You've been convicted of a crime. You've (perhaps) served jail or prison time, paid your debt to society, and you're done. You step out of those jailhouse doors absolutely free!
Welcome to Part 5 of How Courts Actually Work. Part 1 (Why are police so bad at investigation?), Part 2 (How to pay money to leave jail), Part 3 (What is a trial and how), and Part 4 (Why prison?) are all available on my tumblr.
In our current criminal punishment bureaucracy, realistically no one gets released without being on some form of "community supervision." This may sound unfamiliar to you, but you've heard of it before, usually in the forms of "parole" or "probation."
Once you are released, you report first to your parole/probation officer. (I'm going to be using "probation" here because my jurisdiction has abolished parole; see last post. This is essentially equally applicable to parole, though.) They have you sign a set of rules. These rules usually have some variation of the following:
2: Get a job, keep a job. (Exception is if you are disabled and on Social Security disability income.)
3. Always tell the truth to the probation officer and let them visit your house.
4: NO DRUG. NO ALCOHOL (maybe). NO GUN.
5: Call your probation officer if anything happens at all at any time and get their permission to do normal adult things.
There are some more subtle variations like don't live with anyone else convicted of a felony, and there can also be "special" conditions like submit to drug treatment, or register on the sex offender registry, or no contact with your ex.
On the surface, these things seem more or less simple: lots of adults every day in America get by with no alcohol, gun, drug, crime. However. You start running into trouble right there at "job." It's pretty commonly known that having a crime on your record makes finding a job A Lot Worse, so I'm not going to harp on that one; we all know. If you were hiring, you'd probably consider it, especially before you read this and realized how stupid most successfully prosecuted crimes are.
Let's talk about no drug, alcohol. You will probably be required to do random drug and alcohol screens (they can detect the byproducts of alcohol in your urine, so buckle up, you're still on the hook for that one). You will be observed peeing. It will be humiliating. That will be the least of it. You're like: no problem, I don't do drugs. Hold on, my friend.
Pretty much every "scheduled drug" (drugs that are classified according to potential for abuse) has benign/legal compounds that create false positives. Gabapentin can create a false positive for benzodiazepines (like Xanax, Valium, etc). Effexor can create false positives for methamphetamine. So can Prozac or beta blockers. Adderall creates a correct positive for amphetamines, but is, let's be clear, one of the safest and most effective psychiatric medications for any condition on the market. Various cold and flu remedies can give false positives. Depending on how they are washed and processed, poppy seeds can still give false positives for marijuana. Antihistamines, Benadryl, and ibuprofen can show up as PCP. Seroquel shows up like methadone.
In a simple drug screen, none of these are distinguished from each other. All a drug screen does is show yes/no. A more complex drug test (off to the lab!) is required to distinguish. Probation officers may not want to send a test to the lab, may believe you're lying about what you took, and may attempt to intimidate you into signing admissions for drug use. Given that a probation officer can have you arrested without a warrant or any kind of judicial approval, their threats are gonna seem pretty important!
So that's the problem with drug screens and their accuracy. How about timing?
One of the most common ways to do random drug screens is called "color code." People have to call in every (day? week?) by a certain time to hear whether their "color" is up for a random screen. If it is, they have to find a way to get in to the probation office to get tested. With lack of transportation, spotty cell access, and potentially great distances to the probation office, as well as punishing work schedules in places that will fire you if you miss your job without notice, these can be a problem. Moreover, those of you with executive dysfunction should be wincing right now, because you know that correctly calling in every week at the right time is going to be a problem for someone who's drowning.
In addition, probation will almost certainly require you to go and do some kind of treatment for something, these days. It's usually drug treatment, but sometimes psychological treatment. These groups will be whatever is cheap and available, which means it'll likely be during business hours. Pray to your gods that your Early Recovery Skills group is available by phone and you can fit it in your lunch break, or otherwise your constant need to drive to the probation office to go to that appointment is going to lose you your job.
And, oops, you violated probation.
Or you could skip the Early Recovery, keep the job, and –
Sorry, no, you've violated your probation.
You missed Early Recovery because it was a shift you couldn't reschedule, but you can make it in next week! Okay but if you miss one more you're terminated from the class, and, you guessed it –
Folks, probation is actually pretty hard and complicated. In addition, it does not help the people who are going through it. Like, in an ideal world, we're talking: people get out of jail, and someone keeps an eye on them to make sure they don't return to a Life of Crime and to help hook them up with the right job programs to give them something to strive for. In reality, they go straight from being institutionalized and subject to a rigid routine to being free and needing to jump through what's actually an incredible number of hoops, very quickly.
It's hard to be an adult and alive. Imagine being an adult and alive who has to stay out of jail by doing a bunch of extra shit!
It's important to note that probation was not always this way. Not everyone used to get probation, and not every violation turned into jail time. There has been a noticeable change.
According to the Office of Justice Programs, about 1 in 6 offenders admitted to prison in 1980 were there for probation or parole violations. In 2021 and 2022, the percentage that were there for violations of probation or parole was 44-45%. From 17% in 1980 to 45% in 2022.
From 17% in 1980 to 45% in 2022.
Are you starting to understand why the population of our prisons skyrocketed between 1980 and 2010?
The reality of probation and parole now is that you can't get free. There are too many requirements. It's made for failure. And even if you do complete your requirements completely, even if you are picture perfect on probation, you will never stop paying for what you did, because criminal records are forever.
