Criminal probation seldom attracts the attention of political scientists, but it is one of the most significant aspects of judicial policy making. Trial courts sentence far more Americans to terms of probation each year than to jail or prison. Individuals on probation comprise the largest share of individuals under criminal supervision in the US, reaching a total of over 3,450,000 people and an expense of more than 3 billion dollars by 2018 (Pew 2018: BJS 2016: Maruschak and Minton 2020; US Courts 2013). The number of people affected, and the heavy degree of public investment, means that probation policies and practices deserve the attention of judicial scholars. As Friedman (2016) suggests “It’s impossible to understand the true scope of America’s criminal justice system without looking at probation.”

In this paper, we examine the probation cases handled by the trial courts in a typical American county that we call “Creekview.” As we focus on these cases, we highlight three of the ways in which trial courts make policy. First, we show that trial courts do more than merely enforce the policies made by the legislature or appellate courts—they are important policy-makers in their own right. Second, we explain that trial court judges are not solo actors when they make policy. They do their work within a web of relationships, the “courthouse working group,” that is characterized by shared norms, mutual dependence, and exchange. Third, we explain how trial court policy making takes place within a series of environmental conditions that enable some policy options while constraining others.

Probation as Policy

Probation has become an increasing share of trial court policy making over the last three decades. In the 1970s and 1980s, reformers argued that the criminal justice system should move away from the sharp dichotomy between imprisoning offenders or releasing them with minimal supervision (Morris and Tonry 1990; Petersilia et al. 1992). They recommended expanding probation to include a wider range of “intermediate punishments” that could be carried out while offenders lived in their communities. Policy makers acted on this suggestion by significantly expanding the range of sanctions that could be applied to individuals in lieu of incarceration. Courts responded by significantly increasing their use of intermediate sanctions, vastly expanding their reliance on probation as a key sentencing choice.^[1] As a result, the number of probationers ballooned from just over 1 million in 1980 to a peak of 4,293,000 in 2007 (BJS 2016).^[2]

Although the range of intermediate sentencing options was created by legislatures, trial courts were the institutions that decided on the mix of conditions to impose. Choosing which options will apply to which offenders is a multistage process, where judges weigh a variety of factors before they impose a sentence. Among these factors are the nature of the charges filed by the prosecutor, the offender’s risk of reoffending and need for services (usually presented in a report compiled by the probation staff), and the nature of the offender’s prior record. Since the majority of criminal court cases result in a sentence of probation, this takes up considerable court time.

Judges also decide what to do with individuals who violate the conditions of their probation. Once probation officers notify the court of a probation violation, judges choose whether to hold a revocation hearing.^[3] During these hearings, judges review the nature of the violation and decide whether probation should be continued, revoked and reimposed, revoked and extended, or revoked and replaced with incarceration. Because more than one-quarter of individuals on probation will undergo these hearings, revocation considerations add significantly to the probation work done by trial courts.^[4] The resources required have been significant enough to prompt some counties to create separate units just for conducting revocation hearings (Taxman 1995).

Over time, the pattern of decisions adds up, so that court policy is visible in the aggregated set of probation sentences. On the whole, American trial courts have used probation to become more punitive (Doherty 2016). They have also “widened the net” by imposing tougher conditions and subjecting probationers to more extensive supervision. This in turn increased the odds that judges would resentence probationers, either by extending the time to be served in the community or replacing community supervision with incarceration (Horman and DeMercurio 2009; Gross 2010; McIvor 2016). A significant share of prison admissions each year result from probation revocations.^[5]

Trial Courts as Policy Makers

The work of trial courts is central to the study of judicial politics because trial courts are responsible for the vast majority of the judicial policy making that occurs. The first point to stress about trial court policy making is that trial courts both originate policy and affect policy in the ways they apply the doctrines made by others. The trial court judge “works on the front lines” of the justice system—defining problems, formulating alternatives, and adopting solutions (Mather 1995, 188). The power to originate policy—to “whip it up from scratch”—is particularly noticeable when cases present issues that have not been encountered before. Policy also gradually accumulates as trial courts’ responses to recurrent issues establish consistent patterns (Mather 1998).

