Probation is supposed to be an alternative to prison. It might be a trapdoor instead.

In theory, community supervision programs provide a more forgiving and rehabilitative sentence. In practice, probation and parole seem to be a feeder to prison.

Electronic ankle monitors are a well-known aspect of criminal probation. Less well known are the fees and other rules that can easily trip up probationers and send them to prison, as Vincent Schiraldi, a former corrections official, describes in "Mass Supervision: Probation, Parole, and the Illusion of Safety and Freedom."Eduardo Munoz Avarez/Associated Press

It has been well documented by now that there are more people in prison in the United States than in any other country in the world. But that oft-cited statistic — that the United States is home to about 4 percent of the world’s population and roughly 20 percent of the global prison population — only begins to tell the whole story. That’s because while American jails and prisons housed nearly 1.8 million people in 2021, the total number of people under correctional supervision was actually more like 5.4 million.

So what explains that gap? Welcome to the world of community supervision, where instead of putting people behind bars, the state monitors offenders in their neighborhoods and homes. In 2021, there were more than twice as many people on either probation or parole as those living in cells.

On the surface, that doesn’t seem like such a bad thing. On the contrary, probation offers sentencing judges an alternative to sending people to prison — a less disruptive punishment that saves people from being cut off from society. After all, imagine if the people on probation or parole were locked up instead: The prison population would be more than triple what it is.

But if you dig a little deeper, you’ll see that the reliance on community supervision looks less like providing a more forgiving and rehabilitative sentence to those who violate the law and more like a major add-on to the carceral state. Because if probation and parole were indeed an alternative to incarceration, then you might expect the number of those under supervision to rise as the prison population declines, and vice versa. Instead, the use of probation and parole ballooned alongside prisons and jails as the age of mass incarceration reached its peak some 15 years ago. In fact, on a graph these two correctional populations have more or less looked like parallel lines over the last several decades, rising and falling together.

“Probation and parole were meant to be incarceration reducers,” says Vincent Schiraldi, the former commissioner of New York City’s Department of Probation. “But the fact that they both rose together lends credence to the notion that probation and parole are an add-on, a net widener.”

Even more concerning is the fact that there are serious problems with how probation and parole programs are run across the country, from privatization and for-profit schemes to seemingly arbitrary rules that are extremely hard to follow. And ultimately, they don’t seem to achieve their purported goals: Instead of diverting offenders from prison, probation and parole may actually be further entrapping people in the criminal justice system. That’s the picture that Schiraldi, who also founded the Center on Juvenile and Criminal Justice and the Justice Policy Institute, compellingly illustrates in his new book “Mass Supervision: Probation, Parole, and the Illusion of Safety and Freedom.”

One of the most jarring problems that Schiraldi outlines is how many state governments have contracted out supervision programs to private businesses. According to a 2014 report by Human Rights Watch, each year hundreds of thousands of people in the United States are put under the supervision of for-profit companies, some of which have been shown to engage in predatory behavior. That isn’t surprising: If a company makes money from people being on probation, then it’s in its financial interest to keep as many people on probation as possible. And yet in spite of this inherent conflict of interest, private companies are also often given ample discretion to require those under their supervision to be subject to conditions that may not even be part of a court sentence, like wearing an ankle bracelet or taking regular drug tests, increasing the likelihood that someone can be cited for a violation.

Moreover, many people under supervision have to pay for their own monitoring services, which in extreme cases can run them nearly $100 a week. Failure to pay could mean a prison term, and while courts can’t send you to jail if you prove you can’t afford the monitoring fees, the distinction between being unable and unwilling to pay has proved to be somewhat subjective.

This “offender-funded” justice system has a disproportionate impact on the poor, and that’s especially evident when it comes to what is known as pay-only probation.

In Georgia, for example, you can be put on probation if you can’t afford your fine for a low-level offense. By design, this almost exclusively funnels poor people into supervision because if you can afford to pay your fine, you can simply settle your legal problems and move on. But for people who don’t have sufficient funds to pay off their debt on the spot, the fines become all the more unaffordable: Not only does a given offender still have to pay their original fine but they also have to pay for their own probation.

In some cases, Schiraldi points out, that means double or even triple the original costs, and if the fees aren’t paid in time, people can be sent to jail. That’s one way probation ends up contributing to getting more people imprisoned, because in those kinds of cases, someone could find themselves serving jail time for something that has nothing to do with their original offense. According to the Council of State Governments Justice Center, there are roughly 280,000 people sitting in prisons as a result of a supervision violation on any given day.

“Pay-only probation directly contradicts the goal of probation as an alternative to incarceration and is the clearest possible example of net-widening,” Schiraldi writes. “In such cases, probation isn’t an alternative to incarceration, it’s a fee-collection vehicle.”

This isn’t to say that probation and parole can’t offer a meaningful alternative to incarceration — one where people can continue to live their normal lives, seeing friends and family and going to work. But the reality is that these programs haven’t delivered on that promise; they might actually just be serving as a trapdoor to prison.

As researchers wrote in another Human Rights Watch report, from 2020: “Most people locked up for supervision violations were not convicted of new offenses — rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs.”

In other words, it’s not that people are getting sent to prison despite having been given a chance to serve out a sentence on probation; they’re landing in prison because of it.

That’s not what a success story sounds like. In fact, the conditions of probation can be so harsh that many people, when offered a choice, opt for jail time over supervision. Studies have shown that’s especially true for Black and Latino people, who are more likely to be cited for rule violations than their white counterparts. The problems with probation programs are so glaring that even the officers who run them understand why opting for jail time can be a rational choice. In 2016, for example, the probation director in Bell County, Texas, said that if he was ever given a choice, he’d avoid probation and choose to serve prison time instead.

In his book, Schiraldi reaches a similar conclusion. “During my time running probation in New York City, I witnessed two people under my department’s supervision voluntarily terminate probation in court and go to New York’s notoriously violent jail system on Rikers Island, just to be done with probation,” he writes. “Listening to their descriptions of the unnecessary ordeals we put them through, I couldn’t say I blamed them.”

Schiraldi ends his book by advocating for what he calls “incremental abolition” — that is, dramatically downsizing parole and probation, and in some cases ending the practice altogether. Though there’s no clear blueprint for an alternative to them, he argues that policymakers must invest in figuring out a replacement, not a simple reform of the system.

That might sound unrealistic, but when the former commissioner of one of the largest probation departments in the country says that probation in the United States may very well be too flawed to reform, then it’s time to consider whether change is overdue.