Graduated Sanctions: Stepping into Accountable Systems and Offenders

• Author: FAYE S. TAXMAN,ADAM GELB,DAVID SOULE
• DOI: 10.1177/0032885599079002004
• Date: 01 June 1999
• Published date: 01 June 1999
• Subject Matter: Articles

THE
T
PRISON
axman et al. /JOURNAL
GRADUA / June
TED
1999
SANCTIONS
GRADUATED SANCTIONS:
STEPPING INTO ACCOUNTABLE
SYSTEMS AND OFFENDERS
FAYE S. TAXMAN
DAVID SOULE
University of Maryland, College Park
ADAM GELB
State of Maryland Lieutenant Governor’s Office
Graduated sanctions are being promoted in many new crime control initiatives, such
as Breaking the Cycle and Residential Substance Abuse Treatment (RSAT). Like many
attractive concepts, graduated sanctions are poorly understood in theory and poorly
conceived in practice. This article presents a procedural justice theory for graduated
sanctions and the critical components for this model. The legal issues of due process,
double jeopardy, and separation of powers are reviewed to illustrate how graduated
sanctions serve to protect the constitutional rights of the offender and to deter non-
compliance. Finally, the implications for increasing compliance with release condi-
tions are discussed in terms of the differential methods for implementing graduated
sanctions.
The high rate of failure to comply with conditions of supervised release is
a problem that undercuts confidence in probation services and raises doubts
about the viability of probation as a sentencing option. In an analysis of
79,043 probationers, Langan and Cunniff (1992) found that 61% of the
sample failed to comply with such release conditions as drug testing, re-
porting for treatment appointments, reporting for probation appointments,
Partial support for this article came from the Office of National Drug Control Policy (Grant
Number 16WBP528), the National Institute of Justice (Grant Number 96-CE-VS-0017), and the
State of Maryland (Grant Number 014 30 572). Points of view expressed in this article are those
of the authors and do not necessarily represent the official position of any agencies. The authors
thank Ray Paternoster for his helpful comments. The authors also acknowledge the insight and
contributions of Linda Eichenbaum (Alexandria City Adult Probation Office), Jay Carver and
Jasper Ormond (Offender Supervision Agency and Court Services in Washington, D.C.), and
Thomas Williams (State of Maryland Division of Parole and Probation).
THE PRISON JOURNAL, Vol. 79 No. 2, June 1999 182-204
© 1999 Sage Publications, Inc.
182

---

Taxman et al. / GRADUATED SANCTIONS
183
adhering to curfews, and remaining crime free. Their findings substantiated
the general impression that probation does not work. Probation and parole
violators continue to contribute anywhere from 30% to 80% of the new in-
takes into prison in a given year, again attesting to the problem of noncompli-
ance under supervised release (Burke, 1997; Rhine, 1993).1 Overall, the fu-
ture of probation and community correctional programs is questioned
because of their failure to grapple with the compliance problem.
Nevertheless, criminal justice officials recognize the promise of proba-
tion and the continued need for it. Petersilia (1997) has concluded that “Re-
cent evaluative evidence suggests that probation programs—properly de-
signed and implemented—can be effective on a number of dimensions,
including reducing recidivism” (p. 152). To improve probation services,
many states have introduced graduated sanctions as both a management tool
and a programmatic tool. Graduated sanctions are structured, incremental re-
sponses to noncompliant behavior of probationers while they are under su-
pervision. They are designed to give the probation officer the ability to re-
spond quickly to noncompliant acts through a series of actions such as 1 day
in jail, more drug testing, more reporting, or a curfew. The sanctioning pro-
cess uses modest steps to restrict the offender’s liberty to deter future non-
compliant acts and ensure the integrity of the court order.2 The specific sanc-
tion depends on factors such as the nature of the violation and whether it is the
first violation. Thus, graduated sanctions provide immediate and certain con-
sequences for defiant behavior.
Graduated sanctions hold promise for increasing compliance to the re-
lease conditions. The experience of drug courts, which have employed the
concept, have shown that the approach reduces substance abuse rates (Har-
rell & Cavanaugh, 1998). In Oregon, officials reported reductions in positive
drug tests among probationers after the use of short periods of incarceration
as a response to the positive tests (Center for Substance Abuse Research
[CESAR], 1994), which in turn led to legislative expansion of the authority
of probation officers to use short periods of incarceration for positive drug
test results. South Carolina officials reported declines in prison intake by us-
ing swift sanctions for probation violations (Burke, 1997), whereas Illinois,
Connecticut, and other states have adopted administrative sanctions as part
of probation supervision so as to allow officers to respond quickly to viola-
tions of conditions of release. New state and federal initiatives, including the
National Institute of Justice’s Break the Cycle and the Office of Justice Pro-
grams’ Residential Substance Abuse Treatment (RSAT) block grants employ
the graduated sanctions concept to manage offender behavior (Office of Jus-
tice Programs, 1997). Thus, early indications are that the use of graduated

