The epidemic of reincarceration for technical parole violations in the age of COVID
Jonathan Best had been out of prison for two years when he ended a rocky relationship with his girlfriend. Like many men and women on parole—a form of early release, in which the remainder of one’s sentence is served in the community—he suffered from depression and anxiety.
At the time, Best often had to choose between paying his monthly $80 parole fee and putting food on the table. He worried that if he got pulled over for speeding, a warning would go straight to his parole officer (PO). Like many who face the stress of reentry from prisons in the US, Best sometimes coped by using drugs or alcohol. He rarely felt free.
Best never found out exactly what happened on Aug 16, 2012, the day he was sent back to prison. Nor does he know what part his ex-girlfriend played in his return, though Best suspects that she called his PO and told the officer that he was doing drugs.
Unofficial protocol was for Best’s PO to appear at his doorstep; supervision often means giving up one’s Fourth Amendment right to privacy in one’s home. But on that occasion, his PO surprised him and demanded Best come to the parole office.
When he arrived, Best was tested for drug use on the spot. As he recalled in a March phone interview with me, three POs interrogated him for more than 30 minutes, then told him that he had produced a dirty urine sample.
“They put me in a cage in the Brockton parole office,” Best said. “I didn’t get to call anyone, and they told me I was going back.”
Best’s case scenario
“Going back,” or violating parole, is extremely common in this country. In a 2019 report, the Council of State Governments (CSG) found that “45 percent of state prison admissions nationwide are due to violations of probation or parole.”
The data definitively shows: Parole does not help people stay out of prison. Rather, it feeds incarceration.
In Best’s case, he had not committed a new crime. Nor had he missed a curfew or a check-in meeting. He hadn’t walked into a bar and shared a beer with a friend. As far as he knew, he was whisked off to prison for failing a drug test.
Patricia Garin, an experienced Mass parole attorney who represented Best at his revocation hearing, said that when a person on parole is violated for technical infractions, they are often charged with breaking multiple rules. Best, Garin said, was charged with cocaine use and failing to pay his $80 supervision fee.
Forced back into the system, Best became the kind of statistic that is well known to activists nationwide who are trying to expose the practice of parole revocation for technical violations. It’s a practice that, even before the coronavirus pandemic, devastated many who are struggling to right their lives after prison. Now, with the added risk and burden of COVID-19, medical professionals say decarceration is urgent.
“As of July 2020, nine out of the ten largest clusters of COVID-19 in the United States are in jails and prisons,” wrote award-winning researcher Allison Frankel in Revoked: How Probation and Parole Feed Mass Incarceration in the United States, a report by Human Rights Watch and the American Civil Liberties Union. According to the nonprofit Marshall Project, which keeps an up-to-date count of COVID-19 cases behind bars on its website, there were 121,156 cases reported in state and federal prisons as of Sept 8. As a comparison, while the US has carried out 839 executions of prisoners this millenium, more than 1,017 state and federal prisoners have died from the virus in just the past six months.
Even before the pandemic, the public was not clamoring to send people back to prison. A July 2019 poll by the Pew Charitable Trusts reported that roughly six in 10 respondents believed that “people on parole or probation who commit technical violations should serve either no prison time or no more than 45 days.”
Technical supervision revocations are not only unpopular—they are also incredibly costly for taxpayers. The Council of State Governments estimates that sending people back to prison for minor infractions costs states $2.8 billion a year.
Jake Wark, director of communications for the Executive Office of Public Safety and Security, asserted in an email comment that Massachusetts has always sent very few people back to prison “for probation and parole violations long before the COVID-19 crisis.”
While Wark’s assertion that the numbers are low may be true, he fails to acknowledge the proportion of technical violations to actual new arrests. His words don’t explain why people like Jonathan Best, similar to most of the people sent back to prison for minor parole infractions in Mass, are returned without committing a new crime.
A public records request to the Mass Parole Board confirmed that even during COVID 78% of people on parole who were returned to custody between March and June 2020 were sent back for technical violations, not for new crimes. Of those, 39% were eventually re-paroled, while 61% received revocations and lost their parole.
In the midst of a pandemic, sending people back to prison for minor violations could be a death sentence.
What can states like Massachusetts do instead?
