gradually
throughout the United States. The juvenile court movement contributed greatly to
the development of probation as legally recognized method of dealing with
offenders. The first juvenile court was established in Chicago in 1899.
Formalization of the intake process is credited to the founders of the Illinois
juvenile court. Soon after, thirty states introduced probation as a part of the
juvenile court procedure. Today, all states offer both juvenile and adult probation.
4. 1975
-
After technical hearings over a period of six months, the draft decree
was presented to a selected group of 369 jurists, penologists, civic
leaders and social and behavioral scientists and practitioners
sponsored by the National Police Commission and University of
the Philippines Law Center. The group overwhelmingly endorsed
the establishment of an Adult Probation System in the Country.
5. July 24, 1976
- Presidential Decree No. 968 also known as Adult Probation law of
1976 was signed into Law by the late President Ferdinand E.
Marcos during the last day of the first national conference on Crime
Control held at Camp Aguinaldo.
- January 3, 1978 – effectivity of the application of the substantive
provisions concerning grant of probation.
6. The start of the probation system in 1976-1977 was a massive undertaking
during which all judges and prosecutors nationwide were trained in probation
methods and procedures; administrative and procedural manuals were
developed; probation officers recruited and traineparoled, and the central agency
and probation field offices organized throughout the country. Fifteen selected
probation officers were sent to United States for orientation and training in
probation administration. Upon their return, they were assigned to be trainers for
the newly recruited probation officers.
7. January 3, 1978
- The. As more probation officers were recruited and trained, more field
offices were opened.
Amendments:
- PD 968 – took effect in July 24, 1976 but implemented on January 3, 1978
1. PD 1257 – took effect on December 1, 1977 – established a prolong but
definite period during which an application for probation may be granted by the trial
court.
2. BP 76 - took effect on June 30, 1980 - amended Section 9.A. The maximum
sentence covered by the Adult Probation Law was raised from 6 years to 6 years and 1
day.
3. PD 1990 – took effect July 15, 1986 – amended Secs. 4 and 9 of PD 968:
Section 4 – The application for probation should be filed within the period
for perfecting an appeal (15 days) and prohibits the grant of probation to a
defendant who has perfected an appeal from his judgment of conviction.
Section 9 – The maximum sentence covered by the Adult Probation Law
was reduced and placed to its original text (maximum of 6 years) and all
the crimes against pulic obrder were placed out of the coverage of
probation.
Advantages of Probation
The implementation of the probation law will confer benefits and advantages not only
the society in general but more so on the part of the offender and the government.
1. For the society
- The philosophy of probation is that the community is responsible for
crime and its causation, that individuals can change and deserve a
second chance, and that it is for the greater good of society that
offenders not be summarily eliminated from productive life but brought
back to its fold in the quickest and least traumatic way possible.
Concretely, society is benefited by the probation system owing to the
continued presence therein of erring individuals who, notwithstanding a
previous error are, expected to have turned from their errors and to
continue serving the society. A different situation would result in the
incarceration of valuable human resources.
2. For the victim
- Probation provides restitution in favor of the victim. Hence, justice is
considered served.
3. For the convicts
- In the absence of probation as an alternative to incarceration, a
convicted individual would accumulative suffer the loss not only of
family contacts and job, but also with the mass treatment in prison,
loss of privacy or any privileges requiring exercise of personal freedom
of choice. In addition to stigmatization, disruption of normal familial and
other meaningful relationship, such removal from productive
participation in the labor force results in deprivations for the loved ones
and innocent associates of the convict.
4. For the family of the convicts
- It does not deprive the children of their parents and a spouse for
her/his husband or wife hence, it maintains the family united.
5. For the government
The confinement of all offenders in prisons and other institutions with
rehabilitation programs constitutes an onerous drain on the financial resources of
the country. Probation is thus a less costly alternative to the imprisonment of
offenders. Adoption of the system which humanizes criminal law and penology
also demonstrates the governments’ adherence to the principle of human rights.
One other tangible benefit of probation is that it would help relieve congestion in
our jails and other institutional c
Nature and Character of Post – Sentence Investigation Report
- - It is a recommendatory in nature and persuasive in orrections.
character addressed to the sound discretion of the trial court considering that the
denial or grant of probation is a judicial function.
Obligations of Probationer:
1. Present himself to the probation officer within 72 hours from receipt of probation
order.
2. Report himself to the probation officer at least once a month during the period of
probation.
