Drug Testing and the Ordeal of Probation

I just long for the day when I can say, "I'm free, but I'm finally free."

Probation is a giant.

Almost three million people are serving sentences of probation in this country. By the numbers, mass supervision easily eclipses what we rightly call mass incarceration.

You might think of probation as a minor punishment, an alternative to locking someone up.

For many people, it is neither.

Probation means living with a host of conditions, often for years—everything from “avoid injurious habits” to unannounced inspections of your home. Fail at any of these, and you can be sent to prison.

One standard condition is drug testing. Almost everyone on probation is required to submit to regular drug tests: peeing in a cup, generally under the observation of a probation officer.

The tests are time-consuming, expensive, and, for some, traumatic.

On our New Thinking podcast: the experience of probation through the prism of the drug test.

The episode features Randall McNeil, a criminal justice policy analyst with Arnold Ventures who is currently serving a five-year probation sentence; Brian Lovins of Justice System Partners who is the immediate past president of the American Probation and Parole Association; and Fiona Doherty, a public defender and a professor of law at Yale Law School.

For Doherty, probation—and the ethos of testing at its heart—is akin to the system of "ordeals" that structured the delivery of justice in the Middle Ages. "This is all about sorting people and putting people in either the worthy or the unworthy category," Doherty says. "My critique is we're doing it in a very unprincipled way."
 

The following is a transcript of the podcast:

Matt WATKINS: Welcome to New Thinking from the Center for Justice Innovation. I’m Matt Watkins.

Probation is a giant.

Almost three million people are serving sentences of probation in this country. By the numbers, mass supervision easily eclipses what we rightly call mass incarceration.

You might think of probation as a minor punishment, an alternative to locking someone up.

For many people, it is neither.

Probation means living with a host of conditions, often for years—everything from “avoid injurious habits” to unannounced inspections of your home. Fail at any of these, and you can be sent to prison.

One standard condition is drug testing. Almost everyone on probation is required to submit to regular drug tests: peeing in a cup, generally under the observation of a probation officer.

The tests are time-consuming, expensive, and, for some, traumatic.

On today’s show: the experience of probation through the prism of the drug test. We have three perspectives on the practice today.

The first is from Randall McNeil. Two years ago, Randall was released from prison in Maryland after serving 24 years of his sentence. The judge who granted him his release sentenced him to five years of probation.

Randall is currently a Criminal Justice Policy Analyst at the philanthropy, Arnold Ventures.

Randall was handed a phone number when he was released and told to report to probation. He picks up the story from there:

MCNEIL: Oh, man. That was my first time, coming home, this was my first time being on probation ever in my life. That experience was crazy to me because, in the beginning, when I was given, like you said, given a number to call—CSOSA, that's the name of the organization that oversees probation and parole in DC—and gave them my name. They give you a name and number of a probation officer to call who you are to report to within a certain amount—72 hours or something like that.

Once I called the probation, first this guy was saying, I forgot his name, but he was like, "Man, I wonder why they gave you me, because you live in an area in Southeast D.C. and that's not my jurisdiction. I don't know why they gave you me, so I'm letting you know now, I'm probably not going to be your probation officer for long." I'm like, "Okay." He was like, "Man, well, you did a lot of time." This is over the phone. He's like, "Man, you do a lot of time so I'm going to have you on once-a-month urines. You should be once a month." So he started me off pretty lenient.

WATKINS: So that's once a month you're going to be drug tested is what he's telling you?

MCNEIL: Right.

WATKINS: And you have no history with substance use, right? Either before you were incarcerated, during, or after? Zero, right?

MCNEIL: None whatsoever. That's a standard condition on probation and parole. You've got to drug test in DC.

Then I get a call and I found out that I have another probation officer. It's my new probation officer, another guy. He pretty much was the same way. He was like, "Man, I'm not sure I'm going to be your probation officer permanently," but he was in my jurisdiction. He actually had scheduled a home visit as well, but he kept me at urines once a month.

But before he could come, I was notified that I had a third probation officer. All this happened within the first 30 days of my release.

So finally, Miss Williams, who was my third and permanent probation officer, she come on and she told me to come down to the probation building and see her, so we could do our little intake because I hadn't done an intake with anybody at this point. It was just brusquely over the phone.

