Realigning Probation with Our Values
Probation has long been a part of our criminal-justice system, offering a supervised middle ground between freedom and incarceration. As the consequences of mass incarceration became clear in the 1980s — with overcrowded prisons, ravaged communities, and rising rates of recidivism — certain reformers looked to probation as a benign alternative to imprisonment more in keeping with the spirit of key conservative values. Probation, it was argued, represented a low-cost means of maintaining public safety that minimally infringed on individual liberties, maintained familial and communal cohesion, and minimized the financial burden placed on taxpayers.
As a result, between 1980 and 2016, the population of individuals on probation or parole more than tripled. (Parole is an option only after a period of incarceration; probation can be used either after a prison sentence or as an alternative to jail time.) As of 2016, of the 6.6 million people in the criminal-justice system, two-thirds of them were either on probation or parole. Typically, this modern form of probation includes supervision by an agent, reporting requirements, and a long list of conditions to which individuals must adhere. Conditions might include drug, alcohol, or mental-health treatment; employment; a curfew; community service; and the payment of fines, fees, and restitution. Violating these conditions can lead to revocation of probation and incarceration.
While these probation programs were expanded to address the problem of mass incarceration, the increased use of probation has created its own set of problems that must now be addressed. Probation is now overused as a sanction, and the conditions of probation are often overly focused on monitoring and compliance to the detriment of rehabilitation and promoting successful re-entry. Even more troubling, the revocation of probation is too often the default response to a violation of those conditions — paradoxically increasing the number of misdemeanants and nonviolent offenders who are inappropriately incarcerated.
Probation and other forms of community supervision still retain the potential to serve the public well as a key method of administering criminal justice. In its best form, probation can connect individuals to employment, education, housing, and other needed services while keeping them accountable to themselves and to society. Yet all too often, probation has become a one-size-fits-all solution, the overuse of which has ultimately caused more problems than it has solved.
Fortunately, in recent years, a number of states have put forward a series of common-sense reforms that have the potential to restore the original promise of community-supervision programs. These more successful models point the way toward a more effective approach to probation that, not incidentally, more deeply aligns with conservative values. The success of such reforms demonstrates that probation programs, when constructed and applied appropriately, have the potential to contribute significantly to public safety, while minimizing the costs typically associated with similarly effective criminal-justice initiatives.
THE PROBLEM OF OVER-SUPERVISION
The United States penal system has two major arms. The first and most visible is the custody branch, with approximately 2.1 million inmates. The second arm, community supervision, is less well-known. This is somewhat surprising considering that this population includes over 4.5 million people, representing two-thirds of those in the criminal-justice system. More than 3.6 million of these individuals were on probation at the end of 2016, while the remaining 875,000 were on parole. What's more, the number of individuals under community supervision has skyrocketed in the past few decades: Between 1980 and 2016, the population of individuals on probation or parole increased by a staggering 239%.
Of course, the sheer number of those on probation or parole cannot be read in a vacuum. Whom we are supervising is just as important, if not more so, than how many people are being supervised. In 2016, researchers found that eight in 10 probationers were under community supervision for committing nonviolent crimes. The leading charges for those on probation were drug and property crimes. Misdemeanants, in particular, composed a significant proportion of the probation population. In fact, researchers estimated that at least 40% of individuals on probation had been convicted of a misdemeanor. This stands in stark contrast to our nation's custody population, which is predominantly comprised of individuals found guilty of felony offenses.
The widespread use of probation would not be such a concern if it reliably increased public safety and contributed to probationers' rehabilitation, but that is often not the case. A growing body of research suggests that placing low-risk individuals on standard probation results in no additional gains to public safety when compared to less-intensive probation or complete diversion from the system. Additionally, even when individuals deemed to be a higher risk are placed on probation, the form of probation administered can often be overly intensive, burdensome, and expensive without bringing any additional public-safety benefits.
