The University of New Hampshire Law Review
Abstract
Being found in violation of probation has dire consequences. The person found in violation can be imprisoned, upending them from their job, family, and community. Unlike incarceration after a criminal trial, a sentence after a violation of probation is not the result of a legal process characterized by robust due process protections. It is also often not the result of a forceful and thorough defense. It is instead the consequence of a hearing where lawyers with the fixed mindset of an inevitable finding of a violation don’t engage in the same preparation that they would if it was a trial. My goal in this paper is to empower lawyers to rethink their approach to litigating these hearings.
For over 50 years, lawyers have interpreted U.S. Supreme Court jurisprudence as signaling to them that they can be less than zealous at a probation violation hearing because the different purpose of the hearing requires less due process than at a trial. This article argues that there is a need for lawyers representing clients at probation violation hearings to push back against this signal and reframe their advocacy by approaching their preparation and performance at these critical hearings with the same lens they use to approach advocating for their clients charged with criminal offenses. Various aspects of probation as a mechanism for criminal punishment need reform, and this shift in approach to advocacy is a worthy part of that transformation.
Repository Citation
Shira Diner, Revocation Reconsidered: Probation Advocacy Through A Litigation Lens, 24 U.N.H. L. Rev. 349 (2026).