Explainer: How ‘Technical Violations’ Drive Incarceration

Introduction

In 2019, Kerry Lathan was receiving a clothing donation from entrepreneur and rapper Nipsey Hussle when assailants fired on the musician, killing him. Lathan, who was on parole at the time, was wounded. While convalescing in the hospital, Lathan’s parole officer revoked his parole and then hauled him into jail for associating with a “known gang member”—Nipsey Hussle, who had just been mourned and lauded for his community contributions by both President Barack Obama and Los Angeles Mayor Eric Garcetti.

In New York City, Michael Tyson became the first person to die from COVID-19 in the notorious Rikers Island jail complex, having been incarcerated for months before his death. The reason he was in jail, and the “offense” that led to an effective death sentence? Missing appointments with his parole officer.

Philadelphia hip-hop artist Meek Mill was sentenced to three years’ probation when he was just 19. Yet, over the next 11 years, his probation was extended repeatedly, despite the fact that he had no new criminal convictions. Mill’s judge eventually imprisoned him for getting into a fight with a paparazzo in an airport (case dismissed) and popping a wheelie on a motorcycle (case diverted). 

These examples, far from extreme, are emblematic of a stark reality faced by the over 4.4 million people on probation or parole (sometimes called “community supervision”) in the United States. Each is out of prison but not quite free, possessing diminished legal protections while trapped in systems that keep them one missed appointment, one fee payment, one dirty drug test away from incarceration. 

While many people consider probation and parole to be an act of mercy or a slap on the wrist, their onerous requirements can often serve as a tripwire to incarceration for the disproportionately Black and brown people under supervision. Incarceration for non-criminal, technical violations—like moving without permission, drinking alcohol, or “associating” with someone who has a criminal record—has become so ubiquitous that legal scholar Cecilia Klingele has dubbed supervision merely “a delayed form of incarceration.”

Incarcerating someone for a noncriminal rule violation doesn’t improve outcomes or safety; it does the opposite. It uproots people from community ties, and exacerbates the system’s already deep disparities. It is long past time for policymakers to cut the number of people under community supervision and limit incarceration for technical violations.

More Rules, Fewer Rights

Founded in the 1800s as a front-end alternative to incarceration (probation) or a back-end early release reward for good prison behavior (parole), community supervision was originally staffed by volunteers and designed as a helpful (if paternalistic) innovation to give people second chances. 

Boston bootmaker and temperance movement devotee John Augustus is widely acknowledged as probation’s founder. In 1841, he interceded on behalf of a “wretched looking man,” bailing him out on charges of public drunkenness, saving him from a stint in Boston’s House of Corrections, and working with him for about a month to aid in his rehabilitation. Augustus reported that, when the man returned to court, “his whole appearance was changed and no one, not even the scrutinizing officers, could have believed that he was the same person who less than a month before, had stood trembling on the prisoner’s stand.” Over the next 18 years, Augustus and his colleagues bailed out and supervised on probation around 2,000 men, women, and children (some as young as 6 years old). 

From the programs’ inception, liberty under probation and parole was only maintained through compliant behavior, and rule violations carried the possibility of incarceration. But over time, these rules consumed the rehabilitative origins of supervision, with increased surveillance and punishment taking priority over helping people get back on their feet. 

That was true despite rules that can be nebulous and susceptible to broad interpretations by supervision officials. The rules often have no connection to either public safety or rehabilitation, and they’re difficult for people in precarious living situations to follow: Don’t stay out after dark. Don’t move apartments, or get a credit card, or a driver’s license without permission. Don’t drink alcohol or smoke pot, even in places where that’s legal. Don’t associate with people who have a criminal record, even your mother or spouse. Seek and maintain gainful employment, even during a recession or when employers refuse to hire people with criminal convictions. Pay a fee for supervision, even if you’re unemployed. And “be of general good behavior” and “avoid injurious and vicious habits.” These actual conditions often amount to a legally-enforceable laundry list of admonitions to, as legal scholar Fiona Doherty puts it, “be good!”

The two prevailing Supreme Court decisions concerning the diminished legal protections people on probation and parole enjoy—or, rather, don’t enjoy—are Morrisey v. Brewer, decided in 1972, and Gagnon v. Scarpelli, decided in 1973. In both, the Court relied heavily on notions of community supervision as benevolent, stating that their purpose is “to help individuals reintegrate into society as constructive individuals as soon as they are able,” and that while an officer recognizes a “double duty to the welfare of his [sic] clients and to the safety of the general community, by and large concern for the client dominates his professional attitude.” In deciding there is no need for complete due process protections—like the right against self-incrimination, or to representation by counsel, the ability to confront witnesses, or proof beyond a reasonable doubt—the Court stated that, “while presumably it would be inappropriate for a field agent never to revoke, the whole thrust of the probation-parole movement is to keep men [sic] in the community.”