Part of the problem is that people on probation are often subject to requirements that have nothing to do with the behavior that led to their involvement in the system. For example, many jurisdictions impose a drug-testing condition on probationers even if they have no history of substance abuse. Though these conditions might be well intentioned, piling on conditions can exacerbate problems for those under supervision and make the public less safe. They often interfere with the very things that make an individual less likely to commit crime in the future — things such as meaningful employment and healthy relationships. Thus, over-supervising individuals has the potential to cause more damage than it resolves.
The system also tends to place people on probation for longer than necessary, which undermines probation's effectiveness. Studies and state estimates suggest that most violations and revocations typically occur during the first few years of community supervision. After this period, the utility of probation starts to diminish. Additionally, researchers have found that lengthy probation terms are not merely wasteful, but can actually result in a net decrease in public safety. This is because extended terms can serve as a disincentive for probationers to engage in rehabilitative programming, while simultaneously increasing the obstacles probationers face in obtaining housing and employment — both key factors in reducing rates of recidivism.
What's more, when probation terms are too long, too many individuals end up under state supervision. Pennsylvania, for example, has the third highest community-supervision population, likely because the state does not cap probation terms. Judges here can sentence individuals to a term of probation up to the statutory maximum period of punishment. Put differently, an individual who could have been sentenced to 25 years in custody could instead receive a 25-year probation sentence. Having too many people unnecessarily on probation saps the system of rehabilitative resources and makes it harder for probationers to receive the individualized support they need, thus further weakening probation's positive potential. Yet Pennsylvania and other states with exorbitantly long probation terms have built these problems directly into their systems.
Minnesota, by contrast, has demonstrated that allowing individuals to gradually earn their way off probation can encourage probationers to reform their behavior while simultaneously significantly decreasing the total number of people under direct state supervision. This decrease, in turn, frees up resources for those who remain within the system and who often have the greatest need for additional support. Moreover, because most violations occur during the first year, officials can frontload supervision services during periods when they are most needed thanks to their smaller caseloads.
It is possible to significantly reduce the number of people under community supervision. In fact, the number of individuals on probation nationwide has actually fallen by over half a million since 2007, when it reached a peak of almost 4.3 million. Unfortunately, this drop is likely due to the concerted efforts of a few states, since other states saw increases in their numbers. Florida, Mississippi, and Illinois, for example, reduced their probation populations in 2016 by over 7,000 people, while other states like Virginia and New Jersey increased theirs by several thousand. Thus, while a few states are leading the charge, garnering support for probation reform nationwide will be essential for true transformation.
FROM PUNISHMENT TO REHABILITATION
Being on probation entails conditions that the probationer must follow, conditions that have become increasingly focused on surveillance, increasingly punitive, and less oriented toward helping individuals reintegrate with society. These conditions fall into two categories: standard conditions and individualized "special conditions" imposed by the court. Individualized conditions can vary widely, so this essay will focus on standard conditions.
Standard conditions consist of a general requirement to follow the law, but they also involve the policing of other behaviors. Some examples include curfews, treatment-attendance requirements, and payment of all fines and fees. Standard conditions can also be moralistic in nature, including instructions to "avoid injurious and vicious habits," "avoid persons and places of disreputable or harmful character," "work diligently at a lawful occupation as directed by your probation officer," and "support your dependents to the best of your ability, as directed by your probation officer." These conditions can often be difficult to define and too numerous to keep track of, leaving individuals wholly dependent on the goodwill of their probation officer and judge to be seen as compliant.
When conditions are too numerous and expansive in scope, they present the same threat to liberty that the framers recognized when they favored a sparse federal criminal code over a lengthy one: namely, that government would once again become overly involved in the lives of its subjects and restrict their freedom of behavior for matters outside the scope of the most pressing national interests. Sure enough, as probation conditions drift away from regulating inherently wrongful conduct, they expand the role of government surveillance without commensurate benefits. This becomes especially problematic when standard conditions grant probation officers excessive discretion in exercising their supervisory powers. For example, one standard condition found in many states affords probation officers the right to determine when, where, and how often a probationer must report, and allows officers to visit probationers any time at their place of work. Additionally, officers are allowed to search probationers' vehicles, homes, and bags without regard for typical Fourth Amendment protections.
