Academic

Horwitz on Probationary Sentencing

By Lawrence Solum

Andrew Horwitz (Roger Williams University - School of Law) has posted The Costs of Abusing Probationary Sentences: Over Incarceration and the Erosion of Due Process on SSRN. Here is the abstract:

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.

Full post as published by Legal Theory Blog on September 16, 2009 (boomark / email).