Fiona Doherty writes on recidivism for the Georgetown Law Journal.
“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.”