While research suggests some degree of surveillance may be appropriate at the beginning of the period of supervision, the benefits fade over time. So as officers continue enforcing these surveillance-based conditions for years on end, it likely wastes their time (particularly for low-risk individuals) and detracts from their ability to engage in efforts to aide probationers' re-entry into society.
Another especially harmful standard condition is the collection of fines and fees. This condition can include payment of monthly supervision fees, user fees, treatment fees, and electronic-monitoring fees. Such costs can quickly become overwhelming for those on probation, who are often indigent. Nationwide, two-thirds of individuals on probation make less than $20,000 annually, yet the average total monthly fees across the length of probation in Louisiana, for example, are $1,740. A Massachusetts resident on probation can expect to pay between $850 and $1,300 per month in addition to other court fines and fees.
These fines and fees run contrary to the principles of limited, effective government, as agencies often end up spending more money than they collect trying to pursue fees and fines from indigent individuals. Additionally, dedicating time and resources to collection means that officers cannot devote this time to following up on crimes that actually pose a public-safety risk.
What's more, although the Supreme Court has declared it unconstitutional to incarcerate people for poverty, thanks to probation conditions many courts across the country effectively do just that. When jurisdictions make complying with probation contingent on paying fees that probationers cannot afford, they end up imprisoning individuals solely for being poor rather than for reasons of public safety. Short of being sent to prison, the inability to pay fines and fees can also lead to other negative consequences, such as suspension of one's driver's license and loss of employment.
Most individuals currently on probation have few resources and are already struggling with plenty of other issues. Many are trying to re-enter society, find or maintain a job, secure health care, take care of children and elders, locate a place to live, avoid drugs, and find treatment for trauma and mental-health issues. Probation conditions should set these individuals up for success, but too often, they set them up to fail.
When used appropriately, however, probation conditions can help individuals meet their re-entry goals. Carl Wicklund, former executive director of the American Probation and Parole Association, suggests testing conditions by asking whether they comport with the "three Rs": realistic, relevant, and research-supported. Conditions that are "realistic" take into consideration the reality of individuals on probation. Those that are "relevant" are personalized and appropriate for the risk level of the individual and the offense he initially committed. Those that are "research-supported" are backed by evidence demonstrating that they promote individual success.
Recent research demonstrates it is much easier to promote success by using positive reinforcement than by imposing penalties. It is strange, then, that the vast majority of our community-supervision incentives are based on negative consequences. Celebrating the protective factors in individuals' lives — their families, jobs, communities, hobbies, and passions — is key to helping them succeed.
By valuing and supporting our fellow citizens through clear, evidence-based conditions that focus on rehabilitation and community reintegration rather than surveillance, we are far more likely to set them up for success. And when individuals succeed on probation, they are far less likely to be locked up again, whether for a failure to meet probation requirements or for committing a new crime.
As mentioned above, community supervision — whether imposed as part of probation, parole, or even sometimes a condition of bail — has long been sold as an appropriate alternative to incarceration. Indeed, for years, many criminal-justice reformers saw community supervision as a silver bullet for resolving our mass-incarceration crisis. As a result, reformers have lobbied lawmakers into passing legislation that swelled the number of those diverted from prisons and into community-supervision programs.
But expanding supervision has proven to be no solution at all. Every year, approximately 25% of the individuals who arrive at our nation's state prisons have not been found guilty of a new offense, but rather are guilty of violating a supervisory condition of their probation or parole. Thus, instead of replacing incarceration, community supervision often just defers prison to a later date, and the perpetual cycle of over-incarceration continues.
