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30 Perspectives Spring 1998
Part I
Editor’s note: This is the first part of a two part article. Part two of this article
will appear in the Perspectives Summer 1998 issue.
P
robation is the most common form of criminal sentencing in the United States. It is commonly defined as: A court-ordered disposition alternative through which an adjudicated offender is placed under the control, supervi- sion and care of a probation staff member in lieu of imprisonment, so long as the probationer meets certain standards of contact (American Correctional Association 1995). The Bureau of Justice Statistics reports that just over 3 million adults were under state or federal probation at year-end 1995, and that probationers make up 58 percent of all adults under correctional supervision (BJS 1996). In fact, the number of persons on probation is so large that the U.S. Department of Justice estimates that, on any one day, nearly 2 percent of all U.S. adult citizens are under probation supervision. And the population continues to rise—increasing 4 percent in 1994, and almost 300 per- cent over the past ten years (BJS 1996). Despite its wide usage, probation is often the subject of intense criticism. It suffers from a “soft on crime” image, and as a result, maintains little public support. Probation is often depicted as permissive, uncaring about crime victims, and blindly advocating a rehabilitative ideal while ignoring the reality of violent, predatory criminals. Their poor (and some believe, misunderstood) public image leaves them unable to compete effectively for scarce public funds. Nationally, community corrections re- ceives less than 10 percent of state and local government expenditures for corrections, even though they supervise two out of three correctional clients (Petersilia 1995b). As a result of inadequate funding, probation often means freedom from supervi- sion. Offenders in large urban areas are often assigned to a probation officer’s hundred- plus caseload, where meetings occur at most once a month, and there is little monitor- ing of employment or treatment progress. As long as no re-arrest occurs, offenders can successfully complete probation whether or not conditions have been fully met or court fees paid (Langan 1994). Such “supervision” not only makes a mockery of the justice system, but leaves many serious offenders unsupervised. But while current programs are often seen as inadequate, the concept of probation has a great deal of appeal. As Judge Burton Roberts, Administrative Judge of the Bronx Supreme and Criminal Courts explained: “Nothing is wrong with probation. It is the execution of probation that is wrong” (cited in Klein 1997:72). Scholars and citizens agree that probation has many advantages over imprison- ment, including lower cost, increased opportunities for rehabilitation, and reduced risk of criminal socialization. And with prison crowding a nationwide problem, the need for inexpensive and flexible community punishment options has never been greater. Probation leaders (Corbett 1996; Nidorf 1996), policymakers (Bell and Bennett 1996), and scholars (Clear and Braga 1995; Tonry and Lynch 1996) are now calling for “re- forming,” “reinvesting,” and “restructuring” probation. But exactly how would one go about reforming probation? Some are beginning to offer suggestions. There is a general trend toward greater judicial involvement in moni- toring probation conditions. In many jurisdictions, judges have established special drug courts. Here, judges identify first-time drug offenders, sentence them to partici- pate in drug testing and rehabilitation programs, and then the judge personally moni- tors their progress. If the offender successfully completes the program, he or she is not incarcerated and in some jurisdictions (e.g., Denver, Colorado), the conviction is ex- punged from the official record. Research on drug courts has been limited, but some studies have shown reductions in recidivism (Goldkamp 1994) and increased offender
Probation
in
the
United
States
BY J OAN P ETERSILIA , P H .D.