I spoke with stakeholders in New York, Minnesota, and California—from incarcerated citizens to prison superintendents—who are rethinking responses to technical parole violations beyond partisan politics. In surveying those efforts, it is clear that activists face significant hurdles in changing the US parole system; at the same time, there is steady progress being made in the fight to revoke revocations.
Attorney Katy Naples-Mitchell said in a phone interview that “no one should have their liberty restrained based on the fact that they were trying to meet their parole conditions and life intervened.” The attorney and legal fellow at the Charles Hamilton Houston Institute of Race and Justice at Harvard Law School added, “In this country, we have the presumption of liberty.”
As the nonprofit Prison Policy Initiative reported about revocations in 2018, there is often an impulse to extract those on parole from the community “at the first sign that they are struggling.”
Gerdzer Edmee, an activist who is on parole in New York, understands this firsthand. Edmee was recovering from COVID when we spoke on the phone in March. He spoke about how the revocation process almost upended him several times.
Before he got sick, besides supporting justice initiatives at the Katal Center for Health, Equity, and Justice, Edmee worked construction. But it has been a struggle for him to follow all the supervision rules, which can include drug tests, a monthly supervision fee, warrantless searches, court costs, lie detector tests, counseling, AA and NA meetings, and court-ordered treatment. Edmee also had to obtain employment in a specified period of time and stay away from people deemed “disreputable.”
Common requirements also include regular meetings with parole officers and prohibitions from leaving the state. Revoked, the Human Rights Watch-ACLU report, notes, “Nationwide people under supervision must comply with an average of 10 to 20 conditions a day.”
“If they were to remove all parole violators from prison,” Edmee said, “they would have to close prisons.”
The US Supreme Court case Morrissey v Brewer assures that those accused of parole violations have rights after they are charged with an infraction. If charged with a technical violation, they have a right to a preliminary hearing “conducted by an impartial hearing officer,” where probable cause must be found to detain someone. They are also technically entitled to a revocation hearing in front of a “neutral or detached” body such as a parole board, and the hearing—by law—must be “reasonably prompt.”
Despite such constitutional assurances, hearings aren’t always held. Also, people are often sent back to prison even if they aren’t a flight risk; according to Revoked, people accused of violating supervision are “regularly detained for months” as they wait for a hearing to contest charges against them—“even for rule violations.” Jonathan Best is living proof; he sat in a Mass prison for 93 days awaiting the results of his alleged technical violation.
Vincent Schiraldi, senior research scientist at the Columbia School of Social Work, and Kendra Bradner of the Columbia Justice Lab argue that people of color are not only more likely to be on parole, but are also more likely to be sent back to prison for parole violations. Schiraldi and Bradner write that in the US parole system, “Black people are 4.15 times more likely to be under parole supervision than white people, and Latinx people are 15 percent more likely than white people to be under parole supervision.” Moreover, Blacks are 50% more likely than whites to have their paroles revoked for technical violations.
Even for those who don’t end up back in jail, the cost of getting swept up for technical violations is high. “[A] weekend stay in jail can be enough to lose a job, educational opportunity, home, car, or custody of children,” Schiraldi and Bradner point out.
Best spent three months behind bars only to discover that his parole would not be revoked. Meanwhile, he said, “I lost everything but my job.” Best has struggled since he was released in 2012. This year, working two jobs and helping two family members who contracted COVID-19, has been especially difficult. In late August, he buried his aunt.
By any measure, COVID-19 has accelerated the potential toll of technical violations. In April, a group of 54 community supervision executives from across the country emphasized the need for states to “suspend or severely limit technical violations for the duration of the coronavirus crisis.” They noted: “With 4.5 million people on probation and parole nationally … too many people are placed under supervision who pose little public safety risk and are supervised for excessive supervision periods beyond what is indicated by best practices.”
Less is more
In a July 16 press release, a coalition of activist organizations blasted New York Gov. Andrew Cuomo for his failure to live up to his promise to decarcerate. The criticism stemmed from a prior acknowledgement that those incurring technical violations should not be locked up during a pandemic, which came with a promise to release 1,100 individuals. In practice, Cuomo released 791 prisoners, including 379 from New York City; two months later, admission trends data showed 300 new admits from NYC, in a sense erasing any impact.
