Ex-Prosecutor: 'Probation is the only safety valve keeping the criminal justice system afloat'

In the ongoing comments to this Grits post on why defendants would choose jailtime over probation, an ex-prosecutor, Shannon E., suggests that focusing on individual cases risks missing the "forest" for the "trees." In the big picture, he said:

the reality is that probation is the only safety valve keeping the criminal justice system afloat, since there aren't enough courts, judges, or lawyers to try everything. And if all those cases were tried, defendants would likely get stiffer sentences than they can get through plea bargaining -- that's why it's called a "bargain"!

But I'm interested to hear solutions here -- so feel free to share any you might have.

That's a fascinating statement to me for a couple of reasons. For starters, it's kind of cute, I think, to fantasize about what would happen "if all those cases were tried." Our friend just admitted, after all, and it's quite true, that "there aren't enough courts, judges or lawyers to try everything." So that's the Big Bluff: If defendants actually all excercised their constitutional right to trial, the system would probably collapse in a month or so.

So why don't they? People facing criminal charges suffer from what's basically an economic dilemma - a "free rider" problem of massive proportions. It's in the interest of all defendants for all defendants to take their cases to trial. But in a situation where only a handful of cases see a jury and most defendants plea bargain, the risk to an individual defendant for a much higher sentence is significant. The decision to go to trial often appears too costly for any individual defendant, but it would benefit all defendants significantly if that's what happened. (It's the same reason no individual consumer would ever build a power plant, but electric utilities can afford to provide power for everyone because of economies of scale - the cost is less spread out over many people.)

In reality, with prisons and jails completely full, it's simply an empty threat to say that EVERY defendant would receive a worse sentence if they all went to trial. Texas has about 151,000 prison beds, which are already full, and more than 450,000 active probationers. Could they really ALL have received prison without a plea? I don't think so.

Back to the original question of defendants choosing jail over probation, since solutions were requested, I'd be remiss not to offer some. I responded thusly in the comments:

Here's a few solutions for you, Shannon, maybe you've heard some of them (or rather, opposed some of them) before? ;-) Shorten probation lengths (at 10 years our are highest in the country). Aggressively use early release provisions to give probationers ways to earn their way off probation through good behavior. Disallow probation revocations for at least the first 2-3 dirty UAs - provide treatment and lesser sanctions for such people. Disallow revocations for other technical violations and instead install a system of intermediate sanctions.

In short, treat probationers like humans who can be rehabilitated instead of bank accounts from which probation departments can squeeze money for a decade, and make POs SUPERVISE them instead of just shuffling paper and looking for excuses to revoke them. By reducing the total number on probation (through shortening lengths and use of early release), POs would actually have more time to do that supervision. Plus, if the system were designed to functionally supervise folks in the community, more people would have a reasonable expectation they could complete probation and fewer would choose jail

Or would that make too much sense?

Oh and thanks, Shannon, for livening things up around here a bit, and to Kelly, Mike and others for worthy contributions following that post and also this followup. I'm always happy to see substantive debate in Grits' comments.