In my jurisdiction, this includes juvenile records. If you have any conviction as a juvenile, it will last past your adulthood. A misdemeanor will stick around until you're 21 or after 5 years has passed, whichever is longer. A felony will stick around forever (but might not prevent you from voting or buying a gun after the age of 29!).
Okay, okay, you say, at least tell me that all this probation, all these violations, have done something. Have they made people safer? Have they reduced crime?
Uh, apparently? No. Extra-intense supervision has been studied with relation to both low-risk and high-risk offenders, and it doesn't help community safety with either one. What it does do is send more of them to prison in the first two years of probation. Same with extra-long terms of probation. Same with kids on probation. There's no point; there's no benefit.
If I bring this up to a prosecutor, you know what they have always said? Literally, without any exception? All of them?
"Okay, we'll just put them in jail instead."
Coool. Cool cool cool. That's the point you should take from this, for sure.
Let's talk about the impact of this incredible explosion in extra jail time.
This is felt most keenly in poor communities. (Especially poor communities that are black or Latino.) Remember when I was talking about investigations, and how nearly every case is low-hanging easy fruit? That stuff is all from poor communities. Search a beaten-up car, and the odds are pretty decent that you'll find, somewhere in the trash, a used baggy or bit of pipe that has some drug residue on it. Bam, drug felony, and that person's in the system.
Every time one of these people goes to jail, those closest to them are seriously affected. You're taking away single parents and primary wage-earners, and putting them behind bars long enough for them to lose their jobs, apartments, and cars, and have all of their possessions carted off to the dump, kicked to the curb, or destroyed. Imagine starting from zero. Imagine starting from zero with your credit score shattered because you couldn't make your car payments because you were in prison for not going to your Early Recovery Skills group.
Kids are deprived of their parents not once, not twice, but over and over again over the course of childhood. They're deprived of the food and shelter that adult could maintain for them. They see their parent get sucked back again and again. How is a kid like that supposed to have any hope for the future? How are they supposed to feel about themselves when they constantly see their dad over a tablet at a jail, fifteen minutes at a time?
Figures indicate that as many as a third of black men spend time in jail or prison over the course of their lives. Those black men and their sons are wrenched apart. Their futures are squeezed dry because Joe Senator doesn't want to pay for another program. The kids are deprived at school, stereotyped, and eventually arrested. When they're arrested and sentenced, more money is spent on them to lock them up a single year than has been spent on their education and medical care over the course of a lifetime.
In the meantime, the Atlantic is writing articles about our Generation of Loneliness. They note that in the inner city, facilities that used to be public are only opening behind locked doors. Pools, clubhouses, sports fields? Community gathering centers? They don't exist anymore. These kids have nowhere to go. If they go into foster care, and dare to express any non-positive emotion, especially the older kids, they're likely to be shunted off to restrictive and locked mental health facilities that are rife with abuse and corruption, and that, on the surface, look a hell of a lot like jails.
What leaves me speechless with my clients isn't that so many of them fail. It's that some of them actually succeed. In the midst of the economy and more stacked endlessly against them, they manage to trick Medicaid into funding drug treatment programs long-term, or they find programs that act as job resources too. They build themselves up from the ashes they started with. And they thrive.
Let's talk about penalties for probation violations.
My jurisdiction, a couple years ago, switched up the penalties. If you do a "technical violation" – that is, if you don't get a new criminal charge, and instead you just fail a drug test or don't keep employment – your first time carries no jail time. Second time, a few weeks.
Great! That's a step in the right direction.
Again, not so fast. "Technical violations" did not include "special conditions of probation." You know, the ones like sex offender registries and no contact with exes? So, when faced with this limitation on their previously unlimited power to sentence for violations, judges began to list every
as a special condition of probation, in their sentencing orders.
When the Court of Appeals shot this down, they started putting in any possible way they could expand those conditions to make it a special condition.
You have to "follow the probation officer's recommendations for drug treatment." But if the court orders a special condition of drug treatment, and you don't go? That's a special condition violation, not a technical violation, and now you can get jail time for it.
Yes, courts responded to this clear signal of legislative intent by directly attempting to bypass it and give people more jail time. This should not be surprising. Judges sentence people to jail, and they have to believe that it works. Ego protection and confirmation bias entrench them in this position over the course of decades.
For a special condition violation, you could get all of your suspended time back.
Let's talk about an example in a previous post, Jane, who gets 3 years with 2 years suspended. Jane is ordered into drug treatment. Jane can't juggle it, mostly because of transportation. She gets 2 full years revoked. She appeals it – this is wrong!
The Court of Appeals will tell her: you can't appeal this jail time. It was previously imposed on you back when you agreed to your deal. It's too late now.
Let's go back in time. Say Jane appeals it at the time, and says that two years of suspended time is too much. You know what the Court of Appeals would say?
You can't appeal that jail time. It's not imposed; you don't have to serve it. You have no grounds for appeal. It's just suspended. It may never happen to you.
To my authors reading this: there is almost no possible way that you can make a bureaucracy more nonsensical than our criminal justice system already is. You will, in fact, probably have to tone it down, if you're going to write about it. This is one big reason that nobody knows what a clusterfuck it is.
idk, y'all, I think I've basically covered it. If anyone has specific questions about aspects of this – appointed lawyers? Jury selection? Juvenile law? – let me know and I'll do my best. Again, I've been a practicing lawyer going on ten years. I don't mind spilling the bean tea.
