MODULE:

Non - Institutional Corrections

Chapter 1: Introduction

At the end of this chapter the student should be able to:

• Understand the Two Elements of Correctional Treatment

• Enumerate the goals of Community Corrections Programs.

Introduction

Correctional treatment can be divided

into two elements: a) Secured Confinement
or Institutionalized Corrections, and b)
Community-Based Programs or Non-
institutional Corrections. Community-based
correction is a supervised program dealing
with people who have been convicted or are
facing conviction. It is a non-incarceration
system of correction

Community corrections covers a wide

variety of punishment imposed without
removal of the offender from his area of
residence and employment, if any. The crux
of community corrections is supervision in the community.

Community-based corrections include probation, which involves offender

supervision under the control of the sentencing court, and an array of intermediate
sanctions, in the form of programs that provide greater supervision and treatment
than the “traditional" probation but are less intrusive than imprisonment.

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Treatment in the community is viewed as a viable alternative to traditional
correctional practices. First, it is significantly less expensive to supervise inmates
in the community than to house them in secure institutional facilities. Second,
community-based corrections are necessary if the prison system is not to be
overwhelmed by an influx of offenders. Third, community-based treatment is
designed so that first-time or non-serious offenders can avoid the stigma and
pains of imprisonment and be rehabilitated in the community.

One of the basic principles underlying community-based corrections is

minimization of the offender's contact with Institutional incarceration. The
emphasis moves away from the dehumanizing and alienating effects of
institutionalization and mandates avoidance of use of ails, workhouses, and prisons
to an extent consistent with the protection of society.

Modern community correctional programs are invariably "soft on crime,”

they focus too much on rehabilitation, to the exclusion of punishment, deterrence,
and incapacitation. Community corrections mean the subfield of corrections in
which offenders are supervised and provided services outside jail or prison. For
this reason, community corrections are sometimes referred to as non-institutional
corrections. Community corrections include programs such as diversion,
restitution, probation, parole, and various provisions for temporary release from
prison or jail.

Parole and probation have always been a way of community correction, but
with advancement in technology and considering the psychology of convicted
people, correction programs have widened to accommodate work releases ay tine
programs, electronic monitor the home confinement, community service, half way
houses, boot camp prisons, restitution, check in programs, mediation, curfews,
restorative justice centers, drug checks, alcohol checks end other methods where
there is a certain level of trust between the offenders and the people involved.

The Goals of Community Corrections Programs

Community corrections programs are integrated sanctioning strategies that

seek to achieve the following goals:
1. The offender it punished and held accountable.
2. Public safety is protected.
3. Victims and local communities receive restitution from felons who work in
their present jobs and/or in restitution programs.
4. Community service work increases.

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5. Collection of court costs and fees increases due to contractual agreements
with attenders who remain in their present jobs.

The Popularity and Growth of Community based Programs Nationwide is Based

on Five (5) Factors

1. The programs provide closer supervision than regular probation sentences;

2. Major cost savings compared to full incarceration;
3. Flexibility for judges to sentence to community correction programs instead
of incarceration in a jail or prison;
4. A more gradual reentry into community life after prison or jail time; and
5. Less overcrowding in jails and prisons.

Community Corrections Sanctions may include:

1. 24-hour residential programs which provide a structured living environment

for offenders who require supervision when not working or looking for
employment:
2. Non-residential drug and alcohol treatment programs;
3. Electronic monitoring of offenders placed on home detention (offenders
must wear bracelets that allow parole officials to monitor their movement);
4. Diagnostic evaluation and counseling ordered by the court as part of a pre-
sentence process;
5. Pre-trial intervention which provides close supervision and support
services to selected offenders prior to trial;
6. Community service programs;
7. Day reporting centers where offenders are required to discuss the progress
of their job search and daily activities with parole officials; and
8. Mandatory education programs.

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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Non - Institutional Corrections

Chapter 2: Temporary Release of

Detained Person
At the end of this chapter the student should be able to:

• Define Detention, Custodial Center, Detainee, and Detention

Prisoner
• Enumerate the Basis of Temporary Release of a Detained Person
• Understand the Definition, Concept, and Purpose of Bail.

Meaning of Detention/ Custodial Center, Detainee, and Detention Prisoner

Detention as defined by the Philippine

National Police is a restraint of personal liberty
or deprivation of freedom of action in any
significant manner. (PNP Operational
Procedure 2010 p. 85)

Detainee as defined by the Bureau of Jail

Management and Penology (BIMP) refers to
person who is accused before a court or
competent authority and is temporarily
confined in jail while undergoing or awaiting
investigation, trail, or final judgment (BJMP
Manual Revised 2007, p. 143)

Detention Prisoner refers to a person arrested due to the commission of a

crime/offense by the arresting unit for custodial investigation. It likewise includes
a person arrested for crimes, which are heinous in nature, against national
security, and high-profile crimes. (PNP Operational Procedure 2010, p. 85)

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Basis of Temporary Release of a Detained Person

1. Under the 1987 Philippine Constitution:

The 1987 Philippine Constitution allows two (2) modes by which a

person under custody may be released temporarily from detention before
conviction of the offense charged - (1) bail, and (2) release on recognizance
as may be provided by law. (Art. III, Sec. 13)

2. Under the Rules of Court:

Rule 102 of the Rules of Court provides for habeas corpus, a speedy
and effectual remedy to relieve from unlawful restrain and will therefore
issue when someone is deprived of liberty.

Definition, Concept, and Purpose of Bail

Bail is the security given for the released of a person in custody of the law,
furnished by him or a bondsman, to guarantee his appearance before any court as
required under the conditions hereinafter specified. Bail may be given in the form
of corporate surety, property bond, cash deposit, or recognizance.

Bail bond is an obligation given by the accused with one or more sureties,
with the condition to be void upon the performance by the accused of such acts
as he may be legally required to perform.

Where Bail may be filed?

1. Bail in the amount fixed may be filed with the court where the case is
pending, or in the absence or unavailability of the judge thereof, with any
regional trial judge, metropolitan trial judge, municipal trial judge in the
province, city, or municipality other than where the case is pending, bail
may also be filed with any Regional Trial Court of said place, or if no judge
thereof is available, with any metropolitan trial judge, municipal trial judge,
or municipal circuit trial judge therein.
2. Where the grant of bail is a matter of discretion, or the accused seeks to be
released on recognizance, the application may only be filed in the court
where the case is pending, whether on preliminary investigation, trial, or on
appeal.

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3. Any person in custody who is not yet charged in court may apply for bail
with any court in the province, city, or municipality where he is held. (Sec.
17, Rule 114, Revised Rules of Criminal Procedure)

Reasons why the Constitution Prohibits the Imposition of Excessive Bail

Excessive bail means a bail set at a higher amount than that reasonably
calculated to ensure the presence of the accused at the trial. It is prohibited for
the following reasons:

1. To safeguard the liability of the individuals;

2. Imposition of excessive bail amounts to nullification to the of the right to
bail which is offensive to the Constitution;
3. Right to bail would become meaningless. (Sunga vs. Solid, 109 SCRA 253)

Who may not invoke the Right to Bail?

1. It cannot be invoked where the applicant is not yet in custody of the law
because he went into hiding and is at large, and hence, a free man even
when he has already been criminally charged in court.
2. It Is also not available to one charged with a capital offense or an offense
punishable by Reclusion Perpetua, life imprisonment, or death if the
evidence of his guilt is strong.
3. Under the Rules of Court, "no bail shall be allowed after the judgment has
become final, or after the accused has commenced to serve sentence"(Sec.
24, Rule 114, Revised Rules of Criminal Procedure)

The Authority of the Sureties or Court to Re-arrest Principal

Section 23, Rule 114 of the Revised Rules of Criminal Procedure authorizes the
sureties and the court to re-arrest the principal in order to deliver him up at any
time before the trial court. The provision of the rule provides:

"Section 23. Arrest of accused out on bail. - For the purpose of surrendering
the accused, the bondsmen may arrest him or, upon written authority endorsed on
a certified copy of the undertaking, cause him to be arrested by a police officer
or any other person of suitable age and discretion.

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An accused released on bail may be re-arrested without the necessity of a
warrant if he attempts to depart from the Philippines without permission of the
court where the case is pending."

Distinction of Bail Bond from a Recognizance

A bail bond is an obligation under seal given by the accused with one or more
sureties, and made payable to the proper officer with the condition to be void upon
performance by the accused of such acts as he may legally be required to perform.

A recognizance is an obligation of record, entered into before some court or

magistrate duly authorized to take it, with the condition to do some particular act,
the most usual condition in criminal cases being the appearance of the accused
for trial. A recognizance does not require the signature of the accused for its
validity.

Recognizance as a Mode for Obtaining Release from Detention

Recognizance is an older method of suspending or deferring judgment for

good behavior. This was based on an ancient practice developed in England in the
14th century. It originated as a measure of preventive justice, involving an
obligation or promise, sworn to under court order by a person not yet convicted
but though likely from the information before the court to have committed a crime
that he would keep the peace and be of good behavior.

Recognizance refers to an undertaking in lieu of a bond assumed by a parent or

custodian who shall be responsible for the appearance in court of the child in
conflict with the law, when required. (Sec. 4(p), R.A. No. 9344)

Recognizance is an obligation of record, entered into before some court or

magistrate duly authorized to take it, with the condition to do some particular act,
the most usual condition in criminal cases being the appearance of the accused
for trial. (Moreno, Phil. Law Dictionary, 3d ed., p. 797)

Qualifications and Requirements for Release on Recognizance

1. That the applicant is a Filipino citizen;

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2. That he is a resident of the Philippines for at least six (6) months prior to
the filing of the application;
3. That the offense for which he is in custody and seeks to be released on
recognizance is not punishable by death, reclusion perpetua, or life
imprisonment;
4. That he has no sufficient means to post corporate surety, property bond, or
cash deposit as bail bond; and
5. That more than five (5) years have elapsed since his last conviction or
release from imprisonment after conviction for an offense, if any, and he
has shown good behavior during the said period.

Disqualifications for Release on Recognizance

1. That he is a danger to the community;

2. That the circumstances of his case indicate the probability of flight if
released on recognizance;
3. That he is a recidivist, quasi-recidivist, or habitual delinquent, or has been
previously convicted of a crime aggravated by the circumstance of
reiteration;
4. That he has previously escaped from legal confinement, evaded sentence,
or violated the conditions of his previous bail or release on recognizance, if
any, without valid justification;
5. That he has previously committed a crime while under probation, parole, or
conditional pardon; or
6. That there is undue risk that he may commit another crime if released on
recognizance.

Release of Detainee through Habeas Corpus

Writ of Habeas Corpus Defined

Writ of habeas corpus is a writ which has been esteemed the best and only
sufficient defense of personal freedom having for its object the speedy release by
judicial decree of persons who are illegally restrained of their liberty, or illegally
detained from the control of those who are entitled to their custody. (Albano,
Albano Jr., Albano, Remedial Law Reviewer, 2007 ed., p 964, citing Ballentine's
Law dictionary, 2nd ed., p. 569)

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The writ of habeas corpus is the means by which judicial inquiry is made
into the alleged encroachments upon the political and natural rights of individuals,
such as restraint of liberty. It is a writ of defense of personal freedom, having for
its object the speedy release, by judicial decree, of persons who are illegally
restrained of their liberty, or who are entitled to the custody of them. It is directed
to the person in whose custody the person is detained. (Phil. Law Dictionary by
Moreno, 3rd ed. p. 424)

The writ of habeas corpus also has a very limited availability as a post-
conviction remedy where, as a consequence of judicial proceeding: (a) there has
been a deprivation of a constitutional right resulting in the restraint of a person;
(b) the court had no jurisdiction to impose the sentence; or (c) an excessive
penalty has been imposed, as such sentence is void as to such excess.
(Agranzamendez, Q &A in Remedial Law, 2008 ed., p. 514, citing Feria vs. CA,
382 Phil. 412 [2000])

Nature and Purpose of the Petition for Habeas Corpus

Petition for habeas corpus is like a proceeding in rem because it is an

inquisition by the government, at the suggestion and instance of an individual,
most probably, but still in the name and capacity of the sovereign. It is also
instituted for the purpose of fixing the status of a person and that there can be no
judgment entered against anybody since there is no real plaintiff and defendant.
(Alimpoos vs. CA, 106 SCRA 159)

The essential object and purpose of the writ of habeas corpus is to inquire
into all manner of involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal (Moncupa vs. Enrile, 141
SCRA 233); and any further rights of the parties are left untouched by decision on
the writ, whose principal purpose is to set the individual at liberty. (Villavicencio
vs Lukban, 39 Phil 778)

The essential object or purpose of the writ of habeas corpus is to inquire

into all manner of involuntary restraint and to relieve a person from it if such
restraint is illegal. (Agranzamendez, p. 514, citing Aquino vs. Esperon, G.R. No.
174994, Aug. 31, 2007)

To what Habeas Corpus Extends

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Section 1, Rule 102 of the Rules of Court provides the following provisions:

"Section 1. To what habeas corpus extends. - Except as otherwise expressly

provided by law, the writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the person entitled
thereto."

Who may Grant the Writ of Habeas Corpus?

The writ of habeas corpus may be granted by the Supreme Court, or any
member thereof on any day and at any time, or by the Court of Appeals or any
member thereof in the instance authorized by law, and if so granted it shall be
enforceable anywhere in the Philippines, an may be made returnable before the
court or any member thereof, or before a Court of First Instance (RTC), or any
judge thereof for hearing and decision on the merits. It may also be granted by a
Court of First Instance (Regional Trial Court), or a judge thereof, on any day an
at any time, and returnable before himself, enforceable only within his judicial
district. (Sec 2 Rule 102, Rules of Court)

What are the instances when the writ of habeas corpus shall not be allowed?

The writ of habeas corpus shall not be allowed if it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court oi judge or by virtue of a judgment or order of a court of record,
and that the court or judge has jurisdiction to issue the process, render the
judgment, or make the order. (See Sec. 4, Rule 102, Rules of Court)

The writ of habeas corpus, as a general rule, will not issue where the person
alleged to be restrained of his liberty is in the custody of an officer under a
process issued by the court which has jurisdiction to do so. (Aquino vs. Esperon,
ibid)

If the writ is granted because it ought to issue, to whom shall it be directed, and
what shall it require?

In case of imprisonment or restraint by an officer (BUCOR/BJMP/PNP/AFP),

the writ shall be directed to him, and shall command him to have the body of the

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person restrained of his liberty before the court or judge designated in the writ at
the time and place therein specified.

In case of imprisonment or restraint by a person not an officer, the writ

shall be directed to an officer and shall command him to take and have the body
of the person restrained of his liberty before the court or judge designated in the
writ at the time and place therein specified, and to summon the person by whom
he is restrained then and there to appear before said court or judge to show cause
of the imprisonment or restraint. (Sec. 6, Rule 102, Rules of Court)

What may the court or judge do if the person subject of the petition is unlawfully
imprisoned?

The court or judge shall forthwith order his discharge from confinement,
but such discharge shall not be effective until a copy of the order has been served
on the officer or person detaining him. If the officer or person detaining him does
not desire to appeal, the prisoner shall be forthwith released. (Sec. 15, Rule 102,
Rules of Court)

Distinguish Writ of Amparo, Writ of Habeas Corpus and Writ of Habeas Data

Writ of Amparo is a remedy available to any person whose right to life,

liberty and security is violated or threatened with violation by an unlawful act or
omission of a public official or employee, or of a private individual or entity. The
writ shall cover extrajudicial killings and enforced disappearance. (A.M. No. 07-
9-12-SC, The Rule on Writ of Amparo dated September 24, 2007)

Writ of Habeas Corpus is a writ directed to a person detaining another

commanding him to produce the body of the prisoner at a designated time and
place, and to show sufficient cause of his caption and detention, to do, to submit,
and receive whatever the court or judge awarding the writ shall consider in that
behalf. A writ of habeas corpus extends to all cases of illegal confinement or
detention by which a person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled to it. Its essential object
or purpose is to inquire into all manner of involuntary restraint and to relieve a
person from such restraint is illegal.

Writ of Habeas Data is a remedy available to any person whose right to

privacy in life, liberty or security is violated or threatened by an unlawful act or

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omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or information regarding
the person, family, home and correspondence of the aggrieved party (A.M. No.
08-1-16-SC, The Rule on the Writ of Habeas Data, January 22, 2008).

