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Analysis

Probation and Parole as Punishment

Community supervision must be transformed in order to help people caught up in the justice system, not hurt them further.

  • Peggy McGarry
June 28, 2021
parole
Helen H. Richardson/Getty
View the entire Punitive Excess series

This essay is part of the Brennan Center’s series examining the punitive excess that has come to define America’s criminal legal system.

Community supervision — generally speaking, our systems of parole and probation — began in the 19th century as a peer-to-peer system of support. Community members came forward to assure the court or prison that they could help those convicted of crime to live lawfully outside of jail or prison.

In 1841, for example, John Augustus, a Boston shoemaker, persuaded the court to release a man to his care, convinced he could cure the man of his drunkenness. When he was successful, the Boston courts began using community care to suspend criminal sentences. In 1876, Zebulon Brockway, the warden of the prison in Elmira, New York, prevailed upon the authorities to release to community care men whom he believed were “rehabilitated.” In the early 20th century, states and counties established formalized systems of support and surveillance as the population of cities and towns grew.

Despite the transition to government agencies with professional staff and budgets, the fundamentally supportive nature of those systems remained in place well into the 20th century. For people released from jail or prison, staff were available to “reintegrate” them, to help them with the problems that might have led to their crimes in the first place, and to see that they succeeded. Today, however, many of those agencies are more primed to find and punish failure than to promote success. The length of supervision and the nature of the conditions have grown more onerous and punitive, and the consequences of failure more severe.

So, we ask: what happened?

Civil rights, voting rights, and the Nixon administration

A focus on crime and “urban unrest” — code for fear of people of color — grew in the aftermath of the upheavals of the 1960s and the passage of the Civil Rights Act and the Voting Rights Act. Faced with the potential for people of color having power, the policies and rhetoric of the Nixon administration, particularly its Southern strategy and “War on Drugs,” were aimed at making sure that they didn’t. The attention to crime, especially urban crime, was taken up by the media and by policymakers of both political parties at the federal and state levels. It led to the passage of harsher sentencing laws, including the recategorization of offenses to make them incarceration-eligible, criminalization of more kinds of behaviors, and longer terms of incarceration.

Prison and jail populations increased, and state and local budgets were hit hard. The era’s political rhetoric about race and crime made it much easier to consider those caught up in the system as “other,” rather than as members of the same community. Instead of an opportunity to restore lives, release on parole or probation became a privilege that could be taken away. Any violation, no matter how trivial, could be seen as an affront to the generosity and forbearance of the court or paroling authority.

The budget hits from the growth in incarceration and the building of more prisons and jails, with the assistance of nearly $3 billion in federal funding,  meant fewer dollars for community supervision: fewer staff, larger caseloads, less money for services and a variety of other things to help those released remain stable in the community. Agencies once structured to provide assistance were reduced to offering surveillance and enforcement.

The trend to punish harshly did not end with sentencing. Laws were passed at the state and federal levels that closed off many public benefits that had once been offered to the newly released, such as public housing and public assistance, making a successful term of supervision that much harder to achieve.

The changing nature of supervision

As “tough on crime” became the rallying cry in many political campaigns, and as federal and state legislatures and agencies made changes to laws and policies, the resulting climate affected the actions and decisions of both judges and parole boards. Worried about their elections and appointments, judges looked to longer terms and more rigid “standard” conditions of supervision as insurance. Although in recent years this has begun to change, governors often filled parole board positions with political allies with little education or experience in criminal justice. While they often make headlines for their release decisions, parole boards also determine the conditions of supervision and the responses to any violations of them.

Long lists of conditions — the rules for living while on probation or parole — have become the structure of supervision: surveil for adherence, punish for violation. Standard conditions do not address the specific needs of each person but impose the same rules of conduct on everyone. While some are sensible, most are controls on noncriminal behavior. “Do not associate with felons” — though the individual’s only place to live might be a family home or shelter also occupied by people with felony convictions. “Do not move your place of residence without permission from your parole officer” — though in the crowded housing of poor communities, frequent moves are more common than in society at large. “Do not consume alcohol” — though alcohol use may have been in no way connected to the individual’s crime. “Do not leave the county without prior approval,” curfews, frequent reporting, and random drug testing — even if the original crime had nothing to do with drugs. These are but a few of the common conditions, conditions that can interfere with a person’s ability to keep a job or fulfill family obligations like childcare.

