I can't I just this long for the day when I can say I'm finally I'm free, but I'm finally free. You know what I'm saying? Because, you know what I'm saying? It's it's not fun walking around, feel like you got some held over your head. It's not. Welcome to New Thinking from the Center For Justice Innovation. I'm Matt Watkins. Probation is a giant. Almost 3,000,000 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. 2 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 5 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. Oh, my that was, like, that was my first time coming home missing was my first time being on probation ever in my life, and that experience was was 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 him my name, and they they gave me a, they gave you a name and number of a probation officer to call who you ought to report to within a certain amount, like 72 hours or something like that. So once I called the probation, first thing this guy was, like, was saying, I forgot his name, but he was like, man, I wonder why they gave you me, because you live in an you live in an area in southeast DC, and that's not my jurisdiction. Like, I don't know why they gave you me, so I'm letting you know now I'm probably not gonna be a probation officer for long. So I'm like, okay. So he was like, man, like, well, you did a lot of time. This is over the phone. We're like, man, you do a lot of time, so I'm a I'm gonna hit you once a month of yours, man. You know what I'm saying? You should be, you know, once a month. So he started me off pretty lenient. You know what I'm saying? So that's, like, once a month once a month, you're gonna be drug tested is what he's telling you. At this point, yeah. And you have no history with substance use. Right? Either before you were incarcerated, during, or after 0. Right? None whatsoever. As a standard condition on probation and parole, you got a, drug test in DC. So so then I get a call, and I get a I find that I have another probation officer. It's my new probation officer, another guy, and he pretty much was the same way. He was like, man, I'm not sure if I'm gonna be your probation officer permanently, but he was in my jurisdiction. And he actually had scheduled a home visit as well, but he kept me at at Yarns once a month. But before he can come, I was notified that I had a 3rd probation officer. All this was happened within, like, the first 30 days of my release. So finally, miss Williams, who was my 3rd and permanent probation officer, she come on, and she told me to come down to the, probation building and see her so we can do our little intake, because I I hadn't done an intake with anybody at this point. They were just it was just Brooksley over the phone. She was basically like man like man, I see they got you on, urines once a month. She was like, I don't do that. Like, to me, you don't get the once a month when you walk in the door. Like, that's something you gotta earn. So she had me going like every other Wednesday, I had to go down to the, take a urine every other Wednesday. So I'm like, why, why are you changing it? You know what I'm saying? Like, why would, why, she's she's like, man, because you gotta earn. Things like that, you earn. You don't just get that off the break. You know what I'm saying? You gotta, you know what I'm saying? You gotta show me some progress before you get that type of treatment. So I'm like, okay. So she scheduled me for a home visit, and she told me, like, how often she would like to see me moving forward and whatnot. Like, at DC, you don't have to pay any fines, so I didn't have to pay any fees and nothing. But she scheduled me for a home visit and dates that that I have to come to her office and and see her and check-in with her. All of this sounds like it's, like, taking a huge amount of your time, though It is. It is. Like, making all the visits, doing the drug tests. She didn't make it easy because she didn't ask me you know, so, like, she ain't never say, man, you just did it a lot of time, man. Anything I can do to help you, but 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 any none of them did. So nobody never asked me what how could they help me, what I was gonna do, do I need any help assisting doing anything. They didn't offer any type of assistance to me whatsoever. And what was crazy is because I always thought that probation was supposed to be you know what I'm saying? I thought they'd kinda work with you to make sure you know what I'm saying? You make it easier on you, right? So as time went by, like in November when I started working now, at Arnold Ventures in 2022, I still had to leave work early, because, the place where you take a urine closes at 5 o'clock, and I get all work at 5 o'clock, so I had to leave early and then catch the bus down there before they close, and then taking urine and things like that, so which was, you know what I'm saying, so that was 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'd like to do her home visit in the morning time. So sometimes she might not come until sometimes she came early, sometimes she come at like 9, which is time I had to be at work, so that was an inconvenience. And then I'm, you know, I'm still like I said, I'm still with my daughter and my grandkids, and she come up she used to come to my house and then walk around, look around, like, in full tactical gear with the gun, the vest, and everything, like, I'm like, man, like, my grandkids are here, like, what's the what's the purpose of this? Like, coming here like that, like like you SWAT or something, right? So I asked her one time. I was like, man, is there any way, like, can you is there any way instead of me having to come down here or you doing a home visit sometime, can you come to my job? Like, I I have probation officer people, they come to the people jobs too. She was like, you work downtown. I'm not coming downtown at downtown traffic. So I'm like, Also, all these hours that you're gonna you're taking off work. I mean, having to go for the drug test, having to wait for the home visits, not knowing where they're gonna start, when they're gonna start. Obviously, you work for an organization, like, focused on criminal justice reform, so I imagine they're pretty understanding, but that's not, necessarily typical experiences No. No. It's not. People on probation. 