Under current New Jersey law, the maximum term of probation is five years. Experience indicates that most defendants are typically placed on probationary terms that can run from one to three years. Many defendants facing jail time view probation as a gift and, oftentimes, it is. However, probation comes with terms and conditions, and the failure to comply can lead to a violation and jail time. Some judges have an unofficial “one free bite” rule – the first violation leads to a reading of the riot act, placement on what is referred to as “strict compliance”, or an extension of the probationary term, in lieu of a prison sentence as a sanction for the violation. Other judges are less generous and simply incarcerate the defendant once the violation is sustained.
There is a definite correlation between the length of the probationary term and the likelihood of a violation. Put somewhat differently, people who are on probation for relatively long terms are at greater risk for violating. This is because it can be difficult to comply with the terms, conditions and restrictions of probation for long periods of time. Thus, people placed on terms of, for example, four or five years, are often characterized as “set up for failure”. As to this issue, there are standard terms and conditions of probation (remaining gainfully and legally employed, staying in school, remaining drug-free, etc.), and special conditions that a judge may craft for a particular case. As to the latter, one New Jersey judge that I regularly appeared before prior to his retirement required probationers to not enter disreputable places or associate with disreputable people. I never understood what that meant, until one of my clients was arrested in a go-go bar during a raid. The client was not engaged in any illegal activity – he was just sitting and having a drink. However, he ended up receiving a sanction because he violated that term or condition. Indeed, judges have considerable latitude in crafting unique terms and conditions, and this must be factored into assessing the likelihood of success. This is particularly problematic when a judge imposes a term or condition that simply cannot be complied with because of the defendant’s circumstances. Another problem is that a considerable amount of the funds that run probation systems come from fines and fees paid by probationers. However, many of these people are impoverished and cannot afford even modest payments, sometimes resulting in a violation for failure to pay required assessments.
The concept underlying probation is that some defendant are simply better off in a community corrections setting as opposed to a county jail or prison. Further, from an institutional and/or management perspective, probation is intended to save scarce prison resources for the worst offenders. However, the fact is that many defendants end up violating at some point during their probationary term, and are incarcerated. As a result, probation can actually add to the country’s overburdened jail and prison systems.Harvard’s Kennedy School of Government recently released a report concerning this issue. The report indicates that it is possible to cut the number of probationers by 50% over the next 10 years. It discusses, among other things, New York City’s efforts to reduce its probation population, and otherwise make the system operate more efficiently. For example, low-risk offenders are monitored electronically, and check in at electronic kiosks rather than with a probation officer. That system has also enacted early discharge policies, and has reduced probationary terms. As a result, the probation population dropped from 68,000 in 1996, to under 22,000 in 2014.
The report discusses and recommends a number of alternatives to probation such as street-level diversion programs by the police, “light-touch” alternatives to formal probation, reduction of probationary terms and early discharge. “Probation terms should be eliminated for certain low-risk individuals in favor of conditional discharges or informal, unsupervised probation, an option that already exists in many states and should be created where it does not exist.”
Judges, prosecutors and corrections officials all of the country need to review this report, since it clearly concludes that we could be doing a better job managing lower-risk defendants.
James S. Friedman is a criminal defense attorney representing defendants in the Superior Court of New Jersey and the federal courts in New Jersey and New York City.