by Casey J. Bastian

Nationwide, on any given day, more people are on probation than in prisons and jails and on parole combined. —The Pew Institute

The concept of probation began with one Massachusetts man circa 1841. Motivated to assist the less fortunate, he’d post bail and find them employment. Observations of progress were reported at sentencing. This was intended to promote rehabilitation and leniency. It was the original community supervision. Today, 4.7 million people are subject to community supervision in America, regressing from the rehabilitative model to compliance and surveillance where control is the primary focus. This trend has spawned the shadow carceral state where private companies are motivated by profit. Welcome to the machine.

A Brief Glimpse Into the Realities of Community Supervision

The two most prolific forms of community supervision are state-level probation and parole. Simply put, probation is imposed as an alternative to a custodial sentence. Parole comes after the offender is released from an indeterminate custodial sentence. Technically, probation can be imposed as part of a “split” sentence; the imposed sentence encompassing terms of both imprisonment and supervision. Today, probation is by far the most common form of criminal sentence imposed. Community supervision is imposed at the state and federal levels and operated by agencies of the county, state, and federal governments.

Of the nearly 6.9 million people comprising the community supervision population (“CSP”)—all offenders, adult and juvenile, in jails, prisons, and under any form of community supervision nationwide—56 percent are on probation. The massive probation population dwarfs a huge parole population. To put the CSP into perspective, if it were a state, it would be more populous than Kansas, South Dakota, and Wyoming combined. And this is even after significant declines in the CSP between 2007–21. As of 2021, the CSP had not been as “small” since 1994. Despite overall trends of a declining CSP, certain states are recording large increases.

Recognizing the sheer volume of the CSP is simply a quantitative measure of its impact. There are many other specific impacts on individuals, families, and our society. In practice, “community supervision” results in far more control and detrimental effects than the average person appreciates. It isn’t necessarily more lenient, as many assume, and it often isn’t “easier” than jail or prison. In fact, it has become so onerous that evidence suggests that “supervision is feeding mass incarceration in the United States.”

Community supervision typically provides for a multitude of financial, logistical, regulatory, and temporal conditions that a person must adhere to. It’s difficult; many people with good intentions are simply worn down by such pervasive and onerous obligations. Researchers note that “[p]eople under supervision, lawyers, and even some judges and supervision officers recognize that supervision often sets people up to fail.” Community supervision has become a Rube Goldbergian system.

These circumstances are frequently “rooted in disadvantage.” People in marginalized communities—of color, the addicted, the poor, the uneducated, etc.—are disproportionately impacted. Many violations causing revocation are technical rule violations, not new crimes. And there are very limited procedural rights for offenders in revocation proceedings. The penalties often outweigh the transgression.

And it is increasingly about money. The growth of community supervision, and specifically of probation, has seen a parallel increase in the “frequency of assessment and costs associated with legal financial obligations (LFOs).” These LFOs are more than court costs, fees, fines, restitutions, etc. They also morph into “compliance costs.” These include, not just general supervision fees where one literally pays a monthly fee to the supervising agency, but also fees for anger management, community service, traffic school, drug treatment and urinalysis, GPS (electronic) monitoring, victim impact panels, ad infinitum. Worse, they’re not always specifically limited by court order as to duration, frequency, or quantity. It is often at the discretion of the non-judicial supervising official.

Let’s not forget the most valuable and scarce resource known to mankind—time. Compliance requires a “substantial time commitment.” Jasmine Jackson was 16 when she allegedly participated in a robbery. Jackson was sentenced in a Philadelphia court in 2008. As part of her split sentence, Jackson was to serve an indeterminate custodial sentence, a period of parole, and six years of probation. In 2018, she was still dealing with additional probation and its negative effects.

The initial arrest and incarceration cost Jackson her job. Another one was later lost because she was required to “continually leave work early to report to her probation officer.” It was frustrating to Jackson and her employer. As Jackson explains, “They were like ‘you can’t keep calling off and go leave early to see that man.’” Lost employment is a hidden cost in addition to excessive amounts of time that are demanded of this “alternative to incarceration.”

And today, the prison-industrial complex has added yet another cog to its already bloated machinery—private probation companies. Many observe that the “private probation system is legislatively designed to be predatory.” Private probation systems (“PPSs”) levy disproportionate procedural and cost requirements upon the individual relative to the criminal offense conduct being penalized. The utilization of PPSs “incentivizes extended control” as well. Those on supervision under PPSs find this “shadow carceral state” very frustrating.

The solution to burgeoning CSPs is not PPSs. It’s continuous reductions in excessive community supervision as an imposed sentence. Ask yourself: what is the primary point of criminal justice? It’s public safety. It’s reintegrating those who are responsible for criminal conduct into society by promoting pro-social skills and making them invested citizens. It’s not money, conviction rates, or law enforcement employment. To that end, “research finds little evidence that community supervision improves public safety.” Compare that to the reality that “[i]ncarceration is easily our nation’s most punitive, harmful endeavor, tearing apart communities and families, and sending cascading ripple effects to all of us.”

So, we find ourselves with another component of the criminal justice system that requires asking: how did we get here and how can it be improved?

The Birth of Community Supervision

The concept of probation was envisioned by John Augustus, who was a Boston shoemaker. Considered by many to be the “father of probation,” Augustus coined the term in 1852. It is derived from the Latin verb “probare,” which translates to either “to prove” or “to test.” Almost “2000 men, women, and children—mostly minor offenders and alcoholics” were the recipients of Augustus’ beneficence from 1841–58. Augustus and a group of volunteers recognized that these individuals “otherwise had no way of paying their fines.” To do nothing would have left them to be ground in the gears of that archaic criminal justice system.

The intention of Augustus was to assist these offenders in securing employment and acquiring general pro-social (as it was understood then) conduct. Under this first iteration of probation, a “community ‘sponsor’” would guide the individual, seek to regulate their behavior, and “help them ‘rehabilitate.’” Any positive steps towards rehabilitation or reformation were documented. This information was presented to the sentencing judge within a report created by the sponsor. When the judge accepted that the individual had indeed been rehabilitated, “they would be set free.” If, however, the offender failed to meet the requirements of probation, the judge could impose a term of imprisonment.

By 1878, Massachusetts was the first state to legislate and enact a probation statue. In the ensuing decades, community supervision gained popularity throughout the U.S. It was viewed as a “tool of rehabilitation.” The federal government and all 50 states had “adopted juvenile and adult probation laws” by 1956. A sentence of probation would be imposed on almost half of the people who had been convicted of crimes by the 1960s.

During the same period, criminal justice systems in the U.S. began to use “parole” as a mechanism for early release from terms of imprisonment. This was only for those convicted of certain offenses and displaying “good behavior.” And in its earliest days, a sponsor would volunteer to “monitor the individual, set rules, and help them reintegrate, typically for about six months.” While violators would face a return to prison, “[t]hose who followed all conditions were set free.”

Parole for federal prisoners began with legislation enacted in 1910. The Board of Parole (“Board”) was also established. The original Board consisted of a three-member panel that oversaw parole hearings at every federal institution. The Board panel increased to eight members by 1950. At that time, federal parole came under the aegis of the U.S. Department of Justice. Three members of the Board were assigned to the Department’s youth correction division by the Attorney General. This was pursuant to the Youth Correction Act. A separate act made the Board an independent agency within the Department; it also rebranded the Board as the U.S. Parole Commission (“USPC”).

In 1984, the Comprehensive Crime Control Act (“CCCA”) enacted parole sentencing guidelines. The USPC acquired added responsibilities in 1997. This included every paroledecision in various states. The USPC has continued to supervise parole activities while promulgating parole protocols in the federal system through today. Federal parole was technically rescinded on November 1, 1987, when the CCCA took effect. Those sentenced after that date are not eligible for parole. But those who were sentenced before that date and are still in prison can still become eligible for federal parole today.

The rescission of federal parole occurred during a period of “tough on crime” policies because the Supreme Court found parole to be part of an “outdated rehabilitative model.” Such a “get tough” era also affected probation at the state level. Across America, ideals of understanding, rehabilitation, and invested community supervision were abandoned. Between the 1970s and the early 21st century, it became all about retribution and control. The vagaries of political views that impact criminal justice systems are moving again today. Current models are damaging and unsustainable. So, what should it be?

A Closer Look at Community Supervision

As a technical distinction, under the umbrella of “community supervision,” we find probation, parole, extended supervision, federal supervision, and state and/or county supervision. Although there are common aspects, each is distinct in application, procedure, and scope. Probation and parole are the two general forms of community supervision most recognized by the average person. Though frequently discussed interchangeably, this is not technically correct. The lesser-known forms will be discussed first.