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, in the Ace Hardware store, here in DC, and and they hadn't like, they was they had no understanding of that. Like, they had they was like, once you hear, like, I couldn't leave early for their job. So what I had to do is I had to, find a guy in my, that worked with me, and we had to change our off days so that I can get Wednesdays off so I can be able to go take my yarns without you know what I'm saying? Because that's the only way, because they wouldn't let me leave early. You know what I'm saying? So but like you say, AD, all the best is they understand, so it had I had more, flexibility with them, so And then you you had something too, didn't you, where, like, probation conflicted with your marriage date, right, if I got that right? Right. Like, I me and my wife, had, decided to get married, on Valentine's Day in 2023. It's a good day for it. Right. That's I mean, because it's Valentine's Day. It is also, my wife's father's birthday, so that's why we chose that date. But, but I also had, my my probation also also had me scheduled for, in office visit on Valentine's Day. So I was like, man, can I can you change that date? Because I'm married. You know what I'm saying? So she's like, nah. You can come in, like, if she throws, like, some you can come in and see me. Like, what time you get married? You can make it you know what I'm saying? Something like, Like, who do that? So I had got, a couple people at my job to, like, reach out to her and stuff like that. Like, man, like, come on now. Like, on this wedding day, like, who wants to come see a probation officer on a wedding date? So she wasn't blushing 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 to go you know what I'm saying? On my wedding day, like, I couldn't get an exception for my wedding day, so was was that was troubling for me. Like, I couldn't believe that she would do that. Like, somebody coming home doing everything they're supposed to do. Emerge is like that's like to me, that's I look at that as like that's like extra security. Like, you should feel a person that's in a merge in a stable relationship is more likely to succeed than somebody who does not. You know what I mean? So, you know, I would think that she would be all for that. You know what I'm saying? I'm trying to hinder that at all, but that's the nature of the beast. But you're not with her anymore, right, as No. No. Probation officer now that you're you're on to what? This is gonna be your 4th? Actually, no. This is my I'm on my 5th probation officer. On your 5th? Yeah. Because, I had moved, to Maryland. When I got married, I moved to Maryland. And when I moved to the to this place right here, I had to, let my probation officer know that I was moving and stuff, so she was like, man, you're not gonna be, under my jurisdiction anymore. You're gonna be have to go to our Hyattsville courthouse and be registered out there. So I had to go out there, and I had another probation who was my current probation officer now. Her name is Miss Myers, and that's, that's a whole another story right there with Miss Myers, because Well, let's hear it. Well, miss Myers is, like, this one this for the first time, this this one you can see the effect of having too many caseload. Like, she's so overwhelmed. She had been my probation officer now for over a year or about no. Not over a year, but almost a year. Every time I call her to do a check-in, she do not know who I am or when was the last time I checked in. It's like I'm a new person to her every single time, so I'd be thinking, like, is, any host of her giving me a progress or status update is not gonna be good because every time I get one, I gotta tell her who I am or what I you know what I mean? So that's how overwhelmed she is. So when I like, I have, a check-in with her once a month, FaceTime. Like, 1 month is a FaceTime call. The next month is just a regular phone call. But when I call, it's you had any run ins with the police? No. You still working at Saints Place? Yes. Did you pay your $53 and some change fine? Alright. Well, the next check-in date is this such such date. That's it. So that's pretty much all I do, which that's the exchange. Don't do I don't have anybody really supervising me, but I still had to pay the $53. So until I get off probation, I'm still gonna have to pay my $53 coming up, and I'll have to come up this month, which is a which is a which is an inconvenience, because it is it's 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 you know what I'm saying? Like I can't do autopay or or that. You can't pay it on that's the only way to pay it? 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 the envelope and mail it off with a stamp. Yep. I mean, does it ever feel to you like that making it more difficult for the sake of making it more difficult? It is, because it's it's it's it have been, I'm not gonna lie, it have been months where I've been like, oh, man, I forgot to get my my money order. So I immediately called my probation officer and be like, miss Myers, I forgot to get I forgot to get my money order, for the for the last month. I'm just gonna pay double in the month coming up, just pay for both of them. She was like, that's fine, that's fine, as long as you pay both of them, and it's you know what I'm saying? But it's an inconvenience because who who still gonna get money orders? I mean, they should at least make it easier for you. Right? But it's you're still just trying to make it harder. So Well, it reminds me of you being told that you just haven't earned the right to fewer drug tests. It's like, you know, you're on probation, so you haven't earned the right to, like, pay the way that, you know, quote, unquote normal people do. Right. Right. I asked her I called her and asked her, could she, could she give me, like, a a a a compliant 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. So I was like What do you mean she doesn't do that? What does that mean? Say she don't do that. She don't give out letters of of support and and compliance letters and stuff like that. So you can't get evidence from your probation officer that you've been doing what you're supposed to be doing? According to her, no. So I mean, did did the drug testing just make you feel like the system has just kind of got these incentives of just trying to catch you at doing something you're not supposed to be doing and that's its basic role? Or Yeah. That's it. That's what they