The Trouble With Probation
I am not sure what is going on in the Connecticut Office of Adult Probation lately, but my telephone has been ringing off the hook. Until recently, probationers appear to have been given a fair amount of freedom to travel interstate. All of a sudden, there’s been a crack down. Folks who were once given permission to travel are suddenly on existential lock down. So the calls come in, people wanting to go to court to get the conditions of probation modified.
Such motions are usually a waste of time. I tell folks that while they are on probation they are in custody every bit as much as they were while in prison, only now the bars are invisible. "Suck up to your probation officer," I advise. "He or she is your new warden."
But there is clearly something wrong with a system that wastes resources on what amounts to little more than, er, well, let me be police, "micturating contests." Respect for the law is not fostered by pitting probationer versus probation officer in a contest of wills over what is often little more than a turf war.
In recent months, I have had to appear in court to seek permission for a client to travel out of the jurisdiction with her husband of many years to celebrate a sentinel anniversary; another judge got involved with a dispute about whether a client could travel to out-of-state business meetings; a third client had to petition the court for permission to travel out of state to see a child play collegiate sports. I succeed in each case, but the fights were too time-consuming and too expensive to be a good use of anyone’s resources.
These hearings are uniformly frustrating. Judges are somehow reluctant to substitute their judgment for that of a probation officer. In such cases, the judiciary is eager to give deference to officials of the executive branch. I am not sure why the courts are so deferential to probation officers. It is the court that imposes conditions of probation, after all.
Apparently, there is a blanket police within Adult Probation to permit out-of-state travel only twice per six month period. A person who wants to travel must request permission, and then receive travel documents from his or her officer to show upon demand. An interstate compact demands as much. Yet just months ago, probationers were traveling often, policy or no. What changed?
This business of requiring papers to move from state to state is chilling. It is only a step or two removed from the requirement of a national identification card. Permitting government to restrict when and under what circumstances we are free to travel is yielding far too much to folks who know far too little, even for probation officers.
Watching the state’s probation officers flex their collective muscles has me revisiting the advice I give to clients.
One of the primary concerns of anyone facing criminal charges is the obvious: avoiding a conviction, and a felony record. In those cases resolved by way of a plea bargain, a new objective is paramount: minimizing the time spent behind bars. It is not uncommon, therefore, to negotiate a split sentence. Thus, a client might accept a sentence of ten years, execution suspended after serving two years, with five years of probation. In this case, upon serving the two years locked up, the client is released to probation but owes the state eight years. If he or she stumbles during the five year period of probation, they face imprisonment for all of the eight years remaining on their sentence. It is a potent hammer.
From time to time, a client is unwilling to accept a period of probation and wants a flat sentence. Clients expecting trouble from a probation officer might elect a flat sentence of three years in prison with no probation, rather than a lesser period of incarceration with probation. These folks figure they are better off being able to see the bars encircling them. It used to be I would recommend flat time only to someone who seemed unable to play by the rules.
The combination of aggressive and officious probation officers with a court unwilling to exercise any effective review of what is and is not reasonable has me reconsidering the standard of care in criminal cases. If we’re going to give probation officers the power to make up the rules, and change the rules, as they go along, and the courts aren’t going to do anything about it, then perhaps more people pleading guilty ought to bargain for flat time. Either that, or lawyers need to be a whole lot more aggressive about negotiating terms and conditions of probation.
For my money, the invisible jailers among us are far too arbitrary and enjoy far more power than is healthy for a republic.
Reprinted courtesy of the Connecticut Law Tribune.