Monday, February 06, 2017

Incentivize probation to punish offenders in community

Grits wanted to highlight a recent report from our pals at the Texas Public Policy Foundation's Center for Effective Justice. Via Greg Glod, see an analysis of Texas' probation system and a recommendation for the Legislature to fund a program created in 2011 (which incidentally was Texas' last budget crunch) to use grant incentives to encourage probation departments to stop revoking so many offenders on technical violations and punish more offenders in the community instead of with maximally expensive prison sentences. In return, they'd keep 35 percent of the savings if they achieve performance goals. Unfortunately, wrote Glod:
The amount estimated for the most recent budget, and every budget since [SB 1055's] passage has been $0. It appears that not enough money in excess has been returned for the bill to be implemented. However, the structure of SB 1055 requires the commitment reduction plan to be submitted “no later than the 60th day after the date on which the time for gubernatorial action on the state budget has expired under Section 14, Article IV, Texas Constitution.” This might be too rigid of a timeframe to determine whether funding is available, and if it is, enough time to get a commitment reduction plan in place.  
To provide more flexibility and feasibility, current language from SB 1055 should be changed to allow CJAD and each local jurisdiction to reach agreement on how much each local jurisdiction needs for upfront funding, as well as for performance-based funding, at a later date than what the code today requires. 
The Texas Legislature should authorize this funding because it is a no-lose situation for the state and the counties. If the counties reach their goals, they will receive savings via the reduction in commitments. If they do not, the counties are required by statute to reimburse the amount they did not save but intended to save.
TPPF also recommended reviving vetoed legislation from 2007 to incentivize probation departments to reduce technical revocations. Former Republican House Corrections Committee Chairman Jerry Madden carried the bill which passed the Legislature easily but was vetoed. Here's what Glod had to say about it:
The majority of state funds distributed to probation departments are based upon the number of individuals the department has under direct supervision. This means that there is a substantial disincentive to terminate probation sentences for individuals who have followed all requirements of their probation, timely paid their restitution, and no longer need to be supervised. 
In 2007, House Bill 3200 was passed. The bill directed CJAD to develop a new basic probation funding formula based on certain criteria. First, it would base funding on the number of felony defendants placed on community supervision, rather than directly supervised. This means the department would not lose out on funding for terminating an individual’s probation early. Second, funding would be additionally based on each felony defendant participating in a pretrial program and supervised by the county. This addresses the current fiscal disincentive for local jurisdictions to divert appropriate individuals from probation altogether, such as by not bringing or by dismissing charges against those arrested for first-time, low-level drug possession contingent on completion of a drug treatment program. Third, a per diem amount would apply for each misdemeanant placed on community supervision. Fourth, higher rates of funding would be established for felony defendants who are serving the early years of their term rather than felony defendants who are serving the end of their term. This is based on data showing most new offenses and revocations occur within the first two years a person is on probation and that for those who have been exemplary in that time there is little or no benefit to further supervision. Fifth, funding would be reduced for departments with excessive numbers of technical revocations. Sixth, additional funding would be provided based on the number of early terminations, which is partly designed to compensate for the lost probation fees, which may be disproportionate to the savings from not supervising a person who required little supervision to begin with. 
The bill was vetoed because “technical revocation” was not defined. A possible solution is to define technical revocation can be defined as violating the terms of probation without any allegation of a new criminal offense. Additionally, it would be beneficial to instruct CJAD that in determining the penalty for excessive technical revocations consideration should be given to the risk level of a department’s caseload and the jurisdiction’s rate of sentencing nonviolent and low-risk offenders to prison. This ensures that jurisdictions that utilize probation in cases involving more challenging offenders are not penalized.
That same year, Perry signed probation reform legislation which he'd vetoed the session before, but he had not progressed far enough down the #cjreform path to embrace this part of the package at a time when critics were hollering at the tops of their lungs that the sky would fall if one less prisoner was incarcerated. With the benefit of 20/20 hindsight, it's easy to see that crime continued to fall after those reforms and implementing the economic-incentive part of the package surely would have been fine. If TPPF has its way, maybe the current governor will have another opportunity this year to sign such a bill.

