Mass Incarceration Affects Half as Many as Mass Probation

Since the 1970s, the American prison population has grown by 700 percent (while the general population has grown by approximately 150 percent). While America’s problem with mass incarceration has regularly been the focus of public scrutiny, its inextricable link to another issue that touches even more people has been largely ignored.

Over the past two decades, the number of people serving probationary sentences has nearly doubled the number of people incarcerated. At a peak, about 1 in every 53 U.S. adults were part of the state and federal probation population; for Black men, the rate was 1 in 12. Notably, the majority (78 percent) of these probationers and parolees were convicted of nonviolent offenses.

While probation and parole are seen as less severe (and less costly) alternatives to incarceration, probation, and parole violations regularly result in (re-)incarceration. In 2019, at least 153,000 individuals were imprisoned for non-criminal probation or parole violations. In 2018, 28 percent of U.S. state and federal prison admissions resulted from probation or parole violations. Clearly, mass probation feeds mass incarceration.

Now, prior offenders regularly express a preference for incarceration (over probation), particularly if they are Black or Latinx. These findings illustrate an important asymmetry between how punitive the system is versus how punitive those being punished rank probation relative to incarceration (and, more generally, how onerous probation and parole have become).

Yet, relatively little research has examined how probationary sentences impact legal decision-making. Thus, in a recent paper, my coauthors and I directly examined the impact of probationary sentences on the plea decisions of innocent and guilty mock defendants.

To begin, we administered a pilot survey examining how a general population (i.e., not just prior offenders) compared probationary and carceral sentences. Overall, we found that participants preferred probation over incarceration at a ratio of 1 to 2.5. In other words, a one-year jail sentence was roughly equal to 2.5 years on probation.

Thus, in the study, we offered two alternative probation lengths: one significantly less onerous than the trial sentence (of one year in jail) and one significantly more onerous than the trial sentence. We also varied how much information we provided mock defendants regarding the terms of a typical probation sentence. We provided some with a general disclosure (e.g., various restrictions and requirements) and others with a more detailed disclosure (e.g., a monthly fee of $65, quarterly meetings, etc.) of common probation terms.

While we found some evidence that innocent mock defendants were impacted more by probation duration and disclosure than guilty mock defendants, both groups were impacted. Mock defendants were less likely to accept the plea (and less willing to plead guilty) when the probationary sentence was longer, and the disclosure of terms was more detailed. We also found that, regardless of probation parameters, innocent mock defendants were significantly less likely to plead (and less willing to plead) than guilty mock defendants.

That said, while mock defendants were sensitive to changes in probation parameters, they still regularly accepted (even overly punitive) probationary sentences to avoid incarceration. Among the innocent mock defendants, over 20 percent of those offered the more punitive probationary sentence with a detailed disclosure still agreed to plead guilty.

Further, mock defendants were less sensitive to the duration of the probation sentence (a difference of one versus five years) when only a general disclosure was provided. Mock defendants were more sensitive to the duration of the probation sentence when a detailed disclosure of the terms and conditions that would accompany that sentence was provided.

In conclusion, our results indicated that most people are ignorant of the consequences of non-carceral (probationary) sentences. Thus, to preserve the validity of plea convictions, judges must ensure that defendants fully understand all the terms and conditions to which they agree.