Joshua B. Hoe interviews Allison Frankel about her report on parole and probation
Full Episode
My Guest: Allison Frankel
Allison Frankel is a Neier Fellow at the American Civil Liberties Union and Human Rights Watch and focuses on human rights violations within the US criminal legal system. Prior to joining Human Rights Watch, Allison served as a fellow with the Center for Appellate Litigation, where she challenged archaic and unlawful restrictions on sex-offender registrants. She is a graduate of Yale Law School.
She was also the author of the report we are going to discuss today called “Revoked: How Probation and Parole Feed Mass Incarceration in the United States.”
Notes from Episode 96 Allison Frankel
The first due process case that Ms. Frankel discussed was Yunis v. Robinson
The second case discussed was Arroyo v. Annuci.
Ms. Frankel also talked about Murphy v. Raoul.
Other important research on the topic of parole and probation reform includes:
Summary of the Urban Institute Report
A much longer version of the Urban Institute Report with citations:
Still, Wendy, Barbara Broderick, and Steven Raphael. Building Trust and Legitimacy Within Community Corrections. New Thinking in Community Corrections Bulletin. Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 2016. NCJ 249946.
Executive Session on Community Corrections. Toward an Approach to Community Corrections for the 21st Century: Consensus Document of the Executive Session on Community Corrections. Program in Criminal Justice Policy and Management, Harvard Kennedy School, 2017.
Jacobson, Michael P., Vincent Schiraldi, Reagan Daly, and Emily Hotez. Less Is More: How Reducing Probation Populations Can Improve Outcomes. Program in Criminal Justice Policy and Management, Harvard Kennedy School, 2017.
I did the interview with Allison Frankel before I started asking for book recommendations, but I went back and asked her recently and she recommends “Prison By Any Other Name” by Victoria Law and Maya Schenwar.
Full Transcript
Joshua B. Hoe
Hello and welcome to Episode 96 of the Decarceration Nation podcast, a podcast about radically reimagining America’s criminal justice system.
I’m Josh Hoe, and among other things, I’m formerly incarcerated; a freelance writer; a criminal justice reform advocate; and the author of the book Writing Your Own Best Story: Addiction and Living Hope.
Today’s episode is my interview with Alison Frankel about probation and parole. It was recorded before the end of the Trump administration, so you’ll hear references to Trump administration personnel.
Allison Frankel is the Arya Neier Fellow at the American Civil Liberties Union and Human Rights Watch and focuses on human rights violations within the US criminal legal system. Prior to joining Human Rights Watch, Allison served as a Fellow with the Center for Appellate Litigation, where she challenged archaic and unlawful restrictions on sex offender registrants. Allison is a graduate of the University of Wisconsin-Madison and Yale Law School.
She was also the author of the report we’re going to be discussing today called Revoked: How Probation and Parole Feed Mass Incarceration in the United States. Welcome to the Decarceration Nation podcast, Allison.
Allison Frankel
Thanks so much for having me, Josh.
Joshua B. Hoe
I always ask the same first question. How did you get from wherever you started in life to now, working on issues like homelessness, the sex offender registry, probation and parole, and human rights violations within the United States legal system? An easy first question.
Allison Frankel
So I’ve just always been really interested in how we can shed light on abuses that the government tries to cover up. After college that led me to the ACLU, where I worked to challenge ways that governments just banish people into the black box of jail and prison. I spent a lot of time helping out with a report that was sharing the stories of people serving life without the possibility of parole, this living death sentence, for incredibly minor conduct like possessing small amounts of drugs or stealing tools from a tool shed. And of course, disproportionately these people were black and brown and poor. And so I decided to go to law school so that I could represent people like them in court. And through law school, I did basically as many clinics and internships as people would let me, working with those brutalized by our legal system, as you mentioned; working with poor people charged with crimes in the Bronx; fighting for people on death row in the south; documenting the criminalization of homelessness, and extreme forms of solitary confinement. And I came to realize a couple things about this movement and mass incarceration, which has become increasingly much more mainstream since I graduated college in 2011 – around the time that Michelle Alexander’s The New Jim Crow was really gaining steam – really impacted how I wanted to approach this work. First, I was realizing that in fighting mass incarceration, we were leaving behind acceptable confinement, people charged with violent crimes, particularly with sex crimes, who are getting locked out of a lot of this reform movement. And the second part of that, is that the focus on mass incarceration was ignoring the millions of other people ensnared in other oppressive and brutal forms of correctional control, like probation and parole. So that’s really what led me to my two most recent positions, working with sex offender registrants as a post-conviction public defender with the Center for Appellate Litigation. And now as a Fellow with Human Rights Watch, and the ACLU, where I just spent the last year documenting how probation and parole – these so-called alternatives to incarceration – are in actuality, feeding high numbers of people – disproportionately black and brown people – right back to jail and prison. So I’m convinced that in order to have meaningful criminal law reform, we need to fight for reform for everyone, not just those convicted of low-level crimes, and not only tackle incarceration in cages with physical bars, but also other forms of correctional control, like mass supervision.
Josh Hoe
So before we move on from this, you said you’ve always been interested in this. But I mean, seriously, you were like six, and you’re like, I want to go into criminal justice reform work or…?
Allison Frankel
I give my parents tremendous credit for just really fostering an environment where we were constantly watching the news, just kind of growing up with this idea that our humanity is really intertwined, and that we have to care about other people who didn’t grow up with the same privileges that I had. The memory that really sears into my head most for how I got more down this path was when I was younger, I was in middle school, and we were watching the news as we did every morning, and it was the execution of Timothy McVeigh. And I remember he had asked for his last meal for a pint of mint chocolate chip ice cream, and that was my favorite flavor of ice cream and remains [my favorite]. And it was just this moment of, they’re killing this guy and we like the same thing. I don’t think I realized I wanted to do criminal justice reform then, but I think it opened my eyes to the ways in which people that have been cast aside have been labeled monsters, literally not deserving of breathing. [People who] like to eat ice cream and like to do the same things we do. And there’s something really human and pure in that; it’s worth saving and worth investigating further. And I think that really sparked my interest in storytelling and documentation and speaking particularly with folks that have been really just cast out of the rest of society.
