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As we explained in a report earlier this month, every U.S. state punishes far more people than is remotely necessary, not just with long prison terms but with long stints on probation and parole. 42% of prison admissions nationwide are for violations of supervision, meaning that these supposed “alternatives” to mass incarceration are major drivers of the system.
While radical reforms to probation and parole are warranted, a handful of modest reforms have the potential to quickly shrink the number of people under supervision and even to release significant numbers of people from incarceration. This morning, the Prison Policy Initiative and the Katal Center for Equity, Health and Justice released a report called Excessive, Unjust, and Expensive: Fixing Connecticut’s Probation and Parole Problems that lays out this winnable, high-impact reform package — one that could be replicated in many other states.
We published this report to support advocates on the ground in Connecticut who, at this moment, are pushing lawmakers to implement a reform package that could make the state’s parole and probation systems significantly fairer. Advocates working to implement similar reforms in other states may find our report helpful as they marshal arguments in support of change.
Our report recommends that states — like Connecticut — that want to implement these reforms take the following steps:
Restrict the use of incarceration as a punishment for technical violations of probation and parole. In Connecticut, as in most states, hundreds of people behind bars are serving time for noncriminal acts that happened to violate one of the (often burdensome) conditions of their supervision. The authors find that Connecticut’s probation system imposes up to 17 different rules on supervisees, making it difficult to impossible to avoid slipping up. Incarcerating so many people for noncriminal behaviors is not just draconian; it’s also expensive, costing taxpayers about $1,200 per week per person.
Replace automatic incarceration for alleged violations with a written notice to appear in court. Correctional facilities are full not only of people serving time for supervision violations, but people accused of such violations, who frequently end up behind bars for weeks as they await hearings. The new report explains that of the 100 people on parole locked up every month for alleged parole violations, many are likely put there for no good reason at all: Approximately 1/3 ultimately have their parole reinstated with no finding of wrongdoing. The authors estimate that reforming this draconian system — by serving people accused of violations a notice to appear in court, rather than throwing them behind bars — would lead to at least 6,000 fewer people being arrested over the next 2 years.
Apply earned-time credit to supervision sentences. At least nine states currently allow people on probation and/or parole to shorten their supervision sentences by demonstrating good behavior, but Connecticut has no such system. “Earned time” incentivizes success under supervision and reduces caseloads, allowing probation and parole staff to focus on people who have the greatest needs. In Connecticut, the authors find that implementing an earned-time system similar to New York’s, and allocating time credits to people currently on supervision retroactively, would get thousands of people off of supervision immediately.
Bolster due process. In Connecticut — and across the country — many people charged with probation or parole violations are unaware of and do not exercise their rights. Those include, in Connecticut, the right to a lawyer at parole and probation revocation hearings and the right to a preliminary hearing (a court appearance in which someone can dispute a parole officer’s decision to detain them). In fact, in an observation of 49 parole revocation hearings in Connecticut in 2015, zero defendants appeared with state-provided counsel. Without knowledge of their rights, people are more likely to have their probation or parole revoked and end up behind bars. The report urges Connecticut to communicate and protect defendants’ right to counsel and preliminary hearings, to speed up the process between someone’s preliminary hearing and their disposition, and to guarantee that hearings take place in a neutral, public location (rather than a jail).
The report also includes a section explaining the significant benefits New York State has seen from implementing similar reforms through its Less Is More Act, illustrating the potential gains for other states considering reforms:
In just the first few months after its enactment, Less Is More led to nearly 2,000 people on parole who had been incarcerated for noncriminal technical violations being released from jails and prisons.
New York was able to close six state prisons in 2021, partly because lawmakers (accurately) anticipated a drop in incarceration due to fewer people being incarcerated for technical violations.
In less than two years, Less Is More cut the state parole population by 40% by allowing people on supervision who had followed the rules to earn time credits that led to their discharge.
All too often, the report explains, people on probation or parole have their lives disrupted by allegations of misbehavior, leading to lost jobs, lost housing, and broken or strained family ties. Many of these individuals should not have even been under supervision in the first place. And because incarceration is expensive, taxpayers are paying a heavy price for a system that doles out punishment much more than it offers support. Excessive, Unjust and Expensive lays out a path to reining in these draconian and costly aspects of supervision, proposing policies that could immediately impact thousands of people in Connecticut — or virtually any other state.