got. They they come home to give you conditions and just just these kids just standard set of of rules for everybody no matter what you do. Like, it don't matter that you don't that you never took drugs or drunk alcohol. You still they still give you the test as if you did. Like, I could treat you the same way as somebody who had prior substance abuse problems, even though I don't, so it's just just too general. I think it should be specific to each individual. That's my thing. I like every person should come home and should have a probation officer that that if you got stipulations and things, conditions, it should be based off who this person is. Like, if this person don't have any history of drug use prior to prison during incarceration, then what sense would it make to for this person to have to take urines every other week? You know what I'm saying? And and and then and and in essence, if if you feel like they still need to to monitor this person, don't they convince them multiple times a month to have to come in there and do it? Like, scratch it out some. Just you know what I'm saying? 3 a year, 4 years, something like that. Don't know why it got me so 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. Yeah. I mean, man, you're experiencing the harms of this system, like, kind of on a daily basis. Almost, it feels like probation hanging over you in this way, and you can go back to prison because you didn't file a change of address in time. And then you're also working your job every day is, like, trying to make the system better, and so you're surrounded by the harms in that way too. Does, I mean, does it ever just get to be a little too much? It do. It do. I'm I'm I can't I just this long for the day when I can say, I'm finally I'm free, but I'm finally free. You know what I'm saying? Because, you know what I'm saying? It's it's not fun walking around, feel like you got something held over your head. It's not. I just want to be be out here, be able to work, and do and and do whatever change 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. You know? So I I just did 24 years in prison. I'm never going back. And that's that's why I tell my probation officer right now, I was like, man, you got probably the best client you probably ever had in me. You know what I mean? Like, you ain't gotta worry about me doing anything, like, anything. So, like, I should be I should be easy client for you. Well, Randall, man, thank you. Thank thank you for sharing the story, and and just, thank you for the part that you're doing, which is huge. Thank you for the work that you're doing, you know. Yeah. Well, thank you for having me, man. I appreciate being with you. That was Randall McNeil. Randall is a criminal justice policy analyst at the Philanthropy Arnold Ventures. Now since Randall and I spoke, he had a hearing to request early termination of his 5 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 him. 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 Lovens. 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 and Corrections department. I began our conversation by asking Brian about why it can seem that probation is designed to make life more difficult for people. And, absolutely, I think is, is at least designed to have to jump through hoops and prove your your worthiness of being in the community and not in person. I think there's this really 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. So you were in, Houston, Harris County, a decade ago with community supervision and and and and corrections. What what was the drug testing picture there when you arrived? When we walked in the door, they were spending about 4 and a half $1,000,000 a year just on the tests alone. It doesn't include staff time, resources, the people under supervision coming in and standing in line. They were we had about 36,000 people under some level of supervision, and they were testing they were doing about 25,000 tests a month. There were people standing in line for 3 and 4 hours at times to take a pure analysis test. There were some people that were on caller 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. Right. And then we know there's a way in which the repeated testing is making people's live making it more difficult for people to rebuild their lives. I mean, this, you know, 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 3 or 4 hours that day waiting to get tested. And we're talking about people with substance use issues, which are highly correlated with problems with driver's license. Right? Either they've had a DUI, they've used drug syndrome, or or we have a lot of states who limit their their driver's license as a collateral consequence or 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 wanna check-in and see where they are. Okay. Like, I'm not gonna write that fully off until we do a couple 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. Yeah. I mean, I've sort of asked this question before, before, but it's just I mean, 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. 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 they're the only ones. I mean, probation officers don't when they're they're not urologists. They're not they don't they're not pee collectors. They they take jobs because they wanna help people be successful. They wanna ensure that communities are safe. They don't wanna stand in a room and collect urine, but even here's the crazy part. Because it is a criminal justice intervention, you know, you and I go to a doctor. We go into a room with a cop. We're in private. When these folks are at probation departments, they have to have eyes on because there has to be a a consistent tracking of who has access to that sample because it's a violation of 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, you know, they weren't securing any urine or any that it would fall out if they and so like, 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 sort of really horrible, traumatic event where they're having to expose themselves to someone that's not a medical professional. Right. And you would think would completely undermine any possibility that you're gonna establish some kind of relationship, you know, in in terms of probation being this supportive environment when you're degrading people to this degree. Absolutely. I tell people all the time, like, 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. They