DUE PROCESS IN THE SHADOWS: THE CASE FOR PROOF BEYOND A REASONABLE DOUBT IN PROBATION REVOCATION

Abstract

In American criminal law, the Supreme Court has long required proof beyond a reasonable doubt before the state may deprive an individual of liberty for a criminal offense. Yet probation revocation proceedings-where courts frequently impose incarceration based on allegations of new misconduct-often permit imprisonment upon substantially lower burdens of proof. This Article argues that the constitutional logic of In re Winship extends to revocation proceedings that may result in confinement and that due process therefore requires proof beyond a reasonable doubt when the state seeks to incarcerate a probationer. This Article is among the first to center the burden of proof itself as a constitutional defect in probation revocation doctrine. Existing scholarship has critiqued revocation procedures broadly but has not squarely confronted the burden of proof as a component of evidentiary standards utilized in probation revocation hearings and their application in the revocation of probation sentences. This Article argues that these lax standards violate probationers' rights and proliferate punitive jail sentences in both federal and state jurisdictions. It thus calls for the required use of a higher standard even in probation revocation, at least when incarceration is imposed as a revocation sentence.