Episode 19: The Problem with Probation

Today I want to talk about probation. For those of you who haven’t been following along up to this point, let me start by explaining what probation is. Probation is a form of supervision by the court. There are two primary ways a person gets on probation. The first way is what’s called a pretrial diversion agreement. If a person is charged with a small crime like a misdemeanor or a low-level felony, the prosecutor will sometimes offer them a deal – you voluntarily accept court-supervision, and in return, your case is dismissed at the end of the supervision period – assuming you complied with all of the terms of your supervision. The other way a person can be placed on probation is through a plea deal or sentencing. This is basically the same thing as the first way, but the difference is that once it gets to this point you’ve plead guilty to a crime, which means you’ll have the crime on your record, rather than a dismissal.

Technically, a judge could give you probation as a sentence when you go to trial and lose. But here’s a little insider information for you. This basically never happens. This is because first - courts are not going to spend their time and money on a trial over a misdemeanor; they’re just not. What they’re gonna to do is keep continuing your court date over and over until you’ve spent so much time in jail that they can eventually just let you out on a time-served plea. I’ve worked in a large jail with an ADP of 1,000 for 9 years, and I have never seen a misdemeanor case go to trial. The second reason you don’t see probation assigned is that if you force a judge to hold a trial, and then you lose, they’re going to hit you with a significant sentence which I guarantee will be more than probation. This is because trials are expensive in terms of both time and money, and the court is not going to look kindly on you wasting their time by making them have a trial over something that a jury of your peers convicted you of. Does this disincentivize people taking their case to trial? Yes. Is that ethical…ehhh. But like it or not, this is usually how the system works.

Okay with that aside over, how long is probation and what are the conditions? Well, there isn’t really a one-size fits all answer here. It’s going to depend on several variables like the laws in your state and municipality, the culture of your legal system, the judge assigned to your case, the options available for supervision (for example, not every jurisdiction has the ability to put probationers on ankle monitors or alcohol monitors), and finally, the structure of the probation system in your jurisdiction. I know that’s a lot but nationally, probation is a bit like the wild west and every jurisdiction does it a little differently.

That said, I’ll give you a general roadmap. Probation is most often assigned for a period six months or one year. During that time, you’ll be expected to meet regularly, usually once a week or once a month with your probation officer. This could be remote depending on your jurisdiction but in-person meetings are much more common. The reason for this is that drug testing is routine for most probation departments, and you can’t do a drug test remotely. Might as well get it done at the same time you’re meeting with your PO.

Typically, probation is structured in such a way that your supervision is tight in the beginning, and you gradually get more freedom as you demonstrate compliance with the conditions of your probation. For example, you might start off living in community corrections, with an ankle monitor, and meeting with your PO once per week. After 3 months you get to move home and your meetings with your PO are once every two weeks. After 6 months you get to take your ankle monitor off. After 9 months you meet with your PO once per month. Again, this isn’t how probation is always structured, it’s just a basic example to give you a feel for how it works.

The general idea of probation is that a lot of people do something bad one time, but are not necessarily bad people, and if you can avoid putting them directly in jail then you can spare the county the jail costs while also allowing the individual to continue to live and work in the community. This is, conceptually, a win-win for everyone. I know I’m usually making videos were I’m dunking on policies, but I do think the concept of probation makes sense. It should exist. I’m not trying to abolish probation.

But the thing about probation is, it only works if you do it right. Think of it like surgery. A surgeon makes a plan for an operation. He doesn’t just blindly start stabbing around and hoping for the best, and doesn’t treat every patient the same. Good probation is strategic, well-thought-out, and tailored to the risks and needs of the probationer.

So here is the part where I explain how probation can go off the rails and end up creating the very problem that it was intended to solve. Remember when you’re evaluating a program or policy, you should always be thinking in terms of economics and incentives.

Okay so the first thing to keep in mind about probation is that most of the time when people get their probation revoked, it’s due to technical violations, not because they committed new crimes. A technical violation is basically any breaking of the rules that are set in your probation. It could be that you missed an appointment, failed a drug test, didn’t pay your fees, stayed out past curfew, or were out-of-bounds on your ankle monitor. Now – the consequence of a single technical violation is going to depend on circumstance, the culture and procedures in your jurisdiction, and the attitude of your probation officer. Sometimes a single violation can get your probation revoked. Other times your PO might give you a warning or petition the court to modify the conditions of your probation – this is sort of like them tightening the rules on you because you broke them.

In any case, if you get too many violations your PO or judge are eventually going to revoke your probation and send you back to jail. From a systems perspective, having a lot of probation revocations is a bad thing. This is because you essentially wasted the court and everyone else’s time and money to setup probation, and then you end up sending the person back to jail which costs more time and money.

So – how is this relevant for our discussion? If you make the conditions of probation too cumbersome for the probationer, then you’re basically setting them up to fail, which will result in them being incarcerated once again, and causes your criminal justice system, ultimately, to spend more time and money than it would have if you never had a probation program in the first place.

So what does this look like in practice? What are some examples of probation conditions that are overly cumbersome? Well, there are several – but for the sake of time I just want to highlight two of them, which are probation fees and drug testing.

So, probation fees are very common across the country. The idea of probation fees is two-fold. First, they are supposed to generate revenue for the criminal justice system. Someone does a crime, gets probation, and paying fees is sort of like a way of making restitution. The logic is, if you’re the one whose behavior required the use of public resources, then you should bear the cost of reimbursing the public. Second, it gives the probationer some “skin in the game” if you will. They can’t just sit at home not working or doing anything. The need to pay fees means the probationer needs to work, and gives them an incentive to get off of probation.