Extended supervision is typically imposed in jurisdictions that have abolished parole. It is a form of mandatory supervision where offenders serve a period of their extended supervision once they have completed their full prison sentence. It operates as a form of parole but absent early release. State legislatures typically determine extended supervision terms. Wisconsin, for example, requires an offender to serve a term equal to at least 25 percent of the full, imposed prison term.

As large as it is, the federal system houses only approximately 10 percent of the total U.S. jail and prison population. The federal system, as it has now rescinded parole, does continue to use probation and extended supervision. But since it is technically such a small percentage of the CSP sphere, the immediate focus here is on state-level community supervision systems.

Community supervision departments operated by the states can be implemented through either state- or county-level agencies. Take Pennsylvania as an illustration. Parole for terms of imprisonment at least two years in length is considered “state parole” and is overseen by the state’s Department of Probation and Parole. Parole for offenses resulting in less than two years in custody, and all other forms of probation, are operated by county parole. In Wisconsin, the state’s Department of Corrections’ Division of Community Corrections handles all forms of community supervision. But Georgia is similar to Pennsylvania. The state’s department of Community Supervision oversees all “felony probation,” while “misdemeanor probation” is run by the individual counties.

Under the overarching term of probation, “there are six separate systems: juvenile probation, municipal probation, county probation, state probation, state combined probation and parole, and federal probation.” As noted, some states use either “a single, central agency[,] a variety of local agencies[,] or a combination of the two” to administer the simultaneous operation of these systems. The administration of these systems can be done by the state’s executive or judicial branch.

The executive branch administers probation agencies that exist as either its own separate system or “as part of the larger state correctional system.” Those administered by the judicial branch work for the court. Regardless of which branch is administering the probation agency, that agency “oversees the compliance with the conditions of supervision.”

In most jurisdictions at the state and federal level, probation officials also conduct investigation to create presentence investigation reports (“PSIR”). The PSIR provides the “sentencing court with information about the offender and the facts surround[ing] his or her case.” It is estimated that there are “more than 2,000 independent probation agencies in the United States that all operate under different state and federal laws.”

It is the responsibility of the probation agency to ensure the offender complies with the conditions imposed by the sentencing court. This is also true of the types of conditions imposed for all forms of community supervision. There are “general” conditions and there are “specific” conditions tailored to “individual rehabilitative needs.” Whether general or specific conditions are imposed, they are considered mandatory.

Some examples of general conditions are to: “obey all laws, submit to searches as ordered, report to the supervising probation officer as directed, notify the supervising officer of any change in address or employment, not possess a firearm, associate with known criminals, or leave the jurisdiction of the court without prior approval.”

When specific conditions are tailored to the individual offender, stipulations can include adherence to a strict curfew, paying restitution or supervisory fees, and participation in addiction, mental health, educational, career-focused, or other treatment programs. All conditions can be modified (or the supervision revoked) at any time by the sentencing court based on the offender’s level of compliance.

If an offender complies with all conditions, completes all programs, and pays all costs, fees, or all other LFOs, probation will be complete at the end of the sentence. Upon filing of a motion with the court by the probation official, a term of probation can be terminated early if the offender has completed all of the requirements, and they have also received the “maximum benefit of supervision.” Statistics indicate that the average time spent on probation is 22 months, and the “majority (68 percent) successfully complete” probation. However, other evidence suggests these statistics are misleading.

One of the most vital components of community supervision is juvenile probation. Oftentimes, the delinquency is the result of being the victim of, or having been subjected to, “traumatic experiences that affect their psychological wellbeing.” There are obvious, inherent risks in juvenile offenders being committed to custodial sentences. Probation allows for the correction of antisocial behaviors while preventing any additional risks.Criminal justice systems accomplish nothing of benefit by adding to the trauma of any offender; this is especially true of juveniles. The best way to contribute to recidivism and the carceral cycle is to further damage our youth. But if we choose to nurture the psychologically damaged, this can support reductions in criminogenic attitudes while enhancing the security of persons and property in our communities.

And located within the penumbra of parole are three main forms—discretionary, expiatory, and mandatory. Mandatory parole is when the “prisoner is rewarded with time off their sentence for being well behaved” in a good time system. Positive behavior allows for accumulation of “good time” (i.e., days off the total imposed custodial sentence term). For example, if the prisoner were sentenced to a term of 366 days (a year and a day sentence), they may be able to earn approximately 55 days of “good time” in a scheme that allows for 15 percent of the sentence to be credited for good behavior. The statutory (“mandatory”) release date becomes effective after 85 percent of the sentence imposed is served if no “good time” is lost or forfeited.

If a prisoner is granted parole by the parole board before the actual parole time, this is called discretionary parole. Prior to discretionary parole being granted, the parole board will typically conduct a comprehensive investigation into the conditions surrounding the prisoner, including the offense conduct, time served, behavior, release plans, community support, etc. Expiatory parole occurs when a prisoner is released after having served the entire custodial sentence term imposed; there is no shortening of the sentence or “good time” involved. Each form requires adherence to conditions of supervision very similar to those of probation.

The Evolution of Community Supervision

When someone is convicted of a crime, most people believe that probation is a more lenient sentence. And in its ideal state it was. Founded on the fundamentals of rehabilitation at its inception, it was often only helpful to offenders. Probation was an opportunity to avoid incarceration and a clear path to rehabilitation. The general public labors under a similar misconception regarding parole. A prisoner is allowed to leave the prison early as a result of the “act of a benevolent parole board.” Each is forgiving and generous, right? Not so much today.

Viewing probation and parole through this one-dimensional perspective contributes to the sense that community supervision systems are completely separate from carceral systems. But this is not the reality. In modern America, each has a deep reciprocal nexus to the other.

Forty-two percent of prison admissions across the nation are as a result of probation and parole violations. Remaining compliant with countless arbitrary rules is so difficult that forms of community supervision can be considered a deprivation of liberty. Probation and parole frequently operate as vehicles from the community back into incarceration—hardly an easy alternative. It wasn’t always this treacherous and demanding.

The creation of probation manifested the means to provide “safety, rehabilitation, security, and treatment.” Each an opportunity for personal reform and achieving public safety. By allowing the offender to receive curative instruction within the community, it was much easier to “support dependents, make restitution, retain employment, and participate in treatment programs.” The rehabilitative model had continuing public support and remained relatively unchallenged until the 1970s. At that time, the idea of offender rehabilitation was attacked, resulting in a complete metamorphosis of supervision.

And thus began the tough on crime era. Former U.S. President Richard Nixon began his war-on-drugs. Nixon’s obsession with locking up drug users had nothing to do with public health concerns. Rather, the war-on-drugs was just a product of Nixon’s antipathy for the anti-establishment movement coalescing around the Vietnam War. It’s unsettling that this one man might be responsible for this disastrous “war” on U.S. citizens that is now a more than five-decade failure.

Nixon’s rhetoric connected “reefer madness” and the use of marijuana to the white anti-war movement; heroin was connected to the “Black Power” anti-establishment movement. That was all it took. New laws made irredeemable criminals out of substance users and addicts, each becoming fodder in the burgeoning “tough on crime” environment. Common sense, compassion, and the rehabilitative ideal became victims to the “war on drugs” as politicians scrambled to “out-tough” each other.

Both policymakers and correctional administrators found it “increasingly more difficult” to “support rehabilitative strategies while the philosophy was being discredited.” Very strict sentencing laws, including “‘mandatory minimum’ sentences” and “habitual offender” laws related to the repeat commission of various offenses were enthusiastically embraced. And in 1974, some openly pondered that perhaps nothing works—a gloomy perspective that single-handedly decimated the rehabilitative ideal.

Nothing Works!

Another man who played an integral role in the destruction of the rehabilitative ideal was Dr. Robert Martinson, who was part of the civil rights movement as a “Freedom Rider.” Freedom Riders would tour Southern U.S. states by bus to ascertain whether public facilities were truly desegregated. As a Freedom Rider, Martinson found himself convicted and sentenced to prison at the infamous Mississippi State Prison in Parchman.

Around this time, Martinson was also enrolled in college pursuing his Ph.D. He enrolled at the University of California at Berkeley in 1958 as a sociology graduate student. By 1968, Martinson had earned his doctoral degree. He titled his dissertation “Treatment Ideology and Correctional Bureaucracy: A Study of Organizational Change.” Originally working as a lecturer at City College of the City University of New York, Martinson would eventually become a junior professor there.

In 1967, the state of New York sponsored a team of experts to examine rehabilitation programs. The state was looking to “initiate[] a study of the most effective means for rehabilitating prisoners.” Martinson joined this team after becoming a junior professor. This team identified 231 studies conducted between 1945 and 1967.

