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.”

My job was to keep people out of jail, but I couldn’t control what kept bringing my clients back into the courtroom.

A common example was a young mother, caught with pills and charged with a felony for possession with intent to sell; loses her job because she couldn’t afford the bail set at $1,500; pleads guilty to the felony in return for probation so she can get out of jail; fails the drug tests on probation and ends up with the felony on her record; loses her driver’s license because of unpaid court costs and fines; and then her children because she cannot afford to provide them with food, clothing, and shelter.

I saw that every week: Someone who entered the courtroom an addict and exited a criminal. According to the North Carolina Second Chance Alliance, more than 2 million people in the state have criminal records, 90 percent of large employers ask about that history, and more than 1,000 different laws in the state deny rights and privileges due to convictions.

And like in many states, it’s difficult to expunge those convictions because of long waiting periods and narrow rules of eligibility, which makes it hard for a person to find a decent job or stable housing, or obtain the education they want. According to the Center for Economic and Policy Research, in 2014 the United States went without an estimated $78 to $87 billion in gross domestic product because of people who were unable to reenter society and participate in the workforce due to their criminal background. And that’s devastating for communities that were hardest hit by the opioid epidemic.

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My hometown in the foothills of North Carolina was once the home of some of the largest manufacturing businesses, including the American Furniture Company. But slowly those jobs left town and went to China, or were lost to automation. From the year 2000, when that company finally closed, to 2014, my county experienced the second worst decline of median income in the United States: from $47,992 to $33,398.

And that’s when the pills came in. Doctors overprescribed Oxycontin, Vicodin, and Percocet to people who were in pain and out of work. Many got hooked and some sold the painkillers on a black market out of their medicine cabinet. In 2007, the county experienced the third highest overdose rate in the country.

Because of a lack of funding at the state level, there’s no public defender’s office. So when I came home to work as a lawyer, I took appointed cases to supplement what I brought into our firm as a young criminal defense attorney. That meant representing as many as 15 clients a day and sometimes as many as 50 in a week. We’d be lucky to meet for more than a few minutes at a time to go over the facts before trial or to run through a plea offer while standing next to a bailiff in one of the holding cells behind the courtroom.

For every case disposed, I’d get appointed to another. Drugs were an underlying factor in almost every fact pattern.

My county wasn’t unique. The same forces of globalization and automation were devastating towns all across the country. But we didn’t discuss what was happening in those terms, and we didn’t learn about these deaths of despair by reading about them in The Atlantic. The stories were personal. It wasn’t uncommon to walk into the courtroom and see the faces of childhood friends, a young man from church, or even a next-door neighbor.

There’s a stereotype that the opioid crisis affects only middle-aged white men, but addiction doesn’t discriminate by age, race, or education level. Where there is discrimination, though, is in access to treatment. If you were from a rich household, or had a strong support system, your family could afford to send you to rehabilitation for as long as it took, up to a couple of years if need be. For everyone else, recovery options were limited and usually led back to the courtroom. (In North Carolina, programs like the Substance Abuse Prevention and Treatment Block Grant spend more than $44 million per year on recovery services, but without Medicaid expansion, many in recovery are still on their own and unable to afford inpatient treatment.)

What happened in my town happened before, in the 1970s and the 1980s, when cities hollowed out and the response to a crack epidemic was mass incarceration. Now, because of organizers and advocates in those communities, the urban incarceration rate has declined in recent years. But because of the opioid crisis, since 2013, the incarceration rate in rural America has risen by 26 percent.

Today there is legislation in North Carolina called the Second Chance Act that would expand eligibility for record expungement. Hopefully, lawmakers will get that bill passed soon. What I saw in an Appalachian courtroom wasn’t because my hometown was full of bad people. It was because the factories closed and we treated poverty and addiction by locking up the victims.