She was basically like, "Man, I see they got you on urines once a month. I don't do that. To me, you don't get the once-a-month when you walk in the door. That's something you've got to earn." So she had me going every other Wednesday. I had to go down to take a urine every other Wednesday.

I'm like, "Why are you changing it?" She's like, "Because you've got to earn this. Things like that, you earn. You don't just get that off the break. You've got to show me some progress before you get that type of treatment." I'm like, "Okay."

So she scheduled me for a home visit, and she told me how often she would like to see me moving forward. D.C., you don't have to pay any fines, so I didn't have to pay any fees or nothing. She scheduled me for a home visit and dates that I had to come to her office and see her, check in with her.

WATKINS: All of this sounds like it's taking a huge amount of your time, though, too.

MCNEIL: It is. It is.

WATKINS: Making all the visits, doing the drug tests...

MCNEIL: She didn't make it easy because she didn't ask me, she didn't never say, "You just did a lot of time. Anything I can do to help you? How can I support you," or nothing like that. She didn't offer anything. She didn't ask me what could she do to help me. She didn't ask anything.

None of them did. Nobody never asked me how could they help me, what I was going to do, do I need any help or assistance doing anything. They didn't offer any type of assistance to me whatsoever.

And what's crazy is, because I always thought that probation was supposed to be, I thought they worked with you to make sure, make it easier on you. As time went by, in November, when I started working at Arnold Ventures in 2022, I still had to leave work early because the place where you take a urine closes at 5:00 and I get off work at 5:00. I had to leave early and then catch the bus down there before they closed and then take a urine and things like that, which was a headache.

Then, on the days when she wanted to come to my home, to my daughter's house, and do a home visit, I had to stay until she come because she said she likes to do her home visit in the morning time. Sometimes she came early. Sometimes she came at 9:00, which is the time I had to be at work. So that was an inconvenience.

Then, like I said, I'm staying with my daughter and my grandkids. She used to come to my house and walk around, look around, in full tactical gear: with the gun, the vest, and everything. I'm like, "Man, my grandkids are here. What's the purpose of this, coming in here like that, like you're SWAT or something?"

I asked her one time, "Is it any way, is it a way instead of me having to come down here or you doing home visits sometimes, can you come to my job? Probation officers, they come to people's jobs, too." She was like, "You work downtown. I'm not coming downtown in that downtown traffic." I'm like, "Huh?"

WATKINS: Also all these hours that you're taking off work: having to go for the drug tests, having to wait for the home visits, not knowing when they're going to start… Obviously, you work for an organization focused on criminal justice reform, so I imagine they're pretty understanding, but that's not necessarily the typical experience of people on probation.

MCNEIL: No, it's not. It's not. If I had a regular job, like the job I had when I first came home, I had got a job for a few weeks working in an Ace Hardware store here in DC. They had no understanding of that. They was like, "Once you're here," I couldn't leave early from that job.

What I had to do is, I had to find a guy that worked with me, and we had to change our off days so that I could get Wednesdays off so that I could go take my urines because that's the only way because they wouldn't let me leave early. But like you said, AV, Arnold Ventures, they understand, so I have more flexibility with them.

WATKINS: Then you had something, too, didn't you, where probation conflicted with your marriage date. Have I got that right?

MCNEIL: Right. Me and my wife had decided to get married on Valentine's Day in 2023.

WATKINS: It's a good day for it!

MCNEIL: Right! Because it's Valentine's Day, it's also my wife's father's birthday—that's why we chose that date. But I also had, my probation officer also had me scheduled for an in-office visit on Valentine's Day. I was like, "Man, can you change that date because I'm married?" She's like, "Nah, you can come in and see me. What time you getting married? You can make it." I'm like, "Huh? Who do that?"

So I had got a couple people at my job to reach out to her like, "Come on, now. On his wedding day? Who wants to come see a probation officer on a wedding date?" She wasn't budging at first, but then I kept calling her and calling her. Then she was like, "Okay, okay. You can come see me on that Monday.”

But the fact that I had to go through all that on my wedding day, I couldn't even get exception on my wedding day. That was troubling for me. I couldn't believe that she would do that.