None of the reviewed literature contemplated the impact of community ties (i.e., communication with family, friends, and similar pro-social activities). Despite this obvious shortcoming in data, the survey was presented as conclusive findings on rehabilitating the incarcerated population by recognized experts. What the New York survey concluded would eventually be used as evidence that rehabilitation programs and efforts should be abandoned. Right or wrong, more punishment became the new philosophy.

Martinson first published a summary of the survey’s findings in 1972. The main premise was that: “On the whole, the evidence from the survey indicated that the present array of correctional treatments has no appreciable effect—positive or negative—on the rates of recidivism on convicted offenders.” Martinson claimed that this conclusion “will not come as a surprise” to practitioners and correctional researchers because it has been “long suspected that it is difficult to treat persons who do not wish to be treated.” Martinson claimed that the full 800-page text of the survey’s findings, entitled “The Effectiveness of Correctional Treatment,” would be released later that year. Martinson’s initial summary didn’t receive much public attention. Nevertheless, New York officials were motivated by a desire to reveal “knowledge to inform planned new rehabilitation programs.”

However, the findings of the full survey failed to justify such programs, so the state refused to publish it. The efforts by the state of New York to suppress the results propelled it into the spotlight. For two years, the state worked to keep the findings quiet, while it appears Martinson worked to get them published. The full text would eventually make it into the public sphere when attorney Joseph Alan Kaplon subpoenaed it for evidentiary purposes in a case before the Bronx Supreme Court.

In 1974, Martinson would release an article in a public affairs journal detailing the efforts to suppress the survey. He also included a second summary. Martin emphasized that: “With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.” Martinson opened his 1974 article with the heading “What works?” and ended it with the heading “Does nothing work?” Prior to this, the initial summary and the survey results had not attracted much interest by the general public. After two years of quiet circulation largely among practitioners, it quickly attracted the attention of a wider audience.

Martinson would eventually make his way onto CBS’ 60 Minutes. During the interview, Mike Wallace announced that Martinson’s “findings are sending shockwaves through the correctional establishment.” Wallace then questioned Martinson about the survey’s findings. Martinson was brutal. He claimed that various treatment programs produce “no fundamental effect on recidivism;” parole was described as an “almost Machiavellian attempt” by the incarcerated “to get out;” and, psychological counseling was a “good way to pass time” but has “no effect.” At the end of the interview, Wallace asked, “Is it conceivable that nothing works?”

Nothing works! became a mantra for those advocating for the abolition of rehabilitative programs and more punishment. The 60 Minutes interview enraged Douglas Lipton. It was Lipton who was the true lead author of the survey and subsequent text. But when the cover was shown on national television, Martinson’s name was the only one not cropped out. Lipton says he wrote 60 Minutes and Newsweek about the errors in Martinson’s presentation. No one listened. “I was the voice of reason,” said Lipton, “but he was the sound bite.” Even though Martinson’s 18-month stint was far less than the other researchers, his conclusions were powered by the media. They became “highly influential” and “fostered polarized discussions of rehabilitation.”

Martinson’s position became very offensive to all the facilitators of these treatment programs and those that desired to be treated. Martinson undermined thousands of people making sincere efforts to improve lives and public safety. More galling is the fact that Martinson himself admitted that “some treatment programs did work” in 1974—just not on 60 Minutes. His ego was greater than his desire to speak the whole truth. It’s no surprise Martinson had ideas of “Machiavellian attempts” on his mind.

It is also strange to think that he started as a civil rights activist only to end up as an influential voice for the machine. The supporters of treatment and rehabilitation tried to push back against the Nothing Works! narrative, arguing that Treatment works! But the turning tide was too strong. The rehabilitative ideal was replaced with a compliance and surveillance (“C&S”) model. And that is where we find community supervision becoming “mass supervision.”

The Rise of Mass Supervision

What Nixon and Martinson began in the 1970s took deep root in the 80s and 90s. The political consensus was all about punishment fueled by skyrocketing crime rates. Harsh sentencing laws (i.e., mandatory minimums, “three-strikes,” and “truth-in-sentencing”) were implemented at the state and federal levels. Incarceration rates exploded. In 1980, there were around 500,000 people total in U.S. prisons. By 2007, it was more than 2.3 million.

Probation and parole populations expanded too. This was because the nature of probation and parole evolved into direct extensions of the carceral systems. This period saw legislative bodies, courts, and community supervision agencies implement stricter conditions, longer terms of supervision, expanded means of monitoring, and violations that resulted in more severe penalties. States began using probation as an additional punishment instead of its more traditional role as an alternative punishment. Offenders began receiving jail or prison and probation terms. The concept of “split sentences” was spawned during his period.

Supervision agencies usurped the supervising officials’ roles as social workers who previously networked probationers to resources in the community to one that intensified the control of offenders. America no longer had sponsors or counselors helping the formerly incarcerated back into society. Rather, now such vital social crusaders had become officers who monitored offenders. For 150 years, probation was “focused on rehabilitating and assisting offenders stabilize their lives.” Around this time, probation officers (“POs”) began emphasizing the aspects of their job that had more to do with law enforcement and less to do with rehabilitation. In addition, the conditions of probation became more important to enforce.

The 1980s saw more than 20 states either eliminate or severely reduce parole. Extended supervision replaced parole in many of these states. There was no more “early release.” More stringent compliance conditions were imposed on all forms of community supervision because it was assumed that “technical violations of those conditions serve as a precursor to criminal behavior.” Without empirical data, C&S models became de rigueur under the belief that a “strict enforcement strategy would deter offenders from engaging in such undesirable behavior.”

More than 30 years later, we know they were wrong. Coupling strict C&S models to a punitive framework only created enormous CSPs. In 1980, there were approximately 220,400 people (juvenile and adult) on parole and 1.1 million on probation; by 2007, it was 826,000 and 4.3 million—a nearly four-fold increase.

National data for the year 2016 revealed the CSP consisted of 4.5 million adults under supervision. That’s one in every 55 American adults! Like America’s incarceration rates, the rates of supervision are between 5 and 10 times that of the rates of European nations. In Wisconsin, 66,400 people (one in every 69 adults) were on community supervision; Pennsylvania has 296,200 (one in 35); and Georgia has 430,800 (one in 18). The city of Philadelphia has one in 23 on supervision, and the neighboring Delaware County, Pennsylvania, is one in 20—almost all for low-level offenses. Only 22 percent were for violent crimes.

The Pew Institute analyzed probation in 2020. According to the conclusion of the study, the community corrections population has grown exponentially for two reasons. First, the number of people sentenced to parole or probation has increases, also the duration of time that they remain under supervision has extended. Another conclusion that the Pew Institute’s analysis arrived at is that “long probation sentences are not associated with lower rates of recidivism and are more likely than shorter ones to lead to technical violations.” Modern community supervision does nothing but increase sanctions, revocations, and incarceration.

The states haven’t caught up with these facts yet. Scholars suggest more “leveling down” should be done. This approach suggests that prosecutors and judges should use supervision in lieu of imposing incarceration for offenses that allow such discretion. That is an appropriate use of probation and more in line with historical precedent. Instead, justice systems “level up.” Prosecutors and judges “use probation in cases that would otherwise have triggered less severe sanctions.” For example, in many misdemeanor courts, probation is imposed when fines or community service would be more appropriate.

In a state such as Georgia, if individuals facing traffic infractions are unable to pay the required fees at their court date, courts regularly sentence them to probation. Two-thirds of the states limit terms of probation at five years for most offenses. But California, Georgia, Minnesota, Pennsylvania, and Wisconsin have no limit on probation sentences. These states allow judges to “impose probation terms as long as the maximum sentence for the underlying crime.”

In Georgia, a repeat shoplifter can get up to 10 years of probation. A person can get up to 40 years of probation for possessing 40 grams of cocaine with intent to distribute in Wisconsin. A reasonable person may ask what can that possibly be expected to accomplish. If an offender in Pennsylvania or Georgia is convicted of multiple offenses and sentenced to separate terms of probation to each, those terms can be run consecutively. This can dramatically extend the periods of supervision. This necessarily leads to growth in the CSPs.

As of 2021, there are 10 states with only probation populations over 1,000 per 100,000 residents. They are: Hawaii (1,199), Colorado (1,219), New Jersey (1,292), Arkansas (1,349), Idaho (1,375), Minnesota (1,441), Ohio (1,622), Rhode Island (1,638), and Georgia (3,148).

Officials argued for years that using forms of community supervision as rehabilitation wasn’t an adequate punishment. So, they sought to eliminate it. But America ended up with more people on various forms of community supervision and more people incarcerated. To make matters even worse, more revocations necessarily make more reported crime, i.e., higher crime rates supporting more laws and punishments. Jake Horowitz, director of the public Safety Performance Project at the Pew Charitable Trusts, explained it like this: “The system is feeding on itself.” Community supervision has become a self-perpetuating cycle fueled by the madness of a government that doesn’t incarcerate you but doesn’t trust you to live free either.

