BY DAVID N. ADAIR, JR.
Associate General Counsel, Administrative Office of the U.S. Courts

The Incredible Shrinking Probation Officer

Scott Carey did not notice it right away. He thought that it was something the dry cleaners had done that made his clothes too large, but eventually he could not escape the realization that he was shrinking. In the classic 1950s science fiction movie, The Incredible Shrinking Man,¹ medical science could do nothing for Scott and eventually he became too small even to be detected by other humans. He still existed as part of the universe, but he was no longer significant in the world as he had known it.

Over the course of the last 20 years much has been said about the way in which the sentencing guidelines have transformed the role of judges and probation officers. Judges have lost discretion to sentence defendants in ways they believe are fair and just. Probation officers have been required to spend more attention on technical application of the sentencing guidelines and less on an assessment of individual defendants and the kind of sentence they need for rehabilitation and protection of the public. But while our backs were turned, while we were thinking and talking about the effect of guidelines on fair sentencing, something has been happening to probation officers' role in supervision. It's been happening on a smaller scale and it has not completely changed the way officers supervise offenders. But, if the trend continues, it could shrink the supervision role of officers and the ability of officers to effectively work towards the rehabilitation of offenders and the protection of the public.

I am referring to the trend of the courts of appeals to limit what decisions probation officers can make in supervising offenders. They are doing this by reserving more and more decisions to the court and prohibiting judges from allowing probation officers to make decisions of importance in the supervision of offenders. I characterize this process as the formalization of supervision because, like the sentencing guideline process, it sacrifices the decision-making of those in the best position to exercise it, and substitutes decision- making that cannot be as familiar with the needs of the individual offender. This results in formalization because the decision- maker must rely on a more formal, less individualized process to determine specific conditions of supervision for the offender. Most supervision officers are familiar with the individual cases discussed below. But I believe that officers must be aware of the trend these cases are a part of so that they can recommend and administer conditions in ways that reduce the chances that the courts of appeals will further limit officers' ability to effectively supervise offenders.

The earliest and best-known example of this trend has been the prohibition on sentencing courts allowing probation officers to set payment schedules. In the last 10 years, a series of court of appeals decisions has made the collection of fines and restitution more difficult and time consuming by requiring that judges set precise schedules for the payment of financial penalties at the time of sentencing. This case law is so well established that it is difficult to conceive of a way district courts can avoid the results on collection efforts. I discuss it in some depth here only because it demonstrates so well the lack of serious consideration I believe courts of appeals give to the lawful and proper role of probation officers in the federal criminal justice system.

Of course, it is nearly impossible to establish, at the time of sentence, a realistic, effective schedule for defendants who will serve periods of incarceration. A defendant's earning ability is uncertain at the time of sentencing and highly volatile thereafter. Until the last several years, most courts simply set the total financial penalty and ordered that it be paid as determined by the probation officer. This simple and practical expedient was flexible and efficient. The officer could assess the offender's earning ability on an ongoing basis and make upward or downward adjustments to the payment requirements as warranted by the offender's economic circumstances. We know that officers weren't always entirely effective in this task, but they were certainly better placed to do it than the court at sentencing.

But 11 circuits have now determined that the "delegation" of the function of setting restitution or fine payment schedules to the probation officer is unauthorized.² Most of these decisions have been based upon language in the Mandatory Victim Restitution Act (MVRA).³ The MVRA, at section 3664(f)(2), requires the court, pursuant to section 3572, to specify "the manner in which, and the schedule according to which, the restitution is to be paid. . . ." Section 3664(f)(3)(A) provides that the court may direct the defendant to make a single lump sum payment, partial payments pursuant to a schedule, or a combination of partial and in-kind payments. If the defendant is unable to make payments that are reasonably calculated to result in the payment of the entire amount of restitution ordered, section 3664(f)(3(B) permits the court to order nominal payments. Pursuant to section 3664(k), the court may adjust a payment schedule because of a change in the defendant's financial circumstances. The courts have relied upon these provisions to hold that the statute explicitly imposes a nondelegable duty upon judges to determine the manner of payment of restitution.