Somebody come home, doing everything they're supposed to do. Marriage, to me, that's extra security. A person that's in a marriage, in a stable relationship, is more likely to succeed than somebody that's not. I would think that she would be all for that, wouldn't try to hinder that at all.

But… that's the nature of the beast.

WATKINS: But you're not with her anymore as probation officer now that you're onto, what, it's going to be your fourth?

MCNEIL: Actually, no. I'm on my fifth probation officer.

WATKINS: On your fifth.

MCNEIL: Yeah, because I had moved to Maryland. When I got married, I moved to Maryland. When I moved to this place right here, I had to let my probation officer know that I was moving, so she was like, "You're not going to be under my jurisdiction anymore. You're going to have to go out Hyattsville courthouse and re-register out there." So I had to go out there and I had another probation who is my current probation officer now. Her name is Mrs. Meyers.

That's a whole other story right there with Mrs. Meyers.

WATKINS: Well, let's hear it!

MCNEIL: Well, Mrs. Meyers is, when I went down there, for the first time, you can see the effect of having too many caseload. She's so overwhelmed. She has been my probation officer now for over a year. No, not over a year, but almost a year. Every time I call her, do a check in, she do not know who I am or when the last time I checked in.

It's like I'm a new person to her every single time. I be thinking, any hopes of her giving me a progress or status update, it's not going to be good because every time I get her, I tell her who I am. That's how overwhelmed she is.

I have a check-in with her once a month. One month is a Face Time call. The next month is a regular phone call. But when I call it's, "You had any run ins with the police?" "No." "You still work in the same place?" "Yes." "Did you pay your $53 and some change fine? All right. Well, your next check in date is such and such date." That's it. That's pretty much all I do. That's the exchange. I don't have anybody really supervising me, but I still have to pay the $53.

So until I get off probation, I'm still going to have to pay my $53 coming up this month. Which is an inconvenience because I have to literally go to the store and get a money order and fill it out and then get an envelope and a stamp and write it. I can't do auto-pay or online.

WATKINS: You can't pay it online? That's the only way to pay it?

MCNEIL: The only way to pay it, I have to get a physical money order and fill it out and put my number on it and put it in an envelope and mail it off with a stamp. Yup.

WATKINS: Does it ever feel to you like they're making it more difficult just for the sake of making it more difficult?

MCNEIL: It is! Because it has been, I'm not going to lie, it had been months where I've been like, "Oh, man! I forgot to get my money order!" So I immediately call my probation officer and be like, "Mrs. Meyers, I forgot to get it. I forgot to get my money order for the last month. I'm just going to pay it double in the month coming up, just pay for both of them.”

She be like, "That's fine, that's fine, as long as you pay both of them." But it's an inconvenience because who still go get money orders? They should at least make it easier for you, but instead they try to make it harder.

WATKINS: Well, it reminds me of you being told that you just haven't earned the right to fewer drug tests. It's like, you're on probation so you haven't earned the right to pay the way that "normal" people do.

MCNEIL: I called her and asked her could she give me a letter of compliance or a progress report or something so I could submit with my petition to my judge. She was like, "No, I don't do that."

WATKINS:    What do you mean, she doesn't do that?! What does that mean?

MCNEIL: She says she don't do that. She don't give out letters of support and compliance letters and stuff like that. 

WATKINS: So you can't get evidence from your probation officer that you've been doing what you're supposed to be doing?

MCNEIL: According to her, no. So…

WATKINS: Did the drug testing make you feel like the system has got these incentives of trying to catch you at doing something you're not supposed to be doing and that's its basic role?

MCNEIL: Yeah! They come home, they give you conditions and a standard set of rules for everybody, no matter what you do. It don't matter that you never took drugs or drank alcohol. They still give you the test as if you did. I get treated the same way somebody who had a prior substance abuse problem, even though I don't.

It's too general. I think it should be specific to each individual. That's my thing. Every person should come home and should have a probation officer that, if you got stipulations and conditions, it should be based off who this person is. If this person don't have any history of drug use prior to prison, during incarceration, then what sense does it make for this person to have to take urines every other week?

In essence, if you feel like they still need to monitor this person, don't inconvenience them multiple times a month to have to come down there and do it. Scratch it out some. Three a year, four a year, something like that. Why it got to be, they make it too hard. They make it hard to stay out. They make it hard to stay the course. It's not easy. It's not easy at all.