Habeas Data is a writ that enables a person to find out what information is
collated about him, by the police or the military and other law enforcement
agencies, and the use and purpose of such information. The writ of habeas data is
a remedy, the purpose of which is to enjoin the act alleged to be in violation of a
person's right to privacy, or to compel the deletion, destruction, or rectification of
erroneous data or information.

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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Chapter 3: Executive Clemency

At the end of this chapter the student should be able to:

• Define Executive Clemency

• Enumerate the Forms of Executive Clemency
• Understand the Causes of Total/ Partial Extinction of Criminal
Liability Under Article 89 of the RPC.

What is an Executive Clemency?

Clemency simply means

leniency or mercy. A power given to
a public official, such as a governor
or the president, to in some way
lower or moderate the harshness of
punishment imposed upon a prisoner.
Clemency is considered to be an act
of grace. It is based on the policy of
fairness, justice, and forgiveness. It
is not a right but rather a privilege,
and one who is granted clemency
does not have the crime forgotten, as
in amnesty, but is forgiven and
treated more leniently for the criminal acts.

Executive Clemency is the power of a President in state convictions, to

pardon a person convicted of a crime, commute the sentence (shorten it, often to
time already served). or reduce it from death to another lesser sentence. There
are many reasons for exercising this power, including real doubts about the guilt

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of the party, apparent excessive sentence. humanitarian concerns such as illness
of an aged inmate, to clear the record of someone who has demonstrated
rehabilitation or public service, or because the party is a political or personal
friend of the Governor.

It is an executive function and not a function of the judiciary. It is also a

non-delegable power and it can only be exercised by the President of the
Philippines personally (Villena vs. Secretary of the Interior, 67 Phil. 451, 453)

The President extends executive clemency for administrative penalties.

The Constitution makes no distinction with regard to the extent of the pardoning
power except with respect to impeachment. (Llamas vs. Orbos, G.R. No. 99031,
Oct. 15, 1991)

Limitations on the Exercise of the Power to Grant Pardon

1. It cannot be granted in cases of impeachment.

Impeachment has been defined as a method of national inquest into

the conduct of public men.

2. It cannot be granted in cases of violation of election laws without the

favorable recommendation of the Commission on Elections.
3. It can only be granted after conviction by final judgment.
The second limitation is based on the constitutional provision under
Article IX(C) (5). The Commission on Elections. Section 5 provides:

"Section 5. No pardon, amnesty, parole, or suspension of sentence for

violation of election laws, rules, and regulations shall be granted by the
President without the favorable recommendation of the Commission."

Causes Of Total Extinction of Criminal Liability Under Article 89 of the Revised

Penal Code (RPC)

1. DEATH OF CONVICT-death of convict extinguishes criminal liability at

any stage of the criminal proceeding: civil liability is likewise extinguished
if death occurs before final judgment. If death occurs, there will be nobody
to serve the penalty for the crime. The death of the convict, whether
before or after final judgment, extinguishes criminal liability, because one
of the juridical conditions of penalty is that it is personal.

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What are the Effects of Death of the Accused?

a. Death of the offender before or during trial.

If death occurs before or during the trial, the criminal case must be
dismissed. This is so because of the preservation of the constitutional
rights of the deceased accused who would not be any more in a position to
defend himself. Further, it would be useless to proceed because the ends
of criminal justice (Retribution and rehabilitation) could not anymore be
served. There would be no convict upon whom the personal penal
consequences of the offense could be imposed, neither is there a culprit
who needs rehabilitation (Domondon, Primus Pre-Bar Review Division,
2009 Wrap-Up Review Notes in Criminal Law, p.97)

b. Death of accused pending appeal.

The death of the accused pending the appeal of his conviction will
extinguish his criminal liability as well as his civil liability arising from the
crime committed.

However civil liability arising from sources other than the crime
committed survives and may be pursued in a separate civil action. Sources
of civil liability other than crime are law, contracts, quasi-contracts, and
quasi-delicts. (People vs. Bayotas, G.R. No. 152007, September 2, 1994)

c. While death pending appeal extinguishes criminal liability, the Supreme

Court may still review the case.

The accused's death pending appeal of his conviction results to

automatic dismissal of the charges. The Supreme Court may however,
review the case and if the accused is found innocent, shall render the
appropriate judgment, belated though it may be to vindicate his sullied
honor and redeem his memory from an undeserved accusation.
(Domondon, Primus, 2009 Wrap-Up Review Notes in Criminal Law, p.97,
citing Dumlao vs. Court of Appeals, et al., G.R. No. L-51625, October 5,
1988)

2. SERVICE OF THE SENTENCE - after the convict served his sentence, his
criminal liability is automatically extinguished. However, service of
sentence does not extinguish his civil liability

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Crime is a debt incurred by the offender as a consequence of his
wrongful act and the penalty is but the amount of his debt. When payment
is made, the debt is extinguished.

3. AMNESTY - is granted by Proclamation of the Chief Executive with the

concurrence of Congress. It is a public act of which the courts should take
judicial notice. Criminal action or liability is totally extinguished by
amnesty, completely extinguishing the penalty and its effects

Amnesty is an act of the sovereign power granting oblivion or a

general pardon for a past offense, and is rarely, if ever, exercised in favor
of a single individual. It is usually exerted in behalf of certain classes of
persons, who are subject to trial but have not yet been convicted. (Reyes,
Revised Penal Code (Book Two), 14th ed., p. 831 citing Brown vs. Walker,
161 U.S. 602)

4. ABSOLUTE PARDON - looks forward and relieves the offender from the
consequences of an offense of which he has been convicted. An absolute
pardon not only blots out the crime committed but also removes all
disabilities resulting from the conviction.

5. PRESCRIPTION OF PENALTY - is the loss or waiver of the State of its

right to punish the convict. In other words, prescription of penalty is the
loss or forfeiture of the right of the Government to execute the final
sentence after the lapse of a certain time.

Prescription of penalty occurs when the convict escapes from

detention or evades the service of his sentence. Evasion of service of
sentence is a condition precedent to the running of the period. The tolling
of period of prescription of penalty occurs when he commits another
crime, or is captured or goes to another country with which the
Philippines has no extradition treaty.

Prescriptive period means the period within which a specified action

must be filed (Encarnacion, et al. vs. Producers Bank, et al., G.R. No.
92943, May 8, 1992)

6. PRESCRIPTION OF CRIME OR OFFENSE - refers to the loss or waiver of

the right of the State to prosecute offenders after the lapse of certain
time. It cannot be waived or extended since it is for the benefit of the

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accused. Once prescription has set in, the courts automatically lose
jurisdiction.

What is the Effect of Prescription of the Crime?

The Supreme Court ruled that: "As prescription of the crime is the
loss by the State of the right to prosecute and punish the same, it is
absolutely indisputable that from the moment the State has lost or waived
such right, the defendant may, at any stage of the proceeding, demand and
ask that the same be finally dismissed and he be acquitted from the
complaint, and such petition is proper and effective even if the court
taking cognizance of the case has already rendered judgment and said
judgment is merely in suspense, pending the resolution of a motion for a
reconsideration and new trial, and is more so since in such a case there is
not yet any final and irrevocable judgment." (Herrera, Remedial Law IV,
2007 ed., p. 665 citing People vs. Moran, 44 Phil. 391)

7. MARRIAGE OF THE OFFENDED WOMAN UNDER ARTICLE 344, RPC -

marriage of the offender with the offended woman after the commission of
any of the crimes of rape, seduction, abduction or acts of lasciviousness,
as provided in Art.344, must be contracted by the offender in good faith.

8. EXPRESS REPEAL OF PENAL LAW-if a law was enacted and it provides

therein that the criminal liability of the accused is extinguished, then it is
an express repeal of a penal law.

Causes of Partial Extinction of Criminal Liability under Article 94 of the Revised

Penal Code (RPC)

1. CONDITIONAL PARDON - any person who has been granted conditional

pardon shall incur the obligation of complying strictly with the conditions
imposed therein; otherwise, his non-compliance with any of the conditions
specified shall result in the revocation of the pardon and the provisions of
Article 159 shall applied to him. (Art. 95, Revised Penal Code)

Conditional Pardon delivered and accepted is considered a contract

between the sovereign power of the executive and the convict that the
former will release the latter upon compliance with the condition. In
conditional pardon, the condition usually imposed upon the convict is that
"he shall not again violate any of the penal laws of the Philippines."

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2. COMMUTATION OF SENTENCE - simply mean, reduction or mitigation of
the penalty. The commutation of the original sentence for another of a
different length and nature shall have the legal effect of substituting the
latter in the place of the former. (Art. 96, Revised Penal Code

Commutation of Sentence is a change of the decision of the court made by

the Chief Executive by reducing the degree of the penalty inflicted upon
the convict, or by reducing the length of the imprisonment or the amount
of the fine.

Minimum Requirements before Commutation of Sentence is granted

A petition for executive clemency may be reviewed only if the petitioner

meets the following minimum requirements:

A. For Commutation of Sentence, the prisoner should have served:

1) At least one half (1/2) of the minimum of his indeterminate and/or

definite prison term or the aggregate minimum of his indeterminate
and/or definite prison terms

2) At least ten (10) years, for prisoners sentenced to one (1) reclusion
perpetua or one (1) life imprisonment, for crimes/offenses not
punishable under Republic Act No. 7659 and other special laws.
3) At least twelve (12) years, for prisoners whose sentences were
adjusted to forty (40) years in accordance with the provisions of
Article 70 of the Revised Penal Code, as amended
4) At least fifteen (15) years, for prisoners convicted of heinous
crimes as defined in Republic Act No. 7659 committed on or after
January 1, 1994 and sentenced to one (1) reclusion perpetua or one
(1) life imprisonment
5) At least seventeen (17) years, for prisoners sentenced to two (2) or
more reclusion perpetua or life imprisonment even if their sentence
were adjusted to forty (40) years in accordance with the provisions
of Article 70 of the Revised Penal Code, as amended.
6) At least twenty (20) years, for those sentenced to death which was
automatically commuted or reduced to reclusion perpetua or life
imprisonment.

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B. For Conditional Pardon, the prisoner should have served at least one-half
(1/2) of the maximum of the original indeterminate and/or definite prison
term.

3. GOOD CONDUCT ALLOWANCES DURING CONFINEMENT - credit

earned by an inmate which reduces the duration of his incarceration. It
also refers to time subtracted from a sentence by prison authorities for
good behavior or for other reasons.

Special Time Allowance for Loyalty of Prisoner refers to the

deduction of 1/S of the period of the sentence of a prisoner who, having
evaded the service of his sentence during the calamity or catastrophe
mentioned in Art. 158 of the Revised Penal Code, gives himself up to the
authorities within 48 hours following the issuance of the proclamation by
the President announcing the passing away of the calamity or catastrophe
(Art. 98, RPC)

Who May grant Good Conduct Time Allowance (GCTA)?

The Director of Prisons may grant GCTA to an inmate who displays

good behavior and who has no record of breach of discipline or violation
of prison rules and regulations

Whenever lawfully justified, the Director of Prison shall grant

allowances for good conduct. Such allowances once granted shall not be
revoked. (Art. 99, RPC)

What are the Effects of GCTA when granted?

The good conduct or behavior of an inmate shall entitle him to the

following deductions from the period of his sentence:

a. During the first two (2) years of his imprisonment, he shall be allowed a
deduction of five (5) days for each month of good behavior;

b. During the third to fifth year, inclusive, of his imprisonment, he shall be

allowed a deduction of eight (8) days for each month of good behavior

c. During the following years until the tenth year, inclusive of his
imprisonment, he shall be allowed a deduction of ten (10) days for each
month of good behavior and

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d. During the eleventh and successive years of his imprisonment, he shall be
allowed a deduction of fifteen (15) days for each month of good behavior
(Art. 97, RPC)

Computation of GCTA

Calendar months and years are considered reference to sentences

and time served, while thirty (30) days constitute a month in computing
GCTA credits.

GCTA of Detainee Life Termer

Life Termer A detainee shall only be granted GCTA if he voluntarily

offers in writing to perform such labor as may be assigned to him. In such
a case, the credit he may receive shall be deducted from sentence as may
be imposed upon him if he is convicted.

An inmate sentenced to life imprisonment shall not be granted

GCTA while his sentence is on appeal.

Revocation/Restoration of GCTA

GCTA once granted shall not be revoked without just cause. The
GCTA, which an inmate is deprived of because of misconduct, may be
restored at the discretion of the Director upon the recommendation of the
Superintendent.

4. PAROLE --release from imprisonment, but without full restoration of

liberty, as parolee is still in the custody of the law although not in
confinement.

Parole consists in the suspension of the sentence of a convict after

serving the minimum term of the indeterminate penalty, without granting
pardon, prescribing the terms upon which the sentence shall be
suspended. If the convict fails to observe the conditions of the parole, the
Board of Pardons and Parole is authorized to direct his arrest and return
to custody and thereafter to carry out his sentence without deduction of
the time that has elapsed between the date of the parole and the
subsequent arrest.

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5. PROBATION - is a disposition under which a defendant, after conviction
and sentence, is released subject to conditions imposed by the court and
to the supervision of a probation officer. (Sec. 3[a], P.D. No. 968, as
amended)

Forms of Executive Clemency

1. PARDON - it is an act of grace given by those charged with the power and
authority to execute laws which exempts the individual subject of pardon
from the punishment which the law inflicts for a crime he has committed.

A pardon is an act of grace, proceeding from the power entrusted

with the execution of the laws, which exempts the individual on whom it is
bestowed from the punishment the law inflicts for a crime he has
committed. It is the private, though official, act of the executive
magistrate, delivered to the individual for whose benefit it is intended and
not communicated officially to the Court... A pardon is a deed, to the
validity of which delivery is essential, and delivery is not complete without
acceptance. It may then be rejected by the person to whom it is tendered,
and if it be rejected, we have discovered no power in a court to enforce it
on him. (United States vs. Wilson, 7 Pet. (32 U.S.) 150, 160-161[U.S.
1833])

2. REPRIEVE - the execution of the sentence is stayed or postponed.

(People vs. Vera, 65 Phil. 56, 110 [1937])

A reprieve is a withdrawal or withholding of punishment for a time

after conviction and sentence, and is in the nature of a stay of execution.
It postpones the execution of a sentence to a day certain. Usually, it is
granted to a prisoner to afford him an opportunity to procure some
amelioration of the sentence imposed.

Reprieve is also 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 convict is held in abeyance for a certain period to enable the
Chief Executive to temporarily stay execution of sentence.

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A president usually resorts to this to resolve all his doubts and
reservations and want to really establish that the convict truly deserves 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 reprieve differs from a pardon in that the former establishes a

temporary delay in the enforcement of the sentence imposed by the court,
without changing the sentence or forgiving the crime while, a reprieve
might be issued for the execution of a prisoner to give time to the
prisoner to prove his or her innocence.

3. PAROLE - refers to the conditional release of an offender from a

correctional institution after he has served the minimum of his prison
sentence. The person subject of parole is released from imprisonment but
his liberty is not fully restored because the parolee is still considered in
custody of the law although he is not in confinement.

Parole is the planned release and community supervision of

incarcerated offenders before actual expiration of their prison sentences.
It is usually considered a way of completing a prison sentence in the
community and is not the same as a pardon; the paroled offender can be
legally recalled to serve the remainder of his or her sentence in an
institution if the parole authorities deem the offender's adjustment
inadequate or if while on parole the offender commits another crime.

4. AMNESTY -is an act of grace given with the concurrence of Congress. It

is usually extended to groups of persons who committed political offenses.
It abolishes the offense itself.

5. COMMUTATION - mitigates or reduces the penalty itself. Commutation is

a remission of a part of the punishment; a substitution of a less penalty for
the one originally imposed.

In criminal law, commutation is the substitution of a lesser

punishment for a greater one. Commutation of Sentence is the change in
the sentence of the court made by the President which consists in
reducing the penalty imposed upon the offender.

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A commutation of sentence refers to the reduction of the duration of
a prison sentence. It is another prerogative of the President as provided
under the Constitution. It is an act of clemency by which a heavier or
longer sentence is reduced to a lighter or shorter term. Example, a death
sentence or life imprisonment is reduced to a shorter sentence.
Commutation does not forgive the offender but merely reduces the penalty
of life imprisonment or death sentence for a term of years. A commutation
of sentence amounts to a reduction of the penalty originally imposed.
Commutation of sentence may take place even without the grantee's
consent. Under the Revised Penal Code, as amended by Republic Act 7659
(Death Penalty Law) providing for the re-imposition of the death penalty,
commutation of the penalty of death to reclusion perpetua is provided in
cases when a convict is below eighteen (18) years of age at the time of
the commission of the crime or over seventy (70) years of age, or when
the required majority vote is not obtained for the imposition of or
affirmance of an imposed death penalty by the Supreme Court En Banc.