There have also been relative successes in the Empire State. A coalition of activist groups—Katal, A Little Piece of Light, Unchained, and others—effectively educated Cuomo about the crisis of technical violations. New York sends more people back to prison for technical parole violations than any state besides Illinois. According to the Bureau of Justice Statistics, on Jan 1, 2018, 44,572 people there were serving state parole sentences. That year, there were also 5,783 revocations for technical violations in New York, which, according to Vincent Schiraldi of the Columbia School of Social Work, cost the state more than $600 million.
Schiraldi, who also co-directs the Justice Lab at Columbia and was former commissioner of New York City Department of Probation, has written hundreds of articles on the subject of supervision, but he gave credit to grassroots organizers. He said the heavy lifting in the coalition has come from impacted community members, both inside and outside prison. In one example, Emily Singletary and her incarcerated husband, Derek Singletary, founded the activist group Unchained in 2018. In an interview, they said the coalition pressured Cuomo through a variety of strategies, such as holding rallies and publishing newspaper op-eds.
The New York coalition also backed a statewide campaign to get a groundbreaking parole violations bill up and running in New York. Known as #LessIsMoreNY (i.e., less mass supervision means more safety and justice), the legislation was developed by coalition members on parole, along with currently incarcerated people and their family members, Katal, Unchained, the Justice Lab at Columbia, and the Legal Aid Society in NYC.
“I try to get people involved, to galvanize guys, the energy and anger we have, and bring it to the right people.” Speaking from Elmira Correctional Facility in New York, Derek Singetary said in a phone interview that he wrote parts of the bill in his cell and is proud that he and his wife encouraged people from inside as well as outside prison to participate in the process. Unchained, Emily said, includes about 100 prisoners, and several hundred formerly incarcerated people and their families.
In terms of parole, the Less Is More legislation would restrict the use of incarceration for all technical violations, bolster due process with a hearing procedure that is both fair and speedy, and provide “earned time credits” to reduce the number of days people have to spend on supervision. More than 200 individuals and organizations have signed on to support the legislation; as of July 17, the list included: NYC Mayor Bill de Blasio; Karol Mason, former US assistant attorney general and president of John Jay College; Former Chief Justice of New York Jonathan Lippman; as well as police, district attorneys, legislators, sheriffs, commissioners of probation, parole and corrections; and the New York City Council.
Before New York’s 2020 legislative session ended, the coalition’s outreach was nonstop—articles, rallies, social media campaigns. Before pandemic restrictions set in, they brought impacted people to meet with legislators, all the while distributing fact sheets and disseminating information to the families of prisoners.
The Less Is More bill has yet to pass; it will come up in the next two-year session. In the meantime, those who are actively pushing for change describe the progress so far—influential endorsements, media attention, attitude adjustment about technical violations—to be unprecedented for an issue rarely addressed in the public square.
The Minnesota Paradox
On July 29, Kelly Lyn Mitchell, executive director of the Robina Institute of Criminal Law and Criminal Justice, moderated a webinar on state racial disparities in the criminal legal system. In the presentation, she referred to a “paradox” named for the city where George Floyd was killed by police in May, setting off nationwide protests that continue in various cities today. Minnesota, Mitchell said, has “one of highest standards of living in this country,” yet is home to some of the “largest racial disparities in the country.”
Research shows that while white people make up 84% of Minnesota’s population, they comprise only 46% of the adult prison population. Black people are only 6% of the population, but make up 36% of the state’s prison population.
Minnesota has been widely criticized for racist policing and overcriminalization of people of color, particularly those who struggle with substance use and mental health issues. In 2019, the Council of State Governments found that it was one of 20 states with “more than half of [prison] admissions … due to supervision violations.”
According to the Incarcerated Workers Organizing Committee, Indigenous peoples and Blacks fared the worst; a fact sheet for IWOC’s campaign to end technical violations reported, “African Americans are twice and Native Americans three times as likely to be violated each month than whites.” In an interview, IWOC member David Boehnke said that systemic racism has historically impacted the state and characterized how it deals with prisoners and returns to prison.
In a phone conversation, Boehnke said that two and a half years ago, prisoners, formerly incarcerated people, and their families began a campaign called No New Crime, No New Time. As part of the effort, they initiated a series of conversations with the Department of Corrections with the stated goal of “ending crimeless revocations.”
Their campaign got the attention of Minnesota’s Democratic Gov. Tim Walz. In an October 2019 Time magazine article, Waltz (along with Missouri’s Republican Gov. Mike Parson) called out his state for sending people to prison for parole and probation technical violations. They called it “alarming” that on any given day in this country, “95,000 people are incarcerated as a result of technical violations.”
