Principles Of Corrections cases

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Question Description

A minimum of 1,300 words required for the total assignment and there must be three scholarly sources. The references does not count towards word count!

1. Case Summary

In a narrative format, explain how an offender is processed through each stage of the criminal justice system.

2. Case Analysis

How effective have America's "Get Tough on Crime" initiatives been on reducing crime?

3. Case Analysis

Do you believe our corrections system is effective in rehabilitating offenders?

4. Case Analysis

Do you feel that mandatory minimum sentences have a positive impact on reducing crime in the US? Why/ Why not?

5. Executive Decisions

If you were a member of the legislature, how would you go about proposing legislation to abolish mandatory minimum sentencing practices?

6. Case Summary

In a narrative format, discuss the key facts and critical issues presented.

7. Case Analysis

What, if anything, would be wrong with punishing thieves simply by having them return whatever they have stolen.

8. Case Analysis

Define Deterrence and then explain the difference between general and specific deterrence.

9. Case Analysis

Three-Strikes Laws have been the source of continued controversy, In your opinion, should they be abolished? Explain your reasoning.

10. Executive Decisions

Assume that you are a Senator within your home state in which determinate sentencing is currently being practiced; however, you have introduced a bill to switch to indeterminate sentencing. What are some of the strengths of indeterminate sentencing that you could use to persuade your fellow senators?

Part II

A minimum of 250 words and two scholarly sources are required for the main post. The schoarly sources does not count towards the word count.

Chapter 4 of the textbook has sections on diversion and probation. The "Statement on Probation" in Exhibit 4-3 specifically discusses the rights of all parties. Using your textbook and the required research, answer these questions. Do you feel as though the rights of victims and society to be protected from harm are considered fairly and equally before a prosecutor and judge agree to a deal for an offender to be sentenced to diversion or probation? What about offender rights; are the rights of the offender and/or the urgency to move cases through the court process given too much weight?

