ACLU/HRW Report: Probation, parole feed mass incarceration crisis

Probation and parole are promoted as alternatives to incarceration that help people get back on their feet, but instead feed bloated jail and prison populations in the United States, Human Rights Watch and the American Civil Liberties Union (ACLU) said in a recently released joint report.

The 225-page report, “Revoked: How Probation and Parole Feed Mass Incarceration in the United States,” finds that supervision – probation and parole – drives high numbers of people, disproportionately those who are Black and Brown, right back to jail or prison, while in large part failing to help them get needed services and resources. In states examined in the report, people are often incarcerated for violating the rules of their supervision or for low-level crimes, and receive disproportionate punishment following proceedings that fail to adequately protect their fair trial rights.

“Probation and parole are seen as acts of leniency, but in the states we examined, they often lead to incarceration just for using drugs, failing to report a new address, or public order offenses like disorderly conduct,” said Allison Frankel, Aryeh Neier fellow at Human Rights Watch and the ACLU, and the report’s author. “Incarcerating people for failing to meet the overly burdensome requirements of supervision upends peoples’ lives without meaningfully addressing their underlying needs.”

Human Rights Watch and the ACLU interviewed 164 people, including 47 who had been incarcerated for probation or parole violations in three states where this problem is particularly acute:

Pennsylvania, Wisconsin, and Georgia. Researchers also interviewed family members of those incarcerated, government officials, lawyers, advocates, and experts, and analyzed data provided by or obtained from these states and the U.S. Bureau of Justice Statistics.

Researchers spoke with Willie White, a Black Georgia resident, who – after waiting for six months in jail to contest charges of possessing marijuana with intent to distribute – pleaded guilty to get home to his children and was sentenced to 10 years on probation. Instead, he soon wound up back in jail, once for failure to pay and another time for using and possessing drugs. “[Probation] took all my money, kept me incarcerated for simple little mistakes. It’s really been a lot of pain,” he said.

Researchers also spoke with a Black Pennsylvania woman who cycled through probation and jail, mostly for shoplifting and drug offenses, which she says stemmed from a substance use disorder. “I asked for programs,” she said, “but [probation] didn’t want to hear that I need help; they just gave me time.”

Over the last 50 years, the use of probation and parole in the U.S. has skyrocketed, alongside jail and prison populations. As of 2016, 4.5 million people, or 1 in every 55, were under supervision, often for years. They are required to follow numerous wide-ranging, vague, and oppressive conditions, like paying fines and fees many cannot afford; attending frequent meetings, often far away and during work hours; reporting every address change, even when they lack housing stability; and staying away from “disreputable” people.

Structural racism means that Black and Brown people are less likely to have the resources necessary to navigate supervision conditions, and more likely to be arrested and found to be in violation of their supervision terms.

The report’s findings include:

• Rather than diverting people from incarceration, probation and parole are feeding jail and prison populations. Council of State Governments data shows that, in 2017, 45 percent of all state prison admissions resulted from probation or parole violations. Human Rights Watch and ACLU analysis in the states studied show that the numbers were similarly high. Nearly half of all prison admissions in Pennsylvania include parole violations; over the last two decades, Wisconsin prisons have admitted about twice as many people for supervision violations as for regular criminal convictions; and during a five-month period in 2019, between 23 and 43 percent of all jail bookings in nine Georgia counties involved probation or parole violations.

• In Pennsylvania, Wisconsin, and Georgia, the supervision rule violations that lead to incarceration often involve using drugs, failing to report address changes, and breaking rules of supervision-mandated programs. When new offenses rather than rule violations lead to incarceration, it is often for public order offenses, like disorderly conduct, misdemeanor assaults, drug possession, and shoplifting.

• There are stark racial disparities in supervision and its enforcement. Nationwide in 2016, Pew Charitable Trusts reported that 1 in every 81 white people was under supervision, compared with 1 in every 23 Black people. In Wisconsin, Human Rights Watch and the ACLU found that the proportion of Black people sanctioned for supervision violations is four times as high as their proportion of the state population; for Native Americans, it is seven times their proportion of the population.

Multiple studies show that Black people throughout the US are significantly more likely to have their supervision revoked than similarly situated white people.

• In many jurisdictions examined in the report, people accused of violating their supervision are regularly detained for months just waiting for a hearing to contest the charges – even for rule violations, and absent any evidence that they are likely to flee the jurisdiction.
Many are confined in overcrowded, unsanitary jails that lack adequate mental health services or drug treatment, and where people are at heightened risk of contracting COVID-19.

• When found to have violated their supervision, people in the states examined are often subjected to disproportionate punishments, including additional jail or prison time, through a process that does not protect fair trial rights.

• At root, supervision violations often stem from poverty; a failure by authorities to support people in addressing underlying challenges, such as substance use disorder, housing insecurity, or mental health conditions; and racially biased policing and enforcement.

“Probation and parole operate under a separate legal system – one where basic rights, like the presumption of innocence, speedy detention hearings, and burden of proof beyond a reasonable doubt, go out the window,” Frankel said.

“This places immense pressure on people to admit to the allegations just to get out of jail.”

Many aspects of these supervision systems violate U.S. and international human rights law, including prohibitions on disproportionate punishment, racial discrimination, and arbitrary detention. Aspects of revocation systems also raise serious fair trial concerns or are inconsistent with the rights under international law to an adequate standard of living, housing, food, health, and other basic needs.

In recent years, many states have enacted reforms to reduce the burdens of supervision, limit incarceration for violations, and invest in community-based resources for jobs, employment, education, and health care.

But many of these changes still leave in place oppressive supervision systems that do not demonstrably improve public safety or facilitate rehabilitation.

Human Rights Watch and the ACLU recommend federal, state, and local governments divest from supervision and incarceration and invest in jobs, housing, and voluntary treatment for substance use disorder and mental health care.

The report is available here: https://www.aclu.org/report/aclu-and-hrw-report-revoked-how-probation-and-parole-feed-mass-incarceration-united-states