Nature of the Crime – Motion to Revoke

In 2014, more than 24,000 people were sent to prison in Texas due to probation violations.[i]  That is a number greater than the size of the entire federal and state prison population in 31 states.  

Probation revocations account for one-third of all people received by the Texas Department of Criminal Justice every year.  Moreover, nearly half of those people sent to prison based on probation violations did not even commit a new crime. They were simply unable to meet the conditions of probation, so the probation officer issued a Motion to Revoke based on “technical violations.”  Technical violations can include anything from not completing treatment to failure to report.

If Texas is going to achieve significant reductions in its prison population, it has to start with making probation more effective. Putting aside all the acclaim associated with drug and other specialty courts, probation is the primary diversion strategy to keep people out of prison.  There are about 221,000 people on felony probation in Texas, a number that is dropping for the reasons I discussed in the previous post.  Further, the felony community supervision revocation rate was higher in 2014 than it was five years ago.[ii] 

Fewer people diverted and a higher revocation rate will reverse the limited progress Texas has achieved in terms of reducing its prison population. 

The issue is about more than just reducing the size of our prison population.  It’s about helping people to address the problems that led to criminal justice system involvement, so that crime rates decrease and people can live productive lives. Successful community supervision reduces the effects of addiction and mental illness, increases employment stability, and improves the quality of the community. Probation officers who define success in this way are providing a valuable service in their communities. 

I met with the Chief of a medium-sized Community Supervision and Corrections Department (CSCD) last week, and hope to meet with several others in the near future.  I asked what it would take to reduce probation revocations and ensure that probationers never return to the criminal justice system. The Chief had a number of interesting ideas. He emphasized incentives over sanctions. Many probationers struggle with fees, so he allows people on his caseload to do additional community service hours in lieu of fees. He goes a step further. He counts participating in rehabilitative programming, from addiction recovery to GED classes, as community service.    

The Chief emphasized the need to improve services to people with special needs. He wants all of his officers to be trained in “trauma-informed care,” recognizing the correlation between past trauma and current addiction and mental illness. He also wants to see more specialty officers for a variety of caseloads, including people with substance abuse issues and veterans. He suggested that every CSCD have a social worker on staff to assist with housing, employment, counseling, and other issues that arise during the course of supervision. 

How a CSCD handles violations is critically important. Studies have indicated that it’s not just harsh sanctions for minor violations that is the problem.  Probation departments that are inconsistent or even lenient when it comes to violations tend to have high revocation rates, just as those departments that are overly harsh or punitive. Studies have shown that anticipated sanctions should be swift, certain, and progressive.[iii] Those states that have communicated expected sanctions for specific violations and are consistent when imposing sanctions tend to have lower revocation and recidivism rates.[iv]

Even when probationers continue to violate or even abscond, however, judges still don’t have to send them to prison. Probationers often abscond due to relapse, unpaid probation fees, or other factors that can be addressed without sending someone to prison.  Judges can refer probationers to Substance Abuse Felony Punishment (SAFP) Facilities (SAFP), which are operated by the Texas Department of Criminal Justice (TDCJ). When SAFP placements are combined with halfway house placement and aftercare, the recidivism rate for those who complete the program is 17% lower compared to those with similar needs who do not receive these services.[v]  Further, judges may also send probationers to TDCJ Intermediate Sanction Facilities for several months instead of sending them to prison. 

The emphasis should always be on helping people to be successful in the community, but judges must exercise every diversion strategy available before even considering prison placement. 

Even CSCD’s that embrace the goal of helping probationers to overcome addiction and become productive citizens know that they can’t do it alone. During my interview with the Probation Chief, someone passed by the office. The Chief called to the man and asked him to join us. The man had worked in the community supervision field for 37 years and was about to retire. Seeing a wonderful opportunity to learn from the best, I asked him, 

“What will it take to lower revocations and help people to succeed on probation?”  Without missing a beat, he said, “Help them to get jobs.”