WATKINS: You're experiencing the harms of the system on a daily basis almost, it feels like—probation hanging over you in this way and you could go back to prison because you didn't file a change of address in time. Then you're also working, your job every day is trying to make the system better, and so you're surrounded by the harms in that way, too. Does it ever just get to be a little too much?

MCNEIL: It do. It do. I just long for the day when I can say, I'm free, but I'm finally free. Because it's not fun walking around feeling like you got something held over your head. It's not. I just want to be out here, be able to work, and do whatever changes I can do, do whatever I can to help do my part, and stay out of the way.

I'm not out here trying to commit no crimes or do nothing crazy. I just did 24 years in prison. I'm never going back. That's what I tell my probation officer right now. I was like, "Man, you got probably the best client you ever had in me. You ain't got to worry about me doing anything. Anything. I should be an easy client for you."

WATKINS: Well, Randall, man, thank you. Thank you for sharing the story and thank you for the part that you're doing, which is huge. Thank you for the work that you're doing.

MCNEIL: Thank you for having me, man. I appreciate being on here.

WATKINS: That was Randall McNeil, a Criminal Justice Policy Analyst at the philanthropy, Arnold Ventures.

Since Randall and I spoke, he had a hearing to request early termination of his five-year probation sentence. The judge denied the request and cited the lack of an updated compliance letter, the letter which Randall’s probation officer refused to provide. Randall’s terms were modified, meaning no more fees or check-ins, but the threat of reincarceration for even the smallest infraction remains.

Next up, to give the practitioner’s take on drug testing, is Brian Lovins. Brian is the President of Justice System Partners and the immediate past president of the American Probation and Parole Association. He was also the assistant director for the Harris County Community Supervision & Corrections Department.

I began our conversation by asking him about why it can seem that probation is designed to make life more difficult for people:

LOVINS: It absolutely I think is at least designed to have to jump through hoops and prove your “worthiness” of being in the community and not in prison. I think there's this deep-seated belief that when people commit crimes, they go to prison. And so we're giving them a privilege of staying in the community. And therefore, they should honor that privilege by not breaking the rules.

And drug testing is the easiest way for us to catch them breaking the rules.

WATKINS: So you were in Houston—Harris County—a decade ago with community supervision and corrections. What was the drug testing picture there when you arrived?

LOVINS: When we walked in the door, they were spending about four-and-a-half million dollars a year just on the tests alone—doesn't include staff time, resources, the people under supervision coming and standing in line. We had about 36,000 people under some level of supervision, and they were doing about 25,000 tests a month.

There were people standing in line for three and four hours at times to take a urinalysis test. There were some people that were on color-calling code, so they had to call in every single morning, and it was determined within 24 hours they had to show up, submit a test, and if they didn't, then it would be considered a violation.

WATKINS: And then we know there's a way in which the repeated testing is making it more difficult for people to rebuild their lives. This scenario you talk about where people had to phone in every morning, which is pretty common, to find out if they'd have to spend three or four hours that day waiting to get tested.

LOVINS: And we're talking about people with substance use issues, which are highly correlated with problems with driver's licenses. Either they've had a DUI, they've used drugs and drove, or we have a lot of states who limit their driver's license as a collateral consequence or a permanent punishment of a crime.

And so now we're asking people not only to show up in the next 24 hours, but to pay for the drug test, to get a ride there, to get a ride back, to stand in line.

All these things are just these collateral consequences of engaging in something that we really have very limited evidence for—especially for people who don't have a serious substance use issue.

I can get the anecdotal argument that with someone with a serious substance use issue, yeah, you want to check in and see where they are. Okay. I'm not going to write that fully off until we do a couple of studies to see.

What I don't get is our absolute excitement, if you will even, around drug testing people who have no identified substance use issue and then putting them through all of these hoops. I feel like at some point it's just: “we can make you do it.”

WATKINS: I've asked this question before, but it's just, what are we to make, you look under the hood of probation and we're talking about just reflexively imposing this condition on people that there's just no evidence does really anything good for anyone.

LOVINS: Except for, the only people it really does good for are the people who sell drug tests. Because they make a ton of money. They're the only ones.

