Wednesday, May 31, 2006

Why choose jail?

Blonde Justice has an interesting post discussing why a rational criminal defendant might choose short-term incarceration in the county jail rather than a probation sentence. It made me think of the Grits commenter who, reacting to this item, cited probation officers suggesting that potential probationers routinely making such choices in Harris County contributed to jail overcrowding. I've heard similar comments before, that a large number of misdemeanants in Houston (I'm sure it's true for a certain percentage everywhere) would rather sit out their time in jail than report to a probation officer and meet various court imposed requirements.

I've never seen statistical documentation showing that such defendant decisions account for a signficant portion of Harris County jail overcrowding. But if that's true it means the probation system is broken and not fulfilling its function, that the requirements are simply too onerous for average people to complete them. Another instance of programs failing not because they're not well intended, but because they're
not well designed. Via Doc Berman.

21 comments:

Watching Them, Watching Us said...

Is drug addiction rehabilitation in Texas done better inside the prison system, or outside in the the community, or neither ?

In the United Kingdom:

"Prison service fatally flawed, says top judge

Wide-ranging criticism by lord chief justice adds to Home Office pressure

Eric Allison, prison correspondent
Tuesday May 30, 2006
The Guardian

The most senior judge in the country makes wide criticisms of the criminal justice system today and warns prison overcrowding is proving "absolutely fatal" for efforts to tackle the treatment of inmates. The remarks by Lord Phillips, lord chief justice of England and Wales, are likely to put further pressure on the Home Office, which is reeling from the release of foreign prisoners.

[...]

He said one reason why prison numbers were rising was because drug users were deliberately committing offences to get on prison help programmes. "We need much better drug rehabilitation facilities in the community," he said."It should not be necessary to commit an offence in order to get drug treatment. I am afraid the reality in many parts of the country is that it is."

Anonymous said...

OK, gotta weigh in here.

RE: "... that the requirements [of probation] are simply too onerous for average people to complete them ..."

"Average people"?? Sorry, average people aren't defendants to begin with. And probation isn't even too onerous for "average people on probation" -- the vast majority of whom complete it succesfully, when you include misdemeanants. After all, probation just requires them to do what non-criminals do every day -- don't break the law, don't do drugs, be employed, support your kids, etc., etc.

It's the sub-average person who chooses jail over probation.

It's the career misdemeanant or felon who chooses against probation. He is savvy about the system, he knows exactly how much time he will (or won't) have to serve, he suffers no shame or stigma from doing time, and he doesn't want that "normal life" to which probation tries to lead him back, so he chooses jail time over probation.

The question, then, is how do you "dumb down" probation (for lack of a better term) to that lowest common denominator so you can habilitate those people who are choosing jail over probation? (Note I didn't say "re-habilitate" -- many of them were never integrated into society to begin with, or if they were, they lost most of the life skills necessary to be a law-abiding member of society.) And that begs the question: can it be dumbed-down enough to work on those people yet still achieve the goal of reintegration into society? The two may be mutually exclusive. But that's the real question to me.

Summary: don't claim probation is too onerous for "average people" -- if defendants were average, they wouldn't be defendants in the first place.

-Shannon E.

Anonymous said...

Shannon, are you a probation officer? I ask because you have already made up your mind about probationers. And because your opinion of probationers is identical to that of the probation officers I know. The bad ones I mean, the ones who enjoy jailing people for failing to arrive on time for meetings.

My clients who have chosen jail time over probation are generally paying much closer attention to my explanation of what probation involves than those who elect probation. For drug addicts to accept probation is crazy. They will spend way more time locked up than if they'd accepted a jail offer. Way way way more time. Like the difference between 30 days and 14 months.

I am a criminal defense lawyer. I am not in trouble with the law. If I were charged with something I couldn't beat at trial, I would absolutely choose jail time over probation. No question. Not even close.

-Kelly

Poverty Lawyer 1 said...

Probation is a broken system. The idea that we make it overly-onerous as the general rule means we set people up to fail. It's no wonder why people take jail over probation. As a public defender, it's all but impossible for my clients to succeed on probation.

Check out my post on this topic: http://www.thewretchedoftheearth.blogspot.com

Poverty Lawyer 1 said...

Shannon is way off base here. Probation requires much more than doing what noncriminals do everyday (stay out of trouble, take care of your kids, et cetera). The number one thing probation requires is money. Money makes the probation system go 'round. If you can't keep up with the dizzying fines/fees/court costs and miscellaneous expenses, your butt is going to jail. It's that simple. It breaks my heart when somebody with little or no record takes probation and I know they probably won't make it. It only means the system is about to create another career criminal.

Poverty Lawyer 1 said...

I know this is my third post in about 3 minutes, but I keep reading more that ticks me off. Defendants aren't average people? Average people make mistakes all the time. I see "good common folk" down at the crminal court house every day. It's not just murders and career