Help Me Help You: An Answer to the Circuit Split Over the Delegation of Post-Sentence Judicial Authority to Probation Officers
By David Kelch.
Our criminal system routinely deals with such matters as the life and death and intertwined fates of criminals and their victims. Other than lawyers, judges, and the defendants and victims themselves, there is perhaps no one more intimate with the application of criminal justice than the probation officer. These “eyes and ears of the court” are given considerable responsibility in two phases of the criminal justice process. First, they are utilized between conviction and sentencing to conduct a pre-sentence investigation that, almost exclusively, is relied on by the court to determine the appropriate sentence for the defendant. Next, the probation officer is responsible, among other things, for “aid[ing] [the] probationer . . . to bring about improvements in his conduct and condition.” Other than the judges and juries, is there anyone so bound up with the fate of defendants than the probation officer?
Currently, a split among the circuit courts of appeals exists regarding the appropriate degree of delegable “judicial authority” to a probation officer during the post-sentence time-period. Probation officers could be given limitless discretion to modify the offender’s sentence in light of changing circumstances. Conversely, officers could be given no authority to modify, change, or adapt the sentence, leaving no option but to apply for court-ordered modification. Of course, as this Comment proposes, the proper amount of authority that should be delegated lies between these extremes.
This issue has grown and will continue to grow in importance to the courts because the correctional population is getting significantly larger. Between 1980 and 2007, the total estimated correctional population increased by 297%, from 1,840,400 to 7,300,000, most of which were on probation or parole. In light of the increasing number of probationers and the already overworked judiciary, probation officers should be given the greatest permissible flexibility to respond to the needs of the offender and the needs of the community for which the officer serves. Moreover, for probation officers to fulfill their duty to facilitate the offender’s post-incarceration sentence, they must know and understand the parameters of their authority. It is important, therefore, that courts be clear and unambiguous when they delegate authority to probation officers. This clarity will enable probation officers to satisfy the needs of the probationer and the safety needs of the community.