But some courts of appeals have relied upon the much more general language of the Victim and Witness Protection Act of 1982 (VWPA)⁴ to reach this result. The VWPA simply permits the court to require that restitution be paid within a specified period or in specified installments. 18 U.S.C. § 3663(f)(1). And the principle has been applied to the payment of fines, based upon 18 U.S.C. § 3572(d), which provides that the defendant shall pay a fine immediately, but that the court may, in the interests of justice, provide for payment on a date certain or in installments.⁵ The non-delegation rationale has even been applied to efforts to allow the Bureau of Prisons to begin to collect restitution during incarceration.⁶

The courts that base these results on the payment language of the MVRA have a credible argument that some fairly specific statutory language imposes a duty upon the court to set payment schedules. But district courts should be able to delegate that responsibility unless the statute expresses a clear congressional intent that the responsibility not be delegated, or unless the function of setting a payment schedule is a core judicial function that constitutionally may not be delegated. Two circuits, in fact, have even suggested precisely that. In United States v. Johnson, the Fourth Circuit, observing that 18 U.S.C. §§ 3663 and 3664 impose on the court the duty to fix the terms of restitution, found the delegation of this duty to the probation officer was limited by Article III.

While the statute [18 U.S.C. § 3603] does authorize the district court to order the probation officer to perform such duties as the court directs, the type of duty that the court may so delegate is limited by Art. III. Cases or controversies committed to Art. III courts cannot be delegated to nonjudicial officers for resolution. That general principle does not, however, prohibit courts from using nonjudicial officers to support judicial functions, as long as a judicial officer retains and exercises ultimate responsibility.… [I]n every delegation, the court must retain the right to review findings and to exercise ultimate authority for resolving the case or controversy.⁷

Why is setting a payment schedule a core judicial function? These courts suggest that it is part of the sentence. But the penalty itself is the sentence. The timing of its collection is a mere matter of execution. Why doesn't the collection of a penalty, the amount of which has been set by the court, constitute the "support of a judicial function" over which the court has ultimate authority? The offender can always disagree with the officer's determination of a schedule and raise the issue with the court.⁸

This Article III rationale, furthermore, is very difficult to reconcile with accepted practices regarding the execution of sentences of incarceration. The Bureau of Prisons has always administered sentences of imprisonment imposed by the court.⁹ Is it really an unconstitutional delegation of judicial authority to allow the court's probation officer to determine if a monthly payment towards a judicially-imposed restitution sentence is $20 more or less each month, when it is perfectly constitutional to allow the Bureau of Prisons to determine if the judicially imposed sentence of imprisonment should be served at the maximum security facilities at FCI Florence or the camp at FPC Allenwood? This question has not even been asked in the cursory treatment of these important issues.

Of course, district courts and probation officers did not simply abandon efforts to effectively execute sentences of financial penalties in the face of these earlier decisions. When it became clear that courts of appeals would not permit sentencing courts to leave to probation officers the responsibility of establishing payment schedules, it was suggested that, as an alternative, the court simply order the immediate payment of the entire amount of restitution. The intent of such an order would not be to require immediate payment of the entire amount. The amount would simply be "due" and require the offender to make payments to the best of his or her ability. The Seventh Circuit in United States v. Ahmad, supra, proposed this policy as a means of avoiding the implications of its decision that a court could not allow a probation officer to set payments. But a reading of how the court proposed that this system would work reveals a lack of real distinction between the recommended procedure and the prohibited one.

A judgment in civil litigation specifies the amount due without elaboration. If immediate payment proves impossible, accommodation will occur in the course of collection. A judgment creditor will garnish the judgment debtor's wages and collect incrementally, even though the court has not said a word about installments. Just so with criminal restitution. If the sentence specifies the amount of restitution, without elaboration, and makes the payment a condition of probation or supervised release, the probation officer will assess the defendant's progress toward satisfaction of his debt, and if the defendant is not paying what he can the probation officer will ask the judge to revoke or alter the terms of release. Then the judgment may make the order more specific, or, if the defendant has not paid what he could in good faith, may send him back to prison. Everything works nicely without any effort to establish installments on the date of sentencing and without delegating a judicial function to the probation officer.

2 F.3d at 249. This approach, despite concerns about its apparent artificiality, was recommended in Criminal Monetary Penalties: A Guide to the Probation Officer's Role (Monograph 114), Ch. V, as a means to deal with the practical limitations imposed by the courts of appeals. The monograph was approved for distribution by the Judicial Conference, and was also incorporated into the Conference-approved September 2000 version of the Judgment in a Criminal Case (AO 245B), Sheet 5. JCUS–SEP 00, p. 49.