---

184
THE PRISON JOURNAL / June 1999
sanctions has promise as a technique to address problematic offender behav-
ior and to reinvigorate probation as a viable sentencing option.
Like many other ideas with broad appeal, that of graduated sanctions is of-
ten poorly understood in theory and often poorly conceived in practice. This
article endeavors to illuminate the concept by drawing on the experiences of
several projects that focus on implementing sanctions.3 We first present a
short history of the graduated sanctions concept, followed by an overview of
its theoretical foundation. Additionally, we discuss implementation ap-
proaches and legal issues that affect the implementation of the sanction
model. Finally, different implementation approaches are presented.
THE HISTORY OF GRADUATED SANCTIONS
The meaning of the term graduated sanctions has changed over time. In
the 1980s, it was used interchangeably with intermediate punishment or in-
termediate sanctions to refer to sentencing or correctional options that fall
between prison and probation on the continuum of options (Morris & Tonry,
1990). In that usage, graduated sanctions referred to correctional programs
such as house arrest, electronic monitoring, and boot camps that were de-
signed to serve as alternatives to incarceration or to expand sentencing op-
tions. These programs were intended to be more punitive and structured than
traditional probation but less severe than incarceration.
Several factors limited the use of these alternative sanctions. Early evalua-
tion findings supported the view that they tended to produce similar or only
slightly lower rearrest rates than did traditional probation or prison (Byrne &
Pattavina, 1992; Petersilia, 1997). Implementation of the alternative pro-
grams was difficult due to a number of factors, including the low percentage
of offenders who were involved in these options (Petersilia, 1997; Taxman,
1994), the failure to identify suitable target populations for different options
(Austin, Jones, & Bolyard, 1993; Petersilia, 1997), the tendency for offend-
ers to prefer incarceration over punitive community-based programs (Couch,
1993; Petersilia & Deschenes, 1994), and uncertainty about the effectiveness
of the new options (Petersilia, 1997; Tonry, 1996; Whitehead & Lab, 1989).
Ultimately, the movement to expand intermediate sanctions was affected by
concerns about the ability of criminal justice actors to attract the appropriate
offenders into community programs. Many criminal justice actors also
feared the potential reprisal that might occur if an offender committed a seri-
ous crime while under supervision, raising again the question about the abil-
ity to manage offenders in the community programs.

---

Taxman et al. / GRADUATED SANCTIONS
185
Simultaneous to the move to expand correctional options, the concept of
halfback emerged. This is a policy that targets offenders in jeopardy of being
revoked from community supervision due to violations of the conditions of
release. Halfback refers either to intermediate sanction programs or to cor-
rectional tools such as drug testing, community service, electronic monitor-
ing, and more frequent face-to-face reporting between the offender and
agent. Thus, a probationer who may be revoked incurs more restrictions in
the community instead of being incarcerated; the community becomes a
more restrictive setting. The halfback concept also binds courts and proba-
tion services together in fulfilling sentence goals by modifying the release
conditions to make community control more restrictive.
More recently, drug court programs have pioneered the use of graduated
sanctions as a response to noncompliant acts such as positive drug tests or
failure to attend treatment or supervision meetings. The graduated sanction is
imposed before a revocation is considered. Drug courts use status confer-
ences to allow judges to schedule a review of the progress of the offender (or
the lack of progress in treatment and supervision) and then to adjust the level
of control and amount of treatment accordingly. Drug courts use daily,
weekly, biweekly, or monthly dockets, depending on the jurisdiction. Some
courts take all offenders to the status conference so as to be able to reward
persons for...