think the other problem is there's 2,800 plus probation departments, and there's not a single system. American Probation and Pro Association or APPA just came out with a set of standards for probation departments. It's the 1st set of standards, Edward. We've had a probation since the 1800, 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. And and then but just maybe too, there's a perception that probation is kind of a small beer type question. Right? Whereas we know, you know, probation can last for for years. Lifetime. Lifetime. Life time. Well, there you go. And and and still stands without lifetime probation. The federal system has lifetime probation. Wow. I didn't even know that. Yeah. Could you imagine you're 19 and you have a probation officer for the rest of your life? What do you do at age 4 to 84? Like, let's go to the nursing home and check-in, and these are folks that are 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 know, you start to see the compounding effects of these systems and just the harshness that we use in attempt to call for public safety. So what is this what is the solution? Is it better data? What do you have? I mean I think it's I think that's a great question. I don't want to leave our our our audience with a a feel of doom and gloom. I think there is some moves. Right? 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 you gotta it's gotta feel tough. We also have a community that believes that harshness solves crime. And what we know from the nineties and 2000 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 sort of those kind of components. And so imagine a probation system. So for example, we're developing a 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 as 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 sort of comply with the rules. And we imagine in the future that probation officers are actually coaches, that there are people invested in the people winning, and that they understand that they have the mechanism or capacity to affect change in other folks. And then they build an entire system that says, how can I help you meet your potential and get you on a path to success? I mean, it's a great vision, the coach model. I mean, it just feels like the status quo and how sticky it is as you as you've been saying, we're just a very long way from that. I I don't wanna end on a depressing note either, but You know, I probably bet, I don't know, 10,000 probation officers across my 30 years in the field, maybe a few more through all the conferences and and and relationship. I would say that 85, 90% 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, like, what made the difference for you? They never say some policy. They always say, 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 acknowledgment of that, and I think that the more we lean in and figure that out, I think the more that we're gonna be able to develop a system that actually is truly about helping people succeed no matter where they head, versus catching them failing. Well, Brian, as ever, it's been really great talking to you. And, yeah, just thanks so much for making the time and and and for the work that you do. Absolutely. Very excited. That was Brian Lovins. Brian is the president of Justice System Partners and the immediate past president of the American Probation and Parole Association. Now 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 she's 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 historical time is coming. But I started the conversation by asking Fiona about the costs of the lack of attention paid to probation. I do think that that's why probation has grown kind of 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 2, 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, like, releases 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. Yeah. You you you have this article about the probation experience called obey all laws and be good. Do you just wanna talk for a moment about where where that phrase comes from and and why it was one you wanted to highlight? 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, like, why these conditions, were they or 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 kinda 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. So this is your notion of probation as a kind of, testing period. Yes. Yeah. So what what does that phrase mean for you in the context of probation? 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. 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? 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. And there's no juries involved in this process. Due process protections you would normally have are greatly weakened. 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. And so then to turn to drug testing, you think of that as sort of the quintessential test at the heart of this testing period. You know, 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 of adjudication in Western Europe between the 9th 12th centuries. So 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 I'm really, my argument is that now, like, because jury trials are too 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. So you're saying probation is a kind of modern day version of this medieval ordeal that we think of a medieval ordeal as this kind of ancient relic of superstition in the dark ages. Right. I mean, do you wanna just talk for a minute for people who might be a little, unfamiliar at this point with what the ordeal was and and and and how it worked and what its role was? Sure. So, you know, as I said, this was in regular use in, Western Europe between the 9th 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 more 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. Just this would be someone who'd been accused of doing something, and that it's the ordeal that's gonna tell us whether or not they actually did it. Yes. But 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 is called at the time oathworthy. So they were allowed to, like, 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. So in this analogy, then the probation officer, modern day, becomes sort of performing the role of God. Right. And, obviously, the I mean, it's just a think piece, so the the parallels are not exact. But I do think it, you know, is 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. You know, the administrators of the