Community supervision is a major form of criminal punishment and a major driver of mass incarceration. Over 3.5 million people in the United States are serving terms of probation, parole, or supervised release, and revocations account for nearly half of all prison admissions. Although supervision is intended to prevent crime and promote reentry, it can also interfere with the defendant’s reintegration by imposing onerous restrictions as well as punishment for non-criminal technical violations. Probation officers also carry heavy caseloads, which forces them to spend more time on enforcing conditions and less on providing support.
Fortunately, the criminal justice system also includes a mechanism to solve these problems: early termination of community supervision. From the beginning, the law has always provided a way for the government to cut short a defendant’s term of supervision if they could demonstrate that they had reformed themselves. Recently, judges, correctional officials, and activists have called to increase rates of early termination in order to save resources, ease the reentry process, and encourage rehabilitation. Yet despite all this attention from the field, there are no law-review articles on terminating supervision early.
In this Article, I provide the first comprehensive analysis of early termination of community supervision. First, I recount the long history of early termination, from the invention of probation and parole in the 1800s to the Safer Supervision Act of 2023. Next, I identify and critique recent legal changes that have made it harder for federal criminal defendants to win early termination of supervised release. Finally, I propose the first empirically based sentencing guideline on terminating supervision early, which I recommend in most cases after 18 to 36 months. If community supervision drives mass incarceration, then early termination offers a potential tool for criminal justice reform. American Criminal Law Review, Forthcoming, 2024.
By Paul H. Robinson and Jeffrey Seaman
The decarceration movement enjoys enthusiastic support from many academics and activists who point out imprisonment’s failure to rehabilitate and its potential criminogenic effects. At the same time, many fiscal conservatives and taxpayer groups are critical of imprisonment’s high costs and supportive of finding cheaper alternatives. Yet, despite this widespread support, the decarceration movement has made little real progress at getting offenders out of prison, in large part because community views, and thus political officials, are strongly committed to the importance of doing justice – giving offenders the punishment they deserve – and decarceration is commonly seen as inconsistent with that nonnegotiable principle. Indeed, almost no one in the decarceration movement has attempted to formulate a large-scale decarceration plan that still provides for what the community would see as just punishment.
In this Article, we offer just such a plan by demonstrating that it is entirely possible to avoid the incarceration of most offenders through utilizing non-incarcerative sanctions that can carry a total punitive effect comparable to physical prison. New technologies allow for imposing “electronic prison” sentences where authorities can monitor, control, and punish offenders in a cheaper and less damaging way than physical prison while still doing justice. Further, the monitoring conditions provided in electronic prison allow for the imposition of a wide array of other non-incarcerative sanctions that were previously difficult or impossible to enforce. Even while it justly punishes, electronic prison can dramatically increase an offender’s opportunities for training, treatment, education, and rehabilitation while avoiding the problems of unsupported families, socialization to criminality, and problematic reentry after physical incarceration. And, from a public safety standpoint, electronic prison can reduce recidivism by eliminating the criminogenic effect of incarceration and also provides longer-term monitoring of offenders than an equivalently punitive shorter term of physical imprisonment. Of course, one can imagine a variety of objections to an electronic prison system, ranging from claims it violates an offender’s rights to fears it may widen the net of carceral control. The Article provides a response to each.
Electronic prison is one of those rare policy proposals that should garner support from across the political spectrum due to effectively addressing the complaints against America’s incarceration system lodged by voices on the left, right, and center. Whether one’s primary concern is decarcerating prisoners and providing offenders with needed treatment, training, counseling, and education, or one’s concern is reducing crime, imposing deserved punishment, or simply reducing government expenditures, implementing an electronic prison system would provide a dramatic improvement over America’s current incarceration policies.