Corrections st in the 21 Century M I L E S , seventh edition S H A Frank Schmalleger, PhD N Distinguished Professor Emeritus N University of North Carolina at Pembroke O N John Ortiz Smykla, PhD Distinguished University Professor 1 University of West Florida 9 0 9 T S PART Introduction to Corrections Part One develops an understanding of corrections by examining the purposes of correctional punishments and by exploring how offenders have been punished throughout history. Today, crime rates are falling but the number of people under correctional supervision (on probation or parole or in jail or prison) has only started to decline from historical highs. Get-tough-on-crime attitudes, the War on Drugs, and the reduction in the use of discretionary parole board release explain what some have seen as the overuse of imprisonment in the past two decades. M Professionalism is the key to effecI correctional populatively managing tions. Standard-setting organizations L such as the American Correctional E Association, the American Jail AssoS ciation, the American Probation and Parole Association, and the National , Commission on Correctional Health Care offer detailed sets of written principles for Scorrectional occupations and correctional administrators. H Nevertheless, professional creA dentialing in correcN is new. The seed tions was N planted during the Enlightenment when O reformers such as N Cesare Beccaria and the Philadelphia Quakers shifted the focus of 1 punishment away from 9 body and toward the the 0 soul and human spirit. Correcting the 9 and human spirit soul required understanding T the causes of crime and S new reforms. To that end, the National Prison Association (now known as the American Correctional Association) met [1] in Cincinnati, Ohio, in 1870 to advance correctional theory and practice. The assembly elected then Ohio governor and future U.S. president Rutherford B. Hayes as the first president of the association. Today, the ACA remains the leader in advancing professionalism in corrections through education, training, and skills development. The professional nature of corrections is also seen in the way sanctions are developed. From a time when theory and practice advocated indeterminate sentences to the legislatively mandated determinate sentences of today, correctional decision makers have had to use their knowledge of human behavior, philosophy, and law to construct sanctions that are fair and just. The correctional goals of retribution, just deserts, deterrence, incapacitation, rehabilitation, and restoration have produced the sanctions of probation, intermediate sanctions, jail, prison, parole, and capital punishment. What are the consequences of punishment? Choosing the best sanction means understanding the political, social, economic, human, and moral consequences of crime control. For that reason, corrections is a field in which complex decision making requires the skills of professional staff and administrators. [1] CORRECTIONS An Overview CHAPTER OBJECTIVES After completing this chapter you should be able to do the following: M I L E S , S H A N N O N 1 9 0 9 T S 2 Describe how crime is measured in the United States, and list the kinds of crimes that cause people to enter correctional programs and institutions. 3 List and describe the various components of the criminal justice system, including the major components of the corrections subsystem. 4 Explain the importance of professionalism in the corrections field, and describe the characteristics of a true professional. 5 Define evidence-based corrections, and explain the important role that it plays in corrections professionalism today. 6 Understand what is meant by social diversity, and explain why issues of race, gender, and ethnicity are important in corrections today. The use of evidence-based practices in corrections and public policy is now considered the gold standard for policy and program development. “ “ 1 Describe the corrections explosion of the past 20 years, including the recent leveling off of correctional populations. —Richard Tewksbury and Jill Levenson, “When Evidence Is Ignored: Residential Restrictions for Sex Offenders,” Corrections Today, December 2007, p. 34 In 2013, federal auditors reported that inmates in state prisons and jails had filed more than 173,000 fraudulent income tax returns, claiming refunds totaling $2.5 billion.1 Another audit found that 29 inmates received $50,000 in federal tax payments for electric vehicles they falsely claimed they had purchased. Although prisoner tax scams are not new, the number of such cases has grown rapidly in recent years. Inmates typically use stolen social security numbers when filing and have refunds sent to friends and relatives who are not behind bars. Those collaborators then deposit a large portion of the refunds they receive into inmates’ accounts. M On a related note, prisoners’ use of outlawed Icell phones to make calls from inside of correctional L institutions has grown exponentially as the numberEof phones in general circulation has expanded. Recently, S for example, California correctional officers seized , nearly 6,000 banned cell phones from the state’s prisoners, while officials with Maryland’s Department of Public Safety and S Correctional Services confiscated over 3,600 cell phones in the past three years.2 In Mississippi, H A alone. The issue of contraband cell phone use inside of prisons is discussed N in a number of places throughout this book. N Illicit cell phone usage, fraudulent tax return filing, and similar other outlawed3 O activities that occur behind prison bars illustrate the close connection that N nearly 2,000 contraband phones were confiscated during the first half of 2010 A corrections officer examines almost 2,000 cell phones that have been confiscated from prisoners at California State Prison Solano over the last few years. How does this photo illustrate at least some of the problems facing correctional personnel today? inmates retain to the outside society, and raise the question, “Do prisons really make us safe?”4 What about other corrections programs, such as probation, 1 9 offenders? If they make our society a safer place in which to live, then the 0 recent and rapid growth in correctional populations that took place between 9 1980 and 2010—and which is discussed in the next section of this chapter—is T understandable. If they don’t contribute much to safety and security, however, S growth occurred. then we must look elsewhere to understand why such rapid parole, jails, alternative sentencing programs, and institutions for juvenile THE CORRECTIONS EXPLOSION: WHERE DO WE GO NOW? One amazing fact stands out from all the contemporary information about corrections: While serious crime in the United States consistently declined throughout much of the 1990s, and while such declines continued into the early years of the 21st century, the number of people under correctional CO1-1 crime A violation of a criminal law. 3 4 PART 1 Introduction to Corrections prison A state or federal confinement facility that has custodial authority over adults sentenced to confinement. EXHIBIT 1–1 supervision in this country—not just the number of convicted offenders sent to prison—continued to climb, and only started to level off after 2010. Crime rates are approximately 20 percent lower today than they were in 1980. They are near their lowest level in 25 years. But the number of people on probation is up almost 300 percent since 1980, the nation’s prison population has increased by more than 400 percent, and the number of persons on parole has more than doubled. Exhibit 1–1 illustrates trends in federal and state prison populations. The Growth of Imprisonment in the United States State prison populations 1925–2012 1,500,000 was the first year to show a decline in Mthe2010 number of prisoners held in state facilities I L 1997 1.13 million prisoners E S , State prisoners 1,200,000 900,000 1980 305,000 prisoners 600,000 S H 300,000 A N 0 1925 1931 1937 1943 1949 1955 1961 1967 N 1973 1979 1985 1991 1997 2003 2012 Source: Bureau of Justice Statistics, Crime and Justice Atlas 2000 (Washington, DC: Bureau of Justice Statistics, 2001), pp. 42–43; and E. Ann Carson and Daniela Golinelli, Prisoners in 2012 (Washington, O DC: Bureau of Justice Statistics, 2012); and other years. N 1940–1944 Peak draft years World War II 1964–1973 Peak draft years Vietnam War Federal prison populations 1925–2012 1 9 0 9 T S 250,000 Federal prisoners 200,000 150,000 In 2012, the growth in the number of federal prisoners leveled off and may have stopped. 100,000 50,000 0 1925 1961 Source: Bureau of Justice Statistics; and E. Ann Carson and Daniela Golinelli, Prisoners in 2012 (Washington, DC: Bureau of Justice Statistics, 2013); and other years. 1996 2012 CHAPTER 1 Corrections EXHIBIT 1–2 Number of State Prisoners by Offense, 2012 Type of Offense All Male Female Violent offenses 710,875 678,786 33,695 Property offenses 245,351 220,753 25,486 Drug offenses 225,242 203,080 22,971 Public-order offenses 141,800 134,200 7,950 Source: Adapted from E. Ann Carson and Daniela Golinelli, Prisoners in 2012 (Washington, DC: Bureau of Justice Statistics, 2013). The question is, Why? Why did the correctional population increase so dramatically in the face of declining crime rates? The answer to this question, like the answers to most societal enigmas, is far Mfrom simple, and it has a number of dimensions. I First, it is important to recognize that get-tough-on-crime laws, such as the three-strikes (and two-strikes) laws that were enacted in many states in L the mid-1990s, fueled rapid increases in prison populations. The conservative attitudes that gave birth to those laws are stillEwith us. A second reason correctional populations have rapidly S increased can be found in the nation’s War on Drugs. The War on Drugs led to the arrest , and conviction of many offenders, resulting in larger correctional populations in nearly every jurisdiction (especially within the federal correctional system). In Exhibit 1–2, compare the total number of individuals incarcerS ated for drug offenses with, for example, the total incarcerated for property H the nation’s correcoffenses. Although they account for a large portion of tional population, drug arrests do not figure into theAFBI’s calculations of the nation’s rate of serious crimes. Hence, the War on Drugs goes a long N way toward explaining the growth in correctional populations even while the rate of “serious crime” in the United States appears to be declining. N Third, parole authorities, fearing civil liability and public outcry, O contributed to a became increasingly reluctant to release inmates. This further expansion of prison populations. N Fourth, as some observers have noted, the corrections boom created its own growth dynamic.5 As ever increasing numbers of people are placed on probation, the likelihood of probation violations1increases. Prison sentences for more violators result in larger prison populations. When inmates are released from prison, they swell the numbers of 9 those on parole, leading to a larger number of parole violations, which0in turn fuels further prison growth. Statistics show that the number of criminals being sent to 9 prison for at least the second time has increased steadily, accounting for 6 T approximately 35 percent of the total number of admissions. S Historical Roots of the Corrections Explosion Seen historically, the growth of correctional populations may be more the continuation of a long-term trend than the result of social conditions prevailing around the start of the twenty-first century. A look at the data shows that correctional populations continued to increase through widely divergent political eras and economic conditions. Census reports show an almost relentless increase in the rate of imprisonment over the past 160 years. In 1850, for example, only 29 people were imprisoned in this country for every 100,000 persons in the population.7 By 1890, the rate had risen to 131 per 100,000. The rate grew slowly until 1980, when the rate of imprisonment in the United States stood at 153 per 100,000. At that 5 6 PART 1 Introduction to Corrections point, a major shift toward imprisonment began. While crime rates rose sharply in the middle to late 1980s, the rate of imprisonment rose far more dramatically. Today, the rate of imprisonment in this country is around 480 per 100,000 persons. The rate appears to have peaked in 2009 (at over 500 prisoners per every 100,000 people in the country), and now seems to be declining—if only a bit.8 Exhibit 1–3 illustrates changes in the rate of imprisonment over the past 160 years. Probation statistics—first available in 1935—show an even more amazing rate of growth. Although only 59,530 offenders were placed on probation throughout the United States in 1935, around 4 million people are on probation today.9 Finally, it is worth noting that although prison populations finally started to decrease around 2011–2012, much of that decrease was due to initiatives such as California’s realignment strategy (discussed elsewhere in this text), which repositioned sentenced inmates from state facilities to those at the county level—thus lowering the “official” rate of imprisonment, but not necessarM ily resulting in a decline in the number of people held behind bars. of people behind bars began to show a decline beginning around 2010. Alternatives to imprisonment, most of which will be discussed in coming Sinclude probation, fines, and community service— chapters, are many and to which convicted offenders are being sentenced in increasing numbers. H In order to reduce correctional expenditures even further, some states are A from prison, shortening time served, reducing using forms of early release the period of probationNor parole supervision, and shifting the responsibility of supervising convicted offenders to county-level governments (and away N We will examine these innovations at various from state responsibility). EXHIBIT 1–3 O Rate N of Imprisonment in the United States, 1850–2012 700 600 Rate per 100,000 residents U.S. correctional populations have grown dramatically over the past 25 years, as this image of inmates living in a modified gymnasium at the Mule Creek State Prison in Ione, California, illustrates. What factors led to a substantial increase in the use of imprisonment in this country beginning in the 1980s? I L Turning the Corner While get-tough-on-crime E attitudes continue to persist in American society today, they have largely been trumped by the economic realities brought on by the Great RecessionS of the early 21st century. Today’s state budgets have been hard pressed to continue funding prison expansion, and the number , 500 400 300 1 9 0 9 T S 480 200 153 131 90 100 29 0 1850 1890 1950 1980 2012 Sources: Margaret Werner Cahalan, Historical Corrections Statistics in the United States, 1850–1984 (Washington, DC: U.S. Department of Justice, 1986); and E. Ann Carson and Daniela Golinelli, Prisoners in 2012 (Washington, DC: Bureau of Justice Statistics, 2013), p. 1. CHAPTER 1 places throughout this text, especially in a number of Economic Realities and Corrections boxes that are found in different chapters. As states grapple with the economic realities of reduced revenues and constrained budgets, it has become increasingly important to get the most “bang for the buck,” so to speak, out of correctional programs. Moreover, responsible legislators and other policy makers are beginning to realize that spending policies of the past will not work in the future. In 2012, in her presidential address to the Academy of Criminal Justice Sciences, Melissa Hickman Barlow outlined a plan for the implementation of sustainable justice. Barlow defined sustainable justice as “criminal laws and criminal justice institutions, policies, and practices that achieve justice in the present without compromising the ability of future generations to have the benefits of a just society.”10 Barlow’s call for affordable justice, based on principles and operating practices that can be carried into the future without bankrupting generations yet to come, represents an important turning point in M our nation’s approach to corrections and other justice institutions. I As we will see later in this chapter, the evidence-based movement in corrections, which seeks to evaluate programs and L services to see which are the most effective relative to their costs, plays a widening role in corE much to the call rectional administration today—and should contribute for sustainable justice. S , Correctional Employment Growing correctional populations and increasing budgets have led to a S enhanced employdramatically expanding correctional workforce and ment opportunities within the field. According to historical reports, perH sons employed in the corrections field totaled approximately 27,000 in 11 A The most current 1950. By 1975, the number had risen to about 75,000. statistics available show that the number of uniformed N correctional officers has increased to more than 490,000.12 When juvenile detention facilN administrators, ity personnel, probation and parole officers, correctional jailers, and other corrections professionals are added, O the total number of persons employed in corrections today stands at more than 748,000.13 N in corrections. Exhibit 1–4 shows some of the employment possibilities Corrections 7 sustainable justice Criminal laws and criminal justice institutions, policies, and practices that achieve justice in the present without compromising the ability of future generations to have the benefits of a just society. See Sentencing Project Director, Marc Mauer, discuss reducing prison populations in Texas in the face of budget constraints at: GuUNWEjc&feature=player_detailpage, or scan this code with the QR app on your smartphone or digital device to watch the video. The transcript of the interview can be read here: texas-legislature/82nd-legislative-session/ marc-mauer-the-tt-interview/ 1 EXHIBIT 1–4 Careers in Corrections 9 0 Academic teacher Field administrator 9 Activity therapy administrator Fugitive apprehension officer T counselor Business manager Human services Case manager Job placementS officer Psychologist Chaplain Mental health clinician Substance abuse counselor Chemical dependency manager Parole caseworker Unit leader Children’s services counselor Parole officer Victim advocate Classification officer Presentence investigator Vocational instructor Clinical social worker Probation officer Warden/superintendent Correctional officer Program officer Youth services coordinator Dietary officer Program specialist Youth supervisor Drug court coordinator Programmer/analyst Recreation coordinator Social worker Statistician Note: Consult the Appendix: Careers in Corrections at for the steps involved in career planning, developing employability and job readiness, and finding the right job. 8 PART 1 Introduction to Corrections New prisons mean jobs and can contribute greatly to the health of local economies. Some economically disadvantaged towns—from Tupper Lake, in the Adirondack Mountains of upstate New York, to Edgefield, South Carolina—have cashed in on the prison boom, having successfully competed to become sites for new prisons. Until recently, the competition for new prison facilities is reminiscent of the efforts states made years ago to attract new automobile factories and other industries. CRIME AND CORRECTIONS felony A serious criminal offense; specifically, one punishable by death or by incarceration in a prison facility for more than a year. misdemeanor A relatively minor violation of the criminal law, such as petty theft or simple assault, punishable by confinement for one year or less. infraction A minor violation of state statute or local ordinance punishable by a fine or other penalty, or by a specified, usually very short term of incarceration. CO1-2 The crimes that bring people into the American correctional system include felonies, misdemeanors, and minor law violations that are sometimes called infractions. Felonies are serious crimes. Murder, rape, aggravated assault, robM are felonies in all jurisdictions within the United bery, burglary, and arson States, although the names I for these crimes may differ from state to state. A general way to think about felonies is to remember that a felony is a L serious crime whose commission can result in confinement in a state or federal correctional institution for more than a year. E In some states a felony conviction can result in the loss of certain civil privileges. A few statesSmake conviction of a felony and the resulting incarceration grounds for uncontested divorce. Others prohibit convicted felony , offenders from running for public office or owning a firearm, and some exclude them from professions such as medicine, law, and police work. Huge differences inS the treatment of specific crimes exist among states. Some crimes classified as felonies in one part of the country may be misdemeanors in another.HIn still other states, they may not even be crimes at all! Such is the case with A some drug law violations and with social order offenses such as homosexual acts, prostitution, and gambling. N Misdemeanors, which compose the second major crime category, are N of the criminal law. They include crimes such relatively minor violations as petty theft (the theft of items of little worth), simple assault (in which O the victim suffers no serious injury and in which none was intended), Nthe possession of burglary tools, disorderly conbreaking and entering, duct, disturbing the peace, filing a false crime report, and writing bad checks (although the amount for which the check is written may determine the classification1of this offense). In general, misdemeanors can be thought of as any crime 9 punishable by a year or less in confinement. Within felony and misdemeanor categories, most states distinguish 0 of seriousness. Texas law, for example, estabamong degrees, or levels, lishes five felony classes 9 and three classes of misdemeanor—intended to guide judges in assessing the seriousness of particular criminal acts. The Texas penal code thenTspecifies categories into which given offenses fall. A third category of S crime is the infraction. The term, which is not used in all jurisdictions, refers to minor violations of the law that are less serious than misdemeanors. Infractions may include such violations of the law as jaywalking, spitting on the sidewalk, littering, and certain traffic violations, including the failure to wear a seat belt. People committing infractions are typically ticketed—that is, given citations—and released, usually upon a promise to appear later in court. Court appearances may be waived upon payment of a fine, which is often mailed in. Measuring Crime Two important sources of information on crime for correctional professionals are the FBI’s Uniform Crime Reporting Program (UCR) and the CHAPTER 1 Bureau of Justice Statistics’ National Crime Victimization Survey (NCVS). Corrections professionals closely analyze these data to forecast the numbers and types of correctional clients to expect in the future. The forecasts can be used to project the need for different types of detention and rehabilitation services and facilities. Corrections correctional clients Prison inmates, probationers, parolees, offenders assigned to alternative sentencing programs, and those held in jails. The Crime Funnel Not all crimes are reported, and not everyone who commits a reported crime is arrested, so relatively few offenders enter the criminal justice system. Of those who do, some are not prosecuted (perhaps because the evidence against them is insufficient), others plead guilty to lesser crimes, and others are found not guilty. Some who are convicted are diverted from further processing by the system or may be fined or ordered to counseling. Hence, the proportion of criminal offenders who eventually enter the correctional system is small, as Exhibit 1–5 shows.14 M EXHIBIT 1–5 The Crime Funnel 1,000 Serious crimes I L E S 500 , crimes Unreported S 400 H crimes Unsolved A N Prosecution N 8 Diversion or O other outcome N 23 500 Crimes reported to police Arraignment 100 Felony defendants Pre-trial release Dismissed 58 Released 42 Detained 1 Acquittal 1 9 0 9 4 Trials T S 69 Prosecuted Conviction and sentencing 65 Guilty pleas 68 Convicted 56 Felony 11 Misdemeanor 3 Convictions 24 Prison 24 Jail 17 Probation 3 Other Source: Derived from Thomas H. Cohen and Tracey Kyckelhahn, Felony Defendants in Large Urban Counties, 2006 (Washington, DC: Bureau of Justice Statistics, 2010). 9 10 PART 1 Introduction to Corrections CORRECTIONS AND THE CRIMINAL JUSTICE SYSTEM CO1-3 criminal justice The process of achieving justice through the application of the criminal law and through the workings of the criminal justice system. Also, the study of the field of criminal justice. criminal justice system The collection of all the agencies that perform criminal justice functions, whether these are operations or administration or technical support. The basic divisions of the criminal justice system are police, courts, and corrections. EXHIBIT 1–6 Corrections is generally considered the final stage in the criminal justice process. Some aspects of corrections, however, come into play early in the process. Keep in mind that although the term criminal justice can be used to refer to the justice process, it can also be used to describe our system of justice. Criminal justice agencies, taken as a whole, are said to compose the criminal justice system. The components of the criminal justice system are (1) police, (2) courts, and (3) corrections. Each component, because it contains a variety of organizations and agencies, can be termed a subsystem. The subsystem of corrections, for example, includes prisons, agencies of probation and parole, jails, and a variety of alternative programs. The process of criminal M justice involves the activities of the agencies that make up the criminal justice system. The process of criminal justice begins when a crime isI discovered or reported. Court decisions based L on the due process guarantees of the U.S. Constitution require that specific steps be taken in the justice process. Although E steps varies among jurisdictions, the description the exact nature of those that follows portrays S the most common sequence of events in response to serious criminal behavior. Exhibit 1–6, which diagrams the American , criminal justice system, indicates the relationship among the stages in the criminal justice processing of adult offenders. The Adult Criminal Justice System Entry into the system S H A N N O N Out of Out of system Out of system system Released without prosecution Released without prosecution Charge dropped 9 or 0 dismissed Booking Initial T appearance 1 Unsolved or not arrested Crime reported to or discovered by police Prosecution and pretrial procedures Felonies Out of system Charge dropped or dismissed 9 Investigation Arrest S Information Preliminary hearing Grand jury Refusal to indict Out of system Bail or detention Misdemeanors Procedures vary among jurisdictions Petty offenses Information CHAPTER 1 Corrections Entering the Correctional System The criminal justice system does not respond to all crime because most crimes are not discovered or reported to the police.15 Law enforcement agencies learn about crimes from the reports of citizens, through discovery by a police officer in the field, or through investigative and intelligence work. Once a law enforcement agency knows of a crime, the agency must identify and arrest a suspect before the case can proceed. Sometimes a suspect is found at the scene; other times, however, identifying a suspect requires an extensive investigation. Often no one is identified or apprehended—the crime goes unsolved. If an offender is arrested, booked, and jailed to await an initial court appearance, the intake, custody, confinement, and supervision aspects of corrections first come into play at this stage of the criminal justice process. Prosecution and Pretrial ProcedureM I After an arrest, law enforcement agencies present information about the case and about the accused to the prosecutor, who decides whether to file L formal charges with the court. If no charges are filed, the accused must be E filing them. Such a released. The prosecutor can also drop charges after choice is called nolle prosequi; and when it happens, S a case is said to be “nolled” or “nollied.” , A suspect charged with a crime must be taken before a judge or magistrate without unnecessary delay. At the initial appearance, the judge or EXHIBIT 1–6 (continued) Out of system Judicial procedures Charge dismissed Out of system Acquitted Arraignment Trial S H A Sentencing and corrections N NProbation O Pardon N and Sentencing Revocation Out of system Capital punishment clemency Guilty plea Reduction of charge Out of system Out of system Charge dismissed Acquitted Arraignment Trial Guilty plea 1 9 0 Appeal 9 T S Prison Habeas corpus Parole Revocation Probation Sentencing Out of system Revocation Fine Jail Nonpayment 11 12 PART 1 Introduction to Corrections The Offender Speaks Visit to see this feature. adjudication The process by which a court arrives at a final decision in a case. arraignment An appearance in court prior to trial in a criminal proceeding. nolo contendere A plea of “no contest.” A no-contest plea may be used by a defendant who does not wish to contest conviction. Because the plea does not admit guilt, however, it cannot provide the basis for later civil suits. magistrate informs the accused of the charges and decides whether there is probable cause to detain him or her. Often defense counsel is also assigned then. If the offense charged is not very serious, the determination of guilt and the assessment of a penalty may also occur at this stage. In some jurisdictions, a pretrial-release decision is made at the initial appearance, but this decision may occur at other hearings or at another time during the process. Pretrial release on bail was traditionally intended to ensure appearance at trial. However, many jurisdictions today permit pretrial detention of defendants accused of serious offenses and deemed dangerous, to prevent them from committing crimes in the pretrial period. The court may decide to release the accused on his or her own recognizance, into the custody of a third party, on the promise of satisfying certain conditions, or after posting a financial bond. Conditions of release may be reviewed at any later time while charges are still pending. In many jurisdictions, the initial appearance may be followed by a M preliminary hearing. The main function of this hearing is to determine I whether there is probable cause to believe that the accused committed a crime within the jurisdiction of the court. If the judge or magistrate does L not find probable cause, the case is dismissed. However, if the judge finds E a belief, or if the accused waives the right to a probable cause for such preliminary hearing, the S case may be bound over to a grand jury. A grand jury hears evidence against the accused, presented by the , whether there is sufficient evidence to cause the prosecutor, and decides accused to be brought to trial. If the grand jury finds sufficient evidence, it submits an indictment to the court. S use grand juries. Some require, instead, that the Not all jurisdictions prosecutor submit anHinformation (a formal written accusation) to the court. In most jurisdictions, misdemeanor cases and some felony cases proAan information. Some jurisdictions require indictceed by the issuance of ments in felony cases. N However, the accused may choose to waive a grand jury indictment and, instead, accept service of an information for the crime. N O Judicial Procedures N Adjudication is the process by which a court arrives at a decision in a case. The adjudication process involves a number of steps. The first is arraignment. Once an indictment or information is filed with the trial court, 1 for arraignment. If the accused has been detained the accused is scheduled without bail, corrections 9 personnel take him or her to the arraignment. At the arraignment, the accused is informed of the charges, advised of the 0 rights of criminal defendants, and asked to enter a plea to the charges. If the accused pleads guilty or pleads nolo contendere (accepts a pen9 alty without admitting guilt), the judge may accept or reject the plea. If T the plea is accepted, no trial is held and the offender is sentenced at this Sdate. The plea may be rejected if, for example, the proceeding or at a later judge believes that the accused has been coerced. If this occurs, the case may proceed to trial. Sometimes, as the result of negotiations between the prosecutor and the defendant, the defendant enters a guilty plea in expectation of reduced charges or a light sentence. Nolo contendere pleas are often entered by those who fear a later civil action and who therefore do not want to admit guilt. If the accused pleads not guilty or not guilty by reason of insanity, a date is set for trial. A person accused of a serious crime is guaranteed a trial by jury. However, the accused may ask for a bench trial, in which the judge, rather than a jury, serves as the finder of fact. In both instances, the prosecution and defense present evidence by questioning witnesses, and CHAPTER 1 the judge decides issues of law. The trial results in acquittal or conviction of the original charges or of lesser included offenses. A defendant may be convicted at trial only if the government’s evidence proves beyond a reasonable doubt that the defendant is guilty, or if the defendant knowingly and voluntarily pleads guilty to the charges. Sentencing and Sanctions After a guilty verdict or guilty plea, sentence is imposed. In most cases, the judge decides on the sentence, but in some states, the sentence is decided by the jury, particularly for capital offenses, such as murder. To arrive at an appropriate sentence, a court may hold a sentencing hearing to consider evidence of aggravating or mitigating circumstances. In assessing the circumstances surrounding a criminal act, courts often rely on presentence investigations by probation agencies or other designated authorities. Courts may also consider victim impact M statements. The sentencing choices available to judges and juries frequently include I one or more of the following: • • • • L the death penalty; E incarceration in a prison, a jail, or another confinement facility; community service; S probation, in which the convicted person is not, confined but is subject to certain conditions and restrictions; • fines, primarily as penalties for minor offenses; and S financial • restitution, which requires the offender to provide compensation to the victim. H In many states, mandatory minimum sentencing A laws require that persons convicted of certain offenses serve a minimum prison term, which the judge must impose and which may not be reduced byNa parole board or by “good-time” deductions. N After the trial, a defendant may request appellate review of the convicO affected the defention to see whether there was some serious error that dant’s right to a fair trial. In some states, the defendant N may also appeal the sentence. At least one appeal of a conviction is a matter of right. Any further appeal (to a state supreme court or in the case of federal 1 court convictions, to the U.S. Supreme Court) is discretionary, which means that the higher 9 court may or may not choose to hear the further appeal. After losing all 0 of state remedies), their available direct appeals (also known as exhaustion state prisoners may also seek to have their convictions reviewed collater9 ally in the federal courts via a writ of habeas corpus. In states that have the death penalty, appeals of death sentences are usually T automatic, and extensive federal habeas corpus review often takes place before the sentence of S death is actually carried out. The Correctional Subsystem After conviction and sentencing, most offenders enter the correctional subsystem. Before we proceed with our discussion, it is best to define the term corrections. As with most words, a variety of definitions can be found. In 1967, for example, the President’s Commission on Law Enforcement and Administration of Justice wrote that corrections means “America’s prisons, jails, juvenile training schools, and probation and parole machinery.” It is “that part of the criminal justice system,” said the commission, “that the public sees least of and knows least about.”16 Corrections 13 14 PART 1 Introduction to Corrections Years later, in 1975, the National Advisory Commission on Criminal Justice Standards and Goals said in its lengthy volume on corrections, “Corrections is defined here as the community’s official reactions to the convicted offender, whether adult or juvenile.”17 The commission noted that “this is a broad definition and it suffers . . . from several shortcomings.” We can distinguish between institutional corrections and noninstitutional corrections. A report by the Bureau of Justice Statistics (BJS) says that institutional corrections “involves the confinement and rehabilitation of adults and juveniles convicted of offenses against the law and the confinement of persons suspected of a crime awaiting trial and adjudication.”18 BJS goes on to say that M Jody Arias on the witness stand in 2013. She was convicted of killing her lover, Travis Alexander. He had been shot in the face, stabbed 29 times, and had his throat slashed. Who decides what happens to defendants after they enter the correctional system? institutional corrections That aspect of the correctional enterprise that “involves the incarceration and rehabilitation of adults and juveniles convicted of offenses against the law, and the confinement of persons suspected of a crime awaiting trial and adjudication.” noninstitutional corrections (also community corrections) That aspect of the correctional enterprise that includes “pardon, probation, and parole activities, correctional administration not directly connectable to institutions, and miscellaneous [activities] not directly related to institutional care.” corrections All the various aspects of the pretrial and postconviction management of individuals accused or convicted of crimes. correctional institutions are prisons, reformatories, jails, I houses of correction, penitentiaries, correctional farms, workhouses, reception centers, diagnostic centers, industrial L schools, training schools, detention centers, and a variety E of other types of institutions for the confinement and correction of convicted adults or juveniles who S are adjudicated delinquent or in need of supervision. [The term] also includes facilities for the detention of adults and juveniles , awaiting trial or hearing. accused of a crime and According to BJS, noninstitutional corrections, which is sometimes called community corrections , includes “pardon, probation, and parole S activities, correctional administration not directly connectable to instituH [activities] not directly related to institutional tions, and miscellaneous care.” A As all these definitions show, in its broadest sense, the term corrections N following components, as well as the process of encompasses each of the interaction among them: N • • • • • • • • • • • • • • the purpose and O goals of the correctional enterprise; jails, prisons, correctional institutions, and other facilities; N probation, parole, and alternative and diversionary programs; federal, state, local, and international correctional offices and 1 agencies; counseling, educational, health care, nutrition, and many other 9 services; 0 correctional clients; 9 corrections volunteers; corrections professionals; T fiscal appropriations S and funding; various aspects of criminal and civil law; formal and informal procedures; effective and responsible management; community expectations regarding correctional practices; and the machinery of capital punishment. When we use the word corrections, we include all of these elements. Fourteen elements, however, make for an unwieldy definition. Hence, for purposes of discussion, we will say that corrections refers to all the various aspects of the pretrial and postconviction management of individuals CHAPTER 1 Corrections 15 EXHIBIT 1–7 American Correctional Association Public Correctional Policy on the Role of Corrections The overall role of corrections is to enhance public safety and social order. Adult and juvenile correctional systems should: • • • • • • implement court-ordered sanctions and provide supervision of those accused of unlawful behavior prior to and after adjudication in a safe and humane manner; offer the widest range of correctional programs that are based on exemplary practices, supported by research and promote pro-social behavior; provide gender- and culturally-responsive programs and services for preadjudicated and adjudicated offenders that will enhance successful reentry to the community and that are administered within the least restrictive environment consistent with public, staff and offender safety; address the needs of victims of crime; Mto ensure that they routinely review correctional programs and reentry services are addressing the needs of offenders, victims, and the community; and I collaborate with other professions to improve and strengthen correctional services and to support the reduction of crime and recidivism. L Source: Copyright © American Correctional Association. Reprinted with permission. E S , accused or convicted of crimes. Central to this perspective is the recognition that corrections—although it involves a variety S of programs, services, facilities, and personnel—is essentially a management activity. Rather than stress the role of institutions or agencies, this H definition emphasizes the human dimension of correctional activity—especially A the efforts of the corrections professionals who undertake the day-to-day tasks. Like any N other managed activity, corrections has goals and purposes. Exhibit 1–7 N details the role of corrections as identified by the American Correctional Association (ACA). O CorrectionsNThe The Societal Goals of ACA statement about the purpose of corrections is addressed primarily to corrections professionals. It recognizes, however, that the fundamental purpose of corrections “is to enhance social order and public safety.”1In any society, social order and public safety depend on effective social 9control. Some forms of social control take the form of customs, norms, and what sociologists 0 refer to as mores (‘mȯr-,āz). Mores are behavioral standards that embody a group’s values. Violation of these standards is a9serious wrong. They generally forbid such activities as murder, rape, and robbery. Folkways, in T contrast, are time-honored ways of doing things. Although folkways carry the force of tradition, their violation is unlikely to threaten the survival of S the group. Societal expectations, whatever form they take, are sometimes enacted into law. The criminal law, also called penal law, is the body of rules and regulations that define public offenses, or wrongs committed against the state or society, and specify punishments for those offenses. Social control, social order, and public safety are the ultimate goals of criminal law. The correctional subsystem is crucial in enforcing the dictates of the law because the rewards and punishments it carries out play a significant role in society’s control of its members. Visit or scan this code with the QR app on your smartphone or digital device and listen to an interview with Faye S. Taxman, director of the Center for Advancing Correctional Excellence at George Mason University, as she speaks about how corrections can deter future crime. mores Cultural restrictions on behavior that forbid serious violations—such as murder, rape, and robbery—of a group’s values. folkways Time-honored ways of doing things. Although they carry the force of tradition, their violation is unlikely to threaten the survival of the social group. criminal law (also penal law) That portion of the law that defines crimes and specifies criminal punishments. 16 PART 1 Introduction to Corrections Occupy Wall Street demonstrators confront members of the New York Police Department during a demonstration in the city in 2012. What role does the criminal justice system play in the maintenance of social order? M I L E S , CO1-4 profession An occupation granted high social status by virtue of the personal integrity of its members. PROFESSIONALISM IN CORRECTIONS S Only a few decades ago, some writers bemoaned the fact that the field Hachieved professional status. Happily, much has of corrections had not changed over the pastAhalf century. By 1987, Bob Barrington, who was then the executive director of the International Association of CorrecN to proclaim, in a discussion about prisons, that tional Officers, was able “correctional facilitiesN . . . run smoothly and efficiently for one basic reason: the professional and forward-thinking attitudes and actions of the O correctional officers employed.”19 N Some writers on American criminal justice have said that the hallmark of a true profession is “a shared set of principles and customs that transcend self-interest and speak to the essential nature of the particular calling or trade.”201 This definition recognizes the selfless and ethical nature of professional9work. Hence, “professionals have a sense of commitment to their professions that is usually not present among those in occupational groups.”021 Work within a profession is viewed more as a “calling” than as a mere 9 way of earning a living. “Professionals have a love for their work that is above that of employment merely to receive T a paycheck.”22 Although it is important to keep formal definitions in mind, for our S purposes, we will define a profession as an occupation granted high social status by virtue of the personal integrity of its members. We can summarize the attitude of a true professional by noting that it is characterized by the following: • a spirit of public service and interest in the public good; • the fair application of reason and the use of intellect to solve problems; • self-regulation through a set of internal guidelines by which professionals hold themselves accountable for their actions; • continual self-appraisal and self-examination; CHAPTER 1 Corrections 17 Offices of the American Correctional Association (ACA) in Alexandria, Virginia. The ACA is a leading proponent of professionalism in corrections. What does corrections professionalism entail? M I L E S , • an inner sense of professionalism (i.e., honor, self-discipline, S commitment, personal integrity, and self-direction); • adherence to the recognized ethical principles of Hone’s profession (see the Ethics and Professionalism box in this chapter); and • a commitment to lifelong learning and lifelongA betterment within the profession. N N that foster proMost professional occupations have developed practices fessionalism among their members. Standards and Training O N Historically, professional corrections organizations and their leaders have recognized the importance of training. It was not 1until the late 1970s, however, that the American Correctional Association (ACA) Commission 9 The commission on Accreditation established the first training standards. did the following: 0 • specified standards for given positions within corrections; 9 • identified essential training topics; T • set specific numbers of hours for preservice (120) and annual S in-service training (40); and • specified basic administrative policy support requirements for training programs.23 Following ACA’s lead, virtually every state now requires at least 120 hours of preservice training for correctional officers working in institutional settings; many states require more. Probation and parole officers are required to undergo similar training in most jurisdictions, and correctional officers working in jails are similarly trained. Through training, new members of a profession learn the core values and ideals, the basic knowledge, and the accepted practices central to the profession. Setting training standards ensures that the education is 18 PART 1 Introduction to Corrections Ethics and Professionalism American Correctional tion Code of Ethics Associa- 1. Members shall respect and protect the civil and legal rights of all individuals. 2. Members shall treat every professional situation with concern for the welfare of the individuals involved and with no intent to gain personally. 3. Members shall maintain relationships with colleagues to promote mutual respect within the profession and improve the quality of service. 4. Members shall make public criticism of their colleagues or their agencies only when warranted, verifiable, and constructive. 5. Members shall respect the importance of all disciplines within the criminal justice system and work to improve cooperation with each segment. 6. Members shall honor the public’s right to information and share information with the public to the extent permitted by law subject to individuals’ right to privacy. 7. Members shall respect and protect the right of the public to be safeguarded from criminal activity. 8. Members shall refrain from using their positions to secure personal privileges or advantages. 9. Members shall refrain from allowing personal interest to impair objectivity in the performance of duty while acting in an official capacity. 10. Members shall refrain from entering into any formal or informal activity or agreement that presents a conflict of interest or is inconsistent with the conscientious performance of duties. 11. Members shall refrain from accepting any gifts, services, or favors that are or appear to be improper or imply an obligation inconsistent with the free and objective exercise of professional duties. 12. Members shall clearly differentiate between personal views/statements and views/statements/positions made on behalf of the agency or Association. 13. Members shall report to appropriate authorities any corrupt or unethical behaviors for which there is sufficient evidence to justify review. 14. Members shall refrain from discriminating against any individual because of race, gender, creed, national origin, religious affiliation, age, disability, or any other type of prohibited discrimination. 15. Members shall preserve the integrity of private information; they shall refrain from seeking information on individuals beyond that which is necessary to implement responsibilities and perform their duties; members shall refrain from revealing nonpublic information unless expressly authorized to do so. 16. Members shall make all appointments, promotions, Mand dismissals in accordance with established civil serI vice rules, applicable contract agreements, and individLual merit, rather than furtherance of personal interests. 17. Members shall respect, promote, and contribute to a Eworkplace that is safe, healthy, and free of harassment Sin any form. ,Adopted by the Board of Governors and Delegate Assembly in August 1994. Source: Copyright © American Correctional Association. Reprinted with permission. S Ethical Dilemma 1–1: In light of tight state H budgets and overcrowded prisons, should governors use A their authority to provide early release to some inmates? If so, N under what circumstances? For more information, go to Ethical Dilemma 1–1 at N Ethical Dilemma 1–2: You are the warden of O the only medium security prison in your state. Your nephew N is sentenced to serve 10 years in your institution. Using the ACA Code of Ethics as a guide, determine what ethical issues you will face. For more information, go to Ethical 1 1–2 at Dilemma 9 Ethical Dilemma 1–3: One of your fellow correctional officers accepts candy and snacks from one of 0 the inmates. She doesn’t ask for the snacks, nor does she do any9favors for the inmate. Should you report this activity? Will T you report it? Using the ACA Code of Ethics, determine the ethical issues, if any, involved in this behavior. S For more information, go to Ethical Dilemma 1–3 at Ethical Dilemmas for every chapter are available online. uniform. Standards also mandate the teaching of specialized knowledge. Standards supplement training by doing the following: • setting minimum requirements for entry into the profession; • detailing expectations for those involved in the everyday life of correctional work; and • establishing basic requirements for facilities, programs, and practices. CHAPTER 1 From the point of view of corrections professionals, training is a matter of personal responsibility. A lifelong commitment to a career ensures that those who think of themselves as professionals will seek the training needed to enhance their job performance. Corrections 19 The Staff Speaks Visit to see this feature. Basic Skills and Knowledge In 1990, the Professional Education Council of the American Correctional Association developed a model entry test for correctional officers. The test was intended to increase professionalism in the field and to provide a standard criminal justice curriculum.24 The council suggested that the test could act “as a quality control measure for such education, much as does the bar exam for attorneys.” The standard entry test was designed to “reveal the applicant’s understanding of the structure, purpose, and method of the police, prosecution, courts, institutions, probation, parole, community service,M and extramural programs.” It was also designed to “test for knowledge of various kinds of I corrections programs, the role of punitive sanctions and incapacitation, L and perspective on past experience and current trends.” More recently, Mark S. Fleisher of Illinois StateEUniversity identified four core traits essential to effective work in corrections.25 The traits are S as follows: , • Accountability. “Correctional work demands precision, timeliness, accountability and strong ethics.” Students may drift into patterns of irresponsibility during their college years. Once they become S their work correctional officers, however, they need to take seriously. H • Strong writing skill. Because correctional officers must complete a A huge amount of paperwork, they need to be able to write well. They should also be familiar with the “vocabulary ofNcorrections.” • Effective presentational skills. “A correctional N career requires strong verbal skills and an ability to organize presentations.” Effective O inmates, and verbal skills help officers interact with their peers, superiors. N • A logical mind and the ability to solve problems. Such skills are essential to success in corrections because problems arise daily. 1 officer. Being able to solve them is a sign of an effective In sum, we can say that a corrections professional9is a dedicated person of high moral character and personal integrity who 0 is employed in the field of corrections and takes professionalism to heart. He or she under9 stands the importance of standards, training, and education and the need to be proficient in the skills required for success in the correctional enterT prise. The corrections professional recognizes that professionalism leads S and to a higher to the betterment of society, to enhanced social order, quality of life for all. corrections professional A dedicated person of high moral character and personal integrity who is employed in the field of corrections and takes professionalism to heart. Standard-Setting Organizations A number of standard-setting professional associations in the field of corrections have developed models of professionalism. Among them are the American Correctional Association (ACA), the American Probation and Parole Association (APPA), and the American Jail Association (AJA). Standard-setting organizations like these offer detailed sets of written principles for correctional occupations and corrections administration. The ACA, the APPA, and the AJA, for example, all have developed standards to guide training and to clarify what is expected of those working professional associations Organized groups of like-minded individuals who work to enhance the professional status of members of their occupational group. 20 PART 1 Introduction to Corrections Education is an important component of any successful profession. Shown here are three educational institutions offering undergraduate programs in criminal justice—two with a corrections emphasis. What role does the American Correctional Association see for higher education in advancing the corrections profession? M I L E S , S H A N N O N 1 9 0 in corrections. Moreover, 9 many professional associations have developed codes of ethics, outlining what is moral and proper conduct. Some of these T chapters. codes will appear in later Correctional associations also offer training, hold meetings and semiS certification A credentialing process, usually involving testing and career development assessment, through which the skills, knowledge, and abilities of correctional personnel can be formally recognized. nars, create and maintain job banks, and produce literature relevant to corrections. They sometimes lobby legislative bodies in an attempt to influence the development of new laws that affect corrections. Future chapters will present ACA policies. The ACA policies are important because they guide the development of training and because they influence the work environment of many agencies and institutions. In 1999, the ACA, through its national Commission on Correctional Certification, established a program for certifying correctional staff, from line officers to executive leaders. Certification is part of a process called credentialing that focuses specifically on the individual. Its counterpart is accreditation, a formal process that highlights the quality of a facility CHAPTER 1 Corrections 21 in an effort to ensure that it meets health, safety, and other correctional standards. Accreditation is discussed in more detail in Chapter 13. ACA certification began officially in January 2000 when the first Certified Corrections Executive (CCE) application was accepted by the ACA. The first CCE examination was administered in August 2000.26 There are four categories of ACA Certified Corrections Professional (CCP), extending from those who work at the highest organization levels to personnel employed at the line level, working directly with offenders. Those categories are (1) Certified Corrections Executive (CCE), (2) Certified Corrections Manager (CCM), (3) Certified Corrections Supervisor (CCS), and (4) Certified Corrections Officer (CCO). Applicants for certification must pass a 200-item multiple-choice examination, document their corrections experience, show compliance with the ACA’s Code of Ethics, and meet minimum requirements for formal education. Educational requirements increase with each certification level. While a high school M diploma or equivalent is required of those seeking CCO certification, CCS I a two-year college and CCM certification seekers are required to hold degree (or its equivalent), while those applying for certification at the CCE L level must hold a four-year college degree (or equivalent). According to E the opportunity the ACA, the organization’s certification program creates for a lifetime of progressive professional achievement. SAnyone successfully completing the certification process is designated as a Certified Corrections Professional (CCP).27 Recertification happens ,at three-year intervals and requires a specified number of continuing education contact hours. The purpose of the ACA Professional Certification Program is “to S certification prouphold standards for competent practice.” Moreover, vides an opportunity “for staff to be recognized as H qualified correctional practitioners.” Like the ACA, the AJA, through its five-memberA Jail Manager Certification Commission (JMCC), offers a program for the N certification of jail administrators, managers, and supervisory personnel. The first Certified N Jail Managers (CJMs) were recognized in 1997.28 Education O N Education is another component, in addition to basic job skills and jobspecific training, of true professionalism. Training, by itself, can never 1 make one a true professional because complex decision-making skills are essential for success in any occupation involving 9intense interpersonal interaction—and they can be acquired only through general education. Education builds critical-thinking skills, it allows the0application of theory and ethical principles to a multitude of situations that 9 are constantly in flux, and it provides insights into on-the-job difficulties. T Correctional education that goes beyond skills training is available primarily from two- and four-year colleges that offerScorrections curricula and programs of study (see Exhibit 1–8). Courses in corrections are also typically found in undergraduate and graduate programs in criminal justice. The day will come when at least a two-year degree will be required for entry into the corrections profession. EVIDENCE-BASED CORRECTIONS (EBC) Corrections professionalism today includes recognition of the importance of scientific studies of corrections, referred to as evidence-based corrections (EBC). Evidence-based corrections is focused on determining what works evidence-based corrections (also evidence-based penology) The application of social scientific techniques to the study of everyday corrections procedures for the purpose of increasing effectiveness and enhancing the efficient use of available resources. 