Abstract
The transformation of US punishment in the late 20th century was defined not just by mass imprisonment, but the growth of a shadow carceral state of administrative and civil sanctions, including technical violations of probation and parole that smooth the pathway to prison. We consider the role of technical violations in the shadow carceral state through the lens of lived experience, analyzing interviews with adults on probation in Hennepin County, Minnesota, conducted in 2019. Building on the concept of legal envisioning, we ask how people subject to probation experience the threat of violations and what they imagine would be helpful to avoid them. Ultimately, these perspectives illuminate the need for transformative changes to dismantle the shadow carceral state and raise challenging questions about the role of care in punishment.
Introduction
In the late 20th century, cities, states, and the US federal government pursued a massive experiment in carceral expansion, growing the capacity of jails and prisons. As Beckett and Murakawa (2012) outline in their landmark article, this expansion was accompanied by the development of a shadow carceral state, an archipelago of punishment-like sanctions and institutions, including the creeping of criminal law and logic into administrative and civil processes. One of the key arms of this shadow carceral state was the expansion of community supervision (probation and parole) and its pathway to incarceration through “technical” violations of the terms of supervision (e.g., missed meetings, positive drug and alcohol screens, and staying out past curfew). This focus on community supervision and the “revolving door” of imprisonment in Beckett and Murakawa's article built on a substantial body of prior research on the failures of parole supervision to help people reintegrate after release from prison (see, e.g. Petersilia, 2003; Simon, 1993; Travis, 2005). But it also proved prescient, noting an early turn away from focusing on the harms of mass incarceration to the broader problem of “mass supervision,” which, as McNeill (2019) notes, has been the defining characteristic of contemporary punishment across the western world.
Probation is the largest form of community supervision, smoothing a pathway to prison for the millions under supervision (Klingele, 2013). Yet despite the extensive quantitative work on probation revocation, there has been little qualitative work on how adults on probation understand and experience this threat of revocation (Wilson, 2023). As calls grow to dismantle the shadow carceral state or abolish mass supervision (Schiraldi, 2023), it is critical to understand the role probation plays in the lives of justice-involved adults, who experience what Clair (2021) describes as criminalized subjectivity. This vantage point of lived experience, in turn, informs their legal envisioning, or the process by which criminalized communities “imagine and build alternative futures within and beyond the current legal system” (Clair, 2021: 290). As scholars note, these kinds of “bottom-up” visions for change are crucial to moving beyond reformist efforts to improve the current system and toward an abolitionist future (Akbar, 2023; Simonson, 2023).
To explore legal envisioning from probation, we draw on interviews conducted with 156 adults on probation in Hennepin County, Minnesota, in 2019. Designed to gather a holistic depiction of participants’ lives and experiences, the interviews combined structured survey questions and open-ended interview prompts across several domains, including criminal justice, employment, housing, health, family dynamics, and parenting. For this analysis, we focus on participants’ reflections about probation violations as well as how they described what has been (or would be) helpful in avoiding violations. Our findings reveal, first, that although only one-third of participants had directly experienced a supervision violation, many reported stark instability in their lives that put them at risk of a revocation. These stories, which we interpret as informal legal envisioning, underscore the fundamental importance of meeting people's basic needs in preventing return to prison and call for a very different model of public safety. However, participants also described how probation and the structures of support and accountability it provided had helped them in reaching new stability. Although a majority of those offering policy prescriptions called for reforms that would infuse more care in probation, many saw the judiciously applied threat of revocation as part of the bundle of support provided by supervision. We use these results to develop an account of how informal legal envisioning challenges the binary between reform and abolition and introduces new questions about the role of coercion and care in the criminal legal system.
Understanding mass probation
The scale of the penal expansion of the late 20th century is hard to overstate; prison populations doubled and doubled again, transforming American inequality (Western, 2007). Yet even as the number behind bars soared, probation rapidly grew, reaching “mass” proportions. At its peak in 2007, 1 in every 53 adults in the US was on probation, reaching 1 in 12 among Black men (Phelps, 2017).
Probation entails the imposition of substantial burdens. Across the US, probation typically requires people to follow a laundry list of twenty or more conditions—paying fines and fees, abstaining from substance use (including alcohol), avoiding contact with adults with criminal records, not leaving the county without permission, living in an approved residence, and avoiding police contact—all monitored by a probation officer. The broadness of these criteria provides officers with nearly unlimited discretion to insert themselves into the daily lives of probationers, scrutinizing their purchases, eating habits, and intimate relationships (Doherty, 2015; Phelps and Ruhland, 2022), and, in some places, converts officers into bill collectors (Ruhland et al., 2020). It also imposes significant financial demands, time constraints, and emotional burdens on adults already living precarious lives (Phelps and Ruhland, 2022).