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 convicts sentenced
to several counts.

Minimum Requirements of Imprisonment before Commutation of Sentence

is Granted

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 terin
aggregate minimum of the indeterminate prison terms;
c. At least ten (10) years for inmates sentenced to one (1) reclusion
perpetuo or one (1) life imprisonment for crimes/offenses not punished
under Republic 7659 and other special laws;
d. At least thirteen (13) years for inmates who’s 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 special laws,

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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 Act 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 but which was automatically reduced or commuted to reclusion
perpetua or life imprisonment. (Sec. 4, Board of Pardons and Parole
(Resolution No. 24-4-10])

6. REMISSION OF FINES AND FORFEITURES - it should be noted that

remission of fines and forfeitures merely prevents the collection of fines
or the confiscation of forfeited property; it cannot have the effect of
returning property which has been vested in third parties or money in the
public treasury.

The President can remit a fine or forfeiture only with respect to

those within the interest of the state and not those of private parties
whose rights have been vested and fixed by the judgment. Fines and
forfeitures already paid to the treasury cannot be remitted either since
any disbursement of funds therefrom require legislation.

Remission refers to an act of liberality by virtue of which, without

receiving any equivalent, the creditor renounces the enforcement of the
obligation, which is extinguished in its entirety or in that part or aspect of
the same to which the remission refers.

Fine is a pecuniary punishment imposed by a lawful tribunal upon a

person convicted of crime or misdemeanor. (Esler vs. Ledesma, 52 Phil.
120)

Forfeiture is the incurring of a liability to pay a definite sum of

money as the consequence of violating the provisions of some statute or
refusal to comply with some requirement of law. It may be said to be a

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penalty for misconduct or breach of duty. (Cabal vs. Kapunan, 116 Phil
1366)

Is Suspension of Sentence the same as Reprieve?

No. Suspension of sentence is always a part of the judicial

while reprieve is always a part of the executive power. The suspension of
sentence simply postpones the judgment of the court temporarily or
indefinitely, but the conviction and liability following it, and all civil
disabilities, remain and become operative when judgment is rendered.
Reprieve on the other hand, is a prerogative exercised by the President of
the Philippines (Executive Clemency). Generally, it is applied to death
sentences already affirmed by the Supreme Court.

The Instances when Sentence may be suspended

The following are instances or situations in criminal cases wherein

the accused, either as an adult or as a minor, can apply for and/or be
granted a suspended sentence:

1. Where the accused became insane before sentence could be promulgated

(Art. 79, RPC);
2. Where the offender, upon conviction by the trial court, filed an application
for probation which has been granted. (Baclayon vs. Mutia, 129 SCRA 148
(1984])
3. Where the offender needs to be confined in a rehabilitation center because
of drug-dependency although convicted of the crime charged.
4. Where the offender is a youthful offender under Art. 192, PD 603,
otherwise referred to as the Child and Youth Welfare Code.
5. Where the crime was committed when the offender is under 18 years of
age and he is found guilty thereof in accordance with R.A. No. 9344,
otherwise known as the "Juvenile Justice and Welfare Act of 2006," but
the trial court subjects him to appropriate disposition measures as
prescribed by the Supreme Court in the Rule on Juveniles in Conflict with
the Law.
6. The death sentence shall be suspended upon a woman while she is
pregnant or within one year after delivery, (Art. 83, RPC)
7. Suspension of sentence of a First Time Minor Offender under Article 66 of
R.A. No. 9165, known as the Comprehensive Dangerous Drugs Act of
2002. (U.P Law Center, Suggested Answer for the 2006 Bar Examination
Question No. V, 2008 ed., pp. 19-20)

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Suspension of the Execution of Death Sentence under Article 83 of the RPC

Death sentence shall be suspended when the accused is a:

a. Woman, while pregnant;

b. Woman, within one year after delivery; or
c. A person over 70 years of age.

NOTE: The Office of the President shall not act upon any recommendation for executive clemency from
the Board unless all supporting documents enumerated above have been submitted. (Sec. 19, Amended
Guidelines for Recommending Executive Clemency)

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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Chapter 4: Pardon

At the end of this chapter the student should be able to:

• Define Pardon
• Enumerate different Kinds of Pardon
• Understand the Concept and Purpose of Pardon

Concept and Purpose of Pardon

Pardon is defined as an act of grace

given by those charged with the power and
authority to execute laws exempting the
individual subject of pardon from the
punishment the law inflicts for a crime he
has committed. The grant of pardon is an
executive clemency that rests exclusively
within the sound discretion of the President,
and is exercised with the objective of
preventing a miscarriage of justice or
correcting a manifest injustice. Pardon is an
act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts an individual, on whom
it is bestowed, from the punishment the law inflicts for a crime it has committed.
It is the private, though official act of the executive magistrate, delivered to the
individual for whose benefit it is intended, and not communicated officially to the
court. (De Leon vs. Director of Prisons, 31 Phil. 64)

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Pardon is a form of executive clemency granted by the President of the
Philippines as a privilege extended to a convict as discretionary act of grace.
Neither the legislative nor the judiciary branch of government has the power to
set conditions or establish procedures for the exercise of this Presidential
prerogative. It is highly political in nature and is usually granted in response to
popular clamor or to aid in the return to normalcy of a political situation that might
affect the country if not addressed.

Pardon is given by the Chief Executive and as such it is a private act which
must be pleaded and proved by the person pardoned because the courts take no
notice thereof. Pardon looks forward and relieves the offender from the
consequences of an offense of which he has been convicted. It abolishes or
terminates the punishment, and for that reason does not work the restoration of
the rights to hold public office, or the rights of suffrage, unless such rights are
expressly restored by the terms of the pardon, and it, in no case, exempts the
culprit from the payment of the civil indemnity imposed upon him by the sentence.
A pardon is a deed, to the validity of which delivery is essential, and delivery is
not complete without acceptance. The purpose of pardon is to afford relief from
undue harshness or evident mistake in the operation and enforcement of criminal
law. (Domondon, Primus, 2009 Wrap-up Reviewer Notes in Criminal Law, citing
Monsanto vs. Factoran, Jr., G.R. No. 78239, February 9, 1989)

The Proclamation of July 4, 1902, with respect to those offenses which have
arisen out of internal political feuds and dissensions among the Filipinos
themselves, such as the ordinary crimes of murder, robbery, arson, etc., must be
regarded in the nature of a pardon. (Moreno, Phil. Law Dictionary, 3rd ed., p. 675,
citing Villa vs. Allen, 2 Phil. 440)

A pardon may be general, applying to all persons falling within a certain

category, or it may be conceded to a single individual for an ordinary crime, in
which later case it is a special pardon, and evidenced by a writing, the acceptance
of which is necessary in order that it may become effectual. (Moreno, ibid, p. 675)

Different Kinds of Pardon

1. Absolute Pardon - refers to the total extinction of the criminal liability of

the individual to whom it is granted without any condition. It restores to
the individual his civil and political rights and remits the penalty imposed
for the particular offense of which he was convicted.

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2. Conditional Pardon - refers to the exemption of an individual, within
certain or conditions, from the punishment the law inflicts for the offense
he has committed resulting in the partial extinction of the criminal liability.
3. General Pardon - is a pardon which applies to all persons falling within a
certain category. (Villa vs. Allen, 2 Phil. 440)
4. Special Pardon - is s pardon which is conceded to a single individual for
an ordinary crime. (Villa vs. Allen, 2 Phil. 440)

Distinguish Amnesty and Absolute Pardon

1. In amnesty, the effects of a crime are erased or wiped out. Consequently,

the convict is deemed innocent as if no crime was committed at all; in
absolute pardon, the convict is excused from serving the sentence but
does not erase the effects of conviction (unless the pardon was granted
when the convict had already served the sentence).

2. Amnesty may be granted even if the offender has not yet been convicted
by virtue of a final judgment; it may be given before or after final
judgment. On the other hand, for absolute pardon to be valid, there must
already be a final and executory sentence.

3. Amnesty is a public act that requires the concurrence of Congress (the

House of Representatives and the Senate); while absolute pardon is a
private act of the Chief Executive

4. Amnesty is given to a class or group of offenders; while absolute pardon

is given to an individual convict.

5. Amnesty is extended only to offenders of political crimes; while absolute

pardon may be granted whether the crime is political or non-political.

Distinguish Conditional Pardon and Parole

1. The Chief Executive gives conditional pardon after conviction under the
provisions of the Revised Administrative Code; the Board of Pardons and
Parole (BPP) gives a prisoner who has served the minimum of an
indeterminate sentence parole:

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2. For violation of the conditional pardon, the offender may either be re-
arrested to serve the remitted penalty or prosecuted under Article 159 of
the Revised Penal Code (RPC); for violation of parole, the convict is re-
arrested to serve the unexpired portion of the penalty.

Distinguish Suspension of Sentence from Pardon

The power to suspend sentence and the power to grant reprieves and
pardons are totally distinct and different in their origin and nature:

1. Suspension of sentence is always a part of the judicial power, while

pardon is always a part of the executive power,

2. The suspension of sentence simply postpones the judgment of the court

temporarily or indefinitely, but the conviction and liability following it, and
all civil disabilities, remain and become operative when judgment is
rendered. A pardon reaches both the punishment prescribed for the
offense and the guilt of the offender. It releases the punishment and blots
out of existence the guilt, so that in the eyes of the law the offender is as
innocent as if he had never committed the offense. It removes the
penalties and disabilities, and restores to him all his civil rights. It makes
him as it were, a new man, and gives him a new credit and capacity
(Director of Prisons vs. Judge of First instance, 29 Phil. 294)

Distinguish Violation of Conditional Pardon from Evasion of Service of Sentence

by Escaping

Violation of conditional pardon does not cause harm or injury to the right
of other persons nor does it disturb the public order; it is merely an infringement
of the terms stipulated in the contract between the Chief Executive and the
Criminal.
Evasion of the service of the sentence is an attempt, at least, to evade the
penalty inflicted by the courts upon criminals and thus defeat the purpose of the
law of either reforming or punishing them for having disturbed the public order.
(Alvarez vs. Director of Prison, 80 Phil. 50)

Effect of Appeal from Conviction by the Trial Court

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Where an accused appealed his conviction by the trial court to the Court
of Appeals (CA), his application for pardon therefore, if one is made, should not
be acted upon or the process towards its grant should not be begun unless the
appeal is withdrawn. Hence, before an appellant may be validly granted pardon,
he must first ask for the withdrawal of his appeal, i.e., the appealed conviction
must first be brought to finality,

It was held in the case of People vs. Crisola, 128 SCRA 1, March 2, 1984,
that clemency terminates the appeal. However, said ruling was corrected in the
case of People vs. Salle, Jr., G.R No. 103567, December 4, 1995, which provides
that, since pardon can be extended only to one whose conviction is final, pardon
has no effect until the person withdraws his appeal and thereby allows his
conviction to be final.

It cannot absolve the convict of civil liability. In People vs. Nacional, G.R. No.
11294, September 7, 1995, the court said that the grant of conditional pardon
and the subsequent dismissal of the appeal did not relieve the accused of civil
liability.

Effect of the Death of Prisoner under Supervision

If a prisoner granted conditional pardon dies during the period of

supervision, the Probation and Parole Officer shall immediately transmit a
certified true copy of the prisoner's death certificate to the Board recommending
the closing of the case. However, in the absence of a death certificate, an
affidavit narrating the circumstances of the fact of death from the barangay
chairman or any authorized officer or any immediate relative where the prisoner
resided shall suffice. (Sec. 31, Amended Guidelines for Recommending
Executive Clemency)

Pardon by the Offended Party

Pardon by the offended party in the prosecution of the crimes of adultery,

concubinage, seduction, abduction, and acts of lasciviousness is provided under
Article 344 of the Revised Penal Code (RPC).

Distinction of Pardon by the Chief Executive from Pardon by the Offended Party

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1. Pardon by the chief Executive can extend to any crime, unless otherwise
provided by or subject to conditions in the Constitution or the laws.
Whereas pardon by the offended party applies only to crimes against
chastity under the Revised Penal Code.

2. Pardon by the Chief Executive extinguishes the criminal liability of the

offender; such is not the case when the pardon is given by the offended
party,

3. The former cannot affect the civil liability ex delicto (from or out of a
criminal act) of the offender whereas in the latter, the offended party can
waive the civil liability.

4. Pardon by the Chief Executive is granted only after conviction and may be
extended to any of the offender; while in cases where the law allows
pardon by the offended party, the pardon should be given before the
institution of criminal prosecution and must be extended to both offenders.

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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Chapter 5: Amnesty

At the end of this chapter the student should be able to:

• Define Amnesty
• Enumerate the Limitations on the Exercise of Granting Amnesty
• Understand Amnesty under Philippine, American, and Spanish
Law regime.

Definition and Nature of Amnesty

Amnesty, derived from the Greek

word amnasthia, has retained the original
general concept of oblivion, although it has
evolved into distinct technical concepts in
criminal law, constitutional law and
international law. A sovereign act of
forgiveness for past acts, granted by a
government to all persons (or to certain
classes of persons) who have been guilty of
crime or delict, generally political offenses
- treason, sedition, rebellion, draft evasion
- and often conditioned upon their return to
obedience and duty within a prescribed
time.

An amnesty is act of grace by the Chief Executive, proceeding from the

power entrusted with the execution of the laws and concurred by the legislature,
usually extended to groups of persons who committed political offenses, and

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which puts into oblivion the offense itself. (Defined by the Presidential
Communications Development and Strategic Planning Office)

Amnesty is an act of the sovereign power granting oblivion or a general

pardon for a past offense, and is rarely, if ever, exercised in favor of a single
individual, and is usually exercised in behalf of a certain class of persons, who are
subject to trial but have not yet been convicted. (Brown vs. Walker, 161 U.S. 602)
In one case, the Supreme Court, said amnesty "commonly denotes the general
pardon to rebels for their treason and other high political offenses, or the
forgiveness which one sovereign grant to the subject of another, who have
offended by some breach of the law of nations." The term "amnesty" belongs to
international law, and is applied to rebellions which by their magnitude are
properly within international law, but has no technical meaning in the common law.
It is a synonym of pardon. (Villa vs. Allen, 2 Phil. 436, 439 (1903])

Amnesty is a Proclamation of the Chief Executive with the concurrence of

congress, and it is a public act of which the courts should take judicial notice.
Amnesty looks backward and abolishes and puts into oblivion the offense itself, it
so overlooks and obliterates the offenses with which he is charged that the person
released by amnesty stands before the law precisely as though he had committed
no offense. (People vs. Casido, G.R. No. 116512, March 7, 1997)

Father Joaquin G. Bernas, S.J. defines amnesty basically as a general pardon

and submits that what distinguish the two forms of executive clemency (pardon
and amnesty) are simply the "number of recipients of the acts of clemency and
the nature of the offense which is their subject." In fact, he opines that what the
President may not grant by amnesty because of the non-concurrence of Congress,
he may grant by individual pardon.

In essence, amnesty is viewed in municipal law, whether in constitutional

law or criminal law, as an act of mercy by the sovereign partaking of the nature
of an executive clemency.

Purpose of Amnesty

The purpose of amnesty is to hasten a country's return to political normalcy

by putting behind it the animosities of the past through a pardon that will open the
door to living normal lives for groups of people targeted by the amnesty. These
groups were once involved in political activities during certain troubled times like
war or rebellion and by making a gesture of the state forgetting past destructive

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activities of political dissidents or rebels and allowing them to lead normal lives,
the country in turn will ensure its return to normalcy.