These numbers are staggering. When you consider the impact of childhood trauma — which tells us that kids who experience or witness abuse are more likely to develop a slew of physical and mental illnesses as adults — those numbers are infuriating. And baffling. Domestic violence can be hard to escape, especially for those who have been in the mire of it for years, but once kids become involved, shouldn’t that be enough motivation to leave?

It’s this question, and the assumed answer, which drives “failure to protect” laws in child welfare programs across the United States. Essentially, failure to protect laws charge a parent with not doing enough to shield their child from witnessing or experiencing abuse. Virtually every state pursues some form of failure to protect charges within the civil child welfare system. These laws are aimed at the non-abusive parent living in an abusive household. Usually, the parent has been subject to intimate partner violence. But the laws can also be used in households in which the child is the victim of one parent but not the other.

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While these laws were written with the intention of penalizing a parent who neglects the safety and/or well-being of their children, they all too often make unsafe environments even less safe by penalizing non-abusive parents living in an abusive household, and can become the basis for temporarily or permanently removing children from the home. They rarely leave room to consider the complexities of intimate partner violence, instead relying on assumptions and stereotypes that are incapable of capturing the nuanced reality of family bonds.

In January of 1999, Sharwline Nicholson decided to end her relationship with the father of her infant daughter. He lived in South Carolina, and had been crossing state lines each month to visit Nicholson and their daughter in New York. But when she ended the relationship, he responded with violence.

She called 911 and made arrangements with a friend for the care of her two children while she stayed overnight at the hospital. The next day, Nicholson was notified by the New York Administration of Children’s Services (ACS) that both of her children had been temporarily removed from her care on the basis that she had failed to protect them from witnessing the violence that had been inflicted upon her by her former partner. At the time, this was considered a form of neglect.

Nicholson would eventually win back custody of her children, but would be placed on a child maltreatment registry. This action kickstarted a lawsuit that would eventually lead the New York Court of Appeals to rule in 2004 that a parent’s inability to prevent a child from witnessing abuse could not be a sole factor for removing a child. Child welfare reform activists celebrated the decision.

“What Nicholson actually did was not just to change the attitude toward victims of domestic violence,” said David Lansner, a civil rights and family law attorney who represented the plaintiffs in the Nicholson case. “Neglect had to be shown as a serious matter; you had to show that … there was imminent danger of serious harm and not just the possibility of harm. … [Child services] and the court had to balance the harm that would result from removal against the risk of leaving the child at home, so you couldn’t just ‘take the safer course’ because removal was harmful to kids and shouldn’t be done unless it was really necessary.”

Unfortunately, New York is relatively unique in that respect; other states, lacking a case like Nicholson, still remove children for the possibility of harm that caseworkers and judges interpret by a parent’s “failure to protect” her children from being in a household where abuse takes place.

Erin Miles-Cloud, who formerly worked as a parent attorney in New York and is currently one of the co-founders of the advocacy group Movement for Family Power, explained the ways in which some of the better-resourced, urban systems can still fail families, even today. “Because New York has this middle ground of family shelters, ACS sees it as an unreasonable option to stay in a home where intimate partner violence is occurring,” she said.

What many people don’t realize is that — in New York City — parents who access a shelter as the result of domestic abuse will automatically be moved to a different borough, meaning a change in school district for their children, not to mention the loss of access to support networks, such as friends and family or trusted child care, lack of which can easily become another maltreatment charge. There’s also no guarantee as to what type of housing the family will receive or for how long. In some cases this could mean dormitory-style living for a year or longer, with no access to even a personal refrigerator.

But even the most comfortable, “home-like” shelters remain government-funded institutions — which means they come with restrictive rules, such as nightly curfews and rigid limits on how many days a parent can be away from the shelter, even to visit family. They are also a source of constant surveillance for the families housed inside. Miles-Clouds calls shelters and hospitals among the “largest offenders” when it comes to calling in new maltreatment reports, and notes that New York ACS often uses shelters as “second or third eyes on a family” when arguing a related case in court.

