September 30, 2020 at 5:00 am ET
A global pandemic has ignited swift changes to criminal justice systems across the country. Governors and mayors have reduced prison and jail populations in order to prevent them from becoming hotspots that ricochet the infection into surrounding communities. Despite warnings that early releases would lead to disaster, overall crime rates, including violent crime rates, have fallen during the pandemic, and the recent increases in homicides in a number of cities are not linked to the pandemic. This raises an uncomfortable question for a country with the highest incarceration rate in the world: Was all this incarceration necessary in the first place?
Not a single part of our system should be immune to re-examination. While headlines have focused on jail populations, the community supervision population — which consists of 4.4 million persons on probation and parole — is nearly double the number incarcerated and larger than the population of most states.
A new report from the Columbia Justice Lab shows that reducing the number of people under community supervision can correspond to lower crime rates. The report finds that community supervision rates declined for the 10th consecutive year in 2018 even as crime rates steadily dropped during this period. But much work remains. While supervision rates continued their decline in 2018, just four states accounted for over half of the drop from 2016, while 17 states experienced an increase in supervision rates. And longstanding problems in community supervision — including large racial disparities and reincarcerations for technical violations—remain disturbingly high.
Community supervision has become an anvil tethering people to the criminal justice system long after they pose any meaningful risk. Initially meant to be a rehabilitative, low-cost alternative to incarceration, supervision has metastasized into a rigid system of arcane rules that traps millions of Americans in cycles of debt and incarceration. Even prosecutors and the government officials who run community supervision think so. Nationwide, about 45 percent of prison admissions are for supervision failures, costing billions per year.
Promisingly, changes to community supervision are already under way in response to the pandemic. Large majorities of probation and parole officers have transitioned from in-person check-ins to phone or video and have moved away from jailing people for technical rule violations. Can these ad hoc responses point the way to broader reforms?
Responding to this need, Arnold Ventures and the Pew Charitable Trusts have collaborated on a bold reform proposal, the goal of which is to safely reduce the number of people under supervision and increase successful completion.
A key theme of the proposal is that courts and policymakers should impose shorter but more effective terms of supervision. Longer supervision doesn’t improve public safety: Re-arrest usually occurs during the first one to two years. That fact recently led Minnesota to limit most probation terms to no longer than five years. California Governor Gavin Newsom’s proposed limiting parole supervision to two years recently passed the legislature. Missouri implemented an earned time policy incentivizing good behavior by reducing supervision terms by 30 days for every month that people comply with probation conditions. That drove its supervision rate down by 18 percent, without increasing crime.
The proposal also recommends easing conditions that hinder success without improving public safety. No. 1 on this list is onerous fines and fees, which increase the likelihood of supervision failure. Millions of Americans get their sentences extended because they cannot pay monthly supervision or other court fees. Texas officers report that inability to pay is the most common reason people fail to report, and that efforts to extract payments dominate probation check-ins. States should make it easier to waive fines and fees for those who truly cannot pay or convert them into community service.
When people under supervision do slip up, the proposal would reduce re-incarceration for “ticky-tack” fouls. About a quarter of all state prison admissions are for “technical” violations, like staying out past curfew or traveling out of the jurisdiction. This costs states about $2.8 billion per year. A far better approach is to limit government supervision and revocations to only conditions that directly affect public safety.
This epidemic has put every segment of society under strain, revealing inefficiencies and flaws that were hiding in plain sight before. Eventually, we all hope to get back to normal. But community supervision shouldn’t get back to normal, because it was broken before the pandemic.
Arthur Rizer is the Criminal Justice and Civil Liberties policy director at the R Street Institute, as well as an adjunct professor at GMU’s Antonin Scalia Law School and a former police officer and federal prosecutor. Vincent Schiraldi is co-director of the Columbia Justice Lab and former commissioner of New York City Probation. Both authors are members of the Square One Project.
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