3. Not to violate the conditions of his 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.
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 (PSIR) is submitted by the probation
officer to the court 6within 60 days.
6. The court grants or denies the petition for probation within 15 days upon
receipt of the PSIR.
(cirsuerary) asking the trial court why they denied your petition
May the offender be released while his application for probation is pending?
- Pending submission of the investigation report and the resolution of the petition,
the offender may be allowed temporary liberty under his bail filed in the criminal case or
under recognizance.
Outside Travel
1. Probation officer authorized the probationer to travel outside the area of the
operation for a period of 10 days but not exceeding 30 days;
2. If 30 days, Probation must file 5 days before travel a request to travel outside
for the approval of Probation authorities;
3. If more than 30 days Probation Authorities shall recommend for Court
Approval.
Change of Residence
1. The probationer must file a request for change of residence at the city or
provincial Parole and Probation officer to the court approval.
2. If approved, The RTC which has jurisdiction over the place shall have full control
of the probationer.
Termination of Probation:
- After the probationer has satisfactorily completed the probation period, the
Probation Officer shall submit termination report to the court containing the ff:
o condition of probation
o program of supervision and response to treatment
o recommendation
Notes to remember:
Teodulo C. Natividad – Father of Probation in the Philippines.
First Probation Act of 1935 – (Act 4221) – August 7, 1935 was challenged in the
case of People vs. Vera, O.G. 164 (Vol. 37) on 3 grounds:
1. That said case act encroaches upon the pardoning power of the
executive;
2. That said act constitutes an undue delegation of legislative power; and
3. That said act denies the equal protection of the laws.
July 24, 1976 – PD No. 968 or Adult Probation Law was signed into law by then
Pres. Ferdinand E. Marcos.
3 main reasons why PD 968 was enacted:
1. One of the major goals of the government is to establish a more
Fenlightened and humane correctional system that will promote the
reformation of offenders and thereby reduce the incidence of
recidivism;
2. The confinement of all offenders in prisons and other institutions with
rehabilitation programs constitutes an onerous drain on the financial
resources of the country; and
3. There is a need to provide a less costly alternative to imprisonment of
offenders who are likely to respond individualized community
treatment programs.
P.D. 1257
- 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 (Administrative Code of 1987)
- Renamed the Probation Administration into Parole and probation Administration
Effectivity of Probation
- Upon its issuance
Finality
- The order of the court granting or denying probation SHALL NOT BE
APPEALABLE.
Vision
A model component of the Philippine Correctional System that shall enhance the
quality of life of its clients through multi-disciplinary programs and resources, an efficient
organization, and a highly professional and committed workforce in order to promote
social justice and development.
Mission
To rehabilitate probationers, parolees, and pardonees and promote their
development as integral persons by utilizing innovative interventions and techniques
which respect the dignity of man and recognize his divine destiny.
Mandate
The Parole and Probation Administration is mandated to conserve and/or redeem
convicted offenders and prisoners who are under the probation or parole system.
Goals
The Administration’s programs set to achieve the following goals:
- Promote the reformation of criminal offenders and reduce the incidence of
recidivism, and
- Provide a cheaper alternative to the institutional confinement of first-time
offenders who are likely to respond to individualized, community – based
treatment programs.
Functions
To carry out these goals, the Agency through its network and regional and field
parole and probation offices performs the following functions:
- To administer the parole and probation system
- To exercise supervision over parolees, pardonees and probationers
- To promote the correction and rehabilitation of criminal offenders
Core Values
a. Performance
- Efficient and effective accomplishment of tasks and targets, beginning with
individual officials and employees and throughput all units in the organizational
hierarchy, linked coherently and progressively toward the Agency Mission,
Vision, and Strategic Goals.
Teamwork – Working together to achieve shared goals
Resourcefulness and Innovativeness – exploring resources with
ingenuity, optimizing opportunities with creativity.
b. Professionalism
- High level of proficiency on the job resulting from mastery and conscientious
application of appropriate knowledge and skills, honed by sound judgment, self-
discipline and unceasing striving for excellence, and founded on a code of
conduct that respects the dignity of clients and fellowman.
Role Modeling – Serving and inspiring by example
Professional Excellence – achieving high standards for ethical and
quality service.
c. Accountability
- inherent obligation of every official and employee to answer for decisions, actions
and results within his/her authority, including proper and effective utilization of
resources in support of Agency policies and programs, with timely, complete and
accurate disclosure in required reports.
Responsibility – achieving expectations, answering for results.
