Is Probation Set up to Fail?
The article below from The Crime Report offers commentary about probation being too strict, too long and a system that sets people up for failure. The article claims that the system “sets them up to fail by requiring an exacting performance that is nearly impossible for young men in high-crime and heavily-policed neighborhoods with few resources to meet.”
What the article leaves out are the endless number of violations committed by the average probationer that are simply ignored or responded to with warnings. It’s been my experience that many (if not most) probationers have scores of technical violations, don’t make full restitution, don’t complete community service, fail drug or mental health treatment, don’t meet family obligations, continue to use drugs, violate stay away orders and abuse women, yet “successfully” complete probation.
Within three years 43% of state felons on probation were rearrested for a felony. If you include misdemeanors, most would be arrested for new crimes. Critics point out that most probation violations are technical in nature (not new crimes) when the reality is that prosecutions for new crimes are often ignored when probation agencies can violate for thirty or more violations and noncompliance with imposed conditions.
When the overwhelming number of all prosecutions are plea bargained, violating someone for a technical violation rather than a new crime makes perfect sense.
But at the Same Time
But at the same time, the article below is somewhat correct. For female offenders, coming out of prison, getting clean, finding a job and a place to live, dealing with a history of abuse, meeting supervision requirements and getting her kids back while trying to be a good mother would be almost impossible for most of us.
Even without kids, depending on requirements and supervision levels, probation, especially long terms of supervision, can be a considerable task for the very few (probably less than ten percent) on high levels of interaction.
Thus the contradiction of probation and probably all forms of community supervision. From the literature, we don’t know what works, and even if we did, we do not have the funds to implement. Department of Justice data indicates that funding for programs is ridiculously small.
Given all the above, is probation merely an instrument to inexpensively process millions of offenders? There does not seem to be an evidence-based path forward.
What Is the Purpose of Probation?
It’s the ability to control the fiscal burden to states and counties that seems to be the primary mission of community supervision. Public safety is a secondary and possibly a non-existent imperative.
Most (if not all) governors have demanded that correctional administrators reduce their fiscal burdens to the state; the heart and soul of recent efforts to “reform” the criminal justice system. That means that fewer people are violated for arrests and indiscretions while on supervision.
This is predicated on the knowledge that there once was a time when parole and probation agents would violate (return the offender back to the judge or parole commission) too many offenders based on non-compliance. In the not too distant past, the majority of incoming offenders to prison were violations of parole and probation.
The agent would simply cut his or her losses and violate offenders rather than take the risk that the probationer would commit a serious or violent crime. There would be little effort to “stabilize” the offender in the community through programs, incentives, and personal interaction. We simply violated too many people.
Knowing this history, governors demanded fewer returns to reduce correctional budgets. According to endless social media statements from parole and probation officers, the effort to move away from strict accountability has succeeded. We are violating fewer people.
One State’s Experience
I represented the Maryland Department of Public Safety for fourteen years as the Director of Public Information. The secretary of public safety wanted to put a considerable portion of the parole and probation caseload on administrative supervision, which meant that they would meet with a parole and probation agent once every six months to check special conditions and to review criminal history and warrants.
The goal was to free up agents to focus on higher-risk offenders. It seemed to make a considerable amount of sense at the time.
Then judges went to the media complaining that the executive branch (us) was usurping the prerogatives of the judicial branch, thus impeding separation of powers.
Headlines went up in D.C. and Baltimore newspapers and others throughout the region. The issue got national attention. After consultation, I declared that we made a mistake and, henceforth, those on active parole and probation would stay where they were.
If the Truth Was Told
But if the truth was told, every state and county in the country has a minimum supervision caseload because it’s simply impossible to provide all with supervision or services.
Even this statement is disingenuous because we do not have the resources to provide programs or strict levels of supervision except for those deemed dangerous.
We all do it because there are offenders who do not need tight guidelines. We do it because we don’t have a choice.
The average parole and probation agent in the United States carries a caseload of approximately 150 offenders. Many (most?) carry more. Even those deemed high risk are probably seen twice a month for a couple of minutes per session.
Even if we had lower caseloads, the data and correctional community would struggle to provide convincing evidence that it would make a difference.
Recidivism-Most Released From Prison Go Back to Prison
The most common understanding of recidivism is based on data from the US Department of Justice, Bureau of Justice Statistics, stating that two-thirds (68 percent) of prisoners released were arrested for a new crime within three years of release from prison, and three-quarters (77 percent) were arrested within five years.
Within three years of release, 49.7% of inmates either had an arrest that resulted in a conviction with a disposition of a prison sentence or were returned to prison without a new conviction because they violated a technical condition of their release; as did 55.1% of inmates within 5 years of release, see Crime in America-Recidivism.
Note that the majority of criminal activity is not reported to police, most reported crimes do not end in arrest, and that significant numbers of reported criminal cases are not prosecuted, thus the numbers above are undercounts.
There are categories of people released from prison where 85 percent were arrested in three years.
