by Douglas Ankney and James Mills

According to a 2023 report from the Prison Policy Initiative, about 1.9 million people are imprisoned in America. More than 500,000 people are released from prison each year in addition to the more than 10 million who cycle through the nation’s jails. Most of these individuals are released on probation, parole, or post-release supervision (collectively termed “community supervision”). On any given day, 1 in 46 Americans is on community supervision—about 4.4 million people. If the number of people subject to community supervision were its own state, it would be more populous than 22 states, Washington D.C., and Puerto Rico combined.

Could community supervision arrangements be driving America’s mass incarceration dynamics? Evidence suggests that it could. According to an analysis of data by the Bureau of Justice Statistics (“BJS”) by Human Rights Watch (“HRW”), “between 1978 and 2008, the proportion of US state and federal prison admissions that resulted from [supervision violations] doubled. In the late seventies, 16% of state and federal prison admissions stemmed from such violations; by 2008, that number was 36%.” After a sharp decline in 2011 (mostly due to California’s “realignment policy,” limiting imprisonment for supervision violations), the proportion has steadily increased. By 2018, 28% of all state and federal prison admissions resulted from violations of supervision. The actual percentage is likely higher, as this data did not count prison admissions due to probation violations in cases when the person had not formerly been incarcerated.

A different set of data, limited to state prisons and produced by the Council of State Governments (“CSG”), included all probation violations among state prisoners. This data revealed that in 2017, “45% of state prison admissions nationwide—or nearly 265,000—resulted from probation and parole violations. In 20 states . . . more than half of all state prison admissions in 2017 resulted from supervision violations. In six states—Utah, Montana, Wisconsin, Idaho, Kansas, and South Dakota—supervision violations accounted for more than two thirds of such admissions. In many states, admissions for supervision violations are rising, even as prison populations are otherwise falling. For instance, from 2008 to 2018, Pennsylvania reduced prison admissions for conduct other than parole violations by 21%, while admissions from parole violations grew by 40%.

On any given day in 2018, there were 280,000 people in state prisons confined for a supervision violation (about 1 in every 4 prisoners). In 13 states, more than 1 prisoner in every 3 was incarcerated for a supervision violation. And since neither the CSG nor the BJS data included most of the 631,000 people confined in local or county jails or those in “probation detention centers,” the total number of people incarcerated for supervision violations is likely much higher.

This article is a brief survey of adult probation, parole, and post-release supervision—examining the history, the change in focus from a social services approach for reentry to a law enforcement surveillance and control approach, the factors underlying the dynamic community supervision as a feeder for mass incarceration, and the reforms necessary to return the focus of community supervision to one of assisting justice impacted persons with reintegration.

General Description of Probation, Parole, and Supervised Release

Probation, parole, and supervised release are marketed as alternatives to incarceration in the United States. Community supervision, it is claimed, will keep people out of prison and help get them back on their feet. Throughout the past 50 years, the use of probation, parole, and supervised release have soared alongside jail and prison populations.

According to Ryan Labrecque’s Probation in the United States: A Historical and Modern Perspective (2017), “probation is a court order through which a criminal defendant is placed under the control, supervision, and care of a probation officer in lieu of imprisonment; so long as the probationer maintains certain standards of conduct.”

Parole is a conditional release for a prisoner. While the laws vary by state and within the federal system, the concept is the same: an offender gets released from prison before the end of their sentence and must follow strict rules or risk going back to prison. Within the parole system, there are different types of parole.

Mandatory parole is commonly known as the “good time” system. This type of parole occurs when prisoners are rewarded with time off of their sentence. For example, an incarcerated person who has one week of good behavior might earn two days off of their sentence. Once they reach the end of their sentence minus the days off for “good time,” a prisoner can be released on parole.

Discretionary parole occurs when an incarcerated person appears before a parole board prior to the expiration of their sentence and is granted parole. These decisions are completely up to the parole board. They typically award discretionary parole to those deemed model prisoners.

Expiatory parole occurs when an incarcerated person has completed all of their sentence without any reductions or time off for “good time.”

Supervised release is similar to expiatory parole. It’s a term of surveillance and explicated terms with which an offender must comply while they live in the civilian world. Beginning with the Sentencing Reform Act of 1984, the federal system abolished parole and implemented more exact sentences, followed by supervised release. Currently, the federal system, along with many states (such as Wisconsin), sentences defendants to serve a period of supervised release that begins after the defendant has completed their period of incarceration. This is also known as “extended supervision.”

Persons under each type of community supervision must abide by numerous rules, known as “conditions.” While studies have identified as many as 127 separate conditions imposed around the nation, the average within any given state is around 19.

These conditions are of two types: (1) general conditions, applicable to every person under community supervision within a particular jurisdiction, and (2) specific conditions, applicable to address the needs of particular defendants (such as completion of anger management courses for persons convicted of assault).

Some common conditions of community supervision include:

• Reporting in person to a supervision officer
• Participation in intensive supervision programs
• Not leaving designated area without permission
• Maintaining stable employment
• Not changing residence or employment without permission
• Refraining from using drugs or alcohol
• Not possessing firearms or dangerous weapons
• Not associating with other criminally convicted persons
• Submitting to urine and blood testing
• Paying all supervision fees
• Obeying all state and local laws

When a person under community supervision violates a rule or condition but does not commit a new crime, this is known as a “technical violation.” Violations of any of these conditions may result in sanctions, including reincarceration.