Amnesty Completely Extinguishes the Penalty and Its Effects

Amnesty looks backward and abolishes and puts into oblivion the offense
itself, it so overlooks and obliterates the offense with which he is charged; that
the person released by amnesty stand before the law precisely as though he had
committed no offense. In one case decided by the Supreme Court, it was held that
to avail of the benefits of an amnesty proclamation, one must admit his guilt of the
offense covered by the proclamation. (Vero v People of the Philippines, 7 SCRA
152)

Amnesty is a public act of which the court should take judicial notice. Thus,
the right to the benefits of amnesty, once established by the evidence presented,
either by the complainant or prosecution or by the defense, cannot be waived,
because it is of public interest that a person who is regarded by the Amnesty
Proclamation, which has the force of law, not only as innocent, for he stands in
the eyes of the law as if he had never committed any punishable offense because
of the amnesty, but as a patriot or hero, and not be punished as a criminal (Herrero,
Remedial Law IV, 2007 ed., p. 659 citing Barrioquinto, et al. vs. Fernandez, et al.,
82 Phil. 642 (1949)

Limitations on the Exercise of Granting Amnesty

1. It cannot be granted in cases of impeachment (Sec. 19, Art. VII of the

Constitution);

2. It cannot be granted in cases of violation of election laws without the

favorable recommendation of the Commission on Elections (Sec. 5, Art.
IX-C):

3. A grant of amnesty must be with the concurrence of a majority of all

members of congress.

Distinguish Amnesty under Philippine laws and American laws

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Basically, amnesty as it has been utilized and understood in Philippine
history, is taken as having the same nature and effect as its American
counterpart. The only difference is in the source of the power to grant amnesty,
in the Philippines, amnesty is granted by the Chief Executive with the
concurrence of Congress, while amnesty in the United States (U.S.) is deemed
included in the pardoning power of the President.

Under American constitutional law, amnesty is defined as "an exercise of

the sovereign power by which immunity to prosecution is granted by wiping out
the offense supposed to have been committed by a group or class of persons
prior to their being brought to trial." By express provision, grant of amnesty
takes the form of a general pardon by virtue of presidential proclamations
without the concurrence of Congress.

As practiced in the U.S., an amnesty in favor of a class or classes of

person accused of certain offenses against the State is deemed to constitute an
act of oblivion, obliterating not just the penalty but also the offense itself. This
was the effect of the amnesty proclamation issued in 1863 by US President
Abraham Lincoln following the Civil War in the US, and during the Vietnam
conflict in the 1970s to favor those guilty of violating the Military Selective
Service Act amidst strong opposition from different sectors.

In the 1987 Philippine Constitution particularly Section 19, paragraph 2,

the power to grant amnesty is expressly provided and granted to the President
subject to the concurrence of a majority of the members of Congress. Philippine
Presidents have used amnesty to restore unity and harmony in society after
divisive issues polarized Philippine society.

Throughout Philippine constitutional history, except the period of

American military occupation of the islands, the power to grant amnesty has
always been expressly provided for as a power shared by both the executive
and the legislative branches of government.

Amnesty during the Spanish Regime

Studies of the Philippine history have mentioned amnesty proclamations

made in the nature of general pardons during the Spanish regime granted by
Governor-Generals to include Legazpi (to Rajah Soliman and other chiefs in the
1570s), Polavieja (January 11, 1897), Fajardo, Corcuera and Manrique de Lara,
particularly those granted to Filipino and Chinese insurgents.

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Amnesty during the American Regime

The first amnesty proclamation in the country took effect in the

20thcentury and was issued by US President Roosevelt on July 4, 1902. It
granted full and complete pardon and amnesty in favor of persons who
committed treason, sedition and all other crimes of political character in the
course of the "insurrection" of the Filipinos against the Spaniards, as well as
those who gave aid or comfort to said persons. The proclamation also covered
offenses, which grew out of internal political feuds and dissensions between
Filipinos and Spaniards or with the Spanish authorities or among the Filipinos
themselves. The only condition set forth in the terms of the proclamation was
the taking of an oath of allegiance to the United States of America. The
proclamation, deemed as a "wise and humane" act "conducive to peace, order
and loyalty," excluded the following from its coverage:

1. Persons committing crimes since May 1, 1902 in any province where the
civil government is already established; and

2. Those convicted of murder, rape, arson, or robbery by any military or civil

tribunal organized by the Spanish or American authorities, unless they
have applied for and were granted pardon. In spite of these exclusions,
however, it is still, in essence, the only general amnesty which took effect
in the Philippines so far because the grant covered not only those
offenses which arose from the revolution against Spain but also those
which grew out of internal dissensions. Furthermore, the amnesty applied
to all areas that came under the jurisdiction of the American government.
This power to grant pardon and reprieve was later extended to the
Governor General of the Philippine Islands under the Jones Law in 1916.

The 1935 Constitution, after the draft by a Constitutional

Convention received the approval of the President of the United States
and the ratification of the Filipino electorate, established the Philippines as
a Republican State and provided that: The President shall have the power
to grant amnesty with the concurrence of the National Assembly.

Effects of the Amnesty Proclamation No. 50 issued by President Benigno S.

Aquino III

1. To extinguish any criminal liability for acts committed in relation to, in

connection with or incident to the July 27, 2003 Oakwood Mutiny, the
February 2006 Marines Stand-Off and the November 29, 2007 Manila Pen

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Incident without prejudice to the grantee's civil liability for injuries or
damages caused to private persons.
2. To effect the restoration of civil and political rights or entitlement that
may have been suspended, lost, or adversely affected by virtue of any
executive action and/or administrative criminal action or proceedings
lodged against the grantee in connection with the subject incidents,
including criminal conviction or any form, if any.
3. All enlisted personnel of the Armed Forces of the Philippines whose
applications for amnesty would be approved shall be entitled to
reintegration or reinstatement, subject to existing laws and regulations
Officers of the AFP on the other hand shall not be entitled to reintegration
or reinstatement into the service.
4. The amnesty shall reinstate the right of AFP personnel to retirement and
separation benefits, if so qualified under existing laws and regulations at
the same time of the commission of the acts for which the amnesty is
extended.

Express Amnesty and Implied Amnesty

An express amnesty is one granted in direct terms such as a Presidential

proclamation or a law enacted by the legislature granting amnesty. An implied
amnesty, on the other hand, takes place in international law when a treaty of
peace is made between contending parties; in domestic or municipal law, it
results from the inhibition of the State from prosecuting or punishing persons
who committed political offenses, or when the law punishing a certain crime is
repealed with retroactive effect resulting in the decriminalization of the act and
the release of those charged or convicted for the same. Congress' recent repeal
of Republic Act 1700, known as the Anti-Subversion Law, is an implied amnesty.

General Amnesty and Limited Amnesty

A general amnesty is granted to a whole class of persons within the

territorial domain or under the effective jurisdiction of the sovereign issuing the
decree, while a selected or limited amnesty covers a segment of a particular
class only or the portion of the sovereign's territorial jurisdiction, or specific
acts committed within a limited or specified time frame. A grant of general
amnesty, therefore, usually takes effect within the whole country with respect to
all political dissenters who had performed acts for which the amnesty is granted,
subject to the conditions imposed by the grant, if any. The sole criterion is the

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commission of the act alone as specified in the decree. A limited amnesty, on the
other hand, qualifies the grant with respect to persons/groups to be favored,
places where the amnesty is to be effective and/or the time frame to which the
decree was limited.

Conditional Amnesty and Unconditional Amnesty

There is a slight variance in international law, where a general amnesty is

general in the sense that it provides immunity for all wrongful acts done by the
belligerents themselves, the members of their forces and their subjects during
the war, and a limited amnesty provides immunity only for such offenses and/or
persons provided within the terms of the decree. When the grant of amnesty is
subject to the fulfillment of certain requisites, such as the filing of an application,
the laying down of arms, and the taking of an oath of allegiance, that amnesty is
deemed conditional, i.e., that the amnesty will only be granted if the applicants
comply with certain requirements and procedures, as compared to a grant which
is expressed in broad terms and does not lay down specific requirements and
procedures. Amnesties belonging to the latter category are deemed
unconditional.

Difference between Amnesty and Pardon

1. A special form of pardon exercised by the President of the Republic is

amnesty. Amnesty is a general pardon extended to a certain class of
people who are usually political offenders. Although pardon is likewise
issued by the President and is also political in nature, it is an exclusive act
of the President where the court and Congress has no say whatsoever

2. Amnesty operates objectively with respect to the crime, and by virtue

thereof the latter should be regarded as wiped out, pardoned and
forgotten. It is in this respect that an amnesty is distinguished from an
ordinary pardon, which is more of a subjective character and solely
affects the person pardoned, and is granted upon the supposition of the
actual existence of the crime.

3. A pardon is very different in its character and effect from an amnesty,

which is much more favorable in every respect to those benefited thereby.
The effects and legal consequences of an amnesty are entirely distinct

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from and cannot be legally confused with those of a pardon. (Villa vs.
Allen, 2 Phil. 440)

The Notional Amnesty Commission (NAC)

The National Amnesty Commission (NAC) is the primary agency tasked to

receive and process applications for amnesty, and determine whether the
applicants are entitled to amnesty under any proclamation by the President
granting amnesty. Pursuant to its functions, it has the power to promulgate rules
and regulations subject to the approval of the President. Final decisions or
determinations of the NAC are appealable to the Court of Appeals (CA).

The National Amnesty Commission (NAC), was created by virtue of

Proclamation No. 347, dated 25 March 1994, to receive and process former
rebels' applications for amnesty and determine whether the applicants are
entitled for the grant of amnesty under said Proclamation. The commission, to
date, has received almost 25,000 amnesty applications and granted amnesty to
more than 20,000 former rebels.

The Abolition of the National Amnesty Commission (NAC)

By virtue of Executive Order No. 415 issued by President Gloria

Macapagal Arroyo on March 22, 2005, the National Amnesty Commission (NAC)
is thereby abolished. As provided therein, the term of the NAC, created under
Proclamation No. 347, is thereby deemed expired in view of the completion of
its assigned tasks as provided by Section 4 thereof. All assets, liabilities, choses
in action, equipment, facilities, funds, records and other properties of the NAC
are hereby transferred to the Office of the Presidential Adviser on the Peace
Process ("OPAPP"). (Sections 1 and 2 of E.O. No. 415)

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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Chapter 6: Probation

At the end of this chapter the student should be able to:

• Define Probation
• Enumerate the Purpose, objectives, and Advantages of
Probation
• Understand the Historical Background of Probation in the
Philippines

Probation

Probation as a term and as a

procedure is derived from the Latin word
"Probare" meaning to prove. Therefore, as
the term Latin Etymology states,
probation involves the testing of an
offender as he proves that he is worthy of
his freedom. Probation can be defined as
a sentence imposed by the courts on
offenders who have either pleaded guilty
or have been found guilty. Instead of being
incarcerated, an offender placed on
probation is retained in the community under the supervision of a probation
agency. The offender is provided with supervision and services. Continuation of
probation depends on the offender's compliance with the rules and conditions of
the probation sentence.

Probation generally follows a trial at which the person has been found guilty,
or a plea of guilty is entered in lieu of an actual trial. It permits the offender to
remain within the community subject to good behavior, no involvement in further

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illegal behavior, and other conditions imposed by the court, such as restitution to
victims or to attend the alcoholics anonymous group sharing sessions. Probation
not only prevents further stigma of imprisonment and its damaging effects; the
offender to continue to work and support any dependents.

In the U.S., another variation on the concept of probation has become known
as "shock probation" or "shock imprisonment." In a strict sense it is not part of a
probation system, as does not involve incarceration. In shock probation, it allows
the sentencing judge to impose the legal sentence and order incarceration of the
offender, only to recall the legal sentence and order incarceration of the offender,
only to recall him after a brief, legislatively defined period of imprisonment (in
Ohio, a maximum of 130 days). The system derived its name from the shock
effects of short-term incarceration, believed to be sufficient to convince certain
individuals who have never before been imprisoned that further criminal behavior
is too risky and likely to be met with severe punishment. The offender presumably
does not know that his term will be shortened, and part of the shock is that he
anticipates a long period in prison until the sudden release. (Allen, Friday,
Roebuck, and Sagarin, Punishment, 1981 ed., p. 362)

Something similar to shock probation is found in the federal courts, and is

known as "split sentencing." Here the offender is actually sentenced to a term in
prison, but is notified in advance that, after a given brief period of satisfactory
behavior, he can serve the remainder of his sentence on probation. (ibid)

As practiced in the Philippines, probation implies a contract between the

court and the offender in which the former promises to hold a prison term in
abeyance while the latter promises to adhere to a set of rules or conditions
required by the court. If the rules are violated, especially if the probationer
commits another criminal offense, probation may be revoked; this means that the
contract is terminated and the original sentence enforced. Probation may be
revoked simply because the rules and conditions of probation have not been met,
even if the offender has not committed another crime.

Historical Context of Probation

Probation developed out of various practices used under English common

law. One such practice, known as benefit of clergy, seems to be the earliest device
for softening brutal severity of punishment. It allowed certain accused individuals
to appeal to the court for leniency in sentencing by reading from the Bible. Another
practice was judicial reprieve, whereby a convicted offender could ask the judge

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to suspend the sentence on the condition that the offender displays future good
behavior. It is 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 the condition that they accept deportation or transportation.

Two names are closely associated with the founding of probation: Matthew
Davenport Hill, an 18th-century English barrister and judge; and John Augustus,
a 19th-century Boston boot-maker.

As a young professional in England, Hill had witnessed the sentencing of

youthful offenders to one day terms, on the condition that they are returned to a
parent or guardian who would 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.

The more immediate origins of modern probation lie in the efforts of John
Augustus (1785-1859), a Boston shoemaker, who is considered the "father of
probation," and recognized as the first true probation officer. Augustus was born
in Woburn, Massachusetts in 1785. Starting in the early 1840s, Augustus
volunteered to stand bail and assume custody for select, less serious offenders in
exchange for the judge's deferring the sentence/Augustus was responsible for
monitoring offenders' activities and later reporting to the judge on their
performance in the community. If the judge was satisfied with the community
performance, charges were dropped; if not, sentencing proceeded. Augustus
received no pay for his 18 years of court work. He used his own money and
voluntary contributions from others to finance his effort.

In 1870, Father Cook, another Bostonian, continued the work of Augustus

by identifying youthful offenders being tried in the courts and whose cases were
committed by force of circumstance and not due to the criminal nature of the
accused, After finding that the offender is not a hardcore felon and can still be
reformed, Father Cook presented himself before the court as adviser to the
offender. Realizing the value of what he is doing, the courts usually consented to
placing convicted youths under his charge to be reformed.

Influenced by the efforts of Augustus, the United States, probation came to

be regulated by a statute for the first time in 1878 when Massachusetts passed a

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law providing for the appointment of a paid probation officer for the courts of
criminal jurisdiction in the city of Boston/The first Probation Law was passed by
the Legislature of Massachusetts and signed into law by Governor Alexander B.
Rice on April 26, 1878. By a statute of 1880 the right to appoint probation officers
was extended to all cities and towns in Massachusetts. In 1887, the city of Boston
appointed the First government probation officer in the name of Edward H.
Savage, the former chief of police of Boston City.

Vermont Act of 1898 was the second state-enacted probation law. Unlike
in Massachusetts, here, the offender or probationer was the one who pays the
trial cost. At first, all state probation officers were on part time, but after 1936,
full-time officers were assigned in districts to have charge of parole as well as
probation.

The first Federal Probation Bill was introduced by the Lower and Upper
Chamber of U.S. Congress sponsored by Representative Mc. Call of
Massachusetts and Senator Robert T. Owen of Oklahoma, respectively. However,
these two legislative proposals were both failed. The second Federal Probation
Bill was introduced by Senator Royal S. Copeland of New York on December 12,
1923 sponsored by Representative George S. Graham which was later on
approved by the two separate chambers. On March 4, 1925, President Calvin
Coolidge signed the Federal Probation Act of 1925 into law.

Section 3. Meaning of Terms. As used in this Decree, the following shall, unless
the context otherwise requires, be construed thus:

(a) "Probation" is a disposition under which a defendant, after conviction and

sentence, is released subject to conditions imposed by the court and to the
supervision of a for the court a referral for probation officer.
(b) "Probationer" means a person placed on probation.
(c) "Probation Officer" means one who investigates probation or supervises a
probationer or both.

