By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Probation officers are often the gatekeepers between their probationers and ultimate freedom. Probation officers are often asked about recommendations for things like travel, removal of an interlock ignition or deep lung device from a vehicle in DWI cases, or even early release from probation.
When folks visit with me wanting to change something about their probation, it’s very common for them to tell me their probation officer is “not opposed,” or “on board with” or even “recommends” something.
In truth – when I do pick up the phone to ask the probation officer their views I hardly ever get much of anything useful. I’m usually told the probation department opposes our request to the judge or takes no position on our request to the judge (usually citing department policy). I can’t remember the last time a probation officer actually told me they supported our motion.
Probation officers also make recommendations for revocations and adjudications. It’s a bit of a different topic – but remember it is the Judge who ultimately determines what happens in a case, not the probation department.
Probation Officers Don’t Like Making Recommendations
Probation officers work in a bureaucracy. I’ve been in the Army, the District Attorney’s Office, and and have worked alongside government my entire career. My blog is anything but political but probation departments with their bureaucracies come with some flawed cultures I’ve noticed.
I find there are three cultural problems I’ve seen with probation departments struggle with. First, there is a climate of fear surrounding decision making. Personnel are collectively intimidated about sticking their neck-out and making an uncommon or unconventional decision which has any potential at all to backfire.
Second, there is a “default to no” culture at most probation departments. This means the default answer requests is typically “no.” The answer is “no” if they don’t understand the request, “no” if they are 50/50 on the request, and especially the answer is “no” if they find a teeny-tiny reason the request could somehow backfire.
Third, if one decision maker is good – then seven are better. And then they’ll come up with better reasons for saying “no.”
I’m probably jaded, but my view is probation officers simply don’t want to make decisions or recommendations which help their probationers. They might claim to be in support in closed quarters with no one listening but they often quickly back off any such boldness. They often claim they are bound not to make recommendations by office policy. That could be true in some instances but those policies have never limited them from making recommendations against my clients… so I tend to view the policies skeptically.
Often I find a probation officer will claim they are not taking a position – yet they passive/aggressively oppose our requests in open court. So I never take for granted they are in our corner or neutral on an issue.
I know I’m making many generalizations here. There are plenty of probation officers I’ve worked with who break this mold and are very forthcoming on their views whether they are helpful or not to my client.
A Probation Officer’s Recommendation Isn’t Everything
It’s okay probation officers if don’t want to make recommendations. Judges are comfortable making difficult calls granting things the probation department doesn’t like or want.
It’s the Judge who controls terms and conditions of probation – and Judges disagree with probation officers all the time. Many judges have far more antagonistic relationships with the probation department than you may think.
For these reasons when I’m asked to help someone modify their probation – I just don’t put much stock in what the probation officer reportedly recommends. If they are in our corner all the better. But we can still win without it.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.