Frequently economic incentives effect change in government more concretely than policy dicta. The reason half of revocations by local probation departments are still for technical violations, not new criminal charges, is that in 2007, the Legislature issued policy dicta but the Governor vetoed the accompanying economic incentives in HB 3200 that made it all work. So the main effects of the 2007 reforms were on the parole side, where technical revocations were driven down to record-low levels and parole release rates ticked up. Implementing Madden's idea would create new incentives - a "nudge," to use Cass Sunstein's phrase - for the same beneficial trends on the probation front.

Grits hasn't seen legislation to this effect yet, but I hope it's coming.


Anonymous said...

... Or incentivize departments to "hide" or lie about the occurrence of violations of probation altogether.

Prosecutors must be incentivized to go along with halting the technical violation revocation train.

This is a huge unfunded mandate... but the solution is to let individual departments go politic CJAD for a solution? And which departments do you think are going to lose money to fund this?

Maybe this was a dream but wasn't the revenue supposed to come from prison closures and reduction in prison bed costs when technical revocation rates were reduced?

Gritsforbreakfast said...

What would incentivize them to hide or lie, 12:59, I don't see it.

And an unfunded mandate to whom? Probation revocation for technicals is an unfunded mandate from the counties to the state, its that what you meant? Otherwise, TPPF is asking the Lege to FUND a mandate, which is a little different.

Anonymous said...

One other problem with this proposal is that judges have the ultimate responsibility for revocations, not probation departments. When a judge says, "I sent this defendant to outpatient treatment, to residential treatment, and to the SAFPF, so if there's one more positive UA, I want this person revoked," the only response that a probation department can offers is, "Yes, your Honor." Probation officers and probation directors who tell a judge, "No" do not have long tenures.

Gritsforbreakfast said...

Certainly true, 5:26. And FTM, the judges are essentially the board of directors of the CSCD. So the incentive structure would change how the institution they govern must be managed, which is sort of the point. If revoking on a positive UA costs the county money, there will be institutional pressure to treat the offender in the community, where success is more likely, than to pass the buck along to TDCJ to incarcerate them.

ATTICUS said...

Very, very few rural communities have local treatment resources. Most of the ones available have waiting lists, sometimes even SAFPF. And what is a Judge to do with repeated positive UAs after exhausting the few treatment resources and SAFPF? Leave the offender in the community with continuing violations? A revocation in that instance appears as a technical revocation when it is really due to "ran out of alternatives".

Anonymous said...

As mentioned: CSCD's do not revoke/sentence offenders to prison...JUDGES do. And Judges are by election (e.g. "tough on crime") and I don't know many judges who will say "Hey...Vote for me...I want to keep people who are continually using illegal drugs, or maybe have obtained a new arrest in the community." Sorry, I don't see people voting for them. Everyone blames CSCD's for revocation rates. CJAD even makes it the number one goal for CSCD's "Reduce Revocation Rates" when it is not the CSCDs call to make in the first place. Their main goal should be to help the offender change their behavior. My CSCDs revocation rates are one of the lowest in the state, and I am proud of my Director and the direction we are being led. BUT, even if a CSO is recommending revocation 24/7 or to be modified 24/7, it is up to the judge. And on that note, the board of judges are over the CSCD, but they cannot "manage" it. they manage the Director. If they did manage day to day operations, they lose their immunity. Ask a Dallas Co Judge about that one!

Anonymous said...

Two important things to note about this initiative: first, unless the Texas Association of County and District Attorneys signs off on this (not likely), it's not going to happen. As long as prosecutorial effectiveness is graded by convictions, they will not care about revocation rates. Better to find a way to somehow tie funding to counties as an incentive. Second, many probation officers who want to apply intermediate sanctions are stymied by offenders who would rather take county jail or state jail time than deal with the hassles of probation (staying clean, reporting, counseling, fees, etc.). Offenders opting for revocation is more prevalent than you think. Not only that, but way too many misdemeanor offenders won't even consider probation at their initial sentencing, because they see jail time as cheaper (it is) and less hassle (might be).

Anonymous said...

@ 4:14, you ask what would incentivize them...

$$ - When a department gives notice of a violation of probation other parts of the criminal justice system's get to weigh-in regarding how to proceed on the violation. Sometimes the Officer's recommendation is followed but many times the criminal justice process produces a different result.

