Pass probation reform to shrink our prison population, serve justice

Imagine serving 40 years of probation for a drug offense and not being able to vote that entire time. Or how about having to check in frequently with an agent for four decades, always fearing that a missed meeting could send you back to prison. That’s the harsh and expensive reality for too many in Minnesota’s probation system.

While we’re proud in Minnesota of our low incarceration rate – the second lowest in 2018, according to the Vera Institute of Justice – our probation rate is unfortunately nothing to brag about. In 2015, the most recent figures we could find, we had the nation’s fifth-highest rate of probation.

We’re an outlier in our region, too. In 2016, we had 98,258 people on probation. Contrast that with Wisconsin, which has more residents, but only 46,144 people on probation.

Intended to divert people away from the criminal justice system, our probationary system has instead placed a national spotlight on Minnesota for widening the net of people trapped in the criminal justice system for decades.

30+ states have shortened probation terms

Other states across the country have begun to recognize America’s addiction to mass incarceration and how it negatively impacts communities and public safety. More than 30 states already have shortened their probation terms.

Now’s the time for Minnesota to join them. Probation reform is one of several key criminal justice reforms in Judiciary and Public Safety omnibus bill SF 802. It would cap probation sentences at five years for certain felony offenses and some misdemeanors, and lower the cap for less serious misdemeanors.

Under current state law, people face between four and 40 years on probation. That’s up to four decades of curfews, drug testing, reporting to an officer and many other conditions that prevent a person from moving on from their past and returning to a normal life.

There is no predictability or fairness in how this law applies across the state. Individuals convicted of the same offense can face drastically different probationary terms. In the Third Judicial District, the average term for a drug offense is nine years, while in the Sixth Judicial District, it’s just over three for the same offense. The overall length of probation differs by judicial district, too, from 39 months in the Fourth Judicial District to 87 months in the Seventh, according to a 2019 report by the Minnesota Sentencing Guidelines Commission.

Geographic and racial disparities

These significant geographic disparities show that the current system is not based on an individual’s risks and needs, but rather on their location.

Our system not only perpetuates geographic disparities, it drives the mass incarceration of racial minorities, too. Most people who return to prison from probation have minor technical violations. Incarcerating people as a result of probation revocations disproportionately affects communities of color. American Indians make up only 6.7 percent of the felony probation population, but 26.6 percent of revocations. Blacks make up 23.6 percent of the felony probation population, but 16.5 percent of revocations. Hispanics make up only 5.2 percent of this probation population, but 15.4 percent of revocations.

If the Legislature passes the omnibus bill, it would bring more uniformity, fairness and racial equity across our state and slow down the growth of the prison population. Other states with five-year caps include Iowa, Mississippi, Missouri, North Carolina, Oregon, Ohio and New York. These states lowered probation terms while maintaining public safety and decreasing their prison population.

This change would benefit communities and probation officers alike. Lower caseloads allow probation officers to more effectively use limited time and resources to provide needed treatment and intervention for those deemed most at risk and most in need.

Harder to re-enter society

Experts have long told us that if someone is going to reoffend while on probation, it’s most likely to happen in the first two years. Keeping people on probation for years and even decades doesn’t serve the interest of justice. Instead, it puts Minnesotans at greater risk because it makes it harder for people to re-enter society.

The Minnesota Legislature has an opportunity now to reform this system. The bill is an effective compromise supported by law enforcement, prosecutors, defense lawyers and community members who agree the amount of time a person spends on probation should be limited to the time needed to achieve rehabilitation, accountability and public safety.

If Minnesota does not wish to become known for probation terms that are overly long and unfair, we must take a hard look at our system. The House provisions in the omnibus will not fix every aspect of probation, but people on both sides of the aisle agree the bill’s a strong and necessary step in the right direction to improve criminal justice in our state.

Benjamin Feist is the legislative director for the American Civil Liberties Union of Minnesota. Hamida Labi is national advocacy and policy counsel for the ACLU.

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