Worse still, many of the "technical violations" that can land those on probation or parole in prison often do not involve behaviors that could be characterized as in any way anti-social or criminal; they can even be as minor as missing a curfew or a meeting with a probation officer. According to a recent report from the Council of State Governments Justice Center, 11% of state-prison admissions are due solely to technical violations of probation. Similar patterns also emerge in some state youth-justice systems: In 2015, over 45% of youth committed in New Mexico were there for a technical violation of probation, parole, or a valid court order.
When the justice system incarcerates people for committing technical violations, government has dealt the penultimate punishment against them. Even a short period of incarceration has a significant effect on individuals: It can separate people from their families, interrupt their educations, and put them at risk of losing their jobs. As days become months behind bars, an individual's health is increasingly put at risk, and his physical safety may suffer. These consequences can go on to affect the community — families may be forced to rely on public assistance, the labor market shrinks, and, paradoxically, public safety may suffer.
Revoking probation and removing an individual from the community should rarely be our response to a violation of probation. Incarceration marks the apex of government intervention; thus, at all times, it should be reserved for only those cases in which the restriction of individual liberty is both deserved and truly necessary to preserve public safety. When revocation and incarceration become our automatic response to probation violations, we violate the basic premise of limited, effective government.
Making matters worse, revocations of probation often occur in a racially disparate manner, suggesting that the probation system does an especially poor job of promoting equal justice under the law. Members of certain demographic groups — particularly black and, to a lesser extent, Hispanic males — are more likely to be unsuccessful on probation or have their probation revoked than are their white counterparts, even when controlling for related factors such as their assessed risk level and offense type. As a result, they may also be at increased risk of returning to prison. Perhaps it is for this reason that research has found that black individuals often perceive a long period of community supervision to be a more severe punishment than a shorter period of imprisonment. It is critical to principles of justice and equality, not to mention the effectiveness of our probation system, that the color of one's skin does not result in unequal treatment while under community supervision.
For these reasons, jurisdictions should change the way they respond to violations. Probation officers and judges can begin by considering what factors are driving an individual's behavior and seek to hold him accountable in a manner proportional to his fault and any harm caused. When crafting their response, they should ask three questions: Why did the violation occur? How can we hold the individual accountable in a way that addresses his demonstrated need while preserving public safety? And finally, is the proposed response the most limited, effective response possible?
Probation officials must recognize that individuals are sometimes not able to comply with their supervision requirements through no fault of their own. The case of Shalice Williams offers a clarifying example. In 2017, Shalice was found to be in violation of her community supervision for missing a check-in with her probation officer. She missed her meeting because she was not allowed to bring her children with her to check-ins, and she couldn't find child care that day. For this infraction, she was arrested and jailed for 42 days, which cost Shalice her job and her apartment. Rather than doling out sanctions in these types of circumstances, judges and probation officers should work to formulate reasonable conditions and to support individuals so that they are able to meet them. Connecting individuals to additional resources, like child care, and reformulating probationers' case plans to suit their unique circumstances would go a long way toward making this a reality.
Officials should also take into consideration the nature of the violation, the person's risk level, and the individual's needs when crafting a response to a violation. These considerations underpin the "risk-needs-responsivity" model of supervision, which empirical evidence has shown to be effective in promoting pro-social behaviors among offenders. Techniques rooted in this model, such as cognitive treatment and motivational interviewing, can be used as tools to promote individual change and may also reduce recidivism. When implemented with fidelity to the suggested protocol, these techniques can work well for both low-risk and high-risk individuals.
Finally, when it comes time to hold individuals accountable for violations, probation agencies and officers should favor the least restrictive, most effective response possible. In cases involving technical violations, jurisdictions should institute policies that prioritize community-based sanctions over incarceration. Recent research by Eric Wodahl, John Boman, and Brett Garland suggests that community sanctions for technical violations are associated with similar results compared to sanctions that include a period of incarceration. Additionally, policymakers should outline limited reasons for which a violation can lead to a term of incarceration. Capping the amount of time for which an individual may be held behind bars for a violation would also be beneficial. Ultimately, the goal should be to give probation officers the ability to dole out the most parsimonious response available while taking into account each individual's circumstances.
