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New Report Examines Length of Probation Terms by State

By Amanda Essex | Jan. 13, 2021 | State Legislatures Magazine

Americans on probation serve terms of just under two years on average, according to new research from The Pew Charitable Trusts’ public safety performance project. Pew used data from the Bureau of Justice Statistics to estimate the average length of probation terms across the United States.

Average terms range from 9.3 months in Kansas to 58.9 months—nearly five years—in Hawaii. There were more than 3.5 million adults on probation in the U.S. at the end of 2018, according to BJS data, and at any time, state probation policies impact 1 in 72 people.

The highest risk of re-offense is early in a person’s probation term. Pew’s report points to research finding that, of the people who were re-arrested within three years of the start of their felony probation, nearly 7 in 10 were arrested in the first year. Additionally, in a two-state study commissioned by Pew, 9 in 10 people who were on probation for at least a year without being rearrested could have served shorter terms without impacting recidivism rates. “Keeping probation terms short and prioritizing resources for the early stages of supervision can help improve success rates among people on probation, reduce officer caseloads, and protect public safety,” the report states.

NCSL collaborated with Pew to identify state laws addressing the length of probation supervision for felonies and misdemeanors. At the time of the analysis, 19 states set a maximum probation term for felonies at five years, with 12 states allowing a probation term up to the statutory maximum term of incarceration. Alaska, Hawaii and Texas set the maximum at 10 years.

Misdemeanor probation terms were capped at two years in 16 states, and nine states set the cap at five years. Many states have exceptions to these upper limits for various reasons, such as for certain offenses or for people with prior convictions.

State laws also affect length of supervision beyond placing caps. Probation terms can be extended or reinstated in many states, which in some cases allows probation terms to exceed statutory maximums. Some states provide opportunities for early discharge from probation supervision in law, for instance through earned-time credits or by setting mandated review for early discharge.

In recent years, a handful of states have made legislative changes aimed at reducing probation term lengths. Wyoming passed legislation in 2019 (SB 38) capping the length of a felony probation term at three years in most instances. California enacted AB 1950 in 2020, limiting the length of misdemeanor probation to two years. Earlier this month, Michigan criminal justice reforms were signed into law that included reducing adult felony probation sentences to three years from five and expanding early discharge from supervision.

Adopting shorter supervision sentences is one of the recommendations included in a policy framework for community supervision released in April 2020 by Pew, in partnership with Arnold Ventures, a Houston-based philanthropy. The framework highlights opportunities for reforms “to shift probation and parole away from merely punishing failure and toward cultivating the long-term success that promises individuals, families, and communities a safer, more productive future.”

Amanda Essex specializes in sentencing and corrections policy for NCSL’s Criminal Justice Program.

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