A Brief History of Probation

John Augustus, a Boston shoemaker, is sometimes called “the father of probation.” According to Labrecque, “[b]etween 1841 and 1858, Augustus posted bail for nearly 2,000 men, women, and children—mostly minor offenders and alcoholics—who otherwise had no way of paying their fines. Augustus then aided these offenders in gaining employment and reported on their progress toward reformation when they were later brought before the court for sentencing. It is no surprise that Augustus’ home state of Massachusetts was the first to pass a probation statute in 1878; and by 1956, all 50 states and the federal government had adopted juvenile and adult probation laws.”

“From its inception, probation emerged as a way to help offenders, which was largely supported by the correctional philosophy of rehabilitation. The use of probation was seen as an opportunity to divert the offender from imprisonment and give him or her another chance.” It was thought that allowing convicted people to remain in the community, under active supervision, would allow them to begin setting affairs in order, supporting families, and participating in treatment and restitution.

Public support for the practice remained relatively unchallenged until the early 1970s, when offender rehabilitation more generally came under attack. Robert Martinson was a former Freedom Rider who was once incarcerated at Mississippi’s Parchman State Prison. He eventually attended the University of California at Berkeley as a graduate student in sociology. Martinson’s review of the correctional treatment literature (The Effectiveness of Correctional Treatment, 1972) proclaimed that “with few isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.”

The conclusion that “nothing works” dealt a devastating blow to the rehabilitative ideal. Over the next decade, President Richard Nixon’s recently declared “war on drugs,” combined with a larger “tough on crime” policy direction, ushered in an era of harsh sentencing laws. These included “mandatory minimum” sentences and “habitual offender” laws for drug-related and other conduct. Amidst this movement, many policymakers began railing against supervision, which they perceived as too lenient, and pushed to send more people to prison to serve longer sentences.

As a result, political consensus shifted away from rehabilitation towards punishment and incarceration as a solution to criminality. Legislatures, court systems, and supervision agencies toughened conditions, lengthened supervision terms, increased monitoring, and heightened sanctions for violations. The parole and probation supervisors, who had previously considered themselves “counselors” who helped “clients,” began identifying as “officers.” Their primary role was now to monitor offenders and penalize violators. By the 1980s, more than 20 states had either eliminated or drastically reduced early release to parole. Many states replaced parole with extended supervision—a mandatory supervision term imposed after people complete their full prison sentences.

Mirroring these trends, judges and prosecutors began changing their probationary practices. Rather than using probation instead of incarceration (known as “leveling down”), court officers began using probation in cases that formerly would have triggered less severe sanctions such as fines or community service (“leveling up”). In Georgia, for example, courts routinely sentence people to probation for traffic infractions if they cannot pay the required fines and fees on their court date.

Not surprisingly, the policy changes in the 1980s and 1990s led to a drastic increase in the number of people in prison. And these same policy changes also led to an increase in the number of people who were placed on probation. In 1980 there were about one million adult probationers in the U.S. By the early 2000s, this number had quadrupled to around four million.

There are thousands of distinct probation agencies in the U.S. organized into six separate systems: (1) juvenile probation, (2) municipal probation, (3) county probation, (4) state probation, (5) combined probation, and (6) parole at the state level but probation at the federal level.

Probation was once reserved for first-time or minor offenders, but that is no longer the case. A 1998 BJS report found that nearly half of all sentenced probationers have at least one prior criminal conviction. According to Labrecque, “in 2014, 56 percent of adult offenders were on probation for a felony offense. Whereas it’s still true that the majority of probationers are sentenced for nonviolent offenses, 19 percent of adults and 26 percent of juveniles are sentenced to probation for violent (i.e., personal) offenses.”

“The sentencing court may also impose additional conditions of probation that are tailored in response to the offender’s risk to the community and his or her individual rehabilitative needs. These specific conditions can include stipulations such as the probationer must remain confined to his or her house, submit to electronic monitoring, abide by a specific curfew, pay restitution or probation supervision fees, and participate in substance abuse, mental health, educational, vocational, or other treatment programs.” There are also general conditions that are nearly universally applied to those on supervised release: orders to obey all laws, submit to all searches, avoid possessing firearms and associating with known criminals, etc.

Labrecque again: “It is the probation officer’s responsibility to ensure that the conditions imposed by the court are met and, if necessary, to call the violation(s) to the attention of the court. As such, the probation officers’ role is to serve as both a helper and a rule enforcer. Assuming the probationer meets all of the court-imposed conditions, the term of probation will complete at the expiration of the sentence. Probation officers can also file a motion with the court to end a period of probation early if the offender has successfully satisfied all of the court’s requirements (e.g., successfully completed a treatment program, paid off restitution) and it is believed that he or she has received the maximum benefit of supervision. In the U.S., probationers spend an average of 22 months on probation, and the majority (68%) successfully completes his or her probation sentence.”

Private Probation

“If you’re poor and can’t pay, they’ll put your ass in jail. Judges [either] don’t understand that you can’t lock people up for failure to pay, or they just don’t care.”—Jack Long, defense attorney practicing in Brunswick, Georgia

Private probation is administered separately from state and federal criminal supervisory release. It is usually limited to individuals convicted of misdemeanor, traffic, or parking offenses or violations under the jurisdiction of local courts. It is managed by third-party, for-profit entities. Common supervisory conditions include drug testing, electronic monitoring, and specialty classes.

