When talking about the injustice of the criminal justice system, one of the first places to look is the prisons. To address prisons, one way to approach is through probation and parole which seems more geared toward filling prison beds than rehabilitation. This is in fact no different than prisons themselves and the New Mexico criminal justice system on the whole.
However, probation/parole officers have enormous power over the freedom of probationers/parolees. Some might argue they have unfettered power. With this, there is simply no way to avoid abuses when that power is in the wrong hand.
The problem begins with the subjective terms of probation/parole which allow for discretionary enforcement, arbitrary enforcement and/or malignant enforcement of the terms. With discretionary or subjective terms of probation/parole, a probationer or parolee is at the whim of his or her supervising officer. Whim is never a good thing especially when it is in any way related to imprisonment.
Probation/Parole Subject to Abuse
A review of the standard terms of probation and parole will show that many of the terms are discretionary and subjective. In other words, a motivated probation or parole officer can find a reason to violate the person for even slight technical violations. A malignant officer could not only find reasons but generate reasons to violate a person’s probation or parole. In fact, there are a significant number of inmates in New Mexico prisons right now on minor technical violations. Due the discretionary nature of the terms of probation/parole, we as New Mexicans have idea or even any way of knowing whether reincarceration was fair and justified. We must simply take the word of the probation/parole officers. I frankly have a problem with that.
The system is not geared toward keeping inmates from returning. It is just the opposite. It is far too easy to send someone back to prison.
Discretion is no Basis for Justice
The standard terms include highly discretionary terms. The first regarding reporting to the probation or parole office is actually probably the most problematic of all stating:
Reporting: I will report to my Probation/Parole Officer as often as required and will submit completed and truthful written reports as required by my Probation/Parole Officer. All communication with my Probation/Parole Officer will be truthful and accurate and I will promptly reply to any correspondence or communication I may receive from the Probation Officer.
The next very problematic term which is subject to abuse relates to associations, friendships, even family members;
Association: I will not associate with any person identified by my Probation/Parole Officer as being detrimental to my Probation supervision, which may include persons having a criminal record, other probationers and parolees, and victims or witnesses of my crime or crimes.
The next is equally prone to abuse should a probation officer see it fit to abuse it:
Supervision Level: I will follow all orders and instructions of my Probation/Parole Officer including actively participating in and successfully completing any level of supervision and/or treatment program, which may include Community Corrections, ISP, Electronic Monitoring or other supervision/treatment program, as deemed appropriate by the Probation/Parole Officer.
The problem with these terms is that they are extremely difficult to comply with under the best of circumstances. They are impossible to meet with an abusive probation or parole officer.
Little Recourse in Court
When there is an abusive probation or parole officer, there is little for a defendant to do. The courts will almost always side with the probation or parole officer. After all, how can the court trust a convict. The presumptions against the former inmate are extremely difficult to overcome.
In addition, imagine trying to gather evidence on behalf of the probationer or parolee for a violation of any of the above. It really is the probation/parole officer’s word against the former inmate/convict. More than that the probation/parole officer establishes the rules, i.e. “as deemed appropriate by the Probation/Parole Officer”. How do you think this might turn out? When we are talking about locking people up, there are countless collateral consequences to the inmate, the family and if that is not enough for taxpayers. Is it too much to ask that there be very well-defined rules?
Discretionary rules are not rules. They are opportunities for abuse. They are opportunities to feed the monster that is the criminal justice system. They are opportunities for profits. They might even be as trivial as the desire of a probation/parole officer to lessen a workload. They might also be an opportunity to express racism, other bias or just an authoritarian personality.
There should be no room for judgement on the part of probation/parole officers. There should be rules, they should be well defined and they should be followed by all including the supervising officers.