Our justice system must reward success

When Americans who are on welfare get a job and no longer need public assistance, we rightly celebrate that. Similarly, are we also willing to acknowledge when Americans on community supervision have proven to be exemplary and no longer need the long arm of government around their neck? The issue of when the system’s mission has been accomplished is raised by Alice Marie Johnson’s recent request to terminate her post-release supervision.

Ms. Johnson is a 64-year-old grandmother who was recognized by the president at the State of the Union Address after the president commuted her life imprisonment sentence. Her case came to the attention of the White House when Kim Kardashian-West discussed it with Jared Kushner. Johnson, who was incarcerated for a nonviolent drug offense, served some 21 years behind bars and, by all accounts, demonstrated exemplary behavior both in prison and in the year since she has been released.

The prosecutor’s filing on July 2 opposing Johnson’s request does not argue that she poses a danger to the public. However, the federal law in question does not require such a showing. Instead, it allows her, and others, to be denied release from supervision based on their “history and characteristics.” This permits supervision as a means of perpetual punishment, even though there may be no public safety rationale for it. This approach forces us to ask: Are we trying to get effective results from our criminal justice system or is something else at work here?

Given that 4.5 million Americans are on community supervision, the question of how many of them no longer require government control has far-reaching implications, both from a government fiscal standpoint and societally. Fortunately, policymakers are increasingly focused on creating standards for whether continued supervision is needed that focus not on the past, but on the future. Since 2007, 18 states have implemented policies allowing individuals on probation to earn time for exemplary performance.

Robust earned time and early termination policies for community supervision have proven effective for both public safety and taxpayers who fund probation and parole agencies. In 2008, Arizona enacted a law giving people on probation 20 days credit for each month they make progress on their treatment plan and avoid new arrests. In the subsequent two years, the number of people on probation convicted of new crimes substantially declined.

This is not surprising given that research reveals that most recidivism occurs during the initial part of the supervision period. Multiple studies show that people are most likely to recidivate right after being released than at the end of their supervision. Similarly, after New York City early terminated low-risk people on probation, they were less likely to be re-arrested for a new felony during their first year off supervision than similar individuals who had remained on supervision.

Moreover, removing people for whom monitoring isn’t likely to improve public safety from the supervision rolls frees up probation and parole officers to supervise those who are at greater risk of committing a new crime. This means these officers can do more than shuffle the files of 100 people on their caseload and instead provide interventions such as motivational interviewing that addresses the attitudes and behaviors of those most at risk to recidivate.

Despite the progress some jurisdictions have made in providing incentives for success and focusing supervision on those who need it, many others do not allow earned time or early termination. Additionally, excessive supervision periods remain, ranging from up to 40 years on probation for some in Minnesota to lifetime parole sentences in Nebraska.

When it comes to community supervision, we must focus on how well the system achieves rehabilitation, not on maximizing its duration. Let’s reward success by allowing people to demonstrate they are not a threat and earn their way off supervision. Intensive supervision has a place for those most at risk of going back to their old ways, but in many cases, government can accomplish more by doing less.

Marc Levin, Esq. is Vice President of Criminal Justice at the Texas Public Policy Foundation, which houses the Right on Crime initiative. Follow Marc on Twitter at @MarcALevin