16 September 2009

Against Probation

Something has gone terribly wrong in the American criminal justice system. In the process of moving from a system focused on the rehabilitative potential of the defendant to a system myopically focused on retribution, we have trampled not only upon our tool with the greatest rehabilitative potential, but also upon the due process protections that we supposedly hold most dear. By using probation as a default sentence for all of those whom we choose not to incarcerate, we have created burgeoning caseloads that prevent probation from serving any useful rehabilitative function. Many probationers go without any supervision whatsoever, and those who are in need of social services and support rarely get it. Not surprisingly, then, high percentages of probationers do not succeed on probation. Many of those wind up incarcerated, even though the system’s conclusion was that the underlying crime did not justify incarceration. The “crime” that we punish with incarceration is the inability to live up to the terms and conditions of probation, even if it was entirely unrealistic to expect the probationer to live up to those terms and conditions and entirely predictable that the probationer would fail.

It may be hard to convince some constituencies to abandon the abuse of probation because they are wedded to what follows from that abuse: a shadow criminal justice system in which huge numbers of cases are processed not through the due process protections that come with the prosecution of a criminal charge, but through a probation violation hearing process that is devoid of virtually all of these protections. This process is certainly efficient, but does not reflect the values of justice that our system is supposed to represent. It is simply inappropriate to hold a violation hearing at which a criminal charge is adjudicated not through a criminal trial replete with protections for the innocent, but rather through a truncated procedure designed for a very different purpose.

This article proposes the use of probation only in the limited circumstances in which it can serve a useful rehabilitative function, and only in numbers that will allow for appropriate supervision and services. And perhaps more importantly, this article proposes the abandonment of a system in which a probation violation hearing acts as a substitute for a criminal trial. The author proposes a far more logical system in which we use probation only when it can serve a legitimate function, we allow probation officers to actually do their jobs, we deal with future criminality on its own terms, and we honor and respect traditional notions of due process when we adjudicate criminal charges.

From here.

Well argued. Sometimes, existing sanctions, like short jail terms or fines, that are over and done with at the sentencing hearing and punish the criminal act itself, rather than a failure to meet probation terms, makes more sense. Historically, corporal punishment and shaming punishments filled some of the gap. But, part of the problem with the existing sentencing regime is that there is little middle ground between a long and often counterproductive prison term for someone who isn't a threat if released into the community, and the need to provide some punishment for a moderately serious crime.

Another way the issue is often framed is as concern about excessive punishments for technical violations of probation and parole conditions. Probation and parole, as well as the use of escape charges for those who walk away from community corrections sentences are all in terrorum sledgehammers that try to marginally increase perfect compliance from manifestly imperfect people at the cost of a lack of proportionality when lines in the sand are crossed by individuals under correctional supervision.

Supportive, rehabilitative supervision does have an important place in a good system. But, even in cases where it is appropriate, it isn't obvious that it should substitute entirely for punishment, as it does in a very large share of all misdemeanor and felony cases. Indeed, thinking of probation itself as a form of punishment, which is how it is used now in many cases, may undermine its usefulness.

Maybe there are some crimes where making the victim whole and getting the offender back on the right track is all that matters and punishment is really irrelevant. Indeed, in the case of drug use crimes, the victim and the offender are one and the same. But, those situations, while they may call for some sort of tort remedy or involuntarily guardianship that restrains liberty, don't really need to be classified as crimes at all. What should distinguish crimes is that they involve situations where we need to punish someone (often in cases where a victim cannot be made whole by the offender as a practical matter in most cases) to discourage misbehavior in society and by individuals; to show that certain conduct is wrong.

One can imagine a world where there is a supportive rehabilitation system that is entirely separate from the criminal justice system, and where misbehavior within that system is designed to be proportionate and serve only the interest of further rehabilitation.

On the other hand, probation and parole are more than supportive rehabilitation. They are also early warning systems. We lock up probation and parole violators not because they have committed crimes in the past, but because the offenders are classified as criminals at high risk of committing crimes in the future. Their punishment for their past crime was really that they lost the benefit of the doubt that they were law abiding citizens. Increasingly, the reoffense risk seems to be coming from a lack of sufficient support in the lives of those released, but paying special attention to those with a history of making bad choices who are dramatically more likely to reoffend than members of the general population at first makes sense in its own right.

Do the early warning system and the supportive rehabilitation system need to be conjoined? If not, how can they be split, and how can the signal to noise issues involved in minor technical violations of probation and parole be addressed.

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