The problem is that probation fees accomplish neither of these things and their main effect is to make it more likely that people go back to jail. This of course increases the cost of the criminal justice system as a whole, thereby defeating the whole purpose of probation.

Let me explain. The core argument for probation fees rests on the assumption that the probationer is financially stable enough to make these payments. If the probationer is having financial problems, then piling probation fees on top of these financial problems puts the probationer in a no-win situation. He can either pay his rent or pay his probation fees. If he skips the fees, he goes back to jail. If he skips rent, then he gets evicted, which will almost certainly cause him to lose his job, and since, as we discussed in the previous episode, it’s no longer legal to sleep in public places in many jurisdictions, he will be arrested for being homeless.

Effectively, if you run out of money, you go to jail. This is basically how America works. Probation fees simply make this outcome more likely than it would have otherwise been. In short, probation fees really shouldn’t exist because they generally do more harm than good. However, if a government insists on using probation fees, they should make absolutely sure that the probationer can afford them. As we said earlier, probation conditions need to be surgical and tailored to the probationer.

Now, for another example of how probation conditions can be overly cumbersome, let’s talk about drug screens. Conditions of probation often require probationers to submit to drug screening to prove that they have not been using illegal substances. The idea here, which is not totally without merit, is that drug use is associated with criminal activity. If you could somehow ensure that probationers were not using drugs, then the assumption is that they are less likely to be committing new crimes as well.

And the problem here isn’t drug-testing per se, but it’s charging probationers for drug screens, and sending them back to jail for positive drug tests. The fees are problematic for the same reason that probation fees are problematic. People on probation are often financially strapped as it is – the last thing they need is to be spending what little money they have on drug testing.

Now, the other problem is that a lot of judges will violate someone’s probation for a positive drug screen. This doesn’t really make sense to me. First, relapse is part of substance addiction. If it were easy to quit, we wouldn’t call it an addiction. Second, you have to remember that substance abuse is not a core problem, but rather a symptom of a larger psychological issue. I’ve never met a patient whose life was just fine and they randomly developed a substance use problem. Substance abuse is almost always a response to unprocessed trauma.

The example I often use to explain this is the Vietnam war. In a 2017 study, Hall and Weier reviewed opioid use rates among soldiers in Vietnam, and then looked at opioid use disorder rates among soldiers once they had returned to the United States. They found that 34% of US soldiers in Vietnam used opioids and 28% met the criteria for an opioid use disorder. However, once they returned home to the United States, the rate of opioid use disorders among soldiers fell to only 1%. Soldiers moved from an extremely chaotic and scary environment, to a safe environment with friends, family, and predictability. This, to me, is very strong evidence for the argument that people develop substance use disorders primarily due to stress, anxiety, and depression.

So, the point of this digression is that putting people back in jail because they used drugs, which they’re probably doing because they have emotional problems and/or lack better coping skills, is antithetical to both the treatment process and the concept of probation.

My advice based on this, is that you shouldn’t charge people fees for being on probation or charge them for mandatory drug tests. The probation itself is the sentence, don’t add a financial burden to people who are trying to get their lives back on track.

Now, the last thing I want to talk about here are for-profit probation management companies. Some counties, because they lack the time or the technical know-how, will farm out their probation department to third-party for-profit companies. These companies handle everything from managing the probationers, setting appointments, setting and collecting fees, and reporting on progress to the courts. There are two very obvious problems with farming out your probation to a third party.

First, the whole point of these companies is to make money. The way that they make money is by charging more for the service than it costs to provide it. So, no matter how you look at it, it would be cheaper for the taxpayer if you just established your own probation department and ran it yourself.

Second, there is a mismatch in incentives between the legal system, the welfare of the probationer, and the profit motive of the private probation management company. The legal system, primarily, wants people to stop getting in trouble and to stay out of jail. However, the private probation management company financially benefits from having people on probation for a long time. The longer someone is on probation, the more fees the company can collect. Meanwhile, the probationer is saddled with a greater financial burden than he would have otherwise had, which, paradoxically, causes him to be more likely to end up back in jail.

Now, in case you’re wondering if this is just me being prejudicial against for-profit companies, I’ll give you a real-world example of how this works. The town in question is Greenwood, Mississippi. I’m just going to give you the cliff notes here but I will link the full article from the Atlantic that goes into more detail. In 2015 Greenwood was financially struggling, and a private company called Judicial Corrections Services came to them with an offer they couldn’t refuse. The company offered to run their probation department for them for free. The town wouldn’t have to pay anything, and the company would pay for their services through fees collected from probationers.

How did this work out? Well, within 8 months of Judicial Corrections Services taking over probation services, a full 10% of the town was on probation. For context, nationally, about 1.1% of citizens are on probation. So Greenwood had a probation rate almost 10 times higher than the national average. The reason for this was that Judicial Corrections Services was hitting people with so many fees that they couldn’t afford to pay, that people quickly fell behind, and when people couldn’t pay their fees, this was considered a violation of their probation, which caused them to be placed in jail, creating this vicious cycle where they accumulate probation debt without being able to work enough to pay it off. I have more examples of private probation companies that behave in this way so reach out to me if you need them, but we’re already running a bit long on this video.

So, so summarize what we’ve talked about today. Probation as a concept is fine. It makes sense to give people a little extra support and supervision after they’ve been in trouble with the law. However, probation is a balancing act, and you have to be careful not to overburden people with onerous conditions, especially financial ones, or else you end up creating the very situation probation was designed to avoid – sending people back to jail.