Josh Hoe
It’s interesting, I spent a lot of my life in Oklahoma and actually knew people who worked in the Murrish federal building. So there’s a lot of connections just in this conversation between the two of us. Before we move to your report . . . in the last year, I’ve been really concerned about a wave of hostile press responding to homelessness and about political narratives that have been calling out cities where large numbers of homeless people reside. Since you have a background in this area, too, do you have any thoughts to share about this unfortunate political narrative that’s been going on in the last year or two?
Allison Frankel
Yeah, I think it’s incredibly disturbing. And especially we’re seeing it recently in New York, in the Bay Area, these places that really profess so many liberal values, but when push comes to shove, they don’t like seeing people on the streets, and they want them to move because they don’t want to have to acknowledge that we live in a society where we’re not providing people with one of the most basic things, like a roof over their head. And I think it’s a really profoundly disturbing trend. I was looking into the criminalization of homelessness with some clinic partners when I was in law school in New Haven, and just seeing the ways that the campus police at Yale (where I went), tried to shoo people away from the areas near campus, particularly when parents would be coming to town; the way that my friends and I would linger outside of coffee shops without ever getting a glance from the police. But the people I was interviewing, who were living in homelessness, would be constantly asked to move from place to place. And, you know, the answer that I kept getting when I would talk to government officials following my advocacy during law school was, you know, we have to do this to preserve public safety, to preserve public spaces. But you know, it just begs the question of who is the public? And what does it mean to be safe? Because if you talk to a person who is living on the streets, they’ll tell you that they do not feel safe, they are not safe. People who are getting incarcerated as a result of life-sustaining conduct, like sitting on a park bench or urinating outside if they don’t have access to a bathroom, are getting thrown into jails and prisons, where they’re at risk of even more harm, and an even more devastating cycle once they’re out. So I think it really is, all the work I’ve been doing begs the question of who do we consider part of the public? Who are we protecting? And how can we move the needle on getting people to understand that even if you don’t like the way someone looks, don’t think that they deserve to be part of it, they are here; they are residents of our cities, our towns, our communities, and their safety is bound up in ours?
Josh Hoe
You know, following a theme, I would say probably my listeners on this podcast, I hope, are as dialed in on registry reform issues as anybody. You’ve done some work on registries as well. Would you talk a little bit about that work?
Allison Frankel
Yeah, so I spent a year working at the Center for Appellate Litigation specifically focused on representing people who were subject to the sex offense registry in New York, which is just an incredibly burdensome thing to have to follow. You have reporting requirements consistently, not only to the organization that handles sex offender registration, you’re generally also on parole or another form of supervision. So you also have that host of requirements. High numbers of people also have to comply with New York’s residency restriction, which means you’re not allowed to live within 1000 feet of a school. In New York City that makes finding a place to live that’s affordable nearly impossible. In Manhattan, almost the entire island is off-limits under this law. And as a result, one of the things I was most focusing on that’s profoundly disturbing, is that New York is not releasing people from prison if they haven’t been able to find housing that meets these residency restrictions. So you have hosts of people that are just sitting in prison beyond their parole release dates, beyond their other forms of release, just because they’re homeless. And meanwhile, of course, the state disclaims any responsibility to find these people housing, and they’re not able to leave prison to go look for a place to live. They don’t have free access. They don’t have access to the internet. They don’t have free access to phone calls. So it’s putting them in this impossible position, and then prolonging their detention because of this. So we’ve been doing a lot of work to challenge that in the courts. I think there’s a lot of room for other legal challenges there, both in New York and in other places where this and similar other things are happening. But as you mentioned, it goes back to this same idea that we have created this “other” and put them in this separate system to protect public safety, again, forgetting that these people are part of the public. And it’s even more outrageous because it doesn’t work. No evidence shows that requiring people to be on a public registry, that prohibiting them from living near schools, or churches or parks protects public safety, there’s been no evidence showing that it works. So not only is it causing this profound harm, but it’s ineffectual. And of course, as everyone knows, you’d expect with all these restrictions that we have a society that was free of harm, but sexual harm and sexual violence are still widespread in our relationships, in our families, in our schools. And so all of this is not actually getting at the root causes of violence. And it’s something I’ve seen again and again in this work, whether it’s the sex offense registry, whether it’s homelessness, whether it’s probation, we’re not getting at the actual root causes of what’s leading people to engage in this behavior. All we’re doing is marking people as “other” and banishing them away.
Josh Hoe
I think I would go a little farther and say, not only is there no evidence that says that sex offender registration protects public safety in any way – however we define the public. There’s also a lot of evidence that suggests that it’s actually counterproductive. And despite that, we keep just adding more and more layers. Just a few weeks ago, AG Barr put out new regulations encouraging states to, in essence, agree to join in federal registration schemes. And you know, we’ve seen recent court decisions like well, Willman [v. US Attorney General], that suggests that people have a federal obligation to register so that even people who graduate from state schemes would still theoretically have to register, even though there’s not a federal registry. It seems in many ways things are headed in a . . . and there’s also examples of like people trying to create new registries because I guess the first of the sex offense ones were so damn successful. And so it seems like things are heading in a dark direction on registry reforms. Do you have any feelings since you’ve done some of this court work on what’s going wrong? The evidence is certainly on our side. And yet, it seems like we’re not getting very far right now.
Allison Frankel
Absolutely. And you raised such a good point that I want to talk back on for a second – that not only is there no evidence that this stuff works, but the evidence we do have shows that it’s profoundly harmful, leading people into homelessness, into unemployment, into social isolation – all of the things that are actually more likely to lead to recidivism, to instability, and make it harder for people to get back on their feet. So it’s incredibly counterproductive. I agree. It’s harrowing, it’s frustrating that this has been so neglected and left behind. Even though the needle has really moved so far on many other challenges to mass incarceration and mass criminalization, I’m still really committed to the idea that we can be bringing due process claims challenging this, because the government’s got a compelling interest in protecting public safety. But as we’ve been discussing, Josh, there’s no evidence that it does that. And in fact, it’s counterproductive to that goal. So there has been limited acceptance of these types of arguments in the court. But there was, for instance, an interesting case out in the Southern District of New York called [Equan] Yunus a year or so ago, where they got a preliminary injunction, saying that someone didn’t have to be on the sex offender registry. In that case, it was not actually an underlying sex offense, but kind of going on this due process argument that in that case, there was just no evidence this person posed any threat to children or to others; there was no likelihood that he was going to commit a sexual offense and it violated his due process rights to keep him on the registry. So I’m interested in building out those types of arguments more. There were really exciting cases out in Alabama, ADA Stacy Adams, and this case, Murphy v. Raoul out in the Eastern District of Illinois, challenging similar schemes to New York, where people were just being held in prison beyond their release dates solely because they were poor and homeless. And those actually got struck down on equal protection claims for discriminating against the poor, and Eighth Amendment grounds for criminalizing their status as homeless. So again, these are few and far between. There’s way more bad decisions than good ones, but I think there’s some good kernels there that we have to just continue building on and really shifting the public conversation to not silo sex offenses as this thing that’s all there, but it’s part of mass incarceration. It’s certainly part of mass supervision. It’s part of the criminalization of homelessness; you can’t talk about any of these issues without talking about the impact it has in particular on people subject to this extra layer on the registry.
