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Over-Incarceration: A View from The Inside

Harrison Law Jan. 4, 2021

This article is not intended as legal advice in any particular case, let's dive straight in.

Almost everyone agrees that there are some people that must be kept away from the general population against their will, generally referred to as incarceration. Americans are also increasingly believing that our current rate of incarceration is too high. The statistics and reasons for “mass incarceration” are discussed in wider circles than ever before. Reports on the statistics and legislative trends can be found in many major sources and are always changing. There are a few topics that are less known to most people that contribute as much or more than the fashionable issues to discuss. In this post, I would like to define the problem as I see it, a commonly discussed factor (drug sentencing), and discuss a particular problem (how probation sentences are taken away) I feel is overlooked.

Defining the Problem

I believe it is helpful to break down the problem of over-incarceration into two categories:

  1. Incarcerations for offenses that people increasingly believe should not result in incarceration.

  2. Incarcerations that last longer than people believe to be proportional.

I prefer the term “Over-incarceration” to “mass incarceration” because if the situation was that many people were incarcerated for serious crimes, it would not be the national controversy that it is. It is not the fact that many people are incarcerated it is the charges and lengthy sentences for which they are incarcerated.

There has been a large change in attitudes about what crimes should be subject to in-custody sentences and even whether certain crimes (such as drug possession) should even be crimes at all. There is also increasing dissatisfaction with the ranges of sentences for many crimes. Though most people support harsh punishments for heinous crimes, lengthy punishments for non-violent offenses are sources of outrage when they make the news. Every State has had stories of defendants serving ludicrously long sentences that reached their local or national news.

Drug Sentencing

The failures of the War on Drugs are well known; drug use is still prevalent and the enrichment of cartels and gangs has caused damage to the communities they operate in. The punishment of drug users and “retail” level dealers has fallen out of favor with the public due to the lack of impact on drug use, broader acceptance of marijuana use, the expense of incarceration, and the damage to the lives of those incarcerated. Decriminalization of marijuana, even in conservative states, has wider acceptance than ever, driven largely by the impact that incarceration for possession has had on society. People still sit in prison today under statutes that have been changed since they were charged. I started my legal career during a change to drug policy in Oklahoma and have witnessed people be sentenced under statutes that would not have been felonies if they were newly charged.

Increased sentencing due to prior convictions has also received a lot of criticism for failing to prevent recidivism (when a person is incarcerated after having been previously released) and for causing long sentences for non-violent crimes to become more common. Some states are beginning to address this issue and repeat offenses of non-violent crimes are becoming less of a factor in sentencing.

Drug court (an alternative type of court procedure where defendants are subject to treatment and monitoring) has proven to be effective to an extent. I would argue that this effectiveness a less a testament to its own merits and more a testament to how ineffective incarceration is at addressing drug use.

Probation and “Paper Time”

A lesser-known issue that I think is essential to understanding over-incarceration is the revocation or acceleration of probation (the term used depends on the type of probation) and the effect it has on lengthening sentences. When a defendant enters into a plea deal for a probation sentence, the term of the probation will often be longer than the maximum sentence for the crime. Defendants want to avoid prison (understandably) and will accept a probation sentence of much greater length. A defendant whose underlying crime has a one-year maximum could have probation for two or more years.

When a probation sentence is revoked, the defendant can be sentenced to the full term of the probation in prison. This is sometimes referred to by attorneys as “paper time”. This means that a defendant can serve a prison sentence longer than the statutory maximum for violating the terms of their probation. That means our example defendant who faced a maximum of one year in prison could serve double the maximum for violating probation. It becomes obvious quickly how this can lead to multiplying the amount of time people serve, even on average.

The evidentiary standard for proving a violation of probation is also lower than the standard for proving the underlying crime. A defendant could be charged with a minor offense, win their case and still have their probation revoked under a preponderance standard without a right to a jury.

Prosecutors and Judges know that violations of probation are frequent, but are still willing to grant probations with many conditions, classes, and requirements.

There have been some solutions offered to this, capping probation length, drug, and mental health courts that prioritize keeping defendants on probation after a violation and these have had some success. One solution to this problem that is to my knowledge not implemented anywhere is to borrow a concept from prisons and give credit for “good behavior”.

District attorneys express that they want to see defendants employed, in treatment, paying restitution, among other conditions but probation revocation makes no formal distinctions between someone that violated their probation after one day or after two years minus one day. Paper time is currently unaffected in a formal sense(though prosecutors do consider it to an extent when creating a plea deal) by compliance with the terms of probation.

If defendants knew that staying out of trouble was reducing the risk of their paper time by some fraction of a day for each day they comply with the terms of probation, this positive reinforcement could be a major motivator.

As it currently works, a probation sentence haunts a defendant and can end up being revoked for having the wrong person in your car, financial difficulties, or conflicts with a probation officer. It is my belief that most people are unaware of how probation works and would be generally supportive of changes to the process if they did. Only by understanding the actual mechanisms that lead to over-incarceration can any meaningful change take place.