Though it is too early to quantify the efficacy of these initiatives in terms of how many people were released, it does seem that the Decarcerate Minnesota coalition, which encompasses the aforementioned prisoner rights advocates and others, has already had a tangible impact. Beyond making headlines by meeting with top officials and expressing their concerns and ideas, their work is reflected in the hiring of Curtis Shanklin, Minnesota’s new deputy commissioner of the Corrections Department’s community services division. A Black man with an advocacy background, Shanklin said in a phone interview and by email that upon getting the appointment, he immediately began working toward reducing revocations.
“We stopped thinking about supervision as accountability and enforcement and started thinking about it more so as supportive services,” Shanklin said. Along with retraining parole officers to act more like “coaches and mentors” than disciplinarians, he described how the department is working to keep people in the community.
Among other innovative measures, Shanklin’s department instituted a quick screen, so those accused of parole violations are able to find out if their parole will be revoked in less than two weeks. They also added many graduated sanctions in lieu of incarceration.
“We restructure rather than revoke,” Shanklin said. Identifying one sign of success in an email, the deputy commissioner wrote: “Since the beginning of the COVID-19 outbreak in March, the downward trend in release violator admissions to prison has accelerated rapidly. The number of release violator admissions from April-June 2020 (163) is about one-fourth the number from the same period in 2019 (613) and one-fifth the number from the April-June period in 2017 (760).”
Boehnke applauds the changes but said more work needs to be done: “We still haven’t seen accountability for parole officers making bad decisions, i.e. sending people to prison for no reason. They have an incredible amount of power over people’s lives.”
Jeremiah Sims, who has been a parole officer in the greater Minneapolis-St. Paul area for 13 years, works under Shanklin. Along with a team of three others, he supervises primarily Native Americans who are considered high-risk to return to prison, and who make up 10% of Minnesota’s prison population. In a phone interview, Sims said his goal is to consider the “totality of circumstances to see if there are community alternatives.”
“If someone is drinking, we want to figure out why they are consuming alcohol, where they are living, their stress level, and we want to connect with the individual,” Sims said. “We rarely send them back to prison if they are not posing a community safety risk.”
California Gov. Gavin Newsom has said publicly that a “core value” of his administration is to shrink the footprint of prisons. Newsom gained attention earlier this year when he called for shortening parole to a maximum of two years, down from five years for felonies. In response to the coronavirus pandemic, the California Department of Corrections and Rehabilitation (CDCR) released 10,000 prisoners considered low-risk.
CDCR also promised to let out 8,000 other prisoners by the end of August, many with less than six months left on their sentence. Medically vulnerable prisoners were to be evaluated on a case-by-base basis to determine if they could be released. This would bring the total to 18,000 prisoners released.
Still, advocates say that much more needs to be done to release people considering the vast size of the California system. As of Aug 19, there were 102,282 state prisoners in custody. According to the CDCR, as of Aug 27, there were 10,210 confirmed cases of COVID-19 among state prisoners.
David Muhammed, who heads the nonprofit National Institute for Criminal Justice Reform (NICJR), said in an interview that Newsom is not the first California governor entreated to reduce prison populations. In 2011, under then-Gov. Jerry Brown, California was forced by the US Supreme Court into “realignment” to reduce its dangerously overcrowded prison population. To comply, the state transferred 30,000 people convicted of nonviolent crimes from state prisons to county jails and changed many policies.
One policy shift that resulted from the realignment was that people with technical violations (except those who had originally been given life sentences) would no longer be sent to state prisons, but instead would serve their revocations, up to a maximum of 180 days, in county jails. As a result, Muhammed said, fewer people who have violated paroles with technical violations have therefore been sent to prisons. CSG’s report notes that of the total prison population, only .05% were reincarcerated for technicals.
Critics, however, say the realignment merely shifted the problem of mass incarceration to jails— a problem that has also been compounded by the coronavirus pandemic.
On March 27, more than 70 California activist organizations and individuals wrote to Gov. Newsom, CDCR Secretary Ralph Diaz, and other public officials, stressing the urgency of changing a number of supervision practices in light of the pandemic. It is not clear if the CDCR changed practices because of their concerns, but as in many other states, parole office visits have since been held virtually, with some employment requirements lessened.