As if serving a prison sentence wasn’t punishment enough, 20 states and the federal Bureau of Prisons detain over 6,000 people, mostly men,1 who have been convicted of sex offenses in prison-like “civil commitment”2 facilities beyond the terms of their criminal sentence. Around the turn of the millennium, 20 states,3 Washington D.C., and the federal government passed “Sexually Violent Persons”4 legislation that created a new way for these jurisdictions to keep people locked up — even indefinitely — who have already served a criminal sentence for a “sex offense.” In some states, people are transferred directly from prison to a civil commitment facility at the end of their sentence. In Texas, formerly incarcerated people who had already come home from prison were rounded up in the middle of the night and relocated to civil commitment facilities without prior notice. This practice, though seldom reported on, made some news in 2017 when the U.S. Supreme Court declined to hear a case from Minnesota after a federal judge deemed the practice unconstitutional. The Prison Policy Initiative has included civil commitment in our Whole Pie reports on U.S. systems of confinement, but here we offer a deeper dive, including recently-published data from a survey of individuals confined in an Illinois facility under these laws.
Two critiques of “civil commitment”
Some advocates call civil commitment facilities “shadow prisons,”5 in part because of how little news coverage they receive and how murky their practices are. In Illinois, for example, the Department of Corrections (DOC) facilities are overseen by the John Howard Association, an independent prison watchdog organization. But Rushville Treatment and Detention Facility, a civil commitment center that opened after Illinois enacted its own Sexually Violent Persons Commitment Act in 1998, is not subject to the same kind of oversight because it is housed under the Department of Human Services and is not technically classified as a prison.6 This is true in many states that have “Sexually Violent Persons” laws on their books, and consequently, horrific medical neglect and abuse proliferate in these shadowy facilities. For instance, a New Jersey civil commitment facility was one of the deadliest facilities at the beginning of the COVID-19 pandemic.
Similarly, Rushville is not held to the same reporting requirements as DOC facilities, so gathering data about people’s movement in and out of the facility is only possible by filing an open records request. Reportedly, the Bureau of Justice Statistics will take steps to begin collecting data about indefinite post-sentence ‘civil’ confinements in June of 2023. Until that happens, it’s only possible to get aggregated counts of how many people are civilly committed — nothing like the individual-level information prison systems are expected to provide in the service of transparency and accountability. This is true across the U.S., as civil commitment facilities are housed under different agencies from state to state, which makes it exceedingly difficult to measure the full scope of these systems on a national level. As a result, estimates about how many people are currently civilly committed vary from 5,000 to over 10,000 people.7 Increased accountability and oversight must be chief among efforts to address this broken turn-of-the-millennium policy trend.
A second critique of this system is reflected in another term advocates use to describe it: “pre-crime preventative detention.” Civil commitment (unlike other involuntary commitment practices, such as for the treatment of serious mental illness) can be seen as “double jeopardy” repeat punishment for an initial crime,8 or preventative detention for a theoretical future crime that has not occurred. Advocates rightly critique the fact that one of the primary justifications for civil commitment is the predicted risk that detained individuals will “re-offend,” even though people who have been convicted of sex offenses are less likely to be re-arrested than other people reentering society after incarceration.
Regardless, in many states, people who have been convicted of sex offenses are transferred from DOC facilities to civil commitment facilities at the end of their sentence and held pretrial, then re-sentenced by the civil courts. The length of these sentences is often indeterminate, as release depends on progress through mandated “treatment.” But neither “risk assessment” nor “progress through treatment” are objective measures. In fact, advocates and people who have experienced these systems argue that risk assessment tools are used to rationalize the indefinite confinement of identity-specific groups, and that assessing progress through treatment is a highly subjective process determined by a rotating cast of “therapeutic” staff.
New data: A survey of individuals held in a “civil commitment” facility
A recent report from Illinois (which I co-authored) goes beyond the numbers and reports that for many, civil commitment seems like a life sentence. This 2022 report, based on a 2019 study of residents at Rushville Treatment and Detention Facility (one of Illinois’ two civil commitment facilities), exposed demographic disparities, discrimination and abuses inside, and flaws with the broader framework of civil commitment. Like the broader carceral system, civil commitment disproportionately impacts Black and Brown people. In particular, the Illinois report noted an overrepresentation of Black, Indigenous, and multiracial people at Rushville. This is in line with the findings of the Williams Institute’s 2020 report, which found that, on average, Black people were detained in civil commitment facilities at twice the rate of white people in the states studied.
Biased admission criteria lead to disproportionate consequences for select groups
Further, the overrepresentation of LGBTQ+ and disabled people in these facilities reflects obvious biases that are “baked into” the civil commitment decision-making process. Many states use risk assessment evaluations to assess whether or not one should be civilly committed. These actuarial tools use outcome data from previously incarcerated people and conclude that, because past studies found groups with specific characteristics more likely to re-offend, individuals that match those criteria must be continually confined. Risk assessment tools are generally problematic and frequently make incorrect predictions. Chicago attorney Daniel Coyne says that in sex offense cases, risk assessment tools are 58% accurate, or “not much better than a coin toss.”