Yet, for some, probation can also provide a certain kind of social welfare function, the institution's original lodestar (Schiraldi, 2023), including an ambivalent and punitive form of social work (McNeill, 2019). For example, probation officers can provide case management services, referring participants to (and often mandating participation in) programs that attempt to reduce recidivism, including housing support, cash aid or disability services, employment programs, therapy groups, and healthcare (Phelps and Ruhland, 2022; Welsh, 2019). This kind of punitive welfare assistance is one form of what Miller and Stuart (2017) describe as the “perverse benefits” of carceral citizenship or what Brydolf-Horwitz and Beckett (2021) explain as the “murky middle” between criminal justice and welfare systems. This “murky middle” is particularly clear in the case of people whose criminal behavior stems from drug use, with probation serving as a key hub for the criminal legal system to both punish and treat addiction, a dynamic Piehowski and Phelps (2023) describe as “strong-arm sobriety.” This means that for some people on probation, supervision is understood simultaneously as a life-saving and punitive intervention.
The punishment of probation is perhaps made most clear in the revocation process. When probation officers deem their charges to have violated any of the imposed conditions, including required treatment programs or failed drug tests, they can file a “technical violation,” which often constitutes grounds for revocation to jail or prison, either for a short punishment or for the entire suspended sentence (Olson, 2019). As mass incarceration erupted, the number of people behind bars who had been on probation or parole at the time of the arrest rose precipitously to represent nearly half of all prisoners (Caplow and Simon, 1999; Petersilia, 2003). Although a majority were incarcerated for new offenses, one in eight prisoners were incarcerated on technical revocations alone during the prison boom (Phelps et al., 2023). This pathway to jail and prison is particularly pronounced for young Black men without a high school diploma, the group most exposed to the punitive excess of the criminal legal system in general and technical violations in particular (Boppre et al., 2022; Wilson, 2023).
This threat of incarceration through community supervision is what drew Beckett and Murakawa's (2012) attention to probation and parole as a key arm of the shadow carceral state. As they describe, “The legal construction of violation hearings as administrative rather than criminal matters has thus had a dramatic impact on the nature and scope of the carceral state” (Beckett and Murakawa, 2012: 227). Since the article's publication, modest reforms have narrowed this pathway to prison. By 2016, the date of the most recent survey of state prisoners, the share of people behind bars in state prison after failing on probation or parole (for a technical or new offense) had declined to 40%, down from 50% in 1997 (Phelps et al., 2023). Yet incarceration for technical violations of community supervision still accounted for roughly one-quarter of all state prison admissions (Council of State Governments Justice Center, 2019) and one-tenth of state prisoners on any given day (Phelps et al., 2023). In short, much work remains to dismantle the (shadow) carceral state.
Despite growing calls for radical shifts in how we police, prosecute, and punish crime, the question of what might replace probation has been surprisingly underdeveloped. Probation, however, should be at the center of calls for change. And this work must begin with the experiences of people and communities under supervision, who most intimately understand the harms of our criminal legal system and therefore are uniquely positioned to develop “subaltern strategies and visions for transforming the structure of the law and broader society” (Clair, 2021: 289). Drawing on W. E. B. Du Bois's work on the color line, Clair (2021) argues that criminalization produces a veil that physically and symbolically separates people with criminal records from the broader body politic. The result is that people within the veil experience a kind of double consciousness, exposed both to mainstream ideas about criminality and punishment as well as their own “undistorted sight” of injustice.
Analyzing interviews with criminal case defendants, Clair (2021) argues that this Du Boisian framework can help us to understand why research so often finds that criminalized communities support reformist models of change (e.g., better police training or improved jail conditions) over abolitionist visions (e.g., alternative visions of community-led safety beyond punishment). This seeming paradox, Clair concludes, is the result of criminalized peoples’ “two-ness,” and in particular, how they experience and internalize the perspectives, values, and judgments of mainstream society reflected upon themselves. In other words, reformist impulses may come from a form of false consciousness and/or a conflicted compromise with the scope of possible change within an unequal social order, whereas abolitionist visions emerge from criminalized subjectivity's true sight. Although the Du Boisian lens provides an elegant framework for understanding these dynamics, Clair (2021) also posits a more mundane explanation for such reformist leanings: perhaps such answers reflect scholars’ methodological choices, including having non-criminalized interviewers and interview questions oriented around changes to the criminal legal system rather than the broader structure of society.