Honesty and Integrity – being upright and transparent in transactions
and relations.
Service Objectives
1. To provide the courts with relevant information and judicious recommendations
for the selection of offenders to be placed on probation.
2. To provide the Board of Pardons and Parole with necessary and relevant
information which can be used in determining a prisoner’s fitness for parole or
any form of executive clemency
3. To provide the Dangerous Drugs Board with pertinent information and prudent
recommendations for the determination of first-time minor drug offenders to be
placed on suspended sentence.
4. To effect the rehabilitation and integration of the probationers, parolees,
pardonees, and first-time minor drug offenders as productive, law-abiding and
socially responsible members of the community.
5. To prevent recidivism and protect the community through a well-planned
supervision of probationers, parolees, pardonees, and first-time minor drug
offenders.
6. To make use of innovative, and financially and technically feasible projects to
uplift the moral, spiritual, and economic condition of probationers, parolees,
pardonees, and first-time minor drug offenders by utilizing available community
resources as much as possible.
7. To continuously assess and improve professional performance in post-sentence,
pre-parole/executive clemency, and suspended-sentence investigation, case
management, and other related work.
8. To periodically review the Probation Law and its implementing rules so as to
reconcile the same with the evolving realities in the field.
9. To assiduously observe and uphold the professional ethics in the delivery of
services.
Administrative Objectives
1. To optimize operations through
a. Maximize functioning of existing units according to their respective duties.
b. Systematic expansion of services, according to the demands of
probation work and available resources.
c. Judicious utilization of limited agency resources so as to obtain desired
results in the best manner possible with the least expenditures of time,
efforts, and money.
2. To achieve a united approach to agency goals through integrated planning and
constant coordination among all units.
3. To develop a more efficient and up-to-date system for the collection, collation
and analysis of data relative to probation, parole and suspended sentence
caseloads, and their management.
4. To recruit qualified employees and volunteer aides, and to promote their
continuing professional development.
5. To continuously improve staff and line service through adequate personnel
supervision, relevant research, and periodic evaluation.
6. To generate greater public and inter-agency support for probation through an
integrated and systematic public information program.
7. To actively participate in the government’s jail decongestion program, and in this
connection, to give priority to detention prisoners in our public information drives.
8. To cooperate and coordinate with other agencies of the government in the
accomplishment of national program thrusts.
Review Questions:
Essay (25 points each)
Topic 4 - PAROLE
Parole, defined
- It refers to the conditional release of a convict from a correctional institution after
he serves the minimum term of prison sentence.
- The release of prisoners before the expiration of his maximum sentence.
I
The 1957 National Conference on Parole has defined it as
- “a method of selectively releasing an offender from an institution prior to
completion of his maximum sentence, subject to conditions specified by the
paroling authority.
- a method whereby society can be protected and the offender can be provided
with a continuing treatment and supervision in the community.”
Act 4103
- “An Act to provide for an Indeterminate Sentence and Parole for all persons
convicted of certain crimes by the Courts of the Philippine Islands; to create a
Board of Indeterminate Sentence and to provide funds therefor; and for other
purposes.”
Act 4203
-Created the Board of Pardons and Parole.
Principles of Parole
- The government extends to the convicts a privilege by releasing them from
prison before their full sentence is served.
- The government enters a release contract with the convicts in exchange for their
promise to abide by certain conditions.
- Convicts who violate the law or the conditions of parole can be returned to prison
to complete their sentences.
- The government retains control of parolees until they are dismissed from parole.
Terms to Remember
- Administration – refer to the Parole and Probation Administration.
- Administrator – refer to the administrator of Parole and Probation
Administration.
- Board – refers to the Board of Pardons and Parole.
- Carpeta – refers to the institutional record of an inmate which consists of his
mittimus or commitment order issued by the court after conviction, the
prosecutor’s information and the decisions of the trial court and appellate court, if
any; certificate of non-appeal, certificate of detention and other pertinent
documents of the case.
- Client – refer to a pardonee/parolee who is place on supervision.
- Director – refer to the Director of the Bureau of Corrections.
- Pardonee – refer to a person who is released on conditional pardon.
- Parole – refer to the conditional release of an offender from a penal institution
after he has served the minimum period of his prison sentence.
- Parolee - refer to a person who is released on parole.
- Parole Supervision – refers to the supervision/surveillance by Probation and
Parole Officer of a parolee.