Illinois and many other states use the Static-99/99R, which predicts individuals’ risk using data about groups that come from overwhelmingly unpublished studies. This risk assessment tool is notably homophobic, as it assigns a point (and thus, a higher risk value) to those who have a “same-sex victim.”9 The Williams Institute writes:
In addition to normalizing violence against women, this a priori assigns gay, bisexual, and MSM [men who have sex with men], who are more likely to have a male victim, a higher score, marking them as more dangerous than men who have female victims regardless of any other characteristics of the offense.
The evaluation also considers those who have never lived with a romantic partner to be at higher risk of reoffending, which means that LGBTQ+ people who may not be able to safely live with a partner in a homophobic area and young people who may not have had the opportunity to live with a partner yet would receive higher scores. Accordingly, representation of LGBTQ+ people in Rushville was drastically higher than in the general public:
Criteria for detention usually include diagnosis with a “mental abnormality,” in particular, a personality disorder or a “paraphilic” disorder that indicates “atypical sexual interests.” “Paraphilic” is a problematic category that relies heavily on scrutinizing and pathologizing human sexuality.10 Further, the act of civilly committing people to a “treatment” facility implies that there is a mental health issue or “nonnormative” sexual behavior to be treated and/or cured. This is especially alarming given that the American Psychiatric Association completely disavows the practice, saying, “Sexual predator commitment laws represent a serious assault on the integrity of psychiatry.”11
Since having a “mental abnormality” is a criterion for admission, measuring the overrepresentation of disabled people in these facilities is challenging. By the logic of civil commitment, 100% of people inside have a psychiatric disability. In the Illinois report, 26% of Rushville respondents self-identified as having a disability, compared with 21% of the Illinois population. Low levels of educational attainment (i.e., having a high school degree or less) were also very high, at 48%. Anecdotally, survey respondents reported that many of their peers inside could not complete the survey because they were illiterate or had cognitive impairments that prevented them from reading and filling out a paper questionnaire, so disabled respondents’ voices are likely underrepresented.
Indefinite and punitive detention with no evidence of efficacy
Agencies that control civil commitment often insist that civil commitment is treatment, not prison. Texas Civil Commitment Center staff even went so far as to instruct detainees “to call their living quarters ‘rooms,’ not prison cells.” But advocates question whether or not civil commitment can be considered therapeutic. Can forced confinement inside facilities with high rates of violence, controlled by staff who use the same punitive measures that are common inside prisons, ever be healing?
Two-thirds of respondents inside Rushville in Illinois report that they have been sent to solitary confinement, a (potentially permanently) psychologically damaging practice. Rushville, like other civil commitment facilities across the U.S., also uses archaic treatment and evaluation technologies, including the penile plethysmograph, a “device [that] is attached to the individual’s penis while they are shown sexually suggestive content. The device measures blood flow to the area, which is considered an indicator of arousal.” Rushville detainees are subjected to chemical castration, or hormone injections that inhibit erection and have been linked to long-term health impacts. Further, their progress through treatment is measured using a variety of highly questionable evaluation tools, including polygraph lie detector test results which have been inadmissible in Illinois courts since 1981. The technologies that these facilities rely on look a lot more like medieval torture devices than the supposed “therapeutic tools” that they claim to utilize.
Even if we buy into the myth that civil commitment facilities provide the treatment they claim to offer, there is minimal evidence that this supposed treatment works, and moving through treatment tiers is difficult, if not impossible. Even staff inside report that they receive pushback when trying to advance people toward release. One review from a past employee of Rushville’s contracted mental health care service, Liberty Healthcare Corporation, reported, “The hardest part of the job is fighting for residents who should be on conditional release and dealing with the outcome when refusing to act in unethical ways.” Progress through treatment is dependent on a regularly fluctuating staff, often made up of graduate students who are finishing their residencies and then moving on to another facility. Residents inside report being demoted to earlier tiers of treatment by new residents who disagreed with previous staff members’ assertions.
With little transparency about or consistent standards regarding how to progress through treatment, many people inside say that civil commitment feels like a de facto life sentence. At Rushville, the average length of detention was 9.5 years and counting. According to a 2020 FOIA response from the Illinois Department of Human Services, more than twice as many people had died inside than had ever been released. Similar circumstances have been reported from Texas, where only five men were released in the facility’s first two and a half years of operation, four of whom were sent to medical facilities where they died shortly thereafter. A 2020 article about Rushville included the following findings:
Slightly more than half of the total population [has] been held for 10 years or more. Fifty-one people in Rushville have been held in civil commitment for 20 years or more, and 12 have been in civil commitment for 22 or more years, meaning they’ve been in civil commitment since the statute was implemented in 1998.
