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A Sentence Deferred: Fair Notice—Or lack thereof— in Vermont’s Probation Conditions

A Sentence Deferred: Fair Notice—Or lack thereof— in Vermont’s Probation Conditions

Jessica Bullock

In his 2015 State of the Union address, United States President Barack Obama called for a sweeping reform of the country’s criminal justice system.[1] In response, the nation shifted its gaze to take a critical appraisal of the country’s policies around policing, sentencing, and incarceration.[2] Since 2002, the United States has maintained the highest incarceration rates in the world.[3] Currently, 1.5 million people are housed in United States prisons; a disproportionate number of those individuals are young, male, and members of racial minorities. [4] Yet, while imprisonment represents the most extreme form of carceral power—the complete removal of liberty—inmates housed in state and federal prisons make up a minority, roughly 20 percent, of individuals under correctional supervision. [5] Strikingly, the most common form of correctional supervision—affecting the lives of nearly 4 million people in the United States—is probation. [6]

Probation is the suspension of a sentence to serve time in conjunction with an agreement with the courts and the supervision of the community to abide by certain conditions.[7] Today, nearly 4 million—or 1 in 61—adults are on probation, compared to the 1.5 million incarcerated in state and federal prisons.[8] Many of the highest probation rates are found in liberal, racially homogenous states in the Northeast and Midwest—states that are associated with resisting “high-crime politics”[9]—such as Vermont. As such, Vermont is in a unique position to track, research, and reform probation policies. An important component of research on probation must include an in-depth look at for whom probation is successful and for whom it fails, resulting in probation revocation. My Note will address this question

Vermont ranks 34th among the states in overall use of probation and parole; this represents 72 percent of the national average.[10] In 2014, Vermont’s Department of Corrections (DOC) total population included 10,516 individuals.[11] Of those, 5,373 individuals, or 51 percent, were placed on probation.[12] Probation is a powerful corrections strategy in Vermont, assisting over half of the DOC’s population who could otherwise be serving criminal sentences in prison, to maintain employment, care for their families, and reconnect with their communities.[13] Yet, too often, probation results in only temporary liberty.

While probation can yield successful rehabilitation and improve accountability, many probationers are unable to meet conditions set by the court and find themselves in violation of probation, resulting in incarceration.[14] In fact, community supervision is one of the major contributors to the prison population. Over the past twenty years, 30–40 percent of prison admissions nation-wide were attributable to “recalls” from community supervision.[15] This is compared to only 6.3 percent of prison admissions in European nations.[16] These recalls stem from a probationer’s violation of any of probation conditions. In certain cases, probation conditions are merely too vague, and lead to confusion and unnecessary litigation.[17] Yet, in certain cases, probation conditions crafted by an individual court provide minimal notice to probationers regarding what actions will result in a revocation of liberty,[18] even to the point of unconstitutionality.[19]

Nationally, Vermont is a leader in criminal justice reform. [20] This note will consider the next steps that Vermont must take to improve in-state probation conditions and combat the recidivism of revocation. In light of recent Vermont Supreme Court decisions questioning the legitimacy of current “standard” probation conditions, it is critical that the state consider a shift in policy to provide fair notice of what behaviors will result in revocation of probation.[21] This note will respectfully suggest legislative solutions to enhance uniformity, flexibility, and fair notice in Vermont’s probation conditions.  

Questions and inquiries regarding this Note may be forwarded to the author at

[1] Remarks by the President in the State of the Union Address, White House (2015),

[2] Sentencing Reform & Corrections Act of 2015 (S. 2123), U.S. Senate Comm. Judiciary (2015),

[3] U.S. Has World’s Highest Incarceration Rate, Population Reference Bureau (2012),

[4] Glaze & Herberman, Correctional Populations in the United States, Bureau of Justice Statistics, December 19, 2013.

[5] Michelle S. Phelps, Mass Probation: Toward a More Robust Theory of State Variation in Punishment, University of Minnesota Dep’t of Sociology, July 4, 2014.

[6] Glaze & Herberman, supra note 4.

[7] Vt Dep’t Corr., Facts and Figures Fiscal Year 2014 (2014),

[8] Glaze & Herberman, supra note 4.

[9] Phelps, supra note 5.

[10] Vt Dep’t Corr., supra note 7.

[11] Id.

[12] Id.

[13] Id.

[14] Profiting From Probation, Human Rights Watch, (last visited Oct. 19, 2015).

[15] Profiles in Probation Revocation: Examining the Legal Framework in 21 States, Robina Institute of Criminal Law and Criminal Justice, Probation Revocation Project Series (Vol. 1, 2014).

[16] Id.

[17] State v. Johnstone, 2013 VT 57, 194 Vt. 230, 75 A.3d 642.

[18] State v. Galanes, 2015 VT 80.

[19] State v. Putnam, 2015 VT 113.

[20] Vt Dep’t Corr., supra note 7.

[21] State v. Putnam, 2015 VT 113.

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