Community Supervision Fees: The Role of Discretion in Promoting Equity

Background: In 2022, close to 3 million individuals were on probation supervision in the US. Nearly every state requires individuals on probation to pay fees to offset the cost of supervision. These fees are often collected by probation agents and the impact on probationers can be substantial, in terms of financial stability, and can include incarceration when an individual does not, or cannot, pay. Existing research on fees has tended to focus on the role of officer discretion when setting, modifying, and waiving fees. Less research examines the role of discretion at the agency level; this is important to understand because, for some agencies, operational budgets are substantially dependent on collected fees.

Method: The authors administered surveys (n=40) and conducted interviews (n=12) with probation executives across the US. The 37-question survey solicited information on the role of fees in funding community supervision and the discretion afforded in statute and policy to set and modify fees. The research team collected secondary data from online sources to supplement state responses, including scraping statutes (n=47) and internal policies (n=45). A conceptual content analysis was conducted, using both inductive and deductive coding. Participants were invited to a webinar in which preliminary results were presented and feedback was solicited to ensure results aligned with participants’ understanding of their experience.

Results: In most states, statute exists that structures the collection of community supervision fees. These include boundaries regarding the authority to assess, the amount that can be assessed, the allocation of collected fees, the discretion of stakeholders to modify fees, and the consequences to individuals on supervision for failure to pay. Most states (86%) require the collection of community supervision fees and more than one-half (59%) set a minimum for that fee although very few (27%) have a statutory limit on the maximum fee amount. Individual agencies are largely given authority to set and modify fees; however, there is very little policy around what information should be considered when making those determinations. Furthermore, most states do not collect data around collection and revocation rates.

Conclusions and Implications: Most jurisdictions provide little information explaining how supervision fee amounts are determined and modified. Because fees are often used to fund agency operations, this leaves open the possibility that the amount is based on agency viability rather than supervisee well-being. While very few respondents indicated that fees are set or enforced solely to benefit the agency, without regard for the well-being of the person on supervision, the lack of policy and data makes it difficult to understand who is more or less likely to benefit from the afforded discretion. This means disparate outcomes likely exist, even within a single agency, wherein an individual might be treated differently because they were perceived as “willful” rather than “unable” in their failure to pay. In effect, agencies are tasked with competing interests, as the well-being of individuals under supervision may be at odds with the financial stability of the supervising agency.