TABLE OF CONTENTS I. INTRODUCTION II. HISTORY AND STRUCTURES OF COMMUNITY SUPERVISION A. Probation B. Post-release Supervision III. THE DYNAMICS OF REVOCATION A. Conditions of Release B. Methods of Supervision C. Responses to Rule Violations IV. RESPONSES TO THE PROBLEM OF REVOCATION A. What Problem? B. New Legal Responses 1. Limits on Sanctioning Technical Violations 2. Graduated Sanction Grids 3. Effects of Legal Change V. A DIFFERENT APPROACH: LIMITING COMMUNITY SUPERVISION A. Limiting the Sanction B. Limiting Release Conditions C. Limiting Terms of Supervision VI. CONCLUSION I. INTRODUCTION
It is no secret that the United States has the highest incarceration rate in the world. Between 1977 and 2010, the number of people confined in state and federal prisons grew from roughly 300,000 to more than 1.5 million (1)--a figure that places the United States seven times ahead of its Western European counterparts with respect to incarceration rates. (2) The cost of mass incarceration, in social, moral, and financial terms, has generated considerable recent scholarly and legislative attention. (3) Those convicted of crimes often face lifelong collateral consequences that limit their abilities to vote, gain employment, and participate fully in civic life (4)--a reality that limits not only their own prospects, but those of their children and communities. (5) The widespread reach of the criminal justice system has harsh consequences for the state, too. (6) Even before the 2008 financial crisis dramatically reduced state and county budgets, the rising cost of operating correctional facilities had caught the attention of state and local policymakers, and in recent years, legislatures have shown growing interest in reforms aimed at reducing the costs associated with criminal punishment. (7)
Reformers interested in reducing imprisonment rates often advocate the increased use of noncustodial sanctions. They have encouraged judges to sentence more people to terms of probation and have urged legislatures to authorize or expand opportunities for prisoners to obtain conditional release at the end of their sentences. (8) Imprisonment is juxtaposed against community supervision: from this perspective, every sentence of probation is a small victory in the battle against mass incarceration and its associated costs. In reality, however, the relationship between incarceration and community supervision is complex and interwoven.
The growth of U.S. prison populations during the latter half of the twentieth century has been well documented and much decried, (9) but the dramatic growth in community supervision that occurred during the same period has received far less attention. Notably, the same period that saw dramatic growth in prison populations also saw significant increases in the number of people serving terms of community supervision. Between 1977 and 2010, the number of individuals on probation more than quadrupled, growing from just over 800,000 to more than 4,000,000. (10) And, despite trends during the period that reduced opportunities for early parole release, (11) the number of individuals serving terms of supervision following incarceration grew from more than 173,000 to nearly 841,000. (12)
The average annual per person cost of incarceration is approximately fifteen times higher than the cost of community supervision. (13) Standing alone, that figure suggests that community corrections is a cost-saving alternative to incarceration--and community supervision often is less costly when it averts the need for a harsher sanction. The picture becomes more complicated, however, when we consider how often terms of community supervision lead to terms of imprisonment.
Estimates suggest that half of the people admitted to U.S. jails, and more than one-third of those admitted to prison, arrive there as a result of revocation from community supervision. (14) While that figure is dramatic in its own right, it obscures the wide variance between state revocation rates. In states such as New Hampshire, (15) North Carolina, (16) and Wisconsin, (17) more than half of new prison admissions result from revocation of community supervision, not from conviction for a new crime. These statistics suggest that rather than serving as an alternative, community supervision often is no more than a deferred sentence of incarceration.
Increasingly, state and county governments have begun to notice the link between high revocation rates and prison growth. In response, many have enacted new laws aimed at reducing revocation rates by limiting the ability of courts and correctional agencies to imprison people who violate the conditions of their release. Early assessments suggest that these legal changes have met with some success in reducing the number of revocations in adopting jurisdictions. However, they often have been implemented hastily, with the primary goal of reducing the immediate costs associated with confinement, rather than examining why rule violations are so prevalent, or what kind of limitations on revocation may be justified as a matter of principle.
This Article challenges the conventional thinking that expanding the use of community supervision will necessarily mitigate the problem of over-incarceration. It examines why probation and parole--the most popular alternatives to incarceration--have become important drivers of prison growth and concludes that the best way to reduce prison populations is to limit, rather than expand, their use. While recognizing the continued vitality of community supervision as a sentencing option, the Article suggests that other alternatives to prison, including conviction alone, fines, and even short jail terms, may be preferable sentences in many cases.
Following this Introduction, Part II reviews the history and organizational structure of community supervision in the United States. Part III examines the reasons for high revocation rates, ones that are rooted in the legal framework that governs community supervision. Those include the conditions that are imposed, the methods of supervision that are utilized, and the responses that are available for responding to violations of the terms of release. Part IV discusses several ways in which states have tried to reduce high revocation rates. This section challenges many of the principles underlying these efforts, and questions their effectiveness. Part V then introduces a new framework for thinking about the role of community supervision in efforts to reduce overreliance on prison. It proposes that the role of supervision should be a limited one--limited in terms of the number of people serving terms of release, the conditions to which they are made subject, and the periods of time they remain under state oversight. Using community supervision in this way will provide for wiser stewardship of limited correctional resources and avoid adding to the problem of over-incarceration.
HISTORY AND STRUCTURES OF COMMUNITY SUPERVISION
The term "community supervision" describes the practice of allowing a convicted criminal defendant to serve his sentence in the community, either as an alternative to incarceration or as part of a transition from prison back into ordinary life. A community sentence that is imposed in lieu of imprisonment is called probation; a community supervision term that follows a period of imprisonment is most commonly referred to as parole or supervised release. (18) Regardless of whether a term of community supervision is preceded by a prison sentence, it is always structured as a form of conditional release: during the period of community supervision, a convicted individual must comply with state-imposed conditions in order to retain his liberty. Failure to do so may result in imprisonment.
Noncustodial sanctions have always been a part of the criminal law. Historically, these often took the form of corporal punishments, such as flogging or branding, as well as public humiliations, banishment, and fines--all sanctions that were imposed quickly and required no ongoing oversight from the state. (19) Community supervision, with its often lengthy periods of state control, is a relatively recent development, originating in the mid-1800s and later gaining widespread acceptance and use. (20)
In the United States, community supervision varies tremendously from one jurisdiction...