Because child welfare agencies self-report their data, and failure to protect  is not an independent maltreatment category in itself (these cases typically fall under the “neglect” umbrella), it is difficult to know exactly how many non-abusive parents end up being investigated because they were victims of abuse who sought help, or because their children reported being harmed by someone else in the household. But we do know that most states do not have even the mild protections enjoyed by families in New York. That means a child can be removed if the state convinces a judge they have been or will likely be psychologically harmed by witnessing the abuse.

Some states will also pursue criminal charges against victims of intimate partner violence who have children in the home. In six states – Oklahoma, Missouri, Nebraska, Nevada, South Carolina and West Virginia – non-offending parents face potential life sentences for failure to protect charges, and in Texas the maximum penalty is 99 years. Last year, the Associated Press reported on the case of Tondalao Hall, a mother whose boyfriend was sentenced to two-years time served (meaning he had already completed his jail time while waiting to be sentenced) for beating her children, including a three-month-old infant. Hall, who was never accused of harming her kids, is currently serving 30 years in prison for not calling the authorities on her boyfriend.

Latagia Copeland-Tyronce, a parental rights advocate and the founder/executive director of the National African American Families First and Preservation Association who spoke to TalkPoverty about her experience, knows first-hand how devastating it can be to be accused of not protecting children from another person’s abuse. She first faced the traumatic confusion of a failure to protect charge in Toledo, Ohio, in 2013.

She was 26 years old and had been involved in an abusive relationship for 10 years. What she did not know, however, was that her daughters’ father was also sexually abusing her three eldest girls. When one of Copeland-Tyronce’s daughters finally disclosed the abuse to her sister, she promptly contacted child services.

Copeland-Tyronce immediately left her children’s father. She also cooperated with the criminal case that would ultimately land him a 30-year prison sentence. But this was not enough for Lucas County child protective services. They claimed she had known about the abuse and had failed to protect her children both from witnessing the violence perpetrated against her, and from the sexual abuse which they had experienced.

“My children never said that I knew anything or that I was involved in the abuse and I was never charged with a crime related to the case,” countered Copeland-Tyronce.

Less than a year after the initial removal, her parental rights were terminated and all six of her daughters were adopted to other families. When she gave birth to a son in 2014, by a different father and with stable housing in place, he was also removed from her custody.

“Because I had a [termination of parental rights] TPR, failure to protect, with my daughters. No other reason,” she said. At the time, the first TPR was still under appeal.

Candis Cassioppi, a mother based in Athens, Georgia, had her youngest child removed from her in the hospital after giving birth, she told TalkPoverty. The removal was prompted by an incident of assault by her child’s father perpetrated against her during her pregnancy.

Although she initially called the police and sought medical attention — causing those injuries to become part of her medical record — she ultimately declined to press charges or testify against her abuser. After her son’s birth, this incident became a reason to claim she was failing to protect her children from harm. Now, she is court-ordered to participate in a slew of activities, including domestic violence groups and parenting classes, in the hopes of regaining custody of her infant.

Like mandated reporting laws, which require certain professionals and institutions to report suspected child maltreatment, failure to protect laws and policies are in place, purportedly, to ensure that child maltreatment does not go unreported. “If a child dies in the home because there was a batterer who was so dangerous that the victim-partner couldn’t protect [the kids] … we’re still liable to make sure that the child stays safe,” explained Mary Nichols, a now-retired administrator at Los Angeles County’s Department of Children and Family Services (DCFS), to the California Health Report in 2015.

But she also admitted in the same article that the laws are confusingly vague: “If you look up California Welfare and Institutions Code 300 and just read the definitions of ‘failure to protect,’ you can see how broad they are … [If] somebody would like to craft legislation to make it more workable, in terms of protections for domestic violence [victims], that would be great. It’s a pretty raw tool that we have.”