22 PART 1 Introduction to Corrections EXHIBIT 1–8 American Correctional Association Public Correctional Policy on Higher Education The field of corrections, in cooperation with higher education, should contribute to the improvement of the professional practice of corrections. Academic programs concerned with criminal justice, juvenile justice and corrections should: • • • • • • • • • provide a pool of qualified candidates for correctional service, and assist in the delineation of dimensions of work responsibilities that may emerge as a result of changing social, economic, political and technological trends; promote understanding, both for correctional practitioners and for the public at large, of the complex social, ethical, political and economic factors that influence all areas of corrections; challenge assumptions about crime and corrections, and stimulate change when change is needed; partner with criminal justice, juvenile justice and corrections organizations to promote and support ethical standards in research, planning and evaluation in all areas; engage in public service related to corrections, including informational programs, volunteer programs and opportunities for training, such as internships and practicums to enhance the relationship between the academic community and correctional M practitioners; encourage colleges and universities to provide opportunities for research and the publication of research findings; I support, through program and faculty development, the evolution of corrections as a distinct professional discipline; implement programs in corrections at the associate degree level thatL can serve as a minimum requirement for full professional status as a correctional employee; and partner with correctional agencies to promote and facilitate learningE initiatives for employees. Source: Copyright © American Correctional Association. Reprinted with permission. CO1-5 cost-benefit analysis A systematic process used to calculate the costs of a program relative to its benefits. Programs showing the largest benefit per unit of expenditure are seen as the most effective. Sus Sus usan an Tur urneer, r, dir ireecto cto torr of the h Cen e te t r foor E id Ev iden encce ce-B Basedd Cor orre reeccttions nss att th the he Unniv i errsity si tyy of Ca Calil fo forrnia, ia, Ir ia Irvi vine ine ne.. Tu Turneeerr iss sh show own wn at thhe Ora Oran ange g Cou ount n y (C Calliiffor orni niaa)) jai ail.l.l What haat is eviid ev idennce c -b -bas aseed ed cor orre rect ctiions ct ns?? S , in correctional settings; Sthat is, what correctional programs are effective in reducing recidivism and in preventing future crimes. H One important component of EBC is cost-benefit analysis, which seeks to assess the effectiveness of correctional approaches relative to their A costs. While evidence-based corrections is a theme of this text, another N in corrections. As you will see, the two themes theme is economic realities go hand-in-hand. N In any discussion of evidence-based corrections (also known as evidenceO based penology), it is important to remember that the word evidence refers to scientific evidence, N not to criminal evidence. Corrections professionals who adhere to an evidence-based philosophy acknowledge the problemsolving potential of social science research methods, read correctional publications and journals,1and keep abreast of the latest findings in their field. The beginning of the evidence-based movement in 9 corrections can be traced to the 1997 publication of a 0 report to the U.S. Congress, entitled Preventing lengthy Crime: 9 What Works, What Doesn’t, What’s Promising.29 The report, known as a meta-analysis because it T more than 500 previously completed studies of assessed various S crime prevention programs, looked at the effectiveness of correctional programs in seven different settings: families, police, community, place security, labor markets, schools, and the criminal justice system. Researchers discovered that a number of the evaluated programs could be declared successful. Successful efforts became known as what works programs defined as those that are reasonably certain to reduce recidivism. Other programs were found likely to fail to reduce recidivism and were listed in the category of what does not work. Finally, some programs, which fell into a middle ground, were termed promising. CHAPTER 1 In 2008, the National Institute of Corrections (NIC) awarded a grant to address evidence-based decision making in local criminal justice agencies to the Center for Effective Public Policy, in partnership with other groups. The goal of the ongoing initiative is to build a systemwide framework that will result in a useful evidence-based decision-making model. The model is intended to help criminal justice policymakers by providing them the information, processes, and tools needed to achieve measurable reductions in pretrial misconduct and in postconviction reoffending. The principal product of the initial phase of the NIC initiative was the 2010 publication of A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems.30 As the initiative continues to unfold, the NIC and its collaborators are seeking to create and fund pilot projects to demonstrate the value of approaches that are supported by research and that produce positive and measurable outcomes. The NIC is an agency within the federal Bureau of Prisons that provides assistance to federal, M state, and local corrections agencies. It has offices in Washington, D.C., I and Aurora, Colorado. Also in 2010, under the direction of Assistant L U.S. attorney general Laurie O. Robinson, the Office of Justice Programs (OJP), an arm of the E Evidence IntegraU.S. Department of Justice, announced an agencywide tion Initiative, called E2I. Like the NIC partnership, S E2I is an ongoing effort to integrate science and research into OJP’s programs. The initiative also seeks to generate quality evidence in the ,form of research and statistical evaluations. Most importantly, according to Robinson, “We are working to move evidence into practice by funding evidence-based S programs.”31 Evidence-based corrections is an exciting new development in the corH rections field, and many other agencies, institutions, and organizations A Among them is are beginning to emphasize the use of scientific evidence. the Center for Evidence-Based Corrections at the University of California, N Irvine. The center stresses the use of scientific studies in corrections as useN ful in the creation of evidence-based policy. Evidence-based policy, says Owell-informed decithe center, “is an approach that helps people make sions about policies and programs by putting the best N available evidence from research at the heart of policy development and implementation.”32 This approach, says the center, “stands in contrast to opinion-based policy, which relies heavily on either the selective use of 1 evidence . . . or on the untested views of individuals or groups, often inspired by ideological 9 views and speculative conjecture.” Finally, in 2005 the University of California, Irvine, announced the 0 creation of its Center for Evidence-Based Corrections. The center seeks “to put science before politics when managing state9correctional populations,” and to help “corrections officials make policy T decisions based on scientific evidence.”33 S and is discussed Evidence-based corrections helps to inform this book in a number of the chapters that follow. SOCIAL DIVERSITY IN CORRECTIONS The corrections profession faces a number of social issues that are of special concern to Americans today. Contemporary issues include questions about the purposes and appropriateness of punishment in general and the acceptability of capital punishment in particular; the usefulness of alternative or nontraditional sanctions; the privatization of correctional facilities; and the rights and overall treatment of prisoners. At the forefront of Corrections 23 Visit ebcp.pdf or scan this code with the QR app on your smartphone or digital device and read Evidence-Based Correctional Practices, a paper that introduces some important concepts in the field of evidence-based corrections. CO1-6 24 PART 1 Introduction to Corrections racism Social practices that explicitly or implicitly attribute merits or allocate value to individuals solely because of their race. today’s issues are those involving concerns about gender, race, ethnicity, and other forms of social diversity. While a number of these issues are discussed in later chapters, this brief section provides definitions of some of the terms that will be discussed and suggests some structure for what is to follow. Some terms, such as race, are not easy to define. Historical definitions of race have highlighted some supposed biological traits, such as skin color, hair type, or shape of the skull and face. Eighteenth-century European physical anthropologists distinguished between white, black, and Asian (or “yellow”) races. The notion of race, however, is now generally recognized as a social construct and is not seen as an objective biological fact. Moreover, racial distinctions have blurred throughout American society, which has long been characterized as a melting pot. Nonetheless, when asked, the majority of Americans today still identify themselves as members of a particular racial group. M To say that race is a social construct means that racial distinctions are I not mean, however, that such distinctions are culturally defined. It does without consequences.LOn the contrary, great social significance is often attached to biological or other indicators of race, and race plays a crucial role in social relations.ERacism, which is also socially constructed, can be the result. Racism hasSbeen defined as social practices that explicitly or implicitly attribute merits or allocate value to members of racially catego, rized groups solely because of their race.34 In the field of corrections, as in other social endeavors, racism (rather than race itself) is the real issue because it can lead to forms of racial discrimination, including inequities in S those working in corrections, and to unfairness in hiring and promotion for the handling of inmates Hor other correctional clients because of their race. Considerable overlap exists between the concept of race and that of ethA usage, both terms imply the notion of lineage, or nicity. In contemporary biological and regionalNas well as cultural background and inheritance. Of the two, however, ethnicity is most closely associated with cultural heritage. N Members of an ethnic group generally share a common racial, national, Ocultural origin. Hence, from an ethnic perspective, religious, linguistic, and a person might identify N himself or herself as Hungarian, even though he or she has never lived in Hungary, does not speak Hungarian, and knows little of the history of the Hungarian nation. Ethnic differences can lead to serious consequences as 1 prison gangs built around ethnicity demonstrate. 9 0 9 T S LaDonna H. Thompson (left), Kentucky Commissioner of Corrections, Colette Peters (middle), Oregon Director of Corrections, and Dora Schriro (right), Director of the Commissioner of Corrections for New York City. In recent years, the number of women working in corrections has increased significantly. Do you think that gender bias exists within the correctional career field today? CHAPTER 1 At first blush, the term gender seems more straightforward than race or ethnicity because it relates to differences between the sexes. In fact, many critical issues that concern correctional administrators today reflect a rapid increase in the number of women entering correctional service. For many years, corrections was a male-dominated profession. Although the correctional process has always involved some women, historically most women in the profession have attended to the needs of the small number of females held in confinement. It wasn’t until the 1970s that women began to enter the corrections professions in significant numbers. Many went to work in facilities that housed males, where they soon found themselves confronting gender bias from an entrenched macho culture. Today, women working in correctional facilities largely have been accepted, as evidenced by the fact their proportion is more than double the proportion of female law enforcement officers: Thirty-five percent of M correctional officers in the United States are women, while only 13 perI however, women cent of police officers are female. As Exhibit 1–9 shows, working in corrections tend to be concentrated inLthe lower ranks and are underrepresented in supervisory positions. According to the National Center for Women in Policing, women of color holdE12.9 percent of corrections positions, 9.7 percent of top command positions, S and 9.1 percent of supervisory positions.35 , diversity—although Race, ethnicity, and gender are all aspects of social diversity in society extends to many other areas as well, such as economics, religion, education, intellectual ability, and politics. Keep in mind, as you read through this textbook, that in the field ofScorrections diversity issues can be described from four perspectives: (1)Has they impact individual correctional clients, (2) as they determine correctional populations and trends, (3) as they affect the lives and interests ofAthose working in the field of corrections, and (4) as they change the structure N and functioning of correctional institutions, facilities, and programs. EXHIBIT 1–9 N O Corrections Personnel by Gender N and Rank 90% 80% 70% 65% 60% 50% 40% 55% 45% 35% 29% 30% 1 971% 0 9 T S 20% 10% 0% Juvenile facilities Line operations Supervisory Women Men Sources: Carl Nink, Women Professionals in Corrections: A Growing Asset (Centerville, UT: MTC Institute, 2008); and American Correctional Association, 2005 Directory of Adult and Juvenile Correctional Departments, Institutions, Agencies and Probation and Parole Authorities (Alexandria, VA: ACA, 2006). Corrections 25 [3] SENTENCING To Punish or to Reform? CHAPTER OBJECTIVES After completing this chapter you should be able to do the following: M I L E S , S H A N N O N 2 Name the seven goals of criminal sentencing. 3 List and explain the sentencing options in general use today. 4 Explain what a model of criminal sentencing is and identify models in use today. 5 Describe three-strikes laws and their impact on the correctional system. 6 Identify and explain some major issues related to fair sentencing. 1 9 0 9 We will not punish a man because he hath offended, but that he may offend no T the past, but to the future; for it is not more; nor does punishment ever look to S thing be guarded against in time to the result of a passion, but that the same come. “ “ 1 Describe sentencing philosophy and identify the central purpose of criminal punishment. —Seneca, the younger, Roman Philosopher, 3 b.c.–a.d. 65 In 2013, the Washington, D.C.-based Sentencing Project released its annual survey of developments in sentencing policy and practice. Entitled The State of Sentencing 2012, the report noted that several states have been reducing services in many areas as they face potential cuts in federal funding and in state tax revenues.1 “In recent years,” the report noted, “reducing prison populations with the goal of controlling correctional costs has been a salient reason” for sentencing reform. State lawmakers in 24 states, said the report, had adopted more than 40 policies designed to “downscale prison populations” and eliminate “barriers to reentry while promoting effective approaches to public safety.” Sentencing is a court’s imposition of a penalty onM a convicted offender. A sentence is the penalty imposed. I This chapter concerns the nature, history, purpose, L and philosophy of criminal sentencing. One of the most crucial issues surrounding sentencing E is whether to punish or to reform. The punish-or-reform S debate has a long history and continues to concern many people today. , We turn now to an sentencing The imposition of a criminal sanction by a sentencing authority, such as a judge. sentence The penalty a court imposes on a person convicted of a crime. examination of the history of sentencing philosophy. S H A N SENTENCING: PHILOSOPHY ANDN GOALS Philosophy of Criminal Sentencing O N Western society has a long tradition of punishing criminal offenders. Historically, offenders were banished, exiled, killed, or tortured. Corporal, or physical, punishments became common during the Middle Ages, replacing 1 such as flogging executions as the preferred penalty. Physical punishments and mutilation, though severe in themselves, deterred 9 rampant use of the death penalty. Eventually, as we shall see in later chapters, imprisonment 0 corporal punishand a variety of other sentencing alternatives replaced ments as criminal sanctions. 9 Contemporary sentencing of offenders is still intimately associated with T seen as deserving historical notions of punishment. Crimes are frequently of punishment. We often hear it said that the criminal S must “pay a debt to society” or that “criminals deserve to be punished.” John Conrad puts it another way: “The punishment of the criminal is the collective reaction of the community to the wrong that has been done.”2 Conrad goes on to say, “It is the offender’s lot to be punished.” Philosophers have long debated why a wrongful act should be punished. Many social scientists suggest that criminal punishment maintains and defends the social order. By threatening potential law violators and by making the lives of violators uncomfortable, they say, punishments reduce the likelihood of future or continued criminal behavior. Still, one might ask, instead of punishing offenders, why not offer them psychological treatment or educate them so that they are less prone CO3-1 social order The smooth functioning of social institutions, the existence of positive and productive relations among individual members of society, and the orderly functioning of society as a whole. 55 56 PART 1 Introduction to Corrections to future law violation? The answer to this question is far from clear. Although criminal sentencing today has a variety of goals, and educational and treatment programs are more common now in corrections, punishment still takes center stage in society’s view. Some writers, such as Conrad, have suggested that society will always need to punish criminals because punishment is a natural response to those who break social taboos.3 Others disagree, arguing that an enlightened society will choose instead to reform lawbreakers through humanitarian means. CO3-2 A crowded city street. Many social scientists say that criminal punishments help maintain social order. What would a society without order be like? revenge Punishment as vengeance; an emotional response to real or imagined injury or insult. The Goals of Sentencing In 2010, New York state officials refused to let Nushawn Williams out of Erie County’s Wende Correctional Facility under the state’s civil confinement statute. The law, aimed primarily at Mpredatory sex offenders, permits judges to order certain inmates held after the expiration of their I sentences if releasing them would present a danger Lto the public. Williams was 22 years old in 1999 when he was sentenced to 4 to 12 years in prison Efor statutory rape and two counts of reckless Sendangerment. Williams, a convicted drug dealer from Chautauqua County, New York, had been , accused of infecting as many as 103 teenage girls and young women with the AIDS virus in a series drugs-for-sex encounters.4 At trial, prosecuSof tors were able to show that Williams had sex with Hthe women while knowing he was HIV-positive. who kept a journal of his many “conAWilliams, quests,” was originally charged with one count of Nreckless endangerment for each sexual encounter Nand with first-degree assault for each partner who subsequently became infected. The statutory rape Oconviction stemmed from his having had sex with Na 13-year-old girl who later tested positive for the AIDS virus. During trial, prosecutor James Subjack told jurors, “It takes an individual with no 5 1regard for human life to do something like this.” The Williams case demonstrates a crucial com9ponent of contemporary sentencing philosophy: 0that people must be held accountable for their actions and for the harm they cause. From this per9spective, the purpose of the criminal justice system Tis to identify persons who have acted in intentionharmful ways and (where a law is in place) to Sally hold them accountable for their actions by imposing sanctions. Seen this way, our justice system is primarily an instrument of retribution. Sentencing, however, also has a variety of other purposes. As shown in Exhibit 3–1, the goals of sentencing are (1) revenge, (2) retribution, (3) just deserts (or the fact of deserving punishment), (4) deterrence, (5) incapacitation, (6) rehabilitation or reformation, and (7) restoration. Revenge One of the earliest goals of criminal sentencing was revenge. Revenge can be described as both an emotion and as an act in response to victimization. Victims sometimes feel as though an injury or insult CHAPTER 3 Sentencing 57 EXHIBIT 3–1 Goals of Criminal Sentencing Goal Rationale Revenge Punishment is equated with vengeance and involves an emotional response to criminal victimization. Retribution Punishment involves a “settling of scores” for both society and the victim. Victims are entitled to “get even.” Just deserts Offenders are morally blameworthy and deserving of punishment. Punishment restores the moral balance disrupted by crime. Deterrence Punishment will prevent future wrongdoing by the M offender and by others. Punishment must outweigh the benefits gained by I wrongdoing. Incapacitation L Some wrongdoers cannot be changed and need to be segregated from society. E Society has the responsibility to protect S law-abiding citizens from those whose behavior cannot be , controlled. Rehabilitation or Society needs to help offenders learn how to behave appropriately. Reformation Without learning acceptable behavior patterns, offenders will not be able to behave H appropriately. Restoration Crime is primarily an offense against A human relationships and secondarily a violation of a law. S N All those who suffered because of a crime should be restored to their previous sense ofNwell-being. O N requires punishment in return. When they act on that feeling, they have taken revenge. 1 it can still play an While we think of vengeance as a primitive need, important role in contemporary societies and even in modern justice sys9 tems. The “tit-for-tat” exchange of terrorist attacks for military incursions 0 as this book goes between the Palestinians and Israelis that is taking place to press is one example of a highly charged emotional 9 situation in which calls for revenge seem to play an important—and sometimes guiding— T 9/11 attacks been role. Similarly, had the terrorists who perpetrated the captured (instead of dying in the suicide attacks), there S can be little doubt that many Americans would have sought revenge on the perpetrators through our justice system—as was done with Zacarias Moussaoui, the “twelfth highjacker,” who was in jail at the time of the 9/11 attacks. Retribution Retribution involves the payment of a debt to both the victim and society and, thus, atonement for a person’s offense. Historically, retribution was couched in terms of “getting even,” and it has sometimes been explained as “an eye for an eye, and a tooth for a tooth.” Retribution literally means “paying back” the offender for what he or she has done. Retribution is predicated on the notion that victims are entitled to reprisal. retribution A sentencing goal that involves retaliation against a criminal perpetrator. 58 PART 1 Introduction to Corrections Because social order suffers when a crime occurs, society is also a victim. Hence, retribution, in a very fundamental way, expresses society’s disapproval of criminal behavior and demands the payment of a debt to society. It is not always easy to determine just how much punishment is enough to ensure the debt is paid. just deserts Punishment deserved. A just deserts perspective on criminal sentencing holds that criminal offenders are morally blameworthy and are therefore deserving of punishment. deterrence The discouragement or prevention of crimes through the fear of punishment. specific deterrence The deterrence of the individual being punished from additional crimes. general deterrence The use of the example of individual punishment to dissuade others from committing crimes. pleasure-pain principle The idea that actions are motivated primarily by a desire to experience pleasure and avoid pain. Just Deserts Retribution is supported by many sentencing schemes today—although the concept is now often couched in terms of just deserts even though there is a difference between retribution and just deserts. The concept of just deserts de-emphasizes the emotional component of revenge by claiming that criminal acts are deserving of punishment, that offenders are morally blameworthy, and that they must be punished. In this way, just deserts restores the moral balance to a society wronged by crime. Andrew von Hirsch, who identified the rationales underlying criminal punishment, says thatM when someone “infringes the rights of others . . . he deserves blame [and that is why] the sanctioning authority is entitled to choose a response Ithat expresses moral disapproval: namely, punishment.”6 Hence, from La just deserts point of view, justice requires that punishments be imposed on criminal law violators. Of all the purposesEof punishment that are discussed here, only retribution and just deserts S are past oriented. That is, they examine what has already occurred (the crime) in an effort to determine the appropriate sentencing response. , Deterrence A third S goal of criminal sentencing is deterrence. Deterrence is the discouragement or prevention of crimes similar to the H is being sentenced. Unlike retribution and just one for which an offender deserts, deterrence is future A oriented in that it seeks to prevent crimes from occurring. Two forms of deterrence can be identified: specific and general. Specific deterrence N is the deterrence of the individual being punished from committing additional crimes. Long ago, specific deterrence was N achieved through corporal punishments that maimed offenders in ways O to commit similar crimes in the future. Spies that precluded their ability had their eyes gougedNout and their tongues removed, rapists were castrated, thieves had their fingers or hands cut off, and so on. Even today, in some countries that follow a strict Islamic code, the hands of habitual thieves are cut off as a1form of corporal punishment. General deterrence occurs when the punishment of an individual 9 serves as an example to others who might be thinking of committing a 0 them from their planned course of action. The crime—thereby dissuading pleasure-pain principle, 9 which is central to modern discussions of general deterrence, holds that actions are motivated primarily by the desire to T avoid pain. According to this principle, the threat experience pleasure and of loss to anyone convicted S of a crime should outweigh the potential pleasure to be gained by committing the crime. For punishment to be effective as a deterrent, it must be relatively certain, swiftly applied, and sufficiently severe. Certainty, swiftness, and severity of punishment are not always easy to achieve. The crime funnel, described in Chapter 1, demonstrates that most offenses do not end in arrest, and most arrests do not end in incarceration. Although it may not be easy for all offenders to get away with crime, the likelihood that any individual offender will be arrested, successfully prosecuted, and then punished is far smaller than deterrence advocates would like it to be. When an arrest does occur, an offender is typically released on bail, and, because of an overcrowded court system, the trial, if any, may not happen CHAPTER 3 Sentencing 59 until a year or so later. Moreover, although the severity of punishments has increased in recent years, modern punishments are rarely as severe as those of earlier centuries. Arguments over just how much punishment is enough to deter further violations of the criminal law rarely lead to any clear conclusion. Incapacitation Many believe that the huge increase in the number of correctional clients has helped lower the crime rate by incapacitating more criminals. Many of these criminals are behind bars, and others are on supervised regimens of probation and parole. Incapacitation restrains offenders from committing additional crimes by isolating them from free society. A recent report by the National Center for Policy Analysis, for example, observed that a “major reason for [the] reduction in crime is that crime has become more costly to the perpetrators. The likelihood of going to prison for committing any type of major crime has increasedMsubstantially.”7 The report claims that “the best overall measure of the potential cost to I a criminal of committing crimes is expected punishment.” Expected punishment, says the report, “is the number of days in L prison a criminal can expect to serve for committing a crime.” The center calculated expected E punishment by multiplying the median sentence imposed for each crime S convicted, and senby the probabilities of being apprehended, prosecuted, tenced. Crime rates are declining, says the report, because expected prison , stays are significantly longer today for every category of serious crime than two decades ago. The story with which this chapter began says thatSthe handling of correctional clients can stress state budgets. However, a number of studies have claimed to show that incapacitating offenders H through incarceration is cost-effective. Such studies conclude that imprisoning A certain types of offenders (especially career or habitual offenders) results in savings by N be likely to comeliminating the social costs of the crimes offenders would mit if they were not imprisoned. Those social costs include monetary loss, N medical costs of physical injury, and time lost from work. O to quantify the net One of the most frequently cited studies attempting costs of incarceration was done by Edwin Zedlewski. N 8 Zedlewski used a RAND Corporation survey of inmates in three states (Michigan, Texas, and California) to estimate the number of crimes each inmate would commit if not imprisoned. In the survey, the average1respondent reported committing anywhere from 187 to 287 crimes annually 9 just before being incarcerated. To calculate the cost associated with each crime, Zedlewski divided the total criminal justice expenditures in the0United States by the total number of crimes committed in the United States. 9 From this he concluded that the average crime “costs” $2,300. Multiplying $2,300 by the T a felon, Zedlewski 187 crimes estimated to be committed annually by calculated that society saves $430,100 per year for S each felon who is incarcerated. Figuring that incarceration costs society about $25,000 per prisoner per year, he concluded that prisons produce a cost-benefit return to society of 17 to 1 ($17 saved for every $1 spent)—leading him to strongly support increased incarceration. Three years after Zedlewski’s work, well-known criminologist John DiIulio performed a cost-benefit analysis using a survey of Wisconsin prisoners. The study, called “Crime and Punishment in Wisconsin,” led to the conclusion that prisons saved taxpayers in Wisconsin approximately $2 for every dollar they cost.9 Studies such as those by Zedlewski and DiIulio are part of the growing field of correctional econometrics. Correctional econometrics is the incapacitation The use of imprisonment or other means to reduce an offender’s capability to commit future offenses. The Offender Speaks Visit to see this feature. correctional econometrics The study of the cost-effectiveness of various correctional programs and related reductions in the incidence of crime. 60 PART 1 Introduction to Corrections The Staff Speaks Visit to see this feature. rehabilitation (also reformation) The changing of criminal lifestyles into lawabiding ones by “correcting” the behavior of offenders through treatment, education, and training. reintegration The process of making the offender a productive member of the community. As a goal of sentencing, incapacitation restrains offenders from committing more crimes by isolating them from society. Does this threat of social isolation encourage lawabiding behavior? study of the cost-effectiveness of various correctional programs and related reductions in the incidence of crime. Recent studies have identified a decreasing return associated with the expanded use of incarceration. A few years ago, for example, the Washington State Institute for Public Policy conducted an econometric study of how state incarceration rates affect county crime rates in Washington. Institute researchers concluded that “a 10 percent increase (or decrease) in the incarceration rate leads to a statistically significant 3.3 percent decrease (or increase) in crime rates.”10 The study noted, however, that diminishing returns “begin to erode the crime reduction effects as incarceration rates are increased.” Other research found that “the effect of prison growth on crime diminishes as the scale of imprisonment increases.”11 In fact, this second study stated that “when the incarceration rate reaches a certain point (the inflection point), a further increase in prison population actually produces an increase in crime.” M Rehabilitation or Reformation The goal of rehabilitation or I criminal lifestyles into law-abiding ones. Rehareformation is to change bilitation has been accomplished when an offender’s criminal patterns of L thought and behavior have been replaced by allegiance to society’s values. Rehabilitation focusesEon medical and psychological treatments and on social skills training, all S designed to “correct” the problems that led the individual to crime. , A subgoal of rehabilitation is reintegration of the offender with the community. Reintegrating the offender with the community means making the offender a productive member of society—one who contributes to the general well-beingS of the whole. Rehabilitation, which H became the focus of American corrections beginning in the late 1800s, led to implementation of indeterminate sentencing A practices (soon to be discussed), probation, parole, and a separate system N the 1970s, however, rehabilitation came under of juvenile justice. During harsh criticism. As American society experienced disruptions brought N about by economic change, the decline of traditional institutions, and fallO out from the war in Vietnam, conservatives blamed the rehabilitative ideal for being too liberal, N and liberals condemned it for providing an unfair basis for coercive action against disenfranchised social groups.12 About 1 9 0 9 T S CHAPTER 3 the same time, an influential and widely read study by Robert Martinson, which evaluated rehabilitation programs nationwide, reported that few, if any, produced real changes in offender attitudes.13 Dubbed the “nothing works doctrine,” Martinson’s critique of rehabilitation as a correctional goal led some states to abandon rehabilitation altogether or to de-emphasize it in favor of the goals of retribution and incapacitation. In other states, attempts at rehabilitation continued but were often muted. Today, in the face of a difficult economy, many state governments and private organizations are reembracing rehabilitation, emphasizing the cost savings that can result from lowering prison populations and successfully reintegrating past offenders into society. According to Francis T. Cullen and Paul Gendreau, it is time to give the rehabilitative ideal a second chance. They call for reaffirming rehabilitation. “Many [rehabilitative] programs fail to work,” say Cullen and Gendreau, “because they either are ill-conceived (not based on sound criminological theory) and/or have M no therapeutic integrity (are not implemented as designed).” “We would I out to be illiterate not be surprised,” they write, “if young children turned if their teachers were untrained, had no standardizedLcurriculum, and met the children once a week for half an hour.”14 Until recently, contend Cullen Ewere in such a state. and Gendreau, many correctional treatment programs Other writers hold that continued efforts at rehabilitation are mandaS tory for any civilized society as a moral obligation, not merely as an effort , potential of pristo save money. “In order to neutralize the desocializing ons,” says Edgardo Rotman, “a civilized society is forced into rehabilitative undertakings. These become an essential ingredient of its correctional system taken as a whole. A correctional system” withSno “interest in treatment,” says Rotman, “means . . . de-humanization and H regression.”15 Rehabilitation typically implies the notion of treatment in the belief that offenders who receive appropriate counseling,Apsychological treatment, psychiatric intervention, or drug therapy will be N less prone to repeat criminality. California’s Proposition 36, officially known as the Substance N Abuse Crime Prevention Act of 2000 (SACPA), is indicative of the return O voters in 2000, to rehabilitation now occurring. Passed by the state’s it became effective on July 1 of that year. The law’s N purpose, stated in Section 3(c), is to “enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse 1 and drug dependence through proven and effective drug treatment strategies.” It seeks to accomplish that goal by mandating probation for 9 any person convicted of a nonviolent drug possession offense, and it requires 0 participation in, and completion of, proven and effective community-based treatment pro9 grams as a condition of probation. According to a recent study of the social and financial T consequences of Proposition 36 by researchers at UCLA, the initiative had cost California S a net savmore than $600 million in its first two years.16 Nonetheless, ings resulted from diverting thousands of nonviolent drug offenders from prisons, saving the state $2.50 for every $1 spent on diversion. Researchers found a significant problem, however, in the fact that drug-related rearrest rates for offenders diverted from prison to treatment under the initiative was 48 percent higher than for those who remained in the criminal justice system.17 According to the researchers, Proposition 36 placed unmanageable burdens on residential drug treatment programs, resulting in relatively ineffective outpatient treatment for many clients who, prior to passage of the Proposition, would have been enrolled in inpatient programs instead. Sentencing 61 Career Profile 62 PART 1 Introduction to Corrections Erich Parsons Deputy Sheriff • Palm Beach County, Florida Erich Parsons is deputy sheriff with the Palm Beach County Sheriff’s Department in West Palm Beach, Florida. A 44-year-old Army veteran and grandfather of five, he attended Johnson Bible College in Knoxville, Tennessee, where he received a bachelor of arts degree, and has been an ordained minister since 1986. He has been with the department since 2000, working the midnight to 8 A.M. shift. Deputy Parsons had no educational background in law enforcement. While working in his family’s business in the late 1990s (as a glazier in the family glass factory), he tore his rotator cuff, and he says that during his stay in the hospital he became interested in the job. M “Part of my desire to move on to something of this caliber was the need for significance. I felt that even though I was comfortable where I wasI and who I was, I like challenges. I’m a kid from the streets—grew up fast. So my penchant L was to reach youth, and the training I took in theology was youth ministry–specific. I felt that my E as opposed to greater outreach perhaps would be those individuals in the county level the state level, that the street kids needed more than just the churchSsetting.” On a typical day, Deputy Parsons will handle unresolved issues from the previous shift; handle new arrests, fingerprints, and photographs; “and try to, maintain order as we’re doing all that,” he says. “I love my job,” he says. “My satisfaction is to know that I’ve done my job the best I S was able to do, with what was available to me.” restoration The process of returning to their previous condition all those involved in or affected by crime—including victims, offenders, and society. restorative justice A systematic response to wrongdoing that emphasizes healing the wounds of victims, offenders, and communities caused or revealed by crime. victim-impact statement A description of the harm and suffering that a crime has caused victims and survivors. “Even though I see the charges as they come in on the rough arrests, I try not to judge them. I know sometimes they’re in bad situations. I try to maintain the dignity of an individual. Usually they reciprocate, and say, ‘Thank you for treating me human.’” H A N the past few decades, a new goal of criminal senRestoration Over tencing, known as restoration, has developed. Restorative justice is based N on the belief that criminal sentencing should involve restoration and jusO tice for all involved in or affected by crime. N justice (or, as some agencies refer to it, comAdvocates of restorative munity justice or reparative justice) believe that crime is committed not just against the state but also against victims and the community. Restor1 concerned with repairing the harm to the victim ative justice is especially and the community. 9 Harm is repaired through negotiation, mediation, and empowerment rather than through retribution, deterrence, and punishment. A restorative0justice perspective allows judges and juries to consider victim-impact statements in their sentencing decisions. These are 9 descriptions of the harm and suffering that a crime has caused victims T among the efforts being introduced on behalf of and their survivors. Also victims and their survivors S are victim assistance and victim compensation programs. Advocates of restorative justice believe not only that the victim should be restored by the justice process but also that the offender and society should participate in the restoration process. To this end, efforts at restoration emphasize the successful reintegration of offenders into the community as well as victims’ rights and needs. Another aspect of involving offenders in restoration is having them actively address the harm they have caused. The system strives to accomplish this by holding them directly accountable and by helping them become productive, law-abiding members of their community.18 Restorative justice programs try to personalize crime by showing offenders the consequences of their behavior. CHAPTER 3 Sentencing 63 Restorative justice is based on the premise that because crime occurs in the context of the community, the community should be involved in addressing it. Particular restorative justice or community justice programs might use any of the following: (1) victim–offender mediation, (2) victim– offender reconciliation, (3) victim-impact panels, (4) restorative justice panels, (5) community reparative boards, (6) community-based courts, (7) family group conferences, (8) circle sentencing, (9) court diversion programs, and (10) peer mediation. Restorative justice seeks to restore the health of the community, repair the harm done, meet victims’ needs, and require the offender to contribute to those repairs. Thus, the criminal act is condemned, offenders are held accountable, offenders and victims are involved as participants, and repentant offenders are encouraged to earn their way back into the good graces of society. Restorative justice principles, developed by the Restorative Justice Consortium, are shown in Exhibit 3–2. M Not only is restorative justice having an impact on U.S. sentencing I practices (Exhibit 3–3), but also it is becoming influential internationally. A United Nations report on the international acceptance of restorative L justice principles in 35 member countries, for example, found that the E by both practiconcept has received considerable international attention tioners and policymakers who view it as an alternative S approach to more common criminal justice practices. According to the report, restorative justice is seen as offering promising concepts and ,options if taken as a supplement to established criminal justice practices. In general, says the report, restorative justice principles are seen as a complement to estabS lished justice systems and practices but not as a replacement for existing 19 systems. H A SENTENCING OPTIONS AND N N TYPES OF SENTENCES O Options Legislatures establish the types of sentences that canN be imposed. The U.S. CO3-3 Congress and the 50 state legislatures decide what is against the law and define crimes and their punishments in the jurisdictions in which they 1 have control. Sentencing options in wide use today include the following: 9 • fines and other monetary sanctions; 0 • probation; • alternative or intermediate sanctions such as day 9 fines, community service, electronic monitoring, and day reporting centers; T • incarceration; and S • death penalty. As punishment for unlawful behavior, fines have a long history. By the 5th century b.c., Greece, for example, had developed an extensive system of fines for a wide variety of offenses.20 Under our modern system of justice, fines are usually imposed as punishment for misdemeanors and infractions. When imposed on felony offenders, fines are frequently combined with another punishment, such as probation or incarceration. Fines are only one type of monetary sanction used today. Others include the court-ordered payment of the costs of trial, victim restitution, various fees, forfeitures, donations, and confiscations. Restitution consists of payments made by a criminal offender to his or her victim as compensation for restitution Payments made by a criminal offender to his or her victim (or to the court, which then turns them over to the victim) as compensation for the harm caused by the offense. 64 PART 1 Introduction to Corrections EXHIBIT 3–2 Restorative Justice Principles The following principles were developed by the Restorative Justice Consortium in order to provide a working basis for particular settings involved in the practice of restorative justice, including adult criminal justice, youthful offenders, schools, the workplace, prisons, and communities. 1. Principles relating to the interests of all participants a. Voluntary participation based on informed choice b. Avoidance of discrimination, irrespective of the nature of the case c. Access to relevant agencies for help and advice d. Ongoing access to various established methods of dispute resolution e. Processes that do not compromise the rights under the law of the participants f. Commitment not to use information in a way that may prejudice the interests of any participant in subsequent proceedings g. Protection of personal safety h. Protection of and support for vulnerable participants i. Respect for civil rights and the dignity of persons 2. Principles relating to those who have sustained harm or loss a. Respect for their personal experiences, needs, and feelings b. Acknowledgment of their harm or loss c. Recognition of their claim for amends d. Opportunity to communicate with the person who caused the harm or loss, if that person is willing e. Entitlement of victim to be the primary beneficiary of reparation 3. Principles relating to those who caused the harm or loss to others a. The opportunity to offer reparation, including before any formal requirement b. Reparation appropriate to the harm done and within the person’s capacity to fulfill it further harm, issues of public policy, or disagreement about the critical facts b. Avoidance of unfair discrimination by ensuring that rights under the law are not compromised c. Provision of a wide and flexible range of opportunities to enable those who have caused loss or harm to make amends 6. Principles relating to the judicial system a. A primary goal of repairing harm b. Restorative requirements that are fair, appropriate, and workable c. Opportunities for community reparation or reparation to Mothers who have suffered harm or loss when a restorative I requirement is appropriate but victims decline to participate L d. Enforcement of community reparation when a restorative E requirement is appropriate but those who have caused harm or loss decline to participate S e. Valuing of voluntary offers to repair harm or loss by those , who have caused it f. Privileged status of content of restorative meetings, subject to public interest qualifications S H Commitment to needs-based practice a. b. A Safeguarding of legal human rights c. The participation of restorative justice practitioners who N are seen to be neutral N The participation of restorative justice practitioners who d. Oact impartially e. Maintenance of neutrality and impartiality by N restorative justice practitioners who play no other role 7. Principles relating to restorative justice agencies in the case f. Commitment of restorative justice agencies to keep 1 confidential the content of restorative meetings, subject to 9 the requirements of the law c. Respect for the dignity of the person making amends g. Participant commitment to confidentiality about the 0 contents of restorative meetings 4. Principles relating to the interests of local community and society 9 Facilitation of the engagement of weaker parties in h. T negotiation a. The promotion of community safety and social harmony by learning from restorative processes and the taking of measures that are conducive to the reduction of crime or harm b. The promotion of social harmony through respect for cultural diversity and civil rights, social responsibility, and the rule of law c. Opportunity for all to learn mediation and other methods of nonviolent resolution of conflict 5. Principles relating to agencies working alongside the judicial system a. Settlement outside the judicial system, except when this is unworkable due to the level of harm done, the risk of i. Upholding of respectful behavior in restorative processes S j. Upholding of equality of respect for all participants in restorative processes, separating this from the harm done k. Engagement with good practice guidelines within the restorative justice movement l. Commitment by the agency to the use of constructive conflict resolution in general and of internal grievance and disciplinary procedures in specific m. Commitment to the accreditation of training, services, and practitioners n. Commitment to continually improved practice Source: Copyright © Restorative Justice Consortium. Used with permission. CHAPTER 3 Sentencing 65 EXHIBIT 3–3 American Correctional Association Public Correctional Policy on Sentencing The American Correctional Association actively promotes the development of sentencing policies that should: • • • • • • be based on the principle of proportionality. The sentence imposed should be commensurate with the seriousness of the crime and the harm done; be impartial with regard to race, ethnicity, and economic status as to the discretion exercised in sentencing; include a broad range of options for custody, supervision, and rehabilitation of offenders; be purpose-driven. Policies must be based on clearly articulated purposes. They should be grounded in M knowledge of the relative effectiveness of the various sanctions imposed in attempts to achieve these purposes; I encourage the evaluation of sentencing policy on an ongoing basis. The various sanctions should be monitored L to determine their relative effectiveness based on the purpose(s) they are intended to have. Likewise, monitoringE should take place to ensure that the sanctions are not S applied based on race, ethnicity, or economic status; recognize that the criminal sentence must be based on , multiple criteria, including the harm done to the victim, past criminal history, the need to protect the public, and the • • • • opportunity to provide programs for offenders as a means of reducing the risk for future crime; provide the framework to guide and control discretion according to established criteria and within appropriate limits and allow for recognition of individual needs; have as a major purpose restorative justice—righting the harm done to the victim and the community. The restorative focus should be both process and substantively oriented. The victim or his or her representative should be included in the “justice” process. The sentencing procedure should address the needs of the victim, including his or her need to be heard and, as much as possible, to be and feel restored to whole again; promote the use of community-based programs whenever consistent with public safety; and be linked to the resources needed to implement the policy. The consequential cost of various sanctions should be assessed. Sentencing policy should not be enacted without the benefit of a fiscal-impact analysis. Resource allocations should be linked to sentencing policy so as to ensure adequate funding of all sanctions, including total confinement and the broad range of intermediate sanction and communitybased programs needed to implement those policies. Source: Copyright © American Correctional Association. Reprinted with permission. S H A paid to the governthe harm caused by the offense. While fines are usually ment, restitution may be paid directly to the victim N (or paid to the court, which turns it over to the victim). Some innovative courts have ordered offenders to donate specified amounts to specifiedN charities in lieu of a fine.21 Restitution is an example of a restorative justice O sentencing option. With a sentence of probation, the convicted offender continues to live N restrictions on his in the community but must comply with court-imposed or her activity and freedom of movement. Alternative sanctions or intermediate sentencing options (which are discussed in detail in Chapters 4 and 5) usually combine probation with some other1punishment, such as community service or house arrest with electronic monitoring. A sentence 9 of incarceration, or total confinement away from the community, is used 0 when the community needs to be protected from further criminal activity 9 by an offender. The death penalty, or capital punishment, is the ultimate sentence. Exhibit 3–4 displays recent trends in fourTcorrectional options. Overlaid on the figure in the exhibit is a line showing the rate of change S As the chart shows, in correctional populations over the past few decades. correctional populations had been increasing until around 2010, when they finally started to decline. Types of Sentences A sentence is generally imposed by a judge. Sentencing responsibility can also be exercised by a jury or a group of judges, or it may be mandated by statute. Mandatory sentences are those that are required by law under certain circumstances—such as conviction of a specified crime or of a series of offenses of a specified type. Mandatory sentences may add prison time to sentences for offenders who carried weapons during the commission of mandatory sentences Those that are required by law under certain circumstances—such as conviction of a specified crime or of a series of offenses of a specified type. 66 Introduction to Corrections PART 1 EXHIBIT 3–4 Adults on Probation, in Jail, in Prison, or on Parole in the United States, 1980–2012 Annual percent change Population (in millions) 16 8,000,000 14 7,000,000 Population 2012 6,000,000 5,000,000 12 Probation 3,971,319 10 Parole 853,852 Annual percent change 4,000,000 8 3,000,000 6 2,000,000 1,000,000 0 1980 1985 1990 1995 M I L E S ,2000 Prison 1,571,013 Jail 735,601 4 2 0 –2 2005 2012 Source: Bureau of Justice Statistics Correctional Surveys, various years. presentence report (PSR) A report prepared by the probation department of a court that provides a social and personal history as well as an evaluation of a defendant as an aid to the court in determining a sentence. consecutive sentences Sentences served one after the other. concurrent sentences Sentences served together. S H their crimes, who usedA or possessed illegal drugs, or who perpetrated crimes against elderly victims. Such sentences allow judges no leeway in sentencing. Even when there isN no mandatory sentence, judges cannot impose just any sentence. They are N still limited by statutory provisions. They also are guided by prevailing sentencing goals. A judge usually considers a O This report, prepared by the probation departpresentence report (PSR). ment attached to a court, N is a social and personal history as well as an evaluation of the offender. Finally, judges’ sentencing decisions are influenced by their own personal convictions and characteristics. Once the sentence 1is chosen, the judge must decide how it will be served, especially if more than one sentence is being imposed. Sentences 9 can be consecutive or concurrent. Consecutive sentences are served one after the other. When0a person is convicted of multiple offenses, a judge might impose, for example, a sentence of 10 years for one offense and 9 20 years for another. If the sentences are to run consecutively, the offender will begin serving theTsecond sentence only after the first one expires. Concurrent sentences S are served together. If the sentences in the example are to run concurrently, the 10-year sentence will expire when the offender has served one-half of the 20-year sentence. The offender will then need to serve the remainder of the 20-year sentence before being released. When multiple sentences are imposed, most are ordered to be served concurrently. SENTENCING MODELS model of criminal sentencing A strategy or system for imposing criminal sanctions. A model of criminal sentencing is a strategy or system for imposing criminal sanctions. Sentencing models vary widely (see Exhibit 3–5). Over the past 100 years, a shift has occurred from what might be called a judicial CHAPTER 3 Sentencing 67 EXHIBIT 3–5 Sentencing Models Determinate Sentencing Sentencing to a fixed term of incarceration may be reduced by good time. Usually, explicit standards specify the amount of punishment and a set release date with no review by a parole board or other administrative agency. Postincarceration supervision may be part of the sentence. Indeterminate Sentencing Sentencing in which an administrative agency, generally a parole board, has the authority to release an incarcerated offender and to determine whether an offender’s parole will be revoked for violation of the conditions of release. In one form of indeterminate sentencing, the judge specifies only the maximum sentence length (a fixed term); the associated minimum is automatically implied but is not within the judge’s M the judge specidiscretion. In the more traditional form of indeterminate sentencing, fies maximum and minimum durations within limits set by statute. I The judge has discretion over the minimum and maximum sentences. L E Sentencing meets all the following conditions: (1) the appropriate S sentence for an offender in a specific case is presumed to fall within a range authorized by guidelines , adopted by a legislatively created sentencing body, usually a sentencing commission; Presumptive Guidelines Sentencing (2) judges are expected to sentence within the range or provide written justification for departure; and (3) the guidelines provide for review of the departure, usually by appeal to a higher court. Presumptive guidelines may employ determinate S or indeterminate sentencing structures. H Voluntary/Advisory Guidelines Sentencing A Recommended sentencing policies are not required by law.N They serve as a guide and are based on past sentencing practices. The legislature has not mandated their N use. Voluntary/advisory guidelines may use determinate or indeterminate sentencing structures. O N Mandatory Minimum Sentencing A minimum sentence is specified by statute for all offenders convicted of a particular crime or a particular crime with special circumstances (e.g.,1robbery with a firearm or selling drugs to a minor within 1,000 feet of a school). Mandatory minimums can be 9 Within an indeterused in both determinate and indeterminate sentencing structures. minate sentencing structure, the mandatory minimum requires the inmate to serve a 0 fixed amount of time in prison before being eligible for release with the approval of a parole board. Under a determinate sentence, the offender is required to serve a fixed 9 amount of time in prison before being eligible for release. T S model of sentencing to an administrative model. Judges generally have far less discretion in sentencing decisions today than they previously had. The majority of sentences imposed in American courts today follow legislative and administrative guidelines. Sentencing in 19th-century America involved mostly fines, probation, and “flat” prison sentences. Flat sentences specify a given amount of time to be served in custody and allow little or no variation from the time specified. A typical flat sentence might be stated as “five years in prison.” Flat sentences generally mean that an offender has to complete the sentence imposed and cannot earn an early release. Visit the-drug-laws-that-changed-how-we-punish or scan this code with the QR app on your smartphone or digital device to read or listen to a National Public Radio discussion of how New York’s 1970s-era Rockefeller drug laws changed the face of sentencing in America. flat sentences Those that specify a given amount of time to be served in custody and allow little or no variation from the time specified. 68 PART 1 Introduction to Corrections CO3-4 indeterminate sentence A sentence in which a judge specifies a maximum length and a minimum length, and an administrative agency, generally a parole board, determines the actual time of release. good time The number of days or months prison authorities deduct from a sentence for good behavior and for other reasons. determinate sentence (also fixed sentence) A sentence of a fixed term of incarceration, which can be reduced by good time. Indeterminate Sentencing By the close of the 19th century, sentencing reform in the United States began replacing the flat sentence with indeterminate sentences.22 At the time, the criminal justice system was coping with a rapidly expanding and increasingly diverse prison population, increased efficiency of police and courts, and other factors. Overcrowded prisons and the warehousing of inmates resulted.23 In an indeterminate sentence, the judge specifies a maximum length and a minimum length within limits set by statute, and a parole board determines the actual time of release. The parole board’s determination depends on its judgment of whether the prisoner has been reformed, has been cured, or has simply served enough time. An example of an indeterminate sentence is “5 to 10 years in prison.” A second form of indeterminate sentencing requires the judge to specify only the maximum sentence length with the associated minimum set by statute. Some states, for example, require an offender M to serve as little as one-quarter of the sentence before becoming eligible for parole. I With an indeterminate sentence, discretion is distributed, not only among L counsel, and judge, but also to prison officials the prosecutor, defense and the parole board, who have considerable influence over an offendE er’s length of stay. Prison officials have discretion over the amount of good time an inmate S earns, which can affect parole eligibility, the discharge date, or both. The , parole board decides the actual release date for most inmates. The result is a system of sentencing in which few people understand or can predict who will be imprisoned and for how long. Under indeterminate Ssentencing, punishments are made to fit the criminal rather than the crime. Proponents of indeterminate sentences assume H of individual deviation from the norm and that that crime is a product rehabilitation can be A achieved within a prison system designed to punish, not treat, inmates. They also assume that prison personnel have the N knowledge to impose treatment or to predict recidivism accurately enough to justify their discretion N regarding when an inmate should be released. The use of indeterminate sentences has prompted numerous accusations O as well as protests from inmate groups, penoloof disparity in sentencing gists, and other criticsN of the penal system. These protests have spurred a movement for sentencing reform. 1 Determinate Sentencing 9 A determinate sentence (also known as a fixed sentence) specifies a fixed 0 which can be reduced for good time served. The period of incarceration, term is generally used 9 to refer to the sentencing reforms of the late 1970s. Determinate sentences are generally based on the incapacitation and T deterrence goals of sentencing. The theory behind determinate sentencing is that criminals will S be off the streets for longer periods of time. The other advantage, supporters say, is that prisoners know when they will be released. In most determinate sentencing models, parole is limited or is replaced by the use of good-time credits. With good time, inmates are able to reduce their sentences by earning credits. The amount of the reduction depends on the number of credits earned. Good-time credits can be earned by demonstrating good behavior and not being “written up” for violating prison rules. They can also be earned by participating in educational programs, community service projects, or medical experiments. The procedure for earning credits and the number that can be earned vary from state to state. Prison administrators generally favor determinate sentencing and good-time credits because they aid in controlling prison populations. CHAPTER 3 Sentencing 69 Guideline Sentencing As we have seen, the sentences that judges impose are regulated by law. As part of the movement to eliminate sentencing disparities, some states, as well as the federal government, have enacted sentencing guidelines for judges to follow. The guidelines fall into two categories. Voluntary/Advisory Sentencing Guidelines Among the earliest guided sentencing innovations in the United States was the experiment with voluntary guidelines, also called advisory guidelines. These are recommended sentencing policies that are not required by law. Usually, they are based on past sentencing practices and serve as a guide to judges. Voluntary or advisory guidelines have had disappointing results because they are often not enforced and are sometimes ignored. More importantly, the guidelines are voluntary; judges can simply ignore them. A review of all the major studies conducted on voluntary and advisory M guidelines reveals low compliance by judges and, hence, little reduction in disparity.24 I Presumptive Sentencing GuidelinesL By the early 1980s, states had begun to experiment with the use of presumptive sentencing E guidelines. These models differ from determinate sentences and voluntary S or advisory guidelines in three respects. First, the guidelines are developed, not by the legislature, but by a sentencing commission that often repre, sents diverse interests, including private citizens as well as all segments of the criminal justice system. Second, the guidelines are explicit and highly structured, relying on a quantitative scoring instrument. S Third, the guidelines are not voluntary or advisory. Judges must adhere to the sentencing system or provide a written rationale for departure. H The forces stimulating presumptive sentencing guidelines were the same A as those that had driven the moves to determinate sentencing and volunN crowding. These tary or advisory guidelines: issues of fairness and prison concerns provided the impetus for states to adopt N guidelines, replace indeterminate sentencing with determinate sentencing, and abolish or O to adopt presumpreduce discretionary parole release. The first four states tive sentencing guidelines were Minnesota (1980),NWashington (1981), Pennsylvania (1982), and Florida (1983). The state of Washington’s Sentencing Reform Act (SRA) of 1981 (as 1 amended), for example, is based on a determinate sentencing model. The law mandated creation of a Sentencing Guidelines9Commission, which developed a set of sentencing guidelines “to ensure that offenders who 0 commit similar crimes and have similar criminal histories receive equiv25 schedules, which alent sentences.” The state’s presumptive sentencing 9 apply to all felonies committed in the state after June 30, 1984, are structured “so that offenses involving greater harm to aTvictim and to society result in greater punishment.” According to the Sentencing Guidelines S Commission, “The guidelines apply equally to offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or to a defendant’s previous criminal record.” As is typically the case in presumptive sentencing states, Washington’s guidelines specify a standard sentence range based on the seriousness of an offense combined with an offender’s criminal history “score.” In Washington State, a defendant’s criminal history includes his or her prior adult felony convictions in any state or federal court or in another country and dispositions in juvenile court. Misdemeanors are not counted except when related to current convictions of felony traffic offenses (e.g., driving under the influence of alcohol or drugs may figure into a defendant’s sentencing commission A group assigned to create a schedule of sentences that reflect the gravity of the offenses committed and the prior record of the criminal offender. 