Nature and Concept of Probation

Probation is a disposition under which a defendant, after conviction and

sentence, is released subject to conditions imposed by the court and to the
supervision of a probation officer (Section 3[a], P.D. No. 968, as amended). It is
actually a suspension of sentence during the period the defendant is placed on

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probation upon application to the court by the defendant. (Section 4, P.D. No. 968,
as amended)

Probation is a mere privilege and its grant rests solely upon the discretion
of the court. Probation is not a right of the accused, but rather an act of grace and
clemency or immunity conferred by the State which may be granted by the court
to a seemingly deserving defendant who thereby escapes the extreme rigors of
the penalty imposed by law for the offense of which he stands convicted. Probation
affects only the criminal aspects of the case but it is not a penal statute. (Francisco
vs. Court of Appeals, 243 SCRA 595)

Privilege is a peculiar benefit or immunity conferred by law on a person or

group of persons, not enjoyed by others or by all; special enjoyment of a good or
exemption from evil; it is a special prerogative granted by law to some persons.
Accordingly, the grant of Probation rests solely upon the discretion of the court.
This discretion is exercised primarily for the benefit of an organized society and
only incidentally for the benefit of the accused (Bolo v. Martinez, G.R. No. 67301,
January 29, 1990)

Three-fold Purpose of the Probation Law

1. To promote the correction and rehabilitation of an offender by providing

him with individualized treatment;
2. To provide an opportunity for the reformation of a penitent offender which
might be less probable if he were to serve a prison sentence;
3. To prevent the commission of offenses.

Objectives of the Probation Law

1. To promote the correction and rehabilitation of an offender by providing

him with individualized treatment
2. To provide an opportunity for the reformation of a penitent offender which
might be less probable if he were to serve a prison sentence;
3. To prevent the commission of offenses,
4. To decongest our jails or prisons; and
5. To save the government much needed finance for maintaining convicts in
jail.

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Advantages of Probation

1. Prevents crimes by offering freedom and aimed only to those offenders who
are not likely to assault society again.
2. Protects society by placing under close supervision non-dangerous
offenders while undergoing treatment and rehabilitation in the community
3. Conforms to modern humanistic trends in penology.
4. Prevents youthful or first-time offenders from turning into hardened
criminals.
5. Is a measure of cutting enormous expense in maintaining jails.
6. Reduces recidivism and overcrowding jails and prisons.
7. Reduces the burden on the police force and institutions of feeding and
guarding detainees.
8. Gives the first and light offenders a second change in life and provides for
the reformation of penitent offenders.
9. Makes the offenders productive taxpayers instead of tax eaters.
10.Restores to successful probationers their civil rights lost in view of the
offense.
11.Has been proven effective in developing countries that have adopted it.
12.Is advocated by the United Nations (UN) in its various congresses in crime
prevention and treatment of offenders.

The Four (4) Essential Elements of Probation

As provided for by the Probation Act of 1976, there are four (4) essential
elements of the Adult Probation System, to wit:

1. A post-sentence investigation report which will serve as the informational

basis for the court's decision to grant or deny probation (Secs. 5, 6, and 7,
P.D. No. 968, as amended);
2. The conditional suspension of execution of sentence by the court (Sec. 4,
P.D. No. 968, as amended);
3. Conditions of probation imposed by the court to protect public safety and to
foster the rehabilitation and reformation of the probationer (Sec. 10, P.D.
No. 968, as amended); and
4. Supervision, guidance and assistance of the offender by a probation officer
(Sec. 13, P.D. No. 968, as amended)

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Except where Death Penalty is Imposed, a Judgment of Conviction in a Criminal
Case, Becomes Final when:

1. no appeal is seasonably perfected;

2. the accused commences to serve the sentence;

3. the right to appeal is expressly waived in writing;

4. the accused applies for probation, thereby waiving his right to appeal.

Who may apply for Probation?

The probation law shall apply to all offenders except those entitled to the
benefits under the provisions of Presidential Decree Numbered Six Hundred and
Three and similar laws. (Sec. 1)

Necessity of Application

Probation may not be granted except upon application by the defendant.

Such is the manifest intent of the law when it states that the court may, after it
shall have convicted and sentenced a defendant within the period for perfecting
an appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best.
(Francisco vs. Court of Appeals, 60 SCAD 444, 243 SCRA 384)

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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Chapter 7: Rules on Grant /

Revocation of Probation
At the end of this chapter the student should be able to:

• Define Probation
• Enumerate the Rules on Granting of Probation/ the Revocation
of Probation
• Understand the Mandatory, Discretionary, and Special
Conditions of probation

Rules on Grant of Probation

1. After having convicted and sentenced a defendant, the trial court may
suspend the execution of the sentence and place the defendant on probation
upon application by the defendant within the period for perfecting an appeal
(15 days from date of promulgation of the decision convicting the accused).
2. Probation may be granted whether the sentence imposes a term of
imprisonment or fine only.
3. No application for probation shall be entertained or granted if the defendant
has perfected an appeal from the judgment of conviction.
4. In case an appeal is made but has not yet been perfected, an application for
probation may still be filed and such is deemed a withdrawal of the appeal.
5. The filing of the application for probation operates as a waiver of the right
to appeal.
6. The application for probation shall be filed with the trial court and the order
granting or denying probation shall not be appealable. (Sec. 4, PD No. 968,
as amended)

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Penalty which Makes a Convict Qualified for Probation

The penalty must not exceed six (6) years (equivalent to prision
correctional) imprisonment. In case of multiple convictions, the basis for
determining whether or not the penalty qualifies the convict for probation is the
term of individual imprisonment and not the sum total of all prison terms imposed
in the decision.

Fixing the cut-off point at a maximum term of six (6) years imprisonment
for probation is based on the assumption that those sentenced to higher penalties
pose too great a risk to society, not just because of their demonstrated capability
for serious wrongdoing but because of the gravity and serious consequences of
the offense they might further commit.

Criteria for Placing an Offender on Probation; the Court shall Consider All
information Relative to: (Sec. 8, P.D. 968, as amended)

1. Character

2. Antecedent

3. Environment

4. Mental condition of the offender

5. Physical condition of the offender

6. Available institutional and community resources

Circumstances when Probation shall be denied (Sec. 8, P.D. 968, as amended)

Probation shall be denied if the court finds that:

1. The offender is in need of correctional treatment that can be provided most

effectively by his commitment to an institution, or
2. There is undue risk that during the period of probation the offender will
commit crime, or
3. Probation will depreciate the seriousness of the offense committed.

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Offenders disqualified from being placed on Probation

The benefits of PD. No. 968, as amended, shall not be extended to those:

1. Those who have perfected an appeal from the judgment;

2. These sentenced to serve a maximum term of imprisonment of more than
six years (Sec. 91a) P.D. 968, as amended);
3. Those convicted of subversion or any crime against the national security or
public order (Sec 9[b], P.D. 968, as amended)

Where to File, When to File and Effect of an Application for Probation

An application for probation shall be filed with the trial court within the
period for perfecting an appeal. In Palo vs. Militante 184 SCRA 395, the Supreme
Court said that an application for probation was never intended to suspend the
period for the perfection of an appeal, and the filing of the application for probation
operate as a waiver of the right to appeal. The effects of an application for
probation are:

1. The court may suspend the execution of the sentence; and

2. An order granting or denying probation is not appealable. It is an

interlocutory order (does not dispose of the case but leaves something else
to be done by the court to whom it was issued) because it is not a final
judgment.

Notification and Comment of Trial Prosecutor of the filing of an Application for

Probation

The court shall notify the Trial Prosecutor of the filing of an application for
the grant of probation filed by a defendant after conviction and sentencing but
before service of sentence. A Trial Prosecutor shall submit his comments to the
application for probation within ten (10) days from receipt of the notification of
the filing of said application. (Sections 4 and 5, Part XI DOJ Manual for
Prosecutors)

Release of an Applicant for Probation Pending Resolution of the Application for

Probation

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Pending resolution of the application for probation, the defendant shall be
released on temporary liberty under his bail filed in the criminal case. In case no
bail was filed or if the defendant is not capable of filing one, the court may release
the defendant on recognizance to the custody of a responsible member of the
community who shall guarantee his appearance whenever required by the court.
(Sec. 6, Part XI DOJ Manual for Prosecutors; Sec. 7, 2 paragraph, P.D. No. 968,
as amended)

The grant of bail or recognizance by the trial court to the petitioner for
probation while waiting for the resolution of his application for probation is an
exception to the rule that, no bail is granted after final judgment. As provided, "an
accused shall not be allowed bail after the judgment has become final, unless he
has applied for probation before commencing to serve sentence, the penalty and
the offense being within the purview of the Probation Law. In case the accused
has applied for probation, he may be allowed temporary liberty under his bail bond,
but if no bail was filed or the accused is incapable of filing one, the court may
allow his release on recognizance under the custody of a responsible member of
the community. In no case shall bail be allowed after the accused has commenced
to serve sentence." (Sec. 11, Part V-Bail, DOJ Manual for Prosecutors)

Objection of the Trial Prosecutor to the Grant of Probation

The Trial Prosecutor shall. Object to the application for the grant of
probation in the following instances:

1. If the defendant fails to comply with any of the criteria for the grant of
probation as set forth in Section 8 of Presidential Decree No. 968, as
amended;

2. If there is no post-sentence investigation conducted by a probation officer,

3. If the application is filed after an appeal from the convicted is perfected; or

4. If the applicant is one –

Sentenced to more than six (6) years and (1) day;

a. Convicted of an offense against the security of the state; a.

b. Who has been previously convicted by final judgment of an

offense punished by imprisonment of not less than one (1)

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month and one (1) day and/or a fine of not more than Two
Hundred pesos (Php. 200.00); and

c. Who has once been on probation under P.D. No. 968, as

amended. (Sec. 7, Part Xi, DOJ Manual for Prosecutors)

Conduct of Post Sentence Investigation

By express mandate of the Probation Law of 1976, as amended, no person

shall be placed on probation except upon prior investigation by the probation
officer and a determination by the court that the ends of justice and the best
interest of the public will be served thereby. (Sec. 5, P.D. No. 968, as amended)

Toward this end, the probation officer is heretofore directed to submit to

the court the investigation report on a defendant not later than sixty (60) days
from receipt of the order of said court to conduct the investigation (Sec. 7, P.D.
No. 968, as amended). From this provision of law, it is thus clear that a prior
investigation by the probation officer is a condition sine qua non to the grant or
denial of probation, the court being obviously bound by considerations of public
interest as well as the welfare of the offender. The significance of a post sentence
investigation lies in the fact that the same shall serve as the informational basis
for the court's decision to grant or deny probation to qualified offenders.

The Conditions of Probation

The grant of probation is merely a privilege and its grant rests upon the
discretion of the court Conditions should be interpreted with flexibility in their
application and each case should be judged on its own merits on the basis of the
problems, needs and capacity of probation (Baclayan vs. Mutia 129 SCRA 148).
The defendant after conviction and sentence is released subject to the mandatory
and discretionary conditions imposed by the court and to the supervision of a
probation officer.

Court's Latitude in Imposing Conditions

As a rule, the conditions listed under Section 10 of the Probation Law are
not exclusive. Courts are allowed practically any term it chooses, the only
limitation being that it does not jeopardize the constitutional rights of the accused.
Courts may impose conditions with the end that these conditions would help the

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probationer develop into a law-abiding individual. (Baclayon vs. Mutio 129 SCRA
148)

The trial court is given the discretion to impose conditions in the order granting
the probation was it may deem best." It is necessary that the conditions which
provides for a program of payment of his civil liability will address the offender's
needs and capacities. Such need may be ascertained from the findings and
recommendations in the post sentence investigation report submitted by the
probation officer after investigation of the financial capacity of the offender and
that such condition is to the end that the interest of the State and the reformation
of the offender or probationer is best served. (Salgado vs. Court of Appeals, G.R.
No. 89606, August 30, 1990, 189 SCRA 304)

The Mandatory Conditions of Probation

1. The probationer should present himself to the probation officer designated

to undertake his supervision at such place as may be specified in the order
within seventy-two (72) hours from receipt of said order (Sec. 10(a), P.D.
968, as amended);
2. Report to the probation officer at least once a month at such time and place
as specified by said officer (Sec. 10[b], P.D. 968, as amended).

The Discretionary or Special Conditions of Probation (Sec. 10, 2nd par. [a-k), P.D.
968, as amended)

The court may also require the petitioner to:

1. Cooperate with a program of supervision;

2. Meet his family responsibilities,
3. Devote himself to a specific employment and not to change said employment
without the prior written approval of the probation officer;
4. Undergo medical, psychological or psychiatric examination and treatment
and enter and remain in specified institution, when required for that
purpose;
5. Pursue a prescribed secular study or vocational training,
6. Attend or reside in a facility established for instruction, recreation or
residence of persons on probation;
7. Refrain from visiting houses of ill-repute;
8. Abstain from drinking intoxicating beverages to excess;
9. Permit to probation officer or an authorized social worker to visit his home
and place or work;

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10.Reside at premises approved by it and not to change his residence without
its prior written approval; or
11.Satisfy any other condition related to the rehabilitation of the defendant and
not unduly restrictive of his liberty or incompatible with his freedom of
conscience.

Effectivity of a Probation Order

A probation order shall take effect upon its issuance, at which time the court
shall inform the offender of the consequences thereof and explain that upon his
failure to comply with any of the conditions prescribed in the said order or his
commission of another offense, he shall serve the penalty imposed for the offense
under which he was placed on probation. (Sec. 11, P.D. No. 968, as amended)

Duration or Period of Probation (Sec. 14, P.D. 968, as amended)

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

of not more than one (1) year shall not exceed two (2) years;
2. If more than one (1) year to six (6) years, said period shall not exceed six
(6) years.
3. When the sentence imposes a fine only and the offender is made to serve
subsidiary imprisonment in case of insolvency, the period of probation shall
not be less than nor to be more than twice the total number of days of
subsidiary imprisonment as computed at the rate established in Article
thirty-nine (39) of the Revised Penal Code (RPC), as amended.

Control and Supervision of Probationer

The probationer and his probation program shall be under the control of the
court that placed him on probation subject to the actual supervision and visitation
by a probation officer.

Whenever a probationer is permitted to reside in a place under the jurisdiction of

another court, control over him shall be transferred to the Executive Judge of the
Court of First Instance (Regional Trial Court) of that place, and in such a case, a
copy of the probation order, the investigation report and other pertinent records
shall be furnished said Executive Judge. Thereafter, the Executive Judge to whom
jurisdiction over the probationer is transferred shall have the power with respect
to him that was previously possessed by the court which granted the probation.
(Sec. 13, P.D. No. 968, as amended)

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The Revocation of Probation Procedure

The probation is revocable before the final discharge of the probationer by

the court. At any time during probation, the court may issue a warrant for the
arrest of a probationer for violation of any of the conditions of probation. The
probationer, once arrested and detained, shall immediately be brought before the
court for a hearing, which may be informal and summary, of the violation charged.
The defendant may be admitted to bail pending such hearing. In such a case, the
provisions regarding release on bail of persons charged with a crime shall be
applicable to probationers arrested under these provisions. (Sec. 15, 1“par., P.D.
968, as amended) If the violation is established, the court may revoke or continue
his probation and modify the conditions thereof.

In the hearing, which shall be summary in nature, the probationer shall have
the right to be informed of the violation charged and to adduce evidence in his
favor. The court shall! not be bound by the technical rules of evidence but may
inform itself of all the facts which are material and relevant to ascertain the
veracity of the charged. The State shall be represented by a prosecuting officer
in any contested hearing. If the violation is established, the court may revoke or
continue his probation and modify the conditions thereof. If revoked, the court
shall order the probationer to serve the sentence originally imposed. An order
revoking the grant of probation or modifying the terms and conditions thereof shall
not be appealable. (Sec. 15, 2nd par., P.D. 968, as amended)

Rules where there is Violation of Probation

Violation of probation shall be understood to mean any act or omission on

the part of a probationer, which is contrary to the terms and conditions specified
in the probation order.

The Probation Officer may motu proprio (on its own motion or initiative) or
upon the report of a probation aide or any other person, conducts a fact-finding
investigation of any alleged violation of probation. If the investigation establishes
the violation of probation, the Probation Officer shall report the same to the court.
(Sections 34-35, Rules on Probation Methods and Procedures)

The Arrest of the Probationer and Hearing on the Violation of Probation

The court after considering the nature and seriousness of the alleged
violation on the basis of the report mentioned in Section 37 above, may issue a

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warrant for the arrest of the probation. (Sec. 38, Rules on Probation Methods and
Procedures)

Once arrested and detained, the probationer shall immediately be brought

before the court for hearing of the violation charged. The hearing may be informal
and summary probationer for violation of the petitioner may be admitted to bail
pending such hearing. In such a case, the provisions regarding release on bail of
persons charged with a crime shall be applicable to probationers arrested under
this provision (Sec. 39). The probationer shall have the right to be assisted by
counsel at the hearing for the violation of probation (Sec. 41). The Probation Office
may be assisted in the hearing by the Prosecuting Officer in the presentation of
the proof or evidence of the alleged violation of probation. (Sec. 42, Rules on
Probation Methods and Procedures)

How Probation is Terminated and Effects of its Termination

Upon consideration of probation officer's report, the court may order final
discharge of the probationer thereupon the case is deemed terminated. It was held
in Bala vs. Martinez, et al., 181 SCRA 459 that, the probation is not coterminous
with its period, hence mere lapse of the probation period does not terminate the
probation. There must be an order issued by the court terminating the probation.
The termination of probation restores to the probationer all civil rights and fully
discharge his liability for any fine imposed as to the offense for which probation
was granted. After the period of probation and upon consideration of the report
and recommendation of the probation officer, the court may order the final
discharge of the probationer upon finding that he has fulfilled the terms and
conditions of his probation and thereupon the case is deemed terminated.