One way to incorporate all these factors to facilitate behavioral change is by using graduated-response systems, also known as administrative responses. Typically, graduated responses provide a spectrum of possible answers to a violation based on its severity. For example, individuals may have to perform additional community-service hours, lose a privilege such as a later curfew, or participate in activities that help address their needs as possible sanctions. In all cases, the goal is to reduce the use of revocations by addressing violations through less extreme mechanisms.
Graduated-response systems that reward individuals for their progress toward compliance can also help prevent violations in the first place. As mentioned above, recent scholarly work suggests that positive reinforcement of compliance can be more effective than sanctioning noncompliance, and may also result in reduced recidivism and substance use. In some jurisdictions, graduated-response systems include a long list of positive responses — including decreased reporting requirements, earned compliance credits, certificates, or supervisor praise — to encourage and reward personal growth and completion of supervision goals. For example, under Pierce County, Washington's "Opportunity-Based Probation," young people on probation who complete goals on their case plans can earn points to use toward bus tickets, gift cards, and other prizes. If they complete their requirements and case plans early, they may even be able to have their probation time reduced. This model of probation encourages probation officers to empower individuals by way of incentives and encouragement, setting conditions oriented toward achieving stability, health, and self-sufficiency.
Recent reforms in South Carolina provide a successful model of a graduated-response system. In 2009, the year before passage of comprehensive criminal-justice reform, about 16% of the state's prison admissions were due to technical violations of probation or parole; almost 4,800 probation and parole technical revocations occurred in 2010 alone. But after incorporating graduated responses to technical violations, the number of technical revocations of probation or parole dropped by 46% between 2010 and 2015. Even more promising, analysis by the Urban Institute found that individuals on community supervision following the 2010 reforms were less likely to be incarcerated (or re-incarcerated, if on a term of parole) than prior cohorts. South Carolina's example suggests that expanding graduated responses to technical violations can reduce the use of incarceration, increase public safety, and demonstrate wiser stewardship of resources.
Probation has the potential to be a worthwhile, cost-effective intervention. But it fails to meet this goal when, too often, it leads to incarceration. To truly limit the number of individuals imprisoned, we must work to eliminate revocations of probation and parole for technical violations, and we must ensure that we are responding to all violations in a manner that is fair, equitable, and productive, with the promotion of positive transformation in mind. Establishing graduated-response systems that incorporate both positive incentives and community-based sanctions represents just one way we can begin accomplishing these goals.
A RETURN TO COMMON SENSE
Probation promises a community-based alternative to incarceration that protects public safety while focusing on rehabilitation and the future of offenders rather than on punishment. In theory, such programs should be more cost-effective than mass incarceration and better for individuals and families. In practice, however, they are nearly always as expensive as they are invasive, and it is not uncommon for the people affected by such programs — probationers, their children, their communities, and taxpayers — to be uniformly worse off as a result.
Instead of allowing wasteful and counterproductive programs to continue, conservatives should work to guarantee that our probation practices are strongly rooted in a principled commitment to individual liberties, stable families, safe communities, and a maximally efficient government. To achieve this, we must work to reduce both the sheer number of people on probation and the length of time individuals are placed on probation. Without such safeguards, probation loses its effectiveness, and government control becomes expansive rather than bounded. Additionally, we should ensure that conditions of probation have proven their reliability as a tool for promoting successful re-entry and individual transformation. Finally, we should craft responses to violations of these conditions — particularly technical violations — that are appropriate and proportional to the severity of the violation. By adopting such conservative reform measures, we can help to ensure that probation does not continue to serve as a doorway to incarceration and expansion of government control, but instead serves as a powerful tool for improving outcomes and lowering costs in our nation's expansive criminal-justice system.