Lacayo is one of the 4.5 million people on probation or parole on any given day in the U.S., almost twice as many people as are currently incarcerated. Community supervision is often thought of as a positive alternative to incarceration. But for many, the strict requirements and intense surveillance turn it into “a secondary form of incarceration,” says Amy Sings in the Timber, an attorney and executive director of the Montana Innocence Project. The consequences for not adhering to the conditions of parole are harsh: A quarter of state prison admissions nationwide are a result of technical violations such as failing a drug test or missing a meeting with a probation or parole officer. “In many instances, in our client populations, there are survival tactics that are criminalized,” reflects Sings in the Timber.

The issue is acute in rural states such as Montana, and disproportionately impacts tribal communities. Native Americans account for 6.5 percent of Montana’s population, but represent 20 percent of the population in men’s prisons and 34 percent of the population in women’s prisons. An ACLU report found that between 2010 and 2017, 81 percent of Native Americans in Montana who were reincarcerated while on probation were charged with a technical violation, not a new crime.

Technical violations send people back to prison because of a lack of support

Complying with requirements of probation or parole can be a high-stakes experience and the system is not set up to help people navigate the complicated network of needs post-release. The threat of punishment makes some fearful to reach out for help, said Lacayo, who is now a community organizer. “[Probation or parole officers] could easily make your life even harder, so it’s very hard to say how you feel,” Lacayo reflected.

There are also a number of practical barriers.

Many conditions of probation or parole require transportation, and in Montana, people may have to drive over an hour on rural highways to reach the nearest probation and parole office. “To be able to even access your supervisor can be impossible in some instances,” says Sings in the Timber.  These long trips are frequent, especially since the Montana Department of Corrections does not accept most urinalysis and drug testing, evaluations, or treatment programs that take place on reservations. Some tribes, like the Fort Peck Reservation in eastern Montana, have a memorandum of understanding with the state that allows tribal members to utilize the tribe’s probation and parole resources to fulfil state requirements. However, this is not a state-wide standard.

Housing is another common requirement of probation and parole, and Montana has 23 housing-related collateral consequence laws that restrict or ban certain forms of housing for formerly incarcerated people with certain convictions. Even pre-release centers — transitional facilities where formerly incarcerated people live under supervision — can be challenging to access, though they are meant to be a stepping stone to independent housing. All pre-release centers in Montana are in urban areas; none are located on reservations. Lacayo also  notes that they are not always designed to be a supportive transitional environment. “When I got to pre-release, one of the directors said ‘Just so you know, I’m not here to be your friend,’” he says. “They have absolute power over you. That’s a very scary thought.” At the time Lacayo lived there, it cost $14 per day. Montanans earn between just 16 cents and $1.25 per hour for employment while incarcerated.

Montana also has 189 employment-related collateral consequences, including bans on many jobs that require occupational licensing, such as commercial truck driving and selling real estate. (One in four jobs in America requires such licensing.) Some of these consequences are mandatory and lifelong, while others are at the discretion of the employer and time limited. Reservations have a separate set of laws, with their own restrictions. Some, including the Fort Peck Reservation, ban anyone with a felony from working for the tribal government, which is often the largest employer in the area. It can be a confusing system to navigate. “The number of employment opportunities are far and few between,” says Sings in the Timber.

Reentry is also expensive. Costs associated with probation and parole — such as mandatory drug tests, restitution, or GPS monitoring — can quickly add up. Compliance Monitoring Services, one of the companies Montana courts use for surveillance, charges up to $360 per month for GPS bracelets, plus a $50 installation fee. If someone can’t afford rent or other fees of probation and parole, the Department of Corrections can garnish their wages, tax refunds, or a tribal member’s per capita payment.

Reentry supports reduce technical violations and recidivism

Social support can be particularly hard to come by as a formerly incarcerated person. A common condition of probation or parole is that you are not allowed to associate with other formerly incarcerated people — especially challenging in small communities or if family members are formerly incarcerated.

Returning to a reservation presents a separate set of barriers. As sovereign nations, reservations do not fall under the jurisdiction of the state. This means that people on probation or parole cannot legally return to their home reservations without extradition waivers, which allowing the state to extradite someone from tribal jurisdiction if a violation occurs. Not all reservations have extradition waiver agreements, however. The Fort Peck Reservation in eastern Montana does, while the Crow Reservation in central Montana does not. Without an extradition waiver, people cannot live on a reservation until they have completed their probation or parole, which may be years.

“It’s almost impossible for [people on probation or parole] without their support system,” reflected Fort Peck Chief Judge Stacie Four Star. “But we see that a lot.” Four Star is pushing for standard memorandums of understanding and extradition agreements statewide, but these ideas have gained little traction.

Recent policy efforts to increase support for formerly incarcerated Native Americans have been unsuccessful. Two bills were introduced in 2019, which would have created a grant program for culturally-based reentry programs and revised an existing reentry housing grant program to require that a certain percentage of funding was allocated to programs serving Native Americans. Neither bill passed. There has been more success with tribal-led programs. The Confederated Salish and Kootenai Tribes Holistic Defender Program, for example, assists clients to find employment, housing, healthcare, obtain a drivers license, and connects people with mentors, such as tribal elders, to provide cultural support.