Consider DWI offenders for example:
A DWI offender continually violates drinking condition, tries to thwart the ignition device. Do you think it is good public policy NOT to forward these technical violations to the court in the name of getting technical revocation reduction money?
Wonder how safe MADD and victims of drunk drivers feel knowing that their local CSCD will withhold bringing violations back before the judge until it becomes a subsequent DWI charge OR worse 2nd DWI with vehicular manslaughter.

I agree that departments should be focused on changing offender behavior BUT disagree that simply paying a department for NOT reporting technical violations WILL produce an outcome conducive to public expectations.

He's Innocent said...

I find it interesting that those who make it past two years are very likely to complete probation successfully is an acknowledged number.

Perhaps then, shouldn't it be considered a good idea to reassess the risk of each probationer at set intervals? And to ensure legal representation during a hearing to terminate supervision? Perhaps release from supervision earlier would be incentive for folks to actually choose probation rather than incarceration?

In my personal experience, those who behave and comply with probation terms are indeed the ones who should be allowed early termination. They are free to get on with rebuilding their lives after involvement with the CJ system and quit being a burden on tax payers.

Only one problem....... not all offenders are allowed this. Sex Offenders are specifically named as not being eligible for early termination of probation, regardless of re-offense rates. Unequal application of law in my mind, but perfectly legal in Texas because the law is written that way.

Anonymous said...

Hey He's Innocent... Don't forget DWI offenders...they too are not eligible for early release. Texas in it's wisdom allows for drug dealers, assaultive people, 5x theft conviction, etc.....but DWI? That just shows how far donations by MADD to politicians can go.

He's Innocent said...

@anon 7:39

Thank you, I was not aware that DWI convictions were not allowed early termination either.

It is all in the money racket, right? Beyond probation fees, it's the fees for the contraption on your ignition you must breathe into, the UA fees, the substance abuse evaluations and classes.

$$$$ -- that's all that is seen.

Anonymous said...

Commitment Reduction Plans won't work. Its easy for the TPPF to write an article and for Grits to state it is a funding mechanism but it won't work for all the reasons already mentioned.

Judges are a board for CSCDs but all they do is hire the director, approve the budgets, and approve the strategic plan. That is what the statute says. Do a survey of all the judges in Texas, ask them what a strategic plan is. I doubt they will know what it is. If they do know what it is, the majority won't know what is contained in the plan. Ask them how CSCDs are funded. Again, I doubt they know anything about that either. Ask them how much revenue/expenses the probation department they oversee incurred during the last fiscal year, I doubt they will know that either. But, the approve the budgets.

The largest CSCDs (maybe the top five, not even the top ten) in Texas might be able to pull off something like a Commitment Reduction Plan, but smaller CSCDs (the other 197 CSCDs), it just isn't going to happen. If they are forced to create a commitment reduction plan, they will, but it will be more unnecessary work.

CSCDs are a hybrid governmental entity. Commissioner's Courts, County Sheriff's, Police Officers, County Clerks, etc. aren't sure what a CSCD is either.

Probation is decentralized with 1,000s of people making decisions about the fate of the probationer, whereas parole is centralized with less than 50 people making decisions about the fate of a parolee or an inmate. Comparing parole to probation is a useless endeavor

The probation officer, he/she doesn't make the decision when it comes to a probationer going to prison. A judge does that usually through the rubber stamp of a negotiated agreement between a prosecutor and a defense attorney who barley know the defendant. The judge also barely knows the defendant.

District attorneys have no interest in assisting a probation department with incentivizing adult probation and the truth is, neither does the Judiciary or the defense bar, or any form of county government.

Incentivizing the district attorney to pay attention to CSCDs progressive sanctions models that would make more sense.

Anonymous said...

This is an example of how corrupt the probation system is: They revoked my son after ONE, yes one, dirty UA after he had served, paid, attended, meet with the County probation department for 9.5 years of a 10 year deferred sentence. He was a regular paying customer to them. I'm sure he's not the only one. They are set up for failure in order to secure the jobs in the Probation department. goes on and on and on.............time after time, person after person. Job security, you get them, you never let them go. That's how they're trained, that's how they maintain their jobs. It's sickening.