While prison populations have grown and probation has become more widely used, private probation has expanded enormously in recent decades. According to a report from the Russell Sage Foundation (“RSF”) titled Private Probation Costs, Compliance, and the Proportionality of Punishment: Evidence from Georgia and Missouri, as of 2022, 13 states had private probation systems: (1) Alabama, (2) Arkansas, (3) Colorado, (4) Florida, (5) Georgia, (6) Idaho, (7) Kentucky, (8) Michigan, (9) Mississippi, (10) Missouri, (11) Montana, (12) Tennessee and (13) Utah.

Private probation is radically different from traditional government-run systems in several ways. First, individuals sentenced to private probation are responsible for the payment of all probation-related costs, including any courses or treatment services required as conditions of supervision. This has resulted in private probation becoming known as an “offender-funded system.” Some state statutes explicitly mandate that the costs of probation are to be paid by the individual—without any support from the government. This obviously poses the potential for incentives tainted by conflicts of interest, in which contractors (and governments) seek offenders and possibly engineer violations in order to generate profits and public revenues.

Georgia law (for example) permits courts to sentence misdemeanants to “pay-only” probation, i.e., when the misdemeanant is unable to pay fines and fees imposed at sentencing, a private probation officer is assigned for the sole purpose of collecting payments toward the debt. The misdemeanant is required to pay the private probation supervision fees for up to three months, in addition to the fines and fees imposed by the court.

Perhaps most significant from a public policy perspective, the oversight of private probation companies is far less than that of traditional government-run systems. Even in states with formal government oversight mechanisms in place, such as Georgia and Tennessee, the RSF data indicates that further checks and balances are needed and that the current private probation system puts individuals on probation at risk.

The total costs of private probation are rarely disclosed to defendants or announced in court. Rather, there’s a long sequence of fees, fines, and surcharges that must be paid in sequence to avoid violation. The full financial burden for low-level offenses often comes as a surprise to defendants, who are afforded little due process or clarity. It’s an opaque system of multilayered costs and conditions. The totality of these costs can be crushing, so if deterrence were the intent, the costs would be disclosed upfront. One can hardly avoid the conclusion that this form of criminal penalty is as much a revenue generating mechanism as a legal sanction.

In Missouri, for example, state law prescribes that “neither the state of Missouri nor any county of the state shall be required to pay any part of the cost of probation and rehabilitation services provided to misdemeanor offenders.” While scholars contend that the costs for private probation are larger than those of traditional probation, the evidence appears to be scant as most courts do not track the amount private probation companies collect in fees or mandate reporting by agencies. According to a CSG report from 2016, the state of Georgia (and its contractors) collected $121 million in fines, fees, restitution, and other payments. There is little downward pressure on the imposed costs. The payors are a captive population with no political power, so the temptation on the part of governments and companies to progressively ratchet up costs is constant and, unfortunately, difficult to resist. Predictably, evidence is emerging to suggest that individuals supervised by private probation companies are more likely to be assessed specialty fees for elements of supervision such as mandated treatment and drug testing.

Municipal courts contract with third-party agencies to provide court-ordered treatment classes and other mandated services, and the costs can be substantial. In the lower courts of Georgia and Missouri, individuals being sentenced for misdemeanor offenses are often sentenced to a host of programs and treatment modalities, including: anger management classes, GPS monitoring, drug treatment, safe driving classes, community service, among many others. All entail separate costs. One defendant in Missouri, for instance, reported paying $800 for anger management classes for a misdemeanor. State probation officers have openly speculated that private probation companies use the assessment process for financial gain, adding extra classes and drug tests for defendants in order to generate more revenue.

Just as charging defendants to complete classes and tests creates pressure to increase the numbers and costs of those items, private probation also creates a perverse incentive by paying the private probation companies for violation reports. This leads to increased scrutiny of the probationers’ behavior and a greater likelihood of probation revocation and incarceration. Extended terms of probation mean still more money paid to the private probation companies. Ultimately defendants pay everything they’re ordered, or they remain on supervision indefinitely. Sometimes they’re taken into custody.

In many jurisdictions, state probation offices lose money when a probationer is violated and incarcerated because the funding for that probationer is diverted to the Department of Corrections. Therefore, government probation officers are less likely to violate a probationer for minor violations of conditions. Private probation companies, on the other hand, are quick to violate a probationer because the private companies are paid to write violation reports.

Individuals on private probation are not guaranteed the same procedural protections as those under government supervision. Misdemeanor cases are typically not covered by Bearden v. Georgia, 461 U.S. 660 (1983), which prohibits probation revocation solely for failure to make payments. Further, individuals in municipal courts are rarely afforded the services of a public defender. This is because convictions that typically do not result in incarceration, like those for which people are sentenced to private probation, are not afforded the same rights to representation. Individuals supervised by private probation companies have often reported that they felt they were being threatened with revocation and/or additional sanctions because of their inability to pay and were subjected to inappropriately aggressive and hostile collection tactics. Imagine if your credit card provider could issue arrest warrants or levy heavy additional fines, practically at will. That is similar to the daily reality for millions of Americans trapped in the machinery of the private probation system.

