Brief Legislative Primer Series on Community Supervision: Limiting Incarceration in Response to Technical Violations

Violations occur when a person does not comply with the conditions of their supervision, or they allegedly commit a new offense while under supervision. Technical violations are issued for actions that would not otherwise be considered a crime but become punishable due to the conditions of supervision. For example, missing a check-in with a supervision officer or failing a drug test is considered a technical violation. In order to reduce the likelihood of violations, some states and local supervision agencies have taken steps to ensure that conditions are appropriate for each individual under supervision.

State definitions of technical violations vary, including not following minor rules, an arrest that does not result in a conviction, and convictions for nonviolent misdemeanors. A clear definition in law contributes to transparency and consistency by ensuring that the individual under supervision, their supervision officer and the courts all have the same understanding of what constitutes a technical violation. Creating a definition of a technical violation is one policy recommendation from a policy framework for community supervision from The Pew Charitable Trusts’ public safety performance project (Pew), in partnership with Arnold Ventures (AV).

Maryland and Nevada are two states that explicitly define technical violation in statute. Both laws specify that absconding and certain new offenses are not technical violations.

Nevada defines the following as new offenses that cannot qualify as a technical violation: absconding, felonies, gross misdemeanors, domestic violence battery crimes, and other enumerated criminal offenses such as certain impaired driving offenses, crimes of violence punishable as misdemeanors, harassment and violations of protection orders. Nev. Rev. Stat. § 176A.510.

A technical violation in Maryland is defined as “a violation of a condition or probation, parole or mandatory supervision that does not involve: 1) an arrest or a summons issued by a commissioner on a statement of charges filed by a law enforcement officer; 2) a violation of a criminal prohibition other than a minor traffic offense; 3) a violation of a no-contact or stay-away order; or 4) absconding.” Md. Code. Corr. Servs. § 6-101.

A Washington State Institute for Public Policy report found that confinement for a violation of supervision did not decrease recidivism rates, and in some cases resulted in increased recidivism. The report emphasizes that correlation does not equal causation.

However, based on this and similar reports, the argument has been made that limiting incarceration for technical violations will not undermine the goal of community safety, and may actually strengthen a supervision agency’s ability to help achieve that. Therefore, legislatively reducing the ability of courts and agencies to use confinement as a response to a technical violation has the potential to reduce recidivism, save money, and make supervision more effective.

Several states have limited the use of incarceration by capping the length of time an individual can be incarcerated due to a violation.

Caps on the length of incarceration take a variety of forms. In some states, statute simply lists the maximum permissible length of time. Others set out a maximum time within a certain time period. A third approach is the use of multiple caps, varying depending on the number and severity of the violations the individual has.

A chart with additional detail on state laws can be found on NCSL’s website.

There are 34 states with statutory incarceration maximums for probation violations and 24 states with parole maximums. In most of those states, the caps are applied uniformly for all types of supervision.

Caps vary in some states depending on who orders the sanction. For instance, in Alabama an individual can be incarcerated for up to 45 days if the court orders the sanction. However, if the supervision officer orders the sanction, it is a maximum of 18 days total. The officer is further restricted to three consecutive days at once time and only six days per month.

Similarly, in Mississippi, an officer can incarcerate an individual for up to two days per sanction and up to four days in a month. When the court is ordering the sanction, the caps are based on the number of violations: 90 days for a first violation, 120 days for a second and 180 days for a third.

Some states define the maximum time based solely on time, no matter who orders the sanction. Arkansas has a cap of 90 days and Idaho’s cap is three consecutive days per violation.

In Louisiana and Maryland, the cap depends on the number of violations an individual has. For a first violation, incarceration can be up to 15 days. A second violation has a max of 30 days and subsequent violations are capped at 45 days.

There are a handful of states with incarceration caps for both probation and parole, but the length depends on the type of supervision. Oregon’s cap is 60 days for each technical probation violation, but 15 days per technical parole violation. Louisiana’s cap is similar for probation and parole. However, the cap for probation, mentioned above, is set at 45 days for third and subsequent violations. Parole, on the other hand, has a cap of 90 days for fourth and subsequent violations. 

There are at least 14 states—Arizona, Delaware, Florida, Georgia, Kansas, Maine, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Vermont and Washington—that address probation violations and are silent on parole or other types of post-prison supervision.

Maine and South Dakota have incarceration limits of 90 days and 48 hours, respectively. Georgia’s cap is two years for most probation violations but specifies a limit of 120 days if the violation is for failure to pay fines and fees.

In North Carolina and Ohio, the caps are based on the underlying offense for which a person is under supervision. For example, North Carolina distinguishes between felonies and misdemeanors. Violations of felony probation are limited to 90 days and a person can only be incarcerated twice. Misdemeanor probation has shorter caps of three consecutive days, up to six days per month, and in three separate months.

Ohio delineates incarceration limits based on the severity level of felony crime. For a fifth-degree felony such as breaking and entering the cap is 90 days. Incarceration is capped at 180 days for a fourth-degree felony such as vehicular assault.

While Pennsylvania does statutorily regulate both probation and parole, a special allowance exists in the law for people on probation who are employed. The first and second violations, three days or seven respectively, can be served on weekends or nonwork days.

There are three states—Colorado, Hawaii and Texas—with caps applying only to parole violations.

In Colorado, a parole officer has the authority to order incarceration sanctions four times, for up to 14 days each time. After four sanctions, the parole officer is permitted to start the process of revocation through the parole board.

Hawaii has a cap of either six months or the time remaining on the individual’s sentence, whichever is shorter. Texas allows for incarceration between 60 and 180 days if supervision is modified after a violation of supervision.

As policymakers consider making changes to their supervision laws, there are a number of questions they can ask to develop a deeper understanding of community supervision in their state. Some of those questions, as identified by CSGJC in Confined and Costly, include:

• How many people are on probation or parole in your state?
• How are technical violations handled in your state?
• What impact do supervision violations have on local jails and prisons in your state?
• How do your state’s policies impact the length of time that people are on probation and parole?
• For what types of new offenses are people on supervision being sent to prison?
• What has your state done to scale up implementation of supervision practices and programs designed to reduce new criminal behavior and enable or incentivize better outcomes on supervision?
• How much does your state invest in supervision annually? How much do supervision violations cost your state annually?
• How do supervision policies impede a supervision agency’s ability to do the job in a way that they feel is most effective for the people under their supervision?
• How are supervision policies, particularly those related to violations and incarceration, understood and experienced by people who are on supervision?

Incarcerating people in prison is expensive for states and is viewed as an ineffective use of supervision resources, and technical violations of community supervision are a significant driver of incarceration in many states. The implementation of caps on the length of incarceration for violations that do not constitute a new criminal offense is one approach states have used to reduce prison populations, reduce recidivism, make supervision more effective and fairer, and control costs.