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January 28, 2023

Effective look at the many ugly realities of probation

The March 2023 issue of Reason magazine has this terrific article about probation systems authored by C.J. Ciaramella and Lauren Krisai. This lengthy piece is worth a full read, and its full title notes its basic themes: "U.S. Probation System Has Become a Quagmire: What was originally intended as an alternative to incarceration has become a system for mass state control." Here are excepts from the start and first part of the piece:

Shortly after becoming a mother in summer 2013, Jennifer Schroeder was arrested for a drug charge.  Schroeder, who lives outside of Minneapolis, Minnesota, pleaded guilty and was sentenced to serve 365 days in Wright County Jail.  And 40 years on probation.

Probation terms vary by state.  They can include curfews, restrictions on travel, submitting to warrantless searches, paying court fees, holding down a job, and abstaining from alcohol and drugs, to the point of being prohibited from even entering a bar.  For Schroeder it means a near-lifetime ban on voting or owning a gun, and the looming threat of eight years behind bars if she ever violates her terms.  For the privilege of being subjected to all this, there are also fees owed to the state — all to live on the edge of a life-destroying prison sentence....

While many gauge the criminal justice system by the population of jails and prisons, probation affects more lives.  And while it is clearly less punitive than being locked in a prison cell, it is still a form of onerous correctional control.  Probation is supposed to help people get their lives back on track while staying accountable and keeping the public safe, but in many states offenders are set up to fail in systems that can't or won't give them the opportunity to succeed.

It's a scattershot array of state-run systems that, over nearly 200 years, has evolved away from its original purpose of providing public accountability and rehabilitation without punishment, quietly transforming into a secondary criminal justice system hiding in plain sight.  As it has evolved, it has lost much of its original purpose, leaving even many of the system's enforcers uncertain about a fundamental question: What is probation supposed to be for?

And here is part of a section of the article about just some of the restrictions probationers face:

When a person is sentenced to probation, there are numerous terms and conditions that he or she must adhere to or face potential consequences. Sometimes these conditions are set by statute, but more often they are assigned by the judge, a state or county probation department, or an individual probation officer.  According to a joint report issued by the American Civil Liberties Union (ACLU) and Human Rights Watch in 2020, people under supervision across the country "must comply with an average of 10 to 20 conditions a day."

In Wisconsin, a person on probation has to obtain written approval from their probation agent to purchase, trade, or sell a car.  New York, Kansas, Georgia, Texas, and South Carolina require that probationers avoid "injurious and vicious habits," while New York, Kansas, Georgia, and South Carolina also require they avoid "persons or places of disreputable or harmful character."  It's common to be prohibited from consuming alcohol, even if the crime was unrelated to drinking....

Beyond that, probationers sometimes have curfews imposed, are unable to cross state or county lines without first getting permission, and expect unannounced drop-ins from officers.... In addition, those on probation are stripped of otherwise constitutionally protected rights. "I live in a really bad neighborhood, and I can't carry any kind of protection," Schroeder says....  Minnesota also doesn't allow offenders to vote until they complete the terms of their criminal sentence, so Schroeder isn't supposed to cast a ballot until 2053.

And here is part of the discussion of probation's contribution to incarceration:

Over the last four years, 42–45 percent of prison admissions were for probation or parole supervision violations. Roughly a quarter of all admissions to prison are for technical violations of probation or parole, such as missing an appointment.

Some states and localities have introduced graduated sanctions for technical violations and more discretion to probation officers, so offenders don't have probation revoked for their first minor screw-up. But in some states, people on probation are often set up to fail. Instead of being an alternative to prison, it simply ends up delaying incarceration.

For example, Idaho has a staggeringly high rate of prison admissions for probation and parole violations.  According to a report this year from the Idaho Department of Correction, 80 percent of 2021's admissions had either violated probation, violated parole, or failed a rider....  The overwhelming majority of admissions to prison in Wisconsin are also for supervision violations. More than 63 percent admitted to prison in 2021 were there for such a violation, and 40 percent were admitted for a technical violation of supervision.  Kansas also has a high admission to prison rate for probation violations — 44 percent of admissions to prison in fiscal year 2021 were for a violation of probation.

January 28, 2023 at 10:34 PM | Permalink


If people comply with a myriad of conditions over years, then it kinda seems that those restrictions should be removed (maybe gradually). But hey, what do I know?

Posted by: federalist | Jan 29, 2023 10:33:06 AM

I wouldn't want a drug user in my neighborhood to carry a gun. So that doesn't seem crazy.

I have to wonder if 40 years of probation was a good choice by the judge. It might depend on her prior record.

I don't know what to make of the statement about "technical violations." I get it that prison for a missed appointment is severe. At the same time, the appointments may be for a reason, i.e. drug testing. It's not obvious to me how to enforce rules, allow for the human tendency to make minor mistakes, yet ensure that major mistakes are punished. But if the appointment was to include a drug test, how does one know if the person was on drugs at the time or not? I would want there to be a nonzero consequence for the first missed appointment. And I would definitely want prison to be a consequence of a pattern of missed appointments.

I think a person sentenced to a lengthy term of probation ought to eventually have a chance to apply to end it. Evidence in favor might include compliance with probation terms and evidence of useful activity such as holding a job or parenting.

Posted by: William C Jockusch | Jan 29, 2023 11:59:33 AM

Let’s be clear who this woman is. Not only was she selling meth, she was smoking it while pregnant.

Posted by: TarlsQtr | Jan 29, 2023 1:05:32 PM

Tarls, my preference would be for more prison time then. 40 years of limbo just seems kinda silly.

Posted by: federalist | Jan 30, 2023 10:30:44 AM

When my state was looking at, and implementing some reforms, the data seemed to show that the vast majority of people who reoffend do so rather quickly. So forty years of probation seems to be more about punishment than rehabilitation. I have always personally seen probation as a triage system -- find out who made one dumb mistake and has learned from it and who is a wannabe career criminal. If they have learned from their mistake, give them the tools to get back on track. If they want to continue on as criminals, show them to their prison cell.

Obviously, there are different types of violations, but calling them technical is designed to make them less serious than they are. Many states require people to be employed (or at least trying to find a job) and to notify the probation officers of the change in employment. And the reason for that condition is that people who have good jobs tend to be less likely to commit offenses. Likewise, many states have conditions related to controlled substances because the need to get money to pay for controlled substances tends to be a motivation for committing offenses and because controlled substances (and alcohol) impair the user's judgment. And regular reporting allow the probation officer to track the offender's progress.

My own experience in rural counties is that isolated violations (missing one appointment or failing to immediately notify probation officer of a new residence or job or one positive drug test) do not result in revocation. There may be some sanction (e.g., a weekend in jail) or some added conditions (out-patient or in-patient drug treatment program), but the isolated violation does not lead to immediate revocation. Rather, it is a pattern of violations (missing every other appointment, testing positive for controlled substances six or seven times) or a complete disregard for probation supervision (committing a new offense or absconding from supervision entirely) that leads to revocation.

Posted by: tmm | Jan 30, 2023 11:44:17 AM


I agree, but I’m not shedding tears for her.

Posted by: TarlsQtr | Jan 31, 2023 10:40:57 PM

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