JOHN
AUGUSTUS,
FATHER
OF
PROBATION
American Probation and Parole Association 31
participation in treatment (Deschenes, Turner, and Greenwood 1995). Other judges have decided on an individual basis to impose probation sentences that are more punitive and meaningful. A judge in Houston, Texas, as part of his sentencing for molesting two students, a 66 year old music instructor was forced to give up his $12,000 piano and post a sign on his front door warning children to stay away. State District Judge Ted Poe also barred the teacher from buying another piano, and even from playing one until the end of his 20-year probation (Mulholland 1994). But meting out individualized sentences, and personally monitoring offenders takes time, and judges’ court calendars are crowded. James Q. Wilson of UCLA has suggested enlisting the police to help probation officers monitor offenders, particularly for the presence of weapons (Wilson 1995). He recommends giving each police patrol officer a list of people on probation or parole who live on that officer’s beat and then rewarding the police for making frequent stops to insure that the offenders are not carrying guns or violating other statutes. Police in Redmond, Washington have been involved in such an experiment since 1992, and while the program has not been formally evaluated, the police believe it has resulted in reduced crime (Morgan and Marris 1994). But closer monitoring of probationers is only half the problem. The more difficult problem is finding jail and prison capacity to punish violators once they are discovered. Closely monitoring drug testing, for example, leads to many positive drug tests (Petersilia and Turner 1993). Most local jails don’t have sufficient space to incarcerate all drug users, wanting to prioritize space for violent offenders. The result is that probationers quickly learn that testing dirty for drugs, or violating other court-ordered conditions, has little consequence. Oregon is trying to rectify this problem by imposing a swift and certain, but short (two to three days) jail sentence on every probationer who tests positive for drugs (Parent et al. 1994). The notion is that the offender will find the term disruptive to his normal life and be deterred from further drug use. Sanctions are gradually increased upon each subsequent failed drug test according to written department policy, and after three failed tests, the probationer is sent to prison. An evaluation of the program by the National Council on Crime and Delinquency (Baird, Wagner, and DeComo 1995) show encour- aging results in terms of increasing offender participation in treatment and lowering recidivism while under supervision. Unfortunately, debating the merits of these or other strategies is severely limited be- cause we know so little about current probation practice. Assembling what is known about U.S. probation practices, so that public policy can be better informed, is the main purpose of this article. Together, the data in this article show that probation is seriously underfunded relative to prisons—a policy that is not only short-sighted but dangerous. Probationers in urban areas often receive little or no supervision, and the resulting recidivism rates are high for felons. But prison crowding has renewed interest in community-based sanctions, and recent evaluative evidence suggests that probation programs—properly designed and implemented—can be effective on a number of dimensions, including reducing recidi- vism. There are several steps to achieving greater crime control over probationers. First, we must provide adequate financial resources to deliver programs that have been shown to work. Successful probation programs combine both treatment and surveillance, and are targeted toward appropriate offender subgroups. Current evidence suggests low-level drug offenders are prime candidates for enhanced probation programs. We must then work to garner more public support by convincing citizens that probation sanctions are punitive, and convincing the judiciary that offenders will be held accountable for their behavior. Over time, probation will demonstrate its effectiveness, both in terms of re- ducing the human toll that imprisonment exacts on those incarcerated, and reserving scarce resources to ensure that truly violent offenders remain in prison. Section I begins by describing U.S. juvenile and adult probation data sources, ex- plaining briefly why the topic has received relatively little attention. Section II presents a brief history of probation in the U.S., highlighting important milestones. Section III summarizes probation in modern sentencing practice, discussing how the probation decision is made, the preparation of the presentence investigation, and the setting and enforcement of probation conditions. This section also describes the organi-
ìMoved by the
plight of those in the
jails and prisons of
his day, a humble
Boston bootmaker
beganagreat
movement in the
reformation of
offenders when, in
1841, he took from
the court for a
period of probation
one who under his
care and with his
friendship became a
man again.î
From the memorial
plaque displayed in
Boston in recognition of
John Augustus, the Father
of Probation
American Probation and Parole Association 33
Of the first 1,100 offenders he discussed in his autobiography, he claimed only one had forfeited bond, and asserted that, with help, most of them eventually led upright lives (Augustus 1939). Buoyed by Augustus’s example, Massachusetts quickly moved into the forefront of probation development. An experiment in providing services for children (resembling probation) was inaugurated in 1869. In 1878, Massachusetts was the first state to formally adopt a probation law for juveniles. Interestingly, it was also the concern for mitigating the harshness of penalties for children that led to the international develop- ment of probation (Hamai et al. 1995). Public support for adult probation was much more difficult to come by. It was not until 1901 that New York passed the first statute authoriz- ing probation for adult offenders; over 20 years after Massachusetts passed it’s law for juvenile probationers (Latessa and Allen 1997). By 1956, all states had adopted adult and juvenile probation laws. John Augustus’ early work provided the model for probation as we know it today. Virtually every basic practice of probation was originally conceived by him. He was the first person to use the term probation— which derives from the Latin term probatio , meaning a “period of prov- ing or trial.” He developed the ideas of the presentence investigation, supervision conditions, social casework, reports to the court, and revo- cation of probation. Unfortunately, for such a visionary, it is unfortu- nate that Augustus died destitute (Dressler 1962). Initially, probation officers were volunteers who according to Augustus, just needed to have a good heart. Early probation