In addition to this Benevolent Supervisor Theory, Prof.  Doherty outlines two other legal theories that courts have used to justify restricting the rights of people under supervision. Under the Privilege Theory, people essentially trade away their legal protections for the “privilege” of quasi-freedom, even though, as shown below, community supervision often widens the net of social control, rather than serving as a true alternative to incarceration. And under the Contract Theory, people under supervision have fewer rights because, in essence, they agreed to it, albeit with the gun of incarceration to their heads.

In any case, what the Justices confronting this issue 50 years ago clearly did not anticipate—what, perhaps, they could not possibly have anticipated—was that more people would be incarcerated in 2017 just for violations of probation and parole than the entire 1972 prison population.

The Death of Rehabilitation

A year after Gagnon, the City University of New York issued a report at the behest of state corrections officials that analyzed the effectiveness of in-prison treatment. The goal was to help officials better target state dollars. But what became known as the “Martinson Report” infamously implied that “nothing works” when it came to helping people turn their lives around after they had broken the law. Martinson was particularly harsh about community supervision, referring to probation as “a standing joke” and a “farce.” The report landed Robert Martinson in People magazine and on “60 Minutes,” heady stuff for an otherwise obscure criminologist in the 1970s. Later, Martinson would quietly recant his findings, but the damage was done, and the race to bury rehabilitation was on.

The widely-publicized Martinson report came near the beginning of the era of mass incarceration, often pegged to Richard Nixon’s 1971 declaration of a War on Drugs. Nixon’s focus on law and order is widely seen as part of his Southern Strategy—covertly racializing poverty and crime issues in order to peel off Southern and Northern suburban white voters from the Democratic party. As Nixon’s Chief of Staff H. R. Haldeman wrote in his diary, Nixon, “emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognized this while not appearing to.”

From there, rehabilitation quickly became a dirty word in the carceral lexicon. Prison programs evaporated, release on parole vanished, and mandatory sentences proliferated. The near-complete abandonment of the rehabilitative ethic that had dominated penology for more than a century was so abrupt that it prompted prominent legal scholar Albert Alschuler to write in 1978 that the fact that he and “many other academics adhered in large part to a reformative viewpoint only a decade or so ago seems almost incredible to most of us today.”

Prison and jail populations predictably skyrocketed following this shift, rising every year from 1972 until 2008, and generating a five-fold increase in our incarceration rate that fell disproportionately on Black and brown people. The United States went from incarcerating people at a rate in line with other Western nations to dwarfing them six- to 10-fold, causing the normally staid National Academy of Sciences to dub U.S. incarceration growth “historically unprecedented and internationally unique.” The U.S. now has 4.4 percent of the world’s population compared to 22 percent of the world’s prisoners.

The Rise and Impact of Mass Supervision

While much has been written about mass incarceration, the concomitant growth of mass supervision and its contribution to over-incarceration has garnered much less attention. Community supervision is a major cause of mass incarceration, often through technical violations like what Lathan, Tyson, and Mill experienced. In 2017, one quarter of the people entering U.S. prisons were locked up for technical violations at an annual cost of $2.8 billion. Being on parole actually increases the risk of incarceration, other factors held equal. Likewise, researcher Michelle Phelps has found that probation is positively associated with incarceration—the more people sentenced to probation in a state, the more people that state is likely to incarcerate. 

That’s partly because when rehabilitation came under withering attack during the 1970s, probation and parole administrators found themselves in a difficult place. While prisons had punishment and incapacitation to justify their existence (and growth), community supervision, which was premised on rehabilitative underpinnings, was more politically vulnerable.

So, probation and parole pivoted, and began emulating their big cousin—the prison. Community supervision departments started handing out “intermediate sanctions” and putting people on electronic monitoring, increasing surveillance in ways that would in turn make arrest and incarceration more likely. Supervision officers donned flak jackets and began carrying guns. And the field rebranded itself as “community corrections”—euphemistically, prisons in the community.

Probation and parole has increased more than four-fold between 1980 and 2007 right alongside incarceration, calling into question their role as true incarcerative alternatives. At their peak in 2007, there were 5.1 million people on probation or parole in the United States, or about one out of every 45 adults. 

An astonishing one out of 12 Black men were on probation that year. Overall, people of color are more likely than white people to be under community supervision, to be charged with a technical violation, and to be incarcerated for that violation, leading philanthropist and musician Jay-Z to write of community supervision, “our criminal justice system entraps and harasses hundreds of thousands of Black people every day.”

