These revocations are expensive, both due to the cost of supervision that results in reincarceration as well as the cost of prisons. Corrections costs made up 5.2% of state general funds in 2019. CSGJC found that the cost of incarceration for supervision violations was $9.3 billion annually, with $2.8 billion going toward incarceration for technical violations.
For this reason, policymakers and advocates have been exploring ways to limit supervision’s role as a driver of incarceration. One primary way to achieve that through policy reform is to enact laws that limit the use of incarceration as a response to a violation of supervision, particularly technical violations (defined below).
This primer explores state laws that limit the use of incarceration in response to a technical violation of supervision. These limits can reduce prison populations and the associated costs to the state and can help achieve better outcomes for people under supervision and better processes for the officers tasked with overseeing that supervision.
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. Learn more in the first primer in this series, Tailoring Conditions of 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.