People inside reinforce these findings. One Illinois survey respondent reported, “This is a life sentence after the completion of a criminal sentence. We are treated worse [than] prisoners. This is a sentence of death by incarceration. Not a revolving door program.” Indefinite sentences that are contingent on progress through treatment that feels unhelpful and opaque contribute to distress inside. This distress can result in violence and a hateful culture, between detainees and from staff to detainees. Three-quarters of detainees report being discriminated against by staff, and one-quarter report being physically harmed by staff. 8% of detainees said they were sexually harmed by staff. Anecdotally, respondents shared a number of stories about experiencing physical or sexual harm from other residents. Though civil commitment facilities are tasked with “treating” sexual violence, they actually create physical environments that foster sexual, physical, and emotional violence.
Conclusions
Civil commitment facilities are not only legally and ethically dubious, they also fail to deliver on the very objectives that justified their creation. Even still, the trend toward preventative and “therapeutic” forms of detention that are fueled by biased and error-filled algorithms and risk assessment tools is growing. As one reporter from Texas notes:
Critics of private prisons see in the Texas Civil Commitment Center the disturbing new evolution of an industry. As state and federal inmate populations have leveled off, private prison spinoffs and acquisitions in recent years have led to what watchdogs call a growing “treatment industrial complex,” a move by for-profit prison contractors to take over publicly funded facilities that lie somewhere at the intersection of incarceration and therapy.
In an era where lawmakers frequently champion “evidence-based” punishment, the public must remain vigilant in questioning whether these practices actually accomplish their supposed goals. Do they reduce the mass incarceration of hyper-policed communities? Do they minimize the ongoing harms of the criminal legal system? Do they reduce the number of people entering prisons or increase the number of people exiting them? In the case of civil commitment, the answer to all of these questions is no.
Though under-resourced, the movement to address harmful civil commitment policies is longstanding. A variety of advocates12 are leading campaigns to address ineffective sex offense policies across the U.S. (including the sex offender registry system). Other organizations support ongoing litigation campaigns like the one that was considered by the U.S. Supreme Court in Minnesota. Advocates inside and outside agree that civil commitment facilities fail to deliver meaningful safety and healing.
This data was provided by the Sex Offender Civil Commitment Program Network. ↩
We use the term “civil commitment” throughout because it has widespread name recognition, and because it accurately characterizes the civil legal system’s commitment of individuals to various facilities, but as we will discuss further, advocates often use more descriptive terms such as “shadow prisons” and “pre-crime preventative detention.” ↩
These states include Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin. ↩
We reference these laws by name so that they are easier for readers who want to look up the statute to find, but do not endorse using this language to refer to people. ↩
The Sex Offender Civil Commitment Program Network requests aggregate numbers from each state regularly — and these annual survey counts are what we use in our Whole Pie reports — but some advocates believe this is an underestimation because how one defines who is civilly committed varies between reporting agencies. For example, should those on “conditional release,” who are not confined but still subjected to stipulations of their state’s Sexually Violent Persons Act, be considered free? ↩
From the Williams Institute report: “Critics have also noted the potential misuse of paraphilic disorders, a group of psychiatric diagnoses related to ‘atypical sexual interest.’ This category is extremely broad and includes pedophilic disorder as well as consensual sexual ‘kinky’ behaviors such as sexual masochism and sadism. The critique is that such diagnoses can be used [as] justification for civil commitment for a wide range of offenders. Paraphilic disorders diagnoses are so broad that they could be used to characterize as mentally ill many practitioners of kink, bondage, sadomasochism, or any sexual practice perceived to be deviant. This may have important implications for gay and bisexual men and [men who have sex with men], whose sexual cultures may be viewed as kinky or otherwise nonnormative due to stigma and prejudice” (pages 2-3). ↩
We’re excited to announce that Brian Nam-Sonenstein has joined our team as a Senior Editor and Researcher. In this role, he’ll research and write briefings and reports, and provide editing support to other members of our research team.
Before joining Prison Policy Initiative, Brian worked as a columnist and reporter for news outlets including the Portland Phoenix, Marijuana Moment, and Shadowproof, where he is a co-founder and publishing editor. He also organized the Marvel Cooke Fellowship to produce reporting by incarcerated writers. Brian is a co-host of the Beyond Prisons podcast and has been actively producing media for over a decade on issues ranging from drug decriminalization to prisoner-led organizing. His work has been published in Solitary Watch, Truthout, Prison Legal News, SF Bay View, and more. In addition to his work as a journalist, Brian served as the Director of Public Relations for NisonCo, a cannabis & psychedelics PR firm. He holds a B.A. in International Relations from Wheaton College.
