Where’s the accountability for criminal offenders anymore?

As states look to ditch out on traditional punishment and are busy emptying prisons, some say that there’s no real consequences for people who violate their probation anymore. 

The Philadelphia Inquirer offered an extensive article on probation in Philadelphia and Pennsylvania. National advocates who want limited incarceration are interviewed. The paper suggests that probation is a trap ensnaring tens of thousands of people in a heavy-handed, oppressive system with little justification.  Are they correct?

 

Philadelphia Inquirer 

(mostly direct quotes, some rearranged and slightly modified for brevity)

Probation is meant to keep people out of jail. But Intense monitoring leaves tens of thousands at risk of incarceration, Philadelphia Inquirer.

More from the article:

On an average day, there are 7,443 Pennsylvanians incarcerated as a result of a supervision violation, costing taxpayers $334 million every year.

In Pennsylvania, this net of correctional control has grown unchecked — a result of unusual state laws that set few limits on probation or parole and a courthouse culture in which judges, working without guidelines, impose probation in at least 70% of cases.

In many parts of the country, ….long probations would not even be legal. At least 31 states have capped probation terms at five years.

 

The growth in supervision has, indeed, led to a remarkable rise in probation violations, flooding court dockets and filling county jails, accounting for at least 40% of prisoners in Philadelphia.

The majority of those violations did not even involve a new crime. Statewide, these days, twice as many people have their probations revoked each year for what are termed “technical violations” — that is, failing some condition of probation — as for new crimes.

“We need to stop using probation as a collection agency…” “For low-level, low-risk offenders we need to utilize sentencing options of ‘guilt without further penalty,’ fines, and restitution, as stand-alone sentences on a more regular basis.”

Pennsylvania counties have largely mirrored this national trend of ever-mounting violations. Philadelphia issued 80% more probation warrants in 2017 than it did 15 years earlier, an Inquirer analysis of court data found.

Statewide, 54% of prison admissions are for probation or parole violations, according to the Council of State Governments.

Probation caseloads are 200 to 300 offenders at a time per probation agent.

“Everything is probation,” she said afterward. “You will not leave this courtroom without probation, I don’t care what charge it is. It’s revoke, resentence, revoke, resentence. I was at the end of my two years — why not let me go?”

 

What’s The Truth?

The Philadelphia Inquirer should be congratulated for a long-form analysis of the criminal justice system. That’s positive.

There are issues raised that deserve attention like the length of time an offender serves on parole and probation. I would suggest that anyone on probation should serve no longer than two years.

Another consideration are the conditions imposed by judges which are enforceable which means people can be incarcerated for non-compliance. Do we really need all those special conditions? Do they help?

An array of suggestions are offered to improve the success of people on probation like reporting centers closer to where offenders live.

But there are many issues raised by the article that are either missing or incomplete or at odds with national research.

 

Who Are Probationers?

Minor Offenders: The article presents endless anecdotal accounts of people trying to do right but held down by an oppressive parole and probation system.

But it never mentions the criminal history of those interviewed. “Probation, it’s like a setup…” “Any little thing you do, they send you to jail.”

I’ve reviewed hundreds of records of criminal offenders on probation who were involved in violent crimes and most had extensive arrests and convictions including violent acts. Someone may be on probation for a charge of theft, but his history suggests a multitude of dangerous acts. Many people in the justice system have extensive records per US Department of Justice data.

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But without knowing their criminal history, how are we to judge a reincarceration or a revocation (i.e., more probation)? Is it a system of oppression, or are probation agents trying to keep citizens from becoming victims of crime?

Does anyone believe that repeat drunk drivers stop drinking and driving because they are on probation? Are men who abuse women and girls suddenly going to see the error of their ways and desist? Do people who routinely use or threaten violence amend behaviors because of probation? For a system with few consequences, probably not.

First and second timers often get diverted or cases are dropped. Most are in the justice system because of repeat violations. 16 to 50 percent of federal crimes are declined from prosecution. 34 percent of state felony cases are not convicted. Approximately nine percent involve a deferred adjudication or diversion outcome, per Prosecution Data.

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. Misdemeanors fell from 49 percent to 41 percent. All categories of violent offenders grew except for domestic violence. The probation population from 2005 to 2015 included more active cases when they were supposed to decline due to diversions, Parole and Probation.

Charges of Harsh, Overbearing Supervision: The article points out that the caseload of probation agents is 200-300 offenders per probation agent per day which means that the average offender is seen, at most, twice a month for no longer than ten-fifteen minutes at a time. Based on my experience, a twice a month meeting is the rare exception. Most are probably seen every other month, if that. Do the math, it’s impossible for probation to do otherwise. That’s an oppressive system?

