Some federal courts require only minimal written notice in advance of probation revocation hearings.
In 2024, over 3 million individuals in the United States were on probation. For the third consecutive year, entries to the probation system exceeded exits. 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 Nearly half of those individuals were incarcerated under their current sentence—their probation was revoked and they were remanded to serve their suspended sentence.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 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. And 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 seems obvious. Yet, 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.”
The Eighth Circuit echoed this “good enough” standard in United States v. Sistrunk. In that case, the court found that a probationer was not entitled to receive notice of the specific statute he was charged with violating, noting that “citation to the alleged statutory violation would have been beneficial and is likely the better practice,” before ultimately holding that “it is not a requirement” and that “for notice to be effective, it need only assure that the defendant understands the nature of the alleged violation.”
This deficiency in notice is not merely semantic. The burden for revoking probation is significantly lower than in criminal trials. In most cases, the trial judge need only be “reasonably satisfied” that the conduct of which the probationer is accused occurred. This standard even applies when probation revocation is premised on an alleged violation of a criminal statute—a probationer need not be convicted of the underlying crime, so long as the court is reasonably satisfied that the crime occurred. Under such an unfavorable evidentiary burden, the need for specific information about the alleged violation is crucial to mounting a full and informed defense.
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. A few years later, the Ninth Circuit cited Kirtley when it endorsed stricter notice 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.”
This standard comports more fully with the spirit of due process announced in Gagnon. Although probation revocation is less strict than an initial criminal proceeding, the defendant’s liberty is still at stake. The comparatively meager process due to probationers ought not be eroded further by forcing them to guess the charges against them and defend on uncertain grounds. The standards adopted by the Third and Eighth Circuits appear to ignore probationers’ potential for rehabilitation in favor of the brute efficiency of reinstitutionalization and carcerality. 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.
Although these considerations may seem trivial, 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 baleful and self-propagating cycle of incarceration.
This essay reflects solely the personal views of the author.