volunteer officers were often drawn from Catholic, Protestant, and Jewish church groups. In addition, police were reassigned to function as probation officers while continuing to draw their pay as municipal employees. But as the con- cept spread and the number of persons arrested increased, the need for presentence investigations and other court investigations increased, and the volunteer probation officer was converted into a paid position (Dressler 1962). The new officers hired were drawn largely from the law enforcement community—retired sheriffs and policemen—and worked directly for the judge. Gradually the role of court support and probation officer became synonymous, and probation officers became “the eyes and ears of the local court.” As Rothman observed some years later, probation devel- oped in the U.S. very haphazardly, and with no real thought (Rothman 1980:244). Missions were unclear and often contradictory, and from the start there was tension between the law enforcement and rehabilita- tion purposes of probation (McAnany, Thomson and Fogel 1984). But most importantly, tasks were continually added to probation’s responsi- bilities, while funding remained constant or declined. A 1979 survey (Fitzharris 1979) found that probation departments were responsible for more than 50 different activities, including court-related civil func- tions (for example, step-parent adoption investigations, minority age marriage investigations). Between the 1950s and 1970s, U.S. probation evolved in relative obscurity. But a number of reports issued in the 1970s brought national attention to the inadequacy of probation services and their organiza- tion. The National Advisory Commission on Criminal Justice Stan- dards and Goals (1973:112) stated that probation was the “brightest hope for corrections,” but was “failing to provide services and supervi- sion.” In 1974, a widely publicized review of rehabilitation programs purportedly showed probation’s’ ineffectiveness (Martinson 1974), and two years later the U.S. Comptroller General’s Office released a report concluding that probation as currently practiced was a failure, and that the U.S. probation systems were “in crisis” (1976:3). They urged that “Since most offenders are sentenced to probation, probation systems must receive adequate resources. But something more fundamental is needed. The priority given to probation in the criminal justice system
must be reevaluated.” (Comptroller General 1976:74). In recent years, probation agencies have struggled—with continued meager resources—to upgrade services and supervision. Important de- velopments have included the widespread adoption of case classification systems and various types of intermediate sanctions (e.g., electronic monitoring, intensive supervision). These programs have had varied success in reducing recidivism, but the evaluations have been instructive in terms of future program design. Significant events in the development of U.S. probation are con- tained in Table 1.
Year Event
Table 1 Significant Events in the Development of US Probation
1841 John Augustus introduces probation in the US in Boston 1878 Massachusetts is first state to formally adopt probation for juveniles 1878-1938 37 states, the District of Columbia, and the federal government passed juvenile and adult probation laws 1927 All states but Wyoming have juvenile probation laws 1954 All states have juvenile probation laws 1956 All states have adult probation laws (Mississippi becomes the last state to pass authorizing legislation) 1973 National Advisory Commission on Criminal Justice Standards and Goals endorses more extensive use of probation. 1973 Minnesota first state to adopt Community Corrections Act, 18 states follow by 1995 1974 Martinson’s widely publicized research purportedly proving that probation does not work 1975 US Department of Justice conducts the first census of US probationers 1975 Wisconsin implements first probation case classification system. American Probation and Parole founded. 1976 U.S. Comptroller General’s study of US probation concludes it is a “system in crisis” due to inadequate funding 1982 Georgia’s Intensive Supervision Probation (ISP) Program claims to reduce recidivism and costs. 1983 Electronic monitoring of offenders begins in New Mexico, followed by larger experiment in Florida 1985 RAND releases study of felony probationers, showing high failure rates. Replications follow, showing probation services and effectiveness vary widely across nation. 1989 Government Accounting Office survey shows all 50 States have adopted intensive probation and other intermediate sanction programs 1991 U.S. Department of Justice funds nationwide intensive supervision demonstration and evaluation. 1993 Program evaluations show probation without adequate surveillance and treatment is ineffective, but appropriate programs reduce recidivism.
Source: Compiled by the author.
34 Perspectives Spring 1998
III. Probation and Modern Sentencing Practice Anyone who is convicted, and many of those arrested, come into contact with the probation department and probation officials who operate with a great deal of discretionary authority and dramatically affect most subsequent justice processing decisions. Their input affects not only the subsequent liberties offenders will enjoy, but their deci- sions influence public safety, since they recommend (within certain le- gal restraints) which offenders will be released back to their communi- ties, and judges usually accept their sentence recommendations.
A. Probation’s Influence Throughout the Justice System As shown in Figure 1, probation officials are involved in decision- making long before sentencing, often beginning from the point of a crime being noted by the police. They usually perform the personal investigation to determine whether or not a defendant will be released on his own recognizance or bail. Probation reports are the primary source of information the court uses determine which cases will be deferred from formal prosecution. If deferred, probation officers will also super- vise the diverted offender and their recommendation will be primary in whether or not the offender has successfully complied with the diver- sionary sentence, and hence no formal prosecution will occur. For persons who violate court-ordered conditions, probation officers are responsible for deciding which violations will be brought back to the courts attention, and what subsequent sanctions to recommend. When the court grants probation, probation staff have great discretionary about which court-ordered conditions to enforce and monitor. And even when an offender goes to prison, the offender’s initial security classification (and eligibility for parole) will be based on information contained in the presentence investigation. Finally, when the offender is released from jail or prison, probation staff often provide his or her community super- vision.
