Breaking the Link Between Community Supervision and Mass Incarceration

Instead of transitioning people away from and out of the criminal legal system, probation and parole have transformed into two of the primary drivers of the U.S. mass incarceration crisis. Some of the chief reasons supervision too often keeps people trapped in the system’s grasp include overly lengthy supervision terms, unflinching surveillance and monitoring designed not to reward success but to catch failure, and a lack of due process for people alleged to have violated their supervision terms.

“What’s important to grasp is the extent of the reach,” said Jeremy Travis, executive vice president of criminal justice at Arnold Ventures. ​“The millions of people currently on supervision are subject to an overly punitive system that can harm more than it helps. The manifold restrictions for those under supervision often have a corrosive effect on individuals, their families, and their communities.”

But change is not just necessary. Recent reform victories demonstrate that progress is also immediately possible — in both red and blue states. One of the organizations helping to drive that change is REFORM Alliance, an organization focused on probation and parole reform which has launched a national campaign, Give Life Back, to raise awareness about the need for action from policymakers.

“We are calling on the system to be accountable because it should be a system that helps facilitate stability, employment, housing, treatment, and mental health if needed,” said Robert Rooks, the CEO of REFORM. ​“It should be a system that facilitates success, not prepares people for reincarceration.”

Some of the wins that REFORM and other organizations have helped secure recently — in addition to tools that demonstrate the potentially enormous impact of common-sense steps forward — can offer a roadmap for advocates, supervision officials, and legislators across the country who are hoping to address the depth of the supervision crisis in their states. These much-needed reforms represent an essential first step towards breaking the link between community supervision and mass incarceration.

Texas

Gov. Greg Abbott signed legislation to reform community supervision this June. As part of the law, those in charge of supervising people on probation have the authority to shorten or terminate the sentence based on individuals’ achievements while on supervision, such as taking part in volunteer or community service programs. It is a critical change: Probation in Texas is so problematic that a study from one county found that one in three people chose incarceration over a plea deal involving community supervision given the constraints of the supervision system.

Research has shown that felony probation sentences longer than 15 months have minimal effectiveness and diminishing returns, yet felony probation terms in Texas last an average of 4.7 years. Moreover, a January report by the Alliance for Safety and Justice found that one in six people who entered prisons and jails in Texas did so because of a probation violation, not because they committed a new crime.

“The analysis points to some signs that the probation system is not operating as safely and effectively as it could,” the report says. “[M]any thousands of people sentenced to probation fail the terms of their probation and are re-incarcerated, or opt to serve time in jail instead of probation when probation should be the more effective sentence.”

Texas’ new reform law addresses many of the recommendations of the report, namely by making probation sentences shorter by providing incentives. The bill also mandates that courts must consider the ability of people on probation to pay for many of the requirements that lead to them getting off probation, such as programs, rehabilitation, and drug testing. Should a judge determine that someone can’t afford them, they can waive the fees or have the person pay through other means such as community service.

The bill earned support across the political spectrum and was even approved unanimously by the Texas Senate.

Oregon

Oregon exemplifies how significant progress is being made in reforming community supervision, but more work is needed to make supervision systems fairer.

The Oregon Legislature failed to pass a wide-ranging bill that would have allowed time off community supervision sentences for good behavior, abolished fees for people on probation and parole, and rewarded jurisdictions that provide alternatives to incarceration. If it had passed, it could have served as a significant restraint on mass incarceration. Despite support from criminal legal system advocates such as Partnership for Safety and Justice and Oregon’s leading Black lawmakers, this omnibus reform bill (HB 2002) died in committee. However, individual provisions were successfully passed as standalone bills and are currently awaiting the signature of Gov. Kate Brown. Senate Bill 620 will eliminate fees for post-prison supervision, parole and probation, and House Bill 2172 will expand eligibility for reduced time on supervision when Oregonians are successful on supervision.

Philadelphia

Not all supervision reform requires state legislative action. In Philadelphia, District Attorney Larry Krasner has implemented policies that resulted in the number of people on community supervision falling from 42,000 to less than 28,000. After taking office in 2018, Krasner was faced with eliminating the city’s mass supervision crisis. In 2017, one of every 23 adults in the city was on supervision.

While judges set supervision terms, prosecutors have significant influence in the process because most cases are resolved through negotiated plea deals. The district attorney’s office implemented policies limiting how much time prosecutors could ask for supervision — no longer than 36 months for most felony cases and 12 months for misdemeanors. As a result, the average length of community supervision sentences from negotiated plea deals declined by nearly 10 months. The shorter sentences did not increase recidivism, a finding in line with research showing that longer sentences are harmful to individuals and do not improve community safety.

“So much of the effects of mass incarceration are because of people being on supervision for a long period of time and violating their probation one way or another and ending up back in jail,” said Sangeeta Prasad, a Stoneleigh Fellow who consulted with Krasner’s office on supervision.

The policies also narrowed racial disparities. Before Krasner took office, supervision sentences were 10.8 months longer on average for Black defendants in contrast to white ones, compared to 5.2 months after the changes took effect. For Latinx defendants, that figure was reduced from 10.6 months to 7.1 months.

While Krasner’s policies have shown the impact that prosecutors can have on reducing sentences, disparities, and people’s lives, Prasad stressed that it’s vital for lawmakers to introduce reforms that will force judges to be more lenient with supervision throughout the state. ​“I think it offers a little bit of hope,” she said. ​“It shows different stakeholders that you can do this, make real inroads in the way supervision is imposed on people without harming public safety.”

Next Steps

While states and jurisdictions work to pass reforms, much work remains on ensuring that supervision actually helps people transition away from the criminal legal system rather than remain entangled with it. Despite state-by-state improvements, revocations remain a major driver of national incarceration rates, and supervision’s sheer size and its omnipresence as a punitive force — particularly in Black and Brown communities — are lingering problems.

And although some argue that people on probation and parole are free, they are far from it. Some have to wear an ankle monitor that limits how far they can travel, while others may have trouble finding work because they have to consistently leave for mandatory check-ins. Others can’t obtain housing. People on supervision live under the unflinching observation of a system that too often prevents their success and overzealously punishes their failure, leading to an unwavering fear that their lives might be forever, irrevocably upended at any moment

LaTonya Tate knows the feeling first hand. Before starting the Alabama Justice Initiative, she worked as a probation and parole officer. Her son spent 10 years in prison. During that time, he was released on parole but sent back twice because of technical violations and spent three more years incarcerated.

“Being on probation and parole is a big fear for a lot of people. They have all these conditions people have to abide by, they’re afraid they’re going to slip up,” she said. ​“We know people have made mistakes, but I don’t think we need to continue to condemn them. We need to make sure people get off probation and parole successfully.”