Drawing on this provocation, we argue that scholars can best unearth insights from within the veil by analyzing how criminalized persons understand their lives and system involvement holistically rather than simply their responses to questions oriented toward law and policy reform. To trace this process of what we term informal legal envisioning, we analyze how interview respondents on probation understood their challenges and successes in avoiding revocation and what had (or would have) helped them. Their answers, we argue, do not align neatly with a reform or abolition binary, but instead document the contested role of state coercion in producing safety and the range of structural and legal changes necessary to address the shadow carceral state.
Data and methods
Our interviews were conducted in Hennepin County, Minnesota. Minnesota is one of the US states that successfully resisted some of the prison boom, retaining imprisonment rates closer to western European standards. The cost, however, was the courts funneling cases into probation instead. Today, Minnesota consistently ranks among the lowest state incarceration rates, but the highest for community supervision (Kaeble, 2023; Phelps, 2017), and incarcerates a greater share of adults for technical revocations of community supervision than other states (Council of State Governments Justice Center, 2019). Hennepin is the largest county in the state, home to its largest city, Minneapolis. Although Hennepin holds the largest probation population in the state, its revocation rate is relatively low across other Minnesotan counties (Minnesota Sentencing Guidelines Commission, 2020). Hennepin is also known for embracing evidence-based practices in supervision and having a particularly robust set of social services, including many substance use disorder treatment programs. The goal of the study then was to understand the experiences and wellbeing of adults on probation in the context of a county that embraced both progressive policies and an expansive system of community supervision.
To participate in this study, participants had to be 18 years of age or older and currently on probation under Hennepin County's Department of Community Corrections and Rehabilitation. Participants were offered a $40 honorarium. Our sample was a convenience sample of the population under supervision, with the goal of garnering a diverse set of interviews (Weiss, 1994), including participants of varying ages, racial and ethnic groups, and time served on probation. To increase sample diversity, we recruited via flyers posted in probation offices across the entire county, the central county drug testing center, and local health and social service agencies that serve justice-involved populations. Participants were also recruited through snowball referrals from previous participants. Most of our participants, however, learned about the study by seeing flyers in their local probation office.
Interviews were conducted by the first author and a team of seven undergraduate and graduate student research assistants (diverse across race/ethnicity and gender 1 ) who went through extensive training regarding confidentiality, interview techniques, and data storage rules. Although some of our interviewers had experienced unwanted police contact, they approached research participants as university-affiliated researchers, rather than people with shared lived experience. The interview guide asked about five key areas: employment, housing, health, family, and criminal justice. The interview guide combined both closed-ended and open-ended survey questions, taking typically an hour or more to complete. Participants were informed that the goal of the study was simply to understand their experiences and wellbeing, and were assured that no identifying information would be shared with the probation department. During the interview, team members entered participants’ answers to the closed-ended survey questions into an online interview software (Qualtrics); open-ended responses were audio-recorded and later transcribed by research assistants. Interviews took place in public cafés, libraries, and (when necessary) supportive housing facilities. In the quotes below, we assign all participants a pseudonym to protect confidentiality.
Our total interview sample included 166 adults on probation in Hennepin County in 2019. We restrict the analysis in this article, however, to the 156 participants with non-missing responses to the question about whether they had experienced probation violations. Table 1 presents the demographic characteristics of this sample. In terms of race/ethnicity, the largest category was non-Hispanic white (38% of our sample), followed by non-Hispanic Black (35%). Smaller shares of our participants identified as American Indian or Native (8%), multiracial (6%), Hispanic or Latine (3%), or other race/ethnicity (11%). Three-quarters of our participants were men, with the other one-quarter identified as women. The participants were roughly evenly spread in age between their 20s (22%), 30s (26%), 40s (26%), and 50 years and over (26%). 2
Demographic characteristics of interview sample.
Notes: Categories may not sum to 100% due to rounding. Percentages only include participants with non-missing data for each question.
Our participants’ experiences were marked by indicators of precarity. Nearly one-third of participants had not completed high school. The majority (57%) of participants were not employed at the time of the interview. Participants were split equally between living in supportive housing facilities (35%) and with friends and family (34%), with a smaller share living independently (24%) or experiencing acute housing insecurity (7%). The largest share of participants were on probation for drug- and alcohol-related offenses (41%), followed by person-related offenses (29%), and property offenses (19%). 3 Most of our participants were required to report to their probation officer (with only 8% on “administrative” probation), with the frequency ranging from once a month or less (66% of the sample) to once a week or more (10% of participants).