- Prison Record – refers to the information concerning an inmate’s personal
circumstances, the offense he committed, the sentence is imposed, the criminal
case number in the trial and appellate courts, the date he commenced serving
his sentence, the date he was received for confinement, the place of
confinement, the date of expiration of the sentence, the number of previous
convictions, if any, and his behavior or conduct while in prison.
- Release Document – refers to the “Discharge on Parole” issued by the Board of
Pardons and Parole.
Inception of Parole
- Prior to the mid-nineteenth century most offenders were sentenced to flat or
determinate sentences in prison. Under this type of sentencing, an offender
received a specific amount of time to serve in prison for a specific crime. This
created a major problem when prisons became crowded. Governors were forced
to issue mass pardons or prison wardens had to randomly release offenders to
make room for entering prisoners.
- Credit for developing early parole systems is usually given to an Englishman,
Captain Akexander Macanochie, and an Irishman, Sir Walton Crofton.
Pre-Parole Investigation
- The Administration has been authorized by the Board to conduct pre-parole
investigation of deserving city, provincial and national prisoner confined in the
city and provincial jails, the national penitentiary and penal colonies, whenever
their best interests and that of justice will be served thereby, and to submit
reports of said investigation at least 60 days before the expiration of the minimum
sentences of the prisoners concerned.
Procedure
1. Review upon the petition or motu propio: forms and contents of the petition:
a. That the prisoner’s case is eligible for review by the board.
b. That he is not disqualified from being granted parole.
2. Transmittal of carpeta and prison record by the Director of BuCor or Warden at
least one month prior to the date when his case shall be eligible for review.
3. Publication of Names of Prisoners being considered for Parole in a newspaper of
general circulation of those convicted of heinous crimes or those sentenced to
reclusion perpetua or life imprisonment and whose sentence has been committed
for release on parole.
4. Notice to offended party or his immediate relatives, personally or by registered
mail and given 30 days from notice within which to communicate their comment
to the Board regarding the contemplated grant of parole to the prisoner.
Transmittal of Certificate of Final Release and Discharge – the Board shall forward
a certified true copy of the Certificate of Final Release and Discharge to the parolee, the
court which imposed the sentence, the PPO concerned, the BuCor, the NBI, the PNP
and the Office of the President.
1. Petition, contents and endorsement
2. Time and form of application
3. Transmittal of carpeta and prison records
Review Questions:
Essay (25 points each)
1. What is the composition of the Board of Pardons and Parole and their
respective responsibilities?
Pardon, Defined
Pardon is a form of executive clemency granted by the President of the
Philippines as a privilege extended to convict as a discretionary act of grace.
- It is an act of grace and the recipient of pardon is entitled to it as a matter of right.
- The exercise of pardon is vested in the executive, is discretionary and is not
subject to review or judicial notice by the court. Neither does the Legislative
Branch of Government have the right to establish condition nor provide
procedures for the exercise of the same. Hence, it is vulnerable for abuse by the
executive.
- Pardon is a form of executive clemency which is exercised by the Chief
Executive.
Absolute Pardon refers to the total extinction of the criminal liability of the
individual to whom it is granted without any condition whatsoever and restores to the
individual his civil rights and remits the penalty imposed for the particular offense of
which he was convicted. The purpose of absolute pardon are:
1. To right a wrong – Under this sort of situation, it is thus that many who
were sent to prisons are innocent while equally many of those who
should be behind bars remained scot-free. When those convicted
innocents have exhausted all remedies obtainable through the courts,
and there are no more available, the last recourse in righting that
wrong is absolute pardon.
2. To normalize a tumultuous political situation.
Conditional Pardon refers to the exemption of an individual, within certain limits
or conditions; from the punishment that the law inflicts for the offense he has committed
resulting in the partial extinction of his criminal liability. It is also granted by the
President of the Philippines to release an inmate who has been reformed but is not
eligible to be released on parole.
Section 19, Article VII of the 1987 Constitution:
“Except in cases of impeachment or as otherwise provided in this Constitution,
the President may grant reprieve, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of majority
of all members of the congress”
Brief History
Pardon was begun from the Pre-Christian Era. In fact the Holy Bible contains an
allusion where a criminal was released and pardoned by the king at the time Christ was
crucified.
The exercise of Pardoning Power has always been vested in the hands of
executive branch of the government whether a king, queen, president or governor.
In England, pardon developed out of the conflict between the King and the
Nobles who threatened his power. Pardon was applied to members of the Royal family
who committed crimes, and occasionally to those convicted of offenses against the
Royal Power. It was the general view that the pardoning power was the exclusive
prerogative of the King.
