Rethinking the use of community supervision.

AuthorKlingele, Cecelia
PositionIV. Responses to the Problem of Revocation through VI. Conclusion, with tables and footnotes, p. 1042-1069
  1. RESPONSES TO THE PROBLEM OF REVOCATION

    1. WHAT PROBLEM?

      High revocation rates alone tell us little about the proper function of community supervision. In fact, high rates of revocation invite any number of potentially contradictory conclusions: that the sanction is overused because inappropriate candidates are being selected for community-based punishment; that the sanction is overly punitive because the kind and number of conditions make compliance impossible; that community supervision is functioning well because correctional agents are being vigilant in returning to custody those who pose threats to public safety; or that community supervision is fundamentally broken because too many people are failing to successfully complete their terms in the community. Before proposing legislative responses to the "problem" of revocation, it is useful to determine whether a problem exists, and if so, what the nature of that problem might be.

      Criticism of high revocation rates has come from many quarters. First, and most vocal, are legislators and correctional administrators desperate to reduce the costs of incarceration. Spending on corrections has been growning at a faster pace than any other category of state spending except Medicaid. (135) As budgets continue to shrink, states are no longer capable of paying the bills associated with prison growth. Consequently, many lawmakers have become eager to find ways to manage offenders in less expensive, noncustodial settings whenever possible. (136) From this purely financial perspective, revocation is seen as a problem, because it increases the number of people in prison and the attendant costs of confining them.

      Whether it is legitimate for cost to play a role in sentencing decisions is a matter of some debate. When the State of Missouri recently introduced a "cost information system" that allows sentencing judges to compare the cost of various sentencing options, (137) it evoked strong reactions from supporters and detractors alike. (138) Pragmatists hailed it as a long-overdue way of focusing judges' attention on the real consequences of their sentencing practices. (139) Critics decried it as an illegitimate attempt to substitute punishment based on desert with utilitarian considerations wholly unrelated to offenders' culpability. (140)

      The same philosophical debates that attend cost considerations at sentencing attend cost considerations related to revocation of community supervision. For good or ill, considerations of cost are embedded in the functioning of the criminal justice system and consequently must be confronted. (141) While this is true as a matter of pragmatism, there are dangers in crafting criminal justice policy with the primary goal of saving money. (142) In a system of law that purports to exercise moral authority, it is essential that law and policymakers grapple with what is fair and not merely what is cost effective. (143)

      While cost has been a driving factor in the willingness of legislatures to "do something" to reduce revocation rates, criticism has come from other quarters, too. Advocates of "evidence-based practices" have argued that most jurisdictions engage in misdirected supervision practices that place too many conditions on low-risk offenders (leading to unnecessary revocation for minor infractions unrelated to public safety) and too few constraints on high-risk offenders (allowing dangerous violators to go undetected and unpunished). They point to a small but growing body of quantitative research that has identified measurable offender characteristics that correspond to individuals' statistical risk of criminal reoffense and suggest that relying on actuarial risk prediction tools can help judges decide whom to place on supervision, what services to offer, and what level of surveillance to provide. While proponents of "evidence-based" practices do not condemn high revocation rates per se, most agree that a significant number of revocations are unnecessary and could be avoided through more strategic supervision practices. From this perspective, high revocation rates are problematic because they point to inefficiencies in the allocation of limited correctional resources.

      Other concerns are more fundamental and challenge the assumption that community supervision and its attendant conditions have any effect on the criminal behavior of those under supervision. The conditions that attach to a sentence of community supervision often restrict behavior that is otherwise lawful in an attempt to promote rehabilitation and control threats to public safety. The enforcement of those conditions is morally justified only if it is plausible to believe that they may actually be capable of accomplishing their desired purposes. There are many reasons to think, however, that conditions of supervision are often neutral, and sometimes even detrimental, to the ability of convicted individuals to lead law-abiding lives.

      Critics have long observed that the rate of criminal reoffending by those under supervision seems fairly unaffected by the availability of treatment programs, or even the nature of interactions between agents and their clients. (144) Many of the factors that most influence desistance from crime, including age and personal narrative, bear little connection to the conditions and programatic interventions imposed by sentences of community supervision. (145) Some have attributed this to static characteristics of those under supervision, in particular those on probation:

      Augustus and his immediate successors are reputed to have had high rates of success in reforming their charges, despite the fact that Augustus (and this is probably true of his Boston disciples) was not even remotely a specialist in behavior problems, and apparently had no training in even the crude behavior sciences of his day. What he did have in common with his followers of today, however, was the fact that his probationers were first offenders and minor recidivists released to him for supervision under suspended sentences, and it is just here that an explanation may lie for the observed uniformity in probation success-failure rates .... Criminologists might do well to consider the possibility that in the circumstances common to most probation systems--in the ordinary selectivity of clients and the ordinary routines of operation--may lie the real clues to the apparent effectiveness of this correctional device. (146) Some have argued that supervision not only does little good but may cause overt harm. Christine S. Scott-Hayward has documented the effects of supervision on offenders' abilities to secure and maintain employment and reestablish familial connections and has found that, in some cases, supervision methods and conditions interfere with successful reentry. (147)

      Like any discretionary decision made within the criminal justice system, revocation is subject to criticisms that it is arbitrary and "lawless" insofar as the decision of how or whether to respond to rule violations is left in the hands of unguided agents. (148) Worse still is the allegation that the decision to revoke may be not only arbitrary but covertly discriminatory. Studies of state revocation practices have found that individuals of color are in some instances more likely to be revoked from community supervision than are their white counterparts for identical violations. (149)

      These various criticisms, grounded in both pragmatism and principle, suggest that high revocation rates are a problem for a host of reasons. The next question is how that problem can be remedied.

    2. NEW LEGAL RESPONSES

      The concerns of "evidence-based" researchers and cost-conscious politicians have proven synergistic. In the past ten years, a number of states have passed laws and changed policies, hoping to save money by reducing their rates of revocation. Much of this new legislation requires agents to make use of the actuarial risk assessment tools advocated by evidence-based practitioners when deciding both the level of supervision that will be imposed upon particular offenders and how severely to sanction violations of release conditions. These developments are being implemented in a variety of ways, but the most common are laws that limit revocation for technical violations and policies that require the use of formal sanctioning grids.

      1. Limits on Sanctioning Technical Violations

        Policymakers recognize that not all conditions of release are of equal importance. One way in which they have tried to contain revocation rates is by barring revocation as a sanction for many noncriminal violations. These so-called technical violations--so denominated because failure to comply with them is only prohibited by the technicality of the community supervision order--have long been associated with overly punitive revocation. Consequently, many new laws prohibit revocation for many common, low-level violations.

        North Carolina provides a good example of this phenomenon. In 2011, the state passed its Justice Reinvestment Act in response to high revocation rates. (150) The Act made a number of changes to state laws governing revocation in an effort to reduce reliance on revocation as a sanction for rule violations. The state's approach was twofold. First, it delegated to probation agents the power to impose short jail stay sanctions without the need for judicial review, (151) allowing agents to respond immediately to detected technical violations. Second, the new laws prohibited revocation for any reason other than absconding from supervision or committing a new crime (with an exception for individuals who had twice previously been sanctioned to ninety days of confinement as an alternative to revocation) (152).

        In 2010, Alabama also restricted the ability of courts to revoke probation and parole as a result of technical violations. (153) Supporters of the law asserted that the changes would produce an $18 million savings in the annual...

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