Tuesday, June 16, 2015

Probation is Punishment

With all of the talk about over-incarceration and pending legislation designed to reduce prison overcrowding, probationary sentences are gaining momentum. In advocating for a non-custodial sentence, the courts should be reminded that probation is not a free pass. This passage from Gall v. US catalogs the penalties,
Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking. USSG § 5B1.3. Most probationers are also subject to individual ‘special conditions’ imposed by the court. Gall, for instance, may not patronize any establishment that derives more than 50% of its revenue from the sale of alcohol, and must submit to random drug tests as directed by his probation officer.
In Gall, the Court approved of a variance from 30 to 37 month guideline range to probation (and rejected a presumption of reasonableness at the district court level). The Court also said,
[T]he probation or parole conditions imposed on an individual can have a significant impact on both that person and society .... Often these conditions comprehensively regulate significant facets of their day-to-day lives .... They may become subject to frequent searches by government officials, as well as to mandatory counseling sessions with a caseworker or psychotherapist.
Just the stigma of a felony carries with it a devaluation in our society, in employment, housing, and reputation. All, of course, in addition to losing the right to vote or carry a firearm. Other "invisible punishments" and collateral consequences bear down on  our clients and should not be ignored in measuring the appropriate sentence.

Congress recognized the value of a probation sentence, distinct from a prison sentence, and not just a matter of judicial grace in extraordinary cases. In fact, through the Sentencing Reform Act, Congress told the Commission to design guidelines that preserved  probation as a ‘generally appropriate’ sentence in certain cases, such as nonviolent crimes or first offenders. The initial provision of 28 USC §994(a)(1) directs that the first sentencing decision under the guidelines should be whether probation or prison is appropriate.

That didn’t happen.  Instead the Commission devised guidelines that made probation a rarity in federal court, all but ignoring the great significance of nonviolent offenders or first-time offenders.  This Guideline defect from flawed empirical data – in averaging sentences from past practice, the Commission excluded non-prison sentences, thus eliminating 48% of all sentences imposed during the relevant time frame.

Now, with the move toward alternative sentences and the overarching concern about prison overcrowding and over-incarceration,there is more reason than ever to advocate for a non-custodial sentence. According to the United States Sentencing Commission, about 7.1% of 2014 cases received probation,and this should climb. The USSC website and resources offer much information about the rates of probation for each category of offense. Good fodder for our sentencing memos.

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