In the United States, pardon among early American colonies was carry-over of
English practice. The Pardoning power was exercised by the Royal family who
committed crimes, and occasionally to those convicted of offenses against the Royal
Power. It was the general view that the pardoning power was the exclusive prerogative
of the King.
In the United States, pardon among early American colonies was a carry-over of
English practice. The pardoning power was exercised by the Royal Governor through
the power delegated by the King. After the declaration of independence, the Federal
and State Constitutions vested the pardoning power on the President of the United
States and the Governors in Federal and State cases respectively.
Kinds of Pardon
1. 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.
- Refers to the total extinction of the criminal liability of the individual to whom it is
granted without any condition whatsoever and restore to the individual his civil
rights and remits the penalty imposed for the particular offense of which he was
conceived.
Notes:
o It is granted in order to restore full political and civil rights to convicted
persons who have already served their sentenced and have reached the
prescribed period for thee grant of Absolute Pardon.
o Absolute pardon existing policies regarding the grant of absolute pardon
under this scheme is that ten years after the release from prison must
pass before an ex-convict applying for said pardon will be granted.
Eventually, the ten-year period was shortened to five years.
o This waiting period is required to make sure that the applicant is truly
reformed and has been restored to the mainstream of society.
2. 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.
- on the other hand, refers to the exemption of an individual, within certain limits or
condition; from the punishment that the law inflicts for the offense he has
committed resulting in the partial extinction of his criminal liability.
Notes:
o Condition pardon is also granted by the President of the Philippines to
release an inmate who has been reformed but is not eligible to be
released on parole.
o This is applicable to inmate who were slapped a fixed or determinate
sentenced or life imprisonment who are, otherwise, not eligible for parole.
o It has the nature of a contract in which the pardonee agrees to comply
strictly with the conditions imposed by the pardon, otherwise, violations of
the conditions will revoke the contract of conditional pardon and the
pardonee will be criminally prosecuted as a violator.
o In certain cases, the Board of Pardons and Parole may require a petition
for conditional pardon to be accompanied by a written guarantee of the
person with whom the petitioner will reside that the latter will behave
properly upon release from confinement.
o Under Article 95 of the Revised Penal Code, a pardon violator upon
conviction will be liable for imprisonment of “prison correctional”.
o But under Article 159 of the Revised Penal Code, if the un-expired portion
of the original sentence of the pardonee exceeds six years, then this more
six years of pardoned sentence will have to be fully served by the
recommitted pardon violator.
Extraordinary Circumstances
The Board shall recommend to the President the grant of executive clemency
when any of the following extraordinary circumstances are present:
a. The trial court or appellate court in its decision recommended the grant of
executive clemency for the inmate;
b. Under the peculiar circumstances of the case, the penalty imposed is too harsh
compared to the crime committed;
c. Evidence which the court failed to consider, before conviction which would have
justified an acquittal of the accused;
d. Inmates who were over fifteen (15) years but under eighteen (18) years of age at
the time of the commission of the offense;
e. Inmates who are seventy (70) years old and above whose continued
imprisonment is inimical to their health as recommended by a physician of the
Bureau of Correction Hospital and certified under oath by a physician designated
by the Department of Health;
f. Inmates who suffer from serious, contagious or life-threatening illness disease, or
with severe physical disability such as those who are totally blind, paralyzed,
bedridden, etc., as recommended by a physician of the Bureau of Correction
Hospital and certified under oath by a physician designated by the Department of
Health;
g. Alien inmates where diplomatic considerations and amity among nations
necessitate review; and
h. Such other similar or analogous circumstances whenever the interest of justice
will be served thereby,”
Other Circumstances
- When none of the extraordinary circumstances enumerated in section 3 exist, the
board may nonetheless review and/or recommended to the president the grant of
executive clemency to an inmate provided the inmate meets the following
minimum requirements of imprisonment:
1. For Commutation of Sentence, the inmate should have served:
a. At least one third (1/3) of the definite or aggregate prison terms;
b. At least one half (1/2) of the minimum of the indeterminate prison term
or aggregate minimum of the indeterminate prison terms;
c. At least ten (10) years for inmates sentenced to one (1) Reclusion
Perpetua or one (1) life imprisonment, for crimes/offenses not
punished under Republic Act no. 7659 and other special laws;
d. At least thirteen (13) years for inmates whose indeterminate and/or
definite prison terms were adjusted to a definite prison term of forty
(40) years in accordance with the provisions of Article 70 of the revised
penal code as amended;
e. At least fifteen (15) years for inmates convicted of heinous
crimes/offenses as defined in Republic Act no. 7659 or other laws,
committed on/or after January 1, 1994 and sentenced to one (1)
reclusion Perpetua or one (1) life imprisonment;
f. At least eighteen (18) years for inmates convicted and sentenced to
reclusion Perpetua or life imprisonment for violation of republic act no.