Josh Hoe
So let’s get to your report on supervision. First, the report suggests that you are introducing a lot of new evidence. Do you want to talk about how you got that data and what makes it unique?
Allison Frankel
There’s been increasing discussion about how probation and parole are feeding mass incarceration and some good nationwide snapshots on how much supervision violations are filling prison populations in different states. But one of the big open questions we had was, what is the actual conduct? What is the actual stuff that is bringing people back into jail and prison? And through public records requests and interviews in the states – we focused on Wisconsin, Pennsylvania, and Georgia – we were able to get a good amount of that data. We were not able, unfortunately, to get good data from Georgia. But in Wisconsin and Pennsylvania, for instance, we were able to see that of people getting violated for their supervision, it was largely for rule violations like failing to report an address; using drugs; breaking the rules of a mandatory treatment program. And when it was for a new offense, those offenses were often minor things like drug possession; public order offenses, such as disorderly conduct; misdemeanor assaultive conduct; or shoplifting. And another big thing that we looked through was, what happens to people? What happens to people once they are accused of violating their supervision? And, you know, there’s been reporting that there are these detainers, which require people to be held without any bail while waiting for their proceedings. But we were able to really dig into that. And what we uncovered was really horrifying; that in many places, these detainers are filed automatically when someone is accused of violating their supervision, even for a minor technical or rule violation, even if there’s no evidence that they’re likely to flee the jurisdiction. And in many places, they’re then held there for months, just waiting for a hearing to challenge the allegations. If you’re charged in criminal court with any crime, you are entitled to an initial hearing within 24 to 72 hours. So this is a really extreme deprivation of liberty, just by the nature of the fact that you’re on supervision. And we also uncovered glaring racial disparities. And this isn’t surprising, right? Our entire criminal legal system, our entire society, is just filled with racism at every single level. But we were able to look, for instance, at Wisconsin to find that black people are incarcerated for supervision violations at a rate four times their representation in the state’s population. For Native Americans, it’s seven times higher. So these are really glaring and incredibly concerning.
Josh Hoe
I think one of the questions that I have, right off the bat, is do you feel that – even before we start digging deeper into this – that our system of supervision, parole, and probation, on the whole, makes our community safer? Is the whole premise correct?
Allison Frankel
I think the whole premise is really flawed and similar to the conversation we were having before about the registry, in many ways counterproductive. So if we look back at what supervision was supposed to be, it’s totally different than what we see now. Supervision started as this thing in the 19th century that was supposed to spare people from the horrors of prison and help them get back on their feet. Have a community member or other sponsor that would help you find a job, get anything you needed to get your life back together. And it worked like this for a while, it was certainly always paternalistic, but it was very explicitly grounded in rehabilitation and very much with the idea that we have to keep these people out of jail and prison. And you see this dramatic shift in the 1970s when supervision just runs headfirst into the war on drugs, into the tough-on-crime movement, these racially politically-charged moments, and the system we have now bears so little resemblance to what was originally designed. [Now] you have law enforcement officers with the power to search you on a hunch at basically any given moment, and dozens and dozens of conditions to comply with each day. And even if these conditions are extensively designed to help people, you know, they can be having a job, having treatment if you’ve got an addiction, stable housing. But we’re not actually giving people the tools they need to get those things. We’re just requiring it and then threatening them and imposing incarceration if they fail to do it. And a lot of people have suggested, including for instance Martin Horn, who formerly headed New York’s parole system, that instead of having this whole apparatus, this whole bureaucracy of people who oversee you, who surveil you and apply and enforce these conditions, we could just take all that money we’re spending to do this and give it directly to people to get the things that they need. And I think that’s a really interesting idea. I think there’s lots of other ways to do it. But from everything I’ve seen, from the people I’ve talked to, from the data that exists, there’s no real evidence that this is actually working compared to just giving people help getting jobs, getting housing, getting stable transportation, getting any health care that they need, just giving them those services, without the surveillance aspect, without the punishment aspect.
Josh Hoe
You know, I’m just following this thread – and if you don’t have a good answer to this, I understand – but I know when I was in prison, there were some people who chose to basically play out the string and get released after they finished their entire maximum sentence. And so they were never on parole or probation after incarceration. In some states, it’s like that. Are you aware of any evidence that suggests that people are more successful or less successful when they’re under supervision versus when they don’t deal with supervision? Is there any way to even make those comparisons?
Allison Frankel
So I’m not sure about any studies on that front. But I will say – and I’m sure you’ve heard these stories too – that many people choose short and certain incarceration over the uncertainty of supervision. So it’s not surprising to me at all that people would wait out their sentences, just to avoid the fear, the arbitrary-ness, the oppression, and surveillance that is attendant to being on supervision.
Josh Hoe
Seems like at some point that would be a good study, to see if the outcomes were different, because if people don’t ever experience parole and probation, and they end up with similar outcomes, then why are we wasting all this time and money on surveillance?
Allison Frankel
And I would just add on to that quickly. The main thing I’d want to be seeing, whether or not you’re on supervision after you’re released is, what resources do you have? What network do you have? Because I’d wager that the biggest distinction we’re going to see is who had family and loved ones to support them, who had a stable house waiting for them, who had a job, who had access to transportation. And sure, sometimes supervision does help people get these things. And I’ve spoken with many supervision officers who do try really hard to connect people with those services. They don’t have enough of them. And you shouldn’t have to be on supervision or in the criminal legal system to get help accessing those types of resources.