For this analysis, we focus on a set of questions about probation violations within the criminal justice module. These questions started with a battery of survey questions about participants’ challenges on probation, including asking them how difficult it had been to avoid a probation violation (on a 5-point Likert scale from “not at all difficult” to “very difficult”). Interviewees were also asked to report whether they had experienced a violation since starting this stint on probation, and, if so, how many violations they had experienced. We then probed what prompted those violations and how they were resolved for up to three recent violations. Unlike Clair's (2021) interview prompt, our question did not explicitly ask respondents to engage in legal envisioning. Instead, we asked all participants an open-ended question about revocation and support: “What do you think would be (or has been) helpful in order for you to avoid violating a condition of your probation and/or a new arrest?”.
To conduct the analysis, we first analyzed the descriptive patterns in the closed-ended survey questions around difficulties on probation and violations. Applying Deterding and Waters’s (2021) flexible coding approach, the second author first open-coded the responses that summarized participants’ experiences with probation violations and their outcomes, as well as responses to what had been (or would be) helpful in avoiding violations. For each of these interview prompts, we then collaboratively and iteratively designed a formal coding scheme, including non-exclusive descriptions of violation type (positive drug test, absconding, etc.) and the kinds of supports participants identified as helpful (drug testing, programs and services, housing and employment, etc.), re-coded the entire data set, and then used counts of those codes to identify the main themes in the data. Third, we went back through responses to each question to select key quotes that illustrated the prominent themes from our analysis.
To understand these responses in the broader context of participants’ lives, we then comprehensively reviewed each interview transcript connected to the key quotes in order to map participants’ unique circumstances and experiences. For each of these focal interviewees, we wrote analytical memos summarizing how their experiences with revocation were shaped by their broader circumstances and past experiences. These memos were then refined into the profiles included in the findings below. Rather than reducing participants’ rich lives to their gender, race, age, and a few pull quotes, we use these profiles to contextualize adults’ experiences with supervision and revocation. In addition, it is through this more holistic review of individuals’ lives that we can trace participants’ informal legal envisioning.
Learning from criminalized subjectivity
We divide our findings into three sections. First, we review the descriptive survey data on participants’ experiences with violations and revocation. Second, we turn to participants’ sense-making about what had (or might have) helped them in avoiding violations. Finally, we consider participants’ suggestions for what they would change about supervision and the violation process, from reform to dismantling the (shadow) carceral state.
Mapping supervision violations
As shown in Table 1, roughly one-third of our participants had experienced a probation violation since starting this term of probation. Among participants with a history of violations, most had experienced one or two violations, with a few individuals racking up more than five. Although there were no notable demographic differences between participants with and without a history of probation violations across race/ethnicity, gender, and education, participants with a previous violation tended to be younger and were significantly more likely to have been on probation for more than a year (i.e., more exposure time).
When we analyzed the reasons for participants’ violation(s), the most common answer was related to substance use. Indeed, roughly half of the participants with violations described issues like failed drug tests, leaving mandated treatment programs without permission, and failing to report to their probation officer because of ongoing use of illicit drugs or alcohol. The second largest categories, representing roughly one-fifth of violations each, were absconding from probation (for any reason, including substance use) and new contact with legal authorities (including arrests for new offenses). Participants’ descriptions of these violations were often tersely reported, adopting the same legalistic shorthand that a probation officer might use. Participants told us, for example, “I caught a charge, was on the run, and a dirty UA [urinalysis],” “No contact [with my probation officer] and a dirty UA,” or “Failure to contact.” A few explained that police contact led them to their revocation. For example, one participant shared: “I was on drugs all of January. Forgot to call my PO [probation officer] and a warrant was issued. Cop … ran plates on my car.” In the rare cases when participants provided more detailed reflections of violations, it often indicated that they had felt a sense of injustice about the process. For example, one person reported that conflicting orders from various courts, program staff, and their probation officer forced a violation, whereas another reported that an ex-partner approaching them led to a violation because a protective order was in place.
In addition to the trends in violation patterns, participants’ assessments of the difficulties of supervision revealed that many struggled with substance use as well as stark housing and employment instability. When asked a battery of questions about how difficult various aspects of probation had been, for example, roughly half of participants reported that it had been “slightly” to “very” difficult to remain drug- and alcohol-free. A similar share faced some degree of difficulty in providing themselves with food. Notably, however, participants perceived avoiding criminal offending as somewhat less difficult than maintaining sobriety, with only one-third reporting any difficulty. In addition, relatively few of our participants reported ongoing criminal behavior that suggested a serious threat to the community. For example, only one in ten participants reported that they had “attacked or threatened anyone in any way” since starting probation. A slightly smaller share reported that they had “stolen anything that belonged to someone else” since beginning supervision. 4
Although most of the supervision violations reported by our sample were for relatively low-level misbehavior or technical violations, the majority had been revoked. Of the 53 participants with at least one violation, roughly three-quarters reported that they had been incarcerated or expected to be incarcerated as a result, often through short stints in jail or the county workhouse. The remaining quarter described a range of alternative responses to the violation, including increased treatment or reporting requirements, verbal warnings, and electronic monitoring. It is possible that interviewees may have understood violation and revocation as synonymous, disproportionately reporting violations where revocation followed. Indeed, as outlined below, some of the participants who reported no violations described instances in which their probation officers knew of their continued drug use or other misconduct but did not file a violation or initiate revocation proceedings. This suggests that a larger share of our sample was at risk than the one-third who reported a past violation.