A Brief History of Parole

Imposing prison terms that commonly include discretionary parole was a practice that was introduced during the Progressive Era in the late 19th and early 20th centuries. It was based upon the belief that most prisoners were on the path to rehabilitation during their incarceration and that parole boards would be capable of recognizing and rewarding a prisoner’s successful rehabilitation. By the time that confidence in the medical model of corrections had begun to wane (in the final decades of the 20th century), parole release had become entrenched nationwide. Parole and probation were nearly universal sentencing practices for prisoners. Although at times embattled, parole boards have hardly disappeared. Florida, for instance, eliminated nearly all parole eligibility in 1994 when it increased its sentencing requirements (prisoners are required to serve 85% of their sentences, with very few exceptions). The state still has a Parole Commission, however.

Indeed, beginning with the 21st century, the trend toward parole-release abolition has slowed or stopped. Parole release continues to be an under-acknowledged force in American incarceration policy. Across the U.S., a smaller percentage of all prisoners are eligible for discretionary parole than in the 1970s, but it is still an integral part of the framework for setting the duration of prison sentences. Across 45 states reporting to the BJS in 2016, a full 56% of all prisoner releases were given release dates set through discretionary decisions of parole boards, while another 35% were classified as mandatory release. Releasing authorities have a tremendous amount of discretion regarding the final sentences of defendants. In 34 states (as of 2016), parole boards played a large role in determining release dates and conditions for prisoners.

In most states, the earliest date of eligibility for release on parole is dictated by state statute according to formulas such as one-fourth, one third, or one half of the maximum term imposed by the court. But in some states, such as Massachusetts, the sentencing judge may set both the maximum term and the minimum date of parole eligibility, with no statutorily fixed relationship between the two. In other states, like Hawaii and Iowa, parole eligibility begins with the day of prison admission, and the minimum time to serve before consideration for release is determined solely by the parole board.

While discretionary parole has been abolished in 16 states, post-release supervision is almost universal. Generally, supervision of those prisoners released on parole and those released after serving their entire sentence (“post-release supervision”) is performed by an agency separate from the parole board. Parole boards usually set the conditions of parole supervision. The conditions of post-release supervision may be set by statute or by a parole board. But individual parole supervision officers are charged with monitoring the parolees and those on post-release supervision.

These officers usually have a great deal of authority to issue violations for the people they’re tasked with supervising. Sanctions for violation may include lengthening of the supervision term, addition of new conditions, a period of jail confinement, or revocation to prison.

From their founding near the turn of the 20th century until the 1980s, the mission of parole-supervision agencies had been one of reintegration of released prisoners. But beginning with the 1980s, a surveillance and control strategy emerged, emphasizing surveillance and enforcement of conditions with a singular concern for management of high-risk offenders. Many parole officers now view themselves as a part of law enforcement with a focus on detecting and catching violators.

In 1965, there were approximately 100,000 citizens on parole or post-release supervision. By 2021 that number had increased eight-fold.

Supervision as a Feeder for Incarceration

Most Americans incarcerated for violations of their supervision conditions are locked up for violating rules, not for committing new crimes. For example, in Wisconsin, between 2017 and 2019, rule violations accounted for more than 61% of all supervision sanctions. In Pennsylvania, 41% of prison admissions for parole violations and 78% of probation revocations stemmed from rule violations.

People under supervision must comply with a long list of wide-ranging and often vague and hard-to-follow rules such as attending frequent meetings, abstaining from drugs and alcohol, and reporting any changes in address or employment. They must pay monthly supervision fees and other fees for programming, electronic monitoring, and so on. Abiding by these rules and continually paying fees may be a years-long requirement. In Wisconsin, Pennsylvania, and Georgia (three states that a recent HRW report—How Probation and Parole Feed Mass Incarceration in the United States—focused on), the term of probation can be as long as the maximum sentence for the underlying offense—10 or 20 years, even life. According to the HRW report, the most common supervision rule violation that triggered incarceration in Wisconsin was entering bars or consuming alcohol and drugs. And this was true even in cases where neither drugs nor alcohol were involved in the underlying conviction. In Pennsylvania and Georgia, the most common violations were failing to report a change of address and using drugs.

“In states such as Pennsylvania, Wisconsin, and Georgia, people are generally incarcerated while they fight revocation, even for minor violations. Detention in parts of these states regularly lasts for months before any hearing, in violation of international human rights standards. Sometimes detention occurs in jails that are overcrowded, unsanitary, and lack adequate mental health services or access to effective drug treatment, and where staff have been accused of mismanagement and violence. These circumstances place immense pressure on people to admit to the violations in the hope they can get out of jail.”

In Tennessee, 9,280 people (30% of the state’s jail population) are held for an alleged violation of supervision. More than 15,000 people are behind bars in Georgia and West Virginia (28% of their total prison populations) for supervision violations. In Ohio, 39% of the state’s jail population consists of people accused of violating their supervision rules. In a system littered with rules, dates, and conditions, failure is often the norm. Only 44% of people who “exited” parole or probation in 2021 did so due to successful completion of their supervision terms. In that same year, more 230,000 people “exited” community supervision because their probation or parole was revoked and they were sent to jail or prison.

Of the three classifications of community supervision (probation, supervised release, and parole), parole is a uniquely potent driver of mass incarceration. To better understand this relationship, some background information is necessary.

