Written by Sarah Stuart, L’26
Few subjects haunt the American consciousness like crime. From Richard Nixon’s “Law and Order” campaign in 1968, to the 1994 Crime Bill and the uprisings of 2020, the national spotlight has remained on criminal justice for decades.[1] In the midst of this polarizing conversation sits probation: rarely discussed when compared with pressing injustices such as police brutality and mass incarceration yet silently impacting the lives of 1 in 72 Americans, extending maximum sentences, and bolstering the prison system with thousands of arrests for technical violations.[2] Widespread and deeply flawed, probation upholds the violent inequalities present in more visible elements of the criminal justice system and results in enhanced surveillance of already over-policed populations.[3] Despite this, probation remains one of the few alternatives to incarceration at our disposal, and its potential to address the problems of the carceral state should not be ignored. For these reasons, now is the time to turn our attention to the millions of Americans in invisible prisons across the country and bring probation into our conversation about crime.[4]
First adopted in Massachusetts in 1878 as a method of rehabilitating criminal offenders on an individual level, probation represents the promise of addressing crime outside of prisons.[5] While serving a probation sentence, (particularly if the sentence is exclusively for probation with no time in prison) individuals remain integrated in their communities and have access to positive forces that can address the factors behind their offense while preventing future offenses.[6] These rehabilitative forces include family, education, employment, and substance abuse and mental health treatment, as well as, ideally, the support of a probation officer focused on the individual’s wellbeing.[7] The individualized, community-based approach to crime that probation offers on its face could challenge our notions of incarceration and lead to better outcomes if the inequality at its core is addressed; it is important to remember probation’s touted goals while understanding the issues that prevent it from achieving them.
Despite having the potential to reform the carceral state, probation reflects all of the disparities of the system on a wider scale. To demonstrate this, consider the fact that Black Americans represent 28 percent of people on probation, and are 2.6 times more likely to be on probation than white Americans.[8] This, of course, mirrors racial discrepancies found across the entire justice system, with Black Americans representing 38.8 percent of the federal prison population.[9]Further, people of color comprise 62 percent of all people on probation and parole, and racial inequality is compounded by social class as many people receive probation sentences for failure to pay fines.[10] These disparities are made more significant by impacting a much larger population than that of the nation’s prisons, with 3.7 million Americans on probation and 1.2 million Americans incarcerated in 2021.[11] Without yet discussing the unequal realities of probation and its contributions to the carceral population, these statistics already show the discrimination that exists at the heart of probation.
The overrepresentation of people of color and the poor is compounded by disparities in sentencing and conditions. Individuals from minoritized groups are much less likely to be granted probation-only sentences than individuals from privileged groups, and this remains true across all categories, including race, class, age, educational attainment, and citizenship.[12] For example, high school graduates are approximately 17.4 percent more likely to be granted a probation-only sentence than individuals who have not completed high school, allowing them to remain in the community (albeit under supervised conditions).[13] Further, probation sentences tend to be longer for individuals from marginalized groups, and frequently come after periods of incarceration, resulting in higher levels of supervision with less social support.[14] While serving longer sentences, marginalized individuals are subjected to more probation conditions that can be difficult to adhere to due to financial constraints, untreated addiction, or the conditions of the community, among other factors.[15] These conditions are often worded vaguely to afford giving discretion to the probation officer, and can include terms such as “avoid[ing] a vicious lifestyle” and “avoid[ing] persons or places of disreputable or harmful character.”[16] Facing higher scrutiny than privileged groups, marginalized groups are more likely to be subject to probation revocations and violations, resulting in a longer probation sentence (up to the reimposition of the entire original sentence) or incarceration.[17]
Ultimately, one-third of all people on probation eventually violate a condition of their sentence, and 350,000 people are incarcerated for probation violations every year – the end result of a prejudiced system.[18] After being sentenced to probation for longer periods on average than their privileged counterparts, marginalized individuals are subjected to intense surveillance of their personal lives where mistakes that would not otherwise violate the law – including interacting with “harmful” people or unemployment – either lengthen their surveillance or result in them being locked behind bars.[19] Far from rehabilitating, probation fuels incarceration, and exacerbates the violent over-policing of marginalized groups across the country.
While not as visible as prison walls or police abuse, probation has clearly earned a spot in our national conversation about crime through its reformist potential and oppressive reality. Though probation has been used to maintain the carceral status quo, it was originally intended as a rehabilitative tool that would keep criminal offenders involved in their own communities and it is not too late for it to achieve its intended purpose. By addressing systemic inequalities and focusing on the individual needs of people involved with the justice system, we can transform probation into a true alternative to incarceration rather than its silent partner.
Photograph of a Probation Officer Completing a Compliance Check, San Bernardino County Probation, https://sanbernardinocountyprobation.org/wp-content/uploads/sites/81/2022/04/compliance-check-1-Y.jpg (last visited Sep. 21, 2024).
[1] Olivia B. Waxman, Trump Declared Himself the ‘President of Law and Order.’ Here’s What People Get Wrong About the Origins of That Idea, TIME (Jun. 2, 2020), https://time.com/5846321/nixon-trump-law-and-order-history/.
[2] States Can Shorten Probation and Protect Public Safety, Pew (Dec. 3, 2020), https://www.pewtrusts.org/en/research-and-analysis/reports/2020/12/states-can-shorten-probation-and-protect-public-safety.
[3] See id.
[4] Olinda Moyd, Racial Disparities Inherent in America’s Fragmented Parole System, 36 Crim.l Just. 6, 6 (2021)..
[5] Charles W. Webster, The Evolution of Probation in American Law, 1 Buff. L. Rev. 249, 252 (1952).
[6] See Ronald P. Corbett, Jr., The Burdens of Leniency: The Changing Face of Probation, 99 Minn. L. Rev. 1697, 1702 (2015).
[7] See id.
[8] Id.
[9] Inmate Race, Fed. Bureau of Prisons, https://www.bop.gov/about/statistics/statistics_inmate_race.jsp (last visited Sep. 16, 2024).
[10] Nazgol Ghandnoosh, One in Five: Ending Racial Inequity in Incarceration, The Sentencing Project (Oct. 11, 2023), https://www.sentencingproject.org/reports/one-in-five-ending-racial-inequity-in-incarceration/; see Austin McCullough, Private Probation and Incarceration of the Poor, 53 Am. Crim. L. Rev. 17, 20 (2016).
[11] Supra note 10.
[12] See U.S. Sentencing Comm’n, Demographic Differences in Federal Sentencing, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2023/20231114_Demographic-Differences.pdf, at 25.
[13] Id.
[14] See supra note 2.
[15] See Fiona Doherty, Obey All Laws and Be Good, 104 Geo. L. J. 291, 303-16 (2016).
[16] Id.
[17] See supra note 2.
[18] Jacob Schuman, Criminal Violations, 108 Va. L. Rev. 1817, 1819 (2022).
[19] See supra note 15.