As the cases detailed in this article demonstrate, the reality of domestic abuse is far too complex to address with vague, generalized laws. Instead of protecting families, these blanket laws mean that parents who experience domestic violence may end up burdened by a fear of reprisal for reporting that violence. Take Cassioppi’s case, for example. Her baby was born healthy; had she not called the police and sought medical attention after being assaulted during her pregnancy, she likely would have walked out of the hospital with her newborn in arms. And Copeland-Tyronce now asserts that if she were to ever encounter intimate partner violence again, she would “not at all” feel safe calling the police for help.

Lansner said implementation and caseworker attitudes are major problems with the way domestic violence cases are handled within the child welfare system. “The caseworkers just don’t get it,” he said, adding, “the caseworker might go to the home, find the guy there in violation of a protection order and then remove the children instead of calling the police and having him arrested, which is what [the caseworker] should do.”

Parents who experience intimate partner violence also face a number of other complexities that caseworkers and judges don’t always take into consideration when charging these parents as culpable for traumatizing their kids by proxy. For example, one study found that 99 percent of domestic violence survivors had also been subject to economic abuse, a form of financial control that can leave them stranded without the resources necessary to secure independent housing or provide for their children’s basic needs. Because lack of appropriate shelter, clothing, and food also fall under the child services maltreatment category of “neglect,” this leaves many non-abusive partners trapped between the crosshairs of a failure to protect and a failure to provide charge. Either way, they’re ending up on the maltreatment registry for neglect.

By necessitating that caseworkers identify concrete harm toward a child before removing her from the home, New York has found a way to slightly balance a system designed to punish parents simply for being unfortunate enough to experience abuse. Although their system is far from perfect — as Miles-Cloud noted, it funnels parents into a less-than-ideal shelter system, and the law still does not address the caseworker bias that concerned Lansner — it provides a template which other states could use to begin the process of clarifying these laws.

Ideally, however, survivors of domestic violence should be met with compassion and provided with services that help their families heal and thrive intact. It seems, instead, that as long as failure to protect charges exist, the child welfare system will continue to promote a culture of secrecy surrounding intimate partner violence, thus validating the very abuse it claims to condemn.

“I was homeless, looking for a place to live, and trying to get into a drug treatment program,” Gomez told TalkPoverty. “I couldn’t afford to enroll at a volunteer center and do my hours.” Her struggle to fulfill the terms led her down a rabbit hole of unsympathetic judges, sexual harassment, and dangerous working conditions.

Several recent high-profile cases have put court-ordered community service like that Lopez experienced into the headlines. So has a University of California, Los Angeles study that took a close look at how community service is used in LA County, and the wildly disparate outcomes within the county’s court-ordered community service framework. Limited research on this subject is in circulation, but the information from Los Angeles suggests tracking and quantifying data around community service nationwide might yield important insights into a little-researched aspect of the legal system. As with other elements of the criminal legal system, class and race heavily mediate the kind of service people engage in and how many hours they are ordered to complete.

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The researchers found significant racial disparities, with Latinx and Black people being more likely to serve community service as a result of disparities in citations, arrests, and charging decisions. For example, in traffic cases that resulted in community service, which involve infractions like speeding and failing to stop, 81 percent of workers were Latinx, out of proportion with LA’s roughly 49 percent Latinx population, and 8 percent were Black.

They also found a high percentage of people who could not afford attorneys (78 percent) amongst those who performed community service, while 16 percent had limited English proficiency and needed translators in court. This paints a profile of a predominantly low-income population — 89 percent of those serving community service in the cohort they studied were low-income — of color, with substantial numbers of immigrants.

Around 100,000 people are sentenced to community service in LA County every year, serving the equivalent of 4,900 full-time, paid civilian jobs and 1,800 government jobs. The number of hours of labor this represents, and the significant cost savings for community service sites, is tremendous. Noah Zatz, a UCLA law professor and lead author, told TalkPoverty, “We were startled to see just how high the hours were for many people, people getting hundreds or even thousands of hours.”

