In the United States, over 3 million individuals were on probation in 2024, with entries to the probation system exceeding exits for the third consecutive year. Roughly 174,000 individuals left probation because they were incarcerated, accounting for approximately 18 percent of exits. Nearly half of those individuals were incarcerated under their current sentence—their probation was revoked and they were remanded to serve their suspended sentence.
The legal process that is due to these individuals when revoking probation—specifically, the content of the written notice given to probationers—is inconsistent across jurisdictions. The disparities in process are concerning, and the probation system would be better served by uniform, predictable regulation. The Federal Rules of Criminal Procedure govern probation revocation federally, and many states have analogous rules.
Probation Revocation Proceedings
Probation revocation proceedings are governed by a rule that encapsulates the minimum protections set out by the U.S. Supreme Court in Gagnon v. Scarpelli. These protections include a hearing before a neutral body, disclosure of evidence to be used at a revocation hearing, the right to present witnesses and evidence and to cross-examine, and, most relevant here, written notice of the alleged probation violation upon which revocation is being premised.
The purpose of notice in the due process context is to allow probationers to understand the charges against them so that they can adequately prepare a defense. When the stakes include the loss of liberty, the ability to defend oneself takes on greater significance. The need for clear, detailed information about the reasons why the government is threatening to take a probationer’s liberty away is obvious.
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Vague Notice and Its Consequences
Half of the federal courts of appeals that have addressed the question of how specific written notice must be have developed an alarmingly reductive “good enough” formula. Pioneered by the U.S. Courts of Appeals for the Third Circuit and the Eighth Circuit, the formula requires that “notice need only assure that the defendant understands the nature of the alleged violation.” Although seemingly innocuous on its face, this test inverts the standard adopted in other circuits, which require stricter notice, and instead allows revocation to be premised on vague information.
In United States v. Gordon, for example, the written notice given to the probationer failed to include a charge of drug use while on probation. Instead, it described several occasions when the probationer failed to appear for a drug test, as well as two positive drug tests, circumstantial evidence of drug use. Nevertheless, the district court revoked probation based on the uncharged drug use violation, and the Third Circuit upheld the revocation, holding that “Gordon should have anticipated that she would be questioned about her drug possession at the probation violation hearing.”
A Comparison of Standards
Contrasted against the stricter specificity requirements espoused by the U.S. Courts of Appeals the Seventh Circuit and the Ninth Circuit, the poverty of information inherent in the “good enough” test, and its pernicious effects on probationers, becomes even clearer. In United States v. Kirtley, the Seventh Circuit held that petitions that identify the specific conditions alleged to have been violated, the dates of the alleged violations, and basic facts about the violation satisfy Gagnon’s due process requirements.
In United States v. Havier, the court stressed that although probation proceedings are less formal than criminal ones, notice must nonetheless be effective. The court held that “when a revocation petition alleges the commission of a new crime and the offense being charged is not evident from the condition of probation being violated, a defendant is entitled to receive notice of the specific statute he is charged with violating.”
The fact that probation revocation proceedings are often less formal than criminal trials does not necessarily mean that the standards for notice should be lower.
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Requiring specific information about the charges does not require any more effort or expense on the part of the state, but it gives probationers a better opportunity to defend against a potential loss of their liberty.
The import for individuals on probation is grave. The ill effects of incarceration and the net societal and social harm that institutionalization causes are reason for a serious re-examination of the regulations governing probation revocation. Probation is a viable way for individuals to rehabilitate themselves and reintegrate into the community. But under the current circuit split, individuals are far too susceptible to revocation of that probation based on vague notice.
Tightening the regulations in The Federal Rules of Criminal Procedure and announcing a clear standard for all circuits to follow can ensure that individuals are not unjustly plucked back into the cycle of incarceration. This would be a step towards ensuring that probationers receive the due process they are entitled to, and that the probation system is used as a tool for rehabilitation rather than simply a means of punishing individuals who have already served their time.
The Federal Rules of Criminal Procedure must be revised to provide clear guidance on the content of written notice in probation revocation proceedings. By doing so, the courts can help ensure that probationers are treated fairly and that the probation system is used to support rehabilitation, rather than simply to punish.