Josh Hoe
And I think it’s also fair to say that they make it harder in a lot of ways, which we’ll talk about in a little bit, even if they mean well, that a lot of the rules and regulations make it harder. You know, I think I saw a tweet earlier today where an attorney was saying that a judge was asking why someone who was on probation hadn’t yet gotten a job, but it was like the 10th time they’d had to be in court in like a month.
Allison Frankel
Right, during a workday. Exactly.
Josh Hoe
Gee, I wonder why I can’t keep a job? I’ve got to be in court every couple of days.
So according to the report, as many as 45% of prison and jail admissions are related to parole and probation violations; am I getting that number right? It seems pretty crazy.
Allison Frankel
It’s really crazy. So the Council on State Governments published this study showing that in 2017, nearly half of those entering our state prisons were sent there for supervision violations; that could be breaking a rule – anything from breaking curfew to not reporting their address, or committing a new offense – but without being convicted in court of that offense, right, just being accused of it on this lower standard that is used in supervision violation proceedings. The crazy thing too is that’s just our state prisons. So that doesn’t include anyone who’s in jail, or anyone in these what are called partial confinement facilities, like probation detention centers, sometimes they’re called parole violator centers, which can mirror minimum security prisons, because there’s just such little data on those facilities. So the true scope of this problem is, crazily enough, actually even higher than that. And the vast majority of these people were not convicted of a new offense. Studies show that 67% of those sent to jail or prison following parole revocation in 2016 were sent there without a new conviction. For probation, that number was 58%. So it’s really really high numbers of our prison and jail populations. And again, often without any new conviction.
Josh Hoe
It’s interesting because I wonder about the disaggregation of that within recidivism statistics, because you often hear as many as 60-70% of people recidivate after they return, and I wonder how much of that is bound up in this number that is actually supervision violations; do you have any thoughts on that?
Allison Frankel
I’m not sure about specific studies on that front. But we know so many people are getting sentenced to supervision on the front end, or are serving supervision terms on the back end. And it’s just a massive tripwire right back to jail and prison. So we know that a huge chunk of the people who are recidivating are doing it at least in part because of a violation of their supervision. You know, for instance, in Wisconsin, over the last couple of decades, we found they’ve admitted about twice as many people for supervision violations as for regular criminal convictions. So this is getting really out of control and has been that way for a long time in these places.
Josh Hoe
I thought about this a lot when I was on supervision; is there a rational or evidence base? I know there were a bunch of requirements, at least when I was on supervision, that seemed to make no sense at all. And I mean, I could see how the logic maybe happened, but I couldn’t see any reason why it would follow. Is there a rational or evidence-based connection between most conditions and the likelihood of committing new crimes? Because these lists are fairly long and fairly involved, and people have to follow an incredible amount of details or find themselves back in trouble again.
Allison Frankel
I met a guy in Milwaukee, Ernest Burgess, who had to comply with 39 rules for a drug conviction. And they included things like not loitering in non-drug areas, which I’m not sure how he was supposed to know whether someplace was a known drug area; never carry more than 100 bucks on them at a time; total sobriety, not just from drugs, but also from alcohol. Just these really wide-ranging, as you mentioned, conditions that don’t seem to have anything to do with people’s underlying offenses. And a big part of that problem is that in so many jurisdictions, they just have these standard conditions – they might be 8,10,12 – that they slap on in every single case, regardless of that person’s actual underlying offense, of their needs, of their goals. And in many cases, I’d say a huge number of cases, these conditions are not tailored to people’s individual needs, goals or perceived risks. There’s also a separate problem of jurisdictions increasingly turning to the use of risk and need assessment tools, which ostensibly tailored these things more to their risks, but are hugely problematic; these things are riddled with racial biases, they’re often inaccurate, they’re just they’re replicating other biases that are baked into different parts of the system. So even some forms of tailoring that are happening are raising their own problems. A lot of people have suggested that we need a rule that you just start from scratch, if we’re going to have supervision, for those who are on it. No standard conditions, we actually go through one by one and impose a small number of rules that are actually reasonable and are actually related to people’s needs and goals. But I think for the most part, they’re not. I think when we talk about what we want to see from people on supervision, we want them to have a safe place to live. We want them to have a job, we want them to be able to support themselves and their loved ones. And instead of mandating it, we can just help them get those things. We don’t have to do it through this oppressive, surveillance-focused punitive system.
Josh Hoe
You know, here in Michigan, one of the things we’re fighting to do is to cut back on probation terms for people who are in jail, usually for probation, as opposed to parole; here there are five-year terms. I know you talk about the length of parole and probation. Can you talk a little bit about the evidence and why these long parole and probation terms are problematic?
Allison Frankel
They’re hugely problematic. And in the states we studied, the problem is even worse; in Wisconsin, Pennsylvania, Georgia, and a couple others, there’s no caps on probation terms. So you have people in Georgia, for instance, [where] it’s standard to get 10 years of probation for a shoplifting offense or a drug offense. And there’s just no evidence that shows that these long supervision terms are doing anything helpful. Most of the studies that I’ve seen say, one year, maybe two years of supervision, that’s where you’re gonna see people recidivating or committing other crimes. Beyond that, you have really vastly diminishing returns and the people you do get in are often because you know, a decade on supervision, who’s not going to come home late one night; who’s not going to miss a meeting; who’s not going to change apartments, especially if their housing is unstable without telling their probation officer about it? So you’re picking people up for these minor things in many cases. So the evidence really shows that, again, if we’re gonna have this system, one or two years is far more than enough for any alleged safety concerns.
Josh Hoe
Yeah, I actually have one friend who lives here in Michigan – but he’s still on supervision from Wisconsin – who’s been on supervision for 18 years, I believe. Another element in supervision is fines, fees, and costs. Would you like to talk about what you learned about this?
Allison Frankel
Yes, that’s another hugely problematic part of this system; supervision brings its own costs and is incredibly expensive on top of all of the fines, fees, and restitution that a regular criminal charge can bring. Many places charge you a monthly fee for the pleasure of being under their supervision. If you’re required to be on an ankle monitor you might have to pay for that.
Josh Hoe
I’m still paying off my ankle monitor. And I guess it’s been seven years.