Compliance and Surveillance

A 2008 study observed that “there is increasing evidence to suggest that probation strategies that focus on compliance monitoring and other law enforcement aspects of supervision are not effective in reducing recidivism, and may even increase it.” The study examined data from 1993, 1997, and 2006. The 2008 study also noted that effective probation “is contingent upon the extent to which the principles of effective intervention are adhered.” And that is not what C&S models are known for.

Wisconsin State Representative Evan Goyke noted that the state’s supervision system prioritizes law enforcement over personal growth and rehabilitation. Neil Thoreson is the chief PO in Milwaukee, and he described the role of POs as having contradictory responsibilities. If POs have to choose between providing services or protecting the public, Thoreson said, “[T]he public safety piece [is] our principal concern.”

The Council of State Government: Justice Center (“CSG”) published a study in 2019 that observed that “using intensive supervision methods with low-risk individuals is more harmful than no supervision and increases the risk of recidivism without promoting public safety.” The CSG analysis also revealed evidence that excessive rules make it very difficult for those on community supervision to maintain a regular lifestyle, including keeping a job and proper housing, as well as participating in required substance abuse or mental health treatment.

The average offender on any form of community supervision is often required to follow nearly 20 general conditions; in addition, most have tailored conditions—it is quite taxing emotionally, financially, psychologically, and on relationships and employment, etc. How can anyone be expected to overcome their mistakes if the system makes those mistakes a proverbial millstone around their neck?

And too many people, including the POs, aren’t concerned with such considerations because they believe the offender “caught a break,” as if the person on supervision is getting away with something. “The predominant view of parole is that people are supposed to be in prison, and they received a break to be released early,” says Brian Lovins, who is the president-elect of the American Probation and Parole Association (“APPA”). Lovins added, “The agents think ‘rules first, not rehabilitation first.’” These APPA members are the same people who coined the revealing motto: “Trail’em, nail’em, jail’em.” And with so many vague and unreasonable conditions imposed, that’s not hard to accomplish, and it provides insight into their mindset.

There are POs and judges who recognize that when there are “vast and irrelevant conditions imposed,” they can lead people to failure. “I don’t want to say it’s designed to set [people] up for failure … but it seems like it comes out that way, keeping them on a tightrope,” said an unidentified PO from Dodge County, Wisconsin.

Imagine being told that you must: (1) report in person to the probation department; (2) participate in intensive supervision programs; (3) not leave the city or state without permission; (4) find and maintain regular employment (even though the PO is going to call the employer and describe you in terms that makes this nearly impossible); (5) not change residence or employment without permission; (6) not use drugs or alcohol—don’t even enter a “drinking establishment”; (7) not possess firearms or “other dangerous weapons”; (8) not associate with anyone who has a criminal record; (9) submit to urinalysis or blood testing when instructed; (10) pay all LFOs; and (11) of course, obey all state and local laws. And these are just the general conditions.

Pennsylvania and Wisconsin are two states that don’t allow an offender to consume alcohol or enter “drinking establishments,” even when the offense had nothing to do with alcohol. Another standard condition specific to Wisconsin is that an offender must “avoid all conduct” that can be deemed “not in the best interest of the public welfare or [their] rehabilitation.” In Georgia, everyone under supervision must “avoid injurious and vicious habits,” whatever that means. Georgia courts can also invoke “banishment” provisions, meaning the person must stay out of certain counties completely. This feels like a medieval disposition.

Many of these rules have made offenders claim they felt “nervous to even leave their homes.” This is especially true in minority neighborhoods, where intensified police presence is always magnified on a higher ratio of citizens with criminal records. One in 12 people have a criminal record in the general American population—it’s one in three for Black men. Toriano Goldman is a Black man from Philadelphia. He explained what the thought process was like while on probation, “I’m from a poor area. Everyone where I live has a criminal background, so where am I supposed to go? It’s impossible to socialize.”

Statistically, he likely can’t associate with approximately 34 percent of his peers. “Every time I’m in a car, I’m paranoid about who’s in it—are they a convicted felon? Will this lead to a revocation?,” Goldman asked.

A Wisconsin man on probation said, “They just gave us a sentence and put us on the street with nothing and expect us to follow rules and make stuff happen.” The man had previously faced incarceration for compliance violations.

It seems logical to impose a condition of requiring employment. But then, supervisees are made to deviate during normal working hours to attend frequent treatment programs and meetings. Supervision itself inherently interferes with the ability to maintain employment. The requirement to frequently report in person is time-consuming and disruptive. Jasmine Jackson was one example. Another example is Romelo Booker of Wisconsin. Booker was ordered to attend weekly supervision appointments. Booker was disgusted when he explained that he had to take several buses, each way taking about an hour and a half, to get to appointments in Milwaukee.

And the complications of remaining fully compliant while under supervision gets even more arduous. The ordered programs have internal rules that must be followed. Violations of the programs’ rules themselves can trigger technical violations. And these program rules are often vague, broad, and harsh. The Gaudenzia Sienna House (“GSH”) in Pennsylvania offers on in-patient drug treatment program. GSH rules prohibit such conduct as “coarse joking or gesturing,” “wearing torn clothing,” or “watching television outside of the specified ‘news hour.’”

A basic principle of due process is clear notice of precisely what is required or prohibited. Maddeningly, many of the foregoing program rules don’t satisfy due process requirements, yet participants’ liberty is dependent on strict compliance with vague rules whose interpretation is subject to the whims of various functionaries.

A prison-based cognitive behavioral program in Milwaukee requires that all participants shall “actively participate in groups, satisfactorily complete all homework assignments, and demonstrate they have acquired the specific skills taught in the program.” And, if the program is in a correctional facility, participants must follow all those rules as well. Any violation of program or correctional facility rules can result in revocation and incarceration. These realities result in what is essentially a three-tiered rules structure, and at every level, participants must ensure full compliance with every arbitrary (and oftentimes, ambiguous) rule. What exactly is a “coarse joke” or “active participation”?

And participating in treatment programs, whether substance abuse or anger management, for example, can be very expensive. These programs can be taken while incarcerated in jail or prison or be community-based on an inpatient or outpatient basis. Regardless, the offender is typically required to pay the program costs. In Bucks County, Pennsylvania, anger management courses charge a $100 intake fee, plus $45 per class. It’s $240 for a violence prevention program in Lehigh County, Pennsylvania. In Wisconsin, electronic monitoring can cost nearly $700 per month. It costs $250 in Dodge County, Wisconsin, for a drug and alcohol treatment assessment. According to Judge Karen Simmons, such “unaffordable fees can lead people right back to court for ‘failure to pay’ violations.”

In 43 states, offenders who otherwise qualify as indigent are forced to pay part of the costs for their court-appointed lawyer. These fees can range from only $10 in California to $500 in parts of Georgia. These fees can be even higher in states like Pennsylvania. Over the last decade, the median assessed fee for representation by a public defender has risen to $1,100.

This fee is in addition to LFOs (the fines, fees, restitutions, etc. that can cost thousands of dollars), program fees, and supervision costs. Yes, there is also the cost of supervision itself. Even without discussing private, for-profit probation companies, these charges can be levied in public agencies as well. An offender pays $20–$60 each month in Wisconsin; $30–$49 in Georgia; and $25–$65 in Pennsylvania. In Georgia, there were more than 36,000 offenders on “pay-only probation” as of 2017. This manner of probation is imposed solely on people because they cannot afford to pay various LFOs.

Many states actually have laws that require all LFOs, program fees, and supervision costs to be completely paid before someone’s supervision can be terminated, even if the term has otherwise expired with no violations. And 13 states, like Wisconsin and Pennsylvania, can extend the conditions because of the unpaid monies. When you understand that crime is often associated with poverty ab initio, too many people eventually find that it is impossible to pay such exorbitant fees.

Navigating supervision without adequate resources is difficult and supervision agencies often can’t provide enough access to programs, housing, transportation, or medical care. It’s not only unfeasible, many of these services aren’t within the supervision agencies’ purview. But it is a problem for a huge percentage of the CSP.

In Pennsylvania, a young mother who has long suffered with substance abuse disorders shared her struggles. “I asked for programs but … [probation] didn’t want to hear that I needed help; they just gave me time.”

Another woman, Sarah Martin from Pennsylvania said, “Probation officers have never done anything for me…. They’re there to catch you doing something wrong. They have no resources, no nothing.” According to a Human Rights Watch report, the majority of people on supervision claimed in an interview that “they did not receive meaningful support from their supervision officers.”

