Tuesday, October 29, 2013

Probation in the Modern World

In the early hours of Sunday, October 27, 2013, police officers arrested singer Chris Brown and his bodyguard in Washington, D.C.  Early reports allege that Brown and his bodyguard attacked a man outside the W Hotel by the White House.  While a police investigation will determine whether or not Brown is guilty of the crimes he committed, he faces the very serious issue of having violated his probation.  At the time of the arrest, Brown was on probation following his February 2009 arrest for assaulting his then-girlfriend, Rhianna.

According to the Bureau of Justice Statistics, 4,814,200 Americans were under community supervision (probation or parole) at the end of 2011.  Four million people amongst that group were on probation.  The Prince William County Court defines probation as a court ordered sanction that allows a person to remain in the community under the supervision of a court officer.  Probation can include jail time, fines, restitution, community service or other sanctions.  Probation is not exclusive to felonies.  In fact, it is very common for people charged with felonies to plead out to lower level misdemeanors and enter probation as their punishment.  Probation is an extremely popular option in the United States court system because it allows low-level offenders to stay under court supervision without taking up room in the already overcrowded court system.

While probation will always remain a popular option in the United States, it has its critics.  Many believe that probation (which is often used in plea deals) is too soft a punishment.  Critics believe it is, in essence, letting criminals off the hook.  Supporters of probation have also argued that the current system is ineffective and administered poorly.  One law review article even goes as far as to refer to probation as “the stepchild of the criminal law and corrections systems.”[1] Regardless of where you stand on probation, there are currently very few options that provide continuing surveillance of offenders without simply incarcerating them.  Probation provides officials a means to monitor offenders – usually low-level offenders- without taking up space in prison cells.  Theoretical and procedural inefficiencies aside, probation does provide an important service for which the criminal justice system currently lacks alternatives.

When someone enters their probationary period, they are usually required to meet with their probation officer on a weekly basis.  The person is not allowed to associate with any known gang members or criminal delinquents.  Most importantly, especially for Chris Brown, any arrest constitutes a violation of probation and possibly a revocation of the plea deal.  Needless to say, probation is a lot of work and responsibility.

For juveniles, probation can be an extremely risky venture.  Unlike the adult system, juvenile court does not have juries and punishments are made solely by judgments.  Similar to the adult system, plea deals dominate the court system and probation remains a very popular option.  One of the issues of putting a juvenile on probation is that it keeps the state involved in their life for an extended period of time.  As a result, issues in the juvenile’s life that are normally reserved for adjudication by a school or parent quickly get converted into opportunities for state intervention.  For example, little Billy Smith gets charged with felony robbery and misdemeanor theft.  Billy pleads out to the misdemeanor charge to drop the felony, and ends up getting a year of probation.  Five months into the probationary period, Billy gets into a fight at school and gets suspended for three days.  Now, in the non-probation world, Billy gets scolded by his Mom, loses X-Box for a week, and life goes on.  But Billy now has to report the suspension to his probation officer.  This goes into the probation officer’s report and could potentially lead to a number of consequences for Billy, including an extension of the probation time.

Clearly the current probation system has its faults.  Just thinking about the sheer number of people on probation speaks to how overwhelmed the system is.  The whole principle behind probation is supervision.  Anything that requires supervision of four million people nationwide is going to cause a headache.  Even if probation is too soft a punishment or incredibly inefficient, the alternatives can be less appealing.  Abolishing the probation system is simply not an option.  There has to be an alternative to incarceration that does not simply release convicts onto the streets.  The prison system cannot handle that sort of surge.  But what are the other options?  Restorative justice movements have gained momentum in small communities, but one would figure that critics who find probation “too soft” would probably not support victim restoration programs.  Plus, could you really implement restorative justice on that large a scale? Further, the sluggish economy does not provide state governments too much room to experiment with different programs.  Like it or not, probation is here to stay.

Chris Brown represents both the shortfalls and successes of probation in the United States.  On the one hand, the evidence of his crime was gruesome and overwhelming.  Pictures arose of a badly beaten woman with little question of who was throwing the punches.  Five years probation does not exactly scream “justice”.  On the other end of the spectrum, the probation process has served its purpose with Brown.  He remains on the radar of the criminal justice system.  If the arrest does constitute a violation of his parole, then his punishment will not be reflective of felony assault, but of a history of legal issues within a short period of time.  Can United States’ citizens really ask for much more from their criminal justice system?

As practitioners, the real key to solving the inefficiencies of the probation system are two-fold- (1) advising clients to accept responsible plea deals and (2) good post-conviction counseling.  The first concept almost fulfills the second.  Accepting a responsible plea deal with a reasonable probation time will aid a client in staying within the restrictions of their probation.  In other words, the more suitable the probation- the less likely the client is to violate it.  That being said, post-conviction counseling is important.  Recidivism is not some elusive concept.  Offenders can have a bad tendency of reoffending.  Aiding a client in finding steady work, avoiding bad influences, and meeting regularly with their probation officer can go a long way in keeping your client out of prison, and your office from getting slammed with unnecessary work.

Calen Weiss
Articles Editor, Criminal Law Practitioner

Image from deviantART.

[1]The Committee to Study Alternatives to Incarceration and Probation, “Report on Alternatives to Incarceration and Probation”, 49 Rec. Ass’n B. City N.Y. 377, 379 (1994). 


  1. While probation is a positive solution insofar as it keeps the prisons less crowded and serves as an interim, close supervisory status until 'freedom,' I've always viewed it as a giant carrot, the inducement to take advantage of that one last chance. Criminals may see it as an inconvenient but temporary holding pattern while the likes of Chris Brown and Lindsay Lohan may view probation as a joke. Perhaps Robert Downey, Jr. did as well but the Court finally lost its patience. If one asked Downey today about probation, he'd probably suggest respecting it because, unlike him, he didn't see it as his one last chance. It would be interesting to see the statistics on those persons who got probation and thereafter never got near the legal system again except for a speeding ticket.

    1. Excellent point. If anything it speaks to the diversity of offenders and their ability to utilize their probationary period. Keep in mind though that roughly 35% of all incoming prisoners are parole violations (http://www.ncsl.org/print/cj/violationsreport.pdf). Granted parole and probation are very different, its difficult to view probation as a uniform "works" or "doesn't work". However, anything program that has such a high violation rate clearly requires some retooling. - Calen Weiss, Articles Editor