6425, as amended, otherwise known as “The Dangerous Drugs Acts of
1972”or republic act no. 9165 also known as “the comprehensive
dangerous drugs act of 2002” and for kidnapping for ransom or
violation of the laws on terrorism, plunder and transnational crimes;
g. At least twenty (20) years for inmates sentenced to two (2) or more
reclusion Perpetua or life imprisonment even if their sentences were
adjusted to a definite prison term of forty (40) years in accordance with
the provisions of article 70 of the revised penal code, as amended;
h. At least twenty five (25) years for inmates originally sentenced to death
penalty nut which was automatically reduced or commuted to reclusion
Perpetua or life imprisonment.
2. For Conditional Pardon
o an inmate should have served at least one half of the maximum of the
original indeterminate and/or definite prison term.
When the pardon grantee fails to comply with the conditions of pardon
- In case of violation of any provision of the conditional pardon, the pardon itself I
deemed invalidated and the pardonee may be either recommitted by the
President under the Administrative Code or prosecuted for violation of conditional
pardon under Article 159 of the Revised Penal Code.
- Under the revised penal code, the penalty of prison correctional in its minimum
period shall be imposed upon the convict, except when the penalty remitted is
higher than six years, in which event shall serve the unexpired portion of his
original sentence.
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.
- On the other hand, Amnesty needs the concurrence of Congress and the
courts also take judicial notice of the act by the President.
Note: Amnesty can be availed of before, during and after the trial of the
case, even after conviction.
Pardon Amnesty
- Pardon is granted by the chief - It is the proclamation of the chief
executive and therefore it is a executive with the concurrence of
private act which must be pleaded the congress, hence it is a public
and proved by the person act which the court should take
pardoned because the courts take judicial notice
no notice thereof
- It can only be granted after - Amnesty can be granted before or
conviction after the institution of the criminal
prosecution and sometimes after
conviction
- It is granted to individual - Granted to classes of persons or
communities who may be guilty of
political offenses
- Pardon looks backward and - Amnesty looks backward and
relieves the offender from the abolishes and puts into oblivion the
consequences of an offense of offense itself, it so overlooks and
which he has been convicted. It obliterate the offense with which
abolishes or forgives the he is charge that the person
punishment, and for that reason it released by amnesty stands before
does not work the restoration of the law precisely as through he
the rights to hold public office, or had committed no offense.
the right of suffrage, unless such
rights be expressly restored by the
terms of the pardon, and it in no
case exempts the offender from
payment of the civil indemnity
imposed upon him by the
sentence. As to the number of those who can
avail
As to the number of those who can - Amnesty is a blanket pardon
avail granted to a group of prisoners,
- Pardon includes any crime and is generally political prisoners.
exercised individually by the Chief
Executive. As to the time to avail
- amnesty maybe given before trial
As to the time to avail or investigation is done
- Pardon is exercised when the
person is already convicted As to the Consent of Congress
- Amnesty is by proclamation with
As to the Consent of Congress concurrence of congress, and it is
- Pardon is granted by the Chief a public act, which the court should
Executive and such as private act, take judicial notice.
which must plead and proved by
the person pardoned because the
court takes no choice thereof. As to the Effect
- while amnesty is an act of
As to the Effect forgetfulness. i.e. it puts into
- Pardon is an act of forgiveness, oblivion the offense of which one is
i.e. it relieves the offender from the charged so that the person as if he
consequences of the offense had never committed the offense.
Note: Pardon does not obliterate the fact that the accused was a
recidivist. Thus, even if the accused was granted probation in the first offense,
but he commits another felony embraced in the same title of the RPC, the first
conviction is still counted to make him a recidivist.
COMMUTATION OF SENTENCE
- The reduction of sentence for a criminal act by action of the executive
head of the government.
- Like pardon, commutation of sentence is a matter of grace, not of right; it
is distinguished from pardon, however, in that the conviction of crime is
not nullified.