Probation officers don't want… They're not urologists. They're not pee collectors. They take jobs because they want to help people be successful. They want to ensure that communities are safe. They don't want to stand in a room and collect urine.

But even, here's the crazy part, because it is a criminal justice intervention… You and I go to a doctor, we go into a room with a cup. We're in private. When these folks are in probation departments, they have to have eyes-on because there has to be a consistent tracking of who has access to that sample—because it's a violation if not.

And so, officers are watching people pee into cups! I know a department that made women pull their pants down to their ankles and waddle across the room to ensure that they weren't securing any urine, or any… And it would fall out if they...

Just huge degrading things, especially when we're looking at populations that have been sexually abused and physically abused. And now we're talking about trauma on top of and the system is creating this secondary really horrible traumatic event where they're having to expose themselves to someone that's not a medical professional.

WATKINS: And you would think would completely undermine any possibility that you're going to establish some kind of relationship—in terms of probation being this supportive environment—when you're degrading people to this degree.

LOVINS: Absolutely.

I tell people all the time: the criminal justice system is built on status quo. We don't think about the job we're supposed to be doing. We think about the job we're doing, and then we double down and triple down on the job that we're doing.

I think the other problem is there's 2,800-plus probation departments, and there's not a single system. American Probation Parole Association, or APPA, just came out with a set of standards for probation departments. It's the first set of standards ever! We've had probation since the 1800s and we have no standards!

And so, right now, if we tried to study probation, we'd be studying 2,800 different iterations of it.

WATKINS: But maybe too there's a perception that probation is a small-beer type question, whereas we know probation can last for years.

LOVINS: Lifetime! Lifetime.

WATKINS: Lifetime?! Well, there you go.

LOVINS: Yeah, there's still states that have lifetime probation. The federal system has lifetime probation.

WATKINS: Wow, I didn't even know that.

LOVINS: Could you imagine you're 19 and you have a probation officer for the rest of your life? What are you doing at age 84? “Let's go to the nursing home and check in.” And these are folks that can't get off. There's no early release. A judge has to make the decision. There's no administrative way to get off.

And so you start to see the compounding effects of these systems and just the harshness that we use—an attempt to call for public safety.

WATKINS: What is the solution? Is it better data?

LOVINS: That's a great question. I don't want to leave our audience with a feel of doom and gloom. I think there are some moots. So one, I think there's a really strong move around: what's the purpose of probation. I don't think we have a common language for that. I think that there are a lot of people who see probation as a punishment, who see it as an extension of a punishment or an alternative punishment of prison, but it's got to feel tough.

We also have a community that believes that harshness solves crime. And what we know from the '90s and 2000s is that harshness does not solve crime. People don't commit crime because there's a lack of punishment. People commit crime because they have a lot of needs that are intersectioned by lots of blocked pathways. And so most crime is committed out of those components.

And so imagine a probation system… So for example, we're developing a model, it's called the Coach Ref Model for Change, but that it transforms what we would consider probation is right now in many places is referees: They stand, they get a set of rules, they watch people, they blow the whistle, they give a penalty, and they try to get people to comply with the rules.

And we imagine in the future that probation officers are actually coaches. That they're people invested in the people winning, and that they understand that they have the mechanism or the capacity to effect change in other folks, and that they build an entire system that says: how can I help you meet your potential and get you on a path to success?

WATKINS: It's a great vision, the Coach Model. It just feels like the status quo and how sticky it is, as you've been saying, we're just a very long way from that.

I don't want to end on a depressing note either, but…

LOVINS: I’ve probably met, I don't know, 10,000 probation officers across my 30 years in the field, maybe a few more through all the conferences and relationships. I would say that 85, 90 percent of the people I meet took the job to help people be successful.

They get put in a system that makes them operate like this referee, but really they're there to make a difference. They're great people. When I talk to people who are incarcerated or people who are on probation or parole and I ask them, "What made the difference for you?" They never say some policy. They always say that this person made a difference for me, this person went out of their way, this person treated me like a human being, they helped me.

And I think that's the important piece is to recognize that our system shouldn't be a conveyor belt that everyone just gets things done to them, but really should center the person.

There is some movement for that, there is some acknowledgement of that. And I think that the more we lean in and figure that out, I think the more that we're going to be able to develop a system that actually is truly about helping people succeed matter where they head, versus catching them failing.