Pathways and pitfalls in avoiding violations
We turn next to participants’ narratives to examine their sense-making about what had or could have supported them in avoiding probation violations. As noted above, two-thirds of participants did not report any violations during their current probation term. Those participants, however, lived under the threat of violation and revocation. Participants had various responses to that threat and understandings of what helped them avoid it to stay in the community.
Consistent with the patterns in violations, the most common response pattern for what would or had been helpful was getting (and staying) sober. As described above, drug use was central to many participants’ pathways to probation and the majority of our participants had substantially reduced their significant illicit substance use by the time of the interview. Sometimes this was accomplished through nothing but sheer determination, but in most cases new-found sobriety was the result of treatment programs, including intensive in-patient programs and long periods in sober houses or other supportive housing (see also Piehowski and Phelps, 2023). Substance use disorder treatment programs, from in-patient units to Alcoholics Anonymous (AA) and Narcotics Anonymous (NA), were thus unsurprisingly one of the most common resources participants recalled as what had helped them to avoid violations.
The second most common response was that participants had or would have benefitted from basic material support, including housing, employment or income assistance programs, and healthcare. Without such essential needs met, many saw revocation as likely. As one interviewee summarized: “Money makes the world run and when you don’t have enough money then people resort to other means in order to make money, you know? You've got to have money to eat … [to] put a roof over your head.” The importance of treatment programs and basic material assistance were often tied together, as participants turned to in-patient drug treatment programs to access shelter, food, and care. In other words, behavioral health needs were often tangled up with other basic subsistence needs.
Jane, a white woman in her late-50s, exemplified this trajectory of recovery through an intensive substance use treatment program. She had been a nurse for decades, until getting caught in the throes of a methamphetamine addiction, which exacerbated her depression and led to job loss, housing instability, and ultimately arrest. Once on probation, Jane was forced into a treatment program despite, as she describes it, “kicking and screaming.” After months of treatment, however, Jane came to see the program as life-saving: “[It] gave me time to clear my head without worrying about where I was going to live or what I was going to eat.” As this response illustrates, for Jane, relief from these daily survival stressors was key to her sobriety and therefore success in the community. As she described, They’ve made it easy, they’ve taken away the not having a place to live because that's going to be on your mind … It's where am I going to eat, where am I going to sleep, where am I going to be safe. So they've taken that fear away. Just going to the [AA] meetings, staying sober. You know that's usually where my offenses come from, is my use. So as long as I’m sober, I don’t commit crimes, sell drugs, have a gun, or do anything that really puts me in jail. So my sobriety, going to meetings, keeping up with my sober network.
Intriguingly, both Jane and Antonio told the interviewer that they were confident in their ability to avoid revocation. Yet this new-found stability was fragile and vulnerable to backsliding. Jane, for example, told us “Now it's not difficult, it's day by day though … because I have to live day by day with addiction.” Similarly, though his new sense of “maturity” offered a source of confidence, Antonio lived in a state of insecurity, facing substantial mental and physical health challenges on top of the struggles of poverty. He had been diagnosed with depression and bipolar disorder, having made several previous suicide attempts, and he had a substance use relapse only two months before the interview. Antonio's drug use was, in part, an attempt to self-medicate. By the time of the interview, his health seemed more stable, but Antonio was still unemployed and spending most of his time searching for housing (see also Halushka, 2023). For the time being, he was staying with his girlfriend's niece, which the couple considered a “stressful” and temporary shelter because the home was crowded and other adults in the household heavily used alcohol and illicit drugs.
In short, although many of our participants expressed confidence in their ability to avoid violation, they also communicated the vulnerability of their positions. Jane and Antonio's confidence in avoiding revocation largely did not signal that they were thriving and healthy, but instead reflected their constant vigilance, fueled in part by probation's coercive motivation and connections to services and programs. Jane, for example, credited the “accountability” of the treatment program with helping to avoid probation violations. As she described: “I have to answer to the people in the house, I have to answer to the owner, I have to answer to the piss test … So I have accountability.” In the same vein, Antonio described how probation visits and random drug testing had provided “an extra little bit of accountability on my part,” alongside referrals to services. Especially for people with what they perceived as serious substance use problems, the drug testing and threat of revocation built into probation was at times understood by participants as a form of coercive care that was helpful to them in trying to stay drug-free and law-abiding (Piehowski and Phelps, 2023).