With a few exceptions, discretionary parole exists only in jurisdictions that utilize indeterminate sentencing. (An example of an indeterminate prison sentence would be “15 years to 75 years in prison”—meaning the person may be released on discretionary parole after 15 years, but the person may also end up serving the maximum term of 75 years.) Indeterminate sentences have been under attack recently. From 1976 through 2000, 16 states and the federal system abolished discretionary parole for most or all cases and opted for determinate sentencing. In theory, determinate terms are imposed at sentencing, such as “35 years in prison,” and must be served in full without any opportunity for parole. In practice, even these sentences are usually reduced through good time credits and other reductions.

There’s a widespread misconception among researchers and policymakers: the erosion of indeterminate sentencing in the 1970s contributed significantly to the explosion of prison growth in the succeeding decades. If this assumption were true, then the growth in the prison population would’ve been smaller if fewer states had abolished discretionary parole. In other words, parole and indeterminate sentences generally reduce the number of people in prison and the number of years that defendants serve, overall.

The data seems to say otherwise, however. Extensive application of parole seems to correlate with increased rates of imprisonment. States that followed indeterminate sentencing rules were the main sites of the mass-incarceration buildup. From the early 1970s through the early 1990s, the rehabilitation model underlying parole release was replaced with a model based on retribution, risk aversion, and incapacitation. Throughout this period, parole boards became miserly in their release rates—transforming from parole boards to parole denial boards. At the end of 2009, nine of the 10 states with the highest imprisonment rates were indeterminate jurisdictions. And from 1980 to 2009, nine of the top 10 states with the highest per-capita prison growth were also indeterminate jurisdictions. In other words, the possibility of parole was rarely realized, and indeterminate sentences often resulted in longer prison terms.

The reductions in granted parole are better understood in the context of American criminal justice policy during that era. Throughout the 1960s, rates of serious crimes—homicide, rape, robbery—rose almost continuously until a strong downturn began in the early 1990s. During those decades, politics and public opinion of criminal justice became fixated on “getting tough on crime.” The political dialogue became harsh, militant “wars” on drugs and crime. This tone was reflected in the deliberations of parole boards.

While parole boards have great discretionary power to grant or deny release to a prisoner, those boards have little, if any, political clout or job security. Board members are usually appointed by the state’s governor and can be easily removed. Whole boards have been fired after a single high-profile crime was committed by a released prisoner.

The decrease in parole grants is due in large part to a “risk aversion” dynamic. That is, a member of a parole board never assumes personal risk by voting to deny release. But that same member always takes a chance when voting to let someone out. A 2015 national survey revealed that parole board chairs chose “political vulnerability and pressure toward minimization of all risk” as one of the most important problems confronting their field.

Strikingly, there are no uniform standards or objective criteria used in making parole determinations. Parole boards in some states may consider the prisoner’s entire criminal history; whereas, in other states, the board may consider only the prisoner’s post-incarceration conduct. According to a report published in the Annual Review of Criminology (ARC, Volume 3, 2020) titled Parole Release and Supervision: Critical Drivers of American Prison Policy, “state variations in prison-release rules do not arise from articulable policies or principles.” “[T]here is little historical record, theory, research, or professional discourse that addresses” the basic issues of parole standards or eligibility.

The ARC report identified several glaring shortcomings in the procedures that parole boards employ in determining whether to grant or deny parole:

• the resources-per-decision ratio is low with release/deferment decisions usually made in a matter of minutes
• in many cases, there is no hearing or interview
• only a handful of states permit prisoners to review their own dossiers prior to a release hearing
• when risk assessment is used, prisoners are unable to interrogate or challenge the metric
• when prisoners are given reasons for denial of parole, those reasons are vague; often they’re merely boxes checked on a form
• when decisions are appealable (which they are not in most states), the process is perfunctory
• prisoners are not provided guidance on what they should do to increase their chances for release

While the percentage of parole denials has drastically increased, causing people to remain in prison for longer periods and thereby increasing the total number of people imprisoned, parole revocations and the sanction of reincarceration have also increased since the 1980s and added to the burgeoning prison population.

According to the ARC report, “nationwide, the number of revocations increased by 918% from 1980 to 2008. In 1980, 27,000 parole violators accounted for 17% of state prison admissions. By 2000, 203,000 parole violators made up 36% of all admissions. At their high point in 2008, 248,000 parole revocations accounted for 37% of admissions. The true seriousness of violations that lead to revocation is difficult to assess. An Urban Institute study reported that two-thirds of parole violators were returned to prison for technical violations of conditions, and only one-third for a new crime. Single state studies in Colorado and Connecticut found that 75% of revocations to prison were for technical violations.”

When the focus of parole shifted in the 1990s to law enforcement instead of assistance to former prisoners in transitioning back to society, a common saying quickly spread among supervision officers: “Trail ‘em, nail ‘em, jail ‘em.” By fiscal year 2018-2019, 58.8% of California’s parole population went to prison for technical violations (misdemeanor thefts, traveling more than 50 miles from home without permission, entering bars, etc.). Parolees were even sanctioned for such innocuous things as failing to return a steak knife to the kitchen after eating dinner in front of the TV (outside of the kitchen, the knife was considered a “dangerous weapon”).

Nationally, between 30% and 40% of all state prison admissions are due to technical violations, costing state criminal justice systems billions of dollars annually. Perhaps the focus is slowly beginning to shift, though—from catching backsliding criminals to behavioral change, treatment, and services.

