Crime Without Consequences

The latest and greatest cause du jour is criminal justice reform—a push to claw back the “tough on crime” policies of decades past.

In pursuit of that agenda, scores of advocacy groups have masqueraded as public policy analysts presenting their predetermined conclusions that the “system” is broken as unbiased assessments based on data and experience.

The latest is the Council of State Governments (CSG), a nonpartisan, nonprofit think tank whose Justice Center arm studies criminal justice reform. In a recently released study, “Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets,” CSG concludes that prisons are overloaded with parolees and probationers.

CSG’s press release states:

45 percent of state prison admissions nationwide are the result of violations of probation and parole supervision—either for new crimes or breaking supervision rules…[and] one-quarter of prison admissions are the result of technical violations, which are often minor offenses, such as failed drug tests or missed curfews.

National Public Radio (NPR) reported, “the majority of these violations are for ‘minor infractions, such as failing a drug test or missing a curfew. Those so-called technical violations cost states $2.8 billion every year, the report says.”

But the underlying data and the footnotes to CSG’s own report belie those bold, topline claims.

A few necessary corrections and clarifications are in order.

  • “State prison” includes county jails (which aren’t state prisons, at all) and most sentences are short stays.
  • Parole and probation are distinct, but all terms are mutually agreed upon conditions to maintain the offender’s liberty and are often tailored to their risk and history.
  • Prior to being re-incarcerated, both parolees and probationers receive revocation hearings, administered by a neutral third-party.
  • Technical violations are not necessarily minor and often include a re-offense or serious abrogation of their release terms that threatens the public safety.

So little of what CSG says is true it almost would be laughable—if not for the tragedy that some state lawmakers may use the report to alter public safety laws to favor criminals.

The CSG report repeatedly says that violators are admitted to “state prison” which is not an accurate description of the facilities they enter and implies an extended length of sentence of parolee and probationer violators. But buried in a footnote, the CSG acknowledges:

“Prison” includes county jail if the county was reimbursed by the state for a person’s incarceration, which occurs in some, but not all, states. Supervision violations may include revocations (i.e., unsuccessful terminations of a supervision and completion of a sentence in prison or jail) or short-term sanctions (i.e., probation or parole jurisdiction is maintained and the person is incarcerated for a short period of time in prison or jail).” (Emphasis added.)

The issue is further explained in CSG’s methodology section:

[Total admissions to Prison:]

  • Include people sentenced to a term of incarceration regardless of sentence length (include jail sentences in unified systems). This may include people held in private facilities as well as county-run facilities, provided they have been sentenced or formally sanctioned by a court or supervision authority and their incarceration is state funded.

  • Include people incarcerated for short sanctions in state-funded custody (may include county jails) while on probation or parole/post-prison supervision. 

It is important to note that jails, typically, detain inmates for less than one year, while prisons do so for a year or longer. So, “prison” doesn’t mean prison, according to the CSG itself. It is just useful shorthand to grab the attention of smug advocates and lazy journalists.

Another important distinction glossed over by the CSG report is the difference between parole and probation. Both are the result of criminal convictions (felony and/or misdemeanor) but only probation is a sentence in and of itself (you can remain out of prison or jail if you adhere to certain rules). Parole, on the other hand, is a privilege extended to sentenced inmates for good behavior behind bars. Both categories (probationers and parolees) pledge to adhere to given rules to maintain their liberty. The terms are a legal agreement with consequences for violations (i.e., admission to prison or jail for a specified time).

Yet another problem is CSG’s characterization of technical violations as “minor offenses, such as failed drug tests or missed curfews.”

This is not an accurate description of technical violations and how they are enforced. It portrays probation and parole officers as overbearing parents revoking the freedom of otherwise compliant offenders for missing their bedtime.