It is at the trial court level where abstract legal doctrines become practical policy. Appellate courts announce legal principles. Trial court judges and lawyers then clarify and elaborate on those principles as they interpret legal doctrines and apply them to real disputes.^[6] For example, trial court lawyers and judges have the responsibility of handling pretrial negotiation, deciding on the admission of evidence, conducting trials, and assigning sentences. Appellate court doctrines only take effect when other policy-makers turn abstract principles of law into concrete decisions.^[7]

The second point to stress about trial court policy making is that trial court business is conducted within a network known as the “courthouse working group,” a series of “regular participants—judges, defense attorneys, prosecutors, police, court staff—who must cooperate with one another if they are to do their jobs” (Church 1995, 135). Each person within the group cooperates with the others because each “has interests and goals he or she cannot readily accomplish alone” (Cole, Gertz, and Bunger 2004, 5). Judges need lawyers to negotiate bargains in order to avoid a backlog of cases. Prosecutors need defense attorneys to accept the bargains they offer, and defense attorneys need to obtain bargains that their clients will accept instead of insisting on a trial. If one part of this system breaks down, the result is significant disruption for everyone.^[8]

The members of the courthouse working group develop a set of shared norms that we call the “courthouse culture.” These norms are learned, internalized, and reinforced by the repetitive interaction between group members. The local culture includes legally relevant factors such as prior record and severity of the crime but also includes judgment calls that allow biases relating to moralism, social acceptability, and stereotypes to influence probation decisions (Steffensmeier et al. 1998; Leiber et al. 2011). The courthouse culture defines what is considered appropriate in the interactions between working group members. For example, the courthouse culture tempers the retributive impulses of prosecutors and restricts the degree to which defense attorneys insist on adversarial due process (Bach 2009; Heumann 1977). Group culture affects how criminal behavior gets categorized and the specific amount of punishment ordered.^[9] Group norms constrain individual discretion and facilitate efficient case processing, as attorneys make recommendations to their clients with the knowledge of which outcomes are likely.

The third point to stress about trial court policy making is that the policy options available to trial courts are strongly influenced by the local environment. Counties vary significantly in terms of the conditions that make specific sentencing choices available. Median income, civic norms, rates of crime and substance abuse, jail or prison capacity, and the presence or absence of social service agencies all affect what options are on the table. Some counties have no drug rehabilitation facility, making it difficult to sentence offenders to drug treatment. Others lack the diversion programs that are used elsewhere to provide special supervision for juveniles, veterans, or the mentally ill. Even if court personnel believe in the efficacy of diversion programs, their use depends on

Environmental conditions, often completely beyond the control of courts, will provide judges with some policy options while limiting or foreclosing others.

Creekview Adult Probation

To provide a more in-depth look at the way that trial courts make policy through the probation process, we collected data on the adult probation population of “Creekview” County, a medium-sized county in the northeastern United States. Creekview is a Rust Belt county with declining population and industry accompanied by a fair share of opioid abuse. Creekview Adult Probation provides community supervision for those arrested and convicted in the county that then get sanctioned to probation. In September 2011, the Creekview Adult Probation office employed 11 probation officers and four administrators, as well as a number of support and collections staff, supervising a caseload of 1,253 probationers. We drew a random sample of 500 probationers for which we collected a variety of data, from probation office files and public records, then followed them for six years. Examining the patterns evident in probation sentencing and supervision reveals some interesting insight into policy making in that local courthouse.

First, our data reveal clear patterns of judicial policy making in the area of probation sentencing. Probation is used much more frequently for some crimes than others. The influence of local priorities is apparent when we compare these figures to those for the state as a whole (see table 1).

Table 1: Share of probationers by offense type

The largest share of Creekview probationers plead guilty to misdemeanors, which is slightly higher than the state average. We see greater disparity when we compare the kinds of offenses for which people are serving community sentences (see table 2).

Table 2: Share of probationers by type of crime

Convictions for property crimes and DUI comprise the majority of probation sentences in Creekview, which is considerably higher than is typical in the state.^[10] The relatively small share under supervision for drug crimes or crimes of violence does not suggest that these problems are not taken seriously in Creekview, but instead that local courts view these as more serious crimes that deserve a sentence of incarceration.

The intermediate punishments used in Creekview present a mix of punitive and therapeutic policies. Those convicted of DUI often have their licenses suspended (punitive), but they may also be required to attend DUI school to learn to drive more responsibly (therapeutic). More than half of probationers were required to submit to a drug and alcohol assessment, so that individuals suffering from addiction could be identified and compelled to undergo treatment for substance abuse. While rehabilitation is designed to help addicts (therapeutic), the expense and time away from work or home that is required to undergo treatment may impose additional hardship (punitive). Very few probationers were required to participate in other therapeutic programs, such as mental health screening, anger management, or domestic violence prevention classes.