WATKINS: Well, Brian, as ever, it's been really great talking to you. And yeah, just thanks so much for making the time and for the work that you do.

LOVINS: Absolutely. Very excited. 

WATKINS: That was Brian Lovins. Brian is the President of Justice System Partners and the immediate past president of the American Probation and Parole Association.

Last up, with the perspective of both a public defender and an academic, is Fiona Doherty. Fiona is the Nathan Baker Clinical Professor of Law at Yale Law School and one of the leading scholars of mass supervision.

I wanted to talk to her, in part, because of a provocative historical analogy she makes to try to grasp the role probation is playing. That analogy is why “ordeal” is in today’s episode title. So a heads-up that a jump across time is coming.

I started by asking her about the costs of the lack of attention paid to probation: 

DOHERTY: I do think that that's why probation has grown in stealth. People are shocked to find out that there are twice as many people on probation as there are in prison.

And they're also shocked to find out the relationship between the two. The fact that prison admissions are so deeply connected to violations of conditions of probation.

Probation is a problem masquerading as a solution. People think of probation as the solution to mass incarceration when actually it is the driver, to a significant extent, of mass incarceration.

The promise of no prison greases the wheels of so many plea bargaining arrangements. People bargain away their rights and put themselves into a model in which they'll be tested—the model that I think of now as the ordeal model.

And there's very little emphasis in the court about what it is you're bargaining away. And that has been, I think, a huge reason why probation conditions have swelled. And all of these conditions come with the backstop of prison as the enforcer.

WATKINS: You have this article about the probation experience called ‘Obey All Laws and Be Good.’

Do you just want to talk for a moment about where that phrase comes from and why it was one you wanted to highlight?

DOHERTY: Well, it comes from the conditions themselves. I was really struck by many of the conditions I was seeing in state systems, and I couldn't really find any articles about why these conditions were there, why they were so broad.

I just gathered as many condition documents as I could. Sometimes it was very hard to find them. Now they're more available online, but then you had to call and beg probation departments to give them to you.

And what I saw time and time again is that they look very similar in many places, and the breadth of the power that they were claiming over people's lives was really staggering. 

WATKINS: So this is your notion of probation as a testing period.

DOHERTY: Yes.

WATKINS: So what does that phrase mean for you in the context of probation?

DOHERTY: So the idea is that to resolve your criminal case, what you have to do is agree to enter a forward-looking test, which is what I call a testing period. So for a defined amount of time, as long as you can obey the many conditions that are imposed on you, you will still probably be guilty, because many people have to plead guilty in order to enter the testing period, but you will avoid prison.

WATKINS: So it's a test of your future behavior, regulating your future behavior, rather than adjudicating whether you did some criminal thing in the past.

DOHERTY: It means that the focus is not on the details of the crime or on testing whether or not the police got all the details right. Instead, the focus is on seeing if you can meet the standards that are laid out for the future. In that way it's utilitarian—it's looking forward rather than back.

WATKINS: And there's no juries involved in this process. Due process protections you would normally have are greatly weakened.

DOHERTY: There's no presumption of innocence because you have agreed to plead guilty in order to get the chance to avoid prison. There's no requirement of proof beyond a reasonable doubt—it's preponderance of the evidence, or even less in a lot of probation systems. And there are no juries involved whatsoever.

WATKINS: And so then to turn to drug testing, you think of that as the quintessential test at the heart of this testing period.

DOHERTY: It was really representing people in drug courts and in probation systems where they were subject to these tests, and so much of the language in the court was about whether people were “dirty” or “clean.”

I started thinking back to some of the classes I took in law school. I took this amazing class by John Langbein, which was the history of the common law, and he talked about how the ordeal model had prevailed as a way of adjudication in Western Europe between the 9th and 12th centuries.

For about 400 years, people went through a physical test to find out if and how they should be punished. And then that system was replaced by the jury trial system. And really my argument is that now—because jury trials have proven too cumbersome, too expensive—we're returning to an ordeal model where people have to go through a physical test to see whether or not they should be punished.

WATKINS: So you're saying probation is a modern-day version of this medieval ordeal that... We think of a medieval ordeal as this ancient relic of superstition and the Dark Ages.