In fact, it is safe to say that no other jus- tice agency is involved with the offender and his case as comprehen- sively as the probation department. Every other agency com- pletes their work, and hands the case over to the next decision maker. For example, the police arrest of- fenders, hand them over to the prosecutor who files charges, who hands them to the judge who sentences, and finally to the war- den who confines— but the probation de- partment interacts with all of these agen- cies, provides the data that influences each of their processing deci- sions, and takes charge of the offender’s super- vision at any point when the system decides to return the offender to the community (of course, for parolees, parole officers usually assume this function). Figure 1 highlights the involvement of probation agencies throughout the jus- tice system, showing its integral role to custody and supervision. B. The Presentence Investigation Report When most think of probation, they think of its supervision func- tion. But providing law enforcement agencies and the courts with the necessary information to make key processing decisions is the other major function of probation, commonly referred to as probation’s investigation function. From the point of arrest, information about the offenders’ crime and criminal background is accumulated and eventually presented to the court if the case proceeds through prosecution and sentencing. This formal document is known as the presentence investigation (PSI) or presentence report (PSR). The PSI is a critically important document, since over 90 percent of all felony cases in the U.S. are eventually resolved through a negotiated plea (BJS 1995), and the major decision of the court is whether impris- onment will be imposed. A survey by the National Institute of Correc- tions found that half of all states require a PSI in all felony cases; the PSI is discretionary for felonies in another sixteen states. Only two states require a PSI prior to disposition in misdemeanor cases (NIC 1993). Where PSIs are discretionary, the option of requesting them usually rests with the courts. Research has repeatedly shown that judge’s knowledge of the defen- dant is usually limited to the information contained in the PSI, and as a result, there is a high correlation between the recommendation of the PO and the judge’s sentence. Research by the American Justice Institute (1981), for example, using samples from representative probation de- partments throughout the United States, found that recommendations
Law Violation
Jail Detention
Initial Court Appearance
Prosecutorial Screening/ Charging
Mediate/ Refer/ No Arrest
Summons (^) Divert/ Release Citation/ Release Release on Bail Release:ROR or Bail
Accept Guilty Plea
Diversion Program/ Suspend Prosecution
Police Jail Judge Prosecutor
Preliminary Hearing
Arraignment (^) SentencingTrial/ Prison/Release
Release/ ROR or Bail
Reduce Charge to Misdemeanor
Plea andAccept Sentence
Judge Judge Judge Parole Board
Jail or Prison
Community Sanctions
Jail or Prison
Community Sanctions
Release/ ROR or Bail
Accept Plea andSentence CommunitySanctions Probation^ Jailor Prison
Parole Conditional Release
=Primary Responsibility
=Influential Role
Figure 1
Probationís Involvement in the Criminal Justice System
36 Perspectives Spring 1998
liberty that is protected by due process (McShane and Krause 1993:93). In that vein, the courts have ruled that each probation condition must not infringe on the basic rights of the person being supervised. Case law has established that there are four general elements in establishing the legal validity of a probation condition. Each imposed probation condi- tion:
- must serve a legitimate purpose —must either protect society or lead to the rehabilitation of the offender;
- must be clear —with language that is explicit, outlining specifically what can or cannot be done so that the average person can know exactly what is expected;
- must be reasonable —not excessive in its expectations, and
- must be constitutional —while probationers do have a diminished expectation of certain privileges, they retain basic human freedoms such as religion, speech, and marriage. In legal terms, the probation conditions form a contract between the offender and the court^2. The contract states the conditions, at least theo- retically, the offender must abide by to remain in the community. The court requires that the probation officer provide the defendant with a written statement setting forth all the conditions to which the sentence is subject. The offender signs the contract, and the probation officer is the “enforcer” of the contract, responsible for notifying the court when the contract is not being fulfilled. Should a defendant violate a probation condition at any time prior to the expiration