The pattern of probation policy in Creekview fits with the national trend toward using probation as a form of punishment. A much higher share of Creekview probationers was subject to intensive supervision—25 percent of our sample was subject to more frequent reporting and drug testing, compared to 8 percent in the state as a whole. Just over one in five probationers was sentenced to a period of house arrest (median length 90 days), which was accompanied by a start-up charge of $50 and a $20 per day fee. All probationers in Creekview were also required to pay fines and court costs, with a median assessment of just over $1,000. Twenty percent are required to pay restitution to their victims, with a median charge of $746. Many of the people to whom these financial penalties apply are economically marginal, which is reflected in the more than 25 percent who still owed money to the probation office at the end of 2015, more than four years after we first explored their records. The overall pattern demonstrates that judges regularly make use of punitive options.

Creekview’s approach to probation demonstrates our second point about trial court policy making—that trial court policy is made by a working group that cooperates according to shared norms, rather than by judges in isolation. In the area of probation policy making, the working group includes judges, prosecutors, and defense attorneys, but also probation officers. The probation officer acts as the agent of the court, putting the plea bargains negotiated by attorneys and the sentences handed down by judges into effect. They have significant discretion in deciding whether probationers are complying with the terms of their sentences in ways that make the difference between an offender’s continuing on probation or serving time (Doherty 2016).^[11] Probation officers in Creekview often use their discretion to counsel probationers who admit to minor drug use, while recommending revocation for repeat offenders who fail to desist from harder drugs. One officer commented that “normally when you revoke, you don’t put someone in jail for their first positive or just being discharged.” Another reported that “as the types of drugs have become more serious, we are less likely to revoke someone for marijuana. If someone is using an IV drug, we often revoke to save them.”

The regularity of interaction between probation staff and the rest of the working group in Creekview reinforces a shared point of view. Their supervision practices and their attitudes toward probationer behavior both influence and are influenced by local group norms. As in other parts of the US, Creekview probation officers appear regularly in court to provide information in advance of sentencing and in subsequent review hearings.^[12] Their discretion is bounded by administrative oversight and the need for judicial approval to make good on threats of revocation or the imposition of additional legal sanctions. The attitudes and sentencing patterns of judges are clear to probation staff, who in turn explain to their clients the ways judges are likely to respond to negative behaviors or attempts to reform. In Creekview, norm-sharing is facilitated by physical proximity—the probation office is located immediately adjacent to the courthouse, where all criminal trials take place and in which the offices of county judges and the district attorney are housed. The bond between the members of the Creekview working group was so strong that the president judge recruited probation staff to help design and oversee the county’s new drug court program that launched in the middle of our study.

We also see cooperative policy making among members of the working group through the creation of employment programs for individuals under community supervision. Reflecting a strong shared belief that unemployment encourages criminality,^[13] members of the working group developed two programs designed to help probationers find gainful employment. The first program allows offenders to complete their court-ordered community service by working for the county government. By proving themselves to be reliable workers, probationers have the opportunity to make themselves attractive hires for jobs with the county. The second employment program emerged from the efforts of the district attorney who worked with Creekview judges and social service agencies to identify businesses in the county that were amenable to hiring individuals with felony convictions. Because both programs are viewed as successful by courts and probation staff,^[14] judges now regularly consider including participation in such programs as a condition of probation.

We can also see shared attitudes in action by exploring the typical probation sentence, or “going rate,” for crimes in Creekview. The median sentence length is twelve months. The largest share of probationers (48 percent) is required to report once per month. The use of fines and fees is universal, despite the economic marginality of many probationers. Probation debt creates economic burdens that make it harder for individuals to exit probation successfully (Harris 2016). When asked about this, probation staff relayed the ideas, widely shared in Creekview, that paying probation debt is morally appropriate and that it is only fair for those who have prompted the expenditure of public resources to pitch in to help pay the cost.^[15] These responses may also reflect pessimism about the efficacy of their work and the potential for probationers to desist from crime. When asked about program outcomes, one veteran probation officer said, “They all come back,” even though the recidivism data contradict that negative impression.^[16] The key here is not that the working group’s view is objective, but that it is subjectively theirs and that it influences their behavior in common.

The response to domestic violence crimes provides an additional example of the “normal crime” and the “going rate” in Creekview. State laws provide that a wide variety of crimes committed against a person with whom one shares a child, a current or former spouse or cohabiting partner, or their parent or guardian, can be charged as acts of domestic violence.^[17] While a number of probationers in our sample were charged with offenses that would qualify (such as terroristic threats, harassment, disorderly conduct, and cyberstalking), few were officially labeled or charged as “domestic violence.” Instead, as in Wasileski and Poteyava’s (2019) study of magisterial courts,^[18] we find a courthouse culture that conceptualizes these crimes without particular regard for the domestic violence component. Sentences handed down for terroristic threats, simple assaults, or disorderly conduct very seldom include a requirement to attend classes for domestic violence prevention.^[19] “No Contact” orders in Creekview more commonly require probationers to stay away from places like gas stations or grocery stores than other people.^[20]