In addition, although participants like Jane and Antonio described relying in part on the coercive motivation of probation, they often noted that they had been able to benefit from services in part because of lenient decisions by their probation officers, who chose not to violate them for relapses or other technical violations. Jane, for example, could have been violated when she chose to leave her first treatment program. She found the program a bad fit and wanted to transfer to a new (more intense) program, which she did without her officer's approval. By allowing Jane the agency to choose a new program voluntarily, her officer avoided a violation and supported Jane's recovery process. Antonio also shared stories of times his probation officer could have revoked him (e.g., for positive drug tests), but used his discretion to work with Antonio instead. As he summarized, Yeah, we talked about my relapse and he could have been an asshole or a jerk and just violated me there, and, you know, that wasn’t the case … [we] came up with a game plan on how to make sure it doesn't happen again or learn from the mistake.
Finally, even when the coercive threats of probation were perceived as helpful, it could sometimes lead to coping strategies with worrying implications. Darius, a Black man in his mid-20s on probation for shoplifting, told us how the threat of incarceration motivated changes in his behavior: I’m not doing nothing that's going to lead me to actually getting a probation violation … When those people told me in that courtroom … ‘If you don’t comply … I’ll send your ass to prison.’ Straight up—hell naw, nope. Shit, everyday I hear that judge in my ear, ‘Hey, you better do the right thing.’
What Jane, Antonio, and Darius's experiences help us to see is both how the resources and compassion of a supportive probation officer can be perceived as a meaningful and positive intervention, a strategy for “building your life,” as well as the ways in which probation pushes people toward lives constrained by the punitive and racialized control of the criminal justice system, including, for Black men like Darius, the hyper-surveillance of their neighborhoods. Reading these transcripts through the lens of criminalized subjectivity (Clair, 2021) reveals that participants’ stories are not simply about the benefits and costs of probation, but also about the structural barriers that punish the poor. In other words, it is in these broad descriptions of participants’ lives that we can most clearly see the outlines of radical visions for change.
Reform or abolition?
As the stories above illustrate, when asked about what had (or would have) supported them in avoiding violations, participants most commonly spoke about accessing services, treatment, and support largely outside the criminal legal system. Yet, as the stories about accountability highlight, in some cases interviewees also told us about what had been helpful about probation itself (and their relationships with probation officers), as well as what they would want to change about supervision. Those who called for these kinds of institutional reforms were nearly unanimous in calling for more services and support from probation officers. As one participant summarized about what would help: “I think having a probation officer that is actually willing to work with you rather than just working their job.” This kind of work meant connecting them with real material assistance, including employment opportunities, state insurance and assistance programs, and supportive housing.
In addition, participants insisted on blunting probation's punitive demands—calls we argue can be read through both reformist and abolitionist frameworks. Reform-oriented suggestions, for example, included reducing reporting requirements that interfered with work and family obligations. As one participant shared, it was hard to find a job when probation limited the number of miles he could travel from home and restricted his schedule with inflexible meeting times and last-minute testing requirements. Others described wanting probation requirements to be limited or stopped once they had met their programming goals and were doing well. And, as described above, many participants described how probation worked better when officers were judicious about filing violations and pursuing revocation, arguing that they should “care” and provide “support,” rather than just trying to surveil and punish.
One of the most prominent visions of change that we might read through an abolitionist lens was to stop testing for marijuana. Unlike the long stories about the negative impacts of excessive drinking or dependence on other substances, and a reluctant reliance on “accountability” to curb use, many participants’ stories about marijuana began instead from the assumption that use helped their wellbeing, in some cases by substituting for “harder” drugs (see also Piehowski and Phelps, 2023). As Liam, a white man in his early-30s, described, Smoking weed does help … When I’m using heavier drugs like heroin, I don’t smoke weed. But being on medication to keep me off of heroin … smoking weed helps with my anxiety, and depression, and my physical pain, and all of that. And so then I'm not doing heroin and Xanax and all that.