Written April 2024. U of Penn Law School, Public Law Research Paper No. 24-20,
By Paul H. Robinson and Jeffrey Seaman
Few claims have won such widespread acceptance in legal academia as the “mass incarceration” narrative: the idea that the rise in America’s prison population over the last half century was fueled largely by the needless and unjust imprisonment of millions of criminal offenders due to punitive changes in sentencing. To many academics and activists, the question is not how accurate the mass incarceration narrative is, but how mass incarceration can be ended. This Article argues the “mass incarceration” narrative is based on a series of myths and, as a result, many proposed reforms are based on a misunderstanding of America’s past and present carceral practices. A more accurate understanding is needed to produce effective reform.The central myth of the mass incarceration narrative is that exceptional and unjustified punitiveness largely explains America’s significant increase in prison population since the 1960s. This explanation overlooks the numerous non-sentencing factors that increased incarceration: a near doubling in U.S. population, higher crime rates, increased justice system effectiveness, deinstitutionalization of the mentally ill, new and tightened criminalizations, worsening criminal offender histories, and more. While this Article makes no attempt at statistical precision, these non-sentencing factors can easily explain most of America’s elevated incarceration compared to the 1960s—a fact in direct conflict with the mass incarceration narrative. Additionally, while some punishments have increased in severity since the 1960s, most of these increases are likely to be seen as moving sentences closer to what the community – and many incarceration reformers – would believe is appropriate and just, as in cases of sexual assault, domestic violence, stalking, human trafficking, firearm offenses, and child pornography, among others.Comparing America’s prison population to foreign countries, as the mass incarceration narrative often does, similarly overlooks the contributions of many of these non-sentencing factors and incorrectly assumes that a higher American per capita incarceration rate always reflects a problem with American, instead of foreign, practice. While America can certainly learn from foreign countries, the reality is that many foreign sentencing practices have sparked chronic and widespread dissatisfaction abroad. It may be that the dispute over incarceration practices is more a dispute between the elites and the community than a dispute between the U.S. and other democracies’ populations.While all decarceration reformers should welcome a clearer picture of America’s incarceration practices, it is hard not to conclude that many mass incarceration myths were created deliberately by those who oppose not only incarceration but punishment generally. For these activists, the mass incarceration narrative is primarily a means toward eliminating punishment, a goal that is difficult to pursue directly because it is so contrary to the views of the general population and even a majority of academia.This Article is not pro-incarceration. It subjects the mass incarceration narrative to much needed scrutiny precisely because reforming incarceration practices is necessary. The criminal justice system should strive to deliver just punishment in the most societally beneficial way, which we believe means increasing the use of non-incarcerative sanctions. The myths of the mass incarceration narrative frequently lead activists to overlook non-incarcerative reforms that deliver just punishment—a tragic failure because such reforms would have much stronger popular support than the anti-punishment or unsophisticated anti-prison reforms now pushed by the mass incarceration narrative.Part I of the Article describes the mass incarceration myths that have become so broadly accepted. Part II reviews the facts of American incarceration practice, which contradict many, if not most, aspects of the narrative. Part III offers our reform proposals, which we believe more accurately address the problems in current incarceration practice. Central to those proposals are the use of creative non-incarcerative sanctions that still deliver punishment proportional to a nuanced assessment of each offender’s moral blameworthiness
U of Penn Law School, Public Law Research Paper No. 24-04
By Hernandez D. Stroud, Lauren-Brooke Eisen, and Ram Subramanian
Few issues have received more sustained attention from U.S. policymakers over the last decade than the country’s unique overuse of incarceration. After decades of growth in imprisonment rates, states have attempted to reduce the number of people behind bars. Their reforms have been driven by a recognition that incarceration is expensive and often counterproductive and by research demonstrating that many people can be safely supervised in the community
New York: Brennan Center for Justice at New York University School of Law , 2023. 24p.
By The American Bar Association, Working Group on Building Public Trust in the American Justice System
Adopted at the 2022 ABA Annual Meeting, the Ten Principles on Reducing Mass Incarceration articulate the critical steps necessary to help to combat the drivers of mass incarceration and ultimately reduce the number of people in jails and prisons nationwide.
Chicago: ABA, 2022. 61p.