Allison Frankel
It’s insane. And we know that most people who are under the criminal legal system that have the resources – if they have the resources – they probably wouldn’t have gotten involved in the stuff that got them convicted in the first place. And on top of this, drug testing often carries a charge; drug treatment classes carry a charge. I talked to one guy who was required to go to sex offense treatment classes, just basically forever, he was just paying like $50 a month, indefinitely. The classes weren’t really doing him any good or teaching him anything, but that cost was still there. And then ultimately, at some point, he ran out of money. And he stopped going because he was so scared to show up there empty-handed. And he got revoked, for failing to show up. But really, it was because he didn’t pay. And that’s what happened time and again, with so many of the people I talked to. Another man down in Georgia who had thousands of dollars – over $3,000 – in fines and probation costs that he owed, and he’d been working and paying them off. But his grandmother got really sick, she had Alzheimer’s, and she came down with another illness. And he was the only family member that was strong enough to lift her. So he quit his job at the sausage factory to go and help his grandmother out. And when he did that he ran out of money to pay his probation officer, and his PTO had told him you know, if you show up empty-handed, the judge is probably going to send you to prison. Whether or not the judge actually would have sent him there for just not paying, I don’t know, but he sure believed her. So he stopped showing up because he got nervous; he ultimately got arrested and spent about three months in jail, just because he wasn’t able to pay. So this is an incredibly burdensome requirement on people who already are lacking financial means, to then pay fines and fees on top of it. And it often leads people to incarceration, whether directly just for pure failure to pay, even though you are not under US law allowed to incarcerate someone just because they cannot pay, only if they willfully decide not to pay; or in many cases indirectly, because they just stopped showing up when they don’t have the money because they get scared.
Josh Hoe
Yeah, I make this argument pretty often. But it seems like a recipe for disaster to make people employment and housing insecure purposefully. And yet, that’s what our whole system in a lot of ways is based upon. Have you found that the stigmas and legal discrimination against formerly incarcerated people were a big part of the problem, too?
Allison Frankel
Absolutely. I can’t tell you how many people I’ve talked to about their biggest struggles navigating supervision. They would just say: How am I going to get a job because every time I go and get interviewed, and this comes up, they just say, well, you’re gonna have to be taking off days, you’re gonna have to see your probation officer, you’re gonna have to go to court appearances. If you’ve got an ankle monitor on, it’s not gonna look good to our customers or to anyone else. And there’s this massive stigma and discrimination that goes into it. So as you said earlier, even if some of this stuff is ostensibly well-meaning it’s ultimately harmful and completely counterproductive, because one, requiring people to pay money makes it harder for them to get financially stable and secure, and requiring all of these meetings, all of these court appearances, right, you’re meeting with your probation officer bi-weekly, monthly, sometimes even weekly. If you’ve got mandatory classes for treatment, you have to go do that adding, on top of that, often these things are during work hours. So just scheduling becomes an incredible logistical minefield, not to mention if you have dependents or other loved ones that you’re caring for. Here, just as everyone says, you’re completely set up to fail. There’s no way that you can navigate this system unless you already have resources and support, in which case I don’t really know what supervision is doing for you anyway.
Josh Hoe
Yeah, I think about this all the time. You think about someone who has kids, and you’re trying to support your kids and almost all your money is having to go to supervision and court costs and fines and fees. And you know, it’s just how in the world is that helping anything? I’m just always just flabbergasted by all that. And another problem is reentry where resources – which you talked about on the report – for example, I know in Detroit, there’s a very, at best, unreliable system of public transportation, which has all kinds of implications for people trying to get to parole and probation meetings, trying to be able to hold down a job. What did you find out about this question of transportation?
Allison Frankel
Exactly, it’s a huge issue, I talked to so many people who had to travel more than an hour each way just to get to their supervision office. And then when they get there, they’re lined up sometimes for 30-40 minutes just waiting to get in. And then they get in, they pee in a cup, they say if they’re working and if they can pay or not. And then they leave. And then they still have to get to their jobs, to their other meetings, to anything else in their lives. So it’s incredibly burdensome. One guy in Wisconsin who I talked to who didn’t have a car, had to take multiple buses, it took him two and a half hours each way, just to get to his meetings and back. And one other thing that I have to mention that of course infuses all of this is race, that this is so racially discriminatory.
Josh Hoe
Well, I was planning to get to that.
Allison Frankel
I was like, I can’t not mention it. Because it’s all of this.
Josh Hoe
Well, don’t worry, we’re getting to it. I just was going down the checklist of the million things that are wrong with the system, and then kind of getting to the big . . .
Allison Frankel
Yes, in our very short, not overly-long at all report.
Josh Hoe
So another reentry problem is that so many people suffer from substance abuse. Were you able to find parole and probation departments that were effective in providing meaningful support for Addiction Recovery? It seems like so often the requirements, like you said before, are just kind of like get sober or you know . . .
Allison Frankel
Exactly.
Josh Hoe
Everything’s gonna be great. You just get out and you’re fine.
Allison Frankel
Exactly. Yeah, it’s a huge problem. So, one, you have many departments where people don’t even feel that anyone is trying to connect them with treatment. I spoke with a young mother in Philadelphia, who has had a decades-long substance use disorder and she just keeps getting picked up for shoplifting and drug offenses. And she said, You know, I asked for programs, but they didn’t want to hear that I needed help. They just gave me time. In other cases, the supervision departments were trying to connect people with treatment. But there’s huge problems with a lot of these treatment programs; many of the ones required in jails and prisons or by supervision departments, are abstinence-based programs. And you know, you talk to experts in this. And they’ll say that’s not a sound approach. For many people that’s not an achievable goal, the pressure of that. I spoke with many people [who said] that pressure made them want to drink or use drugs even more. And especially given the high numbers of opioid addictions in recent years, many places are just neglecting medication-assisted treatment. This gold standard treatment that’s really shown to help people is not allowed in so many places under the correctional system, because they’re so abstinence-focused. And even aside from that, another huge issue here is coercive treatment. You know, I talked to multiple guys who said they had addictions. And they were forced to go into these treatment programs, where they were talking to counselors who they knew were going to report back to the judge, and they were like, that’s not treatment, that’s not helping me get better. That’s making me say what I’ve got to say so the judge doesn’t violate me. And a bunch of them ended up using more drugs afterward, because of the anxiety and honestly, the anger that it caused; whereas other people when they, for whatever reason, found that the time was right for them to try to stop using and found ways to get treatment or ways to do that on their own, are really able to change in that way when the time was right for them. And they had the supports in place to make that shift in their lives, as opposed to a court or someone else who’s not a medical expert, making that decision for them. And a hugely dangerous thing that we’re doing to people is in these abstinence-only programs [is that] when someone tests positive, starts using, we’re locking them up as a sanction, which is one of the worst things you can do to someone who is using drugs.
