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104 Geo. L.J. 291 (2015-2016)
Obey All Laws and Be Good: Probation and the Meaning of Recidivism

handle is hein.journals/glj104 and id is 294 raw text is: Obey All Laws and Be Good: Probation and the Meaning of Recidivism FIONA DOHERTY* 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 jurisdic- tions that use probation most expansively. A detailed analysis of these condi- tions 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 adjudi- cative 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. TABLE OF CONTENTS INTRODUCTION ................................................... 292 I. M ETHODOLOGY ...................................... 297 II. CONDITIONS AS THE MEASURE OF RECIDIVISM ................. 300 A. COMMIT NO CRIME/OBEY ALL LAWS ..................... 301 B. BE GOOD AND ASSOCIATE WITH GOOD PEOPLE .............. 303 C. WORK AND SUPPORT YOUR FAMILY ..................... 310 D. PAY PROBATION FEES ............................... 314 E. STANDARD CONDITIONS FOR SPECIALIZED CASELOADS ........... 314 * Clinical Associate Professor of Law, Yale Law School. © 2016, Fiona Doherty. I am extremely grateful to Judith Resnik, Dennis Curtis, Alexandra Natapoff, Sharon Dolovich, Scott Shapiro, Muneer Ahmad, Michael Wishnie, James Forman, Tracey Meares, Issa Kohler-Hausmann, Jean Koh Peters, Chris Klatell, and participants at the Prison Law and Policy Roundtable at UCLA Law School; the Criminal Justice Roundtable at Yale Law School; and the SoCal Clinical Scholarship Workshop at the University of California, Irvine School of Law. I received exceptional research assistance from Conchita Cruz, Kory DeClark, Elisabeth Ford, Lise Rahdert, and Jessi Samuels. I am also indebted to the editors at The Georgetown Law Journal for their excellent editorial assistance.

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