The revised judgment as well as draft Monograph 114 were reviewed by officials at the Executive Office for United States Attorneys. That office apparently adopted this approach specifically and has since issued guidance to United States attorneys offices suggesting that this is the preferred method. In its Prosecutor's Guide to Criminal Monetary Penalties (May 2003), citing Ahmad, the publication recommends that, except in circuits that explicitly require the setting of a payment schedule and in cases in which the defendant can pay the entire penalty at the time of sentencing, the government should support a "general imposition" of the payment obligation pursuant to which payment would begin immediately.

But now this practical solution has also been foreclosed as more and more courts have determined that it runs afoul of their reading of the MVRA's requirements. These decisions, in even more stunning exercises in literalism than their precedents, reason that immediate payment of the amount of the penalty may not be ordered unless the defendant has the actual ability to pay the entire amount on the spot.¹⁰

The crabbed interpretations of the payment provisions of sections 3664 and 3572 have made it extremely difficult for probation officers, the courts, and the Bureau of Prisons to maximize the collection of money towards the criminal financial obligations of defendants. The requirement that a payment schedule be set at sentencing, perhaps years before the defendant is free to become employed and begin to make significant contributions towards his restitution sentence, makes such a schedule extremely imprecise. The requirement that the court, upon a recommendation of the probation officer, and perhaps after a hearing, adjust the payment schedule to account for a change in the defendant's financial circumstances is extremely inefficient, particularly since defendants' occupational situation is typically unstable. For those defendants that have assets, the situation is a boon as they are able to manipulate these inefficiencies to delay or avoid the maximum payments of which they may be capable.

These problems are particularly troublesome in the context of restitution since collections are for the benefit of victims of the defendants' offenses. Although there is little legislative history regarding the MVRA, it is safe to assume that part of Congress' intent was to provide as much restitution as possible to victims. Yet the language of the statute has been interpreted in a way that limits maximum collection efforts. That most courts of appeals have not even considered these issues is disturbing and shows that a similar kind of formulaic, formalistic approach that has been taken to sentencing since the Sentencing Reform Act may be applied to supervision.

The case law has so restricted the courts' and officers' ability to effectively collect criminal monetary penalties that there doesn't appear to be any solution short of legislation that will resolve the matter. Accordingly, the Judicial Conference of the United States at its March 2004 meeting agreed to support legislation that would allow the collection of such penalties as civil debts by the Department of Justice:

In order to achieve greater flexibility in the establishment and adjustment of criminal fine and restitution payment schedules, the Committee [on Criminal Law] recommended that the Judicial conference seek legislation that would provide that all criminal monetary penalties be payable immediately and collected as non-dischargeable civil debts. This would essentially decriminalize debt collection and apply well-established and efficient civil debt collection techniques to the collection of criminal debts.¹¹

Legislation to achieve this result has not yet been offered and, once offered, may take time to enact. In the meantime, courts and officers will have to muddle through, setting initial schedules at sentencing that will have to be reviewed by the court at the commencement of supervision and thereafter in many cases. As noted above, however, the collection of monetary penalties is not the only area in which courts of appeals have limited the ability of the courts to rely upon officers to execute their sentences. The case law in these areas is not so well established. Officers in circuits that have not established firm rules in these areas need not necessarily be bound by holdings in other circuits. More importantly, officers' practices in recommending and administering conditions of release could still make differences in the developing case law in some of these areas.

Some courts of appeals have determined that the district court may not delegate to the probation officer the decision regarding an offender's drug or mental health treatment. In United States v. Kent,¹² for example, the offender had been convicted of mail fraud. There was information that the defendant presented some risk of physical abuse against his wife. In light of this information, the court imposed two special conditions: that the defendant have no contact with the wife absent the probation officer's approval, and that the defendant "participate in an appropriate psychological/psychiatric counseling grogram as directed by his probation officer." At the sentencing, the court stated that the latter condition was not intended to require any counseling unless the probation officer determined that it was necessary. When asked if the defendant could move for a reconsideration of any order by the officer regarding counseling, the court replied that he would not be "riding herd" on the officer's decision, but that he would hear such a motion if necessary. The court of appeals vacated the imposition of the condition because it reasoned that the probation officer, rather than the court, retained ultimate responsibility over the defendant's counseling.