The pandemic has expedited the need for improved reentry support. In spring 2020, Indigenous and Latinx activists in Montana, including Lacayo, organized a campaign called Let Them Come Home to advocate for an end to arrests for technical violations, temporarily waive probation and parole requirements, and reduce the number of people in Montana jails and prisons. Despite their efforts, Montana actually released fewer people from prison in 2020 than they did in 2019.

Without meaningful reentry support, technical violations will likely continue and people will continue to be re-incarcerated. “How can you jump through all these hoops and follow the rules if you don’t know where your next meal is coming from or where you can sleep safely?” reflected Sings in the Timber. “We need to take a look at technical violations not as someone willfully doing wrong, but as a strong sign that there is support that is needed.”

Like any curious 14-year-old, I asked, “Why they let you go?” She responded with an undertone of cynicism: “They said they need to downsize, so they let me go.”

“Mommy, what does downsize mean?”

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Since my overly expensive degree in Organizational Behavior from NYU, I’ve learned that not all downsizing is as bad as what happened to my mother.

According to the Harvard Business Review, proponents of downsizing argue that it is an effective strategy, with benefits such as increased performance and sales. Stepping out of Business 101 is decarceration, the downsizing of incarceration to reduce the scale and reach of the criminal justice system. It’s time to start now, especially as violent crime is down in most cities and lawmakers weigh the decriminalization of many offenses, such as drug possession/use and sex work.

Downsizing means police should not be mental health first responders. They need mental health treatment. They need help. Police officer suicides in 2018 were the highest ever, with 228 officers dying by suicide. Chuck Wexler, executive director of the Police Executive Research Forum, believes the 228 number “is undoubtedly underreported.” Probation and parole officers are not substance abuse counselors or employment specialists.

And all of this is okay because we don’t need them to be. They just need to get themselves healthy, and rightsizing should be an option. We already have proficient social workers, mental health professionals, substance abuse counselors, and employment specialists who are not utilized enough or funded appropriately.

The criminal justice system is a discordant machine of more than 55,000 criminal justice-related agencies nationwide inclusive of police, courts, district attorney offices, jails, prisons, parole and probation boards, and ecarceration. I’m sure I’ve missed a few here, but the point is that America’s criminal justice reform intoxication should include more than reducing the number of people in prisons or the amount of lockups closed: It should mean fewer institutions of incarceration, too.

Downsizing in this context means relieving some institutions of their duties and giving them a severance package that will allow them to take care of their own house.

Our tax dollars pay the bill of more than $270 billion to keep the criminal justice system intact. If the criminal justice system were a country, it would be 41st on the GDP tally of 186 countries. We — and I mean “we,” because “We, the People” allow for this profane, ineffective, and inefficient use of resources — currently have open-air incarceration, where about 4.5 million people live under some form of community supervision, alongside the 2.3 million people in prisons. We spend $29 billion on the federal law enforcement budget (#99 on the GDP tally). We have 70 million people in the U.S., not incarcerated, but living freeish with a criminal conviction.

Amid this display of laissez-faire governance, there is progress to soberly consider. Bail reform in several states is decreasing the debtor’s prison construct. Restorative justice models are sprouting up across the country, effectively decreasing exposure to all points of the criminal punishment system. Progressive judges like Victoria Pratt “sentenced” people who came before her court to write essays, instead of lockup. Law enforcement administrators from across the country have been meeting as Executives Transforming Parole & Probation (EXiT) to operationalize the downsizing of their reach and their caseloads. In their “Statement on the Future of Probation & Parole in the United States,” they assert: “As people who run or have run community supervision throughout the country and others concerned with mass supervision, we call for probation and parole to be substantially downsized, less punitive, and more hopeful, equitable and restorative.”

Several years ago, when I was a violence interrupter for the Cure Violence program in Brooklyn, New York, I spoke at an intimate convening of community residents, police, and elected officials. During my comments, I said my job is to figure out ways to put myself out of work. My work was to reduce shootings in the area of Brooklyn where the violence interrupter program operated. Even then, I understood that any person or institution engaged in intervention work should hope that their interventions are no longer needed. The criminal justice system is an operation of interventions ostensibly created to deal with violations of the societal contract. Because of the disproportionate use of these interventions on Black, Brown, Indigenous, and Asian Pacific Islander populations, we understand that we have a racialized system of control.

White supremacy aside for a moment (as if it is ever possible to put the ideology of white supremacy in timeout), the 55,000 agencies of the criminal punishment system, e.g., the courts, law enforcement, and community supervision, should keep a humbling view of themselves.  They should be working to put themselves out of business. They need to see downsizing as a means to community efficacy.

Since my mother’s untimely dismissal from her job, our family figured it out, like most working-class families. We pooled our resources together. My mother still has a few choice four-letter words in her Trinidadian accent to describe the process of being laid off. I assume the 55,000 criminal justice agencies will also have a vulgar reaction to real downsizing. But I am sure those of us in communities that are involuntarily cuffed to the criminal punishment system will also find a way to pool our resources together to create safe neighborhoods we all deserve.

