Why Most People End Up Back In Prison

Lawrence Hartman is the author of GUILTY TILL PROVEN INNOCENT: A Shocking Inside View Into America’s Failing Justice System (now available online at Amazon) and may be contacted by email at Lawrence@ComplianceMitigation.com to discuss your legal mitigation needs.

People under supervision (a/k/a probation) are expected to follow a set of rules, such as keeping appointments with probation or parole officers, maintaining employment, not using alcohol or other drugs, and paying required fees. Failure to religiously follow all of the rules — referred to as technical violations — may result in revocation of the supervision and in some cases a term of incarceration. A 2019 report by the Council of State Governments showed that technical violations account for almost 1 in 4 admissions to state prison and $2.8 billion in annual incarceration costs.

Such technical revocations are costly, and failure to comply with supervision conditions does not necessarily indicate that a person presents a public safety threat or will engage in new criminal activity. Further, although studies have not demonstrated that incarcerating people for breaking the rules of supervision reduces recidivism, they have found that long periods of incarceration can make re-entry more difficult, causing people to lose their jobs, homes, and even custody of their children.

This brief examines policies that states implemented through the Justice Reinvestment Initiative (JRI) that have reduced technical revocations, highlights some of the results of those changes, and provides sample legislation for each policy. JRI is a public-private partnership among Pew, the U.S. Department of Justice’s Bureau of Justice Assistance, state governments, and technical assistance providers; it seeks to improve public safety and control costs by prioritizing prison space for people sentenced for the most serious offenses and investing in evidence-based alternatives to incarceration and other programs shown to reduce recidivism. These state efforts have not been without challenges, and more can be done to improve supervision outcomes. Nevertheless, the examples provided show that states can take meaningful steps to reduce prison populations and protect public safety while strengthening systems of supervision and services in the community.

Reforms aim to improve supervision outcomes

Research and experience have revealed effective supervision strategies that protect public safety, reduce costs, and help people on parole and probation get their lives on track. Increasing the number of people who successfully complete supervision and reducing revocations became goals of many states participating in JRI. In corrections system analyses conducted during state JRI processes, many states identified supervision revocations for technical violations as a driver of prison admissions. For example:

• In Alabama, people who violated the conditions of their supervision accounted for 40 percent of prison admissions in fiscal year 2013.
• Mississippi found that between fiscal 2002 and 2012, the number of prison admissions resulting from revocations of parole or probation climbed 84 percent. In 2012, they exceeded admissions for new sentences, and 3 in 4 were for technical violations.
• In Utah, 43 percent of people admitted to prison in 2012 had no new criminal conviction, up from 38 percent in 2002. Eighty percent of people on probation and 63 percent of those on parole who were sent to prison for technical violations were originally convicted of nonviolent crimes.
• Probation revocations accounted for more than half of North Carolina’s new prison admissions in fiscal 2009, and more than three-quarters stemmed from technical violations.

Through JRI, over 30 states passed policies to reduce the number of people in prison for technical violations while protecting public safety. However, many states still are struggling with this issue.

By improving community corrections and directing resources to those who need them, states can provide long-term reductions in recidivism. As part of their JRI reform packages, 35 states enacted policies to increase success rates among people on supervision and develop alternatives to technical revocation. (See Table 1.)

These policies fall into four categories:

• Tailoring supervision strategies toward behavioral change for those at the highest risk of reoffending.
• Providing positive incentives for people on supervision.
• Using administrative responses to violations.
• Capping or reducing jail or prison time for violations and limiting the conditions under which incarceration may be used to respond to a technical violation.

Policy examples

The following sections provide descriptions of each policy area, the evidence base, and evaluated state examples that demonstrate impacts on incarceration and public safety.

Tailoring supervision strategies to focus on behavioral change for those at the highest risk of reoffending

Research has shown that when supervision agencies prioritize staff time and dollars for those who are most likely to reoffend, outcomes improve for people on probation and parole. One primary evidence-based supervision practice that, when applied correctly, can help states better target resources and lead to substantial reductions in recidivism is the risk-need-responsivity (RNR) principle.7 The principle is an assessment methodology that enables parole and probation officers to develop case plans that include programming and treatment tailored to individuals’ needs and direct more intense supervision toward those deemed higher risk. Using the RNR principle, agencies assess individuals on the following measures:

• Risk: Which of the static factors known to boost the risk of reoffending, such as criminal history and age of first arrest, are present in this individual?
• Need: Which dynamic needs, such as substance use disorders, could be addressed to reduce the likelihood of reoffending?
• Responsivity: What types of treatment and programming would be most effective in helping this person be successful on supervision, given his or her learning style, experiences, etc.?

Interventions based in RNR principles that have produced the most consistently positive results provide education, treatment for substance use disorders and other health problems, and strategies to change thinking and behavior away from crime.8 Increasing the rates of participation in such programs has been shown to reduce recidivism, while supervision without treatment or risk-focused programming does less to improve outcomes and can increase technical violations.