Kent was distinguished by the First Circuit in United States v. Allen,¹³ where the district court had imposed a condition requiring the defendant to "participate in a program of mental health treatment as directed by the probation officer." After examining the record of the case, the court of appeals held that this condition required the defendant to participate in mental health treatment. It authorized the probation officer only to determine the details of that treatment. Accordingly the condition was upheld. A number of other courts of appeals have adopted the rationale of Kent to foreclose courts from leaving to probation officers the responsibility of prescribing treatment.¹⁴ While required drug, alcohol, mental health, or sex offender treatment can have a serious impact on the freedom of an offender, probation officers may be in the best position to determine if such treatment is necessary. The court likely has some evidence at sentencing that the offender needs treatment, but there may be insufficient information to make an informed decision. Furthermore, after sentencing and during supervision, an offender's situation may suddenly change in a way that makes the immediate commencement of treatment critical to the success of the treatment and the protection of the public. A requirement that, before any treatment takes place, the officer must petition the court and a hearing must be held under the provisions of F.R.Crim. P. 32.1 delays treatment to the detriment of the offender and perhaps the public. And it squanders the professional training and judgment of probation officers. In the face of Kent and similar cases, the district court might simply impose treatment whenever there is evidence that treatment could be useful. But this is not only unfair to the offender who might not need treatment, but is wasteful of limited treatment resources.

The district court might attempt to construct a condition that structured the probation officer's discretion to require an offender to seek treatment. Such a condition would retain ultimate control in the court by limiting the circumstances in which a probation officer could order treatment. However, courts of appeals have not been receptive to this kind of condition. In United States v. Melendez-Santana,¹⁵ the district court had imposed a condition stipulating that if the defendant tested positive, he would be required to participate in drug treatment as determined by the probation officer. The First Circuit held that even this condition delegated too much authority to the probation officer.

The Seventh Circuit has determined that district courts must actually determine the number of drug tests to which defendants must submit pursuant to the mandatory testing provisions of 18 U.S.C. § 3583(d). In response to that case, United States v. Bonanno,¹⁶ the Office of Probation and Pretrial Services was forced to suggest that probation officers in the Seventh Circuit recommend that the court not rely on the mandatory drug testing condition to deal with defendants whose history suggests a need for drug treatment. Instead officers should recommend in those cases a special treatment condition. Arguably, there was an advantage to this process; officers and courts were required to focus courts on the actual testing and treatment needs of offenders instead of relying on the statutorily mandated testing condition, but it created unnecessary inefficiencies.

The minutiae of decision-making that these cases are imposing on district courts are unjustified and counter-productive. The probation officer, who is in a much better position to observe the offender's needs, is permitted only to determine the precise number within that range and the timing of the tests.¹⁷ It is hard to ignore the irony that courts are offering probation officers wider latitude in conducting full-blown searches of offenders and their homes¹⁸ at the same time that they are restricting their authority to determine the details of much less intrusive drug testing.

These cases in the First, Second, Seventh, Eighth, and Tenth Circuits create another unnecessary formalism in the supervision process and could delay the commencement of necessary treatment, but they are not otherwise difficult to deal with. The probation office must simply make a determination to recommend treatment at the time of sentencing or, if that has not been done, at such time during supervision as it becomes apparent that treatment is necessary. Unfortunately, given the potential difficulties in changing conditions of supervision, the officer may wish to consider erring on the side of an order of treatment. There should be good grounds for the recommendation, but if there is any doubt, perhaps that doubt should be resolved in favor of a treatment condition. The recommended condition should be clear that the probation officer's function is to determine the manner and type of treatment. With respect to the number of tests to fulfill the mandatory testing requirement under 18 U.S.C. §§ 3563(a)(5) and 3583(d), I believe the minimum should be ordered, and for offenders who need it, an additional, special condition that permits ongoing testing. If the court wishes to set a number of tests greater than the minimum under those sections, a range would be safe in circuits other than the Seventh.

In other circuits, I suggest that officers consider continuing to recommend conditions that allow officers to determine treatment. Such recommendations should be made only in those cases in which there is some evidence that treatment might be justified. Districts should have policies and procedures in place that assist officers in making the treatment decision. The existence of such policies could blunt arguments that officers might act arbitrarily. Depending on the potential length and intensity of treatment, and the cooperation of the offender, officers may also wish to consider approaching the court for a modification of conditions to require treatment. This could be done after the reference to treatment, so as to avoid any delay in commencement of treatment.

