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February 4, 2016

"Obey All Laws and Be Good: Probation and the Meaning of Recidivism"

The title of this post is the title of this timely new article authored by Fiona Doherty and now available via SSRN. Here is the abstract:

Probation is the most commonly imposed criminal sentence in the United States, with nearly four million adults currently under supervision.  Yet the law of probation has not been the focus of sustained research or analysis.  This Article examines the standard conditions of probation in the sixteen jurisdictions that use probation most expansively.  A detailed analysis of these conditions is important, because the extent of the state’s authority to control and punish probationers depends on the substance of the conditions imposed.

Based on the results of my analysis, I argue that the standard conditions of probation, which make a wide variety of noncriminal conduct punishable with criminal sanctions, construct a definition of recidivism that contributes to overcriminalization.  At the same time, probationary systems concentrate adjudicative and legislative power in probation officers, often to the detriment of the socially disadvantaged.  Although probation is frequently invoked as a potential solution to the problem of overincarceration, I argue that it instead should be analyzed as part of the continuum of excessive penal control.

February 4, 2016 at 09:13 AM | Permalink


Do all you ought to do and refrain from doing what you ought not to do ☺

Posted by: Docile Jim Brady „ the Nemo Me ☺ Impune Lacessit guy in Oregon ‼ | Feb 5, 2016 5:18:43 AM

An interesting read, but also devoid of any real sense of how probation works in practice. As only one example, Ms. Doherty laments the over criminalization of activity in the US, but never bothers to provide us the data of what people are on probation for. Having practiced in one of the states she analyzes, I can tell you of the actively supervised cases, the people on probation are repeat drug offenders, thieves, DUIs, and assaultive behavior. These are hardly the categories of over criminalization (although I suspect she may want to decriminalize drugs)

Ms. Doherty cites the idea that because probation conditions can capture fairly minor conduct, e.g., feeding the animals in the park in violation of statute or regulation could result in a violation of the obey all laws condition. True, but does that actually happen in a statistically significant way? I don't know about Georgia (somehow I doubt it), but in California the answer is no.

Ms. Doherty questions the idea that probation is an act of leniency by the system because it makes room for the incarceration of others therefore making it possible to prosecute more offenders. This is the kind of logic we are dealing with. Fine, Ms. Doherty, we will deny probation to them all and put them in prison. That it may not be possible doesn't mean that in the individual case that probation is not an exercise of leniency or a discount from the presumptive sentence of prison.

Her footnote sourcing an email she received from two federal public defenders allegedly establishing an attorney client like relationship between the AUSA and the federal probation department is a howler. Since she was a federal defender she knows darn well that there is no such thing, despite her belief that it appears that way. Yes, POs need AUSA assistance in presenting violations in federal court, however there is no attorney client relationship and the AUSA has little or nothing to do with the underlying supervision that resulted in bringing the violation. She does know what federal department they under doesn't she?

Ms Doherty is most assuredly a smart person and a very good writer. She makes some interesting observations of the historical underpinnings of probation and how it is structured on paper. She has no clue how it works in practice in the aggregate and frankly her federal experience is simply not representative.

Posted by: David | Feb 6, 2016 10:01:03 AM

Probation crushes poor people. I've been on probation, and I can tell you firsthand that there is rampant abuse. When people are put on probation, what are they sent to jail for? Failure to pay petty fines; hearsay; being a few minutes late for an appointment to see a probation officer. These are all things I've either seen or experienced. If you think this is a fair and moral system, then you're either unaware of what really goes on in American's jails, or you're an indifferent sociopath. Here's a guy who have a TED talk just today describing America's massive jail racket: http://www.ted.com/talks/salil_dudani_how_jails_extort_the_poor

Posted by: Daniel Luke | Feb 16, 2017 3:48:37 PM

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