Keeping People From Falling Through the Cracks

01/12/2017

By Donna Rogers, Editor-in-chief

It’s no secret: A sizable portion of individuals on supervision will violate one or more terms of their parole or probation.  For example, according to a March 2015 report by the Urban Institute called The Justice Reinvestment Initiative: Thinking Local for State Justice Reinvestment, one study in California estimates that about half of individuals on parole in the state had at least one technical or criminal violation and about a quarter violated multiple times, typically for minor violations (see Grattet, Petersilia, and Lin, 2008).
Community corrections programs, which offer alternatives to confinement, and seek to halt the endless cycle of returning to prison for seemingly minor violations. These programs, which include pretrial services, diversion, probation, parole, and community-based residential and non-residential programs (e.g., day reporting centers and halfway houses), have been on the upswing for the past decade.
 
One initiative that helped get community corrections off the ground in 2010 is the Bureau of Justice Assistance’s Justice Reinvestment Initiative (JRI), which provides funding to agencies that apply a data-driven approach to improve public safety, examine corrections and related criminal justice spending, and reinvest savings in strategies that can hold offenders accountable. As of March 2015, leaders in 24 states and 17 localities have implemented JRI with the help of technical assistance providers, working with colleagues across multiple agencies and organizations to identify and implement data-driven strategies that prioritize justice system resources according to risks and needs.
 
Thinking Local goes on to point out: “Many states that have engaged in justice reinvestment have identified common levers and cost-saving solutions to curb prison growth. The report points to three key decision points—sentencing, release mechanisms and community supervision—which each has “a major influence on states’ public safety expenditures.”
The following is a sample of some of those success stories as well as the philosophy behind the reinvestment initiative.
 
As those in the field know, minor violations, such as not checking in at a certain time, can prolong time on supervision and drain corrections resources.
This drain is unnecessary, especially with the growing body of literature suggesting more effective ways of responding to violations. Accordingly, many states have developed policies that require or encourage the use of intermediate sanctions (in lieu of revocation) in responding to minor supervision infractions.
 
Thinking Local underscores that successful implementation hinges around strong partnerships with local stakeholders: “Local partners—particularly jail managers, probation officers, and law enforcement—must work with each other, and often with partners at the state level, to achieve a successful violation response strategy,” the report says.
 
“Although the menu of sanctions available to a supervision officer varies, some officers have the authority to sanction a violator to a jail term. And if officers initiate revocation proceedings, probationers or parolees may spend weeks in jail awaiting a hearing. Supervision officers may inadvertently overwhelm counties with probation and parole violators. Further, because supervision functions are rarely controlled by sheriffs or jail administrators even if they are local functions, parole and probation officers have little financial incentive to moderate their use of jail beds. Limited space in county jails could eventually push this population back into the prison system.”
 
For example, one analysis of technical violators in Ohio found that this population was being held in prison pending violation hearings. (See La Vigne and Thomson, 2003). 
The report also notes that a “critical step in the JRI process is identifying which criminal justice clients have the greatest needs or pose the greatest risk to public safety.  Most state-level policy solutions require the effective use of risk and needs assessment at multiple points in the criminal justice process to target services to high-risk populations. In many states, local agencies (e.g., probation authorities) oversee this function, but these agencies may have varying capacity to collect critical information. Thus, state and local partners may want to execute agreements that allow them to share client-level data with each other or create a shared data system or statewide data repository to facilitate information sharing.  They may also benefit from sharing training opportunities and resource materials. Providing local treatment and service providers with access to this information, as well as to staff trained in the principles of evidence-based practice, will allow those providers to target services toward those with the highest risks and needs. The assessments may also help state and local agencies forecast clients’ demand for services in the community and ensure that the right clients are assigned the appropriate type (and intensity and dosage) of treatment and supervision.”
 
Performance Incentives
In response to this challenge, states are experimenting with the use of performance incentives for probation and parole agencies, to change both their use of revocations to prison and the number and kind of violations that result in jail sanctions.
Michigan, for example, employed a strategy that used violation waivers, and it worked. Counties that authorized probation agents to issue Probation Violation Waivers (in lieu of courts issuing bench warrants or petitions to show cause) experienced fewer jail admissions and a declining number of court appearances (Michigan Task Force on Jail and Prison Overcrowding 2005).
 
In another instance of performance incentives, South Carolina’s JRI legislation provides incentives for effective probation and parole management by making the Department of Probation, Pardon, and Parole Services eligible to receive a portion of the savings that accrue to the Department of Corrections as a result of reducing revocations (La Vigne, et al. 2014).
 