It may be that some of the restrictions on the district courts' authority to permit the probation officer to make supervision decisions could have been avoided by a more prudent and more thoroughly supported recommendation. For example, some sex offender specialists believe that these offenders should be barred from viewing any sexually stimulating material. This includes not only legal pornography, but suggestive pictures that are available in mainstream media. The idea is that these depictions objectify women and support the sex offenders' view of the world. Accordingly, a frequently recommended condition of release has been one that simply prohibits pornography, to be defined in more detail by the probation officer or treatment provider. To many people, and to most courts of appeals, however, this restriction seems heavy-handed. Apparently, because it has not been cited in opinions, the rationale for the condition has not been articulated on the record. Or, if articulated, it was not accepted.

First, in United States v. Loy,¹⁹ the offender was convicted of receiving child pornography. The district court imposed a condition of supervised release that prohibited him from possessing "all forms of pornography including legal adult pornography." The Third Circuit determined that this condition was simply too vague. It permitted the probation officer too much discretion to identify what was pornography. Likewise, in United States v. Guagliardo,²⁰ the Ninth Circuit relied upon Loy to invalidate a similar condition as violating the offender's due process right to know what behavior will result in a violation of supervision. As in Loy, the Ninth Circuit did not accept the argument that the probation officer could assist the defendant in defining what was prohibited by the condition. The term "pornography" was simply too subjective and would allow too much discretion and personal judgment to be exercised by the probation officer.

Recent cases in the Fifth and Eighth Circuits have resisted this trend,²¹ and these cases offer an opportunity to limit its damage. Officers considering these kinds of conditions need to be able to clearly articulate how the condition is necessary for the rehabilitation of the particular offender and how the condition will protect the public from that offender. Officers may want to try to provide more explicit definitions of the kind of pornography to be prohibited even if these may not be as comprehensive as they believe is ideal. Scientific support for the thesis that pornography enables these kinds of offenders should be available to the court and noted in the recommendation. The courts of appeals may still not be impressed with probation officers' ability to make the decisions regarding sex offenders' access to pornography, but so long as there is a chance that this area of probation officer discretion will survive, it is worth the effort to preserve it.

Another example of the trend of formalism is one that has not been specifically characterized as an improper delegation, but like the pornography condition, involves the exercise of a probation officer's discretion. This is the problem of barring offenders from using the Internet. A number of courts of appeals have refused to allow district courts to impose conditions barring offenders from having access to the Internet even if some of those offenders had histories of using the Internet for activities that are illegal.²² This development is particularly damaging to officers' ability to protect the public in appropriate cases. The Internet ban is clean, efficient, and effective. It does not require the probation officer to search an offender's computer. It is more effective than the threat of a search, which, if successful, will likely result in revocation. It is more protective of the public and more geared to rehabilitation than reincarceration.

Fortunately, this is also an area in which there is not yet unanimity. In United States v. Crandon,²² for example, the court imposed a condition that provided that the offender not "possess, procure, purchase, or otherwise obtain access to any form of computer network, bulletin board, Internet, or exchange format involving computers" without prior approval of the probation officer. The offender challenged the condition, but the court of appeals found the condition was reasonably related to the goal of deterring defendants from engaging in further criminal conduct and in protecting the public. This was particularly important here, where the defendant had used the Internet to lure a minor to his home, where he molested her.

In United States v. Walser,²⁴ the court permitted a condition that prohibited access to the Internet. The defendant had been convicted of possession of child pornography. The pornography had been discovered on the defendant's computer in a drug investigation. The court distinguished other decisions because the defendant was not completely banned. In this case the condition actually said that he was prohibited use or access to the Internet without the permission of the probation officer. Here is the rare case of a court of appeals upholding a condition because of the professional ability of the probation officer to make appropriate decisions. Other cases recently have taken similarly favorable positions.²⁵

This is another area in which careful presentence work could limit the trend. Officers should limit recommending Internet bans to situations in which the potential for harm caused by the misuse of the Internet is demonstrable. It will also be helpful to use the "safety valve" relied upon in Walser, that allows the probation officer to permit use of the Internet in appropriate circumstances.