Notes:
o The commutation, hence, may be granted on condition that the
criminal observe certain restrictions for the balance of his original
sentences. Many states have statutes providing for commutation of
sentence as a reward for good conduct during imprisonment. Once
earned, the commutation becomes a matter of right and may be
enforced y court action.
o Commutation does not forgive the offender but merely reduces the
penalty of life imprisonment or death sentence for a term of years.
o Commutation of sentence is resorted to because the law prescribes
uniform punishment for crimes regardless of how serious or how
light the offense committed is.
Example: A qualified theft in which the penalty is the same
whether the convict’s crime is only climbing a tree to get a few fruits
to eat because he or she is very hungry.
Even if a sympathetic judge would desire to impose a lighter
sentence, he could not do so because of the unyielding dictates of
law.
So, commutation of sentence is some kind of a leveling
mechanism to temper or balance this rigidity that results in un-
proportionate punishments under the law.
Commutation of sentence also benefits inmates sentenced
to a fixed or determinate sentence, which renders him or her
ineligible for parole.
Commutation of sentence changes the original fixed
sentence to a lesser indeterminate sentence, which will then enable
the beneficiary to be released on parole.
Commutation is also appropriate to use with convicts
sentenced to several counts.
The sentence may be commuted to one single indeterminate
sentence through commutation and rendering the recipient to avail
of parole after serving the minimum sentence.
REPRIEVE
- The act of postponing the enforcement of a sentence, particularly a death
sentence, to allow an appeal.
- Temporary stay of the execution of a sentence.
- Another prerogative exercised by the President of the Philippines.
- Generally, it is applied to death sentences already affirmed by the
Supreme Court. But it can also be invoked in other cases that have
become final.
- In death sentences, the date of execution of the death convicts is held in
abeyance for a certain period to enable the Chief to temporarily stay
execution of sentence.
- Like a pardon, the President can only exercise reprieve when the
sentence has become final. Generally, reprieve is extended to death
penalty prisoners.
- The date of execution of sentence is temporarily postponed indefinitely to
enable the Chief Executive to thoroughly study the petition of the
condemned man for commutation of sentence or pardon.
- A president usually resorts to this to resolve all his doubts and
reservations and want to really establish that the convict truly deserve to
be executed.
- The president may not want to be conscience stricken, if later, it is found
out that the executed convict did not deserve to die.
- Reprieve is also being widely exercised by the President on almost all
death convicts because of strong pressure from various lobby groups.
- A case on point here is the widespread opposition to the death penalty
being spearheaded by the Catholic Church because of its biblical
teachings that life emanates from God and no person or groups not even
government has the right to take away that life no matter what how many
serious violations of the law a person may have committed.
In acting on petitions for Executive Clemency, the BPP shall consider, among
others, the age of the petitioner, the gravity of the offense and the manner in which it
was committed, and the institutional behavior or conduct and previous criminal record, if
any, of the petitioner.
However, the Board may consider petition for absolute pardon even before the lapse
of the aforementioned periods in special cases such as:
when the petitioner is seeking reinstatement in the government service;
needs to go abroad to undergo medical treatment which is not available in
the country;
Will take a government or Bar Examination;
Or is immigrating
However, the following category of prisoners shall not be considered for
commutation of sentence or conditional pardon:
For Commutation of Sentence:
1. The petitioner is eligible for parole;
2. The petitioner had been sentenced to another prison term within one (1) year
from the date of his late recommitment to the jail or prison from where he
escaped;
3. The petitioner had violated any condition of his discharge on parole or conditional
pardon; and
4. The petitioner is suffering from a mental illness or disorder as certified by a
government psychiatrist.
For Conditional Pardon:
1. The petitioner is eligible for parole;
2. The petitioner had been sentenced to another prison term within one (1) year
from the date of his late recommitment to jail or prison from where he escaped;
3. The prisoner is suffering from mental illness or disorder as certified by a
government psychiatrist; and
4. The prisoner had violated a conditional pardon, which was previously granted
before the expiration of his maximum sentence.
In petitions for Executive Clemency cases, the Director of Corrections shall forward
the prison record and carpeta of a prisoner/petitioner to the Board of Pardons and
Parole within the following periods:
1. Absolute Pardon – within one (1) month receipt by the Director of the request
made by the Board for the prison record and carpeta;
2. Commutation of Sentence– at least one (1) month before the expiration of one
– third (1/3) of the minimum period of the prisoner’s indeterminate sentence and
in special cases, at least one (1) month before the periods becomes qualified;
3. Conditional Pardon – at least one (1) month before the expiration of one half
(1/2) of the minimum period of the prisoner’s indeterminate sentence and in
special cases, at least one (1) month before the periods the petitioner becomes
qualified.
