By Fiona Doherty. Full text here.
This Article introduces the concept of “Testing Periods” to explain how U.S. courts sort criminal defendants for incarceratory and non-incarceratory results. A Testing Period is a time period during which a criminal defendant agrees to abide by a set of prospective rules (such as avoiding “dirty urines” and remaining “clean” from drugs and alcohol), typically, but not always, as a function of plea bargaining. Prosecutors and judges set the rules, and defendants must demonstrate that they can follow the rules to pass the test and successfully avoid prison. Juries play no role in the system, and due process requirements diverge sharply from traditional norms.
The outcomes of most criminal cases are now determined through Testing Periods, which go by varied names like probation, problem-solving courts, suspended sentences, conditional plea agreements, and deferred adjudication. The pervasiveness of Testing Periods has changed the orientation of outcome determination in criminal cases away from a retrospective analysis to a prospective one: Outcomes no longer depend on a backward-looking examination of the facts of a criminal charge, but instead on whether a defendant can pass a forward-looking test. The power to create and administer Testing Periods has become the power to determine who goes to prison and for what reason. The Article concludes that the widespread use of Testing Periods has recreated dynamics from a much older method of resolving criminal cases: the testing models used in the medieval ordeal system to separate “clean” defendants from “dirty” ones, and the “worthy” from the “unworthy.”