Not all attempts to cabin probation officers' discretion have been welcomed by the courts of appeals. Some years ago, there was an effort by defense counsel to limit probation officers' ability to commence revocation of supervision. Fortunately, no court of appeals accepted this challenge to the authority of the probation officer to file the Form 12C with the court to seek the court's approval of the initiation of a proceeding.²⁶ Indeed, these cases are filled with citations to long-standing authority endorsing the role of the probation officer to function as an arm of the court. But this kind of good judgment is not necessarily a harbinger of future treatment of these issues. The Second Circuit has held that the probation officer is not authorized to make a decision to give a third-party risk warning if the warning could result in a loss of the offender's employment.²⁷ This unfortunate and potentially dangerous decision was based upon the provision of the third-party risk guidelines²⁸ that indicates that if the offender strongly objects to a warning, the officer should approach the court for an order or a special condition authorizing the warning, and on the sentencing guideline provision that requires the court, before imposing a condition restricting an offender from engaging in a specific occupation, to make certain findings regarding the necessity for such a condition.²⁹ The Office of General Counsel originally advised officers in all districts to follow the holding in this case, but recently, because the case has been followed in no other circuit, it is clear that officers in circuits other than the Second should not be bound by the holding.

But, in addition to the suggestions above, efforts to increase the formalization of supervision might also be contested by a greater understanding of basic principles regarding the purpose of supervision and probation officers' role in supervision. Officers can assist United States Attorneys offices in defending cases in which conditions are challenged by reminding them of these principles.

It seems clear that most of the appellate decision-making here has not been adequately sensitive to these principles. It is well accepted that the purpose of probation and supervised release is twofold: rehabilitation and protection of the community. Courts impose conditions to prevent future criminal activity, otherwise protect the public and to provide the offender with the services necessary to assist him to become a law-abiding citizen.³⁰ Part of the process of becoming a law-abiding citizen is to fulfill the obligations imposed by the court. The probation officer, who in the federal system is appointed and directed by the court that imposes those conditions, is responsible for the supervision of the offenders. He is specifically charged with the responsibility of monitoring the offender's compliance with the conditions and "using all suitable methods, not inconsistent with the conditions specified by the court, to aid a probationer or a person on supervised release who is under his supervision, and to bring about improvement in his conduct and condition."³¹

While probation officers are considered law enforcement officers for some purposes, their sole function is not to solve crimes and see to it that perpetrators are imprisoned. They have, in my view, a much more difficult job. It is their responsibility to try to effect change in offenders' lives. The effective performance of this responsibility requires the flexibility to exercise their judgment. Indeed, it has been argued that officers need a degree of discretion in offenders' incentives to comply with the conditions of release. It is important that offenders perceive that there are sure and rapid consequences to breaking the rules and rewards for following the rules. Officer flexibility promotes this perception.³²

The performance of these functions should be enhanced by the location of United States probation officers in the judicial branch, not the executive, prosecutorial branch of government. The "United States Probation Office is established pursuant to the direction of Congress as an arm of the United States District Court." Therefore, "it is reasonable to view the United States Probation Office itself as a legally constituted arm of the judicial branch."³³ The restrictions placed upon officers' assistance to the district courts, in my view, misperceive the function and placement of probation officers within the judicial branch. There is some reason to hope that this misperception can be corrected. The First Circuit, not a circuit that has been overly sensitive to the important roles probation officers play in supervision, recently recognized their probation officers' place in the judicial branch:

Delegation to probation officers may be less likely to be problematic than those involving other officials because probation officers, while not judicial officers, are statutorily bound to "serve within the jurisdiction and under the discretion" of the appointing court. 18 U.S.C. § 3602(a). They function as an arm of the court, and the Sentencing Guidelines themselves entrust many correctional decisions to their discretion, see, e.g., U.S.S.G. § 5D1.3(d)(7) (recommending that sex offenders participate in a treatment program "approved by the United States Probation Office"). As a practical matter, moreover, many district courts must rely on probation services to ensure the efficient administration of justice in criminal cases. For this reason, at least one court of appeals has suggested that delegations like the one in this case [polygraph testing, the frequency and timing to be determined by the probation office] are permissible in part because of the unique relationship between probation officers and district courts. [citing the Eleventh Circuit cases, United States v. Taylor and United States v. Zinn. See Note 25] [other citations omitted]³⁴

Although this language was located in a footnote, it is a hopeful sign that courts of appeals may be rethinking the decisions that treat the probation officer as an adversary of the defendant and a mere functionary in the criminal justice system. As discussed above, officers can help in stemming the erosion of the probation officer's discretion by recommending well-supported conditions. A few recent cases suggest that this may be a very good time to step up these efforts and support the possible second thoughts of the courts of appeals. So, unlike Scott Carey in The Incredible Shrinking Man, probation officers are not consigned to shrink into oblivion. There is yet a role in supervision and quality work by officers can help to preserve that role.

back to top