As a former probation commissioner, I’ve witnessed up close how this massive deprivation of liberty for non-crimes could become so pervasive. Over the last four decades, a fear-driven politics of mass incarceration took hold, stoked by idiosyncratic (but highly politicized) Willie Horton-like cases that were weaponized to advance tough-on-crime policies. In response, judges, parole authorities, and community supervision departments increased onerous release conditions and developed a quicker trigger-finger to incarceration for technical violations.

Meanwhile, external social and political forces made life more difficult for economically vulnerable people and those with criminal convictions. Collateral consequences for felony convictions, like prohibitions on housing, income supports, education, and employment diminished opportunities for people under supervision. Although community supervision expanded exponentially, politicians were more dubious about funding it; nine out of ten correctional dollars went to prisons, even though there are twice as many people under community supervision as are incarcerated, forcing caseloads up. 

These factors compounded one another, creating the perfect storm for the current crisis of community supervision:

• Higher caseloads.
• Fewer resources.
• Less tolerance for formerly incarcerated people.
• A shrinking social safety net and job market.
• A supervision environment more tolerant of needlessly harming people with prison to avoid the rare case of a released person causing harm.

Both the people under supervision and those tasked with managing supervision came under tremendous strain. Supervision began making reintegration more challenging and as a result it exacerbated, rather than ameliorated, mass incarceration.

Less Is More

Fortunately, as with other aspects of mass incarceration, there is growing awareness of mass supervision and burgeoning policy experiments to redress it. Stating that “supervision has become a gateway to incarceration,” Arnold Ventures in 2018 launched a major, multi-million dollar initiative to, among other things, reduce revocations to prison. 

In addition, nearly 100 probation and parole commissioners have formed Executives Transforming Probation and Parole (EXiT), asserting that “community supervision has now become overly burdensome, punitive and a driver of mass incarceration, especially for people of color.” EXiT argues that community supervision should be “substantially downsized, less punitive, and more hopeful, equitable, and restorative” and urges that the practice of incarcerating people for technical violations be abandoned. Following Meek Mill’s incarceration, Jay-Z and Philadelphia 76ers co-owner Michael Rubin teamed up with a who’s who of sports and entertainment figures to create the REFORM Alliance, a $50 million effort to transform probation and parole.

As some states have reigned in the size and punitiveness of supervision, they are showing that jurisdictions can have fewer people under supervision and fewer people locked up for violations without any negative impact on public safety. When Missouri initiated “earned time” compliance in 2012, 36,000 people were able to reduce their supervision terms by an average of 14 months, with no uptick in recidivism. At least 18 states now allow people to earn time off of community supervision as an incentive.

California policymakers and voters have passed a series of laws and ballot initiatives that reduced the number of people under supervision by 150,000 from 2007 to 2018 and cut the rate at which those under supervision were imprisoned for technical violations. As this immense reduction in probation and parole occurred in California, the number of people the state locked up declined by 17 percent and statewide arrests dropped by 29 percent. 

Likewise, the number of people on probation in New York City plummeted by more than 80 percent from 1996 to 2020. During that time period, the number of people in city jails dropped from nearly 22,000 to around 5,000, all while New York was becoming the safest large city in the country. During my time running the city’s probation department, we reduced technical violations by 45 percent and today, there is regularly no one incarcerated in the city’s jails for a technical probation violation.

While we are beginning to witness inklings of reform, there is clearly a long way to go. As an example, although New York City has largely eliminated technical probation violations, New York State incarcerates more of its residents for parole violations than any other state and does so at nearly three times the national average. This cost taxpayers at the state, county, and city level $683 million in 2019. Pending legislation, the Less Is More Act, would incentivize good behavior by allowing people to reduce their supervision terms; remain living and working in the community while they resolve technical parole violation charges; and would reduce the types of violations for which people could be imprisoned and the time they could be incarcerated for violations. The campaign promoting Less is More is a remarkable combination of organizations led by formerly-incarcerated people and supported by seven current district attorneys, along with over 230 organizations statewide.

Conclusion

To be sure, some people under community supervision gain access to services they might not otherwise have, some have great probation or parole officers who help them, and some are diverted from incarceration because of probation or parole, all of which can happen without the heavy cost that technical violations bring with them. 

But probation and parole have flown under the radar for too long, quietly watching and incarcerating millions of people, while devolving into a form of managerial surveillance rather than individualized aid. To confront this crisis, jurisdictions should substantially reduce the number of people under supervision, drastically limit needlessly onerous conditions, and eliminate incarceration for technical violations. Such violations should be seen as a signal of some underlying need—treatment, housing, support—and not as an indicator of ill-intent. And we should reinvest the billions saved into solutions co-designed with people in highly impacted communities to help their neighbors and loved ones successfully reintegrate, thus returning to the lofty original goals of probation and parole.