The report argues this is a form of extractive labor that stacks on to existing “poverty penalties” in the criminal legal system, in addition to driving inequalities on work sites, where people completing community service work side-by-side with paid parties in everything from municipal animal shelters to for-profit nursing homes, but without the same benefits, protections, and wages.

Lopez recalled that at one placement, she was ordered to engage in unsafe activities like cleaning bathrooms with a mixture of bleach and ammonia. At another, she said she was forced to mop on her hands and knees in a kitchen surrounded by men who stared at her, but she had to “swallow that pill and push through” after the supervisor threatened to “throw out all my hours.”

“In addition to the direct displacement dynamic,” noted Zatz, referring to paid workers who might lose out on roles filled by community service, “the other dynamic at play is that these assignments function as a form of subsidy to nonprofits.” Government agencies also experience big savings through community service; over half of the cases the researchers looked at involved CalTrans, the state’s highway construction and maintenance agency.

Community service is sometimes represented to members of the public as a compassionate alternative to jail time and a way to “work off” court-imposed debts. In fact, it can create significant hardships. People may struggle to complete high numbers of hours on top of their paid jobs and other obligations, such as school and child care. When Lopez struggled to complete her service and asked for help, judges were unsympathetic; it ultimately took the help of an attorney with A New Way of Life, an advocacy organization that works with women leaving prison, to get the court to work with her. The court agreed to accept volunteer hours she served at organizations not on its officially sanctioned list, acknowledging her work with community advocacy organizations.

The researchers noted that disability can also be a factor; the study cites one disabled person who was sentenced to 60 hours of work they were unable to perform and ended up with 180 hours of “light” service. Zatz notes that people receive more credit for physically demanding work, which creates inherent inequalities for disabled people.

And some still owe court-imposed fines and fees that can’t be worked off by laboring on construction crews or organizing files at the sheriff’s office, with 86 percent of those involved in criminal cases making payments that averaged $323 on top of their service. That’s, of course, after they’ve paid the fee for placement at a community service work site recognized by the court.

Many members of the public may not be aware of the close ties between court-ordered community service and the mounting crisis of court fines and fees. Nearly every state has seen steep increases, many of which are established in rigid fee schedules that judges can’t change. In many cases, courts are offering community service as a way to “pay off” the very fines the court has imposed, though they could conduct ability-to-pay assessments to determine whether those fines are realistic. For some, the only way to resolve these debts is to work, providing free labor to participating sites.

The reliance upon free labor is troubling for the researchers. Whether people are engaged in community labor, which includes a physically demanding element like working on a road crew, or community service, like volunteering at a thrift store, they are treated as a cheap and disposable resource. Not only are they not paid for their time, they’re not provided with meaningful skills and a path to advancement, with very few people hired on by the agencies and organizations they work for. These organizations can also be choosy, indicating that they won’t work with people convicted of certain kinds of crimes, which makes it harder for them to complete court-ordered community service.

At a time when labor organizing is in resurgence, community service represents a largely unexplored aspect of the labor movement. Some participants in community service programs are working alongside union members who have fought for robust contracts that include fair pay and benefits as well as protected working conditions. Community service workers don’t benefit from those contracts and are in fact sometimes forced to sign waivers explicitly identifying them as volunteers and giving up certain workplace rights and protections.

Reforming court fines and fees to address the modern-day debtor’s prisons and coercive labor conditions across the United States is critical, as is coming up with alternatives to incarceration that do not involve exploitation. Community service as it exists now could also be reformed; people could be provided with job training, meaningful pay, and other supports to turn a court-ordered job into economic opportunity, something people like Lopez, who’s been sober three years and is currently pursuing a college education, could have benefited from.

Until then, members of the public may want to look twice at community service’s role in their neighborhoods.