70 PART 1 Introduction to Corrections criminal history when felony convictions for crimes such as vehicular assault occur). Judges use forms provided by the state’s sentencing commission in calculating an offender’s score for sentencing purposes. Crimes representative of each “seriousness level” are shown in Exhibit 3–6. As in other presumptive sentencing states, in Washington judges may sentence offenders outside the standard ranges found in the state’s sentencing grid. Sentences that fall outside established guidelines, however, are not permitted if based solely on determinations of fact made by the sentencing judge—a limitation imposed by the U.S. Supreme Court in the 2004 case of Blakely v. Washington. In 2005, Washington’s sentencing law was changed to require that aggravating circumstances that might lead to sentencing enhancements be proved to a jury. Federal Sentencing Guidelines In the early 1980s, the U.S. Congress focused its attention on disparity in sentencing.26 Congress conM cluded that the sentencing discretion of federal trial judges needed boundI aries. The resulting legislation, termed the Sentencing Reform Act (SRA) 27 of 1984, created theLUnited States Sentencing Commission. The ninemember commission, first organized in October 1985, is a permanent E body charged with formulating and amending national sentencing guidelines. The commission’s S guidelines apply to all federal criminal offenses committed on or after November 1, 1987. Federal sentencing ,guidelines take into account a defendant’s criminal history, the nature of the criminal conduct, and the particular circumstances surrounding the offense. Congress required that all federal trial S in their sentencing decisions. Deviations from judges follow the guidelines the guidelines were permitted only when a judge provided a written justiH fication setting forth specific reasons as to why a sentence outside of the A range specified by the guidelines was appropriate. N Federal sentencing guidelines have been subject to change, and the commission may submit guideline amendments to Congress each year between N the beginning of the regular congressional session and May 1. Suggested O take effect 180 days after submission unless amendments automatically Congress rejects them.N Early challenges to the constitutionality of federal sentencing guidelines were resolved by the 1989 case of Mistretta v. United States, in which the U.S. Supreme Court upheld the 1984 SRA and ruled that Congress had 1 acted properly in delegating authority to the U.S. Sentencing Commission 9 in the creation of sentencing guidelines. In addition to creating 0 the U.S. Sentencing Commission, the SRA abolished parole for federal offenders sentenced under the guidelines. As a 9 imposed on convicted federal offenders today are consequence, sentences essentially the sentences T that will be served. Under federal law, however, inmates may earn up to 54 days of credit (time off their sentences) each S year for good behavior. sentencing enhancements Legislatively approved provisions that mandate longer prison terms for specific criminal offenses committed under certain circumstances (such as a murder committed because of the victim’s race or a drug sale near a school) or because of an offender’s past criminal record. The Legal Environment and Sentencing Guidelines A number of U.S. Supreme Court cases focused on the authority that judges retain in deciding to depart from sentencing guidelines and on the application of sentencing enhancements. In 1994, in the case of Nichols v. United States, the Court held that “an uncounseled misdemeanor conviction,” because no prison term was imposed, is valid when used to enhance punishment at a subsequent conviction. (An “uncounseled conviction” is one in which the defendant was not represented by an attorney.) CHAPTER 3 Sentencing EXHIBIT 3–6 State of Washington: Representative Crimes by Level of Seriousness Level of Seriousness XVI Aggravated Murder in the First Degreea XV First Degree Murder Homicide by Abuse First Degree Malicious Explosion XIV Second Degree Murder XIII Second Degree Malicious Explosion First Degree Malicious Placement of an Explosive XII First Degree Assault First Degree Rape XI First Degree Manslaughter Second Degree Rape X First Degree Child Molestation Indecent Liberties (with Forcible Compulsion) First Degree Kidnapping Leading Organized Crime IX Controlled Substance Homicide Inciting Criminal Profiteering S First Degree Robbery/Sexual Exploitation H Vehicular Homicide, by Being Under the A Influence of Intoxicating Liquor or Any Drug VIII First Degree Arson N Deliver or Possess with Intent to Deliver Methamphetamine O Hit and Run—Death N Second Degree Manslaughter First Degree Promoting Prostitution Vehicular Homicide, by the Operation of Any Vehicle in a Reckless Manner 1 VII VI a Level of Seriousness Representative Offense M I L E S , V Third Degree Child Molestation First Degree Custodial Sexual Misconduct Domestic Violence Court Order Violation First Degree Extortion Persistent Prison Misbehavior Possession of a Stolen Firearm Stalking IV Second Degree Arson Second Degree Assault Bribing a Witness Counterfeiting Knowingly Trafficking in Stolen Property Threats to Bomb III Third Degree Assault Second Degree Burglary Communication with a Minor for Immoral Purposes Criminal Gang Intimidation Harassment Intimidating a Public Servant Maintaining a Dwelling or Place for Controlled Substances Manufacture, Deliver, or Possess with Intent to Deliver Marijuana Patronizing a Juvenile Prostitute Possession of Incendiary Device Possession of Machine Gun or Short Barreled Shotgun or Rifle Tampering with a Witness II First Degree Computer Trespass Create, Deliver, or Possess a Counterfeit Controlled Substance Health Care False Claims Theft of Rental, Leased, or LeasePurchased Property (Valued at $1,500 or More) Unlicensed Practice of a Profession or Business I Attempting to Elude a Pursuing Police Vehicle False Verification for Welfare Forged Prescription Taking a Motor Vehicle Without Permission Unlawful Use of Food Stamps N First Degree Burglary 9 Drive-by Shooting Indecent Liberties (without Forcible 0 Compulsion) 9 Involving a Minor in Drug Dealing Use of a Machine Gun in CommissionTof a Felony First Degree Incest Intimidating a Judge Intimidating a Juror/Witness Theft of a Firearm S Representative Offense Aggravated murder in the first degree is first-degree murder under certain circumstances. Among them are (a) the victim was a law enforcement officer or firefighter performing his or her official duties; (b) the defendant was serving a term of imprisonment in a state institution at the time of the homicide; (c) the defendant solicited another person to commit the crime for pay, and so on. To learn the statutory elements of each of the offenses listed here, view Title 9 of the Revised Code of Washington (the state’s criminal law) online at Visit the state of Washington Sentencing Guidelines Commission at, where you can read the state’s online adult sentencing guidelines manual. The manual contains a comprehensive list of all felonies defined by state law along with their location in the sentencing grid. 71 72 PART 1 Introduction to Corrections Ralph Howard Blakely in Grant County (Washington) Superior Court on March 22, 2005. Blakely, made famous for his role in the 2004 U.S. Supreme Court case of Blakely v. Washington, was sentenced to 35 years in prison for plotting to have his ex-wife and daughter murdered.What did the Court rule in Blakely v. Washington,? In the 2002 case of United States v. Cotton, the Court found that sentences imposed by a federal judge were not improper even though the judge based those sentences on a quantity of drugs that he had estimated and that had not been alleged in the original indictment brought against the defendants. The Cotton defendants had been charged with conspiracy to distribute and to possess with intent to distribute a “detectable amount” of cocaine and cocaine base in the city of Baltimore. Under federal law, the penalty for such offenses is “not more than 20 years.”28 After the jury returned a finding of guilty, the judge made an independent finding of drug quantity (more than 500 grams of cocaine base) and then imposed enhanced penalties (up to life) as allowed under federal law. The judge’s finding, the Court concluded, was based on “overwhelming and uncontroverted evidence” that the defendants “were involved in a vast drug conspiracy.” In the far-reaching case of Apprendi v. New Jersey (2000), however, M the Supreme Court limited the fact-finding authority of state judges in I case involved Charles Apprendi, a New Jersey sentencing decisions. The defendant who had pleaded guilty to unlawfully possessing a firearm— L an offense that carried a prison term of 5 to 10 years under state law. E however, the judge found that Apprendi had Prior to imposing sentence, fired a number of shots S into the home of an African-American family living in his neighborhood. The judge further determined that Apprendi , the family and to convince them to move. Statehad done so to frighten ments made by Apprendi, said the judge, classified the shooting as a hate crime. The judge then applied a sentencing enhancement provision under S statute and sentenced Apprendi to 12 years in New Jersey’s hate crimes prison—2 years beyond H the 10-year maximum authorized by statute for the weapons offense to which he had confessed. Significantly, the senA the benefit of a jury-based fact-finding process tence was imposed without and with the judge alone N making the determination that a hate crime had taken place. In overturning the state court’s finding, the Supreme Court N reasoned that Apprendi’s due process guarantees were violated O when the judge—not a jury—made a factual determination that did not requireNproof beyond a reasonable doubt. In the words of the Court, “Under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other1than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to 9 beyond a reasonable doubt.” a jury, and proven In 2002, however, in the case of Harris v. U.S., the Court con0 cluded that “a fact increasing the mandatory minimum [but not extending the 9sentence beyond the statutory maximum], need not be alleged T in the indictment, submitted to the jury, or proved beyond a reasonable doubt.” S a judge was permitted to find aggravating factors Under Harris, by a preponderance of evidence and to decide whether they should be used to increase a sentence beyond the minimum specified by law. As long as the judge did not exceed the maximum sentence specified, he or she did not need to treat those factors as elements of the crime that must be proved to a jury. In 2013, however, the Harris decision was overruled in Alleyne v. U.S., in which the Justices reaffirmed the need to prove to a jury any “element” that increases the penalty for a crime. Blakely v. Washington (2004) built on the Court’s holding in Apprendi. In Blakely, the Court ruled that no criminal sentence in state courts can CHAPTER 3 be enhanced beyond the allowable maximum guideline for an offense unless the facts used to determine the enhanced sentence are found by a jury or the defendant waives the right to a jury or admits the facts in a guilty plea. In 2007, in the case of Cunningham v. California, the U.S. Supreme Court found that California’s determinate sentencing law (DSL) violated a defendant’s right to trial by jury because it placed sentence-elevating fact finding within the province of judges. In that case, a judge following the requirements of the DSL had sentenced John Cunningham to a term of 16 years in prison based on a posttrial sentencing hearing in which he identified six aggravating factors and only one mitigating factor. Cunningham had earlier been found guilty of the continuous sexual abuse of a child younger than 14. In 2005, in the combined cases of United States v. Booker and United States v. Fanfan, the U.S. Supreme Court turned its attention to the M constitutionality of federal sentencing practices that used what it called I “extra-verdict determinations of fact” in the application of sentencing enhancements. The combined cases raised two issues: (1) whether fact L finding done by judges under federal sentencing guidelines violates the E whether the guideSixth Amendment right to trial by jury and (2) if so, lines are themselves unconstitutional. Consistent Swith its findings in Blakely, the Court found that, on the first question, defendant Freddie , Booker’s drug trafficking sentence had been improperly enhanced under federal sentencing guidelines on the basis of facts found solely by a judge. Under a mandatory guidelines system, the Court said, a sentence cannot S neither admitted be increased based on facts found by a judge that were by the defendant nor found by a jury. Consequently, H Booker’s sentence was ruled unconstitutional and invalidated. On the second question, the Court did not strike down the federal guidelines, asAsome thought might happen. Instead, it held that the guidelines could beNtaken into consideration by federal judges during sentencing but that they should no longer N be regarded as mandatory. In effect, the combined decision in Booker and O advisory and gave Fanfan made the federal sentencing guidelines merely federal judges wide latitude in imposing punishments. N The result is that today federal judges must take the guidelines into account when sentencing, but they are no longer required to impose a sentence within the range prescribed by the guidelines. 1 The Court continues to clarify its decisions in the sentencing arena. In 9 the Court held that 2007, for example, in the case of Rita v. United States, federal appeals courts hearing challenges from defendants about prison 0 time may presume that federal criminal sentences are reasonable if they 9 the justices wrote, fall within U.S. sentencing guidelines.29 Significantly, that “even if the presumption increases the likelihood T that the judge, not the jury, will find ‘sentencing facts,’ it does not violate the Sixth Amendment.” A 2013 report submitted to Congress by the S U.S. Sentencing Commission found that “the sentencing guidelines remain the essential starting point for determining all federal sentences and continue to exert significant influence on federal sentencing trends over time.”30 In a study of actual sentencing practices, the commission found that “the rate at which courts impose sentences within the applicable guideline range [stood] at 53.9% during the most recent time period studied.” Congress has been reconsidering federal sentencing law in light of Booker. In the meantime, some expect the federal courts to be flooded with inmates appealing their sentences based on the Court’s findings in Booker. Sentencing 73 74 PART 1 Introduction to Corrections The Federal Fair Sentencing Act In 2010, President Barack Obama signed the federal Fair Sentencing Act (FSA) into law. The act reduced a previous disparity in the amounts of powder cocaine and crack cocaine specified by the federal sentencing guidelines and eliminated what had been a mandatory minimum sentence under federal law for simple possession of crack cocaine. As a result of the FSA, a first conviction for simple possession of any amount of crack cocaine, like simple possession of powder cocaine, is subject to a penalty range of zero to one year of imprisonment regardless of quantity. Prior to enactment of the FSA, federal sentencing guidelines drew a strong distinction between crack and regular (or powdered) cocaine and typically led to much stiffer sentences for anyone convicted of crack possession. Because many crack users come from the African American community, the disparity in previous law resulted in a disproportionate number of blacks being Mincarcerated for extended periods. Before passage of the FSA, blacks received longer sentences than whites, not because they I received differential treatment by judges but because they comprised the large majority of thoseLconvicted of trafficking in crack cocaine. The FSA’s provisions do not apply to people who were sentenced for E a federal crack offense prior to August 3, 2010. Consequently, in 2011, S another bill was introduced in the U.S. House 2012, and again in 2013, of Representatives to ,make the FSA’s changes to federal crack cocaine sentencing laws retroactive—that is, to apply them to people who had already been sentenced for crack offenses. The new bill is called the Fair Sentencing Clarification S Act (FSCA). Under FSCA, which has not yet become law, a motion for a crack sentence reduction would have to be H court, the Bureau of Prisons, or the defendant in made by the sentencing order to obtain a sentence A reduction for those already serving prison time. The research arm of the U.S. Sentencing Commission estimates that N prisons would be eligible to receive a reduced 12,835 offenders in federal sentence under the FSCA, N should it become law.31 Even if the FSCA never becomes law, however, the U.S. Sentencing O that “in the sound discretion of the court, a Commission has recognized reduction in the term N of imprisonment may be appropriate for previously President Barack Obama signs the Fair Sentencing Act into law on August 3, 2010. What is the purpose of the law? 1 9 0 9 T S CHAPTER 3 Sentencing 75 sentenced, qualified defendants.”32 The Commission also noted that “a reduced guideline range is sufficient to achieve the purposes of sentencing,” but that “such a discretionary reduction does not otherwise affect the lawfulness of a previously imposed sentence, does not authorize a reduction in any other component of the sentence, and does not entitle a defendant to a reduced term of imprisonment as a matter of right.”33 Mandatory Minimum Sentencing Mandatory minimum sentencing refers to the imposition of sentences required by statute for those convicted of a particular crime or a particular crime with special circumstances, such as robbery with a firearm or selling drugs to a minor within 1,000 feet of a school, or for those with a particular type of criminal history. By 1994, all 50 states had enacted one or more mandatory minimum sentencing laws,34 and Congress had enacted M numerous mandatory sentencing laws for federal offenders. Mandatory minimum sentencing rationales dominated the 1980s and early 1990s. I By the start of the 21st century, many states had adopted sentence L for violent offendenhancements, usually mandating longer prison terms ers with records of serious crimes. Mandatory sentence enhancements E aim to deter known and potentially violent offenders and to incapacitate S 35 Such sentence persistent criminals through long-term incarceration. enhancements have come to be known as three-strikes , laws (and, in some jurisdictions, two-strikes laws). Three-strikes laws vary in breadth. Some stipulate that both the prior S convictions and the current offense must be violent felonies; others require only that the prior felonies be violent. Some three-strikes laws count only H prior adult convictions; others permit consideration of juvenile adjudicaA law, an offender tions for violent crimes. Under California’s three-strikes who is convicted of a qualifying felony and has two Nprior qualifying felony convictions must serve a minimum of 25 years. The law also doubles N felony.36 prison terms for offenders convicted of a second violent mandatory minimum sentencing The imposition of sentences required by statute for those convicted of a particular crime or a particular crime with special circumstances, such as robbery with a firearm or selling drugs to a minor within 1,000 feet of a school, or for those with a particular type of criminal history. O Rationales Mandatory sentences have two goals—deterrence and N mandatory prison incapacitation. The primary purposes of modest terms (e.g., three years for armed robbery) are specific deterrence for 1 9 0 9 T S Many of today’s mandatory sentencing laws were passed in reaction to public outcries against especially violent or well-publicized criminal acts. Does mandatory sentencing fulfill the goals of deterrence and incapacitation? How do you think mandatory sentencing laws will fare in an increasingly difficult economic environment? 76 PART 1 Introduction to Corrections already-punished offenders, and general deterrence for prospective offenders. If the law increases the imprisonment rate, it also serves the goal of incapacitation, leaving fewer offenders free to victimize the population at large. The intent of three-strikes (and even two-strikes) laws is to incapacitate selected violent offenders with very long terms—25 years or even life. Mandatory sentencing laws have become highly politicized. By passing mandatory sentencing laws, legislators can convey that they deem certain crimes especially grave and that people who commit these crimes deserve, and can expect, harsh sanctions. Such laws typically represent a rapid and visible response to public outcries following heinous or well-publicized crimes. Impact Mandatory sentencing has had significant consequences that deserve close attention. Among them are its impact on crime and the operations of the criminal justice system. In today’s world of state budget challenges, it remains to beMseen whether mandatory sentencing laws will give way to discretionary sentencing schemes that might result in less prison I on correctional expenditures. time and increased savings L Crime Evaluations of mandatory minimum sentencing have focused on E committed with handguns and those related two types of crimes—those to drugs (the offensesSmost commonly subject to mandatory minimum penalties in state and federal courts). An evaluation of the Massachusetts , law that imposed mandatory jail terms for possession of an unlicensed handgun concluded that the law was an effective deterrent of gun crime, at least in the short term.37 S However, studies of similar laws in Michigan38 and Florida39 found H committed with firearms had been prevented. An no evidence that crimes evaluation of mandatory A sentence enhancements for gun use in six large cities (Detroit, Jacksonville, Tampa, Miami, Philadelphia, and Pittsburgh) Ndeterred homicide but not other violent crimes.40 indicated that the laws An assessment of New NYork’s harsh Rockefeller drug laws (which have since been substantially overhauled) was unable to support their claimed O crime in New York City.41 efficacy in deterring drug N The Criminal Justice System Today’s busy criminal courts rely on a high rate of guilty pleas to speed case processing and thus avoid logjams. Officials can 1 offer inducements to defendants to enter these pleas. At least in the short term, mandatory sentencing laws may disrupt estab9 lished plea-bargaining patterns by preventing a prosecutor from offering 0 than the new minimum) in exchange for a guilty a short prison term (less plea. However, unless policymakers enact the same mandatory sentences 9 for several related crimes, prosecutors can usually shift strategies and bargain on charges ratherTthan on sentences. Most state-level twoSand three-strikes laws leave judges no discretion to deviate from the sentences dictated by legislatures. Another central feature of such laws is the extraordinary length of the prison terms they require. Offenders serving life sentences in California and North Carolina under such legislation, for example, become eligible for parole only after serving 25 years, those in New Mexico after 30 years, and those in Colorado after 40 years. Three-strikes laws in some states mandate life without the possibility of parole. Two- and three-strikes laws came about in response to public concerns about crime and the growing belief that many serious offenders were being released from prison too soon.42 Proponents view such legislation as the best way to deal with the persistent, serious violent offender—the proverbial three-time loser. CHAPTER 3 Two- and three-strikes laws are a form of habitual offender statute. Although habitual offender laws have been on the books in a number of jurisdictions since at least the 1940s, the older laws were often geared to specific types of prior offenses, such as crimes of violence, sex offenses, or crimes perpetrated with guns. Moreover, most early habitual offender laws allowed enhanced sentences but did not make them mandatory as do two- and three-strikes legislation.43 THREE-STRIKES MODELS—WASHINGTON AND CALIFORNIA During the last decade of the 20th century, 26 states and the federal government enacted new habitual offender laws that fell into the three-strikes category.44 Washington State was the first of those to doMso.45 California soon followed with a considerably broader version of the three-strikes law. As I impact they would those laws were being implemented, people debated the have on the criminal justice systems of those states. Proponents predicted the L laws would curb crime and protect society by warehousing the worst offenders for a long time. Opponents argued that defendantsE facing lengthy mandatory sentences would be more likely to demand trials, S slowing the processing of cases, and that more offenders would serve long terms of incarceration, , states to rise.46 causing prison populations already at crisis levels in many Although they were enacted within months of each other amid the same “three-strikes-and-you’re-out” rallying cry and they count many of S the same offenses as strikes, the Washington and California laws differ in three important ways. First, in Washington, all H three strikes must be for felonies specifically listed in the legislation. Under A the California law, only the first two convictions must be from the state’s list of “strikeable” N drug offenses); any crimes (which include most violent offenses and many subsequent felony can count as the third strike. Second, N the California law contains a two-strikes provision, by which a person convicted of any felOis to be sentenced to ony after one prior conviction for a strikeable offense twice the term he or she would otherwise receive. There N is no two-strikes provision in the Washington law. Third, the sanctions for a third strike differ. The Washington statute requires a life term in prison without the possibility of parole for a person convicted for the third 1 time of any of the “most serious offenses” listed in the law. In California a “third-striker” has at least the possibility of being released after 25 9 years.47 California’s law came under attack for the seeming 0 ease with which offenders who commit relatively minor crimes can be sentenced to prison 9 for a long time. The law, however, found a powerful ally in the Supreme T Court of Appeals Court. In 2001, for example, the Ninth U.S. Circuit ruled in Andrade v. Attorney General of the State of California48 that S two consecutive 25-years-to-life sentences imposed on a California man, Leandro Andrade, who was twice caught shoplifting videotapes from a Kmart, constituted cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. On March 5, 2003, however, the U.S. Supreme Court overturned the lower court’s finding and ruled that Andrade’s two consecutive 25-yearsto-life sentences did not violate the Eighth Amendment’s proscription against cruel or unusual punishment.49 In effect, the Court held that it is not cruel and unusual punishment to impose a possible life term for a conviction of a nonviolent felony committed by a defendant with a history of serious or violent convictions. Sentencing 77 habitual offender statute A law that (1) allows a person’s criminal history to be considered at sentencing or (2) makes it possible for a person convicted of a given offense and previously convicted of another specified offense to receive a more severe penalty than that for the current offense alone. CO3-5 78 PART 1 Introduction to Corrections The Staff Speaks Visit to see this feature. In another 2003 case, Ewing v. California,50 the U.S. Supreme Court upheld the conviction and sentence of Gary Ewing under California’s three-strikes law. Ewing, who had a lengthy record of prior convictions, had received a 25-years-to-life sentence following his conviction for felony grand theft of three golf clubs. In writing for the Court, Justice Sandra Day O’Connor said that states should be able to decide when repeat offenders “must be isolated from society . . . to protect the public safety,” even when nonserious crimes trigger the lengthy sentence. In November 2012, California voters overwhelmingly approved Proposition 36, which mandated changes in their state’s three-strikes law.51 As a consequence, now only two categories of offenders can be sentenced as three-strikers: (1) those who commit new “serious or violent” felonies as their third offense and (2) previously released murderers, rapists, or child molesters who are convicted of a new third strike, even if it is not a “serious or violent” felony. Under the voter-approved proposition, M inmates sentenced under earlier versions of the law are allowed to petition I for early release. Estimates are that around 3,000 such inmates may soon be released. L E Impact on Local Courts and Jails S were first passed in Washington and California, When three-strikes laws some analysts projected , a much greater impact on local criminal justice systems in California because the California law had a much broader scope.52 They predicted that California courts would be overwhelmed as S defendants facing enhanced penalties demanded jury trials. The added time to process cases through trials and the reluctance of courts to grant H pretrial release to defendants facing long prison terms, they said, would cause jail populations A to explode as the number of jail admissions and the length of jail stays grew. N Early evidence from California supported these predictions. A review N of 12,600 two- and three-strikes cases from Los Angeles, for example, showed that two-strikes cases took 16 percent longer to process and threeO strikes cases 41 percent longer than nonstrike cases.53 In addition, strikes cases were three timesN as likely to go to trial as nonstrike felonies and four times as likely as the same types of cases before the law took effect. This effect led to a 25 percent increase in jury trials as well as an 11 percentage1 point rise in the proportion of the jail population awaiting trial, from 59 percent before the 9 law was enacted to 70 percent. According to more recent data, however, at least some California counties have learned how 0to handle the changes brought about by the law. A recent survey of eight 9California counties with populations of more than 1 million identified several that were successfully disposing of two- and T three-strikes cases early in the process.54 In addition, data from the Los S Department suggest that the pace of strikes cases Angeles County Sheriff’s coming into that system has slowed.55 Impact on State Prison Systems The impact of the Washington and California laws on state corrections departments has not been as severe as projected. Planners in Washington had expected that 40 to 75 persons would be sentenced under threestrikes provisions each year. The actual numbers, however, have been much lower. During the first three years the law was in effect, only 85 offenders—not the 120 to 225 projected—were admitted to the state prison system under the three-strikes law.56 CHAPTER 3 A similar overestimate of the impact the California law would have on prisons there was made. According to a 2010 report by the California state auditor, the cost of housing striker inmates “for the additional years they were sentenced to under the three strikes law represents a substantial liability to the State.”57 The auditor estimated that the additional years imposed by the three-strikes law amount to $19.2 billion in additional costs over the duration of the incarceration of the state’s current striker inmates. Even though the sheer number of cases affected by the law is significantly higher than that for any other state, the numbers are not as high as originally projected. Still, according to some experts, three-strikes laws have had a real impact on the California prison system. Such laws, they say, funnel increasingly older persons into correctional institutions and ensure that they will remain there for a very long time.58 The result is an inmate population that is getting older. The aging of America’s inmate population is discussed in more detail in Chapter 12. It should M be noted, however, that California’s recent move toward “realignment” I will shift more of the state’s sentenced felons into county jails and out of state-funded correctional facilities. The strategy, which began to be impleL mented in earnest in 2012, is seen as a way of reducing state expenditures E not be as great as on correctional clients. Even so, the cost savings might expected because the state has promised to at least partially fund the runS ning of jails throughout the state’s 58 counties. , The Current Applicability of Three-Strikes Laws and Habitual Offender Statutes According to the WashS ington, D.C.-based Sentencing Project, only a handful of states have H and three-strikes convicted more than a hundred individuals using twostatutes—even though more than half of all states have A such laws on the books. The Sentencing Project says that only Georgia, South Carolina, Nthree-strikes legislaNevada, Washington, and Florida are actually using tion “to any significant extent.”59 N There is also evidence of a movement away from mandatory minimum sentences in a number of jurisdictions whereOsuch sentences have been blamed for prison crowding and budgetary N problems. In Louisiana, for example, where prison populations increased from 25,260 to 38,000 in the six years following the state’s 1995 implementation of 1 mandatory sentences, the legislature eliminated mandatory prison time for crimes such as residential burglary, Medicaid fraud, prostitution, 9 theft of a firearm, and possession of small amounts of controlled sub0 stances. “This [was] an attempt to bring under control a system that was bankrupting the state and was not reducing crime,” said state sena9 tor Donald R. Cravins.60 T Connecticut, IndiIn similar legislative action, other states, including ana, and North Dakota, have eliminated some lawsSthat required certain offenders to serve long prison terms without the possibility of parole. Likewise, in 2001, Mississippi passed a law establishing parole eligibility for nonviolent first-time offenders who have served only 25 percent of their sentences—reducing the figure from what had been a required 85 percent under previous law.61 The economic problems that have caused some states to use habitual offender statutes less frequently or to release repeat offenders early are present in almost all regions of the country. Some states, however, have moved to release nonviolent and relatively minor drug offenders in order to address budgetary shortfalls in their correctional systems but have refused to shorten the sentences of habitual felons. Sentencing 79 Economic Realities and Corrections: Sentencing increased the amount of time by which inmates can reduce their sentences for good behavior. One state–Georgia–has created a system of “accountability courts” which are designed to substitute treatment for imprisonment as a sanction for drug-involved offenders. Still others have raised the dollar amount needed to charge a theft crime as a felony, and have implemented a sentencing structure for such offenses that more closely ties punishment to the value of property stolen. In the face of challenging economic conditions a number of states have recently moved to maximize the return on money that they spend on corrections–including jails, prisons, and probation and parole. In 2013, the Washington, D.C.-based Sentencing Project identified five areas that have seen recent legislative action by states wanting to save money while at the same time controlling crime and ensuring public safety. Areas identified by the project, along with related initiatives include: • • prison is expensive, it can cost more to prosecute and defend (using public funds) a capital case, than it does to house an inmate sentenced to life in prison. $$ Relaxed mandatory minimums: In 2012, as discussed elsewhere in this chapter, California voters approved a change in the state’s three-strikes law to keep certain offenders from being imprisoned for life following the commission of a third felony. Other states have enacted sentencing reforms to limit the use of incarceration for selected offenders. Sentence modifications and decriminalization: A few states, like Colorado and Washington, have decriminalized the possession of small amounts of marijuana for personal use, and others have decreased the sentence to be served for other drug offenses. Some have • • M Probation and parole reform: A number of I Georgia, and states, including Delaware, Missouri, have enacted legislation to limit L the use of imprisonment for technical violations of parole, andEhave expanded the use of incarceration S alternatives, such as home confinement. Some states, , have recently most notably Louisiana, expanded parole eligibility for certain crimes and have provided for the posSoffenders sensibility of parole for some tenced to life in prison. H Capital punishment changes: In 2012, A Connecticut eliminated the death penalty as a sentencing option,Nsubstituting life without parole in its place. N While life in • Reforms affecting juvenile justice: A number of states, including California, Louisiana, and Pennsylvania, have legislatively authorized changes in the handling of individuals who had been sentenced to life without parole as juveniles. Such changes include eliminating life without parole for juveniles who committed offenses other than homicide, and making it possible for those who received such sentences as juveniles to petition the court for a resentencing hearing. Similarly, Colorado has limited the authority of juvenile court judges to transfer cases to adult criminal court. While many states have sought to curb expenditures in almost all budgetary areas, not all states relaxed their sentencing practices. Massachusetts, for example, recently increased mandatory minimum sentences for certain repeat offenders. Source: Nicole D. Porter, The State of Sentencing 2012 (Washington, DC: The Sentencing Project, 2013). O N CO3-6 fair sentencing Sentencing practices that incorporate fairness for both victims and offenders. Fairness is said to be achieved by implementing principles of proportionality, equity, social debt, and truth in sentencing. ISSUES IN SENTENCING Many sentencing reforms 1 have been an attempt to reduce disparity in sentencing and make the process fairer. The term fair sentencing, or fairness 9 in sentencing, has become popular in recent years. Although fair sentencing today often refers 0 to fairness for victims, many suggest that any truly fair sentencing scheme must incorporate fairness for both victims and 9 offenders. These are the issues related to fairness in sentencing: • • • • T proportionality; S equity; social debt; and truth in sentencing. Proportionality proportionality The sentencing principle that the severity of punishment should match the seriousness of the crime for which the sentence is imposed. 80 Proportionality is the sentencing principle that the severity of punishment should match the seriousness of the crime for which the sentence is imposed. To most people today, the death penalty would seem grossly disproportional to the offense of larceny—even if the offender had a history of such violations. However, this was not always the case. Larceny CHAPTER 3 Sentencing 81 was punishable by death in medieval England. On the other hand, probation would seem disproportional to the crime of murder—although it is occasionally imposed in homicide cases. Equity Equity is the sentencing principle that similar crimes and similar criminals should be treated alike. The alternative to equity is disparity, in which similar crimes are associated with different punishments in different jurisdictions or in which offenders with similar criminal histories receive widely differing sentences. Disparity can also result from judicial discretion when judges hold widely different sentencing philosophies. In a jurisdiction with wide leeway for judges to determine sentences, one judge might treat offenders very harshly while another may be lenient. Under such circumstances, now largely eliminated by sentencing reform, one burglar, for example, might receive a sentence of 30M years in prison upon conviction, but his partner in crime is merely put Ion probation simply because he appears before a more lenient judge. Lthe focus of concern Recently, racial and ethnic disparities have become in the sentencing practices of a number of states.62 In E 2008, for example, Connecticut and Iowa both passed legislation requiring minority impact S the current crimistatements to be included in any legislation that changes 63 nal penalty structure. The statements are intended ,to assess the potential impact of criminal justice-related legislation on racial and ethnic minorities prior to passage. Also in 1988, the Illinois general assembly enacted Senate Bill 2476, which created the Commission to S Study Disproportionate Justice Impact. The Committee is charged with studying the degree H to which the criminal sentencing structure in Illinois disproportionately A affects communities of color. Wayne Ford, an Iowa state representative, authored N that state’s Minority Impact Statement Bill and told reporters, “I believe that we need to N our laws are fair be tough on crime, but we must also make sure that the release of a 2007 and equitable.”64 Ford initiated the legislation afterO report by the Washington, D.C.-based Sentencing Project entitled Uneven Justice: State Rates of Incarceration by Race and N Ethnicity. The report revealed that Iowa imprisons blacks at a rate 13 times that of whites— more than double the national average. The most recent state to imple1 ment a minority impact strategy is Colorado. The implementation came at the behest of the state’s legislature, which asked the Colorado Commission 9 on Criminal and Juvenile Justice to include minority impact statements in any legislative recommendations that it makes 0 beginning in 2012.65 In response, the Commission noted that the percentage 9 of minorities “at many stages of the criminal justice system exceeds their proportion of the T state population.”66 equity The sentencing principle that similar crimes and similar criminals should be treated alike. S Social Debt Social debt is the sentencing principle that the severity of punishment should take into account the offender’s prior criminal behavior. As we have seen, a number of laws designed to recognize social debt have recently been passed. Among them are three-strikes and two-strikes laws. Although there is considerable variation in such laws among states, the primary characteristic of these laws is that they “call for enhanced penalties for offenders with one or more prior felony convictions.”67 They require a repeat offender to serve several years in prison in addition to the penalty imposed for the current offense. social debt The sentencing principle that the severity of punishment should take into account the offender’s prior criminal behavior. 82 Introduction to Corrections PART 1 Truth in Sentencing (TIS) truth in sentencing (TIS) The sentencing principle that requires an offender to serve a substantial portion of the sentence and reduces the discrepancy between the sentence imposed and actual time spent in prison. Until the sentencing reforms of the 1970s, the laws of many states enabled convicted offenders to be released from prison long before they had served their full sentences. Inmates frequently had good time deducted from their sentences or time off for good behavior. Gain time could be earned for going to school, learning a trade, or doing volunteer work. Moreover, many states mandated routine parole eligibility after inmates had served one-quarter or even one-fifth of their sentences. Recent truth-in-sentencing laws have changed such practices by requiring offenders to complete sentences very close to the ones they are given. Truth in sentencing requires an offender to serve a substantial portion of the sentence and reduces the discrepancy between the sentence imposed and actual time spent in prison (see Exhibit 3–7). The Violent Crime Control and Law Enforcement Act of 1994 includes a truth-in-sentencing provision. To qualify forM federal aid under the act, a state must amend its laws so that an imprisoned offender serves at least 85 percent of his or her I sentence before being released. Parole eligibility and good-time credits are generally restricted or L eliminated in truth-in-sentencing laws. Today most states have reformed their sentencing practices, moving E them in the direction of the 85% federal truth in sentencing requirement.68 S have fully adopted the 85% standard and are not Not all states, however, eligible to receive federal , truth-in-sentencing grants. Broader Issues S Today’s two main sentencing initiatives—guideline-based determinate sentencing and restorative H justice—represent different attempts to achieve sentencing fairness. The two, however, appear to be inherently at odds A with one another. That is because determinate sentencing requires a topN an authoritative decision-making body imposes down approach in which strict limits on the sentencing process, whereas restorative justice emphaN sizes community involvement at the grassroots level. “All this,” say some experts, “suggests that,Oat its philosophical core, restorative justice appears 69 to be incompatible with N sentencing guidelines.” EXHIBIT 3–7 Average Prison Time Served Compared 1 with Court Sentence in Florida, 1998–2012 90.0 84.8 85.0 Percent 82.0 82.4 83.0 83.4 81.6 79.3 80.0 75.8 86.0 78.1 78.8 86.5 86.1 84.4 86.8 86.7 85.3 84.7 2008 2009 87.0 86.9 86.8 86.1 85.9 86.0 2010 2011 2012 82.9 78.8 All offenders 75.0 73.2 9 0 85.8 9 T 82.6 S Violent offenders 74.3 70.0 65.0 1998 1999 2000 2001 2002 2003 2004 2005 Year Source: Florida Department of Corrections, Bureau of Research and Data Analysis. Reprinted with permission. 2006 2007 CHAPTER 3 Sentencing 83 One way of addressing the differences between these two approaches would be to seek greater community involvement in the development of sentencing guidelines. In fact, many states have encouraged local participation in the guideline-development process. Similarly, some guideline states encourage the use of local sentencing options such as communitybased sanctions (which are discussed in more detail in Chapters 4 and 5). For example, North Carolina, a guideline state, assigns county officials the responsibility for developing and recommending local community sentencing options for certain categories of offenders. Still, community sentencing may be appropriate only for relatively minor offenders, and traditional grid-based guidelines offer little leeway for sentencing offenders convicted of serious crimes. Some authors have suggested creation of a hybrid system of “restorative sentencing guidelines” to resolve the problem. Under the system, a new restorative sentencing option would be created and made applicable to less serious offenders. M For such offenders, the traditional guideline grid, based on severity of I offense and prior record, would not apply. L E S , REVIEW AND APPLICATIONS S SUMMARY H 1 The philosophy underlying criminal sentencing is that A people must be held accountable for their actions and the harm they cause. Western society has a long tradition of sentencing criminal offenders to some form of punishN ment. Many social scientists suggest that the central purpose of criminal punishment is to maintain social order. N 2 The goals of criminal sentencing today are (1) revenge, (2) retribution, (3) just deserts, (4) deterrence, (5) incapacitation, (6) rehabilitation or reformation, O and (7) restoration. N monetary sanctions, probation, alternative or intermedi3 Sentencing options in use today include fines and other ate sentences, incarceration, and capital punishment. 4 A model of criminal sentencing is a strategy or system 1 for imposing criminal sanctions. Sentencing models vary widely among the jurisdictions in the United States.9These models include indeterminate sentences, determinate sentences, voluntary or advisory sentencing guidelines, presumptive sentencing guidelines, and manda0 tory minimum sentencing. 5 Recent laws have increased penalties for criminal 9 offenses, particularly violent crimes, and for repeat offenders. Many such laws are three-strikes laws. The rationale for such laws is simple: Offenders convicted repeatT edly of serious offenses should be removed from society for long periods of time. Many three-strikes laws S mandate a life sentence for the third violent felony conviction. Analysts of three-strikes laws predicted that courts would be overwhelmed as more defendants, facing enhanced penalties, demanded jury trials. The added time to process cases and the reluctance to grant pretrial release to defendants facing long prison terms, said analysts, would cause jail populations to explode as the number of admissions and the length of jail stays grew. The actual effects of the laws have been similar to the effects predicted but to a lesser extent. Even so, some states have had difficulties funding increased costs of imprisonment and, like California, are now looking for ways to alleviate the financial burdens that follow from the use of increased imprisonment. 6 Fair sentencing often refers to fairness for victims. Fair-sentencing advocates, however, suggest that any truly fair sentencing scheme must incorporate fairness for both victims and offenders. Issues related to fairness in sentencing are proportionality, equity, social debt, and truth in sentencing.
PART Community Corrections Part Two examines what happens to convicted offenders, which includes diversion, probation, and intermediate sanctions. Diversion is the suspension of formal criminal proceedings before conviction in exchange for the defendant’s participation in treatment, counseling, or other programs. Diversion recognizes that not all offenders should be formally prosecuted and subjected to the stigma of formal arrest, trial, and conviction. As you will learn, diversion has its supporters and critics. Supporters M believe diversion is the first opportunity to giveI offenders individualized assistance L before they get too far down the path of crime and to E resolve problems that lead to offendS argue that divering behavior. Critics sion tends to force , people to give up some of their freedom without being tried and convicted, it violates the S process, and it might safeguard of due actually Hproduce more crime. If diversion is not warA ranted or if an offender fails N probation is often diversion, the next N step in the correctional process. Probation is O the conditional release of N offenders under convicted community supervision. The degree of supervision 1 on an offender’s risk depends level. 9 Some offenders pose no risk0to the community. For them, checking in monthly at 9 an automated probation kiosk may beTall that is necessary. On theSother hand, high-risk offenders require intensive face-to-face supervision and sometimes random drug testing, community service, and home confinement with remote-location monitoring. [2] Sanctions more punitive than probation but not as restrictive as incarceration are called intermediate sanctions. Drug court, economic sanctions, community service, day reporting centers, remote-location monitoring, residential centers, and boot camps are some intermediate sanctions. Today, the current probation and parole workforce of 50,000 investigates and supervises over 5 million adults under probation, parole, and intermediate sanctions. These officers are faced with enormous case investigation and supervision challenges that include increasing caseloads without new resources, deciding on what information to include in a presentence report, figuring out how to structure the report so it is read, and incorporating novel forms of technology into their day-to-day jobs. Whether supervision is low level or intense, many probationers will violate its technical conditions. Others will commit new crimes. Tightening the offender’s supervision without resorting to using an already overburdened system of incarceration is a challenge that probation officers face. The decision to revoke probation and incarcerate the offender is influenced by legal, social, political, and economic issues. [4] DIVERSION AND PROBATION How Most Offenders Are Punished CHAPTER OBJECTIVES M I L E S , After completing this chapter you should be able to do the following: 1 Define diversion and know its objectives. 2 Explain the rationales for diversion. 3 Give examples of stages at which diversion occurs in the criminal justice process. 4 Discuss diversion policy issues. S H A N N O N 5 Define probation and know its goals. 6 Explain the reasons for using probation. 7 Describe some of the characteristics of adults on probation. 8 Explain the different ways that probation is administered. 9 Describe the measures used to evaluate probation. 1 10 Describe the investigation and supervision functions of probation 9 officers. 0 11 Explain revocation hearings. 9 T S “ “ We won’t get true public safety and protection for crime victims until we invest in community corrections—because most offenders are not behind bars, but living as our neighbors. —Anne Seymour, national crime victim advocate 90 PART 2 Community Corrections EXHIBIT 4–1 Case Flow Model for Diversion and Probation Police diversion Prosecutor diversion Court diversion unsuccessful unsuccessful unsuccessful successful successful successful Exit Exit CO4-1 diversion The halting or suspension, before conviction, of formal criminal proceedings against a person, conditioned on some form of counterperformance by the defendant. counterperformance The defendant’s participation, in exchange for diversion, in a treatment, counseling, or educational program aimed at changing his or her behavior. Trial guilty, PSR ordered not guilty Sentence of probation unsuccessful successful M Exit Exit I L DIVERSION E S Diversion has been defined as “the halting or suspension, before convic, proceedings against a person, [often] conditioned tion, of formal criminal Exit on some form of counterperformance by the defendant,”3 and this is the definition we will use. Counterperformance is the defendant’s participaS tion, in exchange for diversion, in a treatment, counseling, or educational program aimed at changing his or her behavior. The candidate for diverH sion is a person who has been or could be arrested for an alleged offense A and who is or could become the defendant in a criminal prosecution. Suspending the prosecution of a case is the hallmark of the diversion process. N Diversion has its roots in labeling theory, the idea that a person proN justice system will be more stigmatized than cessed through the criminal a person handled informally, as well as the idea that incarceration can do O more damage than good. The overall goal of N diversion is to reduce recidivism through rehabilitation. In the criminal justice system, diversion is used in two ways. First, it can be used to keep an offender out of the system and help him or her 1 and labeling. Second, diversion can be used to avoid formal prosecution keep an offender from9going further into the system. Drug courts are an example of both methods. Diversion drug courts offer defendants oppor0 tunities to obtain employment and avoid the possibility of conviction by 9 behavior. changing their drug-using Diversion most often T includes: • alternatives to traditional criminal justice proceedings for persons S charged with criminal offenses; • voluntary participation by the accused; • access to defense counsel prior to a decision to participate; • strategies—with input from the accused—to address the needs of the accused in avoiding behavior likely to lead to future arrests; and • dismissal of charges or its equivalent, if the divertee successfully completes the diversion process. MacKenzie rigorously studied 32 drug court evaluations, 20 of which were diversion drug court programs. Applying the threshold of “evidence-based corrections,” meaning the use of scientific evidence to make CHAPTER 4 Diversion and Probation 91 Diversion includes access to defense counsel prior to a decision to participate. Do you think diversion invites more law violation by allowing offenders to avoid prosecution? M I L E S informed decisions about correctional policy, she concluded that there is , very strong evidence that drug courts—including diversion drug courts— reduce the future criminal activities of offenders.4 We offer a more thorough discussion of drug courts and their effectiveness in reducing criminal S activity in Chapter 5. In 2007, the National Association of Pretrial H Services Agencies’ (NAPSA) Diversion Committee commissioned a national survey of 253 known pretrial diversion programs nationwide andAfound that diversion is a successful alternative for eligible defendants. Respondents averaged N an 85 percent rate of defendants who complete diversion successfully, and Nor higher.5 over 80 percent of programs had a rate of 70 percent Rationales for Diversion O N Diversion has four rationales. First, the experience and the stigma of being formally arrested, tried, and convicted can actually encourage more criminal behavior. For example, having a criminal record1might restrict a person’s educational, vocational, and social opportunities, 9 making the person more apt to turn to crime to survive. In addition, as a result of time spent in jail or prison, an offender may be more likely to0associate with other offenders. 9 A second rationale for using diversion is that it is less expensive than T justice system. The formally processing an offender through the criminal expense of arrest, trial, conviction, and sentence is easily S justified for serious crimes. In most cities and counties across the United States today, however, police are overworked, courts are overloaded, jails and prisons are overcrowded, and probation and parole officers have caseloads that are unmanageable. Diversion is a way to reduce or at least contain these burdens, reserving formal criminal justice processing for the cases that need it the most. A third rationale for diversion is that the public may think formal processing through the criminal justice system is inappropriate for crimes in which the parties to the offense willingly participate even though the offense is committed against the social values and interests represented in and protected by the criminal law. Examples include prostitution, certain CO4-2 92 PART 2 Community Corrections victimless crime An offense committed against the social values and interests represented in and protected by the criminal law, and in which parties willingly participate. Visit or scan this code with the QR app on your smartphone or digital device and read how Discover Corrections, a new and innovative resource on finding a career in corrections, can help you with career resources. How does this information relate to ideas discussed in this chapter? CO4-3 forms of sexual behavior, gambling, and drug sales. Such offenses are called victimless crimes because the participants do not feel they are being harmed. Prosecution is justified on the grounds that these offenses harm society as a whole by threatening the moral fabric of the community. Because formal prosecution of these offenses is costly, offenders are often diverted to health clinics and treatment programs. A final rationale for using diversion is to give the typical diversion client a better chance in life. Our nation’s jails, lockups, prisons, and probation and parole caseloads are filled with people who are economically disadvantaged, belong to minority groups, and are young, undereducated, and chronically unemployed or underemployed. Diversion offers such persons help with some of the challenges they face without adding to their difficulties the stigma of formal arrest, trial, and conviction. One of the newest diversion programs is for veterans returning from wars in Afghanistan and Iraq.6 The programs target veterans charged with M nonviolent felony offenses. Some of the programs are postplea and adminI istered by specialized veterans courts. (We will return to the concept of veterans courts in the next chapter.) Others are preplea diversion programs. L Both programs address the needs of military veterans who are returning and have incidences ofEsubstance abuse, domestic violence, post-traumatic stress disorder (PTSD), S traumatic brain injury (TBI), unemployment, depression, suicidal ideations, fear of redeployment, and related issues and commit various ,crimes. Bradley Schaffer administered a 13-week preplea diversion program for veterans having anger and domestic violence problems in Cincinnati, Ohio, from 2002 to 2008. Judges, prosS officers, substance abuse counselors, therapists, ecutors, police, probation community advocates,Hmentors, and families worked together toward a holistic outcome focusing on the veterans’ recovery and support rather Athrough the criminal justice system. Veterans who than official processing successfully completedNthe program (almost 57 percent) were less likely to repeat (almost 28 percent) the offense and had their charges reduced, N dismissed, or expunged. More than 220,000 service members have been O and Iraq. With over 467,000 persons employed deployed to Afghanistan in corrections across the N United States, veterans who pursue a career in criminal diversion bring a unique understanding of war and the aftermath of military service and contribute significantly to diversion programming for veterans. 1 The Process of 9Diversion Diversion may occur 0 at any point in the criminal justice process after a criminal complaint has 9 been filed or police have observed a crime. The police, a prosecutor, or a judge may call for diversion. The accused parT has access to defense counsel before deciding ticipates voluntarily and whether to participate.S Diversion programs offer a variety of remedial responses to defendants’ problems. Such responses can include drug and alcohol treatment, mental health services, employment counseling, and education and training. They may involve agencies in or outside the criminal justice system. The variety of responses often reflects a community’s unique criminal justice population. Diversion is also used for persons who are classified as mentally ill or incompetent and either are not equipped to stand trial or need a form of incarceration and treatment other than imprisonment. Such persons may be referred to an agency for voluntary treatment or civil commitment to an institution in lieu of prosecution and a prison sentence. CHAPTER 4 Diversion Policy Issues Diversion and Probation 93 CO4-4 Diversion has its supporters and critics. Supporters believe diversion is the first opportunity to give offenders individualized assistance before they get too far down the path of crime. Diversion may thus resolve problems that lead to offending behavior. Critics argue that diversion tends to force people to give up some of their freedom without being tried and convicted. They argue that it violates the safeguard of due process. Other critics believe that diversion is “nonpunishment” and might actually produce more crime and jeopardize community safety. And still others contend that diversion programs serve too small a percentage of offenders (mostly less serious crime and low-risk offenders when the real need in criminal justice is to focus on serious crime and high-risk offenders) and spend too many resources on them. To these and other issues about diversion we now turn our attention. Legal and Ethical Issues There is agreement M that a diversion program should protect a defendant’s rights. Protections include requiring I an informed waiver of the right to a speedy trial, the right to a trial by jury, L self-incrimination, the right to confront one’s accusers, the privilege against and informed consent to the conditions of a diversion program. For supE porters, the risk of violating rights is outweighed by the chance diversion S and by the posgives defendants to avoid the stigma of a criminal record sibility of resolving problems that might result in future , criminal behavior. Unconditional diversion is the termination of criminal processing at any point before adjudication with no threat of later prosecution. It affords the best protection for a defendant’s legal rights because Sdismissal of charges does not require any counterperformance. In effect, the defendant has everything to gain and nothing to lose. In unconditionalHdiversion, treatment, counseling, and other services are offered on a voluntary A basis. Many corrections leaders believe that voluntary treatment is more likely than coerced treatment to have beneficial effects. Whether that isN true or not is subject to debate. Research consistently indicates that offenders’ N motivations for entering correctional programs (voluntary or coerced) are not as important in treatment outcome as their ultimate length of stay O in treatment.7 Conditional diversion means that charges are dismissed N if the defendant satisfactorily completes treatment, counseling, or other programs ordered by the justice system. Conditional diversion at or after arraignment, with judicial participation, affords greater protection 1 against prosecutorial overreach and more assurance of informed voluntary 9 decisions by the defendant than does diversion by the police or the prosecutor. In diver0 participants may sion programs run by the police and prosecutor, some not have been prosecuted at all or might have been 9 exonerated (cleared of blame) if they had been prosecuted. Conditional diversion does not T divertees who fail eliminate the possibility of more severe penalties for the program. Judging the success of conditional diversion would mean S knowing the percentage of supervised defendants who make all scheduled program and/or judicial appearances as well as the percentage who are not charged with a new offense or technical violation of the conditions of their diversionary period. Law Enforcement Issues Does diversion weaken law enforcement? Does diversion invite more widespread violation of laws by allowing offenders to avoid conviction? There is no particular evidence one way or the other. Certainly, if unconditional diversion were practiced extensively, there might be increases in violations. However, if unconditional diversion is limited to the first or second charge, then increases in violations are unconditional diversion The termination of criminal processing at any point before adjudication with no threat of later prosecution. Treatment, counseling, and other services are offered and use is voluntary. conditional diversion Diversion in which charges are dismissed if the defendant satisfactorily completes treatment, counseling, or other programs ordered by the justice system. 