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

The probationer and the probation officer shall each be furnished with a
copy of such order. (Sec. 16, P.D. No. 968, as amended)

Causes for Probation Cases to be Terminated or Closed

The probation case may be closed by termination due to:

1. Expiration of the period of probation;
2. By revocation for cause under the Probation Law;
3. By the death of the probationer:

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4. By the successful completion of a program of probation. (Sec. 49, Rules on
Probation Methods and Procedures)

Final Report for Closing or Terminating the Probation Case

The Rules on Probation provides that, at least thirty (30) days before the
expiration of the period of probation, the Probation Office shall submit a final
report (Probation Form No. 9) to the court, which shall indicate the following,
among others:

1. The program of supervision and treatment followed in dealing with the

probationer;

2. The response of the probationer to supervision and treatment;

3. The result of said supervision;

4. A recommendation as to whether or not the probationer may be discharged

from probation or in the alternative, whether probation should be continued,
where applicable; and if discharged, to advise the probationer to continue
therapy, where necessary, even after the termination of probation; and

5. Such other information as may be required by the court. (Sec. 50, Rules on
Probation Methods and Procedures)

Confidentiality of Records of a Probationer

The investigation report and the supervision history of a probationer

obtained under this Decree shall be privileged and shall not be disclosed directly
or indirectly to anyone other than the Probation Administration or the court
concerned, except that the court, in its discretion, may permit the probationer of
his attorney to Inspect the aforementioned documents or parts thereof whenever
the best interest of the probationer make such disclosure desirable or helpful:
Provided, further. That, any government office or agency engaged in the
correction or rehabilitation of offenders may, if necessary, obtain copies of said
documents for its official use from the proper court or the Administration. (Sec.
17, P.D. No. 968, as amended (emphasis supplied])

In view of the recent enactment, which unequivocally expresses the

intention to maintain the confidentiality of information in cases involving violence
against women and their children, henceforth, the Court shall withhold the real

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name of the victim-survivor and shall use fictitious initials instead to represent
her. Likewise, the personal circumstances of the survivors or any other
information tending to establish or compromise their identities, as well as those
of their immediate family or household members, shall not be disclosed. (People
vs. Cabalquinto, G.R. No, 167693, September 18, 2006, citing Sec. 40 of R.A. Na.
9262)

Application of Probation to Children in Conflict with the Law

Under R.A. No. 9344 known as the "Juvenile Justice Welfare Act of 2006,"
a Child in Conflict with the Law (CICL) shall be entitled to probation under the
Probation Law of 1976 in lieu of service of his sentence. Section 42 of the law
provides:

"SEC. 42. Probation as an Alternative to Imprisonment. - The court may. after it

shall have convicted and sentenced a child in conflict with the law, and upon
application at any time, place the child on probation in lieu of service of his/ her
sentence taking into account the best interest of the child. For this purpose,
Section 4 of Presidential Decree No. 968, otherwise known as the "Probation Law
of 1976", is hereby amended accordingly"(Emphasis supplied)

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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Chapter 8: Indeterminate Sentence Law

At the end of this chapter the student should be able to:

• Define Indeterminate Sentence Law

• Enumerate the Objectives, Factors, and Rules in Determining
the Maximum and Minimum Term of the ISLAW
• Understand the Scale and Ranges of Penalties from which to
take a Penalty Lower or Higher by One or more Degrees.

Intermediate Sentence and its Purpose

Indeterminate sentence is a sentence with

a minimum term and a maximum term, which the
court is mandated to impose for the benefit of a
guilty person who is not disqualified. It applies to
both violations of the Revised Penal Code (RPC)
and special laws.

The purpose of the law is to uplift and redeem valuable human material and
prevent unnecessary and excessive deprivation of personal liberty and economic
usefulness. (People v. Onate, 78 SCRA 43) As a rule, it is intended to favor the
accused particularly to shorten his term of imprisonment, depending upon his
behavior and his physical, mental, and moral record as a prisoner to be determined
by the Parole Board.

The indeterminate sentence removes length of sentence from jurisdiction

of the court. passing the authority to a parole board of several members, who are
ideally supposed to be experienced students of human behavior and of
rehabilitation

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Origin and Development of Indeterminate Sentence

The indeterminate sentence originated as a means of securing social

protection against offenders; it was occasionally used in the middle ages and
seems to have been introduced for this purpose into the Carolina (1732), the
Theresiana (1768), the colonial laws of Connecticut (1769), and the Prussian
Landrecht (1794).

In the Prussian Decree of 1799, it was employed as a primary penalty for

thieves and robbers, in Feuerbach's monumental achievement, the criminal code
of Bavaria (1813), and in the code of Oldenburgh (1814), the use of indeterminate
sentence was extended to a number of other offenders under very long terms of
imprisonment. (Sen. Laurel, Laurel Report on Penal Reform p. 245-246)

In recent decades the indeterminate sentence has reappeared in the criminal

law of continental countries and elsewhere; it was adopted by Norway in 1902, by
New South Wales in 1904, by New Zealand in 1905, and in England in 1908. Spain
and Sweden in 1928, Yugoslavia in 1929 and Denmark in 1930 added similar
preventive detention laws. Austria in 1928 and Denmark in 1930 also extended
the indeterminate sentence to juvenile or adolescent delinquents for corrective
purposes. (ibid).

Indeterminate Sentence and Parole in the Philippines

Indeterminate sentence and parole were introduced in our penal and

correctional system on December 5, 1933 with the approval of Republic Act No.
4013 entitled "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." Except for a few minor amendments the original provisions of
the law have survived.

Distinction between An Indeterminate Sentence from A Determinate Sentence

An indeterminate sentence is a sentence imposed for a crime that is not

given a definite duration. The prison term does not state a specific period of time
or release date, but just a range of time, such as "five to ten years."

On the other hand, a determinate sentence is a sentence of confinement for

a specific or minimum period specified by statute. The period fixed by the statute
is not negotiable. A convicted person could serve more than the determinate

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sentence but not less. Actual limits of determinate sentence are determined at the
time the sentence is imposed.

Objectives of the Indeterminate Sentence Law

The objectives of the law are:

1. To avoid prolonged imprisonment of convicts resulting in economic

wastefulness;
2. To decongest the jails by having the convicts serve their sentences outside
of prison;
3. To save the government of the expenses necessary to maintain these
prisoners in confinement; and
4. To promote reformation of the prisoner by having him under the supervision
of parole officer

Instances when Indeterminate Sentence Law is not Applicable

It is a basic law that the application of the Indeterminate Sentence Law is

mandatory except only in the following cases:

1. Persons convicted of offenses punished by death or life imprisonment;

2. Those convicted of treason (Article 114, RPC), conspiracy or proposal to

commit treason (Article 115, RPC);

3. These convicted of misprision of treason (Article 116, RPC), rebellion

(Article 134, RPC), sedition (Article 139, RPC), or espionage (Article 117,
RPC):
4. Those convicted of piracy (Article 132, RPC);

5. Those who are habitual delinquents (Article 62, Par. 5, RPC):

6. Those who escape from confinement or those who evaded sentence;

7. Those who violated the terms of conditional pardon granted to them by the
Chief Executive;

8. Those whose maximum period of imprisonment does not exceed one year;
9. Those who are already serving final judgment upon the approval of the
Indeterminate Sentence Law (December 5, 1933); and

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10.Those sentenced to destierro or suspension.

Factors Considered in Granting Parole to an Offender with an Indeterminate

Sentence

1. The original recommendation of the sentencing judge and prosecutor.

2. The length of time an offender has served on the conviction to date.

3. 3Any aggravating or mitigating factors or circumstances relative to the

crime of conviction.

4. The offender's entire criminal history.

5. All available information from the victim or the victim's family, to include
comment on the impact of the crime, concerns about the offender's potential
release and requests for conditions if the offender is released.

6. Participation in or refusal to participate in available programs or resources

designed to assist an offender in reducing the risk of re-offense.

7. The risk to public safety.

8. Serious and repetitive disciplinary infractions during incarceration.

9. Evidence of an inmate's continuing intent or propensity to engage in illegal

activity (e.g., victim harassment, criminal conduct while incarcerated, use
of illegal substances.)

10.Statements or declarations by the offender that he/she intends to reoffend

or does not intend to comply with conditions of parole.

11.Evidence that an inmate presents a substantial danger to the community if

released.

Rules in Determining the Maximum and Minimum Term of the Indeterminate

Sentence

1. If the crime is a violation of the Revised Penal Code:

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a. Maximum term - arrived at by taking into account the attendant
circumstances according to Article 64 of the Revised Penal
Code.

b. Minimum term - shall be within the range of the penalty next

lower by one degree than the imposable penalty for the crime
committed.

2. If the crime committed is a violation of a special law (without adopting the

nomenclature of penalties under the Revised Penal Code) - both the
minimum and the maximum term shall be fixed by the court within the range
prescribed by the special law:

a. Maximum term - not higher than the maximum period of the

penalty fixed by the special law.

b. Minimum term - not lower than the minimum period of the

penalty fixed by the special law.

3. If the crime committed is a complex felony

In complex crimes, the penalty imposable is always the penalty for

the graver offense to be imposed in its maximum period regardless of the
presence of any mitigating or aggravating circumstances.

Application of Indeterminate Sentence Law in Complex Crimes where there are

Mitigating Circumstances

There are two (2) rules to take note of:

1. The Gayrama Rule

The rule provides that, the basis for going down by one (1) degree
is, if the penalty is prision mayor maximum, one (1) degree lower is prision
mayor medium. Hence, based on Indeterminate Sentence Law, the duration
is prision mayor minimum to medium.

2. The Gonzales Rule

The rule also provides that, the basis of going down by one (1) degree
is to go down one whole degree. In the same example above, one (1) degree

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lower now is now prision correccional. The duration based on Indeterminate
Sentence Law is arresto mayor to prision correccional.

NOTE: The correct rule that we are adopting nowis the Gayrama Rule. This is also
applied to special aggravating circumstances, quasi-recidivism, error in
personae.

Four Steps on How to Fix the Indeterminate Sentence

1. Determine the crime committed and the penalty imposed by the Revised
Penal Code or special law;

2. Fix the proper degree by determining if Article 64 paragraph 5, (two or

more mitigating and no aggravating), Article 68 (minority) and Article 69
(incomplete self-defense) under the Revised Penal Code are present. Lower
the penalty by degree or degrees.

3. Fix the minimum penalty by lowering the penalty by one degree from the
penalty imposable or from the proper degree if step number 2 is applicable.
This is the basis of the minimum without reference to any particular period.

4. Fix the maximum period by going one degree higher from the minimum and
look for remaining mitigating or aggravating circumstance if any. Apply the
rules on offsetting in Article 64 of the Revised Penal Code. (Paredes and
Ortega Lecture Fusion, Criminal Law Review, 2008 ed. p. 40)

Outline of the Rules and Provision of Law as Basis for the Fixing of Indeterminate
Sentence

A. Article 64 of the RPC - Rules for the Application of Penalties, which Contain
Three Periods:

1. No aggravating and no mitigating - medium period.

2. Only mitigating - minimum period.

3. Only aggravating - maximum period.

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4. Where there are aggravating and mitigating - the court shall offset those of
one class against the other according to their relative weight.

5. Two or more mitigating and no aggravating - penalty next lower to the

period applicable, according to the number and nature of such
circumstances.

6. No penalty greater than the maximum period of the penalty prescribed by

law shall be imposed, no matter how many aggravating circumstances are
present.

7. The court shall determine the extent of the penalty within the limits of each
period, according to the number and nature of the aggravating and mitigating
circumstances and the greater or lesser extent of the evil produced by the
crime.

B. Article 68 of the RPC - Penalty to be Imposed upon a Person under Eighteen

Years of Age:

When the offender is a minor under eighteen years and his case is one
coming under the provisions of the paragraph next to the last of Article 80 of this
Code, the following rules shall be observed:

1. Upon a person under fifteen but over nine years of age, who is not exempted
from liability by reason of the court having declared that he acted with
discernment, a discretionary penalty shall be imposed, but always lower by
two degrees at least than that prescribed by law for the crime which he
committed.
2. Upon a person over fifteen and under eighteen years of age the penalty
next lower than that prescribed by law shall be imposed, but always in the
proper period.

NOTE: Under Sec. 38 of R.A. No. 9344, suspension of sentence shall still be applied
even if the juvenile is already eighteen (18) years of age or more at the time of
the pronouncement of his/her guilt.

If said child in conflict with the law has reached eighteen (18) years of age
while under suspended sentence, the court shall determine whether to discharge

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the child in accordance with R.A. 9344, to order execution of sentence or to extend
the suspended sentence for a certain specified period or until the child reaches
the maximum age of twenty-one (21) years. (Sec. 40, R.A. 9344)

C. Article 69 of the RPC - Penalty to be imposed when the Crime Committed

is not wholly excusable.

A penalty lower by one or two degrees than that prescribed by law shall be
imposed if the deed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from criminal liability in the
several cases mentioned in Articles 11 and 12, provided that the majority of such
conditions be present. The courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions
exemption present or lacking.

Distinction between Degrees of Penalty from Period of Penalty

A degree is one entire penalty, one whole penalty or one unit of the
penalties enumerated in the graduated scales provided in Article 71 of the Revised
Penal Code. Each of the penalties of reclusion perpetua, reclusion temporal,
prision mayor, etc., enumerated in the graduated Scales of Article 71, is a degree.

A period is one of the three portions, called minimum, medium, and

maximum, of a divisible penalty.

The Scale and Ranges of Penalties from which to take a Penalty Lower or Higher
by One or More Degrees

1. Death:

NOTE: In viewof the prohibition of the death penalty under R.A. No. 9346, 1t is no
longer included in the Scale of Penalties under Article 71 of the Revised Penal
Code (RPC). (People vs. Bon, G.R. No. 166401, October 30, 2006)

2. Reclusion Perpetua: 20 years, 1 day to 40 years, after serving 30 years, he

may be pardoned.
3. Reclusion Temporal: 12 years and 1 day to 20 years
Minimum: 12 years and 1 day to 14 years and 8 months

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Medium: 14 yrs., 8 months and 1 day to 17 yrs. and 4 months
Maximum: 17 yrs., 4 months and 1 day to 20 years

4. Prison Mayor: 6 years and 1 day to 12 years

Minimum: 5 years and 1 day to 8 years
Medium: 8 years and 1 day to 10 years
Maximum: 10 years and 1 day to 12 years

5. Prison Correccional and Destierro: 6 mos, and 1 day to 6 yrs.

Minimum: 6 months and 1 day to 2 years and 4 months
Medium: 2 yrs., 4 months and 1 day to 4 yrs. and 2 months
Maximum: 4 years, 2 months and 1 day to 6 years

6. Arrest Menor: 1 month and 1 day to 6 months

Minimum: 1 month and 1 day to 2 months
Medium: 2 months and 1 day to 4 months
Maximum: 4 months and 1 day to 6 months

7. Public Censure

8. Fine

Distinction between Parole under the indeterminate Sentence Law and Pardon

1. In parole, the minimum sentence must be served; in pardon, service is not

required for the grant thereof.

2. Parole is a benefit granted by law, specifically the Indeterminate Sentence

Law (ISLAW). pardon is an exercise of the power of the President of the
Republic of the Philippines under the Constitution.

