Mimesis Law
22 February 2017

A Hidden Crack In The Criminal Justice System

December 14, 2016 (Fault Lines) — Fault Lines is devoted to revealing the cracks in the American criminal justice system. The “revealing” task is often as plain as seeing a white cop shooting a black man in the back numerous times as the black man flees. But some fissures are hidden far below the surface.

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Photo credit: Marietta Forrest/Cochise College

I fear that I may have discovered just such a hidden fissure. During the last month or so, I have sentenced a state probation officer* and state probation drug technician** to federal prison.*** I will not comment upon the merits of these cases, but simply highlight them to make my broader points.

Liberals and conservatives are hellbent on emptying the prisons, particularly the state prisons, in favor of community corrections and community supervision. They are also inclined to adopt policies that avoid prison sentences altogether in favor of less punitive sanctions. See, e.g., Pew Charitable Trusts, State, Federal Prison Populations Decline Simultaneously for First Time in 36 Years (September 17, 2015). The reasons for these reductions are not mostly altruistic, but largely fiscal in nature:

Since 2007, more than half the states have enacted policy reforms to control corrections growth, contain taxpayer costs, and improve public safety using evidence-based policies. These reforms—known collectively as “justice reinvestment”—vary from state to state, but all aim to use limited prison space for violent and career criminals, move lower-level offenders into less-costly and more-effective alternatives, and invest the savings into programs that reduce recidivism.

Id.

Like the Trumpian metaphor of “draining the swamp,” this reduction in prison populations will inevitably result in increased pressure on probation employees—from officers to drug techs. After all, a prudent person would never drain a swamp, but release the swamp’s alligators into our communities to go and do as alligators are want to do. The same is true of offenders—both those who are released early from prison and those who never served a day in prison–who are now more likely than ever to find themselves on the streets after being convicted of serious crimes. Supervision is critical.

From what I have seen over the last month, I worry that the state probation**** systems–where the pay is often very low, the vetting of employees may be weak, and the supervision of employees potentially lax to non-existent–will not be up to the task. While two cases do not make a trend, I worry that they may reveal a potentially devastating fissure.

I am very interested in hearing, via the comments, what readers of Fault Lines have experienced when dealing with state probation employees. It could be that I was just spooked by my recent cases. Perhaps I am overreacting. I hope you will give me the benefit of your thoughts.

Richard G. Kopf
Senior United States District Judge (Nebraska)

*Riley Johnson, Ex-Nebraska probation officer sent to prison for violating rights, having sex with probationers, Lincoln Journal Star (November 10, 2016).

** Lori Pilger, Ex-probation employee sentenced for info-for-money plot, Lincoln Journal Star (December 8, 2016).

***The probation system in Nebraska is a judicial branch entity under the Nebraska Supreme Court. See here. The cases mentioned in the text must cause the Court grave concern.

****The entity known as United States Probation and Pretrial Services is part of the federal judiciary, and it is not without problems, too. However, those problems are largely a lack of bodies. Federal probation officers and related employees, many of whom come from state systems, are paid well, are vetted in depth, and are supervised rigorously. I know this from my years as Chief Judge. On the few occasions when a probation employee went off the reservation, the issue was recognized quickly and dealt with swiftly.

5 Comments on this post.

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  • stevie g
    15 December 2016 at 4:20 pm - Reply

    “Ultimately, Kopf varied from the guidelines and gave Peterson the maximum, a nine-year sentence followed by five years of post-release supervision.”

    Wow, and here I was thinking this judge might be a pushover.

  • stevie g
    15 December 2016 at 4:30 pm - Reply

    For what it’s worth judge, my dad was a federal probation officer before he passed. He counted Jimmy Hoffa amongst his “clients.” I couldn’t say that he followed the strict letter of the law since he eschewed the federal bureaucracy. But he helped many an ex-con find meaningful employment. He realized the legal realism that doing right is not always the same as following the law.

    I remember him transporting parolees with me in the car when I was just a kid. These guys had been isolated from society for many moons. Some were shaking with anxiety and I often wondered what in the world could have happened to them, and what would happen to them in the future. They were very respectful and certainly did not pose a threat, or my father would have never allowed it. Somehow, I think my father was trying to teach me a lesson. That I later became an attorney was one of his proudest moments.

    There are so many things today that just don’t make sense, and I sometimes long for the days when people could cut through all the nonsense and just be human and do the right thing. By the way, dad was a WWII pilot and bonifide war hero. Having bullets come up from the ground and pierce his plane gave him courage we just don’t see much anymore.

    All the best.

    • RICHARD KOPF
      19 December 2016 at 10:29 am - Reply

      stevie g,

      I wish I had known your father. Your comment that “legal realism” sometimes means “that doing right is not always the same as following the law” is a keeper. I intend to shamelessly appropriate it at the right time.

      All the best.

      RGK

  • defendergirl
    19 December 2016 at 10:15 am - Reply

    I was just speaking with one of the new federal probation hires in my district last week. He explained that state probation officers often supervise 400 people at a time and officers who do “call-in” supervision have 750!

    I am old enough to remember when we closed the asylums and that money was supposed to go to community mental health. We know how that turned out.

    The reduction in prison population will save money, but I’m willing to bet probation won’t see much, if any, of those funds.

    • RICHARD KOPF
      19 December 2016 at 10:31 am - Reply

      defendergirl,

      Your comparison to closing the asylums is remarkably evocative. Regarding money, I hope you are wrong, but I bet you are right.

      All the best.

      RGK

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