Josh Hoe
One of the most dangerous ways to dry out is definitely in a tank. It’s a terrible, terrible idea.
Allison Frankel
Exactly. Right. You have people who are more likely to overdose. When you get out your tolerance can go down. Plus lots of people have access to drugs in correctional facilities. So it’s not even keeping people away from them. And you’re re-traumatizing people, which can make them want to use more, and yet time and time again that’s what we were told: We don’t want to do it, we try to give them chances but at some point, we have to lock them up for their own safety, which takes us back to where we were at the beginning. Have you ever dried out incarcerated? Did that feel safe to you?
Josh Hoe
Well, I know a lot of experts in addiction, and I don’t know many of them who think that the best way to keep someone safe is to put them in a cage. Having been in one myself, I never felt particularly safe at any particular time that I was there. What about mental health resources? Is there any difference? I imagine it’s gonna be the same . . . no, there’s really not a lot of help going on here. But I figure I should at least touch the bases.
Allison Frankel
Yeah, the TLDR, here is, no, it’s not good. And you know, I met someone in a jail who’d been there for 10 months, waiting to contest his charges for shoplifting, which he has done for basically the past four decades on what he says stems from an untreated mental health condition, including paranoia and anxiety, right? It’s a cycle, it keeps doing the same thing. Nobody has offered him real treatment, someone tried to get him into a halfway house, he left and that was about it. And the 10 months he’d been in the Savannah, Georgia jail, he said nobody had offered him treatment for any of the symptoms of his mental health conditions. And this is a story that you’ll hear all over. So it’s a tremendous problem. And especially because huge numbers of people under correctional control have mental health conditions. And it’s something that’s not being addressed adequately.
Josh Hoe
So we’ve been talking about the micro, and as I promised earlier, let’s get to the macro. You know, one of the central arguments that the report makes is that revocations of supervision are a significant contributor to mass incarceration. You talked about it a little bit earlier. I often say that you’d have to be willfully blind to walk into a jail or prison in the United States and not immediately see the racial disparities. You touched on it a little bit before, but you definitely found that a big element of what we’re doing in supervision right now is racially disparate. Could you expound a little bit more on this part of the report?
Allison Frankel
Yeah, absolutely. I mean, you can’t talk about anything in our criminal legal system without centering the fact that this is so racially disparate; black and brown people are both more likely to be put under supervision in the first place, and then to get locked up for violations. In 2016, one in every 81 white people was under supervision. But for black people, it was one in every 23. That’s an enormous difference. And multiple studies show that even among people who are on supervision, black people are significantly more likely to have their supervision revoked than similarly situated white people. And these disparities are resulting from generations of bias and racism; black and brown people in the US are far less likely to have the resources they need to complete supervision, like jobs, housing, reliable transportation; and they are far more likely to get stopped, searched and arrested by law enforcement.
Josh Hoe
We’re going to talk about solutions in a little bit. But I do want to ask because we’re here. We’re, I think, in a moment in this country – hopefully – where a sizable percentage of us are starting to wrestle with these questions at a very deep level because it seems that at almost every level of our society, there’s pretty overwhelming evidence of racial discrimination and bias. First, do you feel like you have any insight into why this is particularly true – aside from just that we’re a very racist society – in the area of supervision? And do you have any thoughts about breaking – aside from just getting rid of supervision – how we break down? Because I don’t know if that was dealt with in the report; I don’t remember seeing anything specific about race in the solutions section. I might have just missed something.
Allison Frankel
Yeah, absolutely. So I think that the reason the racial disparities are so stark in supervision is because supervision touches on so many different elements of our society where structural racism is so prevalent to complete supervision. And studies show that people who have markers of stability and resources are far more likely to complete supervision than people who don’t, which is not surprising. But because of decades of structural racism in our society, black and brown people are less likely to have stable housing, stable jobs, reliable transportation, all of these things that you need to complete supervision. So they’re just more likely to end up not being able to comply with so many of these rules. There’s also things for instance, in many jurisdictions, you’re not allowed to live with or associate with a quote “felon”. Sometimes they’ll call them “disreputable people” in the statutes, things like that, but one in three black men has a felony criminal conviction and in some communities, it’s astronomically high. I talked to many black and brown men in places like Milwaukee and Philadelphia who would say, I feel like I can’t even get in a car with anyone because I don’t know if they have a record and that could violate my probation. So we’re basically criminalizing communities. Now there’s people who can’t even live in their houses while they’re on supervision because a relative has a criminal conviction. And these are burdens that people in white communities and communities that are not over-policed don’t have to generally deal with. And then, of course, as we’ve seen in stark relief this summer, racially-biased policing. A new study just came out today, again, showing how black and brown people are far more likely to get stopped and searched by the police in their cars or on the street than white people. Even though in many places, they’re less likely to have contraband. And that’s leading to charges that are getting people sentenced to supervision in the first place. And it’s leading to charges that can lead to violation proceedings on the back end. And the way to solve this was being echoed in the calls of people in the streets this entire summer; we need to divest away from policing, from supervision, from incarceration, from these forms of oppression and control, particularly over poor communities and communities of color, and start investing that money in jobs, housing, education, and health care – the things that people want and need that will keep them out of the criminal legal system and make a so much better place for everybody.
Josh Hoe
Another problem that I wanted to at least touch on before we moved to solutions was this notion of due process and civil rights. I definitely knew this when I was still in prison. But as I understand things, the courts have decided over time that there really is no recognized right to supervision. So in a sense, people who’ve been released on supervision have very little expectation that their rights will be protected. This seemed like it was a part of the report in the ways that investigations are done and evidence is compiled that ultimately end up in revocations. Can you talk a little bit about that?
