Academic journal article The Future of Children

Ending Mass Probation: Sentencing, Supervision, and Revocation

Academic journal article The Future of Children

Ending Mass Probation: Sentencing, Supervision, and Revocation

Article excerpt

In recent decades, the US criminal justice system has expanded in reach and intrusiveness, from arrests to mass imprisonment. Much of the research on mass penal control has focused on prisons, yet the most common form of supervision is probation. (1) Between 1980 and 2007, the number of adults under probation supervision in the United States grew from 1.1 million to 4.3 million. (2) The number has fallen modestly in recent years; by 2015, 3.8 million adults were under probation supervision, accounting for 56 percent of the 6.7 million adults under criminal justice control. (3) In juvenile justice, too, probation continues to play an outsized role, although juvenile incarceration rates rose less steeply during the penal build-up and have been falling for longer. (4) At the peak in 1997, more than 700,000 young people were placed on probation, compared to under 200,000 sent to residential placement. (5) By 2013, the total number of annual delinquency cases had fallen by nearly half, and probation remained the most common sentence. (6)

How do we make sense of the expansion of probation? Originally designed and promoted as an alternative to imprisonment that would spare promising individuals from the ravages of institutionalization, probation has often served instead as a net-widener that expands formal supervision for low-level cases. (7) Though it's frequently dismissed as a slap on the wrist, probation can entail fairly onerous requirements, including frequent reporting and drug testing, expensive fines and fees, and tedious rules and regulations. Probationers often fail to meet the multitude of conditions; when they do, they can be sent back to jail or prison. As University of Wisconsin legal scholar Cecelia Klingele notes, community supervision often represents a delayed path to prison rather than a true alternative. (8)

Thus, probation is both a potential alternative sanction (which could, in theory, help to reduce incarceration rates) and, as Yale law professor Fiona Doherty puts it, "part of the continuum of excessive penal control." (9) Yet this opportunity or risk is not spread evenly; race, class, and gender all influence whether people are diverted to probation (instead of prison) and whether they can successfully complete supervision without revocation (a return to jail or prison for violating the terms of release). (10) And at the state level, policy choices shape the degree to which increasing probation rates are associated with more or less growth in imprisonment rates. Policies that promote real diversion of prison-bound cases and lower revocation rates can reduce the net-widening effect of probation. (11) Yet as I show below, current practices in many probation departments deviate sharply from these ideals.

Given the scale of mass probation, scholars and policymakers alike should be attuned to its causes and consequences. For young people in vulnerable communities, the cumulative effect of aggressive policing, repeated criminal infractions, and the piling on of sanctions can be disastrous. (12) For adults, mass probation is one more example of the United States' uniquely punitive criminal justice system. (13) In this review, I concentrate on three critical aspects of probation--sentencing, supervision, and revocation--followed by policy recommendations for each. Though probation reform isn't a panacea for the harms of mass incarceration, it can reduce the scale and detrimental effects of our criminal justice system.

Getting on Probation

Unlike parole (the other common form of community supervision), which is typically granted by a parole board or required as a mandatory condition of prison release, probation terms typically begin with a sentence from a judge. Probation sentences for adults have expanded enormously over the past three decades. Between 1981 and 2007 (the year with the highest probation rate), entries to probation increased by 214 percent, maxing out at over two million annually (14) The increase was driven in large part by the rise in criminal convictions, which sent more people to both probation and prison. …

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