By Hilde T. Werminka, A. A. J. Bloklanda,b, J. Beenc, P. M. Schuyt, . N. Tollenaare and R. Apel;
Noncustodial sanctions may present an attractive way to reduce the prison population rate, but only when noncustodial sanc-tions meet custodial ones in terms of deterring recidivism. Using administrative criminal records data of all individuals convicted in the Netherlands in 2012, this study examines the effects of short-term imprisonment versus noncustodial sanctions on crime. We employ an instrumental variables approach to account for selection processes and to produce consistent estimates of the effects of imprisonment. Findings indicate that being sentenced to prison rather than a noncustodial sanction increases the prevalence of recidivism by 10 percentage points and increases recidivism rates by 1.07 registered crimes during a follow-up period of three years. Treatment effect heterogeneity analyses show that the detri-mental impact of imprisonment is most pronounced for first-time prisoners, and adult offenders, compared to repeat prisoners and young adult offenders.IntroductionReducing the prison population is one of the biggest challenges faced in the criminal justice system across countries worldwide. There are many good reasons to exercise restraint when it comes to imprisonment. For one, imprisoning people is an expensive enterprise, and the costs of imprisonment typically weigh heavy on the criminal justice budget (e.g. Phelps & Pager, 2016). To the extent that imprisonment maintains or even increases marginalization of the imprisoned population following their release, these direct costs may be dwarfed by imprisonment’s indirect societal costs
Justice Quarterly, April 2023.
By Jacob Harris, et al.
While there is a growing literature investigating the causes and consequences of the US prison boom—the tripling of prison facilities between 1970 and 2000—much less is known about current patterns of prison closures. We use novel data capturing the universe of prison closures (N=188) from 2000 to 2022 to identify and characterize what we term “the prison bust”—the period since 2000 when prison closures began to climb and eventually eclipse new prison building. We show that the prison bust is, in part, a consequence of development-oriented prison-building policies that aggressively used prisons to stimulate struggling local economies. The bust is primarily concentrated in the counties that pursued prison building most aggressively, reflecting a highly cyclical and reactionary pattern of prison placement and closure. We also show that, relative to counties with at least one prison but no closures, closures are concentrated in metro counties with stronger local economies and multiple prisons. Overall, we highlight the prison bust as an important new era in the history of US punishment and provide a new dataset for investigating its causes and consequences. We conclude by discussing the theoretical and policy implications of these findings.
Unpublished Paper, 2023. 36p.
By Ben Grunwald
With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how. This question is far more complicated than it might seem. We could cut the prison population in half, for example, by drastically shortening sentences. Or we could reduce prison admissions. Or we could do both. And we could do either or both for countless combinations of criminal offenses. Moreover, even when they reach the same numeric target, these strategies are not equivalent. They would have vastly different consequences for both prisoners and the public and widely varying timeframes to take effect. To pick among them, we need richer metrics and more precise empirical estimates to evaluate their consequences.
This Article begins by proposing metrics to evaluate the relative merits of competing decarceration strategies. The public debate has focused almost exclusively on how we might decarcerate while minimizing any increases in crime and has, therefore, underappreciated the costs of prison itself. We should consider at least three more metrics: the social harm of incarceration, racial disparity, and timing. Next, the Article develops an empirical methodology to identify the range of strategies that would reduce the national prison population by 25, 50, and 75%. Finally, it identifies the best performing strategies against each metric.
The results have several broader takeaways. First, the optimal approach to decarceration depends heavily on which metrics we value most. The results thus quantify a stark set of policy choices behind a seemingly simple objective. Second, the results confirm that, to dramatically shrink prisons, it is critical to decarcerate a substantial number of people convicted of violent offenses—a fact that may surprise the majority of Americans who believe people convicted of drug offenses occupy half of prison beds. Finally, the results show that race-neutral decarceration strategies are likely to exacerbate rather than mitigate racial disparities. Armed with the conceptual tools and methodologies developed in this Article, we can make more informed decisions about how to best scale down prisons, given our priorities and constraints.
