It is a truism that, in the United States, powers and resources—often called “capabilities”—are not spread equally across people and groups. It is equally plain that individual vulnerabilities—incapabilities (or disabilities, broadly conceived)—become magnified when that individual is a member of a group targeted for special attention through criminal processes. For the most part, recent attention has been directed at the ways in which policing and imprisonment enforces oppression on the basis of group membership, rather than as magnifying individual vulnerabilities. Perhaps that explains why one of the blind spots of much criminal procedure writing and the current abolition movement are those carceral institutions, including the institution of probation, that exist outside the police and the prison. Centering probation reveals some of the ways in which individual powers and resources are disrupted through both group membership and institutional oppression.
One of the few places in which the issues surrounding probation, parole, and supervised release get something of an airing is in the context of low-level criminal courts as described by some of the recent “misdemeanor” scholars, and has been described for years more by problem-solving-court scholars (of whom Professor Lahny Silva is one). Professor Silva’s more recent articles have more directly critiqued the rules and practices that govern federal probation and reentry in the context of the War on Drugs. In The Trap Chronicles, Vol. 2: A Call to Reconsider “Risk” in Federal Supervised Release, Professor Lahny Silva distinguishes between approaches that treat probation as a form of risk management and as a form of resource management.
Risk management is a form of social control that limits access to social connections and so disempowers people under supervised release from having access to people and places that are associated with offending. Resource management is a form of social facilitation that expands access to social connections and so empowers people under supervision. Professor Silva introduces and elaborates on a desistance model of probation as one form of resource management. Desistance models recognize that social connectivity is essential to the sort of robust relationships and resources necessary to prevent further contacts with the criminal process. Professor Silva’s article provides a brief history of probation and supervised release, follows up with a useful overview of contemporary probation theory, and then argues that probation would be better organized as a form of individually targeted resource management rather than as a form group targeted risk management.
The problem with risk is that it is group-based rather than individual-based and so does not tell us what any particular person will, in fact, do. As Professor Silva notes, “the locus of concern [under the risk model] is not the individual probationer…[but rather] protection of the public.” Risk analysis identifies a population of individuals and separates them into, effectively, two groups: the bad-behavior-group comprised of the percentage of the population who will actually engage the proscribed conduct; and the good-behavior-group comprised of the percentage of the population who will not.
“The risk principle.” Professor Silva notes, “assumes the risk of reoffending is predictable and the intensity of the intervention treatment should correspond to the supervisee’s risk level.” In other words, risk management justifies subjecting everyone in the relevant population to supervision and what the probation theorists call “targeted interventions” if that population as a whole manifests sufficient quality of anti-social behavior and a sufficient quantity of people are likely to fall into the bad-behavior-group. In addition, the risk analysis may justify the type of supervision imposed based on this quantity and quality of risk. If the type of bad behavior to be prevented is sufficiently serious, that may justify significant restrictions on liberty, including some forms of brief or lengthy, intermittent or permanent, home or institutional detention. A greater perceived risk also justifies lowering the triggering conditions for supervision to include more people within the carceral net, so that supervision will apply not only when there is a large bad-behavior-group relative to the population, but when there is a much lower one for more serious preventable conduct.
Accordingly, the programs provided under the risk-management model—what is currently called the “risk-needs-response” model—are only those programs “needed” to stop the bad-behavior subgroup from engaging in that behavior, usually by cutting them off from various social resources: the people and places regarded as triggering the group’s bad behavior. These programs range from alcoholics anonymous to ankle monitors and anything in between. However, these “needed” programs are not, Silva argues, individualized “responses.” So the “need” addressed is actually group need, not individualized need. If sufficient members of the group are either good-behaviors or badly served by the programs, those people will not respond well, or at all.
Professor Silva’s argument is that, to minimize future contacts between people under surveillance and the carceral system of policing and prosecution, probation officers need to address each individual person’s capabilities to desist from criminal activity. She focuses on what is called in probation circles the “good life” model, which suggests that crime is a response to structural impediments people on probation face in attempting to pursue life, liberty, and happiness (and a bunch of other basic values).
Specific people, with identifiable families, friends, homes (or lack thereof), health issues, employment difficulties, and so on, may lack the particular physical and psychological powers. or social resources or structures (what are often called “capabilities”) necessary to facilitate desistance from crime. Professor Silva explains that the role of probation officers is to create a relationship in which the parole officer provides leadership and support for the person on supervised release to develop various capacities or capabilities, often by connecting them with various social resources. Some of these resources are fairly basic: however, given structural impediments, many vulnerable people in socially oppressed groups may lack these resources.
Professor Silva’s account of desistance provides some interesting ways to think about individual and group vulnerability and oppression. We can think of desistance as a combination of resources and powers, where these powers are driven by various social circumstances that enable things like connection with support networks, mental fortitude, and “hope.” Hope, Professor Silva notes, is the condition of feeling empowered to change one’s personal circumstances. Desistance works when the person under supervision feels that the supervision system treats them fairly, even if the larger criminal process or political and social systems do not. Fair treatment gives the person under supervision hope that they can exit the cycle of policing, probation, and punishment.
It is worth pushing Professor Silva’s desistance model a little further, and considering some of the structural factors that make exiting the carceral cycle so difficult. Consider, for example, hopelessness as the feeling or believing that one that one lacks the power to change one’s own circumstances. It is worth noting that, given structural oppression, this belief can be more or less correct. The impediments to personal change are raced and classed, and hopelessness may just be what happens to people who lack robust social systems able to cope with life’s most momentous crises.
We could then connect Professor Silva’s account of risk management with Forrest Stuart’s notion of “therapeutic policing,” in which law enforcement officials regard individuals as possessing certain powers or capabilities—of making good choices—and of possessing certain resources—of having good choices to make. But for vulnerable people in marginalized groups there may be no resources—no good choices to make—and people may be realistic about their social position—hopeless, given their circumstances. Their position in the criminal process as compared to others is thus a matter of resources and luck, rather than choice. They are responsible in the limited set of ways of having been caught up in the policing net. What sort of realistic agency can we offer people in these circumstances? Could hope focus upon finding power within communities of resistance?
Professor Silva provides some practical answers to these questions in another recent article, Reaching for Reentry: Indiana University Robert H. Mckinney School of Law’s Contribution to the Reentry Movement, her account of the Re-Entry and Community Help program she runs for people under supervised release. But for those of us who simply seek to understand the ways in which the criminal process churns through the vulnerable and marginalized, Professor Silva’s Trap Chronicles Vol. 2 article makes visible those rarely glimpsed filaments of the carceral net.
