Wednesday, June 19, 2019

Conditions of release, diversion, probation, etc: testing by ordeal?

Your client is offered pretrial release, or diversion, or a chance to avoid revocation. All he or she must do is prove worthiness by complying with certain conditions for a certain period of time. What a deal!

Not necessarily. In a fascinating new article now available on SSRN or Westlaw, Yale Law School Clinical Professor Fiona Doherty compares these sorts of "testing periods"---during which the defendant has a chance to avoid prison by passing a test---to medieval trials by ordeal. While they are great opportunities for some defendants, they are traps for many others.

As Professor Doherty observes: "It turns out that defendants will accept nearly any arrangement as long as it provides them the opportunity to avoid going to prison. The possibility of avoiding prison is so strong an incentive for defendants that little else is required to counteract the scope of the concessions that judges and prosecutors have been able to demand from defendants in exchange . . . . [F]or defendants facing addiction, mental health issues, or disadvantaged social circumstances, the “test” may be stacked against them from the beginning. Given the high stakes, careful attention needs to be paid to the criteria that are being used in Testing Periods to sort defendants into the system's winners and losers."

Read this article and think about how defense counsel can encourage judges, prosecutors, and probation officers to impose more realistic tests, so that the defendant's gamble in accepting the challenge might actually pay off.

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