Jayden, a Black man in his early-20s, similarly called out the hypocrisy of revocation for marijuana use. He contrasted the seemingly beneficial effects of marijuana with the sometimes-lethal effects of alcohol (“Alcohol kills”), which was nevertheless legal. But the hypocrisy of sending people to prison for marijuana was far from Jayden's only concern. He had been on probation and in and out of correctional facilities since his teen years in response to a string of robberies and a drug offense. Employed at a warehouse at the time of the interview, he was coming into adulthood with a criminal record and a deep mistrust of the state. When asked if he felt treated like a human being by his probation officer, he replied sharply: “I’m treated like a criminal, that's not a human being.” Part of this experience was his sense that his officer did not recognize him as a full person—the probation department did not know about him, they just knew “what they read” in his file (see also McNeill, 2019; Werth, 2023). In addition, probation imposed requirements that fundamentally misrecognized the realities of his life. For Jayden, conditions like abstaining from “contact with known felons” was an absurd request when “my cousins got felonies.” As Jayden asked: “If I go to a family reunion, y’all gonna lock me up? Like that's dumb as hell. Y’all can’t stop my cousins from coming to my grandma's house.” Jayden also had a child who lived in another state, but was forbidden to leave the state without permission. As Jayden confessed, “I ain’t gonna front … that shit hard.” On top of all of that, probation demanded he report on specific days and times with little regard to the constraints of his job, putting him at risk of being fired.
If we had simply looked at Jayden's answer to the survey question about what would help him to avoid violations, Jayden's responses would have read as squarely reformist. As he told the interviewer, probation should “lower their terms and conditions,” giving people more flexibility in reporting requirements, for example. Jayden also wanted more support from his probation officer (“She don’t do nothing for me, like she ain’t help me get no job, she don’t help me find no house, only thing she do is make me piss in a cup and give me rules to abide by.”) But it is clear from the more holistic review of Jayden's interview that he had a much bolder vision of the injustice of probation. In the first answer, he was articulating harm reduction strategies, rather than the full expanse of his legal envisioning. Reading the broader arc of his story, instead, points out many of the forms of state failure and state violence endemic to race–class subjugated communities (Soss and Weaver, 2017) and thus the scale of change needed for redress.
Legal envisioning from probation
We began this article by revisiting Beckett and Murakawa's (2012) landmark statement on the shadow carceral state, focusing in particular on the role of probation violations. Since that article's publication, a growing set of voices within both academia and the policy world have spotlighted the injustice of this back-door route to imprisonment, tracing the share of the jail and prison populations incarcerated through revocation. Yet few have stopped to ask how criminalized people themselves understand the threat of probation violations, their effect on their wellbeing, and what might support them in the community (McNeill, 2018; Wilson, 2023). Drawing on Clair's (2021) theorizing on criminalized subjectivity and legal envisioning, we analyzed interviews with adults on probation in Hennepin County, Minnesota, to better understand how the lived experience of supervision can inform visions for change.
Our results can be summarized across three key themes. First, although only one-third of participants had experienced a formal violation on this stint of probation, the majority experienced stark precarity that made it difficult to avoid the threat of revocation. Indeed, even when participants expressed relative confidence in their ability to stay in the community, their stories nearly always revealed substantial instability in housing, income, and health. Second, when asked what would support or had supported them in avoiding violations, participants largely pointed to services and resources outside probation (though often accessed via connections brokered by their probation officers), especially in-patient drug treatment programs that provided both help with substance use disorders and the basic necessities of life. Third, when participants proposed specific policy changes, they often leaned toward reformist solutions that improved rather than rejected the criminal legal system. These proposals largely called for less-punishing forms of coercive care, including more support from probation officers, more robust rehabilitative programs and social services, and more judicious violation and revocation policies.
Our findings are thus broadly consistent with Clair's (2021) analysis and the broader literature, which often finds that when asked to list preferred changes to the criminal legal system, directly impacted people often support more reformist visions of change, with only a minority explicitly supporting more radical or abolitionist visions. Yet, as we have argued above, what is clear from looking at the broader context of people's stories is how much the imposition of probation and the risk of violations are driven by structural precarity and racism. These reflections are where we ultimately see the insights of criminalized subjectivity and second sight like Jayden's expressions of the injustice of probation. In this sense, legal envisioning is perhaps best revealed in how people describe the context and meaning of their criminal justice involvement, as well as what they see as providing support for their lives, rather than in responses to fairly narrow “reform” or “change” interview prompts.
At the same time, it is meaningful that so many participants experienced state coercion as a form of care, however ambivalently. It was this experience that informed many participants’ visions for change, calling for more proportional levels of coercion rather than a full rejection of coercive care or the apparatus of probation. Although some of these narratives might have been produced by the repeated coaxing of correctional front-line staff and treatment programs, we think it is a mistake to explain away these reflections as only distorted sight, or a kind of false consciousness. Instead, participants themselves felt acutely the tensions of both relying upon the state for help and the limits of that coercive care. Recall, for example, Darius's clear-eyed understanding of how the correctional control had both corralled him at home (playing Grand Theft Auto) while also helping him “build up” his life. Or Jane and Antonio's stories of finding sobriety and stability, which conveyed the support they felt they derived from probation, not in spite of their probation officers’ capacity to file a revocation, but specifically because of it.