This lower level of response to domestic violence is indicative of our third point about trial court policy making—trial court decisions are made within a series of environmental conditions that judges, attorneys, and probation officers do not fully control. While many communities have had success with batterer intervention programs and coordinated community responses to domestic violence,^[21] these options are currently unavailable in Creekview. Limited budgets meant that domestic violence services were directed toward survivors rather than perpetrators. Not having organizations that provide antibattering programming in the immediate area discouraged Creekview’s judges from requiring probationers to participate in domestic violence prevention. Even though judges, attorneys, and probation officers in Creekview are aware that domestic violence is a social problem requiring a public response, it is very difficult to require probationers to attend programming that does not exist locally.

The local environment provides limited options when sentencing probationers with addiction issues. Substance abuse is rampant in the county; the President Judge told one reporter that 90 percent of the trials list could be traced to drug addiction, an opinion echoed by attorneys and probation officers.^[22] Judges in Creekview rely on the county’s one rehabilitation provider to provide addiction screening, even though it was not feasible for the center to assess all of the probationers. Frustration with the problem led Creekview to create a separate Drug Court in order to provide a highly structured experience that involved greater discipline and support, as well as consideration of other social issues playing out in the lives of probationers with substance abuse problems. The increased demand that such programming places on the system’s resources (in money, time, and human capital) means that not everyone who might benefit can be required to take part as a condition of their probation.

We can also see environmental constraints affecting the employment programs. Cooperative employers in the local environment made it possible for judges to order some probationers to participate in the Jails-to-Jobs program, but there were limits to how frequently judges could choose that option. The program was not open to individuals whose most serious offense was a misdemeanor, which excludes the majority of people on probation. Many others are ineligible because, in order to balance concerns over retribution and public safety, the program excluded individuals who have been sentenced for sexual offenses, who have protection from abuse orders, pending criminal cases or revocation hearings, or who continue to owe money for restitution. The Jails-to-Jobs program should be seen as illustrating our larger point that trial court policy making is a creative but not purely autonomous process. Trial court policy making is both facilitated and constrained by factors outside the full control of judges.

Discussion

Those who are interested in the way that courts make policy should pay attention to the decisions of trial courts in the area of criminal probation. The lion’s share of criminal court decisions in America results in a sentence of probation, making criminal probation a key trial court policy. Each year, millions of people serve terms of probation (twice as many as are held behind bars) and billions of dollars are expended to provide for their supervision. We owe it to ourselves, as students of the courts, to understand more about this significant aspect of judicial policy making.

In this study we describe three lessons to be learned about trial court policy making. First, that trial courts initiate policy in the way they solve problems in particular cases and in the way individual decisions accumulate into patterns of response. Second, that judges make policy as part of an ongoing “team effort” of the courthouse working group, characterized by repeated interaction, cooperation, and shared views of how to dispose of cases appropriately. Third, that trial courts are not completely autonomous but instead must make decisions in light of the resources provided by their local communities. In Creekview, we saw a pattern of policy making that makes probation a more punitive process, based in part on shared courthouse norms but based in other ways on the absence of sufficient local resources.

One lesson of our study is that people who want to explain trial court policy making should avoid thinking of courts in isolation. Our exploration of Creekview demonstrates how limited an explanation based purely on individual judges’ motivations would be. Numerous factors outside the courthouse shape the policies courts adopt. The probation conditions assigned by judges and overseen by probation officers are highly contingent on the availability of resources in the community. Often quite mundane factors, like the presence or absence of public transportation, can affect the ability of probationers to access services (Pruitt 2009; Gross 2010), in turn affecting the tendency of attorneys and probation officers to recommend, and trial court judges to impose, specific sentencing options. The imposition of additional responsibilities by outside authorities may tax the ability of courthouse staff to provide conscientious supervision of probationers, especially if staffing cannot expand to keep pace with caseloads and additional state mandates.^[23]

References

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Exercise to Accompany Smithey and Robison

1. Listen to season 3, episode 1 of the podcast Serial (“A Bar Fight Walks into the Justice Center”): https://serialpodcast.org/season-three/1/a-bar-fight-walks-into-the-justice-center.
   Discuss three ways that episode highlights trial court decisions made within the context of the courthouse working group.
2. Research your county’s criminal probation department’s use of community services for probationers’ punitive and rehabilitative sanctions.
   In what ways does access to these community services constrain or enable court policy making?
   How do your county’s resources compare with those described in the article?