of the term of probation, the court may, after a hearing pursuant to certain rules (which include written notification of charges): •continue him or her on probation, with or without extending the term or modifying or enlarging the conditions; or •revoke the sentence of probation and impose any other sentence that was available at the time of initial sentencing (e.g., prison or jail). As mentioned previously, a suspended sentenced is often issued along with probation, and upon revocation, judges may order the original sentence to be carried out. When a suspended sentence is reinstated, the judge may decide to give credit for probation time already served, or he/ she may require the complete original incarceration term to be served. Over the years, the number of offenders who have special conditions
attached to probation has increased (Clear 1994). The public’s more punitive mood, combined with inexpensive drug testing and a higher number of probationers having substance abuse problems, undoubt- edly contributes to the increase in the number of conditions imposed on probationers. More stringent conditions increase the chances of fail- ure (Petersilia and Turner 1993). According to BJS, a lower percentage of offenders are successfully completing their probation terms. In 1986, 74 percent of those who exited probation successfully completed their terms; in 1992, the figure was 67 percent, and by 1994, that figure had dropped to 60 percent (Langan 1996). Langan and Cunniff’s (1992) study of felons on probation showed that 55 percent of the offenders had some special condition (beyond the standard conditions) added to their probation terms (shown in Figure 2), the most common being drug testing. Further analysis by Langan (1994) showed that many probationers failed to satisfy their probation-ordered conditions. He found that half of all probationers simply did not comply with the court-ordered terms of their probation, and only a fifty percent of the known violators ever went to jail or prison for their noncompliance. Langan concluded (1994:791) “...sanctions are not vigorously enforced.” Taxman and Byrne (1994) reanalyzing a national sample of felons placed on probation and tracked by BJS for 2 years (Dawson 1990), and discovered that even probation absconders (i.e., those who fail to report) are not often punished. They found that, on any one day, about 10 to 20 percent of adult felony probationers were on abscond status, their whereabouts unknown. While warrants were usually issued for their arrest, no agency actively invests time finding the offenders and serving the warrants. They concluded that, practically speaking, as long as offenders are not rearrested, they are not violated. Even though many court-ordered conditions are not actively enforced, the probation population is so large, that even revoking a few percent of them or revoking all those who are rearrested, can have a dramatic im- pact on prison admissions. In fact, current estimates show that between 30 and 50 percent of all new prison admissions are probation and parole failures (Parent et al., 1994). Texas, for example, reported that in 1993, approximately two thirds of all prison admissions were either probation or parole violators. In Or- egon, the figure was over 80 percent, and in Cali- fornia, over 60 percent (Parent et al. 1994)^3. Due to the scarcity of prison beds, policymakers have begun to wonder whether revoking proba- tioners and parolees for technical violations (i.e., infractions of the condi- tions of supervision, rather than for a new crime) makes sense. While it is important to take some action when probation violations are discovered, it is not obvi- ous that prison is the best response. Several states, trying to reserve prison beds for
0% 10% 20% 30% 40% 50% 60%
Residential placement
Alcohol treatment
Drug abuse treatment
Drug testing
Mental Health Counseling
House arrest
Day program
Community service
Any condition
Figure 2
Special Conditions Imposed on Adult Felony Probationers
Percent of Felony Probationers
American Probation and Parole Association 37
violent offenders, are now structuring the courts response to technical violations. Missouri has opened up the Kansas City Recycling Center, a forty-one bed facility operated by a private contractor to deal exclusively with technical violators who have been recommended for revocation (Herman 1993). Mississipi and Georgia use ninety-day boot camp pro- grams, housed in separate wings of the State prison, for probation viola- tors (Grubbs 1993; Prevost, Rhine, and Jackson 1993). While empirical evidence is scant as to the effects of these programs, system officials believe that the programs serve to increase the certainty of punishment, while reserving scarce prison space for the truly violent (Rhine 1993).
