Obey All Laws and Be Good: Probation and the Meaning of Recidivism

64 Pages Posted: 3 Feb 2016

Date Written: 2016


Probation is the most commonly imposed criminal sentence in the United States, with nearly four million adults currently under supervision. Yet the law of probation has not been the focus of sustained research or analysis. This Article examines the standard conditions of probation in the sixteen jurisdictions that use probation most expansively. A detailed analysis of these conditions is important, because the extent of the state’s authority to control and punish probationers depends on the substance of the conditions imposed.

Based on the results of my analysis, I argue that the standard conditions of probation, which make a wide variety of noncriminal conduct punishable with criminal sanctions, construct a definition of recidivism that contributes to overcriminalization. At the same time, probationary systems concentrate adjudicative and legislative power in probation officers, often to the detriment of the socially disadvantaged. Although probation is frequently invoked as a potential solution to the problem of overincarceration, I argue that it instead should be analyzed as part of the continuum of excessive penal control.

Keywords: sentencing, probation, community supervision, penal control

Suggested Citation

Doherty, Fiona, Obey All Laws and Be Good: Probation and the Meaning of Recidivism (2016). Georgetown Law Journal, Vol. 104, No. 2, 2016, Available at SSRN: https://ssrn.com/abstract=2726740

Fiona Doherty (Contact Author)

Yale University - Law School ( email )

127 Wall Street
New Haven, CT 06511
United States
203 436 3529 (Phone)

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