THE PROBATION QUAGMIRE: WHAT WAS ORIGINALLY INTENDED AS AN ALTERNATIVE TO INCARCERATION HAS BECOME A SYSTEM FOR MASS STATE CONTROL.

• Author: Ciaramella, C.J.

SHORTLY AFTER BECOMING a mother in summer 2013, Jennifer Schroeder was arrested for a drug charge. Schroeder, who lives outside of Minneapolis. Minnesota. pleaded guilty and was sentenced to serve 365 days in Wright County Jail. And 40 years on probation.

Probation terms vary by state. They can include curfews, restrictions on travel, submitting to warrantless searches, paying court fees, holding down a job. and abstaining from alcohol and drugs, to the point of being prohibited from even entering a bar. For Schroeder it means a near-lifetime ban on voting or owning a gun, and the looming threat of eight years behind bars if she ever violates her terms. For the privilege of being subjected to all this, there are also fees owed to the state--all to live on the edge of a life-destroying prison sentence.

"The fear that you live with, it diminishes as time goes by a little bit. but it's always there--that I could be in the wrong place at the wrong time and, and have somebody else do something that I could go to prison for," Schroeder says. "My sentence would be 98 months if I ever violate my probation, no matter what. It's always a scary thing."

In most other states, Schroeder's possible probationary term would have been capped at around five years. But until 2020, Minnesota's probation terms could be as long as the maximum prison sentence you could receive for the crime. Minnesota has since changed its sentencing guidelines to cap the amount of time someone can be sentenced to probation for a felony offense to five years, thanks in large part to Schroeder's story and her advocacy. But that change did not apply to sentences issued prior to the legislative change. As it stands, Schroeder won't be off probation until she's 71 years old, in October 20S3.

"I don't think I've ever met anybody," Schroeder says, "even people who have murdered other people or assault or arson, or any big crimes I can think of, that has a sentence that long."

Schroeder's sentence is extreme, but the statutory framework that allows for such lengthy supervision terms is just one of the problems with America's sprawling probation systems.

While many gauge the criminal justice system by the population of jails and prisons, probation affects more lives. And while it is clearly less punitive than being locked in a prison cell, it is still a form of onerous correctional control. Probation is supposed to help people get their lives back on track while staying accountable and keeping the public safe, but in many states offenders are set up to fail in systems that can't or won't give them the opportunity to succeed.

It's a scattershot array of state-run systems that, over nearly 200 years, has evolved away from its original purpose of providing public accountability and rehabilitation without punishment, quietly transforming into a secondary criminal justice system hiding in plain sight. As it has evolved, it has lost much of its original purpose, leaving even many of the system's enforcers uncertain about a fundamental question: What is probation supposed to be for?

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PROBATION WAS ORIGINALLY established as a way for community members to keep an eye on those who committed petty offenses or misdeeds--to hold someone accountable without punishment.

John Augustus, a Massachusetts teetotaler who believed in reforming alcoholics, became the U.S.'s first probation officer in 1841, when he bailed out a drunkard and returned the man to court three weeks later, sober and cleaned up. He would go on to post bail for nearly 2,000 people over the next 18 years, and he kept detailed notes on his efforts to steer them back to virtuous living, establishing some of the major principles of probation. According to his notes, only 10 of his probationers absconded.

"That just sort of became the birth of probation," says Kelly Mitchell, the executive director of the Robina Institute of Criminal Law and Criminal Justice, a nonpartisan research institute at the University of Minnesota Law School. "It was intended originally to be an alternative to a prison sentence. And I'd say that as it has evolved over time, it's become a sort of punishment in and of itself."

The use of probation accelerated alongside the huge rise in prison populations in the 1980s and 1990s. "If you go all the way back to 1990, there were a little over 1 million people on probation," says Mitchell. "By 2007, it was 4.3 million people. It expanded dramatically at the same time that prison populations expanded, and it's been going down since then."

At the end of 2020, an estimated 5,500,600 people were under adult correctional control in the U.S., according to the Bureau of Justice Statistics. This includes people incarcerated in a jail or prison and those on probation or parole, which are commonly lumped together under the term community supervision.

Of that 5.5 million, more than half--3,053,700 people--were on probation. That's about one in 84 American adults. Probation numbers have been steadily declining over the last decade, but that's still a staggering amount.

Schroeder joined their ranks in 2013, when police caught her with methamphetamine and a newborn in her car. Schroeder was already in a court-ordered recovery plan, having tested positive for drugs at the hospital after giving birth.

"I was an addict, obviously," Schroeder says. "I quit using, but I was still selling drugs because that's all I knew how to do to make money."

Schroeder pleaded guilty to first degree sale of drugs, kept working on stay ing sober and complying with her case plan, and threw herself at the mercy of the judge.

"I'm not a monster or horrible person, you know?" she says. "I've had a lot of things happen. Drug use was a normal thing in my family. I used with my parents, and it was just kind of what we did."

In an unlucky twist for Schroeder, the judge in her criminal case was the same as the...