E. Probation Caseloads and Contact Levels The most common measure of probation’s workload is caseload size, or the number of offenders assigned to each probation officer. Pub- lished reports normally divide the number of probation department employees or line officers, with the number of adult probationers under supervision to indicate average caseload size. Over the years, probation caseloads have grown from what was thought to be an ideal size of 30: in the mid-1970s (President’s Commission on Law Enforcement 1967) to today, where the average adult regular supervision caseload is reported to be 117:1 (Camp and Camp 1995). The adult figure is misleading and vastly overstates the number of officers available for offender supervision. First, as Cunniff and Bergsmann’s study (1990) showed, not all probation employees or even line officers are assigned to offender supervision. On average, Cunniff and Bergsmann (1990) found that in a typical U.S. probation depart- ment: •only 52 percent of a typical probation department’s staff are line officers, 48 percent are clerical, support staff, and management. Such high clerical staffing (23 percent) is required because a third to a half of all clerical personnel type PSIs for the court. •Of line probation officers, only about 17 percent of them supervise adult felons. The remaining officers supervise juveniles (half of all U.S. adult probation departments also have responsibility for supervising ju- veniles), and 11 percent prepare PSIs. These figures were nearly identical to those found in the NIC na- tional survey of probation departments (NIC 1993). There were an estimated 50,000 probation employees in 1994 (Camp and Camp 1995). If 23 percent of them (or 11,500 officers) were super- vising 2,962,166 adult probationers, then the average U.S. adult proba- tion caseload in 1994 would equal 258 offenders for each line officer. A recent survey (Thomas 1993) of juvenile probation officers re- sponsible for supervision showed that U.S. juvenile caseloads range be- tween 2 and 200 cases, with a typical (median) active caseload of 41. The optimal caseload suggested by juvenile probation officers was 30 cases. Of course, offenders are not supervised on “average” caseloads. Rather, probation staff utilize a variety of risk and needs classification instru- ments to identify those offenders needing more intensive supervision and/or services. Developing these “risk/need” classification devices oc- cupied probation personnel throughout the 1970s, and their use is now routine throughout the U.S. (for a review, see Clear 1988). Unfortu- nately, while risk assessments are better able to identify offenders more likely to reoffend, funds are usually insufficient to implement the level of supervision predicted by the classification instrument (Jones 1996). Recent BJS data show 95 percent of all us adult probationers are supervised on regular caseloads, whereas about 4 percent are on inten- sive supervision and about 1 percent are on specialized caseloads, such as electronic monitoring or boot camps (Brown et al. 1996). Again, however, these numbers don’t tell U.S. much about the actual contact
levels received by felons. The best data on this subject comes from the Langan and Cunniff (1992) study tracking felony probationers. They report that about 10 percent of felony probationers are placed on inten- sive caseloads, where administrative guidelines suggest probation offic- ers should have contact with probationers 9 times per month (Table 2). The authors note that this initial classification level doesn’t necessarily mean that they got that level of service, but rather they were assigned to a caseload having that administrative standard. The Langan and Cunniff (1992) study also provides information about supervision level, relative to conviction crime and county of con- viction. They report that, across all the sites and felony crimes studied, about 20 percent of adult felony probationers are assigned to caseloads requiring no personal contact. In large urban counties, the situation is particularly acute, and the average caseload size noted above still does not convey the seriousness of the situation. Take, for example, the Los Angeles County Probation Department, the largest probation department in the world. In 1995, its 900 line officers were responsible for supervising 88,000 adult and juvenile offenders. Since the mid-1970s, county officials have continu- ally cut their budgets, while the number of persons granted probation and the number of required presentence investigations has grown (Nidorf 1996). The result is that in 1995, 66 percent of all probationers in LA were supervised on “automated” or banked caseloads (Petersilia 1995b). In these caseloads, no services, supervision, or personal contact is provided. Rather, these persons are simply required to send in a pre-addressed postcard once or twice a month reporting on their activities. A more detailed study found that on any given day, there are nearly 10, violent offenders (convicted of murder, rape, assault, kidnapping and robbery) being supervised by probation officers in LA, and about half of them are on “automated minimum” caseloads with no reporting re- quirements (Los Angeles County Planning Committee 1996). F. The Organization of Probation Probation is basically a State and local activity, with the Federal Gov- ernment providing technical support, data gathering, and funding for innovative programs and their evaluation. Probation is administered by more than 2,000 separate agencies, and there is no uniform structure (Abadinsky 1997). As the National Institute of Corrections (NIC) re- cently observed, “Probation was established in nearly as many patterns as there are states, and they have since been modified by forces unique to each state and each locality.” (1993:v). The result is that probation services in the U.S. differ in terms of whether they are delivered by the executive or the judicial branch of government, how services are funded, and whether probation services are primarily a state or a local function. While a detailed discussion of these issues is beyond the scope of this essay, interested readers are referred to the NIC’s (1993) report State and
Intensive 9 per month 10% Maximum 3 per month 32% Medium 1 per month 37% Minimum 1 per 3 months 12% Administrative none required 9% Source: Langan and Cuniff, 1994.