94 PART 2 Community Corrections less likely. Conditional diversion requiring supervision and counterperformance does not seem more likely to encourage crime than the dispositions it most often replaces—fines, suspended sentences, and probation. Safety Issues Some argue that in the long run, diversion can protect the community better than traditional processing can. Traditional methods of managing drug offenders depended on the corrections officer first reporting a violation and then a long time after that passed before a hearing occurred and sanctions were imposed. Diversion drug courts and veterans courts hold regularly scheduled status hearings, monthly or more frequently, with the offender, prosecutor, defense attorney, treatment providers, probation agents, and others. At these hearings, judges monitor the progress of the offender, provide continuing court supervision, keep the offender in treatment, and proscribe sanctions for noncompliance and rewards for compliance. Hence, the court can respond immediately to M positive or negative behavior, thereby protecting the community better I processing. than traditional criminal L Economic Issues How cost effective is diversion? What is the least E that will yield acceptable results? What are the costly method of diversion trade-offs among different kinds of diversion programs? How does diverS sion compare in cost and effectiveness with traditional prosecution and sentencing practices? , Presumably, diversion is less conducive to recidivism than is traditional processing. However, efforts to compare diversion with what would have happened without it S have been unsuccessful. It seems safe to say that the community protection H that diversion affords is at least comparable to the traditional measures that would most likely be used if prosecution were A not suspended. The economic question, then, is, which approach costs less? The costs of both N diversion and its alternatives include the costs of arriving at a decision; the costs of implementing decisions; and the costs N of decisions, such as reinstatement of prosecuof undesired consequences tion, leveling of new charges, or revocation of probation or parole because O of a new charge or violation. N the appropriate response to criminal behavior. Diversion is not always When diversion fails to bring about the desired changes in an offender’s behavior, probation is often the next step in the corrections process. probation 1 9 PROBATION 0 Probation is the most frequently used form of criminal punishment (see 9 to keep the offender at home in the commuExhibit 4–2). It is a way nity, avoid incarceration, T and carry out sanctions imposed by the court or the probation agency. Probation is the conditional release of a convicted S offender into the community under the supervision of a probation offi- The conditional release of a convicted offender into the community, under the supervision of a probation officer. It is conditional because it can be revoked if certain conditions are not met. cer. It is conditional because if the probationer violates the conditions of her or his probation, the judge may either set more restrictive conditions of probation, or revoke probation and sentence the defendant to prison. Later in this chapter, we discuss the impact that revoking even a small percentage of the probation population can have on the prison population. CO4-5 CO4-6 Reasons for and Goals of Probation Probation is used for at least four reasons. First, probation permits the offender to remain in the community for reintegration purposes. Offender reintegration is more likely to occur if social and family ties are not broken by incarceration. CHAPTER 4 EXHIBIT 4–2 Diversion and Probation 95 Adults on Probation, on Parole, in Jail, or in Prison 7M 2012 Probation 3,971,319 5M Parole 853,852 Prison 1,571,013 3M Jail 808,622 M I 0 L 1985 1990 1995 2000 2005 2012 E Sources: Laura M. Maruschak and Erika Parks, Probation and Parole in the United States, 2011 (Washington, DC: Bureau of Justice Statistics, November 2012); Todd D. Minton, Jail Inmates at Mid-year 2012-Statistical Tables (Washington, DC: Bureau of Justice Statistics, May 2013); E. Ann CarsonS and Daniela Golinelli, Prisoners in 2012—Advance Counts (Washington, DC: Bureau of Justice Statistics, July 2013); and Pew Center on the States, The High Cost of Corrections in America (Washington, DC: Pew Center on the States, June 2012). , 1M S Second, probation avoids prison institutionalization H and the stigma of incarceration. Prison institutionalization is the process of learning and A Living in the artifiadopting the norms and culture of institutional living. cial environment of an institution does not teach prisoners how to live in N the free world. Probationers do not experience prison institutionalization, nor do they have to worry about the negative effectsNof being treated like a prisoner, which decrease even further their abilityO to function as a lawabiding citizen when released. The third reason for probation is that it is less N expensive than incarceration, more humanitarian, and at least as effective as incarceration in reducing future criminal activity. The final reason for probation is that it is fair and1appropriate sentencing for offenders whose crimes do not merit incarceration. Furthermore, 9 probation is the base from which more severe punishments can be built. 0 Not all crimes deserve incarceration, nor do all crimes deserve proba9 no threat to comtion. Probation is preferred when the offender poses munity safety, when community correctional resources T are available, and when probation does not unduly deprecate the seriousness of the offense. Assessment tools that determine the risk and needsS of each offender and statutory sentencing guidelines help identify which offenders deserve community-based punishment and which deserve institutional punishment. Most probation programs share five goals: 1. Protect the community by preparing the presentence report (PSR) to assist judges in sentencing and supervising offenders. The PSR indicates the degree of risk an offender poses to the community. (We will return to the PSR later in this chapter.) 2. Carry out sanctions imposed by the court. Probation officers (POs) accomplish this by educating offenders about the orders of the court, supervising offenders, and removing them from the community when they violate the conditions of their probation. 96 PART 2 Community Corrections Economic Realities and Corrections: Probation Probation officials across the country increasingly have to do more with less. They oversee agencies that are responsible for record numbers of people under community supervision. Today, 1 in 45 adults in the United States is on probation or parole. Although their budgets are being cut, probation departments are expected to improve the success rates of the increasing numbers of individuals they supervise and to reduce crime in the community by preventing reoffending. These high expectations and the intense public scrutiny that follows a high-profile failure require that probation officials revisit their agency’s goals, processes, and measures for success. The core mission of a probation department is to reduce probationer recidivism. Reviewing a growing body of knowledge and experience, experts point to four evidence-based practices that are essential to probation agencies’ success in achieving this mission, especially during tough fiscal times. Based on current best practices, probation departments should strengths (also known as “protective factors”); • Felony probation revocations declined by 20 percent. • Felony technical revocations fell by 48 percent—the largest reduction in the five most populous counties in Texas, and nearly 10 times the statewide reduction of 5 percent. • The decreased number of technical revocations averted $4.8 million in state incarceration costs. • Reductions in motions to revoke probation averted close to $400,000 in local jail costs in one year (based on costs of $24 per day per person). • The one-year rearrest rate for probationers fell by 17 percent compared with that of similar probationers before the departmental overhaul. • Rearrest rates for low-risk offenders declined by 77 percent. $$ 1. Effectively assess probationers’ criminogenic risk and need as well as their 2. Employ smart, strategies; tailored supervision 3. Use incentives and graduated sanctions to respond promptly to probationers’ behaviors; and 4. Implement performance-driven personnel management practices that promote and reward recidivism reduction. From 2005 to 2008, researchers at the M Council of State Governments worked with leaders from Travis CountyI (Austin, Texas) to design and integrate each of the four core L practices into the department’s everyday E processes. In spite of the economic recession that started in 2008, when researchers S returned to Travis County in 2011 to examine , department’s the long-term impact of the transformation, they found that implementing the four practices of recidivism reduction is S yield dramatic not only possible but also can and positive improvementsH for the involved agency, the community, and probationers. Source: Tony Fabelo, Geraldine Nagy, and Seth Prins, A Ten-Step Guide to Transforming Probation Departments to Reduce Recidivism (New York: Council of State Governments Justice Center, 2011). A N N O 3. Conduct a risk–needs assessment to identify the level of supervision N and the services probationers need. 4. Support crime victims by collecting information that describes the losses, suffering, and trauma experienced by a crime victim 1 survivors. This information is reported to or by the victim’s the court in a written 9 document called the victim-impact statement. The judge considers it when sentencing the offender. The 0 information is particularly valuable for sentences that include 9 restitution. 5. Coordinate and promote the use of community resources. Probation T officers refer offenders to community agencies and programs that S needs. Such programs include drug and alcohol serve the offenders’ treatment, job training, vocational education, anger management, and life skills training. Not all probation agencies achieve these objectives in the same way. A probation department’s orientation is a function of many things, including department philosophy, leadership, the community served, and the offenders supervised. Some departments lean more toward treating the offender; others lean more toward offender control. It is likely that the majority of probation departments do both, depending on the need and the situation. The American Probation and Parole Association (APPA) policy on probation is found in Exhibit 4–3. CHAPTER 4 Diversion and Probation EXHIBIT 4–3 American Probation and Parole Association Position Statement on Probation Probation Purpose The purpose of probation is to assist in reducing the incidence and impact of crime by probationers in the community. The core services of probation are to provide investigation and reports to the court, to help develop appropriate court dispositions for adult offenders and juvenile delinquents, and to supervise those persons placed on probation. Probation departments in fulfilling their purpose may also provide a broad range of services including, but not limited to, crime and delinquency prevention, victim restitution programs and intern/volunteer programs. Position The mission of probation is to protect the public interest and safety by reducing the incidence and impact of crime by probationers. This role is accomplished by: • • • • assisting the courts in decision making through the probation report and in the enforcement of court orders; Moffenders to become more law-abiding; providing services and programs that afford opportunities for providing and cooperating in programs and activities for the prevention of crime and delinquency; I furthering the administration of fair and individualized justice. L Society has a right to be protected from persons who causeE its members harm, regardless of the reasons for such harm. It is the right of every citizen to be free from fear of harm to person and S property. Belief in the necessity of law to an orderly society demands commitment to support it. Probation accepts this responsibility and views itself as an instrument for both control and treatment , appropriate to some, but not all offenders. The wise use of authority derived from law adds strength and stability to its efforts. Probation is premised upon the following beliefs: Offenders have rights deserving of protection. Freedom and democracy require fair and individualized due process of law in adjudicating and sentencing the offender. S Victims of crime have rights deserving of protection. In its humanitarian tradition, probation recognizes that prosecution of the H system. The victim of criminal activity may suffer loss of property, offender is but a part of the responsibility of the criminal justice emotional problems, or physical disability. Probation thus commits itself to advocacy for the needs and interests of crime victims. A Human beings are capable of change. Belief in the individual’s capability for behavioral change leads probation practitioners to a N The possibility for constructive change of behavior is based on the commitment to the reintegration of the offender into the community. recognition and acceptance of the principal of individual responsibility. Much of probation practice focuses on identifying and making N available those services and programs that will best afford offenders an opportunity to become responsible, law-abiding citizens. Not all offenders have the same capacity or willingness toO benefit from measures designed to produce law-abiding citizens. Probation practitioners recognize the variationsN among individuals. The present offense, the degree of risk to the community and the potential for change can be assessed only in the context of the offender’s individual history and experience. Intervention in an offender’s life should be the minimal amount needed to protect society and promote law-abiding behavior. Probation subscribes to the principle of intervening 1 in an offender’s life only to the extent necessary. Where further intervention appears unwarranted, criminal justice system involvement should be terminated. Where needed intervention can 9 should be diverted from the system to that agency. best be provided by an agency outside the system, the offender 0 of retributive punishment. Punishment as a corrective measure Punishment. Probation philosophy does not accept the concept is supported and used in those instances in which it is felt that aversive measures may positively alter the offender’s behavior 9 when other measures may not. Even corrective punishment, however, should be used cautiously and judiciously in view of its highly unpredictable impact. It can be recognized that a conditional sentence in the community is, in and of itself, a punishment. It T is less harsh and drastic than a prison term but more controlling and punitive than release without supervision. S Incarceration may be destructive and should be imposed only when necessary. Probation practitioners acknowledge society’s right to protect itself and support the incarceration of offenders whose behavior constitutes a danger to the public through rejection of social or court mandates. Incarceration can also be an appropriate element of a probation program to emphasize the consequences of criminal behavior and thus effect constructive behavioral change. However, institutions should be humane and required to adhere to the highest standards. Where public safety is not compromised, society and most offenders are best served through community correctional programs. Most offenders should be provided services within the community in which they are expected to demonstrate acceptable behavior. Community correctional programs generally are cost-effective and they allow offenders to remain with their families while paying taxes and, where applicable, restitution to victims. Source: Reprinted with permission of American Probation and Parole Association. 97 98 PART 2 Community Corrections Probation officer training and development are opportunities to learn new ideas and discuss cases within the context of the agency’s goals. Most probation agencies share five goals. What are the goals of probation and what factors influence an agency’s decision to emphasize one goal over another? M I L E S , History of Probation S Probation in America developed during the 19th century. What started as H a charitable and volunteer movement took almost 125 years to become A state across the country. available to adults in every N Probation Begins in America It was in the Boston courtroom N Peter Oxenbridge Thatcher, in 1830, that the of municipal court judge groundwork for probation O was laid. Searching for a new way to exercise leniency and to humanize the criminal law—sentencing goals that N still dominate corrections—Judge Thatcher made the first recorded use of release on recognizance in America, in sentencing Jerusa Chase. The indictment against 1 Jerusa Chase was found at the January term of the court. . . . She pleaded guilty to the same and would have been pronounced at 9 application of her friends, and with the consent of the that time, but upon the attorney of the Commonwealth, she was permitted, upon her recognizance for 0 her appearance in this Court whenever she should be called for, to go at large.8 9 John Augustus (1785–1859) was a Boston shoemaker who invented probation in 1841 and became the first “unofficial” probation officer. He is called the founder of probation. Which aspects of Augustus’s probation system are still in use today? Chase’s release had many of the characteristics of present-day probation: T freedom to stay in the community, conditions on suspension of sentence, that freedom, and the S possibility of revocation of freedom for violation of the conditions. In 1841, when 57-year-old John Augustus, a wealthy Boston shoemaker, became interested in the operation of the courts, the practice of probation began to emerge. Augustus was particularly sensitive to the problems of persons charged with violating Boston’s vice or temperance laws. He was a member of the Washington Total Abstinence Society, an organization devoted to the promotion of temperance. By posting bail in selected cases, he had the offenders released to his care and supervision, and so began the work of the nation’s first probation officer, an unpaid volunteer. By the time of his death in 1859, Augustus had won probation for almost 2,000 adults and several thousand children. Several aspects of his CHAPTER 4 Diversion and Probation probation system are still in use. Augustus investigated the age, character, and work habits of each offender. He identified persons he thought redeemable and “whose hearts were not fully depraved, but gave promise of better things.” He made probation recommendations to the court. He developed conditions of probation and helped offenders with employment, education, and housing. And he supervised offenders during their probation, which lasted, on the average, about 30 days. Early Probation Statutes After Augustus’s death in 1859, unpaid volunteers continued his work. In 1878, the Massachusetts legislature passed the first statute authorizing probation and provided for the first paid probation officer. The law applied only to Suffolk County (Boston). It required the mayor of Boston to appoint a probation officer from the police department or citizenry and required the probation officer to report to the chief of police; but this was changed three years later M so that the probation officer then reported to the state commissioners of 9 I an option in all citprisons. In 1880, a new law authorized probation as ies and towns in Massachusetts. But because the law remained voluntary L and the probation concept was still new, few cities and towns exercised E officers was transthe power. In 1891, the power to appoint probation ferred from the mayor to the court in response to criticism that the mayS or’s appointments were influenced by political considerations. The second , state to pass a probation statute was Vermont, in 1898. As more and more states passed laws authorizing probation, it became a national institution. On March 4, 1925, President Calvin Coolidge S each federal district signed the National Probation Act. The act authorized court to appoint one salaried probation officer withHan annual income of $2,600.10 A The early laws had little in common. Some allowed probation for adults only. Others allowed it for juveniles only. Some laws restricted the N crimes for which probation could be granted. Still others provided for hirN them. Training ing probation officers but neglected to provide for paying for probation officers was brief or nonexistent. Appointments were often O based on politics rather than merit, and salaries were typically even lower N than those of unskilled laborers. By 1925, probation was available for juveniles in every state; by 1956, it was available for adults in every state. 1 Characteristics of Adults on Probation 9 During 2011, for the third consecutive year, the number of adults on probation declined. At 2011 yearend, 3,971,310 were0on probation, down 2.0 percent, or almost 82,000 offenders from the beginning of the year. 9 (see Exhibit 4–4).11 The average length of probation is 37 months for T convicted of two or those convicted of one felony to 43 months for those more felonies.12 S Exhibit 4–5 shows that the majority of adults on probation are in regular caseloads, they have one face-to-face contact with their probation officers per month, and the cost of their supervision is $3.07 per day. By contrast, offenders who pose a higher risk of reoffending or who might otherwise be incarcerated are placed in intensive supervision caseloads. Each caseload averages 29 offenders with 7 face-to-face contacts with their probation officers per month, and costing approximately $8.96 per day. Without probation, the cost of jail incarceration averages $50 to $60 per day, and the cost of prison incarceration averages $60 to $75 per day. Probation is cost-effective providing it can protect the community by matching the level of supervision with the level of risk an offender poses. CO4-7 99 100 Community Corrections PART 2 EXHIBIT 4–4 Adults on Probation at Yearend, 1980–2011 Yearend Population (in millions) 7 Annual Percent Change 12 Annual percent change 10 6 8 5 Yearend population 4 6 3 4 2 1 0 ’80 ’82 ‘84 ’86 ’88 ’90 Source: Bureau of Justice Statistics, Annual Probation Survey, 1980–2011. ’92 ’94 ’96 M I L E ’98 S , 2 0 ’00 ’02 ’04 ’06 Intensive 29 S H A Average Number of N Face-to-Face Contacts Between Probationer N and Officer per Month O 1 N 7 Electronic 6 3 EXHIBIT 4–5 Probation Statistics Case Type 1 Regular Special Average Caseload per Officer 139 ’08 ’10 –2 Average Cost per Day per Probationer $3.07 8.97 8.71 45 4 4.27 1 Regular supervision: Supervision of a probationer according to normal/average number of visits, contacts, or reports with a probation officer. Intensive supervision: Supervision of a probationer that 9supervision. Offenders who pose a higher risk of reoffending or who might otherwise includes a greater number of visits, contacts, or reports to or from a probation officer than exists under regular be incarcerated are candidates for placement under intensive supervision. Electronic supervision: Supervision of a probationer that includes the use of an electronic monitoring device such as an ankle bracelet, pager, or voice verification telephone that assists probation officers in ascertaining an offender’s 0 whereabouts. Special supervision: Supervision of a probationer that includes special programming such as boot camp, substance abuse treatment programs, sex offender treatment, or other programs or services. More about intensive, electronic, and special supervision programming is discussed in Chapter 5. 9 Source: Adapted from Camille Graham Camp and George W. Camp, The Corrections Yearbook, 2000, pp. 170, 172, 176, 177, and 187. Copyright © 2000 Criminal Justice Institute; and Pew Center on the States, One in 31: The Long Reach of American Corrections (New York: Pew Charitable Trusts, March 2009). T S 1 Exhibit 4–6 presents selected characteristics of the 3.9 million adults on probation at yearend 2011. Most characteristics of adult probationers in 2011 remained stable when compared to those in 2010. Males made up three-quarters (75 percent) of the adult probation population. Over half (54 percent) of probationers were white non-Hispanic, and nearly one-third (31 percent) was black non-Hispanic. Nearly three-quarters (72 percent) were on active status, and about 1 in 5 (18 percent) were being supervised for a violent offense. Fifty-three percent of probationers were being supervised for a felony offense in 2011 compared to 50 percent in 2010. CHAPTER 4 EXHIBIT 4–6 Diversion and Probation Selected Characteristics of Adults on Probation, Yearend 2011 Gender Race/ethnicity 25% Female 54% White 75% Male Jurisdiction 31% Black <1% Federal 2% Other 13% Hispanic Type of offense M I 2% 99% 45% L Other State Misdemeanor E Source: Laura M. Maruschak and Erika Parks, Probation and Parole in the United States, 2011 S (Washington, DC: Bureau of Justice Statistics, November 2012). , 52% Felony S(DOJ) learned from Recently, researchers at the Department of Justice hour-long interviews with active probationers that 9Hpercent of male probationers and 28 percent of female probationers had been physically or sexually abused before their sentence and before age A 18.13 (Prevalence estimates of child abuse in the general population are 5 N to 8 percent for males and 12 to 17 percent for females.) Abused probationers told DOJ researchers that the abuser was either a family member orNsomeone they knew intimately. Researchers are just beginning to study the O link between child abuse and offending. N every 100,000 perAt 2011 yearend, 1,662 adults were on probation for sons age 18 and older in the United States, down from 1,715 per 100,000 at yearend 2010. Among the states with declining probation populations, 1 California, Florida, Georgia, Michigan, and Texas accounted for 56 percent of the total decrease. California (down 28,600)9 alone accounted for one-quarter of the total decline. The largest adult probation populations 0 are in Georgia (457,141) and Texas (408,472). The smallest adult pro9 and North Dakota bation populations are in New Hampshire (4,121) (4,516). Only 22,668 persons were on federal probation T at yearend 2011. The three states that use probation the most are Georgia (6,205 per S Island (2,939). The 100,000 adult population), Idaho (3,436), and Rhode three states that use probation least are New Hampshire (396 per 100,000 adult population), Nevada (563), and West Virginia (583). Who Administers Probation? As probation spread throughout the United States in the late 19th and early 20th centuries, its organization and administration depended on local and state customs and politics. Currently, probation in the 50 states is administered by more than 2,000 separate agencies, reflecting the decentralized and fragmented character of contemporary corrections. The agencies have a great deal of common ground, but because they developed CO4-8 101 102 PART 2 Community Corrections Visit shtml or scan this code with the QR app on your smartphone or digital device and read about probation intervention fees on the home page of the Missouri Department of Corrections Division of Probation and Parole website. How does this information relate to ideas discussed in this chapter? in different contexts, they also have a lot of differences in goals, policies, funding, staffing, salaries, budgets, and operation. In 2000, the average budget for probation agencies across the United States was $56 million, an increase of only 1 percent ($600,000) from 1992. Meanwhile, the number of persons on probation increased almost 37 percent from 1992 to 2000, from 2.8 to 3.8 million. Between 1982 and 2010, total state expenditures for noninstitutional corrections (probation, parole, and the intermediate sanctions discussed in Chapter 5) increased from approximately $5 billion to $10 billion while the noninstitutional corrections population increased from $1.3 billion to over $3.9 billion, an increase of almost 200 percent.14 Probation supporters argue that unless there is adequate funding for community supervision, there will be no reduction in recidivism. In an effort to offset declining budgets for probation and parole agencies and provide resources for the increased population of probationers M and parolees, all but 12 states now have laws allowing authorities to I collect fees from probationers and parolees who can afford to contribute to the cost of theirLsupervision.15 Missouri charges probationers and parolees $60 a month. In Colorado, it’s $50 a month. Some states, such as Rhode Island and E South Dakota, charge probationers and parolees a token amount ($15 per Smonth), whereas other states charge considerably more. Hawaii charges felony probationers $150 a month. New Mexico law allows probation, authorities to collect up to $185 a month from felony probationers. Iowa charges probationers and parolees a one-time enrollment fee of $250. Michigan imposes a fee on a sliding scale of up to S 5 percent of monthly income, not to exceed a monthly total fee of $135. Most states waive H or reduce fees for probationers and parolees who are indigent. In Florida, for example, an offender who qualifies for the A services of a public defender at trial is presumed to be low income and will be required to pay a fee of $50 a month, which is less than half the N amount charged for others on regular probation. In Pennsylvania, offendN ers who have poverty-level income, are students, or are collecting welfare O or a waiver of a $25 monthly supervision fee are entitled to a reduction imposed on those whoNcan afford to pay. Probation is commonly considered a part of the correctional system, although it is technically a function of the court system. Exhibit 4–7 gives 16 a state-by-state breakdown 1 of how probation is administered. Kathy Waters, past president of the American Probation and Parole 9 in both executive and judicial branches of govAssociation, has worked ernment that have the0jurisdiction and responsibility for probation. She says there’s nothing magical about where probation services are organized and administered.17 9 There are difficulties T in both jurisdictions. . . . Probation and parole continue to change as each matures. S . . . Whether under the executive branch of government (which, for some jurisdictions, works well) or under the judiciary (which seems like the only natural place for probation to be in some states), the system will have problems and frustrations that will need to be addressed. . . . Both branches provide leadership, policy establishment and the resources to fulfill their mission. Privatizing Probation There is also movement toward privatization in community corrections, including offender assessment, drug testing and treatment, electronic monitoring, halfway house management, and probation field services. There is no census on the number of persons who are under private community supervision. However, a number of states, CHAPTER 4 EXHIBIT 4–7 VT ME ND MT MN NY WI SD ID MI WY IA NE NV 103 Administration of Adult Probation in the United States WA OR Diversion and Probation UT CA AZ IL CO KS OK NM IN MO KY AK HI WV VA NC TN SC AR MS AL TX PA OH NH MA RI CT NJ DE MD DC GA M FL I L State executive branch E Local executive agency State judicialS agency Local judicial,agency LA Combination of organizational models S H A N N O N Source: Barbara Krauth and Larry Link, State Organizational Structures for Delivering Adult Probation Services (Washington, DC: U.S. Department of Justice, National Institute of Corrections, June 1999). Updated by authors. including Alabama, Connecticut, Colorado, Georgia, Missouri, Tennessee, and Utah, have privatized community supervision. In most states, the impetus for privatizing community supervision was similar: Staffing and resources were not keeping pace with increasing caseloads. Community supervision officials believed they had exhausted the use of interns and 1 volunteers, and obtaining funding for 9 new staff was not possible. States partnered with the private sector to monitor 0 the low-risk offender population, a group 9 who generally has few needs, whose past T records reflect little or no violence, and who successfully completes probation S about 90 percent of the time. However, the debate over privatizing community supervision has its critics. Consider the situation in Georgia. In 2003, Georgia passed SB 474 that transferred supervision of 25,000 convicted misdemeanants from the state Department of Corrections to individual counties and permitted each county to contract with a for-profit probation agency to supervise these misdemeanants. Today, approximately 40 private probation agencies are registered in Georgia; they employ 850 probation officers and serve 640 courts. In Georgia, every person who cannot pay his or her misdemeanor fine on the day of court is placed on probation under the supervision of a private, for-profit A probation officer involves an offender’s family to help with rehabilitation. Probation officers also refer offenders to community agencies to help them overcome the problem that led to their offending behavior. What obstacles might a probation officer face in making referrals to a community agency and involving the family in offender rehabilitation? 104 PART 2 Community Corrections company until he or she pays the fine. For example, assume you are ordered to pay $200 for a traffic fine. If you have enough money to pay it on the day you go to court, you can avoid probation. If you cannot, you must pay your fine and a monthly supervision fee in the range of $35–$44 to a private company in weekly or biweekly installments over a period of three months to a year. By the time your probation is over, you may have paid more than two or three times the amount that the judge had ordered. In Americus, Georgia, one high school student convicted of violating the terms of his learner’s permit served seven months on probation and paid $505 in court fines and probation fees. Had he been able to pay the fine the day he was sentenced, he would have paid only $155. Critics argue that for-profit probation is unfair to poor people, needlessly supervises persons who are not a threat to society, and carries the risk of unnecessary incarceration because persons on probation can be arrested for technical violations such as missing a meeting with a probaM tion officer. How often all this happens is unknown because in 2006, the I a law that permits for-profit probation compaGeorgia Assembly passed nies to keep their records L secret. In the summer of 2008, a reporter with Mother Jones visited the offices of Middle Georgia Community Probation E told, “We don’t talk to reporters.”18 Services and was politely In Alabama, the situation is similar. A county judge told Judicial CorS rection Services (JCS), a private probation company based in Atlanta with , 180 court systems throughout Alabama, Florcontracts with more than ida, Georgia, and Mississippi that inability to pay a fine is not a legitimate basis for jail and ordered that everyone be given 30 days to pay a fine S fees imposed by JCS.19 The judge issued a scathwithout further fines or ing opinion against JCS Hcalling the system a “debtor’s prison” and a “judicially sanctioned extortion racket.” CO4-9 recidivism The repetition of criminal behavior; generally defined as rearrest. It is the primary outcome measure for probation as it is for all corrections programs. A Does ProbationNWork? N The most common question asked about probation is, “Does it work?” In other words, do persons granted probation refrain from further crime? O Recidivism—generally defined as rearrest—continues to be the primary N outcome measure for probation, as it is for all corrections programs. How- ever, probation is a collection of strategies, some control oriented, some treatment oriented. How these different strategies are measured answers 1 the question “Does probation work?” Today, the push for 9 evidence-based corrections highlights the importance of using scientific research to study correctional policy. Although the body of scientific evidence to0make informed decisions about whether probation strategies reduce criminal 9 activity is not large, we know from sophisticated evaluations in Florida, Maryland, and Washington that control-focused T strategies (for example, intensive supervision and remote location monitorS criminal activity. However, when control-focused ing) alone do not reduce strategies are combined with treatment strategies, there is scientific evidence that probation achieves, on average, a statistically significant 8 to 22 percent reduction in the recidivism rates of program participants compared with a treatment-as-usual group.20 Still others suggest that if probation agencies adhere to the seven principles of effective rehabilitation—(1) target criminogenic needs; (2) provide intensive services to high-risk rather than lowrisk offenders; (3) match styles of service delivery to offender responsivity; (4) adhere to the principles of social and behavioral learning; (5) emphasize positive reinforcers rather than negative ones; (6) develop offender coping skills; and (7) employ staff supportive of offender rehabilitation—criminal activity can be reduced by as much as 50 percent.21 Career Profile CHAPTER 4 Diversion and Probation Michael Constantakos U.S. Probation Officer, U.S. District Court, Northern District of Florida, Pensacola Florida Michael Constantakos is a U.S. probation officer for the U.S. District Courts, Northern District of Florida, Pensacola Division. He is only one of three probation officers dedicated to this investigative unit in the Pensacola Division. In the course of one year, Constantakos averages writing over 40 presentence reports. He has been employed with the U.S. Probation Office for 14 years, 13 of which have been dedicated to the presentence unit. Prior to this assignment, Constantakos was a U.S. Pretrial Services Officer whose duties included writing pretrial bond reports and supervising pretrial defendants. He received his bachelor’s of science degree from the College of Architecture, Urban and Public Affairs at Florida Atlantic University. After he received his degree,M Constantakos was hired by the Florida Department of Corrections as a probation and parole officer. He served I of Florida, Constantakos in this capacity for nine years. While employed by the state furthered his education and received a master of arts degree L in public administration at Florida Atlantic University. Constantakos attributes his love of reading and writing E to leading him to his current position as a presentence writer. He notes that this position S requires copious hours of reading offense reports as well as current case law regarding sentencing trends. Constantakos added there are also many hours writing, “a short story about the defendant’s life.” As a presentence writer, he must interview the defendant’s family members, record the defendant’s prior criminal history, and obtain reports concerning S the defendant’s educational, mental, and/or substance abuse treatment. The position requires the officer to digest the material, condense it, and H provide feedback to the court for a fair and just sentence. This is not so easy to do under statutorily imposed A deadlines. Constantakos reported, “In some cases, law enforcement has been N to put all this information investigating the suspects for years and we have only 30 days together.” N Constantakos’ desire is to ensure that every defendant sentenced in the federal O does not just mean the court system is treated fairly. However, he asserts that “fairly” same sentence for the same crime. The sentence must also N take into consideration the defendant’s past, present, and possible future behavior. It is this desire that makes him work hard every day to obtain the most information possible about a defendant within the time constraint imposed by federal statute. He1strongly believes the more information he obtains about the defendant, the more informed the court will be in 9 rendering a fair and just sentence. Constantakos advises anyone who seeks a career as 0a federal probation officer, specifically in the investigative field writing presentence reports, to “fine tune and 9 The officer is required to build on” her or his verbal and written communication skills. communicate with a variety of people, including law enforcement T officers, prosecutors, defense attorneys, and judges. “How effective you are in your communication skills will S ultimately play a part in the outcome of the case.” We also know that recidivism rates vary from place to place, depending on the seriousness of offenses, population characteristics, average length of probation, and the amount and quality of intervention, surveillance, and enforcement. James Gondles Jr., executive director of the American Correctional Association, argues that, by the time offenders reach probation, other institutions of social control have failed. If the offending behavior could have been controlled, families, neighborhoods, schools, “How effective you are in your communication skills will ultimately play a part in the outcome of the case.” 105 106 PART 2 Community Corrections and other social institutions would have controlled it. Offending behavior is not easy to correct and for that reason, Gondles believes that probation systems across the United States need help. [Probation officers] are often held accountable for the failures of other elements of the criminal justice community. Therefore, all of us in corrections must help them by doing our own jobs better, to escape the perception that they are ineffective. We must work together to ensure that all elements of the criminal justice system receive adequate funding and that all elements of the criminal justice system work closer together to provide offenders with the services they require.22 The APPA, representing U.S. probation officers nationwide, argues that recidivism rates measure just one probation task while ignoring others. The APPA has urged its member agencies to collect data on other outcomes, such as the following: • • • • • • • • • • M amount of restitution collected; I employed; number of offenders amounts of finesL and fees collected; hours of community E service performed; number of treatment sessions attended; S percentage of financial obligations collected; , in school; rate of enrollment number of days of employment; educational attainment; and S number of days drug free. H Advocates of measures other than recidivism tell us that probation A what offenders do while they are in probation should be measured by programs, not by whatNthey do after they leave. CO4-10 N WHAT PROBATION OFFICERS DO O Ntwo important roles: case investigation and client Probation officers have supervision. Before we explain those roles, let us discuss the danger and stress of probation work. 1 officer work can be dangerous. In fact, a survey Probation and parole of probation officers in 9 four states found that 39 to 55 percent have been victims of work-related violence or threats. Research in three other states indicated that officers 0 who reported violent and sexual recidivism on their caseload, offender suicide, 9 and threats and/or assaults in the line of duty scored significantly higher on measures of traumatic stress and burnout compared to officers Twho did not have these experiences.23 This may explain why 35 states S allow probation officers to carry firearms. In North Carolina, for example, all probation officers carry .40-caliber handguns.24 However, the physical dangers of the job are not the major sources of a probation officer’s stress. It’s high caseloads, paperwork overload, and deadline pressure. As reported later in this chapter, the average caseload of a probation officer is very high—139 cases—and computers haven’t necessarily reduced the stress. In fact, even with computerized management information systems, officers still deal with hardware and software problems. And the problem with deadlines is that many of them are unexpected and cannot be controlled. National Institute of Justice (NIJ) researchers found that when they asked probation and parole officers how they deal with stress in a positive CHAPTER 4 way, more officers cited physical exercise than any other technique. Other positive ways include discussing cases with other officers, seeking support through religion, “venting,” education, training and stress management programs, and talking to a family member. On the negative side, many officers reported dealing with stress by taking extra sick days, requesting transfers, or applying for early retirement. In addition to dealing with stress, building a relationship with the offender and developing rapport are also important. Scholars and practitioners tell us that probation officers must be aware of the cultural differences between themselves and their probationers and understand that diversity if they are to build rapport and help change offending behavior. Recall from our earlier discussion that the majority of probationers are male and almost half are members of minority groups. Slightly more than half of the probation officers are female, and three-fourths of all POs are white. The demographic differences between POs and probationers M raise questions on how probation officers can build rapport across gender, race, and ethnicity. Without rapport, experts Ibelieve there is more likelihood that probationers will miss scheduled appointments, not follow L through on referrals, violate the conditions of probation, reoffend, and E to build rapport end up back in the system. Experts suggest five strategies between the probationer and probation officer.25 S Diversion and Probation 107 Visit dcps15movie.wmv or scan this code with the QR app on your smartphone or digital device and watch the podcast of two Washington, D.C. supervision officers discuss the challenges and rewards of being a community supervision officer. How does this information relate to ideas discussed in this chapter? 1. Sincerity is one thing that allows probationers ,to forgive probation officers who violate a cultural norm such as saying the wrong thing. 2. High service energy sends a message to probationers that the probation officer is in their corner. The probationersSmay think that less service energy has something to do with ethnic differences. H 3. Knowledge of the probationers’ culture increases empathy in the A if the probacross-cultural counseling relationship. For example, tioner speaks English as a second language, it would N be helpful in building rapport for the officer to learn key words and phrases in N the probationer’s native language. Ocredibility. 4. A nonjudgmental attitude increases the officer’s 5. Helping probationers with needed resources facilitates rapport N building and officer credibility. The United States Probation and Pretrial Services Charter for Excellence (similar to a code of ethics) shown in the accompanying Ethics and Professionalism box rein1 forces these rapport-building strategies. 9 0 Case Investigation 9 Case investigation includes the preparation of a presentence report (PSR), T PSR is prepared by which the judge uses in sentencing an offender. The the probation department of a court; it provides aSsocial and personal history as well as an evaluation of a defendant as an aid to the court in determining a sentence. In some states, for example, Missouri, the report is called a sentence assessment report.26 As the centerpiece of Missouri’s sentencing guidelines, it sets forth the recommended sentence options and the appropriate correctional resources available both in the community and in prison. Purposes of the Presentence Report The PSR has two main purposes. First, and most important, the PSR assists the court in reaching a fair sentencing decision. The specific content areas of the PSR vary from jurisdiction to jurisdiction, but common areas include case investigation The first major role of probation officers, consisting of interviewing the defendant and preparing the presentence report (PSR). 108 PART 2 Community Corrections A probation officer interviews a defendant in preparation of the presentence report (PSR). Case investigation is the first major role of a probation officer. The PSR provides a social and personal history as well as an evaluation of the defendant as an aid to the court in determining a sentence. What questions should a probation officer ask the defendant? M I L E S , (1) information regarding the current offense; (2) the offender’s past adult and juvenile criminal S record; (3) family history and background; and (4) personal data about education, health, employment, and substance abuse H state statutes dictate content areas such as vichistory. In addition, some tim-impact statements. AIt is not uncommon for jurisdictions to include a sentencing recommendation in the PSR. However, sentencing reforms N are limiting judicial sentencing discretion, so the PSR recommendation is much less important than it once was. N The second purpose of the PSR is to outline a treatment plan for the O offender. During the investigation, in addition to determining the degree of risk the offender poses to the community, the probation officer identiN fies treatment needs so that the offender can receive appropriate services (counseling, treatment, education, community service, restitution, employ1 supervision) during probation or in jail or prison. ment, and some form of In most cases, the court orders the PSR after conviction but before sen9 tencing. The defendant reports to the probation department if released 0 on bond pending sentencing. Otherwise, the probation officer visits the defendant in jail. 9 T Creating a Presentence Report The PSR starts with an interview between the S PO and the defendant. The interview follows a structured format for obtaining information on the offense and the offender. In the PSR, the PO estimates the offender’s degree of risk to the community and need factors (sociological, psychological, and economic) that impact criminal behavior. They administer a comprehensive risk and needs assessment that differentiates between the high-risk offenders, who need multiple face-to-face contacts, drug tests, and other surveillance checks each week, and the low- or reduced-risk offenders who require minimal surveillance to be successful. The PO summarizes the information gathered and, in most jurisdictions, makes a sentence recommendation. If the sentence recommended is CHAPTER 4 Diversion and Probation 109 Ethics and Professionalism United States Probation and Pretrial Services the court in making fair pretrial release, sentencing, and supervision decisions; Charter for Excellence. We, the members of Probation and Pretrial Services of the United States Courts, are a national system with shared professional identity, goals, and values. We facilitate the fair administration of justice and provide continuity of services throughout the judicial process. We are outcome driven and strive to make our communities safer and to make a positive difference in the lives of those we serve. We achieve success M through interdependence, collaboration, and local innovation. We are committed to excellence as a system and to the I principles embodied in this Charter. L E Our profession is distinguished by the unique combination of: S A multidimensional knowledge base in law and human , behavior; We are a unique profession. A mix of skills in investigation, communication, and analysis; Ensuring defendant and offender compliance with court-ordered conditions through community-based supervision and partnerships; Protecting the community through the use of controlling and correctional strategies designed to assess and manage risk; Facilitating long-term, positive changes in defendants and offenders through proactive interventions; and Promoting fair, impartial, and just treatment of defendants and offenders throughout all phases of the system. We stand by these values. Our values are mission-critical: Act with integrity. Demonstrate commitment to and passion for our mission. S Be effective stewards of public resources. A capacity to provide services and interventions from H Treat everyone with dignity and respect. pretrial release through post-conviction supervision; Promote fairness in process and excellence in service to A position of impartiality within the criminal justice A the courts and the community. system; and N Work together to foster a collegial environment. A responsibility to positively impact the community and N Be responsible and accountable. the lives of victims, defendants, and offenders. O These goals matter most. N Ethical Dilemma 4–1: Does gender or celebOur system strives to achieve the organizational goals of: Upholding the constitutional principles of the 1 presumption of innocence and the right against 9 excessive bail for pretrial defendants by appropriately balancing community safety and risk0 of nonappearance with protection of individual liberties; 9 Providing objective investigations and reports with verified information and recommendations to assistT rity status play a role in who gets probation? For more information, go to Ethical Dilemma 4–1 at www.justicestudies. com/ethics07. Ethical Dilemma 4–2: Should probation officers be advocates for sentencing reform? Why or why not? What are the issues? For more information, go to Ethical Dilemma 4–2 at Ethical Dilemmas for every chapter are available online. S incarceration, in most jurisdictions the length must be within guidelines set by statute (see Chapter 3). However, if the sentence recommended is probation or some other intermediate sanction (see Chapter 5), few jurisdictions have guidelines for sentence length. Only recently have some states (e.g., Delaware, Minnesota, North Carolina, and Pennsylvania) begun to design sentencing guidelines for nonprison sentences such as probation. Copies of the PSR are filed with the court and made available to the judge, the prosecutor, and the defense attorney. Exhibit 4–8 is an example of a short-form federal PSR. Space does not allow us to include everything. 110 PART 2 Community Corrections EXHIBIT 4–8 Sample Presentence Report IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA UNITED STATES OF AMERICA ) ) ) ) ) v. EDDIE PALMER Prepared For: Honorable Casandra Phillips U.S. District Judge Prepared By: Noelle Koval U.S. Probation Officer Birmingham, AL (205)555-0923 Offense: Docket No. CR 09-H-248-S M I Possession With Intent to Distribute a Schedule II Controlled Substance L (Cocaine Base), not less than 10 Years and not more than Life and/or $4,000,000 Fine. E With Enhancement, Mandatory Life and/or $8,000,000 Fine. S Released on $25,000 unsecured bond on 8/26/12 Remanded to custody on 12/14/12 , Count One: Release Status: Identifying Data Date of Birth: Age: Race: Sex: PRESENTENCE REPORT 1/9/78 35 B M S H A Charge(s) and Conviction(s) N Eddie Palmer was indicted on two counts by the September 2012 Grand Jury for the Northern District of Alabama. Count One charged that on June 12, 2012, the defendant unlawfully possessed with intent toN distribute approximately 500 grams of a mixture or substance containing a detectable amount of cocaine, Schedule II controlled substances, in violation of 21 USC § 841(a)(1). Count Two charged O that on June 12, 2012, the defendant carried a firearm during the commission of a drug trafficking crime in violation of 18 USC § 924(c)(1). The October 2012 Grand Jury returned a superseding indictment in whichN the defendant was charged in two counts. Count One charges that on June 12, 2012, the defendant intentionally possessed with intent to distribute approximately 100 grams of a mixture or substance containing a detectable amount of cocaine base and approximately 240 grains of a mixture or substance containing a detectable amount of cocaine, Schedule II controlled substances, in violation of 21 1 USC § 841(a)(1). Count Two charges that on June 12, 2012, the defendant carried a firearm during the commission of a drug trafficking crime in violation of 18 USC § 924(c)(1). On December 14, 2012, 9 of the government. Sentencing was continued generally to Palmer pled guilty to Count One, and Count Two was dismissed on motion a later date. 0 9 T Not shown here is the S officer’s summary of the defendant’s pretrial adjustment, substance abuse history, education and vocational skills, employment record, financial condition, and necessary monthly living expenses. Disclosure of Presentence Reports One of the most important questions about the PSR is whether the defendant has a constitutional right to see it and challenge the statements contained in it. Some judges and probation officers oppose disclosure for several reasons. First, they fear that persons having knowledge about the offender will refuse to give information if the defendant knows they have given information about him or her. Second, they believe that, if the defendant challenges information in the PSR, court proceedings may be unduly delayed. Third, CHAPTER 4 Diversion and Probation 111 EXHIBIT 4–8 Sample Presentence Report (continued) SENTENCING RECOMMENDATION UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA UNITED STATES V. EDDIE PALMER DOCKET NO. CR 09-H-248-S TOTAL OFFENSE LEVEL: 29 CRIMINAL HISTORY CATEGORY: III Statutory Provision Guideline Provisions Recommended Sentence CUSTODY: Mandatory Life Mandatory Life Life PROBATION: N/A N/A N/A SUPERVISED RELEASE: Not Less Than 10 Years 10 Years 10 Years M $15,000 to $8,000,000 $15,000 RESTITUTION: N/A N/A N/A I L Justification The sentence of life is mandatory. Supervised release must beE ten years. A $15,000 fine is recommended because it is incumbent upon the defendant to demonstrate that he does not have the financial ability to pay a fine. He and his attorney have not cooperated in providing information, and it appears that he does have the abilitySto pay the minimum fine based on his purported monthly income from trafficking in illegal drugs. , FINE: $8,000,000 Voluntary Surrender The defendant is in custody. S H A N N opponents believe that to give the defendant some kinds of information, such as psychological reports, might be harmful toOthat defendant. And fourth, they argue the PSR is a private and confidential N court document. On the other hand, advocates of disclosure argue that fundamental fairness and due process demand that convicted persons should have access 1 is based so they to the information in the PSR on which their sentence can correct inaccuracies. However, the U.S. Supreme Court has held, in 9 Williams v. Oklahoma (1959), that unless disclosure is required by state 0 law or court decisions, there is no denial of due process of law when a court considers a PSR without disclosing its contents to the defendant or 9 giving the defendant an opportunity to rebut it. T The trend today is toward limited disclosure of information to the defendant’s attorney. The American Bar Association favors disclosure of the S factual contents and conclusions of the PSR (not the sources of confidential information) and the defendant’s opportunity to rebut them.27 Federal courts require that the PSR be disclosed to the defendant, his or her counsel, and to the attorney for the government, except in three instances: when disclosure might disrupt rehabilitation of the defendant, when information disclosed in the PSR was obtained on the promise of confidentiality, and when disclosure might result in harm to the defendant or any other person. Technology and Case Investigations Today, technological innovations are affecting where and how POs do their job. Software packages can generate PSRs from data from official records and interviews Respectfully submitted, Noelle Koval Noelle Koval U.S. Probation Officer The Offender Speaks Visit to see this feature. 112 PART 2 Community Corrections The Staff Speaks Visit to see this feature. Visit FederalCourts/PPS/Fedprob/2011-09/starr. html or scan this code with the QR app on your smartphone or digital device and read how federal probation officers are using core correctional skills to change offenders’ behavior and target dynamic risk factors. How does this information relate to ideas discussed in this chapter? supervision The second major role of probation officers, consisting of resource mediation, surveillance, and enforcement. entered by probation officers. The software programs can also calculate risk assessment scores. A PO can edit the report before submitting it to the court. The trend toward telecommuting is also affecting probation officers’ case investigations. Telecommuting (or teleworking) is usually defined as an employee working at home or other telework facility for at least one day a week during regularly scheduled business hours, supported by the necessary hardware and software. Some jurisdictions are finding that presentence officers are successful telecommuters. The U.S. Probation Office in the Middle District of Florida found that presentence officers reported an increase in job satisfaction and a higher level of productivity. They reported to the office to interview defendants, meet with attorneys, attend court hearings, and perform other routine office duties. They spent the remainder of their time at their residences working on their investigations. The officers averaged 2.5 to 3.0 days a week telecommuting. Their work was transmitted electronically through a secure intranet mailing system. M Telecommuting was not effective for supervision officers, however, who I were needed in the probation office to handle the needs of their offenders and who had to travelLin the field to meet their probationers. E The second major roleSof probation officers is client supervision. Probation supervision has three , main elements: resource mediation, surveillance, Supervision and enforcement. Resource mediation means providing offenders access to a wide variety of services, such as job development, substance abuse treatment, counseling,Sand education. Surveillance means monitoring the activities of probationers through office meetings, home and work visits, H drug and alcohol testing, and contact with family, friends, and employers. A Enforcement means making probationers accountable for their behavior and making sure theyN understand the consequences of violating the conditions of probation. Client supervision N that uses prosocial modeling and reinforcement, problem solving and cogniO tive techniques are core skills for reducing N recidivism in probation supervision. Caseload The average PO in the United States supervises approximately 139 offenders.28 Such large caseloads do not allow probation officers time for adequate resource mediation, surveillance, or enforcement. A number of jurisdictions are experimenting with Probation Automated Management (PAM). The PAM kiosk is similar to an ATM and allows low-risk probationers to report in 24 hours a day, seven days a week, with their fingerprints as biometric identifiers. The fingerprints are compared to the ones collected when the offender first began probation. Some kiosks also take a digital face photo. Once a match is established, the offender can interact with the kiosk by pressing buttons on the touch screen. Data are entered to verify address and employment status and to respond to questions asked by the probation officer. Advocates of probation kiosks argue that they save scarce jail beds for those offenders posing a serious risk to the community and that probation officers 1 9 0 9 T S Olmsted County (Rochester, Minnesota) probation officer Bernie Sizer (right), tests Kevin Rood for alcohol during a visit to Rood’s apartment. Case supervision is the second major role of a probation officer. What are the three main elements of case supervision? CHAPTER 4 can devote more of their face-to-face time with serious offenders. Most departments that use probation kiosks still require the offender to report face-to-face, perhaps once a month. What is the ideal caseload for probation and parole? The issue has been discussed for as long as there have been professionals in the field. Because probation and parole are pluralistic, highly decentralized, and engaged in by hundreds of departments at the federal, state, county, and municipal levels across the United States, in the early 1990s the APPA adopted the position that a workload model that focused on the amount of time that is required to supervise a particular case up to standards was a sounder, more defensible method of determining the number of staff to supervise an agency’s caseload. Yet legislators and policymakers continued to ask, “What is the ideal caseload size?” Recognizing the need for straightforward caseload stanM dards, in 2006 the APPA consulted experienced practitioners I 1990s and researchers. It found that with the emergence in the of the body of research on correctional treatment L effectiveness known as evidence-based practices, a robust set of effective strategies E of caseload stanof correctional treatment could guide the development dards. The key is to use evidence-based practices. The S APPA believes that “community corrections agencies need to stop wasting time on what does , resources on what not work or what may even do ‘harm’ and focus their does work and does do ‘good’ in terms of public safety.”29 Based on current best practices, APPA recommends that probation S departments should: H and needs, as 1. Effectively assess probationers’ criminogenic risks well as assess their strengths; A 2. Employ smart and tailored supervision strategies; N 3. Use incentives and graduated sanctions to respond promptly to proN bationers’ behaviors; 4. Implement performance-driven personnel management practices O that promote and reward recidivism reduction. N The number of cases that can be supervised by a probation or parole officer based on the type of case and level of supervision is shown in 1 EXHIBIT 4–9 Adult and Juvenile Caseload Standards 9 0 ADULT STANDARDS Case Type Cases-to-Staff Ratio 9 Intensive 20:1 T Moderate to high risk 50:1 S Low risk 200:1 Administrative No limit? 