Report ranks states' use of “correctional control” to provide the full picture of mass supervision in the U.S.
May 10, 2023
1.9 million people are behind bars in the U.S., but this number doesn’t capture the true reach of the criminal legal system in the country. In a new report, Punishment Beyond Prisons: Incarceration & Supervision by state, the Prison Policy Initiative shows how in America, the overuse of probation and parole, along with mass incarceration, has ensnared a staggering 5.5 million people in a system of mass punishment and correctional control.
Punishment Beyond Prisons shows the full picture of correctional control in the country, with a particular focus on the overuse of probation and parole. Altogether, an estimated 3.7 million adults are under community supervision (sometimes called community corrections) — nearly twice the number of people who are incarcerated in jails and prisons combined. The vast majority of people under supervision are on probation (2.9 million people), and over 800,000 people are on parole. The report explains how people supervised through these programs live under a harsh set of rules that others do not, and that these rules often lead them back to incarceration. In addition, it provides over 100 easy-to-understand pie charts that show how many people are behind bars or under some form of community supervision in each state.
“Probation and parole are often talked about as a more ‘lenient’ approach than incarceration, but these programs are insidiously designed to extend the reach of mass punishment beyond the prison walls,” said Leah Wang, author of the report. “To understand the full scale of the carceral system in a state, you have to look at how — and how often — probation and parole are used, and whether they strengthen our communities or simply serve as a revolving door to prison.”
Punishment Beyond Prisons provides a chart that ranks states by their use of correctional control, allowing policymakers, advocates, and journalists to better understand the scope of their state’s system of mass supervision, and how it stacks up against others.
Looking closely at state variations in the use of various forms of correctional control reveals just how differently states mete out punishments; in particular, states vary tremendously in their use of community supervision. For example, the report shows:
Massachusetts and Utah have nearly identical rates of overall correctional control, but 68% of people in Massachusetts’ punishment systems are on probation, and only 28% are incarcerated in state and federal prisons and local jails. In Utah, on the other hand, only 39% are on probation, and a much larger share (46%) are incarcerated.
Minnesota has a larger share of its population under correctional control than Alabama does, even though a resident of Minnesota is far less likely to be incarcerated than a resident of Alabama.
Because of its large probation system, Rhode Island’s total correctional control rate rivals that of Louisiana, one of the most notoriously punitive states in the country (with the nation’s highest incarceration rate).
Probation and parole are important tools that can reduce the number of people in prisons and jails. However, too often, community supervision sets people up to fail, by forcing them to comply with vague and wide-ranging rules and fees, and failure to comply can mean going to jail or prison. These “failures” are so common that less than half (44%) of people who “exited” parole or probation in 2021 did so after successfully completing their supervision terms, many of the rest were reincarcerated for “technical violations,” such as missing a check-in or nonpayment of fees — things that are not crimes in any other circumstance.
“When used properly, probation and parole can be tools to keep people out of prisons and jails,” said Leah Wang. “Instead of burdening people with onerous requirements that make it more — not less — difficult for them to build stable lives, state and local leaders should focus on connecting people with the services and supports that help them meet their social, economic, and health needs.”
The report concludes by highlighting successful reforms that have improved probation and parole and reduced the number of people behind bars. For example, California instituted new time limits on probation terms that are projected to save the state $2.1 billion. New York enacted major legislation intended to reduce unnecessary incarceration for noncriminal, “technical” offenses of parole, resulting in hundreds of people becoming immediately eligible for release and thousands more no longer living with arrest warrants for these technical offenses. Additionally, Louisiana restored parole eligibility to certain people and reduced the number of years some people must wait to be eligible for consideration.
We’re excited to introduce our new Policy & Advocacy Manager, Sarah Staudt! In her role, Sarah will provide support to state and local advocates working on issues where we have expertise and connect them with data and resources that can strengthen their campaigns.
She holds a B.A. in Law, Letters and Society from the University of Chicago and is a graduate of the University of Chicago Law School. Prior to joining the Prison Policy Initiative, Sarah was the Director of Policy at the Chicago Appleseed Center for Fair Courts where she worked intensively on the Pretrial Fairness Act in collaboration with the Illinois Network for Pretrial Justice. She also worked as a Staff Attorney at the Lawndale Christian Legal Center where she represented young people accused of crimes in juvenile and adult court.
