The overcriminalization of America is alive and well. Thousands of citizens are detained, arrested, charged and convicted of breaking laws that have been casually imposed and that do not meet the goal of protecting public safety.
For those on probation or parole, overcriminalization in the form of technical violations is yielding returns to incarceration at staggering levels. For instance, one study found that technical violations account for almost one in four admissions to state prison and $2.8 billion in annual incarceration costs.
While community supervision plays an important role in the criminal justice system, the way it is imposed and implemented is often counterproductive to the goals of public safety and successfully reintegrating the formerly incarcerated into society.
When a person is under community supervision, they are required to report to a probation or parole officer regularly. They will often be required to pay a supervision fee, take random drug and alcohol tests (regardless of whether their conviction is directly related to a drug or alcohol charge), and adhere to specific conditions imposed by a judge during sentencing.
Some conditions of probation are counterintuitive, given the other laws in their respective states. For example, the prohibition on using cannabis while on supervision remains in place even in jurisdictions that have decriminalized or legalized cannabis for personal use.
Inconsistencies like this lead to confusion and, for an individual on probation, that misunderstanding can lead to revocation of probation or parole and, ultimately, incarceration.
Another example of a condition is the requirement that an individual report in person and at a specific time to their supervision officer during normal working hours. This is problematic because often times another condition is that a supervised individual be gainfully employed.
These two ideas work in direct conflict with one another. If an employee misses hours of work once or twice monthly for a meeting that could have been an email, it is disadvantageous for an employer to hire someone on community supervision.
To make matters worse, the federal government is adding additional potential conditions.
Rep. Frank Pallone, D-N.J., has introduced HR 2339, which would criminalize the sale and distribution of menthol cigarettes and other flavored tobacco products where even smokeless tobacco would be banned. The implications for those on community supervision are potentially dire. If this bill passes, individuals on probation and parole could have yet another item on their list of things to avoid.
Voting on the bill is expected this week.
While the proposed legislation does not criminalize possession, our nation has a long history of “trickle-down justice,” where state and local jurisdictions enact their own criminal and civil penalties that stem from federal laws. Marijuana might be the best example; Congress banned the substance with the Marijuana Tax Act of 1937 and, over the next 30 years, all 50 states followed suit.
Just as marijuana prohibition has had a disparate impact on communities of color, we know these new bans will do the same. HR 2339 would directly and disproportionately harm African-American smokers, who overwhelmingly prefer menthols to flavorless cigarettes. With the proposed prohibition in place, law enforcement officers will police illegal menthol tobacco products — usage and sales of which will often occur in communities of color.
A ‘Perfect Storm of Racial Inequity’
A ban on menthol and flavored tobacco products, combined with the overcriminalization of activities for those on community supervision, would spawn a perfect storm of racial inequity.
The Pew Charitable Trusts has reported that, when compared to whites, people of color are disproportionately more likely to be assigned periods of probation or parole. Specifically, black adults are about 3.5 times as likely as whites to be supervised, and although African-American make up 13 percent of the U.S. adult population, they account for 30 percent of people on community supervision.
Given these findings, it is likely that banning menthols could exacerbate the existing racial inequality in the criminal justice system.
Making it harder for an individual to succeed is the antithesis of providing people with the opportunity to live out the American dream. Community supervision is an important part of instilling accountability within the criminal justice system, but the goal of probation and parole should be to help people strike out on a path to recovery and redemption, not to mount barriers that only lead to further failure.
Jesse Kelley (@JessDKelley), a former legislative counsel for the Marijuana Policy Project and criminal defense attorney, is the Government Affairs, Criminal Justice and Civil Liberties Manager at the R Street Institute. Arthur Rizer (@arthurrizer) is the Criminal Justice and Civil Liberties Policy Director at the R Street Institute. A former police officer and federal prosecutor, he is also an adjunct professor of law at George Mason University.