1,000? JUVENILE STANDARDS Case Type Cases-to-Staff Ratio Intensive Moderate to high risk Low risk Administrative 15:1 30:1 100:1 Not recommended Source: American Probation and Parole Association, Caseload Standards for Probation and Parole (Lexington, KY: APPA, September, 2006). Reprinted with permission of Mr. William D. Burrell. Diversion and Probation 113 At the entrance to the Olmsted County jail in Rochester, Minnesota, first- and secondtime offenders convicted of drunk driving are required to appear before the automated kiosk once a month and check in by handprint to answer questions about their progress. Probation kiosks are used to supervise lowrisk offenders who do not require face-to-face contact with a probation officer. What advantages and disadvantages do you see in this approach? 114 PART 2 Community Corrections EXHIBIT 4–10 State of Georgia General Conditions of Probation The court shall determine the terms and conditions of probation and may provide that the probationer shall: 1. avoid injurious and vicious habits; 2. avoid persons or places of disreputable or harmful character; 3. report to the probation supervisor as directed; 4. permit the supervisor to visit him at his home or elsewhere; 5. work faithfully at suitable employment insofar as may be possible; 6. remain within a specified location; 7. make reparation or restitution to any aggrieved person for the damage or loss caused by his offense, in an amount to be determined by the court. Unless otherwise provided by law, no reparation or restitution to any aggrieved person for the damage or loss Mcaused by his offense shall be made if the amount is in dispute unless the same has been adjudicated; I 8. make reparation or restitution as reimbursement to a municipality or county for the payment for medical L care furnished the person while incarcerated pursuant to the provisions of Article 3 of Chapter 4 of this title. No reparation or restitution E unit for the provision of medical care shall be made if the to a local governmental amount is in disputeS unless the same has been adjudicated; 9. repay the costs incurred by any municipality or county for wrongful actions by an , inmate covered under the provisions of paragraph (1) of subsection (a) of Code Section 42-4-71; 10. support his legal dependents to the best of his ability; S H 12. if permitted to move or travel to another state, agree to waive extradition from any jurisdiction where A he may be found and not contest any effort by any jurisdiction to return him to this state. N Source: Georgia Department of Corrections, Probation Division, General Conditions of Probation, Code Section 42-8-35. N O N the caseload size recommendations flexible by Exhibit 4–9. APPA made 11. violate no local, state, or federal laws and be of general good behavior; and stating them in terms of cases-to-staff ratios so agencies that use a team approach can use the recommendations, and framed them as numbers not 1 to be exceeded. Framing the recommendations helps reduce the chance that better staffed agencies9will not be forced to allow caseloads to increase. Regardless of their 0 level of supervision, all probationers are subject to “general” conditions of supervision. These include reporting to a probation officer as directed,9paying court-ordered monies, working, obeying all laws, and being “of general T good behavior.” Exhibit 4–10 presents, as an example, the general conditions for all probationers in Georgia. The court S conditions” that relate directly to the offender’s may also order “special particular crime or history. For example, a person convicted of cybercrime may be subject to the special conditions shown in Exhibit 4–11. Technology and Supervision As in case investigation, there is a wide variety of technological tools to help POs in client supervision that only a few years ago did not exist. Computer programs can track fine and probation payments, alert POs when their clients are behind on payments, and help them track whether probationers have satisfied the conditions of their sentences. Kiosk reporting, secure remote alcohol detection, voice verification, facial recognition, and radio-frequency identification chips that are designed to fit under the skin and can be read in a manner similar to a bar code at the grocery store are electronic tools that have the potential to CHAPTER 4 Diversion and Probation 115 EXHIBIT 4–11 Specific Probation Conditions for Computer Crime (A 5 Internet Access Permitted; B 5 Limited or 0 Access to Internet) A B You shall consent to your probation officer and/or probation service representative conducting periodic unannounced examinations of your computer(s) equipment which may include retrieval and copying of all memory from hardware/software to ensure compliance with this condition and/ or removal of such equipment for the purpose of conducting a more thorough inspection; and consent at the direction of your probation officer to having installed on your computer(s), at your expense, any hardware or software systems to monitor your computer use or prevent access to particular materials. You hereby consent to the periodic inspection of any such installed hardware or software to insure it is functioning properly. X X You shall not possess encryption or steganography software. X X You shall provide your probation officer accurate information about your entire computer system and software; all passwords used by you; and your Internet Service Provider(s). X X M approved by your probation officer. You You shall possess only computer hardware or software shall obtain written permission from your probation officer prior to obtaining any additional comI puter hardware or software or Internet Service Provider(s). X X X X L that relates to the activity in which you You shall refrain from using a computer in any manner were engaged in committing the instant offense or violation behavior, namely _______________. E You shall provide truthful information concerning your identity in all Internet or E-Mail communiS locations/sites where minors are known cations and not visit any “chat rooms” or similar Internet to frequent. , X You shall maintain a daily log of all addresses you access via any personal computer (or other computer used by you), other than for authorized employment, and make this log available to your probation officer. S X You shall not create or assist directly or indirectly in the creation of any electronic bulletin board, H Internet Service Provider, or any other public or private network without the prior written consent of your probation officer. Any approval shall be subject A to any conditions set by the U.S. Probation Office of the Court with respect to that approval. X N X You shall not possess or use a computer with access to any “on-line” computer service at any Nprior written approval of the U.S. Probalocation (including employment or education) without tion Office of the Court. This includes any Internet Service Provider, bulletin board system, or any O other public or private computer network. Any approval shall be subject to any conditions set by the U.S. Probation Office or the Court with respect toN that approval. X You shall not purchase, possess, or receive a personal computer which utilizes a modem, and/or an external mode. X You will have an occupational condition that you can1not be employed directly or indirectly where you are an installer, programmer, or “trouble shooter” 9 for computer equipment. 0 9 enhance community supervision. Companies such asTProbationComm and POcheck are hosted web services that save money by hiring fewer officers S in less time, make and that help supervision officers handle more cases X Source: Arthur L. Bowker and Gregory B. Thompson, “Computer Crime in the 21st Century and Its Effects on the Probation Officer,” Federal Probation, vol. 65, no. 2 (September 2001), p. 21. reporting and payments easier for the offender, save time with a better and faster communication system (for example, e-mail and instant messaging), and focus resources on high and moderate risk offenders. Another technological innovation, one of the more interesting strategies for managing the three elements of probation supervision, is mapping technology or geographic information systems (GIS). Mapping has helped law enforcement locate hot spots of crime. Police departments used to map with pins on a “point map.” Today, mapping is done electronically and affords complex and instant analyses. Probation departments use mapping as a tool for the management of offenders in the community. Mapping helps ensure that probation and parole officers are dispersed in areas with high concentrations of offenders. X 116 PART 2 Community Corrections A probation officer interviews a crime victim. Case investigation is one of a probation officer’s most important tasks. What questions would you ask a crime victim as part of the investigation? M I L E S For example, the Wisconsin Department of Corrections found through mapping that “if you ,have an area with a drug usage problem, we would bring drug programming to that area. Really, our experience was we got better attendance and better completion rates with that.”30 The Center for Alternative SentencingSand Employment in New York uses mapping to monitor employment rates in areas where ex-offenders will reside and, with H agencies, helps them find a job link upon leavthe assistance of community ing prison. Learn moreA about the role of technology in offender supervision, parole hearings, and victim notification in Chapters 5, 8, 11, 13, and 14. CO4-11 revocation hearing A due process hearing that must be conducted to determine whether the conditions of probation have been violated before probation can be revoked and the offender removed from the community. revocation The formal termination of an offender’s conditional freedom. N Revocation of Probation N If the offender willfully violates the conditions of his or her probation, a O revocation hearing is usually the next step. A revocation hearing is a due N be conducted by the court or probation authorprocess hearing that must ity to determine whether the conditions of probation (or parole as we will see in Chapter 8) have been violated before probation can be revoked and the offender removed 1 from the community. Revocation is the formal termination of an offender’s 9 conditional freedom. Revocation is a serious matter for four reasons. First, the offender might lose his or her freedom0to remain in the community. Second, the handling of probation violators9by supervision agencies and courts consumes a significant portion of the court’s time, energy, and resources. One jurisdiction T to the equivalent of more than two full-time proestimated that, in addition bation officers, the various S stages of the probation violation process consume the equivalent of a full-time judge, prosecutor, and courtroom staff.31 Third, the cost of keeping an offender under probation supervision is much lower than that required for care and treatment in prison or jail. For example, we saw in Exhibit 4–5 that the per day cost of probation ranges from $3.07 to $8.97, depending on the level of supervision and risk an offender poses, but it costs $50 to $60 per day to keep an offender in jail and $60 to $75 per day to keep an offender in prison. And fourth, imprisoning offenders who otherwise would have been placed on probation may force their families to go on welfare or make greater demands on community resources. Still, revocation is the only way to protect the community from some offenders who refuse to abide by the conditions of probation. A group of CHAPTER 4 Diversion and Probation 117 leading officials in the field of probation and parole, the Reinventing Probation Council, recently concluded that the reason probation has not been able to protect the public is lax enforcement of the probation rules. The council stresses, “All conditions of a probation sentence must be enforced. The response must be swift and sure.”32 Swift and sure is what we are now finding across the United States. Recently a judge in Hawaii took a group of “high-risk” probationers, gave them “warning hearings,” and told them that while the rules of probation were not changing, the old rules would now be strictly enforced.33 Those who violate the conditions of probation would be arrested. Probationers who fail a morning drug test would be arrested immediately, appear in court within hours, and have the terms of their probation modified to include a short jail stay (usually over a weekend in order to promote ongoing employment). The judge also assured those who needed drug treatment, mental health therapy, or other social services that they M would get the treatment they needed and were expected to attend and I random drug tests complete the program. Hawaii’s program that requires of probationers and, for those who fail, an immediate Lshort stint (typically two days) in jail with no exceptions has been copied in Michigan, South Dakota, Texas, and Washington. All sites report theEsame results: drastic reductions in illicit-drug and/or alcohol use, reoffending, S revocation, and time behind bars.34 Hawaii’s HOPE probationers are longtime criminally active drug users with an average of 17 prior arrests.,According to an independent study funded by the National Institute of Justice, when compared to offenders on standard probation, offenders on HOPE Probation were 55 percent less likely to be arrested for a new crime,S72 percent less likely to use drugs, 61 percent less likely to skip appointments H with their supervisory officers, and 53 percent less likely to have their probation revoked. That suggests to the researchers that more than mereA deterrence is at work; HOPE clients seem to be gaining the ability to control N their own behavior. N Violations That Trigger Revocation Revocation is triggered in one of two ways. Either offenders willfullyOviolate the technical conditions of their probation, or they commit new offenses. N A technical violation is failure to comply with conditions of probation. It is not a criminal act; most revocations are the result of technical viola1 Institute of Cortions. According to a report published by the National rections, the most likely reason for prison incarceration 9 of probation (and parole) violators is a technical violation.35 The most commonly committed 0 participate in treattechnical violations are positive urinalysis, failure to ment, absconding (fleeing without permission of the9jurisdiction in which the offender is required to stay), and failure to report to the probation officer. Most probation officers do not ask the courtTto revoke probation for an occasional technical violation. They understand S that technical violations are supervision issues and best handled by program or treatment referrals. One analyst in the NIC report commented, “If our jails and prisons are filled with offenders who are merely noncompliant, there will be no room for the dangerous offender.”36 To ensure compliance, probation officers can tighten the offender’s supervision with a reprimand, increase reporting requirements, limit travel or other privileges, increase drug/alcohol testing, make treatment/education referrals, restructure payments (for probationers who demonstrate an inability to pay in accordance with the court-established payment plan), or extend the terms of probation. A new offense violation is the arrest and prosecution for the commission of a new crime. Depending upon the seriousness of the new offense, technical violation A failure to comply with the conditions of probation. absconding Fleeing without permission of the jurisdiction in which the offender is required to stay. new offense violation The arrest and prosecution for the commission of a new crime. 118 PART 2 Community Corrections the court may, in response to a violation of probation (or parole, see Chapter 8) based on a new offense, impose a sentence of incarceration upon revocation of probation, plus any new sentence of incarceration that may be imposed for the new offense. The two sentences may be imposed to run concurrently or consecutively (see Chapter 3). In the case of parole, a new offense violation may trigger return to prison to serve out the unexpired sentence plus the sentence for the new offense. The point to remember is that a substantial percentage of the prison population each year is composed of probation (and parole) violators. Visit 1972/1972_71_1225 or scan this code with the QR app on your smartphone or digital device and listen to the oral arguments before the United States Supreme Court in Gagnon v. Scarpelli on Tuesday, January 9, 1973, and decided May 14, 1973. How does this information relate to ideas discussed in this chapter? Revocation Hearings Revocation hearings usually begin with a violation report prepared by the probation officer. They are governed by the 1973 U.S. Supreme Court decision known as Gagnon v. Scarpelli. In this case, the Court said that there was no difference between probation and parole revocationMbecause both of them resulted in loss of liberty. The Court extended the same rights to probationers that it had granted I in Morrissey v. Brewer. The Court ruled that to parolees a year earlier probation cannot be revoked without observing the following elements of L due process: E 1. written notice of the charge; S 2. disclosure of the evidence to the probationer; , be heard in person and present evidence as well 3. the opportunity to as witnesses; 4. the right to confront and cross-examine witnesses; S 5. the right to judgment by a detached and neutral hearing body; H of the reasons for revoking probation; and 6. a written statement A under “special circumstances” depending 7. the right to counsel on the offender’s competence, case complexity, and mitigating N circumstances. N The Scope of O Community Supervision We end this chapter by circling back N to the beginning. At yearend 2011, 1 in 33 adults in the United States was under community supervision (probation and parole). How equipped are states to handle almost 4 million persons on probation and protect1public safety when you evaluate the resources given to probation? Probation receives only 10 percent of the corrections bud9 get but supervises 80 percent of the correctional population. By contrast, prisons receive 90 percent 0 of the corrections budget while supervising only 20 percent of the correctional population. 9 Exhibit 4–12 ranks the states in terms of the percentage of their adult T supervision (probation and parole) in 2007. It population on community also shows the ratio of adults under community supervision to the adult S population in each state. For example, Georgia has the largest percentage of its adult population under community supervision (6.5 percent). One in every 15 adults in Georgia is under community supervision. By contrast, New Hampshire has the smallest percentage of its adult population under community supervision (0.64 percent). Only 1 in every 155 adults in New Hampshire is under correctional supervision. Where does your state rank and why? [5] INTERMEDIATE SANCTIONS Between Probation and Incarceration CHAPTER OBJECTIVES After completing this chapter you should be able to do the following: M I L E S , 1 Define intermediate sanctions and describe their purpose. S H A N N O N 5 Describe what a sentence to community service entails. 1 9 0 9 T S 3 Explain what drug courts are. 4 Explain how day fines differ from traditional fines. 6 Explain what day reporting centers are. 7 Describe how remote-location monitoring works. 8 Explain what residential reentry centers are. 9 Identify the major features of boot camps. 10 Define community corrections. 11 Explain what community corrections acts are. The use of intermediate sanctions is a cost-effective way to keep low-level offenders, such as drug and/or alcohol offenders, in the community, allowing them to avoid the criminogenic effects imprisonment may have. “ “ 2 Describe how intensive supervision probation works. —Michael Tonry, professor of law and public policy, University of Minnesota Law School Can electronic monitoring keep someone from becoming a criminal in the first place? That is the hope of many college athletic programs across the country. In February 2012, The Harvard Crimson reported that Harvard’s head men’s basketball coach Tommy Amaker had announced that he had assigned his assistant coaches to monitor what players on the team are saying on their personal Twitter accounts. “Just like we like to monitor their whereabouts, monitor their academics, we need to monitor their Twitter accounts as well,” Amaker said to The Crimson.1 In June 2012, the NCAA criticized University of North Carolina officials for inadequately monitoring student athletes’ activity on social networks. That ruling had important implications for all college athletic departments. Across M the country, athletic departments have been forced to decide between I potentially being cited L for “failure to monitor” and upsetting privacy rights groups for monitoring or Ebanning social media use by their players. Yale has a similar monitoring policy. S Its basketball coach James Jones has begun visiting the online pages , of his athletes to monitor what they are saying. “We’ve become a cyber society, and more and more, everything is getting online, so we monitor and S make sure guys are following the line,” Jones said. Some believe that monitoring tweets for curse words, illegal activity, and H A State head coach Jimbo Fisher found his players tweeting things such as N “Child support is worse than AIDS.” N A cottage industry has cropped up devoted to electronically monitoring O players. Kevin Long is the CEO and creator of UDiligence, a service that N jokes that go too far can become major issues if left unmonitored. Florida monitors Facebook and Twitter posts made by college athletes. Once a department signs up for Long’s service, athletes are told to install an app 1 9 through the players’ past and current posts and tweets, searching for 0 over 400 keywords such as “stripper” and “shotgun.” When even a photo 9 caption or comment contains one of the keywords, it is added to a list T of alerts that is sent daily to the athlete and periodically to the school’s S athletic department. Big-name schools such as The University of Texas on their Facebook and Twitter accounts. A computer program then filters at Austin, Louisiana State University, and the University of Florida have signed up for the service. Long said, “As more and more incidents [occur] where athletes post things that end up in the media, it certainly has 124 increased the interest in making sure athletes are responsible about what they are posting,” including keeping them from getting in trouble with the law in the first place. Expectedly, privacy rights groups are less than thrilled to hear that business is booming. Many have raised concerns that monitoring services such as UDiligence may chill students’ speech. According to Bradley Shear, an attorney who writes a blog about social media law, lawyers have at times dissuaded universities from signing up for such services due to liability issues. If a student were to write a post online about committing a crime, the school could be blamed for negligence if it failed to take action after seeing that information via social media monitoring. Nevertheless, UDiligence M and companies like it are increasingly popular. Do you I think that the threat of intermediate sanctions discussed in this chapterLis a viable option in preventing illegal or embarrassing tweets? E S , S H Sanctions less restrictive than prison but more restrictive A than probation are not new. Variations of intermediate sanctions like many of those discussed later in this chapter (restitution, fines, andNcommunity service) were used as sentences in ancient Israel, Greece, and N Rome. Other intermediate sanctions—such as drug court, remote-location monitoring, boot camps, and day fines—started in the 1980s asOa way to respond to an increasing number of convicted offenders and widescale prison overN INTERMEDIATE SANCTIONS Visit software-protects-college-athletes-onlineno-nos or scan this code with the QR app on your smartphone or digital device and listen to the podcast of American Public Media’s Marketplace discuss UDiligence software. How does this information relate to ideas discussed in this chapter? intermediate sanctions New punishment options developed to fill the gap between traditional probation and traditional jail or prison sentences and to better match the severity of punishment to the seriousness of the crime. CO5-1 crowding. Prior to this, sentencing options were limited to incarceration or probation. However, there was growing sentiment that some crimes were too severe to be punished by placing the offender on probation, 1 but those same crimes were not severe enough to warrant incarceration. 9 Therefore, states started to develop a series of intermediate sanctions that fell somewhere between probation and incarceration. 0 What is new today is the effort to bring all these sanctions together into a comprehensive 9 sentencing system like the one suggested in Exhibit 5–1, which provides T judges an expanded menu of corrections options. Relatively less intrusive interventions proportional to the severity of a violation and the risk of S the offender are to the left in Exhibit 5–1; more intrusive ones are to the right. Exhibit 5–1 is also multidimensional, creating depth for each step on the continuum. For example, if an offender on intensive supervision probation (ISP) fails to report as scheduled (whether to an ISP officer or via an automated probation machine as described in Chapter 4) and is relatively low risk, it may be appropriate to require more frequent reporting for a period of time within ISP than to move to the next higher level of intervention. 125 126 PART 2 Community Corrections EXHIBIT 5–1 Probation A Three-Dimensional Continuum of Intermediate Sanctions Intensive supervision probation (ISP) Control of offenders in the community under strict conditions through frequent reporting to a probation officer with a limited caseload. Drug court Special court that is given responsibility to handle cases involving drug-addicted offenders. Restitution, fines, and day fines Regular payments to crime victims or to the courts. Used alone or in conjunction with probation or ISP. Community service Completion of a set number of hours of work in and for the community. Used alone or in conjunction with probation or ISP. M I L E are most often used for offenders considered Intermediate sanctions nonviolent and low risk. S They usually require the offender to lead a productive life in the community by working (finding work if unemployed) , to perform unpaid community service; to pay or learning new job skills; restitution to victims; to enroll in a treatment or educational program; or sometimes to do all of these. S are sometimes referred to as alternatives to Intermediate sanctions incarceration. They may H be used at initial sentencing, after an offender has made progress in compliance and treatment, or as a way to reduce the A correctional population. N Value of Intermediate Sanctions N Since January 1, 2002,Othe nation’s jail and prison population has continued to exceed 2 million inmates. This level of increase in the nation’s prisons and jails places a N heavy economic burden on taxpayers. That burden includes the cost of building, maintaining, and operating prisons and jails as well as the loss of offenders’ contributions and the cost of caring for the 1 behind. In addition, overcrowded jails and prisdestabilized families left ons are hard to manage 9 and staff, and they invite disorder. The fiscal crisis that began in December 2007 is moving many governors and legislators 0 and turn to intermediate sanctions as a way to to think “outside the cell” keep low-level offenders 9 out of prison and in their communities. Here’s a look at how states are using intermediate sanctions2: T • Colorado is jailing fewer low-level drug offenders, diverting more S abuse treatment centers, sentencing more offenders to substance offenders to intermediate sanctions, increasing the use of parole and reentry for parolees, lessening penalties for persons who violate the conditions of probation or parole, and increasing good time credit. • Since 2011, at least 13 states have closed prison institutions or are contemplating doing so, potentially reducing prison capacity by more than 13,900 beds. • Florida eliminated prison sentences for certain third-degree felonies that do not involve the use or threat of violence. • Indiana and Pennsylvania approved similar legislation that provides a statewide framework for the implementation of problem-solving courts such as drug court, mental health court, family dependency CHAPTER 5 EXHIBIT 5–1 A Three-Dimensional Continuum of Intermediate Sanctions (continued) Jail or prison Day reporting Reporting to a central location every day to file a schedule with the supervision officer, showing how each hour will be spent. • Remotelocation monitoring Restriction of offender to home except when at work, school, or treatment. Used in conjunction with ISP. Residential reentry centers Residential settings for selected offenders as a supplement to probation. Usually linked with community service or substance abuse treatment. Boot camp Rigorous military-style regimen for younger offenders designed to accelerate punishment while instilling discipline. Often with an educational component. M I L court, community court, reentry court, veterans Ecourt, and domestic violence court. S The Georgia General Assembly is debating a shift in emphasis , offenders. toward alternatives to prison time for nonviolent • The Illinois governor signed laws to increase the use of community alternatives, revise sentencing laws, and implement a rational S approach to risk assessment. H • Kansas restored early release for nonviolent inmates, diverted lowlevel drug cases to treatment, and expanded reentry programs for A parolees. N its prison • Kentucky expects to save $422 million and reduce population by more than 3,000 inmates over the N next 10 years through the implementation of the 2011 Public Safety and Offender O Accountability Act. The law ensures that there is more prison space N stop the revolving for violent and career criminals while helping to door for lower-risk, nonviolent offenders. • Louisiana expanded the use of home arrest and expanded the length of time a felon can be sentenced to house arrest1from two to four years. 9 • Michigan created the Michigan Prisoner Reentry Initiative (MPRI) 0 to plan, support, and sustain local programs providing alternatives 9 and parole supervision. • Mississippi lawmakers decided in 2008 to cut prison costs by T allowing all nonviolent offenders to be considered for parole after serving 25 percent of their sentences instead ofS85 percent. • Missouri judges are provided information on evidence-based practices and what particular sentences would cost the taxpayers. • Nebraska and three other states (Arkansas, Illinois, and New Jersey) established oversight committees to examine sentencing policies, prison overcrowding, and reentry services. • New Jersey adopted risk assessment instruments to aid parole boards in considering release issues, expanded drug courts, day reporting, and electronic monitoring statewide; increased the number of persons granted parole; and increased reentry services for parolees. • New York State invested in intermediate sanctions that focus services on individuals otherwise bound for jail and prison. Intermediate Sanctions 127 128 PART 2 Community Corrections • North Carolina developed an evidence-based approach that is expected to reduce prison costs by investing in intermediate sanctions. • Oklahoma expanded eligibility for community sentencing and the use of parole for nonviolent offenders. • South Carolina has removed mandatory minimums for first-time offenders. • Texas avoided the $2 billion cost to build and operate new prisons by spending $241 million on new probation and parole programs, halfway houses, and specialty courts for drug offenders, veterans, drunk drivers, and those with mental illness and now requires all drug possession offenders with less than a gram of drugs be sentenced to probation instead of jail time. • Vermont legislators made probation standard for misdemeanors and nonviolent felons, gave courts authority to sentence certain Marrest for up to 180 days instead of prison, offenders to house and expanded eligibility for adult drug court diversion to include I second-time misdemeanants, not just first-time offenders. L • Washington developed the Family and Offender Sentencing E nonviolent offenders who have not committed Alternative for some sex offenses and who have custody of children under the age of 18. S The reform efforts in , these and other states have common elements: • In each state, the governor supported reform efforts by appointing department heads authorized to reduce incarceration. S director became an ardent spokesperson for • The state corrections the initiative. H • Initiatives were put A under the administrative control of outspoken champions of the broad goal of reducing incarceration. N • Strong research capabilities were directed to improve program design and operations with the objective of reducing incarceration. N • New York and Michigan in particular formed collaborative O relationships with stakeholders, politically influential persons, and N perhaps most important, local and community groups and agencies. • Successful states have recognized that no one solution or program— whether it is intermediate sanctions, reentry programming (discussed in Chapter 8) or 1 sentencing reform—will solve the problem of mass incarceration. Multiple and coordinated strategies are important. 9 • Local and national 0 private nonprofit advocates promoted and explained the value of reform goals to government officials, the 9 media, and the public. • A developed infrastructure of nonprison programs (intermediate T sanctions) provided services necessary to support defendants and former prisonersS in the community. Professional associations too are calling for greater use of intermediate sanctions. The American Jail Association, for example, believes that intermediate sanctions—not prison—should be the backbone of the corrections systems (see Exhibit 5–2). This kind of thinking enables criminal justice officials to give nonviolent offenders intermediate sanctions, thereby teaching them accountability for their actions and heightening their chances for success in the community while reserving expensive prison and jail space for violent offenders. Advocacy of intermediate sanctions by professional organizations such as the American Jail Association, the American Correctional Association, the American Probation and Parole Association, and the International Community Corrections CHAPTER 5 Intermediate Sanctions EXHIBIT 5–2 American Jail Association Resolution Intermediate Punishments WHEREAS, the American Jail Association (AJA) recognizes the detrimental impact that crowding places on local jails; and WHEREAS, many of those who are incarcerated in jails do not pose a known danger to themselves or to society; THEREFORE BE IT RESOLVED THAT AJA supports the expansion of intermediate punishments in states and localities throughout America for offenders who do not pose a known danger to public safety. AJA believes that intermediate punishments address real concerns of constituents. Source: Copyright © American Jail Association. Reprinted with permission. M Association can significantly advance career opportunities. Consult the I Appendix: Careers in Corrections at the Online Learning Center Web site L employability and for the steps involved in career planning, developing job readiness, and finding the right job. E Finally, numerous national and statewide polls tapping public attitudes S about preferences for intermediate sanctions with treatment over incarceration give policymakers and legislators breathing room on moves to reduce , prison populations during this time of budget crises in states. The public supports intermediate sanctions with treatment over incarceration for lowS level drug offenders, and they favor sentencing nonviolent offenders to community service or probation instead of imprisonment.3 “When the pubH lic is made aware of the possible range of punishments, and given informaA tion about how and with whom they are used, they support alternatives to sponsored by the Pew incarceration.”4 In 2010 and again in 2012, surveys N Center on the states found that a majority of 1,200 registered voters believe N could be released that too many people are in prison, a fifth of prisoners without posing a threat to public safety, and there are O more effective, less expensive alternatives to prison for nonviolent offenders and that expandN rate. Furthermore, ing those alternatives is the best way to reduce the crime they supported the “justice reinvestment” concept of using money saved from cutting back on prison expenditures for intermediate sanctions.5 1 of reasons. First, Intermediate sanctions are valuable for a number they provide a means for offenders who are not dangerous to repay their 9 victims and their communities. Second, intermediate sanctions promote rehabilitation—which most citizens want, but most0prisons and jails find difficult to provide—and the reintegration of the offender into the com9 munity. And third, once the programs are in place, they can do these T things at a comparatively low cost. Compare the lower costs of intermediS 5–3. ate sanctions with jail and those for prison in Exhibit Intermediate sanctions should not be haphazardly planned or implemented. High-quality intermediate sanctions must be thoughtfully conceived, effectively targeted, well planned, and well staffed. Perhaps the most important lesson learned from 20 years’ experience with intermediate sanctions is that “they are seldom likely to achieve their goals unless means can be found to set and enforce policies governing their use. Otherwise, the combination of officials’ risk aversion and practitioners’ preferences to be guided solely by their judgments about appropriate penalties in individual cases is likely to undermine program goals.”6 Do some judges go too far in crafting innovative intermediate sanctions? You be the judge. In Cleveland, Ohio, Judge Pinkey Carr sentenced a man for threatening a police officer to stand outside a police station The Offender Speaks Visit to see this feature. 129 130 PART 2 Community Corrections EXHIBIT 5–3 Average Annual Cost of Correctional Options Correctional Option Boot camp Cost per Year per Participant $32,119 Prison 28,646 Jail 27,237 Halfway house 18,000 Day reporting 10,585 Intensive parole supervision 8,318 Remote-location monitoring 5,400 Drug court 4,333 Parole 3,402 M 3,274 I Community service 2,759 L Probation 1,278 E House arrest 402 Sources: Adapted from Linh Vuong,S Christopher Hartney, Barry Krisberg, and Susan Marchionna, The Extravagance of Imprisonment Revisited (Oakland, CA: NCCD, January 2010); “New Study Reveals Franklin County Day Reporting Center Reaps Rewards for Counties,” Franklin County, PA, January , 6, 2011, Seeking Justice: Crime and Punishment in America (New Intensive probation supervision York: Edna McConnell Clark Foundation, 1977), p. 34; Camille Graham Camp and George M. Camp, Adult Corrections (Middletown, CT: Criminal Justice Institute, 2001), pp. 87, 125, 188, 198; Camille Graham Camp and George M. Camp, Jails (Middletown, CT: Criminal Justice Institute, 2001), p. 42; Web site of the National Association of Drug Court Professionals,; James J. Stephen, State Prison Expenditures, 2001 (Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics, June 2004); and Pew Center on the States, One in 31: The Long Reach of American Corrections (New York: Pew Charitable Trusts, March 2009). S H A wearing a sign that read, “I apologize to Officer Simone and all police N calling 911 threatening to kill you. I’m sorry officers for being an idiot and it will never happen N again.” The judge gave the sign her personal touch and hand-lettered the sign herself. It may be funny, but is it legal O and does it have a rehabilitative purpose? George Washington University law professor Jonathan Turley argues that “stunt” sentences rarely have N anything to do with legal justice and are better suited to courtroom reality shows. However in 2004’s United States v. Gementera, the Ninth Circuit ruled that the district1court judge who sentenced a mail thief to wear a sign that read, “I stole mail; this is my punishment.” imposed the punish9 ment for the stated and legitimate statutory purpose of rehabilitation and 0 to a lesser extent for general deterrence and for protection of the public. 9 Varieties of Intermediate Sanctions T The specific varieties of intermediate sanctions discussed in the following subsections includeSintensive supervision probation, drug courts, fines, community service, day reporting centers, remote-location monitoring (formerly known as house arrest and electronic monitoring), residential reentry centers, and boot camps. intensive supervision probation (ISP) CO5-2 Control of offenders in the community under strict conditions by means of frequent reporting to a probation officer whose caseload is generally limited to 30 offenders. Intensive Supervision Probation Probation with frequent contact between offender and probation officer, strict enforcement of conditions, random drug and alcohol testing, and other requirements is known as intensive supervision probation (ISP). Estimates on the number of persons currently on ISP are not known. However, in 2001, Camp and Camp reported that approximately 5 percent (122,938) of the adult population on probation or parole was on ISP.7 If we estimated only 5 percent CHAPTER 5 of today’s probation and parole population on ISP, we’re likely to find more than 200,000 adults on ISP. As a technique for increasing control over offenders in the community, ISP has gained wide popularity. It allows offenders to live at home but under more severe and more punitive restrictions than those of conventional probation. The primary purpose of such program restrictions and surveillance is to protect the community and deter the offender from breaking the law or violating the conditions of release. Requirements of ISP usually include performing community service, attending school or treatment programs, working or looking for employment, meeting with a probation officer (or team of officers) as often as five times a week, and submitting to curfews, M employment checks, and tests for drug and alcohol use. Because of the frequency of contact, subjection Ito unannounced drug tests, and rigorous enforcement of restitution, community L service, and other conditions, ISP is thought more appropriate for higher-risk offenders. E ISP was initially the most popular intermediate sanction. It emerged in the 1960s as an effort to improve offender rehabilitation by reducing proS bation and parole caseloads from 100 or more to 30. However, research, ers soon discovered that small caseloads led to enhanced supervision and control (and more violations) but not necessarily to enhanced treatment.8 It wasn’t until ISP combined supervision and control with treatment comS clearly identified ponents and skill development programs and reinforced 9 behaviors that it became effective. H Evidence-based research on ISP has produced two main findings. First, A surveillance and restraining offenders in the community by increasing control over their activities does not reduce theirNcriminal activities.10 Offenders sentenced to surveillance-oriented ISP programs commit new N crimes at about the same rate as comparable offenders receiving differO rates are typically ent sentences. Also, technical violation and revocation higher for ISP surveillance-oriented programs because N more frequent contact makes misconduct more likely to be discovered. Early proponents of surveillance-oriented ISP programs argued that ISP would reduce recidivism rates, rehabilitate offenders, and save money 1 and prison resources. However, most evaluations suggest that the combination of high revoca9 savings unlikely.11 tion rates and the cost of processing revocations makes On the other hand, scientific analysis of 10 treatment-oriented ISP 0 programs indicates, on average, a statistically significant 21.9 percent 9 reduction in the recidivism rates of program participants compared with successful.”13 a treatment-as-usual group12—what some call “extremely T Two ISP programs that the U.S. Department of Justice says have strong S outcomes are the evidence indicating that they achieve their intended Reduced Probation Caseload programs in Iowa and Oklahoma. In Iowa, ISP significantly reduced the likelihood of recidivism by 47 percent for property and violent crime and 20 percent for all offenses. In Oklahoma, the results showed that the treatment group was arrested less often than the control group. At the maximum 1½-year follow-up, the treatment group had a significantly lower probability of recidivism than the control group with a roughly 30 percent lower recidivism rate.14 According to the editors of the Criminal Justice Newsletter, “The lesson from this research is that it is the treatment—not the intensive monitoring—that results in recidivism reduction.”15 Rearrests are reduced when offenders receive treatment in addition to the increased surveillance and control of ISP programs. Intermediate Sanctions 131 An ISP officer explains court-ordered sanctions to a probationer. Frequent face-to-face contact is a condition of ISP. What other controls are used to monitor offenders on ISP? 132 PART 2 Community Corrections CO5-3 drug court A special court that is given responsibility to treat, sanction, and reward drug offenders with punishment more restrictive than regular probation but less severe than incarceration. Drug Courts Can you cure addiction by locking it up? Some say it doesn’t cure it but makes it worse. Enter drug court, a recent innovation within the American criminal justice system. Drug court is a special court that is given responsibility to handle cases involving drug-addicted offenders.16 Drug courts vary across jurisdictions and no drug court is exactly the same as the next, but there are two general types: deferred prosecution programs (pretrial diversion or “preplea”) and postadjudication (postsentencing). People who enter a deferred prosecution program are diverted into the drug court system before being convicted, are not required to plead guilty, and are prosecuted only if they fail to complete the program. Postadjudication (postplea) programs require participants to plead guilty to the charges against them and have their sentences deferred or suspended while they are in the program. The sentence will be waived or M reduced, and often the offense will be expunged from their record if they complete the program.I The case will be returned to court, and the people will face sentencing on L their previously entered guilty plea if they fail to satisfy the program requirements. E intermediate sanction that uses the power of the Drug court is a new court to treat, sanction, S and reward drug offenders with punishment more restrictive than regular probation but less severe than incarceration. In 1989, troubled by ,the devastating impact of drugs and drug-related crime on Dade County (Florida) neighborhoods and the criminal justice system, Miami judge Herbert M. Klein developed the nation’s first drug S States and its territories have almost 2,600 drug court. Today, the United 17 courts. From 1980 to H2008, the number of people in state prisons for a drug offense increased 1,223 percent.18 Estimates are about 25 percent of A and 5 percent in federal prison were convicted of the people in state prison drug possession, not selling. N In addition to the adult drug court that most of us are familiar with, N new forms of drug courts are emerging.19 The different types today O include N Court uses veterans as mentors to help other 1. Veterans Treatment veterans engage in treatment and counseling to address their unique needs. Since the first veterans court was established in Buffalo, New 1 York, in 2008, 120 such programs have been opened in 35 states, 9 are planned across the nation according to and about 200 others Justice for Vets.200 2. DWI Court, a postconviction court, is dedicated to changing the 9 behavior of alcohol-dependent repeat offenders arrested for DWI. T targets parental substance abuse in juvenile 3. Family Drug Court abuse, neglect, and dependency cases. S 4. Federal Reentry Court is a postadjudication court that provides a blend of treatment and sanction alternatives to address behavior, rehabilitation, and community reentry for nonviolent, substanceabusing federal offenders. 5. Juvenile Drug Court handles selected delinquency cases and in some instances, status offenders who are identified as having problems with alcohol and/or other drugs. 6. Reentry Drug Court facilitates the reintegration of drug-involved offenders into communities upon their release from local or state correctional facilities. CHAPTER 5 Intermediate Sanctions 133 7. Tribal Healing to Wellness Court is a component of the tribal justice system that incorporates and adapts a wellness concept to meet the specific substance abuse needs of each tribal community. 8. The Back on TRAC clinical justice model targets college students whose excessive use of substances has continued despite higher education’s best efforts at education, prevention, or treatment and has ultimately created serious consequences for themselves or others. In comparison with the aims of other types of courts, those of the drug court are much less punitive and more healing and restorative in nature. This new approach integrates substance abuse treatment, sanctions, incentives, and frequent court appearances with case processing to place drug-involved defendants in judicially supervised rehabilitation programs. Successful completion of the treatment program results in dismissal of the charges, reduced or set-aside sentences, lesser penalties, or a M combination of these. Compared to the small number of scienI tific studies examining the effectiveness of L other intermediate sanctions on reducing criminal activity, a relatively large number E of evidence-based studies are examining the S effectiveness of drug courts. At least five independent analyses have concluded that , drug treatment courts have achieved success in lowering rates of recidivism among S drug offenders. Courts significantly reduce the future criminal activities of offenders H an average of approximately 7 to 14 per21 A cent. In some evaluations, drug court participants who completed their program had N rearrest rates 12 to 58 percent below those N of the comparison group. The most influential components of the drug treatment court model are O the role of judicial status hearings, drug treatment, and the drug treatment judge. N Six drug court treatment programs that the U.S. Department of Justice says have strong evidence that they achieve their intended outcomes are the Bronx (NY) Treatment Court, the Brooklyn (NY) Treatment Court, 1 the Multnomah the Jackson County (OR) Community Family Court, County (OR) Sanction Treatment Opportunity Progress (STOP) Drug 9 Program, the Queens (NY) Treatment Court, and the Suffolk County 0 (NY) Drug Treatment Court.22 Drug courts are also cost-effective. Evaluations of 9 drug courts nationwide find that they save taxpayers money compared to probation and/or T incarceration due to reductions in arrests, case processing, jail occupancy, S for Public Policy and victimization costs. The Washington State Institute estimated the annual cost of drug court participation to be $4,300 per person compared to $23,000 per year for incarceration.23 Despite the successes of drug courts during the past 20 years, they remain available to less than 10 percent of drug addicted offenders. Although every state has at least one drug court, only a handful of states—like New Jersey and New York—have one in every county.24 Advocates say the main reason for their scarcity is a lack of money. Drug courts received about $64 million in federal money in 2009. The National Association of Drug Court Professionals says that $1.5 billion over the next six years in federal money— along with matching money from states—could treat all who need it. Judge Sarah Smith congratulates drug court participant Bronco Anderson in her Tulsa, Oklahoma, courtroom for completing phase one and moving to phase two of the drug court program. Drug courts treat, sanction, and reward drug offenders with punishment more restrictive than regular probation but less severe than incarceration. What are the key components of drug court? Visit aspx?ID549 or scan this code with the QR app on your smartphone or digital device and learn about the evaluation outcomes of the six drug court treatment programs that the U.S. Department of Justice says have strong evidence indicating they achieve their intended outcomes. How does this information relate to ideas discussed in this chapter? 134 PART 2 Community Corrections However, in spite of the success of the nation’s drug courts, there are two problems with relying on the criminal justice system to address substance use that need consideration. First, people who receive treatment through the criminal justice system face the collateral consequences of arrest, prosecution, and conviction; and second, they are not able to address their addiction before being arrested for a drug-related offense due to the lack of community-based treatment options. CO5-4 fine A financial penalty used as a criminal sanction. day fine A financial penalty scaled both to the defendant’s ability to pay and the seriousness of the crime. Fines A fine is a financial sanction requiring a convicted person to pay a specified sum of money. The fine is one of the oldest forms of punishment. It is, in practice, the criminal justice tool for punishing minor misdemeanors, traffic offenses, and ordinance violations. In the United States, fines are rarely regarded as a tough criminal sanction. They are not taken seriously for at least four reasons. First, judicial, legislative, and prosecutorial attitudes M restrict the use of fines to traffic offenses, minor misdemeanors, and ordinance violations. Second, a judge seldom I has enough reliable information on an offender’s personal wealth to impose a just fine. Third, mechanisms for collecting fines are often inefL fective. Far too often the responsibility for collecting fines has been left to probation officers,E who are already overburdened and have no interest in fine collection. S As a result, fines are seldom paid. Fourth, many believe that fines work a hardship on the poor while affluent offenders , feel no sting. A day fine is a financial penalty based on the seriousness of the crime and the defendant’s ability to pay. It is called a day fine because it is based on the offender’s dailyS income. Day fines, also called structured fines, have been common in someH northern and western European countries for many years. They were introduced in Sweden in the 1920s and were quickly A incorporated into the penal codes of other Scandinavian countries. West Germany adopted dayNfines as a sentencing option in the early 1970s. Today, Sweden and Germany have made day fines the preferred punishN ment for most criminal cases, including those involving serious crimes. O day fines are the only punishment for threeIn Germany, for example, quarters of all offenders N convicted of property crimes and two-thirds of offenders convicted of assaults.25 In most Scandinavian countries, day fines are used for punishing traffic offenses. For example, the day fine of an heir to a family-owned sausage business in Finland was caught 1 driving 50 miles per hour (mph) in a 25-mph zone and fined $217,000. 9 showing his wealth at $8 million, he was given With Finnish tax records a world-record speeding 0 fine. His fine more than doubles the existing records of a $96,000 fine given in 2002 to Annssi Vanjoki, a Nokia vice president, for driving 9 his Harley-Davidson 17 miles above the speed limit on a Helsinki street; aT$31,200 fine given in 2001 to Pekka Ala-Pietila, Nokia president, for driving through a red light; a $71,000 fine given S in 2000 to Jaakko Rysola, dot-com millionaire, for zigzagging through Helsinki in his Ferrari; and a $122,974 fine given in 2009 to the heir of a Norwegian shipping family for drunk driving. If Tiger Woods’ car crash had happened in any of these countries, he would have paid a day fine of more than $300,000 rather than a fixed fine of $164 because he makes roughly $10 million each month.26 The planning process for introducing day fines is unique for each jurisdiction, depending on its organizational structure, traditions, personalities, and legal culture. Exhibit 5–4 is a sample notification of a structured fine program. The notice may be mailed to a defendant or handed to the defendant when she or he appears in court. Every jurisdiction, however, CHAPTER 5 EXHIBIT 5–4 Sample Notification of a Structured Fine Program A PRELIMINARY COMPLAINT HAS BEEN FILED CHARGING YOU WITH AN INDICTABLE OFFENSE IF CONVICTED, THE COURT MAY IMPOSE ONE OR MORE OF THE FOLLOWING SANCTIONS: 1. JAIL OR PRISON 2. PROBATION 3. A FINE If a fine is imposed, the Court may structure the level of the fine partly according to the seriousness of the offense and partly in relation to your means or ability to pay the fine. This method of computing M the amount of a “structured fine” is an effort by the Court and the Polk County Attorney’s Office to equalize the impact of criminal sanctionsI and to reduce the number of persons who are sentenced to prison, jail, or formal probation. L In order for the County Attorney’s Office to consider E recommending a structured fine to the Court at the time of sentencing, you or your attorney must schedule an interview with a Structured FinesS Officer at 555-1234, IMMEDIATELY. If you intend to secure an attorney to represent you on , this charge, please make these arrangements prior to calling the Structured Fines Program. S of time needed Your ability to pay a structured fine as well as the length to pay the fine are based on the information you provide in the attached H AFFIDAVIT OF FINANCIAL CONDITION. It is required that you and/or your attorney complete this form prior to meeting with a Structured Fines OffiA cer. It is also required that you take to your meeting with the Structured Fines Officer verification of your income in the formNof paycheck stubs, income tax returns, etc. N POLK COUNTY ATTORNEY’S OFFICE O STRUCTURED FINES PROGRAM POLK COUNTY COURTHOUSE, ROOMNB-40 DES MOINES, IOWA 50309 555-1234 1 Appointments with a Structured Fines Officer are available Monday through Friday, from 1:30 P.M. to94:30 P.M. 0 9 addresses similar issues: current sentencing patterns, T current fine collection operations and their effectiveness, goals and priorities for the day fine S program, and potential legal challenges to the program. Once a system for imposing day fines is put in place, the next step is to develop a structured process for setting fines. This structured process is the feature that distinguishes day fines from traditional fines. The process usually has two parts: (1) a unit scale that ranks offenses by severity and (2) a valuation scale for determining the dollar amount per unit for a given offender. The first step in setting a day fine is to determine the number of fine units to be imposed. A portion of the unit scale used in a Staten Island, New York, day fine experiment is shown in Exhibit 5–5. The number of units ranges from a low of 5 to a high of 120 for the most serious misdemeanors Intermediate Sanctions 135 136 PART 2 Community Corrections EXHIBIT 5–5 Example of a Day Fine Unit Scale Staten Island Day Fine Unit Scale (Selected Offense Categories) Number of Day Fine Units Penal Law Charge 120.00 AM 1 2 Type of Offense Assault 3: Range of 20–95 DF A. Substantial Injury Stranger-to-stranger; or where victim is known to assailant, he/she is weaker, vulnerable B. Minor Injury Stranger-to-stranger; or where victim is known to assailant, he/she is weaker, vulnerable; or altercations involving use of a weapon C. Substantial Injury Altercations among acquaintances; brawls M D. Minor Injury Altercations among acquaintances; brawls Discount PRESUMPTIVE Premium 81 95 109 59 70 81 38 45 52 17 20 23 38 45 52 30 35 40 17 20 23 13 15 17 I 110/120.00 BM Attempted Assault 3: Range of 15–45 DF L A. Substantial Injury Stranger-to-stranger; or where victim is Eknown to assailant, he/she is weaker, vulnerable S B. Minor Injury Stranger-to-stranger; or where victim is known , to assailant, he/she is weaker, vulnerable; or altercations involving use of a weapon C. Substantial Injury S Altercations among acquaintances; brawls D. Minor Injury H Altercations among acquaintances; brawls 1. AM 5 Class A Misdemeanor; BM 5 Class B Misdemeanor. A N N O handled by the court.N For example, the presumptive number of units for 2. DF 5 Day Fines. Source: Adapted from Bureau of Justice Assistance, How to Use Structured Fines (Day Fines) as an Intermediate Sanction (Washington, DC: Bureau of Justice Assistance, 1996), p. 59. the offense of assault with minor injury and aggravating factors is 70; the range is from 59 to 81 units. The presumptive number is the starting point. 1 Negotiation and consideration of individual circumstances may raise or lower the number. There is no magic in the unit scale established. What 9 is important is to establish a scale broad enough to cover the full range of 0 courts that will use structured fines. offenses handled by the Once the unit scale is 9 established, the second step is to create a valuation table. The purpose of the valuation table is to establish the dollar amount T of the valuation table used in the Staten Island of each fine. A portion experiment is shown in S Exhibit 5–6. Net daily incomes run down the left side, and numbers of dependents run across the top. Net daily income is the offender’s income (after-tax wages, welfare allowance, unemployment compensation, etc.) divided by the number of days in a payment period. Staten Island planners also adjusted the net daily income downward to account for subsistence needs, family responsibilities, and incomes below the poverty line. Suppose a defendant convicted of assault, with minor injury and aggravating factors, has a net daily income of $15 and supports four people, including herself. Find the row for her net daily income. Move across the row to the column for the number of dependents. The figure there is the value of one structured fine unit for that defendant. Multiply the number CHAPTER 5 Intermediate Sanctions 137 EXHIBIT 5–6 Example of a Day Fine Valuation Table Staten Island, New York, Valuation Table Dollar Value of One Day Fine Unit, by Net Daily Income and Number of Dependents Number of Dependents (Including Self) Net Daily Income ($) 1 3 2 3 4 5 6 7 8 1.05 0.83 0.68 0.53 0.45 0.37 0.30 4 1.70 1.40 1.10 0.90 0.70 0.60 0.50 0.40 5 2.13 1.75 1.38 1.13 0.88 0.75 0.62 0.50 6 2.55 2.10 1.65 1.35 1.05 0.90 0.75 0.60 7 2.98 2.45 1.93 1.58 1.23 1.05 0.87 0.70 8 3.40 2.80 2.20 1.80 1.40 1.20 1.00 0.80 9 3.83 3.15 2.03 1.58 1.35 1.12 0.90 10 4.25 3.50 2.25 1.75 1.50 1.25 1.00 11 4.68 3.85 2.47 1.93 1.65 1.37 1.10 12 5.10 4.20 M2.48 I 2.75 3.03 L3.30 E3.58 S3.85 , 4.13 2.70 2.10 1.80 1.50 1.20 13 5.53 4.55 14 7.85 4.90 15 8.42 5.25 2.93 2.28 1.95 1.62 1.30 3.15 2.45 2.10 1.75 1.40 3.38 2.63 2.25 1.87 1.50 Source: Adapted from Bureau of Justice Assistance, How to Use Structured Fines (Day Fines) as an Intermediate Sanction (Washington, DC: Bureau of Justice Assistance, 1996), p. 64. S H fine unit (3.38). of fine units to be imposed (70) by the value of a single The product, $236.60, is the amount of the day fineA to be imposed. The National Institute of Justice (NIJ) sponsored an evaluation of N that judges used the Staten Island experiment. That evaluation showed day fines for many offenses for which they had formerly used fixed fine N amounts—including some property crimes, drug possession, and assault.27 O Research showed that the average fine increased by 25 percent, from $206 N were used. If day before the experiment to $258 during the year day fines fines had not been held low by state law, the average day fine would have been $440. The news on collections was also good. Eighty-five percent 1 fines in full, comof the defendants in the day fine program paid their pared with 71 percent in a control program using routine collection pro9 cesses. Furthermore, when full payment was not made, partial payment was much more likely in the day fine cases than in 0 cases from before the experiment or in the control group. Thus, the higher9fines levied in the day fine cases did not make collection more difficult, and the new enforcement procedures independently improved collection rates.T Even though day fines have been tried experimentally S in some areas of the United States including Arizona, Connecticut, Iowa, New York, and Oregon, there has been little evidence-based research on the effectiveness of fines in reducing recidivism rates. The Washington State Institute for Public Policy wrote that day fine programs need additional research and development before we can conclude that they do or do not work (i.e., reduce crime outcomes).28 However, because the use of fines could reduce the costs of courts and corrections and because day fines address problems of inequality, fines are a promising intermediate sanction. At present, most Western justice systems, except the United States, rely heavily on financial penalties. In the 21st century, U.S. jurisdictions are likely to continue their experiments with monetary penalties and to assign them greater importance. 