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States Can Safely Cut Probation Terms - The PEW Charitable Trusts

Shorten Probation and Public Safety Repo
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The PEW Charitable Trusts: Jake Horowitz - December 3, 2020

More than 3.5 million, or 1 in 72, adults were on probation in the United States at the end of 2018—the most recent year for which U.S. Bureau of Justice Statistics (BJS) data is available—more than triple the number in 1980. Nationwide, on any given day, more people are on probation than in prisons and jails and on parole combined.

At its best, probation—court-ordered correctional supervision in the community—gives people the opportunity to remain with their families, maintain employment, and access services that can reduce their likelihood of reoffending while serving their sentences. But, as previous research by The Pew Charitable Trusts has shown, the growth and size of this population have overloaded local and state agencies and stretched their resources thin, weakening their ability to provide the best return on taxpayers’ public safety investments, support rehabilitation, and ensure a measure of accountability. One key factor driving the size of the probation population is how long individuals remain on supervision.

A growing list of high-quality studies have shown that long probation sentences are not associated with lower rates of recidivism and are more likely than shorter ones to lead to technical violations—noncompliance with one or more supervision rules, such as missing appointments or testing positive for drug use. Recent research from the Council of State Governments has found that such violations contribute significantly to state incarceration rates and correctional costs: More than 1 in 10 state prison admissions are the result of technical violations of probation rather than convictions for a new crime.

To date, the average length of probation has not been well documented, because data on individual terms has been lacking. To begin addressing this gap and help criminal justice stakeholders better understand how long people spend on probation—as well as the effects of term length on individual recidivism outcomes— The Pew Charitable Trusts conducted an in-depth analysis of BJS data from 2000 through 2018. Additionally, Maxarth LLC examined Oregon and South Carolina data to quantify the potential to reduce probation lengths without increasing re-offending in those states, and the National Conference of State Legislatures (NCSL) reviewed probation sentencing statutes in all 50 states. This report provides a first-of-its-kind national and state-level portrait of the average length of probation and explores whether term lengths can be safely reduced and what options are available for state policymakers looking to improve their system’s outcomes.

Key Findings:

  • Nationwide, the average probation term is just under two years, with substantial variation across states. Average terms range from nine months in Kansas to nearly five years (59 months) in Hawaii.

  • Although the average total time spent on probation declined nationally by roughly 22 days, or about 3%, between 2000 and 2018, it increased in 28 states. In 14 states, average total time on probation rose by more than a third over that span. Across the 250,000 people who exited probation in those 14 states in 2018, that increase adds up to almost 300,000 additional years spent under supervision, in the aggregate.

  • Length of time spent under supervision is a key factor in the size of the probation population. Fifteen of the 22 states that cut their average probation terms between 2000 and 2018 also saw declines in their probation populations. Further, in three of those 15 states, the supervision populations fell even though the number of people entering probation increased. These findings demonstrate that shortening supervision terms is a critical component of efforts to reduce probation populations, allowing agencies to redirect public safety resources to provide the greatest benefit—particularly toward the early months and individuals at highest risk of re-offending.

  • Many people on supervision serve longer terms than are necessary for public safety. An analysis of data from Oregon and South Carolina showed that, among people who were on probation for a year without being arrested, more than 90% could have spent less time on supervision without an impact on recidivism (as measured by re-arrests). Had these individuals served the shortest supervision terms needed to minimize re-offending, the average probation length in South Carolina would have been shortened from 26 to 18 months and in Oregon from 24 to 14 months, without an associated increase in arrests. These reductions would have cut the two states’ average daily populations (ADPs) on supervision by 32% and 44%, respectively, with the declines driven largely by people whose probation terms could be reduced by two or more years. Oregon and South Carolina were chosen for this analysis because of their ability and willingness to provide person-level arrest and probation data and because their average supervision term lengths during the study period (24 and 26.2 months, respectively) were close to the national average of 22.4 months. Although these states may not be representative of the U.S. as a whole, the findings are nevertheless sufficiently compelling to support efforts by other jurisdictions to review their own data and evaluate whether their probation terms are longer than is necessary to protect public safety.

  • Maximum allowable probation sentences vary substantially across states, and few states have statutes that provide for early release. Judges often make decisions about when or whether to terminate supervision early. Therefore, how long people serve on probation may frequently be determined by jurisdiction-specific factors, such as judicial philosophy and culture. This analysis also identified a set of approaches that policymakers can consider as they seek to shift the focus of probation from length of time to achievement of goals related to risk reduction (e.g., rehabilitative programs, drug treatment, and employment), which can in turn safely shorten probation terms, lower recidivism rates, and bolster public safety. These include:

  • Implementing goal-based instead of time-based supervision. Under this approach, probation term lengths are determined by the time necessary for a person to meet obligations and complete programming.

  • Instituting earned time credits. These and other early discharge programs allow people on probation to reduce their supervision term through regular compliance with rules and requirements.

  • Creating mandatory periodic reviews of probation. Administrative or court assessment policies require supervision officers or judges to regularly evaluate people’s progress toward changing their behavior and gauge their readiness to be released, possibly earlier than initially planned, from probation.

No national standard exists for how long probation should be for any given case. Rather, the findings of this and other research suggest that probation should be only long enough to meet its basic objectives of providing accountability proportional to the underlying criminal offense, connecting people to needed treatment and services, and enabling individuals to complete programs such as cognitive behavioral therapy and counseling that have been shown to reduce the risk of re-offending.

Research indicates that people are at the highest risk of re-offending early in their probation terms; for example, among people on felony probation in Oregon who were re-arrested within three years of entering probation, 69% were arrested in the first year. Further, studies show that after the first year, many supervision provisions, such as reporting requirements and community-based services, have little effect on the likelihood of re-arrest, so keeping probation terms short and prioritizing resources for the early stages of supervision can help improve success rates among people on probation, reduce officer caseloads, and protect public safety.

Although probation was originally conceived as an alternative to incarceration, criminal justice officials, policymakers, and other stakeholders increasingly acknowledge that keeping people on probation longer than is needed to deliver public safety benefits carries unnecessary and unproductive costs and wastes scarce resources.6 This report aims to help state and local leaders better understand and address the critical issue of probation length by providing essential data and offering policies and practices that can improve outcomes for probation departments and the people they supervise across the U.S.

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