Pulling back the curtain: A mixed‐methods study of prosecutorial discretion in probation conditions and revocations

Abstract Research Summary Prosecutors play a significant but poorly understood role in setting probation conditions and pursuing revocations. For the 3.7 million U.S. adults under supervision, noncompliance with conditions can result in revocation and incarceration. Prison admissions from probation often stem from technical violations, not new convictions, suggesting that probation may often be “delayed incarceration.” Despite their impact on incarceration rates, there is little research on how and why prosecutors recommend conditions or pursue technical revocations. We conducted an iterative mixed‐methods study using multiple data sources: (1) a national statutory scan of all 50 states and the District of Columbia, (2) a national survey of prosecutors’ offices ( n = 305), (3) semistructured interviews with prosecutors ( n = 18), (4) a targeted survey of reform‐minded prosecutors ( n = 22), and (5) focus groups with elected prosecutors and chiefs of staff ( n = 14). The statutory scan reveals that prosecutorial authority for recommending conditions is often only vaguely defined, creating a regulatory vacuum that allows for variation in prosecutors’ roles both within and between states. Survey and interview results indicate that when setting conditions, prosecutors consider statutory requirements, workload constraints, case characteristics, and broad rehabilitative concerns that may extend beyond the facts of the case. However, they typically do not pursue revocation for violations of rehabilitation‐oriented conditions. Finally, many prosecutors already have the authority to implement immediate policy changes to reduce technical revocations but are constrained by other court actors and public support. Policy Implications Prosecutors already have the authority to reduce technical revocations through internal policy changes requiring no new legislation or funding. In many cases, they can immediately limit condition recommendations, eliminate most court fines and fees, and decline to pursue technical violations. These reforms would reduce unnecessary incarceration, allow individuals under supervision to focus on stability, and reduce strain on criminal legal system resources.