While many supervision agencies and POs attempt to connect programs and resources with offenders who can benefit from them, more observe that limited resources make this a difficult task. Melanie Hasty is a PO from Lowndes County, Georgia. Hasty noted that those on supervision “need homes, they need jobs, they need stability…. If we’re not offering … quality [resources], then we’re really not helping them, all we’re doing is just perpetuating a cycle.” As need goes up in correlation with rising CSPs, the available resources and funding is spread thin. There just aren’t enough resources to meet the explosive demand.

As the CSPs grew, probation programs fail to keep up with the rapidly increasing number of people in the programs. A Harvard study concludes that this is because supervision agencies are the “most severely underfunded” criminal justice agencies in America. And evidence shows that “high-risk individuals,” those who are the most vulnerable and need of assistance, are the “most likely to fail on supervision.” Overextended staff cannot provide these individuals with needed resources, nor do the POs have the time to dedicate to personal interventions; the very type of interventions that can produce successful rehabilitation, even with high-risk offenders.

The True Costs of the ‘Rituals of Compliance’

There are a lot of costs associated with modern community supervision. We are at the point where available financial resources, whether for the agencies or of the offenders, are vastly diminished. The staff are underfunded and overextended. Rehabilitative and treatment programs seem to be more focused on charging fees than changing lives. When it is obvious that broad supervision with prolific “rituals of compliance” is less effective than focused supervision on “high-risk” individuals, we need to take a closer look at community supervision.

The priorities are not wrong. They are just not balanced. Public safety matters, and POs should be concerned with ensuring lawful behavior. But a mentality that cares little for the offender’s successful reintegration into society is misaligned with the full purpose of supervision.

Experts trace the root cause of indifference regarding lack of support for offenders to the concerns POs have of getting in trouble if an offender commits another criminal offense while on supervision. “You only hear about the individuals on probation and parole when they mess up,” explained senior PO Marc Alstatt of Chatham County, Georgia. Experts have found that enforcing compliance is less time consuming than “finding the right set of services for a particular person’s needs.” This is a natural consequence of unmanageable CSPs.

But it becomes a self-fulfilling prophecy. The Pew Institute’s data suggests that “to be effective, probation systems should prioritize resources for the period during which a person is most at risk to reoffend, typically the first 12 to 18 months.” But even that’s not the simple answer. Further Pew Institute studies reveal that “even when policy requires the use of evidence-based practices, implementation can suffer if supervision agents are overloaded.” When a supervisee “fails,” who’s to blame? This leads to other questions: What is it to “fail”? And, what is the true cost of the C&S model? It’s more profound than the idea of insufficient monetary funds.

There is a common misperception that if an offender on community supervision gets arrested, that arrest is an indication of failure. Perhaps in some cases, the responsibility rests solely on the shoulders of poor choices. But making poor choices and having no choice at all are completely different. Nearly 12 percent of those on probation and 27 percent of those on parole will be reincarcerated. Are they all making poor choices? Caliph Muab-El is a person who was incarcerated for a violation in Wisconsin. Muab-El believes there is a “real problem” with technical rule violations. “Who doesn’t come late or miss appointments or just has a bad day? Nobody should be going to prison for that, nobody,” observed Muab-El.

The underlying causes of violations are actually revealed to be more often a racial bias, poor health conditions, or failure to attain appropriate resources and services. The statistics show that there is disproportionate impact on “people of color, poor people, and those with low levels of education.” More than 30 percent of the people on community supervision are Black.

America’s CSPs are overwhelmingly poor. A huge percentage of these people earn less than $20,000 per year (as of 2019). It is very common for the Black and Hispanic populations on supervision, especially women, to be living in poverty, nearly 50 percent of Black women and 41 percent of Hispanic women to be more precise. Overall, 63 percent of those on probation and 59 percent of those on parole are living under enormous economic distress. Individual statistical categories are even more revealing.

With respect to probation, the poverty rates are: men (60%), women (70%), Whites (57%), Blacks (81%), Native Americans (76%), Asians (58%), and Hispanics (59%). On parole, the percentages are: men (58%), women (70%), Whites (57%), Blacks (61%), Native Americans (62%), Asians (74%), and Hispanics (59%). LFOs and supervision fees are violations just waiting to happen. Adding such burdens to the already overburdened serves no legitimate policy interest and can’t possibly further goals which generate safer communities.

In contrast to the general population, the CSPs are “almost three times more likely to be unemployed, almost twice as likely to be poor, and more than twice as likely to receive assistance from government programs.” Disabilities cause significant percentages of the CSPs to be limited vocationally, which reduces access to health insurance. The poor health and psychological distress of many offenders interferes with their daily activities; activities that are integral components of a quality life.

It’s already a disadvantage that many lack education. The CSPs are twice as likely to have less than a high school education than the general population. In the general population, only 11 percent have a mental health diagnosis while approximately 20 percent of the CSPs do. Only seven percent have a substance abuse disorder, while 28 percent of those on parole and 28 percent of those on probation suffer from such a disorder, according to the Prison Policy Initiative. These issues contribute to housing instability. These are real world factors that drive violations. And each cause real world harms. These are human beings, not just numbers.

William Palmer waited 31 years to be paroled. Palmer was only 17 when he tried to rob a man. That man turned out to be an off-duty police officer. There was no money in the robbery. Palmer only received a gunshot wound to the knee and a life with the possibility of parole sentence. The parole board imposed 31 “special conditions” on Palmer when he paroled. And in Palmer’s first year, he was violated three times for technical violations and was reincarcerated. The California Court of Appeal found that the 31 conditions were “constitutionally excessive” and “patently punitive.” But the state appealed to California’s Supreme Court, arguing that “compliance was vital to his healing, necessary for him to successfully rejoin society.” Palmer was stuck with the excessive and punitive conditions.

“I’m not breaking laws,” Palmer argues. “I’m not hurting people. I’m doing life the best way I can…. You begin to wonder, ‘Is this what I got out for?’ I thought parole was suppose to help me, and all it’s doing is preventing me from doing the things I was prepared to do,” he added. Rita Shah is an associate professor of criminology at Eastern Michigan. Shah says, “Rehabilitation is a process, with likely failures on the road to success. But in a correctional setting, one mistake and you’re still that screw-up who committed the crime.” While supervision isn’t supposed to be punishment, it feels that way for many in the CSP.

“Parole has two objectives,” Shah explains. “To assist in the transition back to society and to ensure that you are no longer committing crimes.” What this means is reentry and supervision. But all we get today is compliance and control in the C&S model.

“Until they pin down what rehabilitation looks like, they have wide latitude to do as they please,” says Palmer while describing the parole system.

Multiple states, including Georgia, Pennsylvania, and Wisconsin, set supervision conditions and sanctions as determined to be appropriate by “RATs.” RATs stand for Risk Assessment Tools that consider a wide variety of background information about the offender. But studies of the current RATs used reveal disproportionate labelling of Black and brown people as “high risk.” This label triggers more strict levels of supervision and enforcement. Additional studies have found that when Black people violate imposed conditions they are more likely to face sanctions.

An unnamed Black man from Georgia accepted probation in an unsuccessful attempt to avoid prison time; he would eventually be jailed anyway. His revocation stemmed from failing (i.e., an inability) to pay LFOs and possessing/using drugs. This is an example of how lack of available treatment resources leads to failure. Relapse is a generally accepted part of recovery. Supervision agencies and the courts simply don’t put this knowledge into practice. Instead, as the Georgia man observed, probation confiscated all of his money and locked him up for seemingly insignificant reasons. The use of drugs is a common rule violation that often results in incarceration in Wisconsin too. And failure to report address changes and drug use are drivers of state parole violations in Pennsylvania.

The ACLU and the Human Rights Watch (“HRW”) argue that possessing drugs for personal use should not be criminalized. Such arguments are part of a growing global movement that is considered a “matter of human rights, because criminalizing personal choices like drug use in the absence of harm to others, is per se disproportionate and inconsistent with the right to privacy and basic principles of autonomy that undermine all rights.”

In Pennsylvania, from 2016 to 2019, simple drug possession caused 17 percent of all state parole rule violations. That number is only five percent in Wisconsin, but an additional 20 percent resulted from drug use (which necessarily requires possession). Between June 1, 2019, and October 1, 2029, 15 percent of supervision violations or new charges were for drug possession in nine Georgia counties. Those in CSPs have a substance abuse disorder at a rate between two to three times higher than the general public.

Martin says that using drugs leads to committing more crimes. Considering that employment possibilities for those who just got out of jail are next to impossible, crime becomes the only way to support drug habits. This nearly always leads to more violations and more harm. “They didn’t want to hear that I need help; they just gave me more time,” said Monique Taylor.

