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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.