Persons Convicted of Offenses Punished with Reclusion Perpetua not Eligible

under Act No. 4103

The Death Penalty Law (R.A. No 7659) and R.A. No. 8177 otherwise known
as the "Act Designating Death by Lethal Injections were expressly repealed by
R.A No. 9346 - An Act Prohibiting the Death Penalty. Pursuant to Sections 3 and
4 of the said law, the court can only impose the penalty of reclusion perpetua
without eligibility for parole, in lieu of the death penalty

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"SEC. 3. Person convicted of offenses punished with reclusion perpetua, or
whose sentences will be reduced to reclusion perpetua, by reason of this Act,
shall not be eligible for parole under Act No. 4103, otherwise known as the
Indeterminate Sentence Law, as amended." (Emphasis supplied)

"SEC. 4. The Board of Pardons and Parole shall cause the publication at
least once a week for three consecutive weeks in a newspaper of general
circulation of the names of persons convicted of offenses punished with reclusion
perpetua or life imprisonment by reason of this Act who are being considered or
recommended for commutation or pardon; Provided, however, That nothing herein
shall limit the power of the President to grant executive clemency under Section
19, Article VII of the Constitutions."

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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Chapter 9: Parole

At the end of this chapter the student should be able to:

• Define Parole and Other Definition of Terms

• Enumerate the Advantages of Paroles and the Procedures
• Understand the History and Concept of Parole

Definition of Terms (Sec. 2, Rules on Parole and Pardon)

1. Board refers to the Board of Pardons and Parole;

2. 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 the
appellate court, if any, certificate of non-appeal, certificate of detention and
other pertinent documents of the case;
3. Director refers to the Director of the Bureau of Corrections;
4. National inmate is one who is sentenced to a maximum term of imprisonment
of more than three (3) years or to a fine of more than five thousand pesos;
or regardless of the length of sentence imposed by the Court, to one
sentenced for violation of the customs law or other laws within the
jurisdiction of the Bureau of Customs or enforceable by it, or to one
sentenced to serve two (2) or more prison sentences in the aggregate
exceeding the period of three (3) years;
5. Parole refers to the conditional release of a prisoner from a correctional
institution after he has served the minimum of his prison sentence;
6. Parole Supervision refers to the supervision/surveillance by the Probation
Officer of a Parolee;
7. Parolee refers to a prisoner who is released on parole;

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8. Penal Superintendent refers to the Officer-In-Charge of the New Bilibid
Prison, the Correctional Institution for Women and the Prison and penal
farms of the Bureau of Corrections;
9. Prison Record refers to information concerning an inmate's personal
circumstances, the offense he committed, the sentence 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;
10.Probation and Parole Officer refers to the Probation and Parole Officer
undertaking the supervision of the parolee;
11.Regional Director refers to the head of the Parole and Probation
Administration in the region;
12.Release Document refers to the "Discharge on Parole" issued by the Board;
and
13.Warden refers to the Officer-in-Charge of the Provincial, City, Municipal
or District Jail. Warden is also defined as the administrator in a correctional
institution; also called a Superintendent.

History of the Parole System

The origin of parole can be associated with the work of a number of

individuals who headed prisons; they include Brockway Zebulon in the year 1867,
Alexander Maconochie in the year 1840 and Walter Crofton in the year 1854.
Brockway Zebulon runs the Elmira penitentiary in the New York while Alexander
Maconochie was the governor of the Norfolk Island prison, and Walter Crofton
was the governor of the Irish prison. All of the above contributed to the
introduction of parole system in the prison system.

Conditional release made its first appearance in the ticket-of-leave system

used in the Australian Penal Colonies. The system was greatly improved by
Alexander Maconochie (11 February 1787-25 October 1860) a Scottish naval
officer, geographer, penal reformer and considered as the "Father of parole," and
the governor of the Norfolk Island, located off the coast of Australia. He
introduced the modern idea of parole when, in 1840, he was appointed
superintendent of the English penal colonies in Norfolk Island, Australia. He
developed a plan to prepare them for eventual return to society that involved three
grades. The first two consisted of promotions earned through good behavior,
labor, and study. The third grade in the system involved conditional liberty outside
of prison while obeying rules. A violation would return them to prison and start all
over again through the ranks of the three-grade process.

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Sir Walter Crofton, the governor of the Irish prison introduced a prison
structure whereby prisoners who arrived in jail were first put under strict
imprisonment, then through conditional release and finally freedom, the movement
from one stage to another depended on the number of points prisoners would earn.
Crofton provided prisoners with a chance to work in the community for a period
of time prior to release. According to this concept, offenders are allowed to work
at jobs in the community and still receive the benefit of certain programs available
at an institution.

Paroles in the United States were introduced by Brockway Zebulon in the

year 1876 as a way to reduce jail overcrowding and at the same time as a way to
rehabilitate prisoners by encouraging them to win their way out of prison through
good behavior, involves the supervision of a criminal after serving part of jail term
and the convict is allowed to live in the community under supervision, the parole
period is dependent on the decisions made by the board of parole, violation of
parole will result into re-imprisonment of the convict.

Definition and Concept of Parole

Parole may have different meanings depending on the field and judiciary
system. All of the meanings originated from the French parole ("voice", "spoken
word"). Following its use in late-resurrected Anglo-French chivalric practice, the
term became associated with the release of prisoners based on prisoners giving
their word of honor to abide by certain restrictions.

Paroles are ways in which criminals are supervised in order to determine

whether they are likely to commit the same crime or any other crime during this
time period: if they do commit a crime during this period then they are sent back
to prison to serve a jail term, both probations and paroles are set to determine the
rehabilitation level of a convict and whether the convict is fully rehabilitated and
whether he or she can live with the society without committing crimes.

Parole is a privilege where one is eligible for parole if the prisoner receives
a minimum and maximum sentence and after serving the minimum sentence the
parole board may decide to put him or her under parole after a consideration
hearing: this is in contrast with probation where it is determined by the judge,
Paroles are granted to convicts by the parole board, when the parole board feels
that a certain individual who has served his minimum term is responsible and can
join the community under supervision; on the other hand probations are imposed
by the judge as part of the sentence.

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Parole as defined in the 1957 National Conference on Parole as the "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."

Parole is freedom extended to incarcerated offenders even before the

expiration of his sentence if the offender can show that he has been converted
into a respectable, law-abiding citizen. Unrepentant offenders, on the other hand,
who have not made significant progress in their treatments, can be retained until
their correction is accomplished. A parolee continues to receive treatment even
when he is already outside. He remains supervised by a parole officer from the
Probation and Parole Administration who is tasked with monitoring his movements
and provides necessary assistance and support ranging from personal counseling
and therapy to help in looking for employment.

Parole in the Philippines as defined under the Board of Pardons and Parole
Operational Manual refers to the conditional release of a prisoner from a
correctional institution after he has served the minimum of his prison sentence.
Parole is granted by the Board of Pardons and Parole only when the offender has
already served his minimum sentence under the Indeterminate Sentence Law. It
does not pardon the offender since he technically remains in legal custody and the
clemency only serves to suspend the execution of the penalty and temporarily
release the convict from imprisonment on conditions which he is at liberty to
reject. Once the conditions have been accepted, any violation thereof will result
in the subsequent arrest and reincarceration of the offender to serve the unserved
portion of his original penalty.

Advantages of Paroles

There are a few distinct advantages to both the prisoner and the community
when paroles are given.

1. Behavioral Aspect - Persons who undergo the parole process are less likely
to re-offend and return to criminal behavior. Parole programs are designed
to help offenders reintroduce themselves to society. Once an offender has
learned to behave in a way that is acceptable to society, he is able to
continue this behavior and survive. Successful parole programs decrease
the recurrence of criminal behavior, which is beneficial to both the parolee
and to society as a whole.

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2. Economy Aspect - Paroling a prisoner puts that person back on the street,
making her able to earn a living to sustain himself. The parolee is no longer
a ward of the state and dependent upon the government's money. This is an
economic advantage to the national government. The taxpayers' money can
then be routed to another area of need.

3. Incentive Aspect - Giving prisoners a chance at parole is an incentive for

them. Striving to reach parole means they are better, more well-behaved
prisoners who are reaching for a goal. They are following the rules of the
prison and participating in prison programs to change their behavior and
outlooks on life in general. Prisoners with a chance for parole are able to
see an end to their sentence. This is a powerful incentive to stay out of
trouble and complete various training and educational programs. This is an
advantage to both the society and the prisoner.

Distinguish Parole and Conditional Pardon

In parole, a prisoner who has served a portion of the sentence is released

from jail or prison, but remains under the custody of the State under the condition
that in case of misbehavior he will be re-imprisoned, while in conditional pardon,
the pardoned prisoner does not remain under government custody and his civil
rights are restored to him wholly or in part according to the terms of the pardon.
(Domondon, Primus Pre-Bar Reviewer Division, 2009 Wrap-Up Review Notes in
Criminal Law, p. 102)

Distinguish Parole and Pardon

A prisoner is paroled only after he has served a part of his sentence while
in pardon the accused is released immediately after he has been found guilty or
has pleaded guilty and before he starts serving the sentence. (Domondon, ibid,
citing U.S vs. Murray, 275 U.S. 347)

Board of Pardons and Parole (BPP)

The Board of Pardons and Parole (BPP), created by virtue of Republic Act
No. 4103 (1933) known as the Indeterminate Sentence Law, is an agency under
the Department of Justice (DOJ) tasked to uplift and redeem valuable human
resources to economic usefulness and to prevent unnecessary and excessive
deprivation of personal liberty by way of parole or through executive clemency.

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Under Executive Order 292, Book IV, Title III, Chapter 6, Sec. 17, the Board
of Pardons and Parole (BPP) shall continue to discharge the powers and functions
as provided in existing law and such additional functions as may be provided by
law.

Composition:

The Board of Pardons and Parole is composed of the six (6) members with
the Secretary of Justice as the Chairman to be appointed by the President (with
the consent of the Commission on Appointments) for a term of 6 years.

The Board members should include a trained sociologist, a clergyman or

educator, a psychiatrist unless a trained psychiatrist be employed by the board,
and the other members shall be persons qualified for such work by training and
experience, and additional two members who are members of the Philippine Bar,
and at least one member should be a woman. (Sec. 3, R.A. 4103, as amended by
R.A. 4203, approved on June 19, 1965; Sec. 1, E.O. 1007)

Compensation:

The law provides that each member of the Board, including the Chairman,
shall be entitled to receive as per diem two hundred pesos (P200.00), while the
Executive Director who shall act as Executive Secretary shall receive one
hundred fifty pesos (P150.00) per diem, for each meeting actually attended and
reimbursement for actual and necessary traveling expenses incurred in the
performance of duties. Board meeting will be not more than three (3) times a week
(Sec. 4, R.A. No. 4103, as amended by R.A. No. 4203, approved on June 19, 1965;
Sec. 2, E.O. 1007)

The Board undertakes the following Duties and Responsibilities (Sec. 5, R.A.
4103, as amended):

1. Look into the physical, mental and moral records of prisoners who are
eligible to parole and to determine the proper time of release of such
prisoners;
2. Authorize the release of such prisoner on parole, upon such terms and
conditions as therein prescribed and as may be prescribed by the Board;
3. Examine the records and status of prisoners who shall have been convicted
of any offense other than those named in Section 2 of R.A. 4103, and have
been sentenced for more than one year by final judgment prior to the
effectivity of R.A. 4103; and

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4. Make recommendations in all such cases to the President with regard to the
parole of such prisoners as they shall be deemed qualified for parole as
therein provided, after they shall have served a period of imprisonment not
less than the minimum period for which they might have been sentenced
under R.A. 4103 for the same offense.

Powers and Functions:

1. Authorized to adopt rules and regulations necessary to carry out its

functions

2. Empowered to call upon any bureau, office, branch, subdivision, agency, or

Government instrumentality for assistance in the performance of its
functions

3. Decisions will be arrived at by MAJORITY VOTE. A quorum will be

constituted by a MAJORITY of all its members. Dissent from the majority
opinion will be reduced to writing and filed with the records of the
proceedings.

The Procedure for the Release of Prisoner undertaken by the Board

1. Board must file with the court, which passed judgment on the case, and with
the PNP Chief, a certified copy of each order of conditional or final release
and discharge.
2. The prisoner released may be designated specific conditions as to his
parole, and required to report personally to such government officials or
other parole officers appointed by the Board for a period of
SURVEILLANCE equivalent to the remaining portion of the maximum
sentence imposed upon him or until final release and discharge by the
Board.
3. Designated parole officers shall keep records and reports required by the
Board.
4. Board may fix the limits on the residence of the paroled prisoner or change
it from time to time. If during the period of surveillance, the prisoner shows
himself to be a law-abiding citizen and shall NOT violate any laws, the
Board may issue a Certificate of Final Release and Discharge (CFRD).
5. If the prisoner violates any of the conditions of his parole, the Board may
issue an order for re-arrest of the prisoner. The prisoner re-arrested shall
serve the remaining unexpired portion of the maximum sentence for which

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he was originally committed to prison, unless the Board grants him new
parole.

The Eligibility for Review of a Parole Case

An inmate's case may be eligible for review by the Board provided that:

1. The inmate is serving an indeterminate sentence the maximum period of

which exceeds one (1) year;
2. He has served the minimum period of the indeterminate sentence;
3. His conviction is final and executory;
4. In case he has one or more co-accused who had been convicted, the
director/warden concerned shall forward their prison records and
carpetas/jackets at the same time;
5. He has no pending criminal case; and
6. He is serving sentence in the national penitentiary, unless the confinement
of said inmate in a municipal, city, district or provincial jail is justified. (Rule
2.2, BPP, Resolution No. 24-4-10)

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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Chapter 10: Glossary of Terms and Phrases

At the end of this chapter the student should be able to:

• Remember the Term and Phrase under the Non-Institutional

Corrections
• Understand the Definition of Terms and Phrases

Definition of Terms and Phrases

Age of Criminal Responsibility - is the age when a child, fifteen (15) years and
one (1) day old or above but below eighteen (18) years of age, commits an offense
with discernment.

Arrest - is the taking of a person into custody in order that he may be bound to
answer for the commission of an offense. Balanced and Restorative Justice - is a
principle in juvenile justice that requires a process of resolving conflicts with the
participation of the victim, the child in conflict with the law, and the community. It
seeks to obtain reparation for the victim; reconciliation between the victims, the
child in conflict with the law, and the community; and the reassurance that the
child in conflict with the law can be reintegrated into society. It also enhances
public safety by involving the victim, the child in conflict with the law, and the
community in prevention strategies.

Best Interest of the Child - refers to the totality of the circumstances and
conditions which are most congenial to the survival, protection and feelings of
security of the child and most encouraging to the child's physical, psychological
and emotional development. It also means the least detrimental available
alternative for safeguarding the growth and development of the child.

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Case Study Report - is a written report on the social case inquiry conducted by
the social worker of the local government unit or the Department of Social Welfare
and Development or by the social worker designated by the court on the social,
cultural, economic and legal status or condition of the child in conflict with the
law. It shall include, among other matters: the child's development age,
educational attainment, family and social relationships; the quality of the child's
peer group; the strengths and weaknesses of the family; parental control the
child's attitude towards the offense; the harm or damage done to others resulting
from the offenses, if any, and the attitude of the parents towards the child's
responsibility for the offense. The social worker shall also include an initial
determination of the child's discernment in the commission of the offense.

Child in Conflict with the Law - refers to a child who is alleged as, accused of, or
adjudged as, having committed an offense under Philippine laws.

Classification - refers to assigning or grouping of inmates according to their

respective sentence, gender, age, nationality, health, criminal records, among
others.

Commitment - means the entrusting for confinement of an inmate to a jail by a

competent court or authority, for purposes of investigating the individual's offense
or transgression of the law.

Community Continuum - refers to the aftercare of a child in conflict with the law
and provides continuous guidance and support to the child in conflict with the law
upon release from rehabilitation and subsequent reintegration into society.
Community continuum for the child includes timely release, suitable residence,
food, clothing, available employment and sufficient means to facilitate successful
reintegration in local government unit and other appropriate agencies.

Community Service - generally involves public service for nonprofit organization.

It is also a penalty for criminal actions that requires offenders to personally "pay
back in time and effort, by working for a not-for-profit agency.

Community-Based Corrections - a broad term encompassing a variety of

correctional programs and strategies that draw on resources in the community to
assist offenders and reintegrate them back into the community

Community-Based Programs - refers to the programs provided in a community

setting developed for purposes of intervention and diversion, as well as

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rehabilitation of the child in conflict with the law, for reintegration into his/her
family and/or community.

Comparative Criminal Justice - the act of investigating, evaluating, and comparing

the criminal justice processes of more than one country, culture, or institution

Competent Authority - refers the Supreme Court, Court of Appeals, Regional Trial
Courts, Metropolitan Trial Courts, Municipal Trial Courts, Sandiganbayan,
Congress of the Philippines, Commission on Elections, Bureau of Immigration
Board of Pardon and Parole, and other administrative bodies or persons authorized
by law to make arrest and commit a person to jail.