Allison Frankel
Absolutely. You know, probation and parole really operate under this separate legal system, where once you’re on supervision, all of your basic rights that we’ve all learned about since we were little, from the presumption of innocence to speedy detention hearings, to the burden of proof beyond a reasonable doubt, just fly out the window. People are detained, as I was mentioning earlier, for weeks, for months, just waiting for a hearing to contest the charges. The Supreme Court has said you don’t even necessarily get a right to a lawyer in proceedings to take away that liberty. The burden of proof is often just 51%, a preponderance of the evidence the lowest standard we have in this country, evidence that was found to be inadmissible in criminal court is admissible; in your supervision violation proceedings, hearsay evidence is allowed. It’s just really a farce when you look at it, and it places immense pressure on people to just admit to the violations to try to get out of jail because there’s so little hope of winning in these proceedings. And one example that just always sticks in my mind [is] when I think about this guy Angel Ortiz, whom I met in Philadelphia. I met him when he was 39 years old, and still serving the same probation sentence imposed when he was 18. He’s Latino, he lives in an overly-policed Philadelphia neighborhood. He’s just constantly getting stopped and searched by the police, thrown up against cars, up against walls, oftentimes without cause. And courts have largely dismissed the charges. He’s had great public defenders who represented him, who fought suppression hearings, who’ve gotten evidence dismissed, got prosecutors to dismiss charges. But because he’s on probation, all of that dismissed evidence is now admissible against him. And he would get detained in jail for about a year while fighting his criminal case and waiting to challenge the probation revocation. And then at the end of the day, even though the criminal charges were dismissed, his probation would get revoked, and he’d be sentenced to even more probation. He was telling me the last time he felt free was when he was about 18 years old playing baseball, and it’s just heartbreaking. The lack of due process, the lack of basic protection that we’re putting on people once they’re under the mat of probation and parole.
Josh Hoe
And every time he goes back in they’re like, well, your sheet is 400 pages long. Well, yeah, because you’ve done like 4 billion ridiculous revocations.
Allison Frankel
Exactly, exactly.
Josh Hoe
You talked about divestment. I’ll give you your chance to kind of – writ large – how do we change supervision? What can we do to make the process better?
Allison Frankel
So we make three key recommendations that we think would go a really long way towards reform here. First, as I was mentioning before, government should be divesting away from supervision and incarceration and investing in jobs, housing, and health care. Second, we need to reduce the use of supervision sentences in the first place, and instead impose actual alternatives to incarceration, things like unconditional discharges that are proportionate and flexible community service requirements. And lastly, when supervision terms are imposed, we’ve got to shorten the length of those supervision terms, reduce the number and nature of conditions imposed, and strictly limit incarceration for violations both before and after violation proceedings. I think these things would go a long way towards really breaking this supervision-to-incarceration pipeline.
Josh Hoe
All of that sounds great to me. But as someone who works pretty regularly on legislation, and has recently been working on legislation on this particular question, I know that even the notion of dialing back the period of supervision, say from five years to four years, is incredibly controversial. Do you have any thoughts on the political lifting and ways to kind of move toward this agenda?
Allison Frankel
It’s definitely not an easy fight by any means. But I think there really are ways to do this. I think criminal law is this weird space where we do have some bipartisan – across party lines – collaboration, and here you have supervision officers who are overworked, underpaid, have these high caseloads, particularly with people that they don’t think pose any real risk. So I think there is a lot of movement to be able to work with people on all sides of the system for reform. For instance, there’s a great new coalition within the last couple of years called Executives Transforming Probation and Parole. It’s got a high number of current and former supervision department chiefs who are committed to these various types of reforms.
Josh Hoe
I’ve had Vincent Schiraldi on before, who’s pretty involved with that. But I don’t see – maybe I’m crazy – but I don’t see supervision officers wanting divestment from there. Maybe I’m wrong. But that’s what they do for a living, so I can’t imagine they want to be divested.
Allison Frankel
Yeah, completely. And yeah, Vincent has been a real leader in this field. I think that there is more agreement on things like shortening supervision terms; increasing early discharges; reducing the number of conditions; those types of things. But under Vincent Schiraldi’s leadership in New York, we saw this huge reduction in the supervision in the probation population in New York City and in the budget of that Probation Department. And they did it while increasing expenditures per person on probation, increasing contracts with community-based organizations. And over that period, the number of people on probation was cut by like 69%. Meanwhile, crime fell, incarceration fell, along with supervision. So I think that that is a model that we can work to replicate going forward. But it’s by no means easy. Nobody wants to cut their own department. But I think we need to be really seriously questioning, you know, is this working? Is there evidence that shows that all the money and time and harm to people that are coming out of this system – is [any of that] producing results? And if it’s not, then we have to seriously reckon with that and try something new.
Josh Hoe
And, to go to the grassroots end . . . do you have any thoughts on how people can support ideas like divestment in parole and probation and help move the needle towards a more productive system?
Allison Frankel
Yeah, I think we’ve seen huge movements. I mean, throughout; this is new to a lot of people this summer, [but] these are not new ideas. They’ve been going on for a very long time. And so I think the best thing that we can all do is listen to people who’ve been advocating for abolition, for defunding police, for investing in communities for a very long time, educating our friends and family about these ideas about how these are actually really common sense kind of basic ideas. If we asked ourselves what makes a community safe, I think very few of us would say police and prisons. I think we’d probably say good schools, stable housing, stable families and good jobs. And that’s all that we’re really asking for in this movement. And I think advocating at every level of government with local supervision departments, police departments, prosecutors, legislators, and governors, whether that’s through holding meetings with them, holding events about them, running in elections, voting for progressive reformers in all of these spaces. You know, the system is so complicated because there are so many actors involved who are harming people, but that also means there’s a lot of different levers that we can be pushing on to get reform; it doesn’t have to just be passing a law. There’s a lot of people who have individual discretion to, for instance, just stop revoking people for certain violations, or to stop arresting people in the first place for certain crimes. There’s a lot of ways that individual actors in the system could make some meaningful reforms here.
Josh Hoe
This is probably a little bit beyond the scope of the report, but unfortunately, their reaction, the mainstream reaction, to what I agree with you are mostly common sense ideas, has been security theater. And so I was wondering if you had any thoughts about The Empire Strikes Back moment we’re in where I think people making pretty reasonable requests like defunding the police and reinvestment and things like that have been turned into scare tactics.
Allison Frankel
Totally. And it’s been really frustrating to see gun violence and other things being blamed somehow on a movement to defund the police that hasn’t happened.