Modest COVID-related accommodations aside, activists are seeking permanent practices that could keep people out of jail for technical violations. Sandra Johnson, who has been off parole for three years, said in a conversation how devastating technical parole violations have been to her life.
“I was being in the wrong area, associating with the wrong people, they told me,” said Johnson, who was in and out of Chowchilla Prison for 15 years. “Just because they saw me in a certain area, they said I was in a gang.” At one point, Johnson recalled, she was told she couldn’t be around her sister, who also had a record.
The Columbia Justice Lab’s report on racial inequities in supervision notes: “An order to stay away from other people who have a felony conviction may seem reasonable at face value.” But the report’s authors argue that it is unfair to force people, particularly people of color who are overrepresented on parole, to avoid those who can provide support, housing, stability, or employment connections.
Now free in California, Johnson has been going back into Chowchilla to teach prisoners how to avoid parole violations after release. As a program coordinator with Root and Rebound, alongside an attorney who is also her supervisor, she taught in-person classes throughout 2019 and correspondence classes in the months since the coronavirus outbreak.
“We create a blueprint for them,” Johnson said of the prisoners she helps. The attorney gives legal advice, and Johnson tells her story. She added, “They say, Sandra is a rock star because she has walked our journey. They need to see someone come back in who has made it.”
Root and Rebound is also working with other grassroots organizations—#Cut50, NICJR, others—to provide incentives for people to follow the rules. Together, the groups backed a bill that would reduce returns to prison and time on parole, and shift parole from punitive-based to goal-oriented. By promoting educational, vocational, and rehabilitative programs, the legislation aims to provide support; under a section titled “Incentive-Based Community Supervision,” the bill offers “fifteen days of credit per month for remaining free of any new arrests or parole violations.” As of this writing, the bill made it to the governor’s desk, where it has until the end of September to get signed into law. Activists are hopeful.
In Minnesota, some advocates contend that parole reform efforts are compromised on account of the lack of representative diversity among those tapped to advance change from the inside—a significant consideration for anyone involved in similar efforts anywhere. Sims acknowledges that his team, which supervises Native Americans on parole, is all white. But when asked if there are cultural issues that arise as a result of that homogeneity, he said, “No.” The collaboration, he argued, is successful.
Lyle Iron Moccasin, originally from the Lakota tribe in Minnesota, disagrees. Moccasin, who is the recruitment coordinator for Takoda, a branch of the American Indian Opportunities Industrialization Center in Minnesota, said an all-white team supervising Native Americans is a problem, pointing out difficulties that arise with recognizing 287 different Native cultures in Minneapolis-St.Paul, “each one … a nation within itself.”
“There needs to be more working knowledge of how the culture functions,” Moccasin said. “For example, our funerals take three days.” He also spoke of how it’s commonplace to have no clocks. “In other words, you get there when you get there,” Moccasin said. “But if your PO tells you to come in the morning at 10 am, and you roll in at 11, you could get a technical and be going back to jail.”
Shanklin agreed with Moccasin’s concerns, and noted that he opened up a dialogue with staff of color after Floyd’s murder in May. “For the approximately 7,200 people on parole,” Shanklin said, “it’s important to ask, How can we be intentional around programming that is both gender and culturally specific?”
Finding potential solutions elsewhere, the IWOC began working on new legislation, borrowing the “Less Is More” rallying cry from New York. Boehnke said the bill will be ready for the next legislative session, and “provides for a stepdown on probation and parole so people can get off supervision if they demonstrate good behavior.”
Regarding the big picture, Prison Policy Initiative gives states across the country failing grades for their inability to decarcerate in large numbers since the pandemic struck. Still, in response to ongoing grassroots campaigns and more immediate calls for decarceration amidst coronavirus concerns, several states are addressing the problem of technical parole violations—in March, the Colorado Department of Corrections temporarily suspended arrests for low level technical violations; Wisconsin did the same, while Ohio and Alabama, among others, ordered some releases of people detained for minor parole infractions.
“We have seen some significant changes partly because of our conversations and partially due to COVID-19,” Boehnke said. The IWOC member emphasized the need for certain practices to be codified into law.
“We don’t want changes to be dependent on the good will of an organization.”
This week Jonathan Best will listen to AA meetings online, and he may be visited by his PO officer for a breathalyzer test. He will go to Boston for his job at a pizza place and to Upton where he works outside on oil tanks. He will be with his family.