33 Stanford Law & Policy Review (2022 Forthcoming), Duke Law School Public Law & Legal Theory Series No. 2021-41,
By Julia Laskorunsky, Kelly Lyn Mitchell and Sandy Felkey Mullins
This report examines the challenges and opportunities that states faced in deciding whether to release people from prison during the COVID-19 pandemic. It focuses on the legal mechanisms available to jurisdictions and the factors that influenced whether they were willing or able to use those mechanisms to release people from prison. Our goal is to illuminate whether back-end release mechanisms can be used to reduce prison populations that have been bloated by the policies of the mass-incarceration era or whether relief from mass incarceration must take some other form. The report presents case studies of six states—Alabama, Illinois, Kansas, Minnesota, Pennsylvania, and Washington—to gain a more in-depth view of how events unfolded during the pandemic. Overall, our study found that the number of individuals released early from prisons during the pandemic was limited due to a variety of factors, including politics, risk-averse decision-making, shifting external pressures, the limited scope of compassionate and medical release statutes and the use of discretion to deny release. In addition, few changes to policy or practice that occurred during the pandemic had a lasting impact on back-end release practices. We conclude that the back-end release mechanisms offer only a modest opportunity to reduce mass incarceration, and the current system is unlikely to make a substantial difference in addressing mass incarceration due primarily to risk aversion. Instead, state-level carceral policies that focus on diffusing responsibility for back-end release and that reduce incarceration in the first place have the greatest chance of achieving long-term reductions in prison populations.
St. Paul, MN: University of Minnesota Robina Institute of Criminal Law and Criminal Justice, 2023. 73p.
By Julia Laskorunsky
Kelly Lyn Mitchell and Sandy Felkey Mullins
This report examines the challenges and opportunities that states faced in deciding whether to release people from prison during the COVID-19 pandemic. It focuses on the legal mechanisms available to jurisdictions and the factors that influenced whether they were willing or able to use those mechanisms to release people from prison. Our goal is to illuminate whether back-end release mechanisms can be used to reduce prison populations that have been bloated by the policies of the mass-incarceration era or whether relief from mass incarceration must take some other form. The report presents case studies of six states—Alabama, Illinois, Kansas, Minnesota, Pennsylvania, and Washington—to gain a more in-depth view of how events unfolded during the pandemic. Overall, our study found that the number of individuals released early from prisons during the pandemic was limited due to a variety of factors, including politics, risk-averse decision-making, shifting external pressures, the limited scope of compassionate and medical release statutes and the use of discretion to deny release. In addition, few changes to policy or practice that occurred during the pandemic had a lasting impact on back-end release practices. We conclude that the back-end release mechanisms offer only a modest opportunity to reduce mass incarceration, and the current system is unlikely to make a substantial difference in addressing mass incarceration due primarily to risk aversion. Instead, state-level carceral policies that focus on diffusing responsibility for back-end release and that reduce incarceration in the first place have the greatest chance of achieving long-term reductions in prison populations.
.St. Paul, MN: University of Minnesota Robina Institute of Criminal Law and Criminal Justice, 2023. 73p.
By Ashley Nellis, Ph.D. and Liz Komar
In 2018, Congress passed and then-President Donald Trump signed into law the bipartisan First Step Act, a sweeping criminal justice reform bill designed to promote rehabilitation, lower recidivism, and reduce excessive sentences in the federal prison system. Lawmakers and advocates across both political parties supported the bill as a necessary step to address some of the punitive excesses of the 1980s and 1990s.
The First Step Act includes a range of sentencing reforms which made the Fair Sentencing Act of 2010 retroactive,I enhanced judicial discretion, created earned time credits, increased good time credits, reduced certain mandatory minimum sentences, and expanded the safety valve that allows persons with minor prior convictions to serve less time than previously mandated.
The First Step Act also seeks to expand opportunities for people in federal prisons to participate in rehabilitative programming to support their success after release. The law aims to produce lower odds of recidivism by incentivizing incarcerated individuals to engage in rigorous, evidence-based rehabilitation and education programming. In exchange and based on a favorable assessment of risk to the community, they may earn an earlier opportunity for release to community corrections.
The Department of Justice (DOJ) reports promising results thus far. The recidivism rate among people who have benefitted from the law is considerably lower than those who were released from prison without benefit of the law. Among the nearly 30,000 individuals whose release has been expedited by the First Step Act, nearly nine in every 10 have not been rearrested or reincarcerated. This 12% recidivism rate lies in stark contrast to the more typical 45% recidivism rate among people released from federal prison.
