In the previous section, we discussed issues of racial justice – and injustice – in the pretrial, plea bargaining, trial, and sentencing steps. Earlier in this chapter, it was mentioned that one in 31 people in the United States is under the system’s supervision through probation or parole or incarcerated in jail or prison. All of these methods of control fall under what is formally known as corrections. In this section, we will discuss experiences with the justice system post-trial and sentencing.

Probation

One punishment option for several types of lower-level offenses is the use of probation. Probation is one of many intermediate sanctions, which are punishments that tend to happen in the community and do not include incarceration. These are also sometimes referred to as community corrections or community supervision. Parole (post-prison supervision) also falls under this umbrella, which we will discuss later in this chapter.

According to the Bureau of Justice Statistics, there are roughly 3 million people on probation in this country, more than those who are in prison or jail (Kaeble, 2023). This equates to 1 in 87 adults on probation as of the end of 2021, the most recent data publicly available. Of those on probation in 2021, 62 percent were people of color (roughly three out of five), which does not align with the proportion of people of color in the general community (Kaeble, 2023). This means that people of color are overrepresented in probation as they are in every other part of the criminal legal system.

There is a lot of discretion involved in probation in terms of who gets assigned it as their punishment, the conditions (rules) the person must follow during this period, and when probation undergoes revocation (cancellation) and the person is sent to jail for failure to follow these rules. The courts assign some of the conditions during the sentencing phase of a case when they designate the punishment. In addition, the probation officer (PO) to whom the individual is assigned can add even more conditions at their discretion. Common probation conditions include not using drugs or alcohol, attending treatment or counseling, maintaining employment, not breaking any laws, allowing the PO to visit at any time, and submitting to random searches. Additional conditions added by the PO might be the number of times and manner in which the individual must check in, the type of employment they must maintain, who they can be around, where they can go, and more. A recent analysis of conditions of probation found that “young [B]lack offenders and [B]lack drug offenders are particularly more likely to receive a wider range of and more restrictive conditions” (Kimchi, 2019:715). The more conditions someone is assigned, the more challenging it is to complete one’s term of probation. Any failure to meet any of the assigned conditions can lead to revocation and jail time.

In a study of probation in Texas, Iowa, Oregon, and New York, scholars at the Urban Institute found that Black probationers experienced revocations at much higher rates than their white or Latinx counterparts in all four states (Janetta et al., 2014). They said, “Revocation rates for [B]lack probationers in our study samples ranged from 55 percent higher than that of white probationers in [Texas] to over 100 percent higher in [Oregon]” (Janetta et al., 2014:3). The scholars who conducted this analysis looked at a variety of factors to explain the different rates of revocation across races and were unable to come up with an empirically definitive answer. They explained, “the size of the unexplained portion is sufficient to raise concerns about the presence of bias to disadvantage [B]lack probationers” (Janetta et al., 2014:6). They further argued, “This raises the concern that something different is operating in revocation outcomes concerning [B]lack probationers. Given the consistent research finding that [B]lacks are disadvantaged by bias in a broad variety of contexts in the United States, it seems prudent to assume that some level of bias may be occurring and to seek options to remediate it” (Janetta et al., 2014:6).

Prison Experiences

The very experience of prison is racialized from the prison culture itself to the management of those in custody by the staff and administration. For example, the chow hall (where people in custody eat communally if not required to remain in their cells or pods for meals) is commonly arranged by race. This segregation also occurs in the yard, the weight piles, the showers, and the clubs. Further, prison gangs are generally divided along racial lines, as is a lot of the related gang violence. The largest white gangs in the United States began in prisons where they suddenly found themselves to be the racial minority and lost the firm hold on their usual power and privilege.

This racial segregation in prisons is mostly created by the adults in custody themselves for their protection, and it is reinforced and expanded by practices among the staff and administration. For example, scholars Earl Smith and Angela Hattery found, “Inside of prison, Black people are more likely to be held in solitary confinement, even though there is no evidence that they are more likely to commit misconducts that send them to the ‘hole,’ as solitary lock-up is commonly called” (2023:para. 2). Not only is racial segregation not discouraged in prisons, it is justified through the biased responses by staff to prisoners of color. Specifically, behaviors are more likely to be interpreted as dangerous or disruptive when committed by adults in custody who are racial minorities compared to their white peers. This racist bias results in Black and Latinx people in custody being met with disciplinary action (like being sent to solitary confinement) at a disproportionate rate compared to their white peers who are committing the same supposed infractions.

Accessing Parole

Another area where this racist bias of perception of dangerousness creates discriminatory practices is with access to parole. As a reminder, parole is supervision in the community that happens after someone has already served time in prison. It looks a lot like the probation that we discussed earlier in this chapter and carries the same concerns around the rules (conditions) applied by supervising officers (parole officers or POs).

Whether someone will have the ability to try to earn parole is complicated by the type of sentence they received, how much time they have served, their behavior while in prison, and more. It is a complex process beyond the scope of this chapter, so this discussion is somewhat simplified here. Simply put, someone’s release from prison on parole is decided by a board made up of individuals from the community who are appointed by the state’s governor. If someone in prison has the opportunity to go before the parole board, they are reliant upon the discretion of those serving on the board to decide whether or not they can be trusted to return to society.

There are no official guidelines for boards to make these decisions and no set process. At best, they may consider results from a risk assessment (as discussed earlier) and look at discipline records from the person’s time in prison, but more typically, they just have to go with their gut. The members of the parole board hear from both sides (the person in custody, their attorney, anyone who wants to speak on their behalf, as well as the victim or their family, their attorney, and anyone who wants to speak for that side) and have to determine whom to trust.

Investigative journalists Edward McKinley and Amanda Fries analyzed almost 19,000 parole board decisions from 53 state prisons in New York across the span of two years. One person they interviewed who had been granted parole after serving 10 years in a New York state prison explained, “Because racism extends beyond the streets into prison through correctional officers, I knew from being a white inmate that I could get away with certain things that minorities absolutely could not” (2020:para. 8). He went on to describe how that impacts parole. “Before a Black inmate appears before the parole board they are at a disadvantage, Johnston said, as minorities are disproportionately punished and often given longer sentences compared to white inmates for similar crimes” (McKinley and Fries, 2020:para. 9). Knowing people of color are more often punished for behavioral infractions during their time in prison and that the parole board will consider behavior records to try to help them decide who is safe to release, people of color already come into the board at a disadvantage.

Naturally, any bias the parole board members have is going to sway their considerations and how they evaluate each candidate for parole. They live in fear of making the wrong decision, so they are very conservative when choosing to release someone. They do not want to release someone they do not believe is safe, so it is important to consider who naturally makes them feel most safe. Studies show they feel most safe with people they can relate to and those who look like them. That is true of all of us. As a result, to a parole board made up of mostly white, highly educated, middle to upper-class, politically connected professionals, people of color in prison are more likely to be seen as risky to public safety and, therefore, have a much more difficult time getting parole than their white counterparts.

Licenses and Attributions for Paths Through the Justice System: Corrections

Open Content, Original

“Paths Through the Justice System: Corrections” by Taryn VanderPyl, revised by Jessica René Peterson, is licensed under CC BY 4.0.

Open Content, Shared Previously

Figure 7.12. “Ear Hustle Podcast Logo” by Cal Tabuena-Frolli for Radiotopia/PRX is licensed under CC BY-SA 4.0.