or of the medieval ordeal were priests, religious figures. They had a lot of discretion to kind of 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, like, looking for every single little rule violation and calling it out, or am I a coach who's, like, just trying to help this person get better over time? And if a condition is avoid injurious habits, I mean Who even knows what that means? Exactly. Okay. So should I talk a little bit about the Yeah. Why don't we describe, why why why don't we describe I mean, maybe it's the hot iron ordeal, the the The hot iron? The emblematic, Sure. Yes. Yeah. Ordeal. So so how that worked and how the kind of, quote, unquote, justice aspect was meant to function. Okay. So, the ordeal of the hot iron was one of the most common forms of medieval ordeal, and it took place in our church and it was surrounded by a lot of religious ritual. So 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, you know, 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 3 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 you know, the the test might be different, but it was all a physical test to see, were you pure or were you dirty? And then in a manner kind of 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 sort of lower reputation who weren't oath worthy, the conditions would be changed if the ordeal would be made harder for certain people. They'd have to walk further with the iron or the iron would be hotter, right, which, again, just makes you think about probation and all the conditions we load onto people. 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. Right. All of these sort of markers of of poverty are then being used against you. Exactly. And making the test harder. And, you know, there's, like, very little research on probation, not nearly as much as there should be. But one thing that is absolutely clear is that the intent the more intense of supervision, given the network of rules that people have to follow, the more people are gonna go to prison as a result. So if in the ordeal to drug testing kind of model, you have some sort of religious superstition and then in the modern analogy, it's it's science in the form of a drug test. The kind of irony there is drug testing itself, the science is quite iffy. I'm not gonna 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 would would like people to believe. Right? It's not only that the the science is shaky and, like, 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 criticism like, the scientific criticism. You know, 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 the wound, which was wrapped up, was gonna be free of pus. Like, there was just no deciding that was really happening there. And it's similarly unrealistic to think that somebody who's, like, suffering under the weight of a great addiction is going to, like, be able to heal themselves in, like, a week by the next time they get to their drug test. I mean, it just doesn't make any sense. There's, like, something just culturally much deeper going on. Do you have any thoughts about what what that culturally deeper thing is? Well, I think it's it's this is all about sorting people and putting people in either, like, the worthy or the unworthy category. And it of, like, my critique is we're doing it in a very unprincipled way, in a way that doesn't recognize, like, the demands that we're putting on people and, like, 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. There there are efforts, you know, 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, like, supportive rather than, you know, punishment first model. Is that kind of the answer piece by piece, or are there some more root and branch ideas out there that that you wanna highlight or advocate for? Like, we'd honestly have to spend a lot more on treatment. One thing you know from working inside the system is that, like, the quality of the treatment that poor people are sent to is really terrible. But I think taking some of, like, real problems in society where people are addicted and, really suffering and trying to move this into a public health kind of regime would be more effective than our current emphasis on on drug testing. Is class, do you think, that that the primary lens through which we should be like, conceptual lens through which we should be viewing the the current probation system? I think class, race, these are really important factors. Like, if you work as a public defender, you see that I mean, here in New Haven where I practice, more than 80%, like, well over 80% of people who are 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. Like, even public defenders kind of think that the case is over once the person is serving their sentence. But, like, very serious sanctions can be put on people, including things like curfews, more intense testing, more intense reporting. Some probation officers even have the authority to put you in jail for a couple of days without going to a judge. You have to some of them make you agree as a condition of probation, and this just shows you that, like, 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, like, no leverage. Who would agree to that? Right. And no sense of what they're signing up for in the long term. Right? We all discount risks in the future and think we can master difficult tasks. So I think the psychology of this, like, needs to be deeply studied, and, you know, the lawyering needs to be enhanced. Because, again, everybody's kind of focused on avoiding prison today. Like, 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, like, 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 or drug addiction that we in the courts, see coming back time and time again. 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 Randall McNeil with Arnold Ventures and from Brian Lovins with Justice System Partners. And my heartfelt thanks to all three guests. Thanks as well to Arnold Ventures whose support made this episode possible. If you wanna 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/new thinking. Today's episode was produced by me and edited by myself along with Julian Adler. Samia Aminmiya is our director of design. Emma Dayton is our VP of Outreach. We get production support from Elijah Michael, and our theme music is by michaelaron@quivernyc.com. This has been New Thinking from the Center For Justice Innovation. I'm Matt Watkins. Thanks for listening.