The Massachusetts probation service, a treasure trove of nearly 2,200 state jobs, is at the center of a three-way tug of war between the governor, the judiciary, and the Legislature.
Gov. Deval Patrick pulled hard in his direction last month, unveiling legislation that would move probation out of the judiciary and into the executive branch, where it would be merged with parole. Probation generally supervises persons convicted of crimes who receive sentences that don’t include jail time, as well as some offenders who have already served jail time. Parole oversees people released from prison after serving their sentence.
Patrick says combining probation and parole would bring Massachusetts in line with other states, save about $15 million by eliminating duplicative services, and address concerns he has about probation being a legislative patronage haven.
The administrator of the state’s trial court system is now tugging hard in the opposite direction, making the case that probation should stay within the judiciary but operate under new rules.
Robert A. Mulligan, the trial court’s chief justice for administration and management, said in an interview that he wants the Legislature to restore to him full oversight over probation’s budget, its employees, and its commissioner. “At this point, I’m exploring the appetite for reform in the Legislature,” Mulligan said.
If history is any guide, the appetite for reform isn’t likely to be very great. Key lawmakers declined comment or couldn’t be reached, but over the last 15 years the Legislature has transformed probation into a fiefdom insulated from oversight by anyone other than state lawmakers. Michael Keating, who heads a court advisory group, calls probation “an island of its own.”
In 2001, for example, Mulligan says the Legislature gave the commissioner of probation exclusive authority to hire, fire, assign, and discipline probation officers. Previously, that authority had always been subject to the approval of the trial court’s chief justice for administration and management.
John J. O’Brien, the probation commissioner, insisted in an emailed response to questions that all probation officer appointments are made subject to the approval of the chief justice for administration and management. But Mulligan said his power is limited to withholding approval if O’Brien fails to follow proper hiring procedures, doesn’t comply with the court’s affirmative action policy, or lacks the funds to pay the new employee’s salary.
With budgets tight, the Legislature has given Mulligan the power to transfer funds between court agencies, but in the fiscal 2009 budget lawmakers barred Mulligan from moving any funds out of probation. Patrick vetoed the provision, but the Legislature overrode his veto and effectively insulated probation from budgetary oversight by the court.
There are indications probation receives excessive funding. Keating’s group, the Court Management Advisory Board, says its research indicates the caseload of probation increased 2 percent between fiscal year 2005 and fiscal year 2008, while spending went up 17 percent. The data also show the number of probation workers increased 10 percent between July 2005 and July 2008, rising from 2,005 to 2,200.
In 1993, five years before O’Brien was appointed to his post, the Legislature approved a law eliminating the six-year term of the commissioner of probation. The elimination of any term limit for the job has been interpreted by critics of the action as a move to give the commissioner life-time tenure. But other officials say the law is too vague to reach that determination. They say the commissioner’s employment status will probably have to be resolved in court.
Mulligan declined to offer his opinion, but said lack of a term limit for the commissioner of probation is “a unique situation in the court system.” He noted he, department chief justices, and the jury commissioner all serve five-year terms. Even Supreme Judicial Court justices have a mandatory retirement age.
“Anyone who works in the organization should have a term and should also serve at the pleasure of his or her superior,” he said.
Mulligan acknowledged he hasn’t pushed for changes in probation oversight before, but added: “I am advocating for them now.”
Mulligan said the removal of probation from the judiciary could harm the synergy that exists between judges and probation and possibly lead more judges to sentence criminals to jail time rather than probation.
“Removing probation to a whole different branch of government is going to destroy – that may be a harsh word – but certainly adversely impact the level of trust that exists today,” he said.
Keating of the Court Management Advisory Board says he is taking no position on whether probation belongs in the judiciary or the executive branch. “I don’t care where it is as long as the department is under the supervision of the supervising authority,” he said. “What you can’t continue is what you have now.”
Other probation resources
1. Patrick administration’s October 2009 report, “Correcting Community Supervision”
2. Section by section breakdown of Patrick’s community supervision legislation