Table 2 Felony Probationersí Initial Supervision Levels
Supervision Level Prescribed # of Contacts^ % of Caseload
American Probation and Parole Association 39
formula for computing probationer costs, but funds are known to be inadequate. Since its beginnings, probation has continually been asked to take on greater numbers of probationers and conduct a greater number of pre- sentence investigations, all while experiencing stable or declining fund- ing. As Clear and Braga recently wrote: “Apparently, community super- vision has been seen as a kind of elastic resource that could handle what- ever numbers of offenders the system required it to.” (Clear and Braga 1995:423). From 1977 to 1990 prison, jail, parole, and probation populations all about tripled in size. Yet only spending for prisons and jails had in- creased expenditures. In 1990, prison and jail spending accounted for two cents of every state and local dollar spent — twice the amount spent in 1977. Spending for probation and parole accounted for two- tenths of one cent of every dollar spent in 1990—unchanged from what it was in 1977 (Langan 1994). Today, although two-thirds of all persons convicted are in the community, only about one tenth of the correc- tional budget goes to supervise them. c. Fines and Fees As part of the conditions of probation, many jurisdictions are includ- ing various offender-imposed fees, which when collected, are used to support the probation department. These fees are levied for a variety of services including the preparation of presentence reports, electronic monitoring, work release programs, drug counseling, and regular pro- bation supervision. By 1992, more than half of the states allowed proba- tion departments to charge fees to probationers, ranging anywhere from $10 to $40 per month, usually with a sliding scale for those unable to pay (Finn and Parent 1992). Finn and Parent (1992), in an NIJ study of fines, found that despite a common perception of the criminal as penniless and unemployable, most offenders on probation who have committed misdemeanors— and even many who have committed felonies—can afford reasonably monthly supervision fees. Texas, for example, has been highly successful in generating probation fees. Probationers there are required to pay a standard monthly fee of $10 plus $5 for the victims fund. In 1990, they spent about $106 million to supervise probationers, but collected more than $57 million in fees—about one half the cost of basic probation supervision (Finn and Parent 1992:12). Taxpayers applaud such efforts and they may also teach offenders personal responsibility, but the practice causes dilemmas concerning whether to revoke probation for nonpayment. The courts have ruled that probation cannot be re- voked when an indigent offender has not paid his fees or restitution ( Bearden v. Georgia 1983).
IV. Who Is On Probation?
Characteristics and Risks of
Current Probation Population Probation was never intended to serve as a major criminal sanction. It was designed for first time offenders who were not too deeply involved in crime, and for whom individualized treatment and casework could make a difference. But, as shown below, things have
changed considerably. A. Profile of Persons Placed on Probation
1. Size of the Probation Population BJS recently reported that U.S. judges sentence to probation or pro- bation with jail, 80 percent of all adults convicted of misdemeanors (crimes normally punishable by less than a year incarceration), and about 60 percent of all adults convicted of felonies (crimes punishable by more than 1 year in prison)—or fully two-thirds of all persons convicted of a crime (BJS 1996). As a result, BJS estimated that there were a record number of 2,962,166 adults on probation at yearend 1994, an increase of 4 percent over the previous year (see Figure 4). Figure 4 also shows a consistent 3:1 ratio between probationers and prisoners over the past decade. An interesting recent analysis by Zvekic (1996) shows that the U.S. and other Western European countries pref- erence for probation versus prison sentencing is not shared within some other countries, most notably Japan, Israel, and Scotland. For example, the ratio of imprisonment to probation in Japan is 4:1. BJS also reports that the southern U.S. states generally have the high- est per capita ratio of probationers—reporting 1,846 probationers per 100,000 adults at yearend 1995 (BJS 1996). In terms of sheer numbers of probationers, Texas has the largest adult probation population (about 396,000), followed by California (about 277,000). In Texas, 3.1 per- cent of all adults were on probation at yearend 1995 (BJS 1996). If probation were being used primarily as an alternative to incarcera- tion, one might expect to find that the states that imposed more proba- tionary sentences would have lower than average incarceration rates and vice versa. This is not the case. Generally, states with a relatively high per capita imprisonment rate also have a relatively high per capita use of probation. Texas, for example, has one of the highest state imprison- ment rates in the nation (sixth highest) and the highest rate of probation impositions. Similarly, Southern states generally place persons on pro- bation at a high rate, and they also generally incarcerate more than the rest of the nation (Klein 1997). 2. Demographic Characteristics and Conviction Crimes Half of all offenders on probation in 1995 had been convicted of a felony, and a quarter were on probation for a misdemeanor. One in every six probationers had been convicted of driving while intoxicated— which could be either a felony or misdemeanor (BJS 1996).