Review Questions:
Essay (25 points each)
2. What is the purpose of the law and duty of the Board of Parole?
3. What are the two kind of pardon in the Philippines? Explain each.
Application of ISLAW
Violation of the Revised Penal Code
- The court shall sentence the accused to an indeterminate sentence the
MAXIMUM TERM of which shall be that which, in view of the attending
circumstances, could be properly imposed under the Code, and the MINIMUM
TERM which shall be within the range of the penalty next lower in degree to that
prescribed by the Code for the offense.
- The maximum is the penalty imposed as provided by law, depending upon the
attending circumstances. The minimum is one degree next lower to the penalty
prescribed for the offense. The latter is determined without considering the
attending circumstances to the penalty prescribed, and is left to the discretion of
the court. (People v. Yco, 6545, July 27, 1954)
Illustrative example:
Homicide with One Mitigating Circumstance
- The maximum penalty prescribed by law is Reclusion Temporal. Since there is
one mitigating and no aggravating it will be in the minimum or reclusion temporal
minimum period.
- On the other hand, the minimum is one degree next lower to reclusion temporal
without considering mitigating circumstance and that will be prision mayor.
- The range of prision mayor will depend upon the discretion of the court.
- Therefore, the indeterminate penalty is a minimum of prision mayor (within the
range fixed by the court) to a maximum of reclusion temporal minimum period.
- NOTES: RPC: Mininum (Next lower to prescribed) to Maximum (Impossible)
Derive MAXIMUM term imposable by applying rules for aggravating (AC) and
ordinary mitigating circumstances (MC) under Art. 64 and for complex crime under
Art. 48
- No AC or MC: Penalty PRESCRIBED medium period
- 1 AC, no MC: Penalty PRESCRIBED maximum period
- No AC, 1 MC: Penalty PRESCRIBED minimum period
- Several ACs and MCs: OFFSET then apply rules to remainder
- No AC, 2 or more MCs: Penalty NEXT LOWER IN DEGREE TO THAT
PRESCRIBED
- If COMPLEX CRIME (2 or more grave or less grave felonies OR one offense is
necessary means for committing the other): Penalty for the MOST SERIOUS
CRIME maximum period
Derive MINIMUM term by getting the penalty one degree lower than the
penalty prescribed by the RPC, without regard to its three periods.
- The court has discretion to fix as the minimum term any period of imprisonment
within that penalty next lower to the penalty prescribed.
Exception:
- WHEN THERE IS A PRIVILEGED MITIGATING CIRCUMSTANCE, do NOT
follow the aforementioned rule, Consider the privileged mitigating circumstance
FIRST before any AC or MC to get the PENALTY PRESCRIBED and then
proceed as required by any rule on deriving the minimum term. Otherwise, the
maximum of the ISLAW will end up being lower than the minimum of the ISLAW.
Illustrative Example
- Penalty is one year to 5 years. Indeterminate sentence may be one year to 3
years or 3 years to 5 years.
- SPL: Minimum (at least that prescribed) to Maximum (not exceed prescribed)
1. Maximum Term: Court may fix any as long as it does not exceed the penalty
prescribed by the special law
2. Minimum Term: Court has discretion so long as it does not exceed the minimum
prescribed by the special law.
Disqualified Persons
ISLAW is not applicable to persons who are:
1. Convicted of offenses punished with death or life imprisonment.
2. Those convicted of treason, conspiracy, or proposal to commit treason,
misprision of treason, rebellion, sedition or espionage, or piracy.
3. Those who are habitual delinquents.
Notes:
o Recidivists are entitled to an indeterminate sentence. (People v. Jaranilla,
28547, February 22, 1974)
o Recidivist is one, at the time of his trial for one crime, shall have been
previously convicted by final judgment of another crime embraced in the
same title of the RPC. (People vs. Lagarto, G.R. No. 65833, May 6, 1991)
o Habitual Delinquent is a person, who within a period of ten years from the
date of his release or last conviction of the crimes of serious or less
serious physical injuries, robbery, theft, estafa or falsification, is found
guilty of any of said crimes a third time or oftener. (Art. 62, RPC)
RECIDIVISM HABITUAL
DELINQUENCY
Retributive Justice
(Past)
Restorative Justice
(Present)
Collaborative Justice
(Future)