“Parole has two objectives,” says Rita Shah, Associate Professor of Criminology at Eastern Michigan University. “To assist in transition back to society and to ensure you are no longer committing crimes.” But Brian Lovins, president of the American Probation and Parole Association thinks that “the predominant view of parole is that people are supposed to be in prison, and they received a break to be released early. The agents think, ‘Rules first, not rehabilitation first. If [parolees] follow the rules, they’ll become compliant.’ I’d say there’s not much evidence that compliance gives long-term behavioral change.”

An illustrative example of the harmful effects of the current parole system is the case of William Palmer. At age 17, Palmer put on a ski mask and tried to rob a man with an unloaded gun. His intended victim turned out to be an off-duty cop who shot Palmer in the knee. A lawyer (who would be later disbarred) convinced him to plead guilty with an agreed-upon sentence of life with the possibility of parole (which was the maximum sentence he could have received had he gone to trial). After serving 31 years, Palmer was paroled.

In addition to the 17 standard conditions, Palmer was required to comply with 31 “special conditions.” Out less than a year, he was returned to jail four times—all for technical violations. As part of his rehabilitative reentry, Palmer performed with the Returned Citizens Theater Troupe. Because one performance was at a restaurant where alcohol was served, Palmer was jailed for violating a condition of his parole (although he doesn’t drink alcohol). His second violation was for traveling more than 50 miles from his home without permission. His pregnant girlfriend was distraught, and Palmer traveled to her home to console her. Palmer’s third violation came when his parole officer discovered Palmer performed with United Playaz—a youth violence prevention nonprofit (one of Palmer’s special conditions prohibits him from having contact with minors). Palmer’s fourth violation stemmed from being booked into jail for assault with a deadly weapon and fleeing the scene of an accident. According to the parole violation report, Palmer sideswiped a Mercedez-Benz in a parking lot, backed his car into the owner, and then fled the scene.

But video of the incident and interviews with Palmer and Zhang Qu (the owner of the Mercedez) revealed a different story. Both men agreed that Palmer barely tapped the Mercedez. However, Qu quickly became enraged and struck Palmer. Palmer then attempted to remove himself from Qu’s presence by parking his car on the street. As Palmer very slowly backed up, Qu moved into Palmer’s path, pushing himself against Palmer’s car. Palmer was able to pull into the street, park his car, and call 911. Palmer told the dispatcher he had been assaulted but said he was not injured and simply wanted to go home.

Palmer was later arrested by police at his apartment. The parole violation report did not include the transcript of Palmer’s 911 call or even mention it. And it did not include Palmer’s version of the event or Qu’s admissions. Although Palmer was released after 13 days without any charges filed against him, the California Department of Corrections and Rehabilitation’s Division of Adult Parole Operations filed a petition to revoke his parole.

The First District of the California Court of Appeal ruled that Palmer’s prison sentence and subsequent parole were unconstitutional. The appellate court wrote: “It is difficult to comprehend how [Palmer’s] release under such conditions can be seen as anything other than continued restraint and punishment for his crime.”

However, in January 2024, the California Supreme Court reversed, ruling that parole is indeed punishment yet served a different purpose than incarceration. Parole’s goal is to use “supervision and counseling” in order to help former prisoners reintegrate. “At least when parole works as intended, it is a sufficiently vital part of the rehabilitation process,” the Court wrote.

Nothing in the ruling acknowledged that Palmer was a faithful Muslim; that he earned an associate’s degree; that his theatre performances were geared toward steering troubled youth away from crime; that he’d been appointed to the San Francisco Sentencing Commission; or that he established the nonprofit Life After Next to help former prisoners transition to freedom.

A significant factor in probation and parole feeding mass incarceration is the lack of due process at revocation hearings. In most states, there is no presumption of innocence at these hearings. Instead of a requirement that charges be proven beyond a reasonable doubt, prosecutors need only meet a preponderance of the evidence (51% certainty or greater) standard. The decision-maker can consider hearsay evidence as well as unlawfully obtained evidence.

Owing to those low standards in revocation proceedings, people often face revocation of their supervision for committing new offenses even after being acquitted of those new offenses at trial. In many cases, prosecutors do not even prosecute new charges until after seeing whether the person is incarcerated for a lengthy time at a revocation hearing. As a Wisconsin Department of Corrections official explained, “It’s easier to just revoke them.” Revoking parole thus acts as a kind of short-cut that prosecutors and police can use to return people to prison.

People often admit, in some cases falsely, to supervision violations simply to get out of jail sooner. In one exchange, Michael Edwards, the former Chief Public Defender of Chatham County, Georgia, stated that “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.’” Supervision officers in some places—including Wisconsin and Georgia—blatantly pressure people to waive their rights. Jails are generally overcrowded, violent, dangerous, unsanitary, and lacking in adequate healthcare. People detained in them are away from family and at risk of losing their jobs, their homes, and even their children. Fighting revocation usually means more time in jail awaiting a hearing and prompts many people to simply plead guilty to the violation.

The idea that (shorter) indefinite sentences with significant parole time can, in the aggregate, lead to more prison time for a state prison system than definite sentences may seem counter-intuitive, yet there are troubling indications that it is often the case. For example, a Pennsylvania Sentencing Commission study of probation revocations from 2016 to 2019 revealed that when judges sentenced people to probation for low-level offenses, they rarely imposed sentences higher than those recommended in the state’s sentencing guidelines. But when sentencing people following revocation those judges frequently imposed sentences above the guidelines. Attorneys who regularly handle supervision cases say the harsh sentences are imposed because of the perception that people “screwed up” their chance on supervision. Such a sentiment was expressed by Green Bay, Wisconsin, Judge Timothy Hinkfuss when he sentenced a defendant following revocation: “I gave you a chance on probation, and you blew it. Now, it’s more punishment than anything.” For anyone who has spent time in criminal courtrooms in the U.S., such a statement likely has a ring of familiarity.

