“The Institution of Probation”

The title of this post is the title of this new paper now noted via SSRN authored by Ji Seon Song. Here is its abstract:

Studies of the institutional actors in the criminal legal system have revealed critical insights on how mass incarceration, racial biases, police misconduct, prosecutorial abuses, inadequate and under-resourced defense counsel, and the high proportion of pleas, contribute to distrust in our institutions of criminal justice and ultimately, our criminal legal system.  This Article adds an important and overlooked institutional actor to the discussion: probation.  Probation is a ubiquitous actor throughout the criminal legal system, with extraordinary access to and authority over defendants and their lives.

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 examinations of probation have focused on the individual aspects of probation’s role and the community supervision sentence of probation.  This Article calls for recognizing probation as a key institutional player in the ecosystem of criminal law, procedure, and punishment.  This institutional lens permits us to see how the institution of probation affects our criminal legal system and more importantly, how probation undermines perceptions that the system is operated by rules, norms, and practices that protect individuals from excessive state power.

Probation is no longer limited to administering the sentence of probation. In many jurisdictions, probation is now a part of administrating pretrial release, diversionary programs, specialty courts, determining restitution, supervising parole, and expungement decisions.  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 that of police, shape defendants’ experiences and perceptions of the inner-workings and failings of the criminal legal system.

The 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.  Probation permeates the formal and less formal processes of the life of a criminal case and operates in the interstices of the criminal process. Its “boundary-spanning” nature and characterization as a neutral actor have allowed probation to operate in a highly deregulated fashion, both pretrial and post, infiltrating and informalizing every aspect of criminal adjudication. Viewing probation as an institutional actor allows us to see how formal categories, such as police, prosecution, court, adjudication, and punishment, do less work than we think. Probation enhances law enforcement’s investigative powers, lessens prosecutors’ burden of proof, acts as a shortcut to get courts information about defendants that may otherwise only be available to defense counsel, dilutes the right to counsel, and circumvents the judicial role. This Article concludes by applying questions of institutional reform to probation. Should probation be more regulated, right-sized, and ultimately, should it continue to exist in its institutional form?