Bipartisan criminal justice reform is hot right now and—rightly—a key issue in the 2020 presidential race.
On May 22, Sens. Cory Booker (D-N.J.) and Richard Blumenthal (D-Conn.), as well as Rep.Tony Cárdenas (D-CA), reintroduced the Reverse Mass Incarceration Act. Like the First Step Act, which passed last fall, this new bill aims to fix America’s broken criminal justice system.
The Reverse Mass Incarceration bill offers $20 billion in federal money over 10 years to states that decrease their prison populations by at least 7% over three years, while also keeping crime rates low.
Although the latest bill is well intended, we should not be lulled into the belief that the system will be much better with these laws on the books. Meaningful reform is impossible unless we also reform the most common and fastest-growing form of punishment in the United States: probation, parole, and other forms of community supervision. There are nearly 4.5 million adults in the United States under community supervision—more than twice the number in prisons and jails.
Initially intended as an alternative to incarceration, community supervision rendered the system one of the key drivers of mass incarceration. It imposes a dizzying array of technical requirements that are increasingly enforced through highly intrusive, technologically sophisticated devices, such as constant electronic monitoring, peddled by private vendors who stand to profit greatly.
In turn, judges punish these easily-detected violations with harsh “backup time” sentences. In some states, as many as 50% of people behind bars are there for violations of probation or parole—violations often unrelated to public safety or criminal acts.
Across Party Lines
Like mass incarceration, this virtual panopticon disproportionately impacts communities of color. But it’s not just Jay-Z who critiques the probation-industrial complex. From Van Jones to the conservative criminal justice reformer Marc Levin, and even leading probation and parole officials, there is a growing consensus that probation and parole are dysfunctional.
At the same time, there is almost no evidence that increased surveillance, like electronic monitoring, improves outcomes.
As a former juvenile defense attorney, I saw how probation—and increasingly electronic monitoring—meant that my clients spent months cycling in and out of jail for violating one of the roughly 41 rules they were expected to follow. And each time my clients went to jail, they fell behind in school, lost mentoring and job opportunities, and their relationships with friends and mentors suffered.
At the same time, their families were billed $15 a day for electronic monitoring, $90 a month for probation supervision, and $25 for each night in jail. California and Nevada no longer imposes these fees in juvenile court, but most states do—both in juvenile and adult court.
While trading mass incarceration for mass supervision is not the answer, new reform-minded laws may do just that.
For example, the First Step Act calls for electronic monitoring as an alternative to jail and, like the Reverse Mass Incarceration Act, sets no limits on the expansion of community supervision. And despite national bipartisan efforts to regulate other forms of government surveillance like facial recognition software, there is no effort to regulate, or even track, the quickly-expanding electronic surveillance of people on probation and parole.
Some may ask: isn’t probation or electronic monitoring better than prison?
Not a Real Alternative
This question assumes that everyone on probation or an electronic monitoring ankle bracelet would otherwise be in prison. Virtually no data supports that claim. We have little proof that these “alternatives” to incarceration are, in fact, used as an alternative and not simply an additional “add on” condition on top of an existing sentence.
Trading one broken system for another is also not progress. As Michelle Alexander recently observed in the context of electronic monitoring, “digital prisons are to mass incarceration what Jim Crow was to slavery.”
Real progress requires reducing all forms of over-punishment in the United States—not just prisons. Community supervision should be a precisely-targeted intervention reserved only for people who truly need it.
The good news is that reforming community supervision is straight forward. Most experts agree that when it comes to probation and parole, less is more: People tend to do better with shorter amounts of time on community supervision and with fewer restrictions.
At the same time, eliminating probation “user” fees and regulating electronic surveillance could go a long way in curbing harmful practices. In states like Illinois and New York, proposed legislation increases accountability and reforms parole and electronic monitoring. And people most impacted have plenty of additional ideas for reform.
The real question is whether lawmakers and presidential hopefuls will listen.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Kate Weisburd is an associate professor at the George Washington University Law School where she teaches criminal law and researches the use of surveillance technology in the context of probation and parole. Previously, Professor Weisburd worked as an attorney at the East Bay Community Law Center in Berkeley, California, where she represented young people in juvenile court and school discipline hearings.