Understanding the Problems with a View to Reforming Community Supervision

Ultimately, the current system of community supervision does nothing to reduce crime. In a study published in The Annals of the American Academy of Political and Social Science (“AAPSS”) in 2005 which factored in the experience of over 100,000 individuals, researchers compared state prisoners who were released to community supervision (either via a parole hearing or statute) with a group released without supervision. After two years, those released to supervision by statute had a rearrest rate of 62%; those released by a parole board had a rearrest rate of 54%; and those released without supervision had a rearrest rate of 61%. “Overall, parole supervision has little effect on rearrest rates of released prisoners,” according to the researchers. Not only is community supervision ineffective in reducing recidivism, but it acts as a feeder for violations and longer sentences. It traps people in an unending involvement with the criminal justice system. Parole and probation departments routinely combine intensive supervision and monitoring with low tolerance for even a minor violation of supervision conditions.

“The criminal justice system also traps people on prolonged periods of parole and probation by imposing fines as punishment and fees for supervision. In most jurisdictions, community supervision cannot be completed until monetary sanctions are paid, extending the time people are subject to monitoring and thereby at high risk of reincarceration for violations. Moreover, the costs of such fines and fees can disrupt reintegration and desistance from crime. Imposed on a typically poor population, payment of monetary sanctions can preclude paying for stable housing or investing in education or training - which help promote reintegration and limit recidivism,” according to the AAPSS study.

Vague and unreasonable conditions of supervision often result in violations. For example, in many states—such as Wisconsin and Pennsylvania—rules prohibit persons on supervision from drinking alcohol or even centering bars, even when their underlying offenses didn’t involve alcohol. Vague conditions, such as Wisconsin’s standard requirement for probationers to “avoid all conduct . . . which is not in the best interest of the public welfare or your rehabilitation” are full of uncertainty as to what is prohibited and can easily lead to a violation.

The common supervisory requirement that persons on probation and parole not be in the company of convicted felons give rise to similar issues. Toriano Goldman, a Black man who served probation in Philadelphia, Pennsylvania, explained that every time he was in a car, he was “paranoid about who’s in it—are they a convicted felon. Will this lead to a revocation? 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.”

“Net widening”—the term used by scholars and policymakers for criminal justice processes that escalate involvement with the criminal justice system—clearly applies to the practice of intensive probation. Touted as a means to divert people from prison by providing a “community-based sentencing alternative with more stringent conditions than traditional probation,” intensive probation actually resulted in increased incidences of technical violations and incarceration when compared with routine supervision.

Alongside the rise of mass incarceration, the emphasis of community supervision in America switched from rehabilitation to surveillance, compliance, and control. The system in America ballooned into an extreme outlier with a rate of community supervision 8.5 times higher than the European average and an eightfold increase compared to its 1965 rates.

The myriad rules and demands make it difficult for those on community supervision to maintain employment, maintain stable housing, participate in recovery or mental health programs, and/or fulfill financial obligations. Any contact with law enforcement or proximity to any crime or complaint can land a defendant back into the maw of the machine. Inappropriate levels of supervision, such as subjecting low-risk probationers to intensive supervision methods, are common.

Of course, few of these conditions or surveillance techniques do anything to address the root causes of criminality. The Substance Abuse and Mental Health Services Administration estimates that 70% of defendants suffer from substance use disorder and between 17% and 34% of them have a serious mental illness. Most of the conditions imposed under supervisory release ignore this reality altogether. In fact, by adding stress and competing responsibilities to the lives of defendants they can negatively affect their efforts at rehabilitation.

Numerous studies have shown that long periods of probation do not reduce recidivism but are more likely than shorter periods to lead to technical violations. The Pew Institute recommended 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.” While 62% of states place a five-year cap on probation for most offenses, at least five states (California, Georgia, Minnesota, Pennsylvania, and Wisconsin) place no ceiling on probation sentences. Judges in those states can impose probation terms for as long as the maximum sentence for the underlying crime. In Georgia, repeated shoplifting carries up to 10 years of probation. Possessing 40 grams of cocaine with intent to distribute in Wisconsin can result in 40 years of probation. In many states, when people are convicted of multiple crimes at the same time, judges can impose consecutive periods of probation on each conviction, greatly extending the supervision period.

The expense of supervision often results in revocation even when all other conditions are met. Criminal convictions with fines, fees, restitution, and court costs can easily total thousands of dollars. Then there are the mounting costs for programs—such as substance abuse treatment or anger management. As of 2020, anger management courses in Pennsylvania, for instance, cost $45 per class—plus a $100 intake fee. Violence prevention classes cost $240. Added to those costs are monthly supervision fees that range from $20 to $60 or more. In Wisconsin, electronic monitoring can cost up to $700 per month. And 43 states charge a fee toward the cost of a court-appointed lawyer, ranging from California’s $10 fee to Georgia’s $500 fee. Philadelphia Judge Karen Simmons astutely observed that unaffordable fees may lead people back into court on “failure to pay” violations.

While most states permit early termination of supervision in certain cases, state laws often condition termination of supervision on the full payment of restitution, fines, and fees. And in at least 13 states, a term of supervision can be extended for failing to pay outstanding court debt.

