When a person violates conditions of probation or parole, the result is often revocation of supervision and sending them to prison or jail. Incarceration can have a negative, compounded effect on the life of the individual under supervision. This includes making it more difficult to meet family and work obligations. Some state laws establish alternatives to incarceration as a response to supervision violations with the hope of avoiding some of those negative effects of prison or jail.
On any given day, 280,000 people are in prison as a result of revocation. Nationally, close to 25% of people in prison on any given day are there for technical supervision violations, though rates vary from state to state. In Alabama, for instance, technical violations make up 0.7% of the prison population in 2018. In Kentucky, that number was 42%. A technical violation is generally defined as failing to follow the rules of supervision without committing a new offense.
In their report, Policy Reforms Can Strengthen Community Supervision, The Pew Charitable Trusts recommends a range of policy changes states can make to reduce incarceration in response to community supervision violations, particularly for technical violations.
Research has found that incarceration is not better than noncustodial sanctions at reducing recidivism. Another study found that using jail stays as a response to violations did not improve outcomes for people under supervision and did not have additional benefits over community-based sanctions. It found that incarceration was not more effective than community-based sanctions at extending the time between violations, reducing the number of future violations or encouraging successful completion of probation.
The statutes included in this database authorize various forms of alternatives to jail or prison incarceration agencies can use to respond to violations of supervision. Often these alternatives are set up in a continuum of graduated sanctions that authorities are encouraged or required to consider before resorting to incarceration. This database focuses only on statutes directly setting out alternatives to incarceration. The examples discussed below can be found in the linked database.
At least 40 states authorize alternatives to incarceration as a response to supervision violations in statute. The most common of these alternatives include community service, GPS monitoring, drug and alcohol testing, and extended supervision terms, among others.
Imposing Alternative Sanctions
Variation exists among and within states as to whom is authorized to impose alternative sanctions. In some states, such as Alabama and Illinois, a parole or probation officer may impose the sanction following review and approval by their supervisor. Many states require the supervising authority to order the appropriate sanction; thus, the parole board, in the case of parole, and the court, in most cases of probation, must be the one to order the sanctions. Colorado allows officers to use sanctions in some instances but more broadly allows the parole board to modify supervision in response to violations.
Most laws make the use of alternatives optional, rather than mandatory. Arkansas provides an example of the use of alternatives without mandating them. The statutes addressing both probation and parole give the community corrections department authority to sanction individuals administratively without revoking supervision but doesn’t prohibit revocation.
Only a handful of the laws include language explicitly prohibiting the use of incarceration in response to rule violations. Maryland is one of the few states with statutory language largely prohibiting incarceration, requiring the use of graduated sanctions in response to technical violations while specifying that those sanctions cannot include incarceration or involuntary detention. The law does, however, allow for incarceration if graduated sanctions have been exhausted.
Arizona statute mandates the use of alternative sanctions rather than incarceration except in limited instances for individuals who have been convicted of personal possession or use of a controlled substance or drug paraphernalia.
Colorado requires that, at resentencing after a revocation of probation for a level 4 drug felony offense, the court must exhaust all reasonable and appropriate alternative sentences. Another Colorado statute requires that a parole officer consider all appropriate or available intermediate sanctions before filing a complaint for revocation of parole based on a technical violation.
Graduated sanctions are a structured continuum of incremental responses to behavior that doesn’t comply with the rules of supervision. They provide a range of responses that correlate to the seriousness of the violation, sometimes up to incarceration. An example of this is Rhode Island’s law requiring the adoption of guidelines that govern swift, certain and proportionate sanctions to respond to probation violations. Some statutes directly reference graduated sanctions, like Maryland’s described above, while others may use a similar structure but not explicitly label them as such.
Idaho requires the establishment of a matrix of swift, certain and graduated sanctions by the board of correction. This allows supervision officers to address violations without the need for a hearing by the board. Tennessee similarly mandates the development of graduated sanctions.
Types of Alternatives
In at least 22 states, treatment for mental health needs or substance use disorders is included as an alternative to revocation. At least eight states authorize drug or alcohol testing as an alternative to incarceration.
Another alternative sanction available in at least 19 states is community service. In North Dakota, statute requires the court to impose a condition of probation that provides for community constraints and conditions to avoid revocation, including community service, along with day reporting, a curfew, home confinement, house arrest, electronic monitoring and others.
Electronic monitoring is permitted as an alternative sanction in 16 states. In Arizona, for instance, an individual on parole may be placed on electronic monitoring under certain circumstances, such as when they violate a condition of parole but have not committed an additional offense.
A few states have also established special programs which include noncustodial restrictions on movement, often in the form of home confinement or placement in a non-locked residential facility, supervised by staff but allowing people to leave for work, treatment and other limited activities. Examples of these programs include a community accountability pilot program and intensive probation in Arizona, a community corrections program in Colorado, and a community control program in Florida.
Many statutes allow for multiple alternative sanctions, whether used jointly or individually. These may come in the form of graduated sanctions, discussed above. Michigan law specifies that possible sanctions include, but are not limited to, one or more of the alternatives set out in statute, providing the ability to use multiple sanctions jointly.
Other alternatives permitted in state statutes include reprimands and warnings, house arrest, placement in a halfway house, and placement and participation in special programs. Each of these alternatives are authorized in a handful of states.
As states continue to explore policy changes to reduce both the number of people in prisons and jails and rates of recidivism, authorizing alternatives to incarceration for supervision violations is one area to consider for reform.
Using the Dashboard
Learn more about responding to community supervision violations with alternatives to incarceration in the 50-state statutory dashboard.
The database can be navigated by using state and subtopic filters. Text searching is available for statutory language contained in the database. The map is also interactive and allows you to more quickly select multiple states to review―just hold down the control key to select more than one state. Use the reset button at the top left to clear all filters and start a new search.
Note that this database only contains statutory provisions that address each policy area. Case law, regulations or agency policy may further impact the current state of the law in each state. This database also does not address policies adopted by local jurisdictions.
This report was prepared under a partnership project of the National Conference of State Legislatures’ Criminal Justice Program in Denver and The Pew Charitable Trusts’ public safety performance project, Washington, D.C.