Addiction Psychiatry Specialist Dr. Erin Zerbo noted, “It’s so easy to find a bag of heroin and so hard to find treatment.”

Nationally, Black adults are 2.5 times more likely than white adults to get incarcerated for simple drug possession. In Wisconsin, it is 3.5 times for Blacks and a whopping 9.4 times more likely for Native Americans.

Do whites commit fewer violations, or is there biased supervision enforcement? Milwaukee’s chief public defender, Tom Reed, believes minorities in “disadvantaged neighborhoods face added barriers to complying with supervision.” Reed explained, “When they fail to comply, that too often results in their not receiving the benefit of the doubt. This is much less common with clients who come from more privileged backgrounds.”

Matthew Carrier is one of the privileged. Carrier is white, well-educated, lives in a Philadelphia suburb, and is a mortgage analyst for a bank. He is also an alcoholic who spent years on probation after being convicted four times for driving under the influence. Carrier ascribes his PO’s positive treatment to his background. Carrier explained that she knew “I lived in a nice area … had a good job … made good money” and “didn’t get any other charges besides these DUIs.” But he violated his conditions all the time.

Carrier said that his probation violations included getting drunk, disobeying instructions, moving to another state, and even missing classes. Though the PO threatened revocation, she never resorted to incarcerating him. Carrier eventually checked himself into rehab, which he could afford to pay. That rehab facilitated his recovery, but Carrier credits his PO. “My PO has a lot to do with saving my life. She could have thrown me back in jail, and I probably would never have been sober today. She saw the good in me, I would say,” explains Carrier.

It’s not wrong that Carrier received help instead of a “trail’em, nail’em, jail’em” PO. But HRW interviewed many others (mostly poor, uneducated minorities), and not one reported such assistance from their PO. When you don’t have a good job, good pay, or a good address, you often don’t get the benefit of the doubt. When Native American Nathanyl May was 18, he was arrested for theft and spent more than a year in jail. The Wisconsin man was told his PO would arrange transport to a Milwaukee-area treatment program. It didn’t happen. May explained, “But [the jail] just released me alone in the middle of the night. There was no transit … and I had nowhere to go.” May said he was homeless and didn’t even have the name of his PO. Unsure of what to do, May never reported and would fail probation.

Another man by the name of Darius Hill was forced to navigate supervision while homeless in Chatham County, Georgia. Hill was released from jail in Savannah with just $25 in his pocket. “I tell them, ‘I’m homeless, I need somewhere to stay. I’m in a shelter which is full of drugs.’ But they don’t help me,” said Hill. He is part of the “15 to 27 percent of people in prisons [who] expect to live in a homeless shelter upon release.” A Georgia study found that the homeless have “three times the rate of revocations” on parole compared to those with suitable housing. Lack of housing makes following any of the other conditions that much harder. “Things would be better on probation if I had a steady place where I can lay my head,” added Hill.

Juan Richardson is from Valdosta, Georgia. Richardson describes housing instability like this: “It’s hard when you have nothing. I basically had a choice between going back to the streets or to the meth house where at least it’ll be warm.” The result was inevitable. Richardson began using meth again. Afraid to tell his PO, he stopped reporting. Richardson failed probation, or did probation fail him?

Another issue arises from poverty and the excessive use of financial sanctions. The U.S. Supreme Court made clear in Beardon v. Georgia, 461 U.S. 660 (1983), that an inability to pay LFOs is not a legally cognizable reason for a person to be jailed. It is only a willful refusal to pay LFOs that can be considered a violation. Despite Beardon, that is often what happens. Many POs argue that they’d never pursue revocation for failing to pay LFOs. So, that is either dishonest or misrepresentative.

“If you’re poor and can’t pay, they’ll put your ass in jail,” said Jack Long. He is an attorney from Brunswick, Georgia, and has represented many people facing revocation. Long adamantly notes, “Judges [either] don’t understand that you can’t lock people up for failure to pay, or they just don’t care.” Pennsylvania is no better, says Martin, adding, “You come out under the gun already, you got all these fines and costs, and then they wanna’ violate you for that.”

Georgia Department of Community Supervision Commissioner Michael Nail summed up how perilous supervision conditions can be. “I’m not sure I’d make it under probation with all these conditions,” admitted Nail. Philadelphia’s Judge Simmons describes an almost inevitable failure resulting from reporting “every week for years on end.” Judge Simmons concluded, “[T]he odds are that I’m probably gonna do something [wrong], because I’m not perfect.” And that seems perfectly obvious.

The Inevitable Growth of Mass Incarceration

Regardless of the “why” an offender violates imposed conditions, it often leads to revocation proceedings. And while not all revocations result in terms of imprisonment (as jail terms are frequently imposed), failed supervision has become a driving force of incarceration. A 2019 Pew Institute analysis found that almost half of all state prison admissions nationwide are due to violations of probation and parole. As a result, every day, 280,000 people are incarcerated for supervision violations. About 30,000 of these are locked up for technical violations. The number of people in jails is not known because data is not accurately recorded or reported by the states. As Richardson explains, “They’re putting us in here for technical violations. You lose your job, you lose your family, you lose your house, you lose everything.”

What’s even more disgusting than the failure that is the C&S supervision model is the coercive process that occurs after an alleged violation. There are two applicable terms for such processes. One term is “violation proceedings,” which encompasses all proceedings related to an alleged violation of a supervision condition, up to and including revocation.

But not all violations result in revocation. “Revocation proceedings” refer only to judicial processes where jail or prison time results from the supervision being revoked. During violation proceedings, a PO is allowed to unilaterally exercise wide discretion to determine appropriate consequences. This includes more warnings to imposing sanctions like mandated treatments, short jail terms, or enhanced monitoring. The most serious consequence a PO can impose is a revocation proceeding. This is where the PO, prosecutor, and judge are all involved.

When revocation proceedings are initiated, a “revocation petition” is filed, and this can result in “pre-revocation confinement.” This confinement is usually the result of a detainer. A detainer is an order mandating that the offender is to be confined pending official proceedings. A detainer order can be lodged by the PO in many jurisdictions, but in others, it must be a judge.

The U.S. Supreme Court has outlined a two-step hearing process for revocation proceedings. At the early stage, a preliminary hearing is held to promptly determine two things. First is whether there is probable cause sufficient to support a violation allegation. And the second is should the person continue to be detained. Most often, people remain in confinement until the second part of the process—the final hearing. This can take weeks or even months.

The basic rights secured for offenders in the U.S. criminal legal system do not apply to those accused of supervision violations. No one is presumed innocent. The court can, and does, rely on hearsay evidence. And even illegally obtained evidence can be used in some states such as Georgia and Wisconsin. The “beyond-a-reasonable-doubt” standard of proof is not used. In revocation proceedings, it is only the “preponderance-of-the-evidence” standard, which is the lowest burden in our criminal justice systems. This means only that the allegation must be evidenced to be “more likely than not” true. And if the person is facing new criminal charges that are dismissed, the dismissed charges can serve as a basis for revocation.

This practice allows prosecutors to incarcerate individuals for alleged crimes without the need to prove the charges beyond a reasonable doubt in criminal court. A Wisconsin Department of Corrections official explained, “[I]t’s easier to just revoke them.” Nail said that “a lot of times, it’s about judicial economy.” The idea that it is required of officials to “prove” anything seems to be a quaint notion. Access to attorneys is limited and confinement so coercive that most people waive hearings. It’s quicker to admit guilt and pray for a quick release. “I can’t count the number of times I had client conversations saying ‘yes [I could contest revocation], but I have to get out of here,” said former Chatham County, Georgia, Chief Public Defender Michael Edwards.

Georgia defense attorney James Yancey puts it another way, “[Probation is] like a prison sentence outside of jail. You walk around with a rope tied around your leg to the prison door. Anything can lead to revocation.”

Between 2016 and 2019, nearly 12,200 preliminary hearings for state parole violations were scheduled in Pennsylvania. Less than one percent were actually held, and 78 percent were willingly waived by the offender. And in that state, if someone is facing technical violations and new charge hearings, the probable cause for the new charge automatically waives the preliminary hearing for the violation.

Considering the conditions of most jails, one could hardly blame them for signing waivers. Conditions are often described as cruel and inhumane—black mold, rats, having to sleep on the floor, no functioning toilets (people are forced to urinate in milk cartons or on the floor), inadequate mental health care, frequent suicides, failure to provide medications, assaults by guards, sexual abuse and harassment by guards and other detainees, and all in the midst of rampant overcrowding. These conditions are present all over the country.