That a majority of our participants understood probation as helpful in their own lives—including through a punishing form of accountability—at the very least complicates some elements of calls to dismantle or abolish probation altogether and raises the question of whether there is a legitimate role for coercion in care (see also Sufrin, 2017). It was not simply that probation provided support alongside the threat of incarceration, but that care and punishment were intertwined, with the threat of incarceration an essential part of the coercive motivation of rehabilitation for some. As a result, it was not simply that help was on offer through the criminal justice system, but that for some, they would have never accessed community-based programs and particularly substance use treatment without coercive intervention (though see also Tiger, 2012).
It is worth revisiting here that Hennepin County, and Minnesota more broadly, might be a “best case” scenario of a relatively progressive local jurisdiction with more generous services, able to provide evidence-based approaches to supervision and access to more treatment. It is also a jurisdiction in which probation is especially skewed toward the management, punishment, and treatment of substance use disorders (Piehowski and Phelps, 2023). This suggests that probation is most likely to be experienced as helpful in contexts in which probation officers are more able to successfully broker connections to treatment programs and other resources. But these tensions of when and where state coercion plays a role in the management of substance use disorders, mental illness, and daily disorder also have important implications for imagining alternative institutional arrangements across the country. For example, one might envision the replacement of probation with voluntary community-based services and/or a new system managed by social workers. Our study poses the question of whether participants in such a system would access those services at the same rates or accrue equal benefits without the “stick” of the threat of punishment, and whether service providers might take on the surveilling role in lieu of state agents in such a reimagining.
Our data do not answer these questions, but they prompt a deeper set of reflections about what it might mean to truly dismantle the shadow carceral state. One of those reflections is that the reform-abolition dichotomy, and the related assumption that second sight will produce abolitionist visions, may obscure even as it reveals. Instead, a more wide-ranging read of our participants’ experiences suggests big and small ways to both reduce the harms of probation and reimagine bolder remedies to structural precarity and inequity. For example, some might categorize our participants’ frequent calls for supportive and caring probation officers as reformist because it works within the existing understanding of the institution of probation. Yet to the extent that participants were calling for something like a step toward a new model of care workers, we might also understand this demand as an abolitionist call (or non-reformist reform) for alternative institutional formations. In the end, a real answer to the shadow carceral state will require building political support for the kind of holistic interventions that prevent crime and criminalization in the first place, bold shifts in how supervision is practiced, and experiments in moving toward other models of support beyond supervision altogether.
Footnotes
Acknowledgements
Our first acknowledgment goes to the people who participated in this research, generously sharing their time and insights. Thank you also to the journal and special issue editors and anonymous reviewers for their insightful suggestions and support. This article is part of a broader project that was made possible by the work of many partners, including Rebecca Shlafer, Tyler Winkelman, Kelly Lyn Mitchell, Rachel Hardeman, and the Hennepin County Department of Community Corrections and Rehabilitation, as well as research assistants Noura Abukhadra, Faith Adewunmi, Olufemi Akindumila, De Andre’ T. Beadle, Rodrigo Tojo Garcia, Hannah Hagen, J’Mag Karbeah, Olivia Levinson, Sara McClendon, Ingie Osman, Amber Joy Powell, Victoria Piehowski, James Rashid, Christopher Robertson, Lizeth Diaz Rodriguez, Alyssa Scott, and Anna Stalsberg. Funding for this data collection effort was provided by the University of Minnesota's Grand Challenges Research Initiative; the College of Liberal Arts, Recruiting and Retaining Graduate Students from Underrepresented Groups Seed Grant; the College of Liberal Arts, Talle Faculty Research Award; and the Minnesota Population Center.
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Funding for this project was provided by the University of Minnesota – Twin Cities.
Notes
Author biographies
Michelle S. Phelps is Professor of Sociology in the Department of Sociology at the University of Minnesota – Twin Cities. Her research is on the sociology of punishment, focusing on policing, probation, and prison. She is the co-author of Breaking the Pendulum: The Long Struggle Over Criminal Justice (Oxford University Press, 2017) and author of The Minneapolis Reckoning: Race, Violence, and the Politics of Policing in America (Princeton University Press, 2024).
Eric Seligman is a PhD student in Sociology at the University of Minnesota - Twin Cities. His research focuses on the political economy of punishment. He was previously at John Jay College at the City University of New York, where he coordinated CUNY's college-in-prison program and received his Masters of Arts in Economics.