DOHERTY: Right.

WATKINS: I mean, do you want to just talk for a minute, for people who might be a little unfamiliar at this point with what the ordeal was and how it worked and what its role was?

DOHERTY: Sure. So, as I said, this was in regular use in Western Europe between the 9th and 12th centuries to decide criminal cases and it functioned as a form of proof. And the parallel that really struck me is that the people who went through a medieval ordeal were called the “proband.” So obviously a word that comes from the same roots as probation. And the medieval ordeal, like probation today, was a forward-looking test.

WATKINS: This would be someone who'd been accused of doing something, and then it's the ordeal that's going to tell us whether or not they actually did it.

DOHERTY: Yes. And that raises a really important question because it was only low-status people, generally, who had to go through the ordeal. Those of higher status were known as, what was called at the time, “oath-worthy.” So they were allowed to swear oaths to give evidence. But when people weren't of that status, then you needed God to weigh in on whether the person was telling the truth or not.

WATKINS: In this analogy, then, the probation officer, modern-day, becomes, sort of, performing the role of God?

DOHERTY: Right. And obviously it's just a think piece, so the parallels are not exact, but I do think it's a way to have us really think about what we're doing, including the culture of what we're doing. And I would say in modern-day systems, science, and often faulty ideas of science, have replaced God.

The administrators of the medieval ordeal were priests, religious figures. They had a lot of discretion to tilt the ordeal one way or the other. And that is absolutely true of our modern-day probation regimes. There are just so many rules! So many requirements that probation officers are called on a daily basis to decide: am I going to be like the umpire, looking for every single little rule violation and calling it out? Or am I a coach who's just trying to help this person get better over time?

WATKINS: And if a condition is, “avoid injurious habits,” I mean... 

DOHERTY: Who even knows what that means?!

WATKINS: Exactly.

DOHERTY: Okay, so should I talk a little bit about the…

WATKINS: Yeah. Why don't we describe... I mean, maybe is the hot iron ordeal…

DOHERTY: The hot iron?

WATKINS: …the emblematic ordeal?

DOHERTY: Sure. Yes.

WATKINS: So, how that worked and how the "justice" aspect was meant to function?

DOHERTY: Okay. So the ordeal of the hot iron was one of the most common forms of medieval ordeal, and it took place in a church, and it was surrounded by a lot of religious ritual. A priest would place an iron in a fire, and the fire would burn during the service. And at the appointed moment in the service, the accused—the proband—would walk towards the fire, pick up the iron, walk a set number of paces, and then put the iron down.

And then the administrators of the ordeal would seal the person's hand with bandages, and they would wait three days. Then they would unwrap the bandages and look to see if the hand was dirty or clean. Was the wound clean? And that was what decided whether the person was guilty or not.

Most people who went to the ordeal were assumed to be guilty, and then this was a way of getting God's judgment about what kind of punishment they deserved. And other ordeals operated on... The test might be different, but it was all a physical test to see: were you pure or were you dirty?

WATKINS: And then in a manner akin to the modern-day probation system and the class-based nature of it, you point out too under the medieval ordeals that people of a lower reputation, who weren't “oath-worthy,” the conditions would be changed of the ordeal, it would be made harder for certain people.

They'd have to walk further with the iron, or the iron would be hotter, which again, just makes you think about probation and all the conditions we load onto people.

DOHERTY: And that really made me think about risk assessment instruments and how those are used in probation, and how things like whether you own your home, whether you're poor, whether your parents had criminal history, whether you do, all those things, whether you have a job… Those things increase the intensity of the supervision you're under.

WATKINS: All of these markers of poverty are then being used against you.

DOHERTY: Exactly. And making the test harder. There's very little research on probation, not nearly as much as there should be, but one thing that is absolutely clear is that the more intense the supervision, given the network of rules that people have to follow, the more people are going to go to prison as a result.

WATKINS: So, if in the ordeal-to-drug-testing model, you have religious superstition, and then in the modern analogy it's science in the form of a drug test, the irony there is drug testing itself, the science is quite iffy.

I'm not going to say it's as bad as the superstition of the hot iron and the wound, but there's lots of evidence that it's hardly as scientific as its proponents would like people to believe.

