The Ideology of Community Supervision

Ji Seon Song

Over 3.6 million people are on some form of community supervision of either probation or parole.¹ This is almost double the number of people incarcerated in juvenile facilities, jails, and prisons. The alternative to incarceration has now become its own beast, leading to the new coinage of mass supervision or mass probation.² The problems with mass supervision and mass probation are many, as scholars have noted.³ Supervision in the community net-widens. It replicates and perpetuates racial inequality. Community supervision does not lead to a life free from the criminal legal system. Instead, people who are sentenced to probation and parole often cycle back into incarceration. Probation and parole expand the carceral footprint and do so in ways that infringe on the privacy, liberty, and dignity of lives, while also expanding law enforcement capabilities.

These criticisms implicitly include the actions of the agents of community supervision—probation and parole agents. But is there more to probation and parole than just supervision? As routine, embedded institutional actors who operate at the nexus of law enforcement, rehabilitator, counselor, and adjudicator, what other kinds of harms do they produce? This is where Renagh O’Leary’s work comes in. In the “new penology” described by Jonathan Simon and Malcolm Feeley,⁴ with its emphasis on risk management and control of those deemed dangerous, the agents of community supervision are important arbiters of risk management and assessors of dangerousness. In two articles, Supervising Sentencing and Ideological Testing, O’Leary delves deeper into the processes of community supervision agents, looking beyond their purely supervisory functions. Each article is noteworthy for its individual contributions, but reading them together reveals additional insights and implications. O’Leary’s work uncovers probation and parole agents as important ideological actors contributing to the “ideology of criminal procedure.” These principles of criminal procedure frame the cultures and interactions between the criminal justice actors and the public, constituting “a set of ideas and assumptions that undergird the operation of the criminal process and legitimize the status quo.”⁵

To make her arguments, O’Leary, a criminal law and procedure scholar, has amassed an impressive dataset of 200 internal probation policy documents, including standardized questionnaires, templates for presentence reports, and agency policies on presentence investigations and reports. She also draws from a collection of risk assessments and completed a risk assessment training herself.

In Supervising Sentencing, O’Leary examines the process of pre-sentence interviewing and report-writing by probation officers. Probation officers in nearly all jurisdictions are tasked with preparing a pre-sentence report for the sentencing judge. The report is preceded by a pre-sentence interview where the probation officer questions defendants on a wide range of topics, aimed at arriving at a sentence recommendation and providing relevant sentencing information to the court. O’Leary highlights three facets of this pre-trial report process: topic-selection, fact-finding, and meaning-making. In carrying out these discretionary functions, probation officers can ask if family members have criminal histories and obtain broad releases for otherwise private records. After gathering information, they then interpret the facts in highly “impressionistic and subjective ways” to opine on those facts, such as in assessing the defendant’s “attitude.” These choices have an “ideological dimension,” according to O’Leary. They help imbue a “punitive perspective” at sentencing that has “deep faith in the criminal system” as one that is socially beneficial. This elevation of the punitive perspective also benefits from the probation officers’ “pretense of neutrality and helps insulate it from challenge and critique.”

In Ideological Testing, O’Leary delves deeper into the concept of the ideology of criminal procedure. She surfaces a category of questioning by probation officers and parole agents in risk assessments, pre-sentence interviews, and parole hearings that reveal what she calls “ideological testing.” The ideology of criminal procedure O’Leary points to in Supervising Sentencing previews arguments she fleshes out in Ideological Testing. O’Leary highlights three sites of ideological testing: presentence investigations, risk assessments, and parole hearings. She identifies questions that “test” the ideology of criminal defendants with questions like “do you think the criminal justice system is fair?” or “How do you feel about the police who arrested you?” Even as inequities and injustices in the criminal legal system are well-documented, especially for Black defendants and defendants from other racial minority groups, the “wrong” answer to these questions is interpreted as evidence of criminality, lack of remorse, or refusal to accept responsibility. At its essence, the message of these questions to a defendant is: drink the Kool-Aid even if the Kool-Aid poisons you, or suffer the consequences. These questions reinforce the punitive perspective O’Leary defines in Supervising Sentencing: “one that sees the criminal legal system as just, criminal punishment as socially beneficial, and criminal defendants as moral failures.” More than that, the systematic use of these questions and assessments undermines free speech, perpetuates a kind of gaslighting by denying the defendant’s reality, and further entrenches racial injustice by disallowing criticism by defendants of the kinds of bias and discrimination that led to their arrests, prosecutions, pleas, and convictions.

O’Leary acknowledges that because her examination is limited to policies and protocols, she cannot opine on how individual officers approach cases. But in her framework of community supervision agents’ ideological work, we can see how these agents, as “street-level bureaucrats,” are yet another example of Michael Lipsky’s theory of how government workers deploy their discretion in ways that not only shape the experiences of individual defendants, but serve to legitimate perceptions of the system as a whole.⁶ Thinking about the process of ideological testing and pre-sentence investigating together reveals how they form a feedback loop for the stakeholders, producing a continuous survey confirming the fairness and legitimacy of the criminal legal process and system. This feedback loop tells community supervision agents and other criminal justice stakeholders that even criminal defendants consider the criminal legal system fair and believe that their cases did not involve bias, discrimination, the misuse of discretion, or missteps by police, prosecutors, judges, and public defenders. This message is perhaps even more potent because the perception of community supervision agents is that they are non-partisan and represent the softer or rehabilitating side of the criminal legal system.

As a former public defender and clinician, O’Leary is well-positioned to offer practical solutions. For instance, she outlines a First Amendment challenge to ideological testing in risk assessments. A separate approach she advocates for in both articles is the elimination of the identified processes of the pre-sentence interview and risk assessments. Perhaps such elimination might satisfy the issues she highlights, but I wonder whether it might be worth questioning the broader value of these community service agents and the institutions they represent, especially as more is uncovered about how much they execute managerial and behind-the-scenes functions of the criminal legal system that have wide-ranging consequences.

Ultimately, O’Leary’s work calls on scholars and advocates to think more deeply and with more nuance about the inner mechanisms of the often overlooked actors engaged in community supervision. What may appear to be the routine and inconsequential actions of these actors are actually powerful drivers of certain ideologies of our criminal legal system.

1. U.S. Bureau of Justice STatistics, Probation and Parole in the United States, 2022.
2. Michelle S. Phelps, Mass Probation: Toward a More Robust Theory of State Variation in Punishment, 19 Punishment & Soc’y. 53 (2017); Vincent Schiraldi, Mass Supervision: Probation, Parole, and the Illusion of Safety and Freedom (2023).
3. See e.g., O’Leary, Sentencing Supervision at fn. 3 (listing critiques).
4. Malcolm Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections and its Implications, 30 Criminology 449, 452-55 (1992).
5. O’Leary, Supervising Sentencing at 1492, fn. 42 (citing Jocelyn Simonson, The Place of “The People” in Criminal Procedure, 119 Colum. L. Rev. 249, 258-59 (2019)).
6. Michael Lipsky, Street-Level Bureaucracy: The Dilemmas of the Individual in Public Service (1980).