Like so many other great American ideas, the concept of court-ordered probation in lieu of committed time was born in Boston. In 1841, a local shoemaker named John Augustus volunteered to take a local drunk under his wing after paying the man’s bail in an effort to rehabilitate him through a proposed system which he called “probation.” After modest success in this direction, Augustus went on to counsel a total of 1,946 convicted criminals in a remarkable volunteer career which ultimately spanned more than two decades. Reflecting on a group of boys he took charge of in his early days as America’s first probation officer, he wrote:

…the scene formed a striking and highly pleasing contrast with their appearance when first arraigned. The judge expressed much pleasure as well as surprise at their appearance, and remarked that the object of the law had been accomplished, and expressed his cordial approval of my plan to save and reform.

The Commonwealth eventually agreed with this assessment, andMassachusetts became the first state to adopt a formal probation system in 1880. Even today, the courts of the Commonwealth now sentence defendants to probation more consistently than any other American state. (Or at least that’s what I heard on NPR the other day. I’ll try to source that a little better shortly.)

But just because we’ve been doing this longer than anyone else doesn’t mean that our probation system is perfect, as we we were reminded in today’s Appeals Court ruling in Commonwealth v. Gomes.

The defendant in Gomes was convicted of gun charges, with no allegations that he had ever had any issues with drugs and/or alcohol. Regardless of this, Gomes’s court-ordered conditions of probation specifically included not only a prohibition against drug and alcohol use, but also required him to be subjected to regular drug and alcohol screening throughout his eighteen months of supervised probation.

On appeal, the defendant acknowledged that the prohibition on drugs and alcohol use was reasonable (he was under 21 at the time), but argued that he shouldn’t have to pee in a cup on command for 18 months just because he had been caught with a gun.

The Appeals Court agreed and held for the defendant, noting that “[a] judge’s latitude in sentencing is great but not infinite.” Because drug and alcohol testing amounts to a Constitutional search and seizure, the Court found that such random testing may only be included as a condition of probation in cases in which this testing would be “reasonably related” to “recognized probationary goals” for a given defendant.

Matt Cameron