DOHERTY: It's not only that the science is shaky and it's hard to know how these tests are implemented when we know so little about probation systems in general.

So there's that kind of criticism. Then there's also the scientific criticism: the Surgeon General says addiction is a chronic neurological disorder.

And here we have the idea that, just like people in the medieval ordeal could... They were not deciding that their wound, which was wrapped up, was going to be free of pus! There was just no deciding that was really happening there.

And it's similarly unrealistic to think that somebody who's suffering under the weight of a great addiction is going to be able to heal themselves in a week by the next time they get to their drug test.

It just doesn't make any sense. There's something just culturally much deeper going on.

WATKINS: Do you have any thoughts about what that culturally deeper thing is?

DOHERTY: Well, I think this is all about sorting people and putting people in either the worthy or the unworthy category. My critique is we're doing it in a very unprincipled way, in a way that doesn't recognize the demands that we're putting on people and the unscientific ways we're thinking about addiction and other problems of poverty and people's traumatic histories.

So we're doing it in an unrealistic way, but ultimately the criminal justice system has to sort. And we don't rely on jury trials to do that because it would break the system. So we need some other way to do it, and this is a big part of how we're doing it right now.

WATKINS: There are efforts underway in some jurisdictions across the country to decrease the reliance on drug testing, to have fewer conditions, to try to push probation towards a more supportive rather than punishment-first model. Is that the answer, piece by piece, or are there some more root-and-branch ideas out there that you want to highlight or advocate for?

DOHERTY: We'd honestly have to spend a lot more on treatment. One thing you know from working inside the system is that the quality of the treatment that poor people are sent to is really terrible.

But I think taking some of real problems in society where people are addicted and really suffering and trying to move this into a public health regime would be more effective than our current emphasis on drug testing.

WATKINS: Is class, do you think, the primary lens, conceptual lens, through which we should be viewing the current probation system?

DOHERTY: I think class, race, these are really important factors. If you work as a public defender, you see that... I mean, here in New Haven where I practice, more than 80 percent, well over 80 percent, of people who come through the criminal courts are public-defender eligible.

And having a lawyer who advocates for you on probation is almost unheard of—unless you're wealthy and could afford that. Even public defenders think that the case is over once the person is serving their sentence.

But very serious sanctions can be put on people, including things like curfews, more intense testing, more intense reporting. Some probation offices even have the authority to put you in jail for a couple of days without going to a judge.

Some of them make you agree as a condition of probation, and this just shows you that “agree” has a very thin meaning here, but agree to be, not to contest a couple of days in prison as a sanction, as a condition of being on probation.

That just shows you that people who agree to be on probation have no leverage. Who would agree to that?

WATKINS: And no sense of what they're signing up for in the long term, right?

DOHERTY: We all discount risks in the future and think we can master difficult tests. So I think the psychology of this needs to be deeply studied and the lawyering needs to be enhanced. Because again, everybody's focused on avoiding prison today. There is not enough emphasis on really studying hard what people are, I would say “agree,” but it's really not agree. These are contracts of adhesion. In other words, you don't have any negotiating power.

Although for some people, probation is truly a way to take responsibility for their crimes, not to go to prison, and then to succeed. But it is people more on the margins of society or who suffer from mental illness or drug addiction that we in the courts see coming back time and time again.

WATKINS: That was Fiona Doherty. Fiona is a public defender and she’s a Professor of Law at Yale Law School.

You also heard today from Brian Lovins with Justice System Partners and from Randall McNeil with Arnold Ventures, and my thanks to all three guests.

Thanks as well to Arnold Ventures whose support made today’s episode possible.

If you want to go deeper on this question, there’s a whole recent issue of the Federal Sentencing Reporter dedicated to drug testing and supervision. It’s guest edited by the Center for Justice Innovation and I’ll put a link to it in the show notes. You can also find more information at our website, innovatingjustice.org/newthinking.

Today’s episode was produced by me and edited by myself and Julian Adler. Samiha Amin Meah is our director of design. Emma Dayton is our V-P of outreach. We get essential production support from Elijah Michel. And our theme music is by Michael Aharon at quivernyc.com.

This has been New Thinking from the Center for Justice Innovation. I’m Matt Watkins. Thanks for listening.