More than 1 in 10 people admitted to state prisons every year have committed no new crime, but have simply broken one or more of the many conditions, or rules, of their probation. All of this unnecessary incarceration is the predictable result of widely-adopted probation conditions that are so vaguely defined, so burdensome, and so rigidly applied that they actually broaden the scope of what counts as “recidivism.” Through these conditions, courts and probation authorities create punishable offenses that go far beyond criminal law, setting people up to fail. And because the vast majority of people under correctional control are on probation — 2.9 million people,  far surpassing the 1.9 million people incarcerated — these trap-like conditions make probation a major driver of mass incarceration, not the “alternative” it’s supposed to be.

Shrinking the massive probation system — and the number of people incarcerated from community supervision — is central to ending mass incarceration. Doing so requires challenging existing “standard conditions” that (a) are often in conflict with one another, (b) exacerbate the challenges people on probation are already facing, and (c) empower probation officers — rather than courts — to make subjective decisions that can lead to revocation and incarceration. Examining these conditions clarifies why probation often functions as an on-ramp to incarceration instead of an alternative, and can help advocates and policymakers reorient probation systems away from incarceration.

Unfortunately, standard probation conditions are often difficult to locate and parse, vary between jurisdictions, and use complicated and unclear language, so to aid in this effort, we collected and analyzed the standard conditions for 76 jurisdictions across all 50 states and Washington, D.C., creating one of the most comprehensive compilations of these rules to date.

Our study builds upon the foundational work of legal scholars Professor Fiona Doherty and Professor Kate Weisburd. We adopted much of the methodology and analytical approach from Professor Doherty’s 2016 publication, “Obey All Laws and Be Good: Probation and the Meaning of Recidivism.” Professor Doherty analyzed standard probation conditions in 15 states, focusing on the ways in which the most common standard conditions — like “obey the law” (with no distinction between civil and criminal law), “be good” (i.e., be a “good citizen” or “conduct oneself properly”), and “avoid injurious or vicious habits” (with no definition of such terms) — all expand the discretionary power of probation officers and pave the way for technical violations and subsequent revocations. As Professor Doherty explains, standard probation conditions “make a wide variety of noncriminal conduct punishable with criminal sanctions” and “construct a definition of recidivism that contributes to overcriminalization.”

Read the full article about probation and mass incarceration by Emily Widra at Prison Policy Initiative.