Josh Hoe
Yet, somehow they haven’t defended the police. But defunding the police is to blame.
Allison Frankel
Yeah, just talking about it, it’s in the air or something.
Josh Hoe
It’s like a virus, it’s, you know, you get the virus, and then you start shooting people. It’s kind of wild crazy.
Allison Frankel
But I think that the biggest response to them is just: what is safety to you? Especially to all these people who are somehow saying they’re gonna ruin the suburbs or something; what do we think of when we think of the suburbs? For the most part, we think of places with good school systems, with safe streets, with resources. That’s what we want, we want every place to be like the place that you want to protect, ostensibly through this really weird pseudo logic that you’re doing that’s obviously just about race. So I think just getting people to actually really break down what this means. And for me, I think it’s really important not just to talk about where we’re taking money away from, but where we’re putting it to, because if we just defunded certain things, people would still be left without housing, without jobs, without access to resources. And it’s incredibly important to invest in all of those things so that people actually have a chance.
Josh Hoe
Makes sense to me. This season, I’ve been asking people if they have – I know you’ve given me plenty of ideas – but I’ve just been asking people if they have any other unique ideas for decarceration, given [ that this is the] Decarceration Nation podcast. So beyond what we’ve already talked about – and if you don’t have an answer, that’s fine, too. Do you have any thoughts on ways we could creatively decarceration our prisons and jails?
Allison Frankel
One of the biggest things that I’ve been thinking about recently, and many others have written about for far longer, is you have to just stop arresting and charging people with certain crimes, right? Like we could just stop prosecuting misdemeanors; we could stop prosecuting drug offenses and so many other minor offenses within the criminal legal system, and look to real alternatives because those make up a huge bulk of populations in many of our jails and prisons. But obviously, that can’t be all of it, because we’re not just going to leave behind the people who have committed and been convicted of really serious crime. So I think that can be a great front-end mechanism to stop so many people from going into the system for a lot of things that most people agree don’t pose any real risks. And then on the back end, using more early release valves, I mean, we’ve got clemency, we have compassionate release, we have parole, all of these valves that are in the system, but in so many places, they’re so opaque, they’re not transparent, they’re not being utilized. And I think we really need to beef up our use of those. I know the ACLU has just embarked on this big campaign to have states use their clemency powers to enact some of these reforms that we can do through legislation to help get folks out of prison. And I think that’s really exciting to do for those people. And then lastly, I’m really excited about all of the efforts towards restorative justice in many spaces for people accused of both minor and very serious offenses, to find real ways to hold people accountable for harm but to recognize that jail and prison in many cases replicate that type of harm and that we need other solutions.
Josh Hoe
You know, I always find it ironic that a lot of the people who push back against decriminalizing misdemeanors also seem to be the ones that are most concerned with the threats to public safety, because it’s very interesting to me that the vast majority of our law enforcement resources don’t go to solving serious crimes. They go to enforcing misdemeanors. There’s a lot of weird tension on the carceral state side of the discussion that never gets brought to light, unfortunately. Oh, I guess I should ask one more question. Anything else that you wanted to mention about the report that I haven’t already covered?
Allison Frankel
I think you really covered a lot of it. One thing I just want to make sure I get out there if I didn’t, is just the dramatic scope of supervision in this country over the last 50 years, as jails and prisons have skyrocketed since the 70s, so too have probation and parole. As of 2018, there were about 4.4 million people, or one in every 58 in this country, under supervision. In some places, those numbers are even more extreme. In Georgia in 2016, one in every 18 people is under supervision. And that just blew my mind the first time I saw that statistic.
Josh Hoe
Yeah, I remember reading that in the report and being like, what? A lot of the southern states, man, I just don’t know, Alabama and South Carolina and Florida and Georgia. And there is just some just terrifying stuff about criminal justice, in my opinion, compared even to you know, I think all the normal stuff is pretty bad. But then I read about those states.
Allison Frankel
It is terrible. But it also is so bad up here, right? I mean, we have Pennsylvania, one in every 35, in Philadelphia the rate is even higher.
Josh Hoe
Yeah, I’m not saying it’s good anywhere. I’m just saying there’s some places where you’re just like, Oh, my goodness.
I always ask the same last question: what did I mess up? What questions should I have asked, but did not?
Allison Frankel
I think that you really covered everything. The one thing that I just want to make sure that I say – I know we talk a lot about this, and a lot is written about the types of violations that are driving people into jail in prison. And how many of these are just you know, breaking a rule. But I just want to be really clear that no matter what people are going to jail and prison for from supervision, this system is operating incredibly unfairly for all of them, whether they’re getting picked up for some minor offense that wouldn’t even be a crime for someone like me who’s not under supervision, or whether it’s a serious charge, all of these people are at risk of automatic and prolonged detention, and then getting thrown through a system that doesn’t protect their fair trial rights, only to get disproportionate punishment on the back end. So I think it’s really important to be concerned with all of the people who are wrapped up in this system.
Josh Hoe
Thanks so much for doing this Allison; it was great to talk with you. And thanks for coming on the podcast.
Allison Frankel
Thanks so much for having me.
Josh Hoe
And now, my take.
Hundreds of thousands of people are released into supervision every year. When I first got out of prison, my first meeting with my parole agent was so terrifying. She did so much to terrify me that I told people I cared about that I didn’t even know if I was even going to make it. And this was after getting out of prison. Since I was on an ankle monitor, it allowed my agent to randomly show up in public places that embarrassed me. My apartment would get searched fairly regularly, and officers would show up with her at all hours. I wasn’t allowed to meet with a mentor, despite the fact that he had been successfully reintegrated back into the community for years, simply because he had a felony conviction. And every time I went to the parole office, I would see someone being put in handcuffs and sent back to incarceration for technical violations. I can’t think of one instance where my officer did anything to make my reentry or reintegration into the community or into employment easier. I can’t think of one time when my officer was particularly helpful.
Our current system operates along guidelines referred to by probation officers as “trail ‘em, nail ‘em, and jail ‘em”. [The system] frequently charges unemployed and destitute people fees for supervision, and doesn’t build people up or help them succeed. We need shorter supervision terms. We need parole models that build people up and help them find success, and we need to stop sending people back to prison when they have not committed a new crime. Our parole and probation system is broken and it’s past time for systemic change.
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