Milwaukee Secure Detention Facility (“MSDF”) is one such facility. “There’s no sunlight…. There’s no fresh air. Your lips are dry, your mouth is dry,” said Aaron Alexander. He was housed at MSDF for over 10 months. MSDF is the first correctional facility in the nation with the sole purpose of incarcerating those who violate supervision conditions. In the five years following MSDF’s opening, there was a dramatic increase in pre-revocation detention, while state prison admissions grew by 62 percent. Between 2002 and 2019, one-quarter of all prison admissions were comprised of revocation proceeding detainers.

After spending time at MSDF, Mark Rice became an advocate for supervision reform. “MSDF is a human rights disaster,” said Rice. Booker is another man who spent seven months at MSDF, and he said, “You can’t see outside, smell outside, even know what it looks like outside.” So, it is no surprise that when a PO tells the offender they can risk years in prison (after months in detention) or waive hearings and counsel to possibly “receive a more lenient punishment,” most will “jump at the chance to get out of jail.” Robert Thurgood is one such person.

Thurgood was housed at the George W. Hill Correctional Facility in Delaware County, Pennsylvania—also known as DelCo Prison, Pennsylvania’s only private jail. “I don’t know what hell is, but I know hell is a bad place and that’s how I label DelCo prison.” Thurgood was facing revocation for driving under the influence and drug charges. Thurgood had no problem waiving hearings or foregoing an attorney just to expedite the process. The U.S. Supreme Court instructed that lawyers must be appointed for revocation hearings for the following reasons: (1) if a defendant is making claims of innocence, (2) if there are strong mitigating factors, or (3) if the case is complicated. But without counsel, who’s to know if such circumstances are present?

Justo Cabral is Solicitor-General for Lowndes County, Georgia. Cabral has recognized that even if an offender doesn’t initially waive a preliminary hearing, an “overwhelming majority” waive representation. This system is all the leverage POs, prosecutors, and judges need. As noted above, a first appearance can take a very long time to be scheduled. And in many states when taken to court for the first time, offenders meet only the prosecutor. The detainee is given a Faustian choice—meet with counsel and stay in jail for many more weeks, or sign an “attorney waiver” form. Many report not even knowing what that actually means, but they sign it anyway. Almost 96 percent admit guilt, waive counsel and further hearings, and hope to possibly get out of jail. People are glad to just get the ordeal over with.

But those are the few. For the many, violations that lead to revocation proceedings usually result in incarceration. After 400 percent increases in CSPs and 500 percent increases in prison populations between 1980 and 2007, these rates are finally seeing declines. States across America are recognizing a need to reform laws and policies to further diminish reliance on these destructive systems. Joint efforts between state governments, the U.S. Department of Justice, and the Pew Institute has created the public-private partnership entitled “Justice Reinvestment Initiative.” This initiative uses a data-driven approach to reform sentencing policy and lower prison populations and supervision revocations in at least a handful of states. There is much more work to be done.

The HRW determined that “reforms have failed to tackle the role of probation and parole in perpetuating mass incarceration.” Data through 2018 reveals that in 20 states over 50 percent of all prison admissions are supervision violations. That rate is more than two-thirds in Idaho, Kansas, Montana, South Dakota, Utah, and Wisconsin. In Pennsylvania, overall prison admissions declined by 21 percent, but the percentage of prisoners whose crimes were parole violations grew by 40 percent.

In addition, supervision revocations result in $9.3 billion in annual costs to states, and technical violations account for one-third of those costs. Revocations can result in various sentences of years or decades. There are only around 16 states that place certain limits on revocation sentences. For example, Georgia law requires judges to consider in-custody alternatives. But alternatives are not mandatory.

The violation of a general condition while on felony probation is capped at two years’ imprisonment, but a tailored condition violation can result in a prison term as long as the remaining probation term. So, if an offender were given 10 years’ probation and is revoked in year one, that person can get up to nine years of incarceration. It happens all the time. In Pennsylvania and Wisconsin, a revocation sentence can match the maximum sentence available for the original offense. Such dispositions can result in longer sentences than those given out to people not on supervision who engage in the same conduct.

HRW reported on a 2019 revocation proceeding in Milwaukee. The man had originally been given 10 years of probation with an “impose stay” prison term of five years. The judge was concerned that five years of incarceration was too long, even if the revocation was warranted. But lacking discretion to pick a term and “torn between the mandated penalty or no penalty at all, the judge imposed the five-year prison sentence.” Other judges are not burdened with these concerns. Judges in Pennsylvania believe that harsh revocation sentences are needed to “preserve the integrity of the supervision system” and/or “vindicat[e] the authority of the court.”

Such outcomes bother some supervision officials. A senior supervision officer in Georgia, Marc Alstatt says, “By sending them to prison [for violations] … are we being beneficial? I don’t know … I ain’t got no answer.” Even being sentenced to an “Alternative to Revocation” (“ATR”) program still results in incarceration. This is a contributing factor in overcrowding at facilities like MSDF.

After his initial seven months at MSDF, Alexander accepted an ATR program. Alexander spent two more months in MSDF waiting for a spot to open up. Although Alexander thought he would be released, it turned out the “community-based” ATR program was in the MSDF where he was already confined. “How is that community-based,” asked Alexander.

And guess what happens if you fail the ATR program—violation, revocation, and more incarceration. Wisconsin State Representative Evan Goyke has many concerns with this process. “I don’t understand how something is an alternative to revocation if it’s in a prison. Why isn’t it just a shorter revocation? We shouldn’t be calling something in prison an ‘alternative to prison,’” proclaims Representative Goyke. These programs should occur in less restrictive facilities in the actual community. Goyke explains, “I think the majority of MSDF programs could be taking place somewhere better and safer and more humane … There’s hundreds of men in MSDF tonight on these programs, and there’s no reason why they need to be there.”

So, You Feel?

If the realities of mass supervision in America today aren’t shameful enough, let’s spend a little more time revealing the shadow carceral state. PPSs, or offender funded supervision systems, are another tentacle of the prison industrial complex. These systems function in only 12 states but are quickly becoming notorious for extracting capitalistic ends from the human rights disaster we call American criminal justice systems. The rituals of compliance for PPSs are centered around money, which many people don’t have. We already know the system itself doesn’t even have the funding to help people either. So instead, it allows the implementation of a means to extract what little money those same people might possess. In what way does extracting money from offenders ameliorate the alleged harms of their illegal conduct?

While it is certainly true that state-sponsored supervision systems elicit significant financial resources from the offender, the principal funding sources are state-tax revenues. For PPSs, the premise is the opposite. PPSs have told local jurisdictions that they will pay nothing for these services because those under supervision will cover all the costs associated with supervising misdemeanor probation. The first PPS was implemented in Missouri in 1992. These third-party, for-profit entities have established and exploited a niche in supervisory systems. And it is a huge potential market.

PPSs are focused on the misdemeanor, traffic, or municipal ordinance violations governed by local courts. There is a paucity of reliable statistics as to the number of misdemeanor cases, but it is suggested that approximately 13.2 million misdemeanor cases are filed every year. That is a compelling market for PPSs. It is no surprise that costs go far beyond typical LFOs and into costs that are often hidden from plain view and assessed untraditionally. Missouri law requires all costs to be absorbed by the offender, but most courts do not track the amount private probation companies collect.

PPSs are generally subjected to very little oversight or scrutiny in many states. In fact, there are currently no mandatory qualifications or certifications governing program implementation or staff conduct under states’ laws. This allows for the PPSs to use affiliated treatment and service providers pursuant to their POs’ orders. The costs can be whatever they want them to be. Georgia has recently implemented loose oversight policies in response to complaints. And Tennessee developed the Private Probation Service Council (“PPSC”). The PPSC is to facilitate regular auditing of PPSs to ensure uniform professional standards.

An anonymous state PO describes PPSs as a scam and a “good ole boy system” because “their fees are exorbitant to what their costs are.” A Missouri defense attorney was frustrated as he explained, “The private company, because they get paid for every violation report, they are completely out to get my clients. They will violate them for any little slip they find, they’ll file a violation report.” It seems there’s an egregious conflict-of-interest when there’s a direct financial incentive to identify as many violations as possible.

One of the most frequent violations is a failure to pay. Such violations often lead to extended supervision, sometimes indefinitely. Caroline is from Georgia, and she said, “I don’t want to have to keep paying more money for more time. That’s not fair.” Considering that PPSs in Georgia recorded $121 million in revenues for the year 2016, fairness is not the primary consideration.

And unlike state-sponsored supervision, misdemeanor supervision run by PPSs is not governed by Bearden. PPSs are essentially allowed to criminalize poverty. A Georgia PO explained it another way. “I don’t think it’s that their behavior needs to be monitored. It’s just so that they’re keeping in touch and they’re letting us know what’s going on with getting fines paid….” Undoubtedly, public safety isn’t the primary concern.