Washington, DC: The Sentencing Project, 2023. 9p.
By Wendy Sawyer and Peter Wagner
Can it really be true that most people in jail are legally innocent? How much of mass incarceration is a result of the war on drugs, or the profit motives of private prisons? How has the COVID-19 pandemic changed decisions about how people are punished when they break the law? These essential questions are harder to answer than you might expect. The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. As public support for criminal justice reform continues to build — and as the pandemic raises the stakes higher — it’s more important than ever that we get the facts straight and understand the big picture. Further complicating matters is the fact that the U.S. doesn’t have one “criminal justice system;” instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold almost 2 million people in 1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities, and 82 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories. This report offers some much-needed clarity by piecing together the data about this country’s disparate systems of confinement. It provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration and overlooked issues that call for reform.
Easthampton, MA: Prison Policy Initiative, 2022. 58p.
Edited by Kristen M. Budd, David C. Lane, Glenn W. Muschert, and Jason A. Smith
The year 2023 marks 50 years of mass incarceration in the United States. This timely volume highlights and addresses pressing social problems associated with the US’s heavy reliance on mass imprisonment. In an atmosphere of charged political debate, including ""tough on crime"" rhetoric, the editors bring together scholars and experts in the criminal justice field to provide the most up-to-date science on mass incarceration and its ramifications on justice-impacted people and our communities. This book offers practical solutions for advocates, policy and lawmakers, and the wider public for addressing mass incarceration and its effects to create a more just, fair and safer society.
Bristol, UK: Bristol University Press, 2023. 128p.
By S. Rebecca Neusteter, Ram Subramanian, Jennifer Trone, Mawia Khogali, and Cindy Reed
Police in America arrest millions of people each year, and the likelihood that arrest will lead to jail incarceration has increased steadily. Ending mass incarceration and repairing its extensive collateral consequences thus must begin by focusing on the front end of the system: police work. Recognizing the roughly 18,000 police agencies around the country as gatekeepers of the system, this report explores the factors driving mass enforcement, particularly of low-level offenses; what police agencies could do instead with the right community investment, national and local leadership, and officer training, incentives, and support; and policies that could shift the policing paradigm away from the reflexive use of enforcement, which unnecessarily criminalizes people and leads directly to the jailhouse door.
New York: Vera Institute of Justice, 2019. 76p.
By Damon M. Petrich, Travis C. Pratt, Cheryl Lero Jonson, and Francis T. Cullen
Beginning in the 1970s, the United States began an experiment in mass imprisonment. Supporters argued that harsh punishments such as imprisonment reduce crime by deterring inmates from reoffending. Skeptics argued that imprisonment may have a criminogenic effect. The skeptics were right. Previous narrative reviews and meta-analyses concluded that the overall effect of imprisonment is null. Based on a much larger meta-analysis of 116 studies, the current analysis shows that custodial sanctions have no effect on reoffending or slightly increase it when compared with the effects of noncustodial sanctions such as probation. This finding is robust regardless of variations in methodological rigor, types of sanctions examined, and sociodemographic characteristics of samples. All sophisticated assessments of the research have independently reached the same conclusion. The null effect of custodial compared with noncustodial sanctions is considered a “criminological fact.” Incarceration cannot be justified on the grounds it affords public safety by decreasing recidivism. Prisons are unlikely to reduce reoffending unless they can be transformed into people-changing institutions on the basis of available evidence on what works organizationally to reform offenders.
Crime and Justice: A Review of Research, Volume 50. 2021
By Melvin Washington II
For decades, the United States has responded to social issues like mental health and substance use crises, chronic homelessness, and ongoing cycles of interpersonal violence with jail. This has disrupted the lives of millions of people—disproportionately harming Black and Indigenous people—without improving public safety. There’s a better way. Communities can instead invest in agencies and organizations that address these issues outside the criminal legal system. The proven solutions highlighted in this multimedia report look beyond jails to promote safe and thriving communities.