1980198119821983198419851986198719881989199019911992199319941995
Probation
Prison Parole Jail
% Change 177%
237% 218% 178%
3,500,
500,
1,000,
1,500,
2,000,
2,500,
3,000,
Number of Adult Offenders
Figure 4 Adults in Prison, Jail, Probation and Parole, 1980-
40 Perspectives Spring 1998
The average age of all (state) adult probationers nationwide is 29 years; women made up 21 percent of the nation’s probationers. Approxi- mately 64 percent of adults on probation were white, and 34 percent were black. Hispanics, who may be of any race, represented 14 percent of probationers (BJS, 1996). These percentages have remained relatively constant since BJS began collecting the data in 1978 (Langan 1996). While BJS does not routinely collect the conviction crimes of proba- tioners, they undertook a special Census of Probation and Parole in 1991 (BJS 1992) where such information was obtained for a nationally repre- sentative sample of adult probationers (felons and misdemeanors com- bined). The conviction crimes of adult probationers are contained in Figure 5. While we know less about the characteristics of juvenile probation- ers, Butts et al. (1995) reports that in 1993, 35 percent (520,600) of all formally and informally handled delinquency cases disposed by juvenile courts resulted in probation. Probation was the most severe disposition in over half (56 percent) of adjudicated delinquency cases, with annual proportions remaining constant for the 5-year period 1989-1993. Figure 6 shows the growth in juvenile probation populations, as well as their underlying offense. It is important to remember that this growth in juvenile probation populations has occurred even though a greater number of serious juvenile offenders are being waived to adult court for prosecution and sentenc- ing (Butts et al. 1994). Judicial waivers increased 68 percent between 1988 and 1992, although waivers to adult court are still estimated to be less than 2 percent of all cases filed in juvenile court (Howell, Krisberg, Jones 1993).
B.The Variability and Prevalence of Probation Sentencing As noted earlier, the decision to grant proba- tion is highly discretionary within certain legal boundaries and practices vary considerably within and among states. Cunniff and Shelton (1991), in a study of over 12,000 cases sentenced to proba- tion in 1986 in 32 large jurisdictions, found that among the participating jurisdictions, the percent of all sentences involving probation ranged from a low of 30 percent in New York County (Manhat- tan) to a high of 75 percent in Hennepin County (Minneapolis).
Cunniff and Shelton (1991) suggest some of the variation is due to sentencing laws under which these jurisdictions function and their jus- tice environment. They report that courts in determinate sentencing states (with no parole board) tend to use probation more frequently than courts in indeterminate sentencing states (with parole boards). Pre- sumably, in indeterminate states, parole boards will release early the less serious and less dangerous offenders—thus,. reducing length of prison time served for less serious offenders. But in determinate sentencing states, prison terms are fixed and parole boards have little ability to re- duce the length of stay courts impose. Apparently, judges are less willing to sentence to prison when length of term is fixed. Studies have also shown that judges are more willing to place felons on probation when they perceive that the probation department can monitor the offender closely and that community resources are suffi- cient to address some of the offender’s underlying problems (Frank, Cullen, and Cullen, 1987). Minnesota, Washington, and Arizona—the three states identified by Cunniff and Shelton (1992) as utilizing proba- tion most frequently—are well known for delivering good probation supervision and having adequate resources to provide treatment and services. Some of the variability in granting probation, however, must also be due to the underlying distribution of offense categories within these jurisdictions. For example, it may be that the robberies committed in one location are much less serious than those committed in another. However, reanalysis of a data set collected by RAND researchers, where offense seriousness was statistically controlled, still revealed a wide dis- parity among jurisdictions in their use of straight probation (i.e., with- out a jail term). Klein and his colleagues examined adjudication out- comes of defendants from 14 large urban jurisdictions across the coun- try in 1986, where all of the defendants were charged with stranger-to- stranger armed robberies and residential burglaries (Klein et al. 1991). They found that the granting of straight probation, even for felons con- victed of similar crimes, varies substantially across the nation, particu- larly for burglary (see Figure 7). The figures for the California counties are particularly low because California commonly uses split sentences (probation plus jail) for felony crimes. This demonstrated variability in the granting of probation is impor- tant, as it suggests that the underlying probation population and the services they need and supervision risks they pose is vastly different,
Sexual Assault/Assault 10% Robbery/Other 4%
Drug Possession/Other 16%
Weapons 1%
Larceny/Auto theft 17%
Burglary 7%
DWI/Other 26%
Fraud/Other 10%
Drug Trafficking 8%
Homicide 1%
Figure 5 Adults on Probation by Conviction Type
= Violent = Property = Drugs = Public Order = Total
Figure 6 Number of Juveniles in U.S. on Probation, by Year and Crime