Apart from standard conditions of release, the judge or parole board usually imposes additional requirements, including treatment, classes, electronic monitoring, and others. In many places, the person on supervision is expected to cover the costs of such programs or even the cost of the supervision itself. To someone struggling to find housing and employment, to keep a job or initiate family reunification, these fees can guarantee failure and reincarceration.

This is the result of the budget reductions for staff and services that arose from “tough on crime” rhetoric. Politicians denounced services to those on supervision that “regular” people could not get, while simultaneously pushing for a “mess up and you’re back” approach. With larger caseloads and fewer resources, officers had significant motivation to yank a “difficult” case — a person struggling to comply with conditions — and recommend revocation and a return to jail or prison. For a judge or parole board, that recommendation was easy to approve since it was politically safer than continuing a difficult case — even if the “difficult” circumstance was a noncriminal violation of conditions.

The transition to law enforcement

As the duties of probation and parole officers became more about surveillance and enforcement of conditions, rather than the original concept of community care and reintegration, the recruitment and training of new officers changed as well. They were no longer hired for their “helping” skills or orientation. In many places, new officers were trained alongside institutional corrections officers and law enforcement personnel. The focus of such training is on finding and responding to crime: surveillance techniques, use of force, use of firearms, how to subdue the “other.” Beginning in the mid-1980s, their unions and associations successfully lobbied for arming supervision officers. While these officers surely do encounter dangerous situations at times, their desire to be armed was driven mostly by the difference in the pay and benefits available to those in public safety. The subsequent arming of probation and parole officers completed the transition of those agencies from a service orientation to identification as law enforcement.

Without time and resources, with scant encouragement from their agencies, officers have little reason to work patiently with supervisees to help them stabilize and be successful. Officers are not given raises or promotions based on the successes achieved by people on their caseloads, and the decision to revoke someone back to jail or prison at the first sign of trouble is affirmed by how often their revocation recommendations are approved. It’s a process of circular reasoning: the judge, parole board member, or regional supervisor assumes that the officers in the field know best how to respond to violations; the officers assume their responses and recommendations are correct because the judge or parole board member approves them.

These problems have been exacerbated in recent years by the moves in states to reduce prison spending by making more people eligible for probation and parole. However, with more people eligible for release on supervision with longer terms, and as the resources — and the inclination — for effective and humane supervision have disappeared, revocation has become more frequent. According to the Pew Trust’s Public Safety Performance Project, between 2000 and 2018, 28 states increased the length of their probation sentences. And according to the Council of State Governments, 25 percent of prison admissions in 2017 were revocations from supervision.

Conclusion

A different approach to community care is critical if we are to make it a useful tool for preventing future crime and enhancing both family and community well-being. There have been many efforts in recent decades to change how paroling authorities make decisions, how supervision is conducted, and how revocations are handled. We know how to use officer time effectively to engage with the people on their caseloads, how to assess who needs more time and who can be left alone, how to intervene in ways that are helpful rather than punitive, how to encourage stability and success. And we know how to work with communities, religious organizations, health care and social service agencies to improve lives, rather than to destroy them.

But that change isn’t happening in enough places. We will continue to see these trends until we intentionally recruit officers who are more interested in prevention than enforcement, unless we invest in officer training that focuses on how to help those on supervision to succeed, unless we change our reward structure to incentivize those whose clients succeed, and unless we stop ordering long terms of supervision and onerous conditions.

We have not done these things primarily because we seem to be content to waste the lives of those who have broken the law. The damage we continue to do is of little concern to us. They are other. And, apparently, their lives don’t really matter.

Peggy McGarry is the former director of the Center on Sentencing and Corrections at the Vera Institute of Justice. She currently serves as a consultant to the Center for Effective Public Policy, where she was a principal for 23 years.