Yolanda Martinez Graphic by

Among the millions of people incarcerated in the United States, a significant portion have long been thought to be parole violators, those who were returned to prison not for committing a crime but for failing to follow rules: missing an appointment with a parole officer, failing a urine test, or staying out past curfew.

But their actual number has been elusive, in part because they are held for relatively short stints, from a few months to a year, not long enough for record keepers to get a good count.

To help fill the statistical gap, The Marshall Project conducted a three-month survey of state corrections departments, finding more than 61,250 technical parole violators in 42 state prison systems as of early 2017. These are the inmates who are currently locked up for breaking a rule of parole, rather than parolees who have been convicted of a new crime; the number does not include those in county and local jails, where thousands more are likely held. (The eight remaining states — Alabama, Connecticut, Louisiana, North Carolina, Oklahoma, South Carolina, Tennessee, and Virginia — said either they did not keep current state-level data or it would be too costly to generate.)

The total, 61,250, seems small, given the 2.3 million people behind bars in this country. Imprisoning fewer technical violators would make only a dent in the effort to reduce mass incarceration. “But still,” said Marc Mauer, executive director of The Sentencing Project, “the numbers aren’t trivial.”

To Mauer and other experts on what drives prison and jail populations, the fact that tens of thousands of people are incarcerated for infractions such as traveling without permission or frequenting a bar that serves alcohol is significant in itself.

That may be all the more true in seven states — Arkansas, Georgia, Illinois, Kentucky, Missouri, New York, and Pennsylvania — which, according to the Marshall Project data, have more technical parole violators in their prisons than the other 35 states combined.

There are various reasons for such large discrepancies in the numbers. For one, the decision to send someone back to prison is often based on the discretion of a parole officer — and protocol, training and oversight for P.O.’s vary widely by jurisdiction.

Second, in the current era of criminal justice reform, states have differed in their attempts to incarcerate fewer technical violators. Some have done nothing, while others are implementing a variety of less punitive sanctions for parolees or capping the number of days they can be incarcerated for.

Also, while states like Illinois lock up most or all of their parole violators in state prisons, others put them in county jails, which do not show up in these data. California, for example, has zero technical parole violators currently in its prisons, but many are incarcerated at the local level. Following a 2011 court decision that required the state’s corrections department to reduce prison overcrowding, a variety of inmates, including parole violators, were shifted from packed state prisons to county-level jails, halfway houses, and treatment centers, through a process called “realignment.”

In Arkansas, however, the number of parole violators in state prisons is extremely high — 6,135 out of a total prison population of 16,499 as of January — due largely to a single event. Following the high-profile murder of a teenager by a parolee in 2013, the state’s corrections system immediately and dramatically cracked down on everyone caught in violation of parole. In the last six months of that year alone, the number of parole revocation proceedings increased by 300 percent, a zero-tolerance approach to the issue that has continued.

The bigger question underlying these numbers, for corrections officials and reformers alike, is whether being released after serving a court-imposed sentence ought to be seen as a privilege — subject to parole guidelines — or a right.

Experts also point out that some — perhaps as many as half, by some estimates — of the supposedly “technical” parole violators currently in state prisons may have also been arrested for a new crime in conjunction with their violation (or the arrest may have even been the violation). But in such cases, prosecutors often find it more expedient to send the individual back into prison by simply revoking their parole, rather than by going through the process of indicting, convicting and sentencing them for the new crime they were arrested for.

“It’s called a pretextual violation,” said John Pfaff, a Fordham University law professor whose new book argues that technical parole violations are largely overrated as an explanation for mass incarceration. “‘We don’t want to spend the time and effort to get the guy to plead out to the burglary that he just did, but we do have this drug test violation that we can use to get him into prison anyway.’”

That way of handling parole raises still more constitutional questions, others say.

“We’re supposed to send people to prison not just based on a preponderance of the evidence, but beyond all reasonable doubt,” said Adam Gelb, director of the public safety performance project for The Pew Charitable Trusts and an expert on prison population statistics. “States are sending thousands of people to prison for technical violations... and the justification is that they maybe also committed a crime.”