The bottom line is that people caught up in criminal activity tend to continue their offending.
But We Are Talking About Probation
Recidivism Of Felons On Probation, 1986-89
To my knowledge, there is one major and definitive study (based on large numbers of offenders) on state probation recidivism. It focused solely on felony probationers.
Within three years 43% of state felons on probation were rearrested for a felony. Half of the arrests were for a violent crime (murder, rape, robbery, or aggravated assault) or a drug offense.
Results showed that within three years of sentencing, 62 percent either had a disciplinary hearing for violating a condition of their probation or were arrested for another felony.
In addition, within three years, 46 percent had been sent to prison or jail or had absconded.
Fifty-three percent had special conditions attached to their probation, most often drug testing, drug treatment, or alcohol treatment.
The financial penalties imposed on the probationers included victim restitution (29 percent), court costs (48 percent), and probation supervision fees (32 percent), USDOJ.
Most on Probation Are Felons
Who is on probation? Felony cases went from 50 percent of the probation population in 2005 to 57 percent in 2015, which means that probation is handling a more challenging workload, Crime in America.
The Existing Checks and Balances
A tiny percentage of crime is reported to police and only two out of five reported crimes ends in an arrest. When taken into custody, many low-level offenders are taken home to their parents (my introduction to the criminal justice system).
Prosecuting offices routinely dismiss a minimum of 20 percent of cases and there are plenty of examples where the percentage is much higher. Then you have prosecutor diversion where the defendant performs some kind of community service for charges to be dropped.
After that, you have drug and other specialty courts designed to keep lower-level offenders out of the system. Nintey percent of criminal cases involve reduced charges via plea bargains.
Thus if you get through multiple screens to keep minor offenders out of the system, you’ve committed something serious enough for a formal sanction. Thus, you get probation.
Reformers can state that the probation system sets people up for failure but it’s disingenuous in the extreme. There are so many mechanisms set up to separate lower-level offenders and to tolerate those who violate that any sense of strict accountability is tossed out the window for most.
But as stated, advocates are correct when they suggest that some who violate (the vast majority do) do so because terms of supervision are too long or for a few, too complex.
We should stop testing for marijuana. Terms of supervision should be limited to one year “if” the offender successfully completes “most” of his requirements. Programs should be in place to help offenders deal with mental health and substance abuse issues. Direct funding for programs is tiny because there is no confidence that they work.
Judges and the parole commissions should stop imposing special conditions; that should be the job of parole and probation agencies who know the offender better than anyone. If a judge requires drug treatment, then it’s enforceable. Enforceable means that the offender will probably fail unless he has the motivation to succeed.
We need to accept minimum levels of supervision for minor or older offenders or those who have decent (not perfect) compliance. We simply cannot be all things to all people.
But at the same time, we need to recognize that many probationers pose a public safety risk based on recidivism data. Some need to be in prison.
When I attended a class for those convicted of spouse abuse, many were genuinely confused when told that they cannot hit their significant others. Many grew up in dysfunctional households where violence against women was accepted. Now, we were telling them that it wasn’t.
We can insist that offenders cannot use violence as a method of interacting with other people. But if we do, it’s enforceable. Are we willing to live with the consequences?
From The Crime Report: A Probation System ‘Set Up to Fail’
Meek Mill, winner of the 2016 Billboard Music Award for Top Rap Album, made news in November when he was sentenced to two to four years in prison for violating probation. The judge cited a series of supervision violations as reasons for the revocation. They included testing positive for drug use, new arrests for low-level crimes (one for popping a “wheelie” on a dirt bike and one for a fight), and failure to abide by travel restrictions. He had no new criminal conviction.
Mill’s probation originally stemmed from a 2007 arrest, which came with a short stint in jail and a seven year probation term. His sentence sparked a wave of protest in Philadelphia and beyond, as his supporters push for the judge’s recusal and broader criminal justice reforms. This activism is joining an increasingly loud criminal justice chorus calling for reform. On Monday, a group of leading correctional administrators and advocates, including Van Jones and #Cut50, declared that the U.S. should cut probation and parole populations in half.
As Jay-Z wrote in the New York Times, Mill’s imprisonment sends the message that the criminal justice system “stalks black people.” What happened to Mill is not an exception. In fact, it’s just one example of a bloated criminal justice system which not only sends too many to prison, but also entraps more than 4.6 million adults in community supervision—with most serving their time on probation.
Probation is a court-ordered form of criminal justice supervision meted out for both felony and misdemeanor offenses. Unlike parole (which is typically supervision following release from prison), individuals can be sentenced directly to probation, for terms lasting up to more than 10 years in a handful of states.
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Leonard Adam Sipes, Jr. – Thirty-five years of speaking for national and state criminal justice agencies. Interviewed multiple times by every national news outlet. Former Senior Specialist for Crime Prevention for the Department of Justice’s clearinghouse. Former Director of Information Services, National Crime Prevention Council. Post-Masters’ Certificate of Advanced Study-Johns Hopkins University.