A man going by the name Dale is also from Georgia and describes PPS supervision as “harassment,” claiming that he is frequently threatened with court or jail over unpaid (i.e., unpayable) monies. Dale’s response is pure reality. He’s told them, “Take me to court. Ain’t nothing going to change. You take me to court today, I’m still in the same situation. So, you feel?” Dale, we feel you.

Reimagining Community Supervision

Allowing a person to repay their debt to society under community supervision as opposed to pure incarceration is a superior approach in theory. We should be dedicated to addressing all damage done, including the rehabilitation of the offender. However, since the 1970s, our country spent decades abandoning the basic principles of humanity as public policy. The system was intent on “othering” people who violated the law, and that perspective makes it more palatable to look the other way as more destruction is inflicted upon the “others.”

The notion that criminals don’t matter and “nothing works” do nothing to further legitimize criminal justice system goals or public safety. What’s readily apparent is that the punitive C&S supervision models don’t work. Research proves that the current model of community supervision “fails to reduce crime; traps its subjects in cycles of criminal justice involvement; is excessively punitive; and creates widespread harm to individuals, families, and communities—all while failing to significantly contribute to the social and economic integration of those under its control.”

That prisons appear to have a “revolving door” is not solely the result of individual behavior. Recidivism rates are just as contingent on the mechanisms of the system and the attitudes of the POs. The insufficient provision of treatment programs and the filing of violation reports for technical violations are areas that POs can moderate. The current behavior of POs in the C&S models contributes to the recidivism rates lawmakers cite. The attitudes of all the ministers of justice must evolve. Prosecutors, judges, parole boards, POs, etc. must stop assuming that those who leave prison or jail will resume criminal activity upon release. That’s not what the research shows.

Most prisoners who are released have positive intentions, deserving “conventional roles” in society, e.g., workers, students, family members, etc. Multiple studies find that the formerly incarcerated prioritize finding work and family reunification upon release. When people recidivate, it is often the result of reintegration made difficult through various obstacles they can’t change—you can’t work here; you can’t live here; you can’t go there; you can’t talk to them; ad nauseum. These obstacles cause continuing poverty or housing insecurity and contribute to relapses of mental illness or drug addiction. Only truly effective support will lower recidivism rates.

This starts with reimaging community supervision. There is a “growing body of literature that indicates the effectiveness of probation is contingent upon the extent to which the principles of effective intervention are adhered.” Judge Burton Roberts explained, “Nothing is wrong with probation. It is the execution of probation that is wrong.” Judge Roberts was Administrative Judge of the Bronx Supreme and Criminal Courts and observed this more than two decades ago. So, what do the principles of effective intervention (“PEI”) look like today?

The current PEIs are the result of more than 100 meta-analyses of correctional literature. In 2010, researchers Andrews and Bonta identified the three most important PEIs: (1) risk, (2) need, and (3) responsivity (“RNR”). The risk principle asserts that valid RATs are capable of predicting criminal behavior. The severity of the treatment coincides with the level of risk, and the higher the risk results in greater the treatment. Consequentially, leave low risk offenders alone. Treatment related conditions are not one-size-fits-all. The need principle provides that recidivism can be reduced by targeting varying crime-producing risk factors, also called criminogenic needs (e.g., antisocial associates, cognition, or personality) for intervention. The responsivity principle describes how to best target criminogenic needs, which are often cognitive-behavioral interventions. This principle emphasizes how important it is to match offenders and treatment strategies in a way that best suits the offender’s “learning style, motivation, abilities, and strengths.”

Adhering to these PEIs can produce significant reductions in recidivism, with decreases as large as 26 percent if all three are followed by the PO. These PEIs are most effective when coupled with the use of core correctional practices (“CCP”). CCP consist of seven core skills that increase the therapeutic potential of correctional interventions.

These skills are (1) anticriminal modeling (PO models prosocial behavior and reinforces the offender when they do as well), (2) effective reinforcement (PO reinforces desirable behavior and disapproves of negative behavior with discussion on long- and short-term benefits of both), (3) effective use of authority (PO guides the offender towards compliance with focus on behavior, being direct and specific about choices and likely consequences), (4) structured learning (PO uses behavioral strategies to assist development of prosocial behavior of offender and how to avoid/manage high risk situations while providing constructive feedback), (5) problem solving (PO teaches offender to address high-risk situations by exercising the seven steps of “effective problem solving”), (6) cognitive restructuring (PO helps offender generate descriptions of problematic situations and recognize risky thinking), (7) relationship skills (effective PO possesses several critical interpersonal skills such as being directive, empathetic, engaging, flexible, nonjudgmental, open, solution-focused, and warm).

In addition to the newly formulated PEIs and the development of the CCP are the creation of improved community supervision models. These updated models include the Proactive Community Supervision, the Strategic Training Initiative in Community Supervision, the Effective Practices in Community Supervision, and the Strategies Aimed at Reducing Re-Arrest. Each of these models seek to train POs on the use of RNR PEIs while adhering to the CCP. These methods of oversight in the CSPs are intended to motivate POs to “develop quality relationships with the offenders they supervise, while balancing the goals of care (i.e., rehabilitating the offender) and control (i.e., protecting the community).”

Collaboration between the PO and the CSP they manage is shown to “improve the quality of the offender-officer relationship,” “decrease offender antisocial attitudes,” and “reduce recidivism.” The CSPs that are monitored by these POs “were 1.5 times less likely to recidivate compared to offenders supervised by officers not trained in these models.”

Community supervision needs to focus on income support, healthcare, and employment programs to effectively divert offenders from further criminal behavior. Focusing on C&S is counterproductive to the goals of public safety, which is (or should be) everyone’s primary goal. We must choose reintegration over punishment. POs using new methods and models are the vanguard to reimaging community supervision. Pro-offender attitudes can help CSPs to incentivize compliance, while building positive routines and avoiding criminogenic people, places, or circumstances. Quite simply, individuals embedded in supportive family and community networks are less inclined to engage in criminal behavior due to increased personal stakes and reduced opportunities. We should give people something to lose, rather than convince them they have nothing left to lose.

Reforms don’t lead to more crime. When New York City revamped its supervision system, the CSP was reduced by 60 percent between 1996 and 2014; violent crime went down by 57 percent during the same period. It is evident that current CSPs suffer from immense poverty and racial disparities. Reformation would also advance racial and economic justice while improving public safety. It’s just a matter of desire and willingness. The HRW and the ACLU’s collaborative project reviewed multiple states’ supervision systems and interviewed 164 individuals in the CSPs. The result produced an enormous list of straightforward, common sense reformative suggestions for state and local court systems, judges, parole boards, and supervision departments.

These suggestions include: (1) forgoing incarceration for violations that wouldn’t trigger such penalties for those not on supervision, (2) reduce technical violations related to substance abuse disorders, poverty, mental illness or other circumstances not entirely in the offenders control, (3) do not use acquitted or dismissed criminal charges for revocation, (4) narrowly tailor conditions, (5) develop rewards for positive behavior, (6) allow remote reporting, (7) reduce the use of probation, specifically split sentences (jail or probation, not both), (8) reduce the length of supervision terms, (9) eliminate detainers and mandate counsel appointment within 24 hours, (10) expedite the revocation process, (11) design commensurate LFO assessments, and (12) create “safe surrender” days for voluntary reporting after missing appointments or absconding.

Conclusion

Martinson mistakenly claimed nothing works. But supervision that focused on the rehabilitative ideal worked for decades. Today, that ideal is shown to be the most effective at reforming offenders and securing public safety. The necessary solutions are available if those in charge are willing to change. We are one society; there are no “other” members. We can’t prohibit people from opportunities to make up for the harms their conduct may have caused. And that’s the underlying premise, right? That causing harm requires penance and a change of behavior. Well, if that is true, the current state of supervision needs to repent and change because it is causing incalculable harm, too. Exacerbating harms on any level is the opposite of the purpose of the criminal justice systems. Our communities should be supervising the rehabilitation of these systems. Victims deserve better, society needs better, and offenders can be better. We just have to do it.  

Sources: al.com; annualreviews.com; acrosswalls.org; brookings.edu; civilbeat.org; dispatch.com; enidnews.com; filtermag.org; goodmenproject.com; howtojustice.org; hrw.org; lithub.com; nysfocus.com; ojp.com; pdx.edu; podnews.net; prisonpolicy.org; reconnect.io; rsfjournal.org; sagepub.com; splcenter.org; ssrn.com; theguardian.com; uniquewritersbay.com; usatoday.com; washingtonpost.com

Subscribe today

Already a subscriber? Login