What Britney Spears Can Teach Us About Probation Reform
As agonizing as it was to watch the Britney Spears conservatorship grind on for nearly 14 years, her ordeal did spark a wave of state reforms designed to ensure that a necessary tool is not abused by overreach in scope and duration. These changes, such as creating reviews at regular intervals and requiring effective training for conservators, are also needed to improve another facet of our justice system — probation supervision for 3.5 million Americans.
Unlike people in conservatorships, those placed on probation were convicted of an offense and are supervised by a probation officer. But the dynamic of ceding liberty to a person vested with authority by the government is similar. Just as a conservator is typically paid from the assets of the person they supervise, many state probation systems rely in part on supervision fees to fund their budgets. This can create an incentive to keep people on probation longer than needed, especially because those who pay their fees are likely to be more stable and need less supervision.
Like conservatorships, probation serves a vital function, diverting people convicted of less serious offenses away from incarceration while ensuring accountability. But safeguards are needed to ensure that probation, which imposes multiple life-altering conditions on those under supervision, does not last longer than necessary to protect public safety and respects the dignity of individuals.
First, as with conservatorships, states should adopt policies that prevent probation terms from dragging on for years after a person has been held accountable and demonstrated that he or she is not a threat to public safety. Unfortunately, seven states, from Florida to Virginia, have no limit on felony probation terms. Another 12 states align the maximum term of probation with the maximum prison sentence for the offense, which can be decades. While other states do cap felony probation terms at a specified number of years, these can extend beyond what research indicates is necessary for public safety, such as the ten-year cap in Texas.
This research shows that almost all rearrests of people on probation occur within the first few years, and that seven in ten of such rearrests are made within the first year alone. In fact, one study found that nine in ten people on probation could serve shorter terms with no diminution of public safety.
Second, it is vital in both the conservatorship and probation systems to automatically review the need for continued supervision — or at least the same degree of supervision — at regular intervals. This has been a central component of conservatorship reforms in states such as New Mexico, and at least one state, Georgia, passed legislation in 2017 to require probation agencies and judges to regularly review people on probation for placement on “unsupervised status.” By October 2018, judges had approved more than 13,000 people for early termination from probation after examining their conduct. In eligible cases going forward, Georgians placed on probation are given a “Behavior Incentive Date,” motivating them to meet certain benchmarks toward the goal of a shorter supervision period.
These mandatory reviews should also consider whether, even if termination is not warranted, people’s conditions of supervision should be made less onerous based on their documented progress. Individuals under conservatorships may regain certain capacities following a new medical procedure or development of compensatory techniques related to their limitations. Similarly, people on probation often obtain treatment for a substance use disorder or mental illness that contributed to their involvement in the justice system, establish a pattern of complying with all conditions, and exhibit changes in their lifestyle and thinking patterns. Through actuarial assessment instruments and interviews, such progress can be quantified and verified, justifying, at a minimum, less stringent conditions, such as fewer appointments with a probation officer. An added public benefit of this change is freeing up resources to better supervise those who need it.
Conservatorship changes have also focused on several other areas that can inform probation reform. For example, Texas has implemented training resources for conservators, reflecting a consensus expressed at a recent congressional hearing that, while there are examples of intentional exploitation, most problems stem from conservators who lack the knowledge and skills to excel at the job. Likewise, jurisdictions like Mohave County, AZ, have achieved remarkable increases in the success rate among people on probation after training supervising officers in skills such as motivational interviewing.
Another common reform goal should be to enhance the agency of the person being supervised. Dr. Clarissa Kripke, who treats developmentally disabled clients in conservatorships, testified movingly at the congressional hearing on her use of techniques to elicit the authentic perspective of clients, even when their speech is impaired. Similarly, witnesses discussed the importance of measures to ensure an individual’s voice is heard in ways other than indirectly from the conservator, such as through confidential written feedback to the court and creating a right to counsel separate from the conservator when a dispute arises, a key 2021 California reform.
In the adult and juvenile probation context, innovative departments like New York City promote agency by asking their probation officers to work with clients on a plan that includes benchmarks and incentives for success and is tailored to the client’s goals in areas such as employment. This creates legitimacy and buy-in, as the person being supervised sees supervision conditions not merely as externally imposed requirements, but more broadly as a means to meet objectives they helped establish. Research suggests that incorporating procedural justice practices into probation, including providing clear notice of incentives and sanctions as well as opportunities for people to contest findings and decisions, results in improved outcomes.
Finally, another theme unifying conservatorship and probation reforms is that they are remarkably bipartisan. At the hearing on conservatorships, support was seen across the spectrum, from Texas Republican Sen. Ted Cruz to Connecticut’s Democratic Sen. Richard Blumenthal. Similarly, bipartisan legislation pending in Pennsylvania would cap felony probation terms at five years, prohibit consecutive probation terms and require early termination after 18 months for people with spotless records.
Whether viewed through a lens of government overreach or civil liberties, neither the conservatorship nor probation systems should be left on autopilot. Instead, they must be subject to sensible limitations and ongoing adjustments to ensure the use of the least restrictive approach necessary to achieve their goals.
It is a relief that the long saga around #FreeBritney has finally ended with her release. Let’s help our probation systems take a page from innovative conservatorship reforms, ensuring liberty for more Americans and prioritizing our limited supervision resources for those who raise true concerns for public safety.
Marc Levin, Esq. is Chief Policy Counsel for the Council on Criminal Justice and can be reached at mlevin@counciloncj.org and on Twittter at @marcalevin.