In reality:

  • Offenders agreed to the terms of probation or parole in exchange for their liberty.
  • The terms are usually tailored to the offender’s history and crimes (e.g., no drugs or alcohol for an addict) or for the safety of past victims (no contact with a former spouse) or the general public (no possession of weapons).
  • Parolees and probationers receive revocation hearings in front of a judge or hearing officer. The decision is not made arbitrarily by a single parole or probation officer. Many states’ hearings include “improvement plans” to avoid re-incarceration through “graduated sanctions” based on risk-level and the severity of new violations.
  • Most importantly, CSG acknowledges a crucial data limitation that all but eviscerates their conclusion that “minor” technical violations are the root cause of revocation. Buried under CSG’s flashy graphics, a tiny asterisks notes: “Whether an incarceration is the result of a new offense or technical violation is often difficult and problematic to delineate, even in states with available data. Most states do not consider a supervision violation to be the result of a new offense unless a new felony conviction is present, meaning technical violations may include misdemeanor convictions or new arrests.” [emphasis mine]

The whole report is so rife with data errors and mischaracterizations that it is difficult to identify how the data was repurposed and interpreted.

CSG claims that the state with the supposedly highest revocation rate, Idaho, holds 5,298 inmates on a given day due to revocations. Such revocations account for 69 percent of Idaho’s “prison admissions” and 62 percent of its overall prison population. Curiously, the prison admissions breakdown that is given is: 1) probationers—new offense (20 percent), 2) technical probation violators (13 percent), 3) parolees—new offense (21 percent) and 4) technical parole violators (15 percent). Just below the fancy widget, a blaring “Data Alert” warns that the state did not provide CSG with any of that data or related costs.

Furthermore, CSG claims that 22 percent of the overall Idaho prison population is comprised of parole violators. But in fact, the Idaho Department of Corrections’ own report identifies only 657 parole violators as housed state prisons, re-entry facilities, or county jails in February 2018. With 8,456 total inmates in Idaho’s control that month, parole violators did not account for 22 percent of the state’s prison population as CSG contends—the figure for parole violators in prison is closer to 8 percent. Even CSG reported in 2015 that Idaho’s violators in prison population was 40 percent not the 62 percent the latest report claims. That did not stop CSG from populating their charts and shaming Idaho as an outlier.

So, let’s summarize the study’s take-aways: facts are irrelevant, costs to society and victims are secondary, and consequences and personal responsibility are cruel (to convicted criminals). It is of no consequence for parolees or probationers to use illegal drugs or possess firearms while on supervision. No accountability is necessary for sympathy, not sanctions will cajole inveterate criminals into good behavior.

Let me help rewrite that press release opener:

A new nationwide study measures the cost to the criminal but ignores the cost to victims of crime and to public safety.

Nearly half the people convicted of crimes in America who were given the opportunity to avoid incarceration instead chose to break their word and the law. They were held accountable for their initial and subsequent offenses after a fair hearing.

An alternative is already working with fewer carrots (leniency) and more swift and reliable sticks (sanctions) for violations.

That alternative is Hawaii’s HOPE program, which implements

a swift and commensurate sanction for each probation violation. Probation, as has traditionally been implemented, usually allows probation violations to accumulate since there are few sanction alternatives available to probation officers and judges apart from a probation revocation. Once the probationer accumulates enough violations to forfeit probation, the probationer usually is sent to serve the original prescribed prison sentence. HOPE, on the other hand, involves delivering an immediate, measured and proportionate sanction for each violation as it occurs. Each probationer entering HOPE is made aware of the program expectations, including that there will be an immediate consequence for every violation.

According to studies, HOPE participants “experienced fewer returns to prison on average: 13 percent for those who only served HOPE probation; 15 percent for those who were transferred into HOPE from conventional probation; and 32 percent for those who served conventional probation only.”

Hawaii’s model has been attempted elsewhere with mixed results due to implementation problems but continues to offer its claim: hope for compliance and keeping offenders out of jail and prison: “[A rigorous study] also showed significant differences in compliance and recidivism for HOPE probationers, with large differences in positive drug tests (13 percent HOPE versus 46 percent among those in the control group) and new arrests (21 percent HOPE versus 47 percent among those in the control group).”

The larger conclusion for the parole and probation system isn’t that leniency works as much as hard, fast, and consistent accountability does. We would all be better off if advocates dressed up as unbiased experts bothered to apply such rigor to their own work.

Photo Credit: Sonkar Shubham/EyeEm/Getty Images


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