More than 3,000 jail facilities operate in the United States. Before the COVID-19 pandemic, those jails processed about 10 million bookings annually. Some people stayed for hours and others for months. Overall, the number of people in jail has grown exponentially over the past 40 years—from about 220,000 in 1983 to more than 750,000 in 2019. In response to the COVID-19 pandemic, some jurisdictions took emergency actions to prevent the virus’s spread among incarcerated people and jail staff, which cut jail populations by an estimated 24 percent during the first half of 2020. However, these changes proved temporary; by June 2020, national jail populations were already rising. By the end of 2020, the population had rebounded by more than 50,000 people.
New York Vera Institute of Justice, 2021. 28p.
By Marta Nelson, Samuel Feineh and Maris Mapolski
One hundred years from now, we may look back at the United States’s overreliance on punishment and its progeny—mass incarceration—with the kind of abhorrence that we now hold for internment camps for Japanese Americans and Jim Crow laws. Or, if we never curb our reliance on jails and prisons for public safety, we may be in the same place then as we are today….This report posits that maintaining our system of mass incarceration will not bring people in the United States the safety and justice they deserve, while dismantling it in favor of a narrowly tailored sentencing response to unlawful behavior can produce more safety, repair harm, and reduce incarceration by close to 80 percent, according to modeling on the federal system. In this report, the Vera Institute of Justice (Vera) addresses a main driver of mass incarceration: our sentencing system, or what happens to people after they have gone through the criminal legal system and are convicted of a crime
New York: Vera Institute of Justice, 2023. 81p.
By Thomas Ward Frampton
Prison abolition, in the span of just a few short years, has established a foothold in elite criminal legal discourse. But the basic question of how abolitionists would address “the dangerous few” often receives superficial treatment; the problem constitutes a “spectral force haunting abolitionist thought . . . as soon as abolitionist discourses navigate towards the programmatic and enter the public arena.”1 This Essay offers two main contributions: it (1) maps the diverse ways in which prison abolitionists most frequently respond to the challenge of “the dangerous few,” highlighting strengths and infirmities of each stance, and (2) proposes alternative, hopefully more productive, responses that interrogate and probe the implicit premises (empirical, ideological, or moral) embedded in and animating questions concerning “the dangerous few.”
Harvard Law Review, VOLUME 135 JUNE 2022 NUMBER 8
By Todd R. Clear
Incarceration rates in the United States are far higher than in the world's other Western democracies, so high that they are referred to as mass incarceration. After nearly 40 years of sustained growth in US incarceration rates, a broad consensus exists to bring them down. The Iron Law of Prison Populations directs attention to the fact that 51 different jurisdictional-level penal policies, rather than crime, drive incarceration rates, making systematic policy reform difficult. However, the fact that prison populations have already begun to decline, combined with the emerging public will to reduce incarceration and dropping age-specific incarceration rates, promotes optimism in the decarceration agenda. Three issues remain to be resolved: the eventual target rate of incarceration, what to do with people convicted of violent crimes, and how to avoid the distracting focus on reentry programming.
Annual Review of Criminology . Volume 4, 2021 . pp 239-260
By Marta Nelson, Samuel Feineh and Maris Mapolski
To understand how the United States became one of the most incarcerated nations in the world, it is critical to understand the role that excessive and harsh sentencing has played. In this report, Vera addresses a main driver of mass incarceration: our sentencing system. Dismantling our system of mass incarceration in favor of a narrowly tailored sentencing response to unlawful behavior can produce more safety, repair harm, and reduce incarceration by close to 80 percent, according to modeling on the federal system. This report summarizes the evidence surrounding sentencing’s impact on safety, offers new guiding principles for sentencing legislation that privilege liberty, outlines seven key sentencing reforms in line with these guiding principles, and suggests a “North Star” for sentencing policy with a presumption toward community-based sentences except in limited circumstances. Severe sentences do not deter crime, retribution often does not help survivors of crime heal, and the U.S. sentencing system overestimates who is a current danger to the community and when incarceration is needed for public safety. Instead, we need a system that privileges liberty while creating real safety and repairing harm.
New York: Vera Institute of Justice, 2023. 81p.