Ohio’s Plan
Similarly, Ohio’s Department of Rehabilitation and Correction administers incentive grants to probation departments supervising felony offenders to reduce probation revocations (La Vigne, et al. 2014). Others have responded to pressure on jail capacity by setting limits and restrictions on the use of jail in response to probation violations and revocations.
Ohio enacted comprehensive reforms to its sentencing and corrections system in 2011. H.B. 86 created a statewide system of risk and needs assessments to ensure that community supervision and treatment resources are used to their maximum effectiveness on the most appropriate offenders.
 
The reforms were projected to save taxpayers $46 million by 2015 by preventing expected growth in the state prison population, of which $20 million would be reinvested over four years to improve felony probation supervision. First-time property and drug offenders are required to serve probation and receive treatment rather than spending short terms in prison and then returning to their communities without supervision. The law emerged from the work of Ohio’s bipartisan, interbranch work group, which received technical assistance from the Council of State Governments (CSG) Justice Center again through the JRI.
Another justice reinvestment program is underway in West Virginia, according to the CSG Justice Center, which partners with state and local criminal justice system stakeholders to pursue a data-driven justice reinvestment approach to reduce corrections spending and reinvest the savings.
 
The CSG reports  the number of people in West Virginia on supervision who were revoked to prison increased by 47 percent between 2005 and 2011, representing the single largest driver of the state’s then rapidly growing prison population. Failure to adhere to the terms of probation or parole often stemmed from people’s substance use disorders, yet few people under supervision received treatment in their communities. As part of West Virginia’s justice reinvestment approach to controlling prison growth, state leaders will have appropriated $9 million between FY2014 and FY2016 to expand community-based substance use treatment and services for people at high risk of violating their probation or parole. County-level grants are now being awarded to fund inpatient and outpatient treatment programs, the development of addiction recovery housing, and the hiring of recovery support specialists in order to expand counties’ capacity to deliver substance use treatment and services for people on supervision.
 
California Realignment
Facing a U.S. Supreme court mandate to reduce its prison population by more than 30,000 prisoners, the state of California enacted sweeping justice realignment legislation in April 2011, effectively shifting responsibility for a sizeable portion of felony offenders from the state to its counties. In passing the “Realignment” legislature, the goal was to not only reduce overcrowding “but to reallocate resources toward locally administered, cost-effective, evidence-based alternatives that have the potential to cut recidivism and shut the revolving door of the state’s prison system.” (Note: California follows a community corrections paradigm but is not part of the JRI model).
 
The legislation changed the state’s management of individuals convicted of certain nonserious, nonviolent, nonsexual (N3) felony offenses, shifting responsibility for these offenders from state prisons and parole to county jail and probation. Under Realignment, individuals convicted of eligible N3 offenses serve their sentences under the jurisdiction of the county either in jail, on probation or on a split sentence (i.e., a jail sentence followed by a period of probation). Only individuals with a current or prior conviction for a serious or violent felony are eligible to be sentenced in state prison, (this extends to those who must register as sex offenders and other specific crimes).
 
Similarly, only the most serious offenders are supervised by state parole upon release; others are supervised by county probation under newly created post-release community supervision. Finally, the majority of individuals with a technical parole violation no longer return to prison—rather they face a maximum of 180 days in jail.
 
In November 2014, California Proposition 47, or the Reduced Penalties for Some Crimes Initiative, reclassified a number of nonviolent drug and property crimes from felonies to misdemeanors. Individuals convicted of these crimes now face reduced penalties, and savings realized from the reform are to be reinvested in truancy prevention, mental health and substances abuse treatment, and victims’ services. The new law also allows certain offenders convicted of eligible crimes to apply for reduced sentences.
 
Measuring the Impact of Realignment
While it is still early to measure long-term results of Realignment according to the Thinking Local report, data are available to investigate initial impacts. CDCR estimates that Realignment has reduced the state’s prison population by about 25,000 (CDCR 2013). A recent analysis by the Public Policy Institute of California (PPIC) also found that although the average daily population in the state’s jails has risen by approximately 12% since Realignment was implemented, the overall incarceration rate including rates for both prisons and jails has declines (Lofstrom and Raphael 2013a). A companion report documented that Realignment has not resulted in an increase in violent crime, though it does seem to have contributed to an increase in property crime driven entirely by an increase in auto theft (Lofstrom and Raphael 2013b).
 
One of the effects of realignment is rising populations at the local level, and according to the PPIC analysis, 16 counties reported that their jails were operating over capacity in 2012, up from 11 in 2011. Another concern on the part of local stakeholders is about crowding and management of a higher risk population in local jails and on probation (Petersilia 2014).
 
‘Historic’ Changes
These changes to the criminal justice system are historic, and thus, the report points out, “It will be some time before the long-term fiscal and public safety impacts of these unprecedented reforms on the state and its 58 counties are fully understood.” In addition, research continues on studying other reentry programs to discover the impact community corrections has on recidivism, corrections departments, safety to the community and costs to taxpayers.