Complex Penalty -one which is composed of three (3) distinct penalties each
forming a period, the lightest of which shall be the minimum, the next shall be the
medium and the most severe the maximum

Conjugal Visit - prison program that allows inmates to receive private visits from
their spouses for the purpose of maintaining normal interpersonal relationships,
refers to the visit of the spouse of the detainee for the purpose of fulfilling marital
obligation.

Correctional Administration - is concerned with the management of adult and

juvenile offenders after they are convicted by the courts.

Correctional Facilities - usually small, minimum-security institutions that house

both men and women with the goal of normalizing the prison environment by
integrating the daytime activities of the sexes.

Counsel - an adviser, a person professionally engaged in the trial of management

of a case in court: a legal advocate managing a case at law; a lawyer appointed or
engaged to advise and represent in legal matters a particular client, public officer
or public body. Crime - an act committed or omitted in violation of a public law.

Crime Scene - is the place from which most physical evidence associated with
the crime will be obtained.

Crime Scene Investigation - is the conduct of processes more particularly the

recognition, search, collection, handling, preservation and documentation of
physical evidence to include identification of witnesses and arrest of suspect at
the crime scene.

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Criminal Action - grounds for which the State prosecutes a person for an act or
omission punishable by law. Rules 110 to 127 of the Rules of Court generally
govern criminal actions.

Criminal Investigator - He is the skilled person who is charged with the duty of
conducting criminal investigation when a crime is committed.

Criminal Justice Process - the decision-making points from the initial

investigation or arrest by police to eventual release of the offender and his or her
reentry into society, the various sequential criminal stages through which the
offender passes.

Criminal Justice System - the aggregate of all the people and agencies that
perform criminal justice function Composed of police, prosecution, courts,
corrections and the community, they are also called the pillars of criminal justice.

Custodial Center - an institution secured by the PNP Units for the purpose of
providing short term custody of detention prisoner thereby affording his safety
and preventing escape while awaiting the court's disposition of the case or
transfer to appropriate penal institution.

Custodial Convenience - the principle of giving jailed inmates the minimum

comforts required by law in order to keep down the cost of imprisonment.

Custodial Investigation - commences when a person is taken into custody and

singled out suspect in the commission of a crime under investigation

Death Convict- refers to an inmate whose death penalty imposed by a Regional

Trial Court is affirmed by the Supreme Court en banc,

Delinquency Prevention - involves any non-justice program or policy designed to

prevent the occurrence of a future delinquency act.

Deprivation of liberty - refers to any form of detention or imprisonment, or to the

placement of a child in conflict with the law in a public or private custodial setting,
from which the child in conflict with the law is not permitted to leave at will except
by order of any judicial or administrative authority.

Desert-based Sentences - it is the principle of basing sentence length on the

seriousness of the criminal act and not on the personal characteristics of the
defendant or the deterrent impact of the law. Punishment based on what people

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have done and not on what others may do or what they themselves may do in the
future.

Detention Home - a twenty-four-hour child-care institution providing short term

resident care for youthful offenders who are awaiting court disposition of their
cases or transfer to other agencies or jurisdiction.

Detention Officer - is a Police Commission Officer (PCO) or police Non-

Commission Officer (PNCO) directly responsible for the administration and
management of the detention facility and the detainees housed therein.

Detention Prisoner - refers to a person arrested due to the commission of a

crime/offense by the arresting unit for custodial investigation. It likewise includes
persons arrested for crimes which are heinous in nature, crimes against national
security and high-profile crimes.

Determinate Sentence - it is a sentence with a fixed period of incarceration, which

eliminates the decision-making responsibility of parole boards.

Deterrence - punishment gives the offender lesson and warns the public that they
will suffer the same should they commit crime.

Developmental Level Child Witness Rule - the specific growth phase in which
most individuals are expected to behave and function in relation to the
advancement of their physical, socio-emotional, cognitive, and moral abilities.

Discernment - means the capacity of the child at the time of the commission of
the offense to understand the differences between right and wrong and the
consequences of the wrongful act.

Disposition Conference-it is a meeting held by the court with the social worker
who prepared the case study report, together with the child in conflict with the
law and the parents or guardian ad litem, and the child's counsel for the purpose
of determining the disposition measures appropriate to the personal and special
circumstances of the child.

Diversion -refers to an alternative, child-appropriate process of determining the

responsibility and treatment of a child in conflict with the law on the basis of
his/her social, cultural, economic, psychological or educational background
without resorting to formal court proceedings.

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Diversion Program - refers to the program that the child in conflict with the law
is required to undergo after he/she is found responsible for an offense without
resorting to formal court proceedings.

Entry of Judgment - if no appeal or motion for new trial or reconsideration has

been filed on time, the judgment or final order rendered by the court becomes
final and executory, and should immediately be entered by the clerk of court
through a motion for its entry by the prevailing party, and the date of finality of
the judgment or final order shall be deemed to be the date of its entry.

Evidence - is the means, sanctioned by the Rules of Court, of ascertaining in a

judicial processing the truth respecting a matter of fact.

Expedited Transfer of a Child - is a process where the apprehending officer or

private individual immediately brought a child who commits an offense to a social
worker for preliminary determination of discernment.

Expiation - as distinguished from retribution, is punishment carried out publicly

to appease society where punishing the offender gives the community a sense of
moral superiority.

Final Judgment - a judgment which finally disposes of, adjudicates, determines

the rights of the parties in the case, not yet final and executory pending the
expiration of the reglementary period to appeal, where execution cannot yet be
demanded by the winning party 35 a matter of right.

Fugitive from Justice - which under the Rules and Regulations Implementing the
Local Government Code, refers only to a person who has been convicted by final
judgment in an inordinate and undue circumscription of the law.

Guardian Ad Litem - a person appointed by the court where the case is pending
for a child who is a victim of, accused of, or a witness to a crime to protect the
best interests of the said child.

House Arrest - the incarceration sentence that uses the offenders' residence as
the place of punishment. The offender is required to stay at home during specific
periods of time monitoring is done by random phone calls and visits or by
electronic devices.

In Conflict with the Law – means to take into custody, detained, or charged with
the commission of an act defined and punished as a crime or offense under the

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law, including violations of traffic laws, rules and regulations, and ordinances of
local government units.

Incarceration Sentences - include shock incarceration, placing offenders in

confinement for a set period and then releasing them to serve probation,
confinement in jail and confinement in prison. The four basic types are:
indeterminate discretionary determinate presumptive, and mandatory

information - an accusation in writing charging a person with an offense,

subscribed by the prosecutor and filed in the court.

Initial Contact with the Child - refers to the apprehension or taking into custody
of a child in conflict with the law by law enforcement officers or private citizens.
It includes the time when the child alleged to be in conflict with the law receives
a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal
Procedure or summons under Section 6/a) or Section 9(b) of the same Rule in
cases that do not require preliminary investigation or where there is no necessity
to place the child alleged to with the law under immediate custody.

Inmate Social Code - the informal set of rules that govern inmates while in prison.

Instrument of Restraint - a device, contrivance, tool or instrument used to hold

hack, keep in check or control inmates; e.g. handcuffs.

Insular Prisoner - one who is sentenced to a prison term of three (3) years and
(1) day to death.

Intake Report -is the initial written report containing the personal and other
circumstances of a child in conflict with the law prepared by the social worker
assigned to assist the child entering the justice system.

Intermediate Sanctions - refers to the continuum of increasingly restrictive

correctional alternatives between standard probation and incarceration.

Intervention - refers to a series of activities which are designed to address issues

that caused the child to commit an offense. It may take the form of an
individualized treatment program which may include counseling, skills training,
education, and other activities that will enhance his/her psychological, emotional
and psycho-social well-being.

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Intervention Programs - refer to a series of individualized treatment activities or
programs designed to address issues that caused the child to commit an offense.
These may include counseling, skills, training, education, and other activities that
are aimed to improve and enhance the child's psychological, emotional and
psychosocial well-being.

Interview - means the simple questioning of a person who cooperates with the
investigator These are the witnesses who voluntarily give their accounts about
the commission of a crime.

Involuntary Servitude-denotes a condition of enforced, compulsory service of one

to another no matter under what forms such servitude may be disguised.
Involuntary servitude is a condition where one is forced to work for another
against his will and whether he is paid or not.

Jurisdiction - means fundamentally, the power or capacity given by the law or

constitution to a court or tribunal to entertain, hear and determine certain
controversies. In criminal cases, jurisdiction is the authority to take cognizance of
a criminal offense and to impose the penalty prescribed by law after a proper trial.

Just Desert - the philosophy of justice that asserts that, those who violate the
rights of others deserve to be punished. The severity of punishment should be
commensurate with the seriousness of the crime.

Juvenile Justice and Welfare System - refers to a system that deals with children
at risk and children in conflict with the law, provides child-appropriate
proceedings, including programs and services for prevention, diversion,
rehabilitation, re integration and aftercare to ensure their normal growth and
development,

Mandatory Release - a method of prison release under which an inmate is released

after serving a legally required portion of his or her sentence, minus good-time
credits.

Mark System - a system whereby prisoners could earn points (marks for good
behavior, thereby shortening their sentence, or gain marks for bad behavior,
lengthening their sentence.

Miranda Doctrine - a principle on the rights of a suspect from forced self-

incrimination during police interrogation as enshrined in the 1987 Philippine
Constitution's Bill of Rights (Article III, Sec. 12)

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Mittimus - is a process issued by the court after conviction to carry out the final
judgment, such as commanding a prison warden to hold the accused in accordance
with the terms of the judgment.

Non-Incarceration Sentences - include fines, restitution or victim compensation,

probation, home confinement or house arrest, electronic monitoring and
community services.

Non-Serious Offense - refers to an offense where the imposable penalty for the
crime committed is not more than six (6) years imprisonment.

Offended Party - is the person who is entitled to civil indemnity in the civil action
arising out of the criminal act for which the accused is charged.

Peacemaking Criminology - an approach that suggests that the solution to all

social problems, including crime, is the transformation of human being, the
creation of communities of caring people, and universal social justice.

Preventive Detention - the incarceration of a defendant prior to trial because the

court decides that the defendant is a danger to the community.

Prison Gang - an exclusive and surreptitious group of disruptive inmates who aim
to control their environment by engaging in intimidating and threatening behaviors,
they are also involved in criminal activity.

Prison Psychosis - a disorder where an offender enters the correction system

with no evidence of mental problems but because of an inability to cope with the
rigors of confinement. deteriorates to a point where he or she becomes mentally
ill.

Prison Record - refers to information concerning an inmate's personal

circumstances, the offense he committed, the sentence imposed, the criminal case
numbers in the trial and appellate courts, the date he commenced service of his
sentence, the date he was received for confinement, the place of confinement, the
date of expiration of his sentence, the number of previous convictions, if any, and
his behavior or conduct while in prison.

Prisonization - socialization that occurs in prison and serves to draw the offender
away from the values and norms of the community into an antisocial mindset.

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Protection - by segregating, criminals are being protected from further harm by
criminals.

Protective Security - the segregations of inmates for their own safety

Reformation - rehabilitating/transforming of a convict into becoming a law-abicing

citizen upon reentry into the mainstream of the society.

Rehabilitation - a purpose of criminal sanctions or punishment whereby offenders

should be transformed into law-abiding persons through programs of medical,
physiological. economic, or educational improvement.

Reintegration - the process of rebuilding former ties to the community and

establishing new ties after release from prison.

Reparation - compensation; punishment serves to repay society for the damage

done by the convict.

Restitution - reimbursement to the victim made by the offender, most often with
money though occasionally with services.

Restorative Justice (RI) - refers to a principle that requires a process of resolving

conflicts with the maximum involvement of the victim, the offender and the
community. It seeks to obtain reparation for the victim; reconciliation of the
offender, the offended and the community; and reassurance to the offender that
he/she can be reintegrated into society. It also enhances public safety by
activating the offender, the victim and the community in prevention strategies.
Restorative Justice seeks to use a balanced approached involving offender,
victims, local communities and government in alleviating crime and violence and
obtaining peaceful communities.

Revenge - the punishment rationale expressed by the Biblical phrase, "An eye for
an eye, a tooth for a tooth." People who seek revenge to make offenders pay for
what they have done by making them suffer the same fate.

Revocation - repeal of a probation sentence or parole, and substitution of a more

restrictive sentence, because of violation of probation or parole conditions.

Search warrant - is a written order in the name of the People of thit Philippines
signed by a judge and directed to a peace officer, commanding him to search for
personal property described therein and bring it before the court.

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Non - Institutional Corrections
Security Level - a designation applied to a facility to describe the measures taken,
both inside and outside, to preserve security and custody.

Security Officer - a properly trained officer whose appointment is covered by

appropriate orders with the concurrence of the Directorate for Intelligence and
possesses the following qualifications: 1) Cleared in accordance with provision of
PNPRG 200-012 dated 29 June 1991, for access to the highest classified material
nis office is authorized to handle; 2) possesses a certificate of training in a Regular
Security Course with PO patterned after an approval Security Training Course; 3)
Be conversant with the provisions of PNPRG 200-012 and all other publications
pertinent to the duties and responsibilities of a security officer.

Segregation - refers to the procedure where, upon initial contact with a child
alleged to have committed an offense, the law enforcer places the child in a
separate and different area from adult detention prisoners, and ensures that
female children are separated from male children.

Serious Offense - refers to an offense where the imposable penalty for the offense
committed exceeds six (6) years imprisonment.

Shared-Powers Management - prison administration seeks to involve correctional

staff and inmates in decision making

Shock Incarceration - an inmate is held in prison for a short time (the "shock"
typically 30 to 120 days, then released on parole: generally reserved for
nonviolent first-time offenders.

Sociological View of Punishment - it is a broad view of perceiving punishment as

a social institution.

Status Offenses - refers to offenses which discriminate only against a child, while
an adult does not suffer any penalty for committing similar acts. These shall
include curfew violations: truancy. parental disobedience and the like.

Subpoena - a writ issued under authority of a court to compel the appearance of

a witness at a judicial proceeding.

Summons -in criminal proceedings, a written order issued by a judicial officer

requiring a person accused of a criminal offense to appear in a designated court
at a specified time to answer the charge(s).

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MODULE:
Non - Institutional Corrections
Suspended Sentence - is the holding in abeyance of the service of the sentence
imposed by the court upon a finding of guilt of the child in conflict with the law,
whereby the child undergoes rehabilitation within a fixed period under such terms
and conditions as may be ordered by the court.

Temporary-Release Programs - programs that allow jail or prison inmates to

leave their facility for short periods of time to participate in approved community
activities.

Third Generation Jails - used a modular configuration but removed physical

barriers between staff and inmates to allow for direct supervision and foster a
proactive management philosophy. it is also called new generation jails.

Venue - The place where an action must be instituted and tried; the place of trial.

Victimless Crimes - refer to offenses where there are no private offended parties.

Victimology - it is the study of victims and their interaction with offenders and
the criminal justice system.

Warnings - penalties provided at the adjudication stage by the judge and usually
accompanied by the threat of incarceration if the criminal behavior does not desist.

Warrant of Arrest - is an order in writing, issued in the name of the people of the
Philip pines, signed by the judge and directed to a peace officer, commanding him
to arrest a person designated therein, and to take him into his custody in order
that he may be bound to answer for the commission of an offense.

Weekend Jail - programs similar to work release programs except that offenders
need to report to the jail only on weekends, working and living in the community
during the week.

Witness - is one who, being present personally sees or perceives a thing, a

beholder, spectator or eyewitness. One who testifies to what he has seen or heard
or otherwise observed.

Work release - allows inmates to maintain or obtain employment in the community

while still serving their sentence, leaving only for work and returning to
incarceration every evening: also called work furlough, day pass and day parole.

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Non - Institutional Corrections
Youth Detention Home - refers to a 24-hour child-caring institution managed by
accredited non-government units and licensed and/or accredited non-government
organizations providing short-term residential care for children in conflict with
the law and where the child may be physically restricted by order of any judicial,
administrative or other public authority, and from which the child is not permitted
to leave at will, pending court disposition of the charge or transfer to other
agencies or jurisdiction.

Youth Offender - a child, minor, or youth, including one who is emancipated in

accordance with law, who is over 9 years but under 18 years of age at the time
of the commission of the offense.

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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