Additionally, most people who reoffend after leaving prison do so within a year of release. Directing community supervision resources and support services toward the first days, weeks, and months post-incarceration or of a sentence to probation is a cost-effective approach to improving outcomes for public safety and people on supervision.

JRI example

North Carolina

North Carolina’s 2011 Justice Reinvestment Act requires probation officers to assess people on supervision for their risk of reoffending and to supervise them accordingly. It also sets a caseload goal of no more than 60 high- and moderate-risk individuals per probation officer. In addition, every person incarcerated for a felony conviction must receive nine to 12 months of post-release supervision. Together with other reforms, these changes contributed to a 50 percent decline in revocations and a drop in overall prison admissions of 21 percent.11(See Figure 1.) Further, the number of people entering prison from probation on new felony offenses decreased from 1,505 in 2013 to 1,370 in 2016.12 Data further indicate that the adoption of risk-based supervision in the state has improved outcomes for individuals across risk categories.13

Earned compliance credits and other positive reinforcements

Earned compliance credit policies enable people on supervision to earn time off their sentence for every month in which they comply with supervision conditions. States use various formulas to determine the circumstances under which individuals may earn and lose credits and how much time they will receive off their terms per credit. In addition to acting as an incentive, earned compliance credits also help agencies reduce caseloads and direct limited resources to people at the greatest risk for reoffending.

Considerable research and the opinions of those on supervision indicate that earned compliance credits and other incentives such as gift cards or other nominal rewards, verbal praise or acknowledgement, and adjustment of supervision conditions are effective. In one survey, people on parole said that early discharge was a strong incentive to participate in programming and comply with supervision conditions.14 Another study found that adding positive reinforcements increased the odds of success on intensive supervision.15 In Utah, 70 percent of people on supervision said that incentives as simple as verbal praise and recognition motivated them to improve their behavior.16 Further, a recent 14-state evaluation of people on supervision who were convicted of serious and violent offenses found that praise from a supervision officer significantly reduced rates of substance use and criminal reoffending.17 In addition, practitioners have found that involving individuals on supervision in the process of designing incentives can enhance their effectiveness.18

Research also indicates that the use of proportional and timely sanctions in conjunction with rewards is an effective strategy to promote compliance. The optimal ratio is four (or more) rewards per sanction.19

JRI example

Missouri

Legislation passed by the Missouri Legislature in 2012, H.B. 1525, created a policy that allows people to earn 30 days off their supervision time for every full calendar month they remain in compliance. Eligible individuals include those convicted of lower-level felonies who had been under supervision for at least two years.

In the first three years of the program, 36,000 people reduced their terms by an average of 14 months, cutting the supervised population by 18 percent and caseloads by almost 16 percent. People released through the earned compliance credit policy had no statistically significant increase in two-year reconviction rates compared with those released before the policy.20 (See Figure 2.)

Administrative responses to technical violations

Administrative responses to technical violations give supervision officers alternatives to revocation to prison or jail that can be implemented without a court or parole board hearing. Agencies often use a grid or matrix that weighs the seriousness of the violation and the person’s risk level to determine the appropriate sanction, such as an earlier curfew, community service, enhanced supervision, home detention, a short jail stay, or confinement in a facility designed to address underlying causes of the violation.21 For violations that stem from an identified need, officers can also use nonpunitive responses, such as substance use treatment in response to ongoing positive drug tests. In some states, administrative sanctions have also been authorized for low-level offenses in lieu of formal criminal charges. For best outcomes, responses should include sanctions and incentives.

Violating a condition may not mean the person on supervision has become a public safety threat or will engage in new crime.22 The use of administrative responses is grounded in evidence showing that the certainty of punishments is more important than their severity.23 Learning theory — the idea that people will choose behaviors that result in positive outcomes over those that have negative consequences — also supports the use of administrative responses, particularly those that include incentives for compliance and meeting goals.24 Further, many violations reflect long-standing and chronic behaviors, which can be most effectively addressed with a combination of accountability through fair, quickly imposed responses and incentives and programming that offers motivation to change negative behavior.25 Research indicates that community-based responses are at least as effective in changing behavior and promoting supervision success as jail terms and cost less.26 In fact, one study indicated that jail sanctions can increase the likelihood of future revocation, rearrest, and reconviction.27

However, studies show that statutory or procedural change alone is not enough. Implementation is also important: Buy-in from community corrections staff, strong teamwork, collegiality, and communication have been shown to play critical roles in the success of administrative sanction policies.28

JRI examples

South Carolina

As part of its 2010 JRI reform package, S.B. 1154, South Carolina instituted policies to reduce the number of people incarcerated for supervision noncompliance. The law allows officers in the Department of Probation, Parole, and Pardon Services to use administrative responses to violations in lieu of prison. The sanctions imposed by officers may not be more restrictive than those available to the Parole Board and the courts and may not include revocation. Other provisions to address revocations include improving parole supervision and providing compliance credits. The portion of the act related to administrative sanctions went into effect in January 2011.

