Jail Populations Probation Sanctions Racial Disparities October 28, 2021
Probation is the most common sentence in the United States. In 2019, one in 73 adults was on probation, and there were almost 1.5 million more people on probation than in jails and prisons combined. Although the problems of “mass supervision,” particularly the way probation violations contribute to state prison populations, have begun to draw greater critical attention, there is very little information about how probation contributes to local jail populations.
A new report released by the Vera Institute of Justice, with support from the Safety and Justice Challenge, focuses on the ways probation can affect jail populations and what can be done differently.
Research shows people are frequently sentenced to overly long terms of probation and have to comply with an average of 10 to 20 conditions, which are often vague and sometimes conflict with each other. The difficulty of complying with all of these conditions for long periods of time frequently leads to “technical” violations (violations of supervision conditions that are not based on new criminal conduct) and can lead to revocation of probation and imposition of a jail or prison sentence. Nationally, only around 60 percent of people under supervision complete probation successfully.
Probation is also marked by significant racial disparities. Despite being more likely to be sentenced to jail or prison than probation, Black people are still over 2.6 times more likely than white people to be on probation. When they are sentenced to probation, Black people tend to be given more conditions and to be on probation for longer terms than similarly situated white people. They are also more likely to have violations filed against them, to be sanctioned with incarceration, and to have probation revoked and be sentenced to incarceration.
There are multiple ways probation supervision can result in jail incarceration, such as detention of people waiting for court hearings on violations alleged by a probation officer or sentencing of people to jail for probation violations. There is some evidence that increasing numbers of people are choosing to accept a jail sentence up front to avoid probation, as they view probation as too difficult to comply with and likely to result in eventual incarceration anyway.
National data provides almost no details on how probation contributes to jail populations. To begin to remedy this gap, we analyzed jail data from nine jurisdictions participating in the Safety and Justice Challenge. This analysis showed admissions to jail for probation violations vary from a low of 3.9 percent to a high of 23.8 percent. The data also showed that length of stay (LOS) for people with probation violations was much longer than for those held in jail for other reasons. Because of this extended LOS, on any given day, the proportion of people in jail for probation violations greatly exceeded their share of jail admissions. The probation violation ADP ranged from 9.1 percent to just over 50 percent. Our analysis also confirmed significant racial disparities: across the sites for which race data was available, Black and Native American people were held in jail for probation violations at rates far higher than their representation in the general public.
We also highlight strategies in two SJC sites to reduce probation violation populations in jail. For example, St. Louis County placed three full-time probation staff members in their jail to meet right away with people who come in on violations and work on release plans and recommendations that can be delivered directly to judges. This has led to more judges ordering release based on a probation officer’s written recommendations rather than waiting to hold a preliminary hearing.
Allegheny County, meanwhile, adopted multiple strategies to try to prevent people from going to jail on probation detainers and to get those who are jailed released more quickly. A new policy makes probation detainers an option of last resort, as probation officers in most cases must exhaust all other options for keeping people in the community before issuing detainers, while also requiring earlier release planning and regular follow up for people who do get detained. Allegheny County also developed procedures to ensure that probation violations and new charges are resolved at the same hearing, rather than waiting an average of two months between separate hearings. Finally, the County adopted criteria for termination of probation agreed on by the public defender’s and district attorney’s offices, which led to judges ending probation early for more people who were doing well under supervision.
To better understand how probation affects jail populations, probation agencies and local jails should work together to combine data, disaggregated by race and ethnicity, to ensure that they can determine who is in jail for probation violations; whether the violations are all technical or include new charges; whether people are being detained pending a violation hearing, serving a sentence as a direct sanction for a violation, or serving a previously imposed jail sentence after probation has been revoked; and how long people are spending in jail pending hearings and/or after being sentenced for violations.
Because probation can be a significant driver of jail populations, jurisdictions should work to reduce the number of people detained for violations as well as the time they stay in jail for those violations. Sites should consider using alternative non-carceral sentences instead of probation, limiting the length of probation, reducing and tailoring the number of probation conditions, reducing the frequency of reporting and allowing remote reporting, using summonses instead of warrants for violations, eliminating or severely restricting the use of detainers, and using only non-carceral sanctions for technical violations.