On Probation

From the abstract:

“Among the constellation of actors who appear in courtrooms every day, probation has been largely overlooked in conversations and debates about institutional reform in the criminal legal system. Prior scholarship has focused on probation’s role in administering the sentence of probation. This Article calls for recognizing probation as a key institutional player across the entire ecosystem of criminal law, procedure, and punishment. Probation is not limited to administering the sentence of probation. In many jurisdictions, probation is now a part of administering pretrial release, diversionary programs, specialty courts, determining restitution, supervising parole, and expungement processes. In the juvenile arena, probation is involved in even more critical decision‑making junctures. Of all actors, even defense counsel, probation has the most sustained, intimate, and constant contact with defendants. Probation’s actions, like those of police, shape defendants’ experiences and perceptions of the criminal legal system.

This Article argues that excavating probation’s full reach as an institution reveals how probation destabilizes our ideas of how the criminal legal system operates and deformalizes criminal law and punishment. Its “boundary spanning” nature and characterization as a neutral actor have allowed probation to operate in a highly deregulated fashion, infiltrating and informalizing every aspect of criminal adjudication. Probation enhances law enforcement’s investigative powers, lessens prosecutors’ burden of proof, dilutes the right to counsel, and circumvents the judicial role. This Article concludes that until probation is recognized as the powerful, boundary spanning institution it is, efforts to reform the criminal legal system will remain incomplete.”