138 PART 2 Community Corrections Community Service Community service is a sentence to serve a specified number of hours working in unpaid positions with nonprofit community service or tax-supported agencies. Community service is punishment that takes A sentence to serve a specified number of away an offender’s time and energy and is sometimes called a “fine hours working in unpaid positions with nonof time.” profit or tax-supported agencies. Community service as a criminal sanction began in the United States in 1966 in Alameda County, California. Municipal judges there devised a community service sentencing program for indigent women who violated traffic and parking laws. Too poor to pay fines, these women were likely to be sentenced to jail. But putting them behind bars imposed a hardship on their families. Community service orders (CSOs) increased sentencing options, punished the offenders, lightened the suffering of innocent families, avoided the cost of imprisonment, and provided valuable services to the community. As M Alameda judges gained experience with the new sentencI ing option, they broadened the program to include male offenders, juveniles, and persons convicted of crimes L more serious than traffic or parking violations. E Alameda County community service program The received S international attention. England and Wales developed pilot projects in the 1970s, using community service as a ,midlevel sanction between probation and prison and as an alternative to prison sentences up to six months. By 1975, community service had become a central feature S of English sentencing. The approach swept throughout Europe, Australia, New Zealand, and Canada. H However, what had begun as an American innovation A in the United States.29 Today in this country, atrophied community service is seldom used as a separate sentence. N Instead, it may be one of many conditions of a probaN tion sentence as in the case of Chris Brown. Nor is it O as an alternative to imprisonment in the United viewed States, N as it is in other countries. Generally speaking, in the United States, public officials do not consider any sanction other than imprisonment punitive enough. SubIn February 2009, R&B singer Chris Brown pled guilty to felony stituting 1 community service for short prison sentences assault of singer and then-girlfriend, Rihanna, leaving her with visible is not accepted. This is unfortunate because community facial injuries that required hospitalization. Brown was sentenced to 9 is a burdensome penalty that meets with wideservice five years probation and 180 days of community service. In Septem30 spread 0 public approval, is inexpensive to administer, ber 2012, Bryan Norwood, chief of police in Richmond, Virginia, wrote and produces public value. Also, it can be scaled to the a letter to Brown’s sentencing judge in Los Angeles claiming Brown 9 seriousness of the crime. Proponents of community serhad successfully completed 202 days of community service (although vice include the American Correctional Association (see he was required to perform only 180) and attached documents showT Exhibit 5–7 ). ing that Brown frequently worked at Tappahannock Children’s Center S (a place where Brown’s mother was once a director) performing odd Community service can be an intermediate sanction jobs such as painting, washing windows, waxing floors, cutting grass, by itself or be used with other penalties and requireand picking up trash. This photo shows Brown clearing brush along ments, including substance abuse treatment, restitution, railroad tracks near the Richmond Police Mounted Patrol stables in or probation. In the federal courts, community service September 2009. In January 2013, press reports surfaced suggestis not a sentence, but a special condition of probation ing that there were irregularities in the record submitted to the court or supervised release set forth in the presentence report. concerning Brown’s community service. Reports alleged that Brown Offenders sentenced to community service are usually was credited with community service work when in fact he was out of assigned to work for government or private nonprofit the United States. (In February 2013, police chief Norwood resigned.) agencies. They restore historic buildings; maintain In March 2013, the issue of the status of Brown’s community service parks and construct campsites; clean roadways and remains unresolved. What do you think? If community service is a county fairgrounds; remove snow from around pubcriminal sanction and valuable to the community, the victim, and the offender, how should it be supervised? lic buildings; perform land and river reclamation; and CO5-5 CHAPTER 5 Intermediate Sanctions 139 EXHIBIT 5–7 American Correctional Association Public Correctional Policy on Community Service and Restorative Justice Introduction: Establishing a sense of community is an important part of the rehabilitation process of offenders. Whether within an institution or as part of community corrections, it is beneficial to promote community service for offenders to assist their reentry into society and to promote the positive restoration within the community of the harm that criminal activity has caused. Policy Statement: The American Correctional Association supports community service for offenders and urges its use as consistent with correctional management principles and public safety objectives. M While promoting community service, justice systems and institutions must consider factors that contribute to the success Iof the effort for the offender and the public. L Therefore, when developing criteria for successful community service E efforts, criminal justice and rehabilitative programs must: A. Enhance public safety; S B. Integrate the offender into the community; , C. Contribute to principles of restorative justice; D. Gain public support for programs and promoting acceptance of offenders; E. Enhance the self-esteem of offenders by using their time, talents and S skills to benefit themselves and others; F. Provide value to government, the community andH nonprofit organizations; A G. Provide valuable, transferable skills to offenders; N including family H. Balance community service with other responsibilities and work, and the availability of transportation; N I. Restore public confidence in offenders; and J. Maintain public confidence in the justice system. O Source: Copyright © American Correctional Association. Reprinted with permission. N 1 renovate schools and nursing homes. Offenders who are doctors may be 9 otherwise lack it. ordered to give medical service to persons who might Traffic offenders may be ordered to serve in hospital 0 emergency rooms unloading ambulances and helicopters to learn about the injuries they risk for themselves and others. Drug offenders who9are prominent sports figures may be ordered to lecture in high schools onTthe dangers of drugs. The service options are limited only by the imagination of the sentencing S the offender fulfills judge and the availability of personnel to ensure that the terms of the sentence. To become and remain a tough criminal sanction, community service must have credible and efficient enforcement mechanisms. By the late 1980s, some form of community service sanction was in use in all 50 states. When Congress passed the Comprehensive Crime Control Act and Criminal Fine Enforcement Act of 1984, it mandated that felons who receive a sentence (except for class A or B felony—the most serious) must be ordered to pay a fine, make restitution, and/or work in community service. The Bureau of Justice Statistics estimates conservatively that 6 percent of all felons in the United States are sentenced to perform community service, often in conjunction with other sanctions.31 Visit article/30116-inside-nic-a-discussion-withcommunity-services-division-chief-jimcosby or scan this code with the QR app on your smartphone or digital device and read the interview with Jim Cosby, Community Services Division Chief with the National Institute of Corrections and learn about his philosophy of community service. How does this information relate to ideas discussed in this chapter? CHAPTER 5 Intermediate Sanctions 141 States like Washington, Georgia, and Texas are making extensive use of community service. At least one-third of Washington’s convicted felons receive sentences that include community service. Washington State sentencing guidelines permit substitution of community service for incarceration at a rate of 8 hours of work for 1 day of incarceration, with a limit of 30 days. Most jurisdictions recognize 240 hours as the upper limit for community service. Washington State also is breaking new ground in sentencing reform with the idea of interchangeable sentences for nonviolent or not very violent crimes against strangers. The actual sentence depends on the offender and the purposes to be served. For those with little or no income, community service may substitute for a fine. Before offenders are sentenced to community service in Washington, they complete a community service order questionnaire (see Exhibit 5–8). The questionnaire helps the state department match the offender’s abilities and limitations with community service work. A community corrections officer then makes M sure the offender performs the required community service. There is no evidence-based corrections literatureI examining the effectiveness of community service on reducing criminal activity. What we find L instead are descriptions of community service programs in use across the E United States. Before it can be concluded that community service does or does not reduce criminal activity, strong research designs are needed. S Until then, the jury is still out on community service. , Day Reporting Centers A day reporting center (DRC) is a nonresidential community correctional center. Participants are allowed to S a strict schedule return home in the evenings, but are required to maintain that is closely monitored. H DRCs typically offer numerous services to address offenders’ problems, A and they strictly supervise offenders in a setting that is more secure than N differ from other probation but less inhibiting than incarceration. DRCs intermediate sanctions by a marked concentration on N rehabilitation. Staff members assess the offender’s needs and offer her or him various types O substance abuse of in-house treatment and referral programs, including treatment, education, vocational training, and psychological services. N DRCs have an aura of rigor that appeals to those wanting punishment and control of offenders, and it appeals to those advocating more access to treatment for offenders. While DRCs differ in the 1 type of offenders they serve, they all have three common threads: frequent reporting, significant 9 programming to assist offenders, and offender accountability. DRCs first developed in Great Britain in 1972. 0 British officials noted that many offenders were imprisoned not because they posed a risk to the public but because they lacked basic skills to 9 survive lawfully. Frequently, such offenders were dependent on drugs and T alcohol. In 1986, the Hampden County Sheriff’s Department in Springfield, Massachusetts, S established the first DRC in the United States. Ten years later, a National Institute of Justice survey identified 114 DRCs in 22 states.32 Since then, however, there has not been an accounting of DRCs across the U.S. DRCs provide rehabilitation for offenders through intensive programming, while retaining a punishment component by maintaining a highly structured environment. DRCs commonly require offenders to obey a curfew, perform community service, and undergo drug testing. Participants check in at the center in person daily or several times a week and telephone periodically. They are responsible for following a full-time schedule that includes a combination of work, school, and substance abuse or mental health treatment. Programs range in duration from 40 days to 9 months, and program content CO5-6 day reporting center (DRC) A community correctional center to which an offender reports every day or several days a week for supervision and treatment. 142 PART 2 Community Corrections EXHIBIT 5–8 Sample Community Service Order Questionnaire STATE OF WASHINGTON DEPARTMENT OF CORRECTIONS COMMUNITY SERVICE WORKER QUESTIONNAIRE AND RELEASE OF INFORMATION ___________________________________________________________________ __________________________ Name DOC Number By action of the Superior Court, or an administrative Department of Corrections action, you have been ordered to perform community service work. This work must be performed within an approved unit of government or non-profit agency. To help us find the best assignment for you, and ensure reasonable accommodation for any sensory, physical or mental limitations or disabilities that you may have, please supply the following information. You are not obligated to disclose conditions that do not relate to your ability to perform community service. 1. List your job skills. 2. Do you have a preference for a certain agency or a particular type of work that you would like to perform? If yes, describe: M I Monday _______________ Wednesday _______________ Friday _______________ L Tuesday _______________ Thursday _________________ Saturday _____________ E What means of transportation do you have to get to and from the work site? S Do you wear contacts or glasses? Yes No N/A , 3. List the hours and days you are available for work. 4. 5. 6. Are you pregnant? Yes No Sunday _______________ (circle one) N/A (circle one) 7. Are you currently taking any prescription medications that have side effects that may affect your ability to perform community S service work (i.e., drowsiness, slurred speech, etc.)? Yes No (circle one) H Note whether you have been diagnosed as having any of the following A problems: NYes No Yes No Severe Allergy Reactions Heart Problems N Epilepsy Breathing Disorders Hearing Loss Uncorrected Vision Problems O Balance Problems Diabetes Other N If “Yes,” describe side effects: 8. Yes No If “Yes,” please describe: 9. Is there any activity or motion that is difficult for you to do (i.e., crawling, climbing, bending, lifting, etc.)? 1 9 10. Do you have any other sensory, physical and/or mental limitations or disabilities that may affect your ability to do community 0 service? Yes No (circle one) If “Yes,” please describe: 11. You are required to provide to your Community Corrections Officer, a 9 clearance from your health care provider, documenting any sensory/physical/mental limitations or disabilities which impact your T ability to perform community service hours. This documentation is required within 30 days of today’s date, and will be at your expense. Release of information is on the reverse side. S Yes No (circle one) If “Yes,” please describe: Distributions: ORIGINAL-Community Service Worker, COPY-Worksite, Community Service Coordinator, File DOC 05-103 (REV 10/97) OCO COMMUNITY SERVICE PROGRAM differs. Most programs require a daily schedule of each participant’s activities. Some are highly intensive, with 10 or more supervision contacts per day, and a few include 24-hour remote-location or other electronic monitoring.33 Some centers refer clients to service agencies; others provide services directly. Some focus on monitoring; others emphasize support. CHAPTER 5 There have been few evaluations of DRCs. Early evaluations were favorable, but they were based on impressions rather than validated findings. The NIJsponsored survey showed generally high failure rates, averaging 50 percent. A study conducted on DRCs in North Carolina in 2000 compared the outcome of offenders sentenced to DRCs plus intensive supervision probation to that of offenders sentenced to intensive probation alone.34 The researchers found M that the addition of a DRC to I ISP did not significantly reduce the rate of rearrest. In fact, they L suggested that any rehabilitative E effect that DRCs may have is counterbalanced by increased surveillance. “The ‘piling S up’ of sanctions increases the likelihood of the offender’s exposure to numerous forms of , control and scrutiny culminating in frequent violations of the terms of the sentence.”35 On the positive side, however, the researchers found that DRCs empower the individual offender through literacy courses, a general S and anger manequivalency diploma (GED), substance abuse counseling, agement classes. H Recent studies of DRCs in Vigo County, Indiana,36 Cook County A 38 looked at rear(Chicago), Illinois,37 and Franklin County, Pennsylvania, rest and reincarceration and which variables were associated with program N completion. In Cook County, researchers discovered that almost one-half N of the DRC clients who remained in the program for at least 70 days had not been rearrested compared to only one-quarter O of the control group (those in the program fewer than 10 days). Similarly, N two-thirds of the DRC clients who remained in the program for at least 70 days had not been reincarcerated compared with less than one-half of the control group. In Vigo County, Indiana, 69 percent of the 1791adult offenders who were placed on DRC during the calendar years 1998 and 1999 success9 clients over age 40, fully completed the program. One-third did not. DRC married, either living alone or with their spouse, children, or parents, and 0 with little to no history of alcohol and drug abuse were more successful. 9 or two counts who DRC clients convicted of misdemeanors with only one received no charge reduction, who were in DRC as T a condition of probation, and whose sentence to DRC did not extend beyond 120 days were also more successful. The researchers showed thatSthe number of subjects who fail to complete the program increases as the sentence to DRC increases. In 2011, Franklin County, Pennsylvania, published the results of a DRC study conducted by researchers at Shippensburg University. The study followed adult probationers who completed the DRC program from December 16, 2006, to June 1, 2009, and compared them to inmates released to standard probation services from the jail in 2004. Researchers found probationers who completed the DRC program failed probation at a rate of 18.2 percent. In comparison, probationers referred to standard probation services from jail failed at a rate of 47.8 percent. The researchers also said Intermediate Sanctions 143 BI Incorporated, a private corrections provider with headquarters in Boulder, Colorado, operates day reporting centers in California, Colorado, Illinois, Kansas, New Jersey, New York, and Pennsylvania. One of the services offered at the centers is cognitive skills and behavioral restructuring courses that help offenders identify and change the antisocial beliefs, thoughts, and values that contribute to criminal behavior. Through the use of modeling, role-playing, and reinforcement, cognitive-behavioral interventions assist offenders in developing the positive thinking, judgment, and decision-making skills that promote pro-social behavior. What do we know about DRCs’ effectiveness in reducing criminal activity? 144 PART 2 Community Corrections A probation officer sets up an exclusion zone in red for an offender who is territoryrestricted. What are the pros and cons of remote location monitoring as a probationary strategy? CO5-7 remote-location monitoring Technologies, including Global Positioning System (GPS) devices and electronic monitoring (EM), that probation and parole officers use to monitor remotely the physical location of an offender. that because the DRC helped keep down the jail population, the county was able to lease jail space to other jurisdictions, generating $970,285 for the county in 2010. What we know about the effectiveness of DRC is this: There are simply not enough research studies employing scientific rigor upon which to conclude that DRCs reduce criminal activity. Individual investigations of DRCs like those conducted in Illinois, Indiana, North Carolina, and Pennsylvania that lack randomization of subjects to experimental and control groups and focus only on those who complete the program may show a crime control benefit, but only a systematic review of the body of DRC literature that evaluates the scientific rigor M of each study can conclude whether the DRC is an effective crime controlIstrategy for other jurisdictions to adopt. As we said about the effectivenessLof community service, the jury is still out. E Monitoring Technologies that probation Remote-Location and parole officers use S to monitor remotely the physical location of an offender are known as remote-location monitoring. There is no exact , accounting on the number of persons under remote-location monitoring. An Associated Press investigation published in July 2013 estimated the number at 100,000. The Prison Legal News, a publication aimed at inmate leadership, set S the estimate at 200,000. Initially, remote-location H monitoring targeted only the traditional clients of house arrest: low-risk probationers, such as those convicted of A DUI. More recently, however, it has expanded to include people awaitNoffenders on probation and parole, and juvenile ing trial or sentencing, offenders. Furthermore, N whereas electronic house arrest initially gained acceptance as a response to property crimes, advances in remote-location O officers and probation and parole officers to set monitoring allow pretrial up exclusion zones (such N as schools, parks, and homes) for offenders who are territory-restricted (e.g., stalkers and child molesters). Approximately half the states use Global Positioning System (GPS) to monitor some sex 39 offenders while they are 1 on parole. A minimum of eight states (California, Colorado, Florida, Michigan, Missouri, Ohio, Oklahoma, and Wis9 permitting lifetime GPS monitoring of some sex consin) have enacted laws offenders recently, however, the South Carolina Supreme Court declared 0 that lifetime GPS tracking of sex offenders is unconstitutional. It is too 9 South Carolina ruling will have ripple effects in early to tell whether the 40 other states. T Remote-location monitoring uses technological systems such as EM, S the GPS, voice verification, and other tracking systems to verify a person’s physical location, either periodically or continuously, 24 hours a day. Some GPS ankle bracelets are microphone-equipped. They have the same features as a cellular phone and can record the offender’s private conversations without their knowledge and without a court warrant which raises civil liberty issues. A major benefit of remote-location monitoring is that it costs significantly less than incarceration. The average cost of incarcerating a state or federal inmate has been estimated to range from $36 to $123 per day.41 In contrast, the daily cost of remote-location monitoring is between $3 and $5, and GPS monitoring is between $5 and $11.42 Moreover, many courts order program participants to pay all or part of the costs. Another benefit CHAPTER 5 Intermediate Sanctions is that it allows defendants and offenders to continue to contribute to the support of their families and pay taxes. In theory, remote-location monitoring satisfies three correctional goals. First, it incapacitates the offender by restricting him or her to a single location. Second, remote-location monitoring is punitive because it forces the offender to stay home when not at work, school, counseling, or community service. And third, it contributes to rehabilitation by allowing the offender to remain with his or her family and continue employment, education, or vocational training. It is easy to find evaluations of remote-location monitoring that show positive results. For example, a review of the performance of 17,000 participants in the federal home confinement program found that 89 percent successfully completed the program.43 And when researchers with the Center for Criminology and Public Policy Research at Florida State University compared the experiences of more than 5,000 medium- and highM risk offenders who were monitored electronically to more than 266,000 I period, they found offenders not placed on monitoring during a six-year that electronic monitoring reduced the risk of failureLby 31 percent.44 However, when researchers examine the body of literature on remoteE First, the methods location monitoring more closely, they find two things. used in these studies do not meet the threshold ofSscientific rigor. Very few employ the gold standard of research—randomly assign subjects to , remote-location monitoring programs (the experimental group) and others to programs-as-usual (the control group). And even if randomization is employed, most studies do not focus on the different kinds of remoteS was used, how location monitoring, meaning what type of monitoring did it operate, how reliable was the equipment (down H time, location failures, errors, tampering), and ways in which remote-location monitoring is linked to other forms of community supervision A and treatment. Without scientific rigor, it is questionable whether the available research can N be a guide for policymakers on important questions, beginning with “is N remote-location monitoring effective?” O And second, the studies focus only on whether remote-location monitoring suppresses an individual’s criminal behaviorNrather than changes it. The positive results noted above in the study of federal home confinement and GPS monitoring in Florida may simply be the result of the extra surveillance offered by remote-location monitoring. The majority 1 of studies on remote-location monitoring do not examine the therapeu9 to reduce criminal tic aspects of correctional programs that are known activity. Changes in an offender’s cognitive skills of0thinking, reasoning, empathy, and problem solving are seldom subject to the same evaluation 9 that control and surveillance are. After reviewing thousands of studies on correctional interventions, management policies, and treatment and rehaT bilitation programs, Dr. Doris MacKenzie, professor of criminology and criminal justice at the University of Maryland and S former scientist with the U.S. Department of Justice, wrote, “Restraining offenders in the community by increasing surveillance and control over their activities does not reduce their criminal activities.”45 “. . . effective correctional programs must focus on changing the individual.”46 Without a human service component and without measuring its effectiveness on reducing criminal activity, reporting only on control and surveillance leads to the conclusion that remote-location monitoring does not work. Residential Reentry Centers A residential reentry center (RRC) is a medium-security correctional setting that resident offenders are permitted to leave regularly—unaccompanied by staff—for work, CO5-8 145 146 PART 2 Community Corrections residential reentry center (RRC) A medium-security correctional setting that resident offenders are permitted to leave regularly—unaccompanied by staff—for work, education or vocational programs, or treatment in the community but require them to return to a locked facility each evening. educational or vocational programs, or treatment in the community but require them to return to a locked facility each evening. Initially, such centers were called halfway houses and were for offenders who either were about to be released from an institution or were in the first stages of return to the community. However, as the number of halfway houses grew and new client groups (divertees, pretrial releasees, and probationers) were added, the umbrella term residential reentry center was adopted. Halfway houses, prerelease and work release centers, and restitution centers are examples of RRCs. Some RRCs specialize in a type of client or treatment—for example, in drug and alcohol abuse, violent and sex offenders, women, abused women, or prerelease federal prisoners. Some are public and some private. Most scholars attribute the first halfway house in the United States to the Isaac T. Hooper Home in New York City in 1845. For nearly a century, M halfway houses were operated by charitable organizations to assist perI their growth was slow. It wasn’t until the 1950s sons leaving prison, and and into the 1960s that L the number of halfway houses expanded across the United States as part of a broader movement to deal with offender E problems in the community instead of prison. However, when the crime rate did not drop as many had expected, and fueled by the conservative S ideology of the 1980s, the growth in halfway houses slowed. Their use , to that of a minimum-security facility instead of was in many cases closer a rehabilitative one, and seen as a way to reduce prison crowding. Unfortunately, it is not possible to know how many RRCs there are S today, or how many offenders they serve. “There are no national figures, 47 Some estimate there may be in excess of 1,000 only educated guesses.” H RRCs serving almost 30,000 residents each year.48 One difficulty in estimating the number of A offenders that RRCs serve is that many residents are already counted in theN publications of persons under correctional supervision in jail and prison and on probation and parole published annually by N the U.S. Department of Justice, Bureau of Justice Statistics. The federal Bureau O of Prisons (BOP) has the largest number of inmates (9,185) in almost 200NRRCs nationwide representing 4.2 percent of the BOP’s total population.49 Almost 80 percent of eligible federal prisoners are released through RRCs where they spend, on average, three to four months before being released into the community. The primary purpose 1 of the program is to serve as a cost-effective form of punishment. Resi9 dents work in the community and return to the center after work. They use their wages to pay for room and board, transportation, court and 0 probation costs, victim restitution, and child support. They also perform 9 April 11, 2010, Gilbert Arenas, basketball player community service. On for the Orlando Magic, T started serving a 30-day sentence at the federal Montgomery County (Maryland) halfway house for a gun-related conviction. Arenas was alsoS required to perform 400 hours of community service, donate $5,000 to a fund for victims of violent crimes, and register as a gun offender in Washington, DC.50 The objectives of RRCs are community protection and offender reintegration. Community protection is achieved by screening offenders; setting curfews; administering drug or polygraph tests; confirming that when residents leave the center they go directly to work, school, or treatment; and providing a medium-security correctional setting. Reintegration is achieved by giving residents opportunities to learn and use legitimate skills, thereby reducing their reliance on criminal behavior. Staff members determine the obstacles to each resident’s reintegration, plan a program to CHAPTER 5 Intermediate Sanctions overcome those obstacles, and provide a supportive environment to help the resident test, use, and refine the skills needed. The benefits of RRCs are many. RRCs benefit offenders by providing them with the basic necessities of food, clothing, and shelter while they find housing and employment. RRCs also offer residents emotional support to deal with the pressures of readjustment and help them obtain community services. Benefits to the community include a moderately secure correctional setting in which residents’ behavior is monitored and controlled, as well as an expectation that opportunities for offenders to get on their feet will reduce postrelease adjustment problems and criminal behavior. For the criminal justice system, an RRC offers a low-cost housing alternative to incarceration of nonviolent offenders. An RRC can control offenders in the community at less cost than building and operating more secure facilities. It may also serve as an enhancement to probation and an option for dealing with probation and parole violators. M There has not been much research on the effectiveness of RRCs comI chapter. The state pared to other intermediate sanctions discussed in this of Colorado conducted a statewide study of recidivism L of halfway house clients and analyzed information on all offenders (n 5 3,054) who terminated from 25 halfway houses.51 The study trackedEcases for 24 months. It reported that 69 percent had no arrest within 24 months. Of the 31 perS cent who recidivated within 24 months, the majority of cases were drug , offenses. High-risk, or alcohol related. Only 3.4 percent were for violent prior criminal history, young age, and lack of postrelease supervision predicted future offending. The report recommended that intensive treatment, S approaches to deal therapeutic community models, and multidisciplinary with drug and alcohol addiction should be replicatedHacross the state. The report also called for specific aftercare services to enhance offenders’ likeArecidivism. lihood of success, maximize public safety, and reduce Recently a study of Ohio’s 38 RRCs found that RRCs N were most effective with parole violators and higher-risk and proposed using more RRCs N and diversion programs as ways to cut prison costs in Ohio.52 (The average annual cost to incarcerate an inmate in OhioO is $25,000 but only $10,000 to send an offender to an RRC where she or Nhe receives counseling, does household chores, works on job skills, stands by for random room searches, and signs the clipboard as he or she leaves for outside work and returns at a set hour.) Furthermore, the1most effective RRC programs provided the greatest number of services targeting criminogenic 9 needs, offered cognitive behavioral treatment, and engaged in role playing and practicing of newly learned skills. 0 The absence of an adequate body of scientifically rigorous evaluations 9 of RRCs and the current focus on control and suppression instead of individual-level behavioral changes in thinking, reasoning, and problem T solving that are known to reduce a person’s propensity to commit crime means we cannot say that RRCs reduce criminal S activity. Nor can we say that RRCs are ineffective. We can only say that the impact of RRCs is unknown until an adequate body of scientifically rigorous literature becomes available. Boot Camps In 1983, in an effort to alleviate prison crowding and reduce recidivism, the departments of corrections in Oklahoma and Georgia opened the first adult prison programs modeled after military boot camps. Since then, boot camp (sometimes referred to as shock incarceration, intensive confinement centers [ICCs], or work ethic camps) has become an increasingly popular intermediate sanction. CO5-9 147 148 PART 2 Community Corrections boot camp A short institutional term of confinement that includes a physical regimen designed to develop self-discipline, respect for authority, responsibility, and a sense of accomplishment. The military-style training and drill that characterize boot camps are frequently supplemented with substance abuse education and vocational training. What aftercare programs might contribute to the effectiveness of boot camp strategies? Boot camp is a short institutional term of confinement, usually followed by probation, that includes a physical regimen designed to develop selfdiscipline, respect for authority, responsibility, and a sense of accomplishment. According to the NIJ, four characteristics distinguish boot camps from other correctional programs: (1) (2) (3) military drill and ceremony, a rigorous daily schedule of hard labor and physical training, separation of boot camp participants from the general prison population, and (4) the idea that boot camps are an alternative to long-term confinement. However, as you will learn, the use of correctional boot camps is on the decline, and the evidence-based literature reports that the average boot camp has no effect onM recidivism.53 However that hasn’t stopped some sheriffs from implementing them. I of Milwaukee County, Wisconsin, calls his boot David A. Clarke Jr., sheriff camp a “Discipline, Order, L Training and Structure” program.54 Eligibility criteria include low-level offenders who are in physical shape and don’t present serious behavioral E problems. Inmates wear uniforms, rise early, participate in rigorous physical S training by drill instructors (former war veterans from Iraq and Afghanistan), be required to say “yes, sir” and “no, sir,” and take classes on job, readiness, anger management, and building positive relationships with friends and spouses. Sheriff Clarke is unmoved by those who say such programs do not work. He believes that inmates need to have S discipline instilled before other reform efforts at education and job training H can work. Boot camps have A progressed through three phases. The first phase stressed military drill and ceremony. The second phase incorporated treatN anger management and alcohol and drug treatment programs such as ment. In the third phase, N some correctional agencies added aftercare such as postrelease supervision, remote-location monitoring, and networking O N 1 9 0 9 T S CHAPTER 5 boot camp graduates to community agencies to continue the treatment and services provided in boot camp. Critics have raised questions about using boot camps as a correctional tool. They note that correctional boot camp programs are built on a model of military basic training that the military itself has found lacking and in some cases has revised. Critics also argue that the military model was designed to produce a cohesive fighting unit and that after military boot camp there is further specialized training and career planning. That is not a goal of corrections. One analyst wrote, “If an offender can’t read [or] write and is drug-involved, sending him to a 90-day boot camp that does not address his job or literacy needs will only have a short-term effect, if any, on his behavior.”55 There is reason for both optimism and skepticism about boot camps. Although boot camps are promoted as a means of reducing recidivism rates, there is no evidence that they significantly reduce recidivism or proM mote socially desirable activities. A multisite evaluation of boot camps in Texas, South Carolina, and Florida showed no Isignificant differences in reoffending rates among the different groups of L offenders.56 Research on Oklahoma’s boot camp program, called the Regimented Inmate DisciE pline (RID) program, revealed that even when the researchers controlled for type of offense, age, and race on recidivism, S boot camp graduates recidivated more frequently than either traditionally incarcerated inmates , boot camp in or probationers.57 Research published on a county-based Florida shows similar results. The likelihood of an offender being rearrested was unaffected by his or her being sent to boot camp. Eighty-one S averaging 271 days percent of the boot camp graduates were rearrested, before rearrest. Seventy-three percent of the comparison H group was rearrested, averaging 290 days before rearrest.58 A Some researchers have reported that boot camp graduates have higher self-esteem, have better attitudes toward family, are less likely to see themN selves as victims of circumstances, and are more likely to feel in control N of their future.59 However, with limited exceptions, these positive changes didn’t translate into reduced recidivism. Research O into what boot camp participants say they’ll do is less conclusive thanNresearch into what they’ve actually done. Also disappointing is that the recidivism rates of boot camp graduto one-half of ates are very similar to those of other parolees.60 One-third 1 front-end boot camp participants fail to complete their programs and are 9 sent to prison as a result. In most programs, close surveillance of graduates after release leads to technical violation and revocation rates that are 0 higher than those of comparable offenders in less intensive programs. 9 prison crowding Boot camps are also promoted as a means of reducing and corrections costs. Here the news is not all bad. T Boot camp programs, where imprisoned offenders are transferred by corrections officials, do save S high failure, techmoney and prison space. Although they often experience nical violation, and revocation rates, those rates are no higher than those for offenders who have been kept in prison longer. If enough offenders complete boot camp and are released early from prison, the programs can reduce prison crowding. However, a number of researchers have found that most boot camps have not reduced prison crowding because the programs are designed for offenders who would otherwise be on probation, not those who would otherwise have received prison terms.61 MacKenzie and her colleagues found in a multisite evaluation of boot camps that only two of the five boot camp programs examined appeared to save prison beds. The remaining three boot camp programs appeared to increase the Intermediate Sanctions The Staff Speaks Visit to see this feature. 149 150 PART 2 Community Corrections Economic Realities and Corrections: Intermediate Sanctions Governors, legislatures, and correctional administrators nationwide are coping with budget cutbacks while being under pressure to deliver ever better public safety outcomes. The governor of Georgia signed legislation to reduce the number of low-level drug possession offenders in prison and expand the use of intermediate sanctions including drug courts, which help treat addicts and hold offenders accountable in the community. The governor of Pennsylvania signed a law directing low-level nonviolent offenders into community supervision, saving the state $250 million through 2018. The governor of Texas scrapped plans to build three new prisons, saving his state $2 billion and reinvesting it in treating offenders with mental health and addiction problems. Why are states pursuing intermediate sanctions that before the economic recession of 2007 would have been called liberal policies on crime and punishment? The first reason is that the economic recession has forced governors, legislators, and correctional administrators to take a hard look at the amount of money being spent on the prison system. Huge prison spending is now viewed as running counter to fiscal conservatism. Twenty years ago the United States spent $7 billion on its prison population of 970,000 inmates. Today, states are spending more than $63 billion on a prison population of almost 1.4 million inmates. As budgets have tightened, other important functions of government have been squeezed to pay for the escalation in prison spending. At the same time, many liberals and conservatives have come to recognize that prison is ineffective in rehabilitating offenders. Half of prisoners released are expected to be back in prison within three years. Many have come to see prison as a poor method MTherefore, the of achieving prisoner reform. fiscal crisis that began in December 2007 is I moving many governors and legislators to L think “outside the cell” and turn to intermediate sanctions as a way to Ekeep low-level offenders out of prison and in their commuS nities. Is the public buying it? According to , conducted a national public opinion survey in January 2012 and similar surveys in Georgia, Missouri, and Oregon, the answer Skey takeaways is a resounding “yes.” Three from that national survey are Hthese: 3. Support for intermediate sanctions is strong across political parties, regions, age, gender, and racial/ethnic groups. $$ 1. American voters believe too many people A are in prison and the nation spends too much on imprisonment. N 2. Voters overwhelmingly support N a variety of policy changes that shift non-violent offenders from prison toOmore effective, less expensive intermediate N sanctions like those discussed in this chapter. Specifically, 84 percent of respondents believe that some of the money that we are spending on locking up low-risk, nonviolent inmates should be shifted to strengthening intermediate sanctions. Sixty-nine percent agree that there are more effective, less expensive intermediate sanctions to prison for nonviolent offenders and expanding those alternatives is the best way to reduce the crime rate. And four of five people want to send fewer low-risk, nonviolent offenders to prison and reinvest in intermediate sanctions. We are seeing significant pieces of legislation favoring intermediate sanctions for nonviolent offenders. Over the past several decades, legislatures passed “tough-oncrime” measures that increased penalties, prison sentences, and skyrocketed the cost of penal incarceration—key reasons why with less than 5 percent of the world’s population, the U.S. has almost 25 percent of the world’s prisoners. Without question, voters want a strong public safety system in which criminals are held accountable and illegal activities have consequences. Voters also believe that these goals can be reached while reducing the size and cost of the prison system. Intermediate sanctions can help. 1 9 need for prison beds.62 Crowding can be reduced only if boot camp par0 inmates already incarcerated and only if their ticipants are selected from participation substantially 9 reduces their overall sentence lengths. The body of evidence-based corrections literature tells us this about T correctional boot camps: S body of scientifically rigorous research exam1. There is an adequate ining correctional boot camps. 2. The military atmosphere of correctional boot camps does not bring about individual-level changes in thinking, reasoning, and problem solving. 3. An aftercare component to correctional boot camp may reduce recidivism, but there is little information about the type of aftercare that programs provide. Are individual-level changes the result of drug treatment, employment, or something else? We do not know. 4. To date, it is impossible to say why the recidivism of some correctional boot camp participants is lower than the comparison group. CHAPTER 5 Intermediate Sanctions 151 5. If the goal of correctional boot camp is to reduce recidivism, then there is little reason to continue its use. 6. If there are other goals such as operating as a back-end program or to reduce prison crowding, then we need more research. COMMUNITY CORRECTIONS CO5-10 In Chapter 1 you learned that the correctional system can be either institutional or noninstitutional. Institutional corrections (jails and prisons) involves the incarceration and rehabilitation of adults and juveniles. Noninstitutional corrections refers to correctional activities not directly related to incarceration. The intermediate sanctions discussed in this chapter, diversion and probation (Chapter 4), and parole (Chapter 8) are examples of correctional activities not directly related to institutional care. M There is no consensus in the field of criminal justice on the definition I to noninstitutional of community corrections. Sometimes the term refers programs. Sometimes it refers to programs administered by local governL ment rather than the state. Other times, it indicates citizen involvement. We define community corrections as a philosophyEof correctional treatment that embraces (1) decentralization of authority S from state to local levels; (2) citizen participation in program planning, design, implementa, tion, and evaluation; (3) redefinition of the population of offenders for whom incarceration is most appropriate; and (4) emphasis on rehabilitation through community programs. S of partnership with Community corrections recognizes the importance the community in responding to crime. In short, our H communities not only have a right to safe streets and homes but also bear responsibility for makA ing them safe. All the major components of the criminal justice system have alliances today with the community. The fieldN is experiencing many changes, including the following: N • community policing—a law enforcement strategy to get residents O involved in making their neighborhoods safer by focusing on crime N prevention, nonemergency services, public accountability, and decentralized decision making that includes the public; • community-based prosecution—a prosecution strategy that uses a combination of criminal and civil tactics and1the legal expertise, resources, and clout of the prosecuting attorney’s 9 office to find innovative solutions to a neighborhood’s specific problems; 0 • community-based defender services—a defender strategy that 9 defendants and provides continuity in representation of indigent helps defendants with personal and family problems T that can lead to legal troubles; and S a criminal case in • community courts—a judicial strategy of hearing the community that is most affected by the case and including that community in case disposition. Debate and innovation continue to reflect these themes. The Vermont Department of Corrections leads the nation in giving local citizens decision-making authority about punishment and supervision issues that directly affect the offender, the victim, and community safety. In 1995, the Vermont DOC established a network of “community-based reparative boards” (also referred to as reparative probation). Today there are 72 reparative boards across Vermont involving more than 350 citizen volunteers. Annually these boards handle more than 1,400 cases. After community corrections A philosophy of correctional treatment that embraces (1) decentralization of authority, (2) citizen participation, (3) redefinition of the population of offenders for whom incarceration is most appropriate, and (4) emphasis on rehabilitation through community programs. 152 PART 2 Community Corrections conviction and referral by a judge, offenders meet with their local reparative board to review their offense and learn how it harmed the community. They must then accept the terms of what is usually a multifaceted, community-based sanction, including apologies, restitution, and community service. Consider these two examples. A single mother working in a nursing home stole a ring from a patient. The reparative board built on the woman’s interest in crafts and ordered her to make potpourri-filled vases for the senior center. An artist convicted for a second time for driving under the influence had to paint a mural for the organization whose lawn she drove over. (Coincidentally, it was a substance abuse center.) The reparative boards’ solutions are as varied as the crimes they hear. Research on reparative probation is scarce. Investigators from the University of Vermont looked at over 9,000 cases decided by the reparative boards.63 They found that offenders sentenced by reparative boards were M 23 percent less likely to commit another crime while on reparative probation and 12 percentI less likely to commit another crime after probation ended than thoseLsentenced to traditional probation. However, this is only one study. There is not an adequate body of scientifically rigorous E probation to say that it reduces criminal activity. evaluations of reparative Nor can we say that, as S with many other intermediate sanctions discussed in this chapter, reparative probation is ineffective. We can say only that , probation is unknown until an adequate body the impact of reparative of scientifically rigorous literature becomes available. The American Correctional Association has also embraced community corrections. ACA’s support of communityScorrections is shown in Exhibit 5–9. CO5-11 community corrections acts (CCAs) State laws that give economic grants to local communities to establish community corrections goals and policies and to develop and operate community corrections programs. H Community Corrections Acts A This spirit of correctional collaboration and community partnership has led N 36 states to pass community corrections acts (CCAs) (Exhibit 5–10). CCAs are state laws that giveNeconomic grants to local communities to establish community correctionsOgoals and policies and to develop and operate community corrections programs. Under a typical CCA, the state provides local agencies the funds to N create or expand intermediate sanctions for certain offenders in the community, and in return, the state benefits by avoiding the costs of incarceration. The funding usually supports a spectrum of com1 including traditional probation supervision to munity-based punishments, ISP, day reporting centers, 9 RRCs, and other specialized programs and services such as drug courts. These programs usually range from a few hun0 $7,000 per offender per year—far less than the dred dollars to more than annual cost of housing9a state prisoner. CCA states that its goal is to save more money on prison. For example, in Kansas, where probation violators T had accounted for 36 percent of prison admissions, legislators provided $4 million in grants toSlocal community corrections programs that developed plans to reduce the percentage of violators sent to prison. Minnesota was one of the first states to enact a CCA. The Minnesota Community Corrections Act of 1973 provides funding to counties or groups of counties to develop community-based sanctions and programs. Funding totaling almost $40 million per year is awarded based on local population, and counties must submit a comprehensive plan every two years indicating how the money will be spent. The huge success of Minnesota’s CCA can be seen in Minnesota’s incarceration rate, one of the lowest in the United States today. While the crime rate is not much different from those of other states, the incarceration rate is only 183 persons for every 100,000 residents. The U.S. average CHAPTER 5 EXHIBIT 5–9 American Correctional Association Public Correctional Policy on Community Corrections Introduction: Community corrections programs are an integral component of a graduated system of sanctions and services. They enable offenders to work and pay taxes, make restitution, meet court obligations, maintain family ties, and develop and/or maintain critical support systems with the community. To be successful, community corrections programs must promote public safety and a continuum of care that responds to the needs of victims, offenders, and the community. These programs should include a collaborative comprehensive planning process for the development of effective policies and services. Policy Statement: M Community corrections programs include residential and nonresidential programs. Most community corrections programs require offenders toI participate in certain activities or special programs that are specifically directed toward reducing their risk L programs, services, to the community. Those responsible for community corrections and supervision should: E A. seek statutory authority and adequate funding, both public and private, for S corrections strategy; community programs and services as part of a comprehensive B. develop and ensure access to a wide array of residential and , nonresidential services that address the identifiable needs of victims, offenders and the community; C. inform the public about the benefits of community programsSand services; the criteria used to select individuals for these programs; and the requirements for H successful completion; D. recognize that public acceptance of community correctionsAis enhanced by the provision of victim services, community service and conciliation programs; N E. mobilize the participation of a well-informed constituency, including citizen advisory N boards and broad-based coalitions, to address community corrections issues; F. participate in collaborative, comprehensive planning effortsOwhich provide a framework to assess community needs and develop a systemwide plan for N services; and G. ensure the integrity and accountability of community programs by establishing a reliable system for monitoring and measuring performance and outcomes 1 in accordance with accepted standards of professional practices and sound evaluation methodology. 9 0 9 T majority of Minneat yearend 2011 was 492 per 100,000 residents. The sota’s offenders are handled under the CCA. S Source: Copyright © American Correctional Association. Reprinted with permission. Simply having correctional programs in a community does not mean that a community corrections program exists. Consistent goals and consistent approaches to achieving those goals are the backbone of successful community corrections. Community corrections legislation can help accomplish that consistency. Community Corrections: A Strategy for Safety and Savings in the Future The current budget crisis the United States is facing has prompted many states to seize the moment and retool their sentencing and corrections options to better manage the 7.3 million Americans under correctional control. Successful reintegration of the Intermediate Sanctions 153 154 PART 2 Community Corrections EXHIBIT 5–10 States with Community Corrections Legislation VT ME WA ND MT MN OR ID MI WY IA NE NV UT CA AZ NY WI SD IL CO KS OK NM OH IN MO KY WV VA NC TN SC AR MS AL TX PA NH MA RI CT NJ DE MD DC (without) GA LA M FL I L E States with legislation States without legislation AK S HI , Source: Mary Shilton, “Community Corrections Acts by States, 2007,” Center for Community Corrections, Reprinted with permission. S H offender into the community is also the primary goal of the International Community Corrections Association Code of Ethics. The Pew Center on A the States wrote in March 2009: N If we had stronger community corrections, we wouldn’t need to lock up so many people at such N a great cost. By redirecting a portion of the dollars currently spent on imprisoning the lowest-risk inmates, we could significantly O increase the intensity and quality of supervision and services directed at the same type of offenderN in the community.64 To help create a national agenda for stronger and more effective community corrections, the 1 Pew Center brought together leading policymakers, correctional practitioners, and researchers from states such as Arizona, Kansas, and 9Texas that are already looking at which offenders should be locked up 0 and which ones can be managed effectively in the community. The purpose of the meeting was to identify ways to help cor9 the most effective evidence-based practices. The rectional agencies adopt result was publicationTof the document Policy Framework to Strengthen Community Corrections. The framework includes measures that provide S to stay crime and drug free, fiscal incentives for incentives for offenders agencies to improve their success rates, and ways to focus treatment and punishment toward one goal—prevent crime—that is more effective than either punishment or treatment alone. Here we briefly detail the six key components of that framework.65 1. Sort offenders by risk to public safety—Accurately separate those who are more likely to cause great harm from those who may cause relatively little harm. The risk assessment tools discussed in Chapters 4 and 8 can help corrections officials more accurately predict not only how likely a person is to commit a new crime, but also whether that offense will be a violent one. The risk score can then be used to guide decisions about whether a particular offender should go to prison or remain under community control, and which 156 PART 2 Community Corrections 2. 3. 4. 5. 6. cognitive treatment interventions will change the offender’s thinking and reasoning that drive criminal activity. The Pew Center reminds us that risk assessment is risk management, not risk elimination. Risk assessment is an estimate of what a given person might do. The science continues to evolve. Base intervention programs on science—Like the Pew Center, this book promotes the application of evidence-based practices. We’ve seen throughout this book that evidence-based practices result in an average decrease in crime of between 10 percent and 20 percent, whereas programs that are not evidence based tend to see no decrease or may even result in a slight increase in crime. Interventions that follow all evidence-based practices can result in a reduction of criminal activity by as much as 30 percent. Harness technology—Today’s technology (for example, remote electronic monitoring, M the use of GPS technology, portable breathalyzers, and ignition locks) can help community supervision officers I monitor an offender’s location and compliance, but only if the officers have the tools and resources to do so and respond to violations L in ways that don’t contribute to further prison crowding. TechnoE logical tools cannot by themselves reduce criminal activity, as we S chapter. But they offer community supervision pointed out in this officers tools that, are more intense than face-to-face supervision alone and are cheaper than incarceration. Impose swift and certain sanctions for violation—Today, too many probation and parole S agencies are underfunded, understaffed, struggle with high caseloads, and lack legal authority to impose graduHviolations. Many community supervision officers ated sanctions for delay pursuing violations until an offender has committed a new A crime or a significant number of technical violations, at which point N return to prison is likely. The framework suggested by the Pew Center is to give N probation and parole officers authority to impose graduated sanctions on violators without first requiring a time-conO suming trip back to court. The framework documents the success of N called Probation Options Management that a program in Georgia allows chief POs to impose sanctions on violators in certain circumstances. The program reduced the number of days offenders spent 1 disposition by 70 percent, saved local jails in jail awaiting court $1.1 million, and9reduced the amount of time that POs spent waiting in courthouses for violation cases to be heard. Create incentives0for success—The framework also calls for incentives for offenders 9 and community supervision agencies. Arizona is a case in point. In 2008, Arizona adopted the Safe Communities T Act. For every month an offender complies with the terms of superS vision, the act authorizes the courts to reduce the offender’s length of probation by 20 days. And counties that reduce recidivism are awarded 40 percent of the money the state saves by not having to incarcerate rule violators in state prison. This is an example of the community corrections acts discussed earlier. The counties use the money to improve local services for victims and offenders. Measure progress—Policymakers, practitioners, and researchers agree that accurate and timely statistics, deployment of resources where they are most needed, effective human service strategies, and ongoing follow-up and assessment are critical to knowing what impact corrections has on reducing criminal activity. Yes, the goal is CHAPTER 5 Intermediate Sanctions 157 to reduce recidivism, but as we reported in Chapter 4, the American Probation and Parole Association urges its members to collect data on other key performance measures such as amount of restitution collected, number of offenders employed, amount of fines and fees collected, hours of community service performed, number of treatment sessions attended, percentage of financial obligations collected, educational attainment, and number of days drug free. This set of sentencing and correctional principles is offered as a way to meet the challenge of better balancing public safety, offender accountability, and the realities of today’s economic crisis. We agree with the Pew Center and its experts that better performance in community corrections can reduce criminal activity and the expensive use of imprisonment for low-risk offenders. Will the U.S. public support using intermediate sanctions like those discussed in this chapter to respond to nonserious M crime? The answer is that a majority will. One month after the Pew Center I published its framework for helping correctional agencies adopt the most effective evidenceL should be locked based practices for making decisions on which offenders up and which ones can be managed effectively inEthe community, the National Council on Crime and Delinquency (NCCD) commissioned S Zogby International to conduct a national public opinion poll about U.S. voter attitudes toward intermediate sanctions for nonserious offenders.66 , Poll results show that a majority of U.S. adults believes that offenders who commit nonserious crimes do not need incarceration; almost 8 in 10 believe that the appropriate sentence for nonserious S offenders are the intermediate sanctions discussed in this chapter; almost 8 in 10 believe H half believe interintermediate sanctions do not decrease public safety; mediate sanctions save money; and almost half believe A that intermediate sanctions are more effective at reducing recidivism than prison or jail N time. NCCD estimates that over $7 billion can be saved if 80 percent of N nonviolent, nonserious offenders are sentenced to alternatives instead of incarceration. A savings of this magnitude in the current economic crisis O would reduce the economic burden on institutional corrections and fund community corrections and intermediate sanctions N that are more appropriate for nonserious, nonviolent offenders. 1 9 REVIEW AND APPLICATIONS0 9 SUMMARY T 1 Intermediate sanctions is the term given to the range S of new sentencing options developed to fill the gap between traditional probation and traditional jail or prison sentences, better match the severity of punishment to the seriousness of the crime, reduce institutional crowding, and control correctional costs. Punishments typically identified as intermediate sanctions include intensive supervision probation (ISP), drug courts, fines, community service, day reporting centers, remote-location monitoring, residential reentry centers, and boot camps. 2 Intensive supervision probation (ISP) is control of offenders in the community through strict enforcement of conditions and frequent reporting to a probation officer with a reduced caseload. ISP programs exist in all 50 states. They may be state or county programs and may be administered by parole, probation, or prison departments. 3 Drug courts are special courts that are given responsibility to handle cases involving drug-addicted offenders.

