The case for eliminating criminal probation

This summer, Todd Anthony Shaw chose jail over probation. The 49-year-old rapper more popularly known as Too $hort had failed to complete the community service portion of a 2013 sentence for a driving under the influence charge and as penalty was offered a choice between 90 days in jail or three years of probation. Shaw took the jail time.

Though probation was originally conceived as a way of helping people avoid jail for minor offenses, over time many have come to prefer jail. In 2010, Texas prosecutor Richard Albert estimated roughly 70 percent of people with impaired-driving convictions who came through his office wound up choosing jail time over probation offers. In 2011, Wisconsin Judge Peter Grimm noticed a similar trend with misdemeanor drug cases. “They wind up doing quite a bit of jail time,” he told the Wisconsin Law Journal, “but at least when they are done, they are no longer on probation.”

If serving probation has come to seem more onerous than doing time, it’s worth considering whether the program should exist at all. Today, probation is an extension of the punishment of prison, a threat-driven oversight program. It offers few resources to help probationers learn new job skills or reintegrate into their communities. But probation makes it easier to issue longer prison sentences for simple misdemeanors, because every crime carries an added charge of being a probation violation.

The number of people on criminal probation in the United States has dramatically expanded in the last several decades. According to the Bureau of Justice Statistics, there were 4.7 million people on probation or parole in 2013, with the overwhelming majority — 3.9 million — on probation, a massive increase from just 1.2 million in 1980. Around half of all people released on probation are arrested again within three years, with the majority of violations coming from nonviolent drug offenses. A 2013 study from California found that one in three drug arrests involved someone on probation or parole, compared to one in five of all arrests.

Although placing someone on probation is cheaper than imprisonment, it is still a significant expense. A 2014 Pew Study of 34 American states found the government spent around $2.5 billion on probation and parole programs in 2008 compared to $18.65 billion spent on prisons. As the probationer population has expanded, politicians have imposed major budget cuts on probation programs around the country, with a 20 percent cut in funds for counseling services implemented in 2013 and a 9 percent reduction in federal probation officers and court staff since 2011. With little or no funding to pay for rehabilitative programs such as family counseling, continuing education or subsidized housing, governments are sending probationers into society with insufficient support.

Meanwhile, probationers are also often left with expensive bills for drug tests, court fees or monitoring apps for their phones. Though exact costs vary by state and terms of probation, a report from Human Rights Watch found probation costs are often significantly more than the original fine, even for petty misdemeanors. The report cites as typical the case of a Georgia woman fined $377 for driving without a license who later wound up owing $500 in probation fees. In addition to fees, the burden of having to make regular trips to a facility for check-ins can make it difficult to keep up a regular work schedule.

Probation is a modern phenomenon, first introduced in the late 19th century as a part of a national prison reform movement. Massachusetts was the first state to pass a probation law, in 1878, after a local cobbler found success offering low-level offenders apprenticeships and religious instruction instead of jail. By 1910, 32 states had adopted similar probation laws, and in 1925 the first federal probation law passed through Congress. During the same period, the U.S. prison population more than doubled, growing from 58,609 in 1880 to 128,314 imprisoned in 1910.

In practice, probation often operated along deep race and class lines, keeping many white middle-class people out of prison. At the same time, the infamous convict leasing program was sweeping up thousands of former slaves on dubious charges such as vagrancy and selling their labor to coal mines or railroad construction projects. Implementing a probation system during this time was as much about shielding whites from the specter of prison as it was rehabilitating criminals. As it has evolved, probation has only extended these divisions, deepening the stigma attached to criminality and giving the government more ways to imprison people for petty offenses.

In recent years, as many states have struggled with expensive and overcrowded prisons, expanded probation programs have been suggested as a practical way to keep people out of jail and save states money. Many states have pushed to change the status of a number of felony charges to misdemeanors. California’s recently passed Proposition 47, for example, aims to sentence drug offenders to probation instead of jail. The public policy organization State Budget Solutions makes a typical reform argument, saying probation “keeps family structures together, keeps a potentially productive worker available in the workforce, and allows the offender to be rehabilitated without suffering the stigma of having been in prison.”

These efforts point to a contradiction in the U.S. penal system, in which the ideal of rehabilitation is used to forward a program of perpetually expanding oversight of daily life. Keeping people out of jail certainly preserves family structures, but living under a perpetual fear of re-arrest for smoking a joint, or even just crossing a county line, is hard to frame as rehabilitative.

The better option would be to eliminate probation entirely. In cases with mandatory jail time, imprisonment should be considered sufficient punishment. If 90 days in jail isn’t enough to repay one’s debts to society, three years of haphazard check-ins with a probation officer or a computer kiosk won’t be either. For sentences without mandatory jail time, fines or community service could just as easily take the place of probation, allowing the defendant to make concrete gestures toward restitution while retaining a sense of privacy and autonomy in their personal life.

As government policy, the probation system has never been about helping people move on with their lives after committing a crime. Instead, it has enabled the government to dig deeper into peoples’ private lives in search of punishable flaws. Eliminating probation would immediately reduce the number of ways a person can wind up in prison, make it easier to re-enter society without the stigma of ongoing oversight and free up a huge amount of money that could be used to fund community welfare programs. The alternative is to continue with a biased and socially destructive surveillance program whose main long-term outcome seems to be turning one-time criminals into repeat offenders.