Finally, a recent major court decision opened the door to possible freedom for Wedlow and other Missourians who were sentenced to life without parole before they were old enough to vote. It also shined a light on how — despite a Supreme Court ruling that mandatory sentences of life without parole for juveniles are cruel and unusual — authorities have been slow in granting those prisoners their chance at freedom.

Wedlow, now 46, was sent away at a time when prison sentences — and prison populations — were skyrocketing. In 1992, there were about 12,500 people serving life without parole in the United States. By 2017, there were 53,000, including 2,200 who were convicted as children. These lengthy sentences for violent offenses are a major driver of mass incarceration.

Then a series of groundbreaking Supreme Court rulings rolled back the sentences that can be given to children. In 2012, Miller v Alabama banned mandatory sentencing schemes that give children life without parole. In 2016, Montgomery v Louisiana ruled that people already serving such sentences — such as Wedlow — must be given a “meaningful opportunity to obtain release.”

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“Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” Justice Elena Kagan wrote in the 2012 ruling. “It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional.”

To comply with the ruling, the Missouri legislature passed a law allowing Wedlow and about 90 others to petition for parole after 25 years. It instructed the parole board to consider specific factors at hearings for this group, including growth and rehabilitation, age and maturity at the time of the crime, and “the defendant’s background, including his or her family, home, and community environment.”

Wedlow watched the news about the decision on his cell mate’s television. “I was like, ‘Wow. God is good,’” he recalled. “That ruling gave all of us hope.”

But as Missouri’s juvenile lifers began going before the parole board in 2016, they were almost uniformly denied. At Wedlow’s February 2017 hearing, he was asked about the details of his 1989 crime for about 10 minutes over video conference. Afterwards, he received a one-page, boilerplate denial form stating his release “would depreciate the seriousness of the present offense.” His next hearing was set for February 2022 — five years in the future.

In May 2017, four Missourians serving juvenile life without parole who were similarly denied filed a federal class action lawsuit, alleging that this treatment was not what the Supreme Court had in mind when it ruled that those imprisoned as children deserve a chance at release. This October, U.S. District Judge Nanette Laughrey agreed, giving the Missouri Department of Corrections until Dec. 11 to come up with a plan that “should include revised policies, procedures, and customs designed to ensure that all Class members are provided a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation.”

“Obviously, we’re really excited,” said Amy Breihan, Director of the St. Louis office of the Roderick & Solange MacArthur Justice Center, which represented the incarcerated plaintiffs. “This has been a long battle in Missouri to get some semblance of justice for these folks.”

However, Breihan noted that in Missouri, “It’s far from the end of the case.” She and her clients are waiting to see what remedy the Department of Corrections proposes by the deadline. “My hope is what that means is the board can no longer deny parole to these individuals based solely on the circumstances of the offense,” she said. “That’s something our clients have been saying all along doesn’t make sense in light of the spirit and language of Miller, and it doesn’t make sense to us either.” Earlier this month, Laughrey granted Breihan and her clients permission to create and file their own, competing plan for getting Missouri into compliance with the Supreme Court rulings.

“Compliance with Montgomery has varied significantly around the country,” the Campaign for Fair Sentencing of Youth reported in January. “Whether an individual serving [juvenile life without parole] has a meaningful opportunity for release depends foremost on the state in which he or she was sentenced.” In New York, a similar ongoing federal suit alleges that the parole board routinely denies release to people sentenced as children, in defiance of the Supreme Court rulings.

Wedlow hopes that at his next hearing, the parole board will be required to consider his successful prison record, the classes he has taken, and mitigating factors of his crime, including his age and family life. Wedlow entered foster care when he was seven, after a child care worker responding to a domestic violence report found food-bare cabinets filled with cockroaches, urine-soaked mattresses, and piles of reeking dirty clothes. At 16, after he refused to live with his mother at a family friend’s house, a juvenile court determined that his behavior was “injurious to his welfare” and he was sent to juvenile detention school, despite not being charged with any crime.

People whose early life looks like Wedlow’s are disproportionately likely to wind up incarcerated. Last March, the Brookings Institution linked incarceration records and IRS records, finding that boys born into households earning in the bottom 10 percent of income earners are 20 times more likely to be in prison in their early 30s than boys born into the top 10 percent. And these economic disparities have knock-on effects: According to an Equal Justice Initiative report from before the Supreme Court rulings, “kids who cannot afford competent counsel face a dramatically escalated risk of being sentenced to die in prison.”

If released, Wedlow plans to live in a halfway house and work for a family friend until he can save enough money to move into a one-bedroom apartment in a low-crime area outside Kansas City. He also wants to take night classes to get a trade job. And he looks forward to meeting his four nieces and nephews in person for the first time. His sister — who was just six when he went away — has never been able to bring them, since he is allowed just three visitors at a time.

Wedlow believes that if the parole board considers his background and circumstances, they will let him go: “Once they look at that and see that I was never in juvenile for no crime, that I was physically and verbally neglected and abused as a child, and in and out of foster care — not for juvenile delinquency but for my own safety and welfare — they’ve got to give me a date.”