Most employers remain entrenched in blanket bans on hiring anyone with a criminal history, particularly a felony record . The veteran probation officer said to me that probation departments need better collaboration with the Texas Workforce Commission and local employers.  The single leading factor in preventing someone from committing another crime is employment stability. 

Probation success leads to safer communities and fewer people in prison, but it will take the entire community, including employers, supporting the work of CSCD’s for them to achieve their goals. 

Citations

[i] Texas Department of Criminal Justice, “Report to the Governor and the Legislative Budget Board on the Monitoring of Community Supervision Diversion Funds,” December 1, 2014, https://www.tdcj.state.tx.us/documents/cjad/CJAD_Monitoring_of_DP_Reports_2014_Report_To_Governor.pdf

[ii] Legislative Budget Board, “Statewide Criminal and Juvenile Justice Recidivism and Revocation Rates,” February,2015, p. 3, http://www.lbb.state.tx.us/Documents/Publications/Policy_Report/1450_CJ_Statewide_Recidivism.pdf

[iii] Kleiman, Mark A. R., “Justice Reinvestment in Community Supervision”, Criminology and Public Policy (2011), Volume 10, Issue 3.

[iv] Ibid.

[v] Texas Department of Criminal Justice, “Evaluation of Offenders Released in Fiscal Year 2011 That Completed Rehabilitation Tier Programs, April,2015, p. 15, file:///C:/Users/Douglas/Downloads/TDCJ-Evaluation%20of%20Rehabilitation%20Programs%20-%20April%202015.pdf

Nature of the Crime – Community Supervision

The sad truth about the criminal justice system is that it often serves its own purposes.

 One of the most confusing moments for me during the most recent legislative session was when I advocated for an improved funding formula for probation departments.  The bill merely called for a study of the current funding allocation formula to reward positive outcomes and move past the overreliance on probationer fees.  The goal was to improve quality, rewarding departments that lowered probation revocation rates.  It would have led to an increase in the number of people on probation because exorbitant fees are often the primary reason people choose state jail time over probation. 

What was the response by many of the members of the Texas Probation Association to the prospect of more clients and financial incentives for good outcomes?  They came out in force to oppose the bill.  

I was shocked. A general rule of thumb in the Texas Legislature:  when an interest group opposes a study bill, they either have something to hide or they are afraid that potential changes will make things worse. 

It saddened me that the Association was so unwilling to discuss improvements to the system, because we all have something to gain if community supervision is successful.  Making probation more effective is one of the most important things we can do to decrease incarceration rates in Texas. Moreover, effective community supervision ends the cycle of relapse and reoffense that characterizes untreated addiction.

I was on probation at one point in my downward slide toward addictive destruction.  While grateful for the chance to remain in the community, I continued to struggle with addiction. I often wonder whether I might have succeeded on probation had the department supervising me utilized best practices. In fact, I have no recollection of them ever conducting a risk and needs assessment, an essential element in effective supervision; nor did they check on my progress in recovery.

They did indeed make sure I paid my fees on time. I paid a monthly fee, roughly $50, just to see my probation officer.  On top of that fee, I paid $130 per month in victim restitution.  The latter fee was a form of amends for the crime I committed, and I paid it without resentment.  However, the combined fees and community service requirements proved to be a challenge, especially when I relapsed.  

The challenge I faced is typical. It is not uncommon for people to be required to pay the probation fee, restitution, treatment costs, and electronic monitoring fees. Some people have to pay out of pocket for classes that allow them to renew their drivers licenses.  Increasingly, probation has become a significant obstacle to recovery instead of a resource to overcome the root causes of criminal behavior.  

I know of professionals charged with Driving While Intoxicated who gladly chose jail time over probation because the community supervision requirements are nearly impossible.  

