Federal district judge Alvin Hellerstein was rightly outraged that a probation officer acting on behalf of the Bureau of Prisons had Michael CohenMichael Dean CohenTrump Organization faces new scrutiny in New York civil probe Michael Cohen: Trump bluffing about another White House bid Eric Trump lawyer in New York attorney general's fraud case quits MORE arrested because he was writing a book about President Donald TrumpDonald TrumpRobert Gates says 'extreme polarization' is the greatest threat to US democracy Cassidy says he won't vote for Trump if he runs in 2024 Schiff says holding Bannon in criminal contempt 'a way of getting people's attention' MORE and because Cohen would not agree to give up his First Amendment rights as part of his supervised release. The judge found that “the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others."
It is almost unheard of to see a federal judge get upset with a probation officer or the Bureau of Prisons. That’s because there is a fiction in the criminal justice system that a probation officer is an “arm of the court.” Criminal law practitioners, however, know the truth about probation officers — they often are advocates for the executive branch (prosecutors) and can push harder than even prosecutors do for draconian prison sentences.
Look at what happened with Cohen — he was arrested without approval from a judge and without his lawyers having the ability to argue his position with a judge before the arrest. And what was the supposed justification by the arresting officer? Cohen was “antagonistic” and did not want to sign a document outlining conditions of his ongoing release.
DOJ tried to come to the defense of the prison system and probation, arguing that Cohen’s lawyer was trying to “haggle” with the probation officer about wearing an ankle monitor. The judge made quick work of that argument: “What’s an attorney for if he is not going to negotiate an agreement with his client?”
You might be thinking that it is outrageous for a probation or prison officer to have this much power. If so, it’s even worse than you think. Although prosecutors and defense lawyers are not permitted to speak to the judge without the other side present, probation officers typically meet with judges alone, making their recommendations in secret without the parties getting a chance to be heard. And judges often defer to prison officials.
Justice Antonin Scalia forecast the problem with judicial deference back in 1989 at the infancy of the Federal Sentencing Guidelines, which gave enormous power to these non-lawyer probation officers. Scalia was the lone dissenter in Mistretta v. United States, which found the Sentencing Guidelines constitutional. He said that “we will live to regret it” because the case shifted way too much power away from branches of government to unaccountable commissioners and probation officers without any checks.
Instead of probation officers making sure defendants on probation or supervised release were passing drug tests, working, and otherwise getting back on their feet, they were transformed from social workers into powerful quasi-judges with law enforcement power to arrest. Now, these “officers” have taken on the central role in sentencing — preparing a lengthy report for the judge, which interprets complicated legal guideline issues, and making recommendations. As Professor Ricardo Bascuas explained: “Far from undertaking merely ministerial and innocuous tasks, … probation officers … often exert far greater influence on case outcomes than defense lawyers and prosecutors.”
Although most judges view probation officers as their neutral “eyes and ears,” many are anything but neutral.
Hopefully the Michael Cohen case will help to show how many probation officers and prison officials behave — not as neutral arms, eyes, and ears of the judiciary, but as a force that the Department of Justice uses to fill the prisons.
It seems clear that executive branch officials did not want Michael Cohen free. It seems clear — to the judge anyway — that Cohen was arrested for writing a book. No one asked a judge before arresting him. No one gave Cohen a chance to be heard in court. He was just thrown in jail.
This time a judge got angry. Let’s hope that Michael Cohen’s case shows judges what the rest of the criminal justice system knows — probation officers and prison officials have way too much power.
David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.