Technical Violations: There is national data stating that virtually all offenders revoked were involved in a new crime, Technical Violations. Why would it be different for the state of Pennslyvania?

Offenders may be revoked for a technical violation when a new crime occurs simply because it’s easier to do. There are a ton of crimes where people escape prosecution (as documented by a decades-old Philadelphia Inquirer article stating that most violent crimes went unprosecuted), because the offender and victim knew each other or because of threats. Per US Department of Justice data, most violent crimes involve people who know each other.

The number of technical violations are staggering. I handled a case where a person on community supervision with a violent history murdered a police officer, and he had over seventy violations yet nothing was done. Scores of technical violations are the norm for most on community supervision. Most result in no sanctions of consequence beyond verbal warnings.

And what is a technical violation? If you escape from supervision (abscond) for months, what is the system supposed to do with you? You have already proved yourself to be unworthy of community supervision.

So a judge tells you to go to drug treatment or domestic violence classes or anger management and you tell the court to go piss off by refusing to attend? What is the court supposed to do with you?

Per police or community members, the offender is driving the community crazy. We should ignore bad or potentially dangerous behavior?

How do you explain to a mother of a murdered child that the accused had forty technical violations yet we didn’t remove him from society?

If you want to see a typical case of a violent probationer with technical violations, see Fox5DC.

Fines: It’s been my experience that most on probation don’t fully pay their fines, court costs or restitution, yet many are listed as successful completions of supervision.

Fines are supposed to be the most lenient aspect of a finding of guilt. People are put on probation to make sure they pay their fines. They are not sent to jail. They are not sent to prison. Their supervision is usually a once every two months’ visit; all they have to do is to prove that they paid their obligations.

If there are no fines or restitution, there is zero accountability for a criminal act. Is that in society’s or the offender’s best interest? Does no accountability encourage additional crimes?

So the offender inappropriately touches your daughter on several occasions and he gets a $500.00 fine and probation (not unusual) and he tells you, your daughter and the court to pound sand by not paying, and you are OK with that?

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It’s estimated that 1.4 million people on supervision in Florida did not pay their financial obligations thus making them ineligible to vote.

Rearrests: 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 3 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, Offender Recidivism. If the study included misdemeanors, the numbers would be much higher.

 

Conclusions

No one is suggesting that people go to prison for every (or most) violations of probation. But understand that per the US Department of Justice, the average violent offender serves less than three years in prison, Time Served.

I’m guessing that if a probationer gets prison time for his thirtieth technical offense or absconding, he gets a short period of incarceration. Recidivism is high. Five out of six state prisoners were arrested at least once during the nine years after their release per a BJS study.

Every effort should be made to stabilize the offender in the community when he shows signs of problems. Additionally, we shouldn’t drug test for marijuana.

Judges need to reconsider special conditions, if the offender doesn’t want drug treatment or domestic violence classes or anger management (ninety percent or more don’t), it’s probably not going to work. Per treatment data, programs don’t reduce recidivism.

Probation should be for a couple of years, no more. There is a point where we need to cut our losses. We have bigger fish to fry.

But this all depends on the offender’s criminal background and history of violence. There are plenty of probationers with current “minor” charges who are considerable risks to public safety.

But to suggest that we have a harsh and oppressive system of probation seems inaccurate. Offenders are seen infrequently for tiny periods of time and many who have endless violations are declared successful competitors.  That’s a harsh system?

If Pennslyvania’s process fits the label of a “trap,” it would be the first in a remarkably lenient national system of few contacts and diminished consequences.

Are there offenders who are harshly supervised? Is criminal history or a series of problems under previous supervisions the reason?

It seems that Pennslyvania is guilty of being a state that doesn’t provide the resources for a properly run justice system.  But, quite frankly, no state provides the resources necessary. There is no national consensus as to what we want probation or parole to be.

Those of us who have worked in parole and probation understand that it’s a relatively inexpensive method of processing millions of criminal cases.

There is no criminological consensus as to what works in parole or probation; massive recidivism exists as offenders flood the system for new crimes per the US Department of Justice. Most programs for offenders don’t work; they don’t reduce recidivism.

Probation is another chance in an endless series of “second” chances to stay out of jail or prison.

Lower level probationers without extensive criminal histories should be placed on “administrative” supervision with twice a year check-ins. Short of a new serious crime, they should be left alone.

But felony cases are flooding the probation system. More offenders with extensive histories are on probation because of efforts to control the costs of incarceration. We are taking more chances with offenders than ever before for philosophical or monetary reasons.

Yes, individual cases may be mishandled. But to suggest that probation is a “trap” is ignoring the reality of an individual’s criminal history and how the justice system really works.

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See more articles on crime and justice at Crime in America.

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