A 2017 Urban Institute evaluation of South Carolina’s reforms concluded that between fiscal 2010 and 2015, the use of administrative responses increased 42 percent: Those who began supervision after implementation of the law were 33 percent less likely to be incarcerated or reincarcerated after one year than those who began in 2010.29 And more recent state data show that this trend has continued. The number of revocations resulting in prison admissions in 2018 was less than half of the 2010 figure.30 (See Figure 3.) The state estimated that during that same period it saved over $39 million by revoking 1,633 fewer people from supervision.31 Further, analysis of FBI crime data shows that both the violent and property crime rates in South Carolina dropped by more than 15 percent over the same five-year span.32

Texas and Pennsylvania

Several states developed specialized centers, including day reporting centers and secure residential facilities, where people who violated conditions of their supervision could be sent in lieu of prison or jail. The availability of appropriate, quality treatment and programming is critical to the success of these centers.33 In Texas from 2006 through 2008, individuals were sent to intermediate sanction centers for an average stay of 60 days, during which they received targeted services for needs known to be associated with higher levels of criminal behavior.34 These facilities increased availability of treatment and facilitated a reduction in parole revocations of 25 percent. Similarly, a study of a western Pennsylvania program showed that those sent to a day reporting center had fewer rearrests than members of a control group who received a sanction including incarceration.35

Capping or reducing prison or jail time for technical revocations

Sixteen states have enacted legislation capping the length of time a person could be incarcerated for a technical revocation. How and when such limits are used and the maximum period of incarceration allowed vary significantly across states. Often, the allowable time behind bars increases with the number of revocations. Some states also restrict the conditions under which a person could be incarcerated for technical violations, such as limiting it to commission of a new crime or after multiple technical violations.

In general, sentence severity has not been found to affect the level of crime in society: Longer, more costly prison stays do not reduce reoffending more than shorter, cheaper ones, while consuming resources that could be directed toward more evidence-based responses.36 And incarceration is not more effective in reducing recidivism; in fact, one study found that people on probation who served a period of confinement had higher rates of recidivism than those who were sanctioned and remained in the community.37

JRI example

Louisiana

Louisiana’s 2007 reform legislation, Act 402, set a 90-day limit on incarceration of people on probation or parole for nonviolent offenses who violate their supervision terms. A 2014 Pew-commissioned evaluation of this cap found that reducing the amount of time people spent incarcerated for a revocation did not negatively affect public safety. (See Figure 4.) Comparisons of similar populations whose supervision was revoked before implementation of Act 402 (between 2000 and 2004) and afterward (September 2007 to April 2012) show that a smaller share of the latter group than of the former (6.2 versus 7.9 percent) was incarcerated for a new offense during a one-year follow-up period. The proportion of those whose supervision was revoked and who were sent to prison for technical violations after the act went into effect was higher (21.4 versus 24.4 percent), possibly because they spent more of the follow-up period under supervision. In addition, the 90-day cap resulted in approximately 2,034 fewer nights spent in jail and prison each year and saved an average of $17.6 million in annual corrections costs.38

The public strongly supports reducing technical revocations

A 2016 public opinion poll in Maryland showed that across age groups and political ideologies, most voters, including a majority of crime victims, did not believe people should be sent to prison for the remainder of their sentences for technical violations.39 More than 6 in 10 respondents (62 percent) said people on parole or probation who commit technical violations should serve either no prison time or no more than 45 days. (See Figure 5.)

States face ongoing challenges in reducing revocations

Reducing the number of supervision revocations for technical violations is a complex process involving multiple stakeholders at different levels of government. Although some states have been able to do this successfully and safely, others have faced challenges such as:

• A lack of clear direction to correctional and court personnel that slows or prevents adoption of new policy, leaving in place revocation practices that initially led to high revocation rates.
• Slow implementation of evidence-based supervision models by probation and parole agencies and accompanying culture shifts.
• Inadequate resources to address the opioid crisis, leading to unanticipated increases in violations.

Some states have addressed these challenges by:

• Reinvesting JRI savings into treatment and other evidence-based programs that have been shown to improve outcomes for people on supervision.
• Providing resources and establishing requirements for officer and manager training on evidence-based practices.
• Instituting reporting requirements that track adherence to guidelines for technical violation revocations and requiring the use of high-quality, evidence-based practices.
• Creating incentives for supervision officers for reducing returns to prison on technical violations and using evidence-based practices.
• Providing treatment and services before release from prison for those entering supervision and developing case plans with the supervision agency to assist in the transition back into the community.

Conclusion

Parole and probation provide an alternative to incarceration for people who the courts and correctional authorities determine should be supervised in the community. They also offer an opportunity to deliver services that address underlying issues such as substance use and mental health disorders. People under supervision need to be held accountable for failing to abide by the rules, but revocations to prison and jail strain correctional systems and consume scarce resources that could be spent to promote public safety. Improvements such as tailoring supervision strategies toward reducing reoffending, providing positive incentives, using administrative responses, and limiting the use of incarceration for violations are effective in reducing technical violations, helping states safely reduce prison populations, and increasing the number of people who successfully complete community supervision.