James Yancey, a criminal defense attorney in Georgia for 39 years says that “[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.”

Suggested Reforms

Trends in American criminal justice can be sweeping and profound, reflecting the feelings and conditions of society and creating their own inertia. They can also be difficult to reverse.

While America shifted its goal of corrections from treatment to punishment and warehousing, there was a countermovement, most notably in Canada, to “reaffirm rehabilitation” as the overarching goal of corrections. The reformist Canadian school of thought led this effort to develop a viable theory of effective offender treatment. The approach taken by this group of scholars was to “search for the convergent validity across diverse empirical and theoretical literatures to demonstrate that certain types of treatment programs and strategies would benefit offenders and protect the public. As part of this process, the primary method used to summarize findings was to quantitatively synthesize the results (i.e., meta analysis). Currently, there are more than 100 meta-analyses that have been conducted of the correctional treatment literature, which have been replicated with remarkable consistency. Collectively, these findings are referred to as the principles of effective intervention,” wrote Labrecque.

The social science around community supervision seems to show weak to null effects of community supervision on recidivism. According to Labrecque, large and meta-analytical studies have “found that community supervision was associated with a 2 percent reduction in general recidivism and had no impact on violent recidivism.” Using the data which has been gathered over past decades in Canada and in the U.S., researchers have identified a number of elements that should be considered when attempting community supervision reform, such as effective incentives (active reinforcement and disapproval, rather than immediate violations which are often followed by reincarceration), cognitive behavioral modifications (training and education around thought processes, triggers, and coping strategies), and relationship skills (like effective communication). Aside from these affirmative educational factors, however, there are some sensible changes which could be made to our regime of community supervision.

Human Rights Watch and the American Civil Liberties Union have recommended that jurisdictions, “cease sanctioning for conduct that is beyond the supervised person’s control—for example, no sanctions for failing to pay fees when the person is incapable of doing so, or for failing to report an address when the person is homeless, etc. Eliminate detention/jailing of people while they await revocation hearings. Eliminate revocation proceedings for accused conduct that resulted in an acquittal or dismissal in court. Sharply decrease the number of supervision conditions imposed and impose only those necessary to address the person’s criminogenic needs. Cease interfering with the supervised person’s employment. Eliminate intensive supervision. Cap the length of supervision to no more than 24 months. Insulate parole boards with job security.”

The negative incentives contained in the private probation system are clearly something that demands reexamination as well. Rather than mandating people on supervision pay private companies for individual classes and monitoring programs and fees (incentivizing the companies that often have a great deal of control over the course of an offender’s rehabilitation), state and local governments could pay these providers a flat rate (per person) and then use state employees (like counselors, social workers, or probation officers) to assess the needs of the individual on a case-by-case basis. Under such a system, there would be no pressure to impose additional months of monitoring or to violate participants, as the private providers of these things wouldn’t profit from their addition.

Unsurprisingly, research demonstrates that instead of focusing on surveillance, compliance, and control, community supervision could be used to improve public safety by returning the focus to meaningful social integration. Studies reveal that stable, full-time employment in well-paying jobs promotes desistance from crime. Additionally, connections to family and community provide probationers and parolees with “stakes in conformity,” i.e., when people find meaningful social roles in their families and communities, they are less likely to engage in crime.

Probation and parole could easily be adapted to concentrate on income support, healthcare, and employment programs—all of which are known to divert people from crime. Research demonstrates that young people from low-income families are 20% less likely to be arrested when they receive benefits from the Supplemental Security Income program. Employment programs that offer guaranteed jobs and training immediately after incarceration are known to significantly reduce the risk of arrest and reincarceration. Healthcare is also known to correlate with reductions in arrests.

Crime is a complex and multivariate social problem, and so is rehabilitation. There’s a constant and dynamic interplay between personal choices, learned strategies and habits, and social factors. It is important for those who have committed crimes to repent of their behavior, seek to make amends, and join the ranks of the law-abiding. However, those hurdles shouldn’t be unreasonably high or practically impossible to surmount. Any system that imposes a complicated thicket of conditions or penalizes common and noncriminal behaviors or happenstances might succeed in further ensnaring offenders in the machinery of criminal justice system—thereby increasing incarceration rates and possibly generating money for contractors—but that can’t be the preferred and intended outcome. Criminal offenders should reform, and we as a society should provide reasonable avenues for them to make those changes. That is in everyone’s best interest. 

Sources: Labrecque, Ryan. (2017). Probation in the United States: A Historical and Modern Perspective. In, Handbook of Corrections in the United States. Griffin III, O. H., & Woodward, V. H. (Eds.); Nanda, Jyoti, Web of Incarceration: School-Based Probation (November 1, 2021). Nevada Law Journal, Vol. 21, No. 1117, 2021; Harding, D. J., Western, B., & Sandelson, J. A. (2022). From Supervision to Opportunity: Reimagining Probation and Parole. The ANNALS of the American Academy of Political and Social Science, 701(1), 8-25; prisonpolicy.org; washingtonpost.com; theguardian.com; uniquewritersbay.com; howtojustice.org; reconnect.io; acrosswalls.org; rsfjournal.org; hrw.org; brookings.edu; usatoday.com; filtermag.org; dispatch.com; splcenter.org; goodmenproject.com; enidnews.com; lithub.com; civilbeat.org; nysfocus.com

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