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Principles of Corrections
Institutional Affiliation




1. The Process of Criminal Justice
The process of criminal justice in the United States contains several steps that start with a
criminal investigation and ends with the release of the offender from correctional supervision.
Most importantly, however, it should be noted that rules and decision making are central to the
whole process. Firstly, a criminal offense will trigger an investigation, which helps the police
gather enough evidence and facts necessary for the identification and arrest of the suspect, as
well as subsequent court cases and trials. Once the investigation yields substantial, evidence, the
suspect is the arrested which implies the taking of a person into police custody to hold them until
they are ready for court (Morenoff & Harding, 2014).
The prosecution then follows, where prosecutors weigh in on several factors that help
decide the weight of the crime. These include the district attorney determining the strength of the
evidence and seriousness of the offense. The filing of information then follows this by a
prosecutor or Indictment by a grand jury. The indictment is necessary while prosecuting capital
offense. This step involves confirming whether a case is worth a trial or not. The suspect is then
arraigned in court where he or she enters a plea. The common pleas include guilty or not guilty.
Arraignment is then followed by pretrial detention or bail, where the individual is
temporarily held in custody before a trial or set free on bail, provided they show up in court for a
hearing. Plea bargaining between the prosecutor and the defense attorney then follows. The
defendant may agree to plead guilty to have reduced charges or sentences. Trial or the
adjudication of guilt is held before a judge or jury, with prosecutors and defense attorney present.
Here, the standard of evidence is analyzed to determine that the guilt is beyond a reasonable
doubt. However, doubt based on reason will see an individual acquitted.



The last three final steps in the criminal justice process include sentencing, appeals, and
punishment. The sentencing is carried out by a judge who metes out a sentence. This includes
possible fines, probation, poor a period of incarceration in a correctional facility. However, the
judge may combine any of the penalties available. A defendant may then file an appeal at the
appellate court, where if successful, the court returns to the trial court for retrial. The prosecutor
may decide to go along with the case or drop it, although the individual may be charged later,
provided such action meets the required regulations. At the punishment stage, the individual is
held in a correctional facility such as jail or prison, until his or her rehabil...

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