Print Issue Volume 99 - Issue 5

The Burdens of Leniency: The Changing Face of Probation

Since its inception in the mid-1800s, probation has been the sentence of choice in America’s criminal courts, accounting for approximately two-thirds of those under state correctional control, the balance of offenders incarcerated. As such, probation has been widely conceived of as a grant of leniency, a humane alternative to jail and prison, and animated by concern for the offender and hope in the prospects of rehabilitation.

This Article is, in part, a revisionist history of probation’s role in the criminal justice system, raising questions about the justice of many of its latter-day practices. Beginning with an argument for the primacy of a reconsideration of probation in any emerging reform efforts, due to the sheer numbers under probation supervision for starters, this Article goes on to examine the trends in probation policy and practice since its inception and delineates the distance it has moved from its original conception.

Probation in contemporary times makes a major contribution to prison and jail populations through the use of revocation, the termination of probation for failure to comply with its requirements and the resulting commitment of the probationer to a correctional institution. This burden falls heaviest on the least advantaged in American society, where the manifestly poor or moneyless are punished for failing to pay arrays of financial penalties that are beyond their means. Therefore, this Article examines emerging research in behavioral economics that demonstrates the difficulties the financially pressured have in complying with not only fines and fees, but also the myriad other requirements of probation, which can often number a dozen or more, that demand mobility and time management skills not easily available to those whose lives are chaotic, stressful, and often dangerous. The argument is advanced that oppressive treatment of probationers is a by-product of “poverty blindness,” the incapacity among many criminal justice officials to appreciate the day-to-day exigencies in the lives of disadvantaged offenders.

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