People living at or near the poverty line often view probation as a trap. Probation costs alone will exacerbate economic challenges.  If one has children, the classes and community service requirements are often too difficult to balance. Knowing that their inability to meet probation requirements will lead to probation revocation and a longer prison sentence, defense attorneys routinely advise clients to accept county jail or state jail time over community supervision. This is one of the reasons that the number of people on probation in Texas has decreased by 40,000 since 2005.

It’s critical for my own recovery not to blame anyone for my own relapse. I had family support and help from the Veteran's Administration.  Probation did not help me to deal with the problems I was facing in terms of addiction and mental illness, but I take responsibility for not embracing the tools of recovery offered to me.  

What I can say affirmatively is that improving community supervision standards will likely prevent someone from having to experience what I did. 

The decline in the number of people taking community supervision as well as the high probation revocation rate will derail any effort to end mass incarceration in Texas.  For more information about fixing the community supervision system in Texas, click here. 

Nature of the Crime

Holliday Unit, Huntsville ,Texas

I appreciated Scott Henson’s recent Grits for Breakfast post related to prison release rates in Texas (see “The arithmetic of de-incarceration: TDCJ edition”). Scott has a way communicating about complex issues that paints a simple and easy to understand picture for the reader. It’s one of the reasons why his reporting often leads to tangible policy changes, like the recent adjustment of property offense penalty thresholds.  That measure will likely decrease the number of felony theft cases and shift additional cases into community supervision, hopefully leading to treatment and services for people with addiction and mental illness. 

In Scott’s recent post, he provides a graph comparing the number of people sent to prison each year to the number of people released.  You can immediately see a problem that could stall progress on criminal justice reform in Texas.  

If the number of people received into the Texas Department of Criminal Justice is not equal to or less than the number of people released from prison each year, we will soon have to build more prisons.  

Texas prison populations have declined, but only by 3.6 percent.  We have a long way to go before we come close to the reductions in prison populations achieved by New York and other states.  Most advocates believe that Texas should decrease its prison population by at least 30 percent.

There has been undeniable progress.  The number of placements into pretrial diversion programs has nearly doubled since 2005, with a 63 percent increase in felony diversion.  Also, thanks to the leadership of the outgoing Chair of the Board of Pardons and Paroles, Rissie Owens, with support from former Governor Perry and the Legislature, the number of people approved for parole release has increased by several thousand each year. 

Also, the Parole Board decreased the number of parole revocations each year by 30 percent.  This happened because the Board was given additional options in terms of treatment and intensive supervision, allowing TDCJ to address higher levels of risk and need in the community instead of in costly prisons. 

But the numbers illustrated by Scott Henson bring up important concerns.  The number of people sent to prison each year remains relatively stable when it should be declining along with crime rates and greater use of diversion programs. Further, even with increased parole approval rates, the number of people released from prison each year remains fairly low.  There are at least three issues that need to be addressed by the next Legislature to prevent criminal justice reform from going backwards:

1.      Increase the number of people sentenced to community supervision instead of prison;

2.      Reduce probation revocations; and

3.      Increase parole release rates. 

I’ll follow with three posts to a discuss each of these issues.  As an introduction, I should emphasize why this is important. Despite all of the progress, there remain 150,000 incarcerated people in Texas, a staggering number.  The prison population in Texas increased by 200% during a period when the actual population increased by only 48%. Prison stopped being the last resort for those who commit violent offenses, and the state created an assembly line to process more than 70,000 new prisoners each year.  

If you pass by one of the prison units built rapidly in the 1990s, you’ll see a half mile stretch with two rows of buildings that look exactly like warehouses. 

The state spends $6.2 billion every two years on this out-sized system.  It separates families, often forcing parents and children to travel 600 miles across the state for a brief weekend visit with their loved ones. Even prison officials argue that the system is too large, making it nearly impossible to adequately address the factors that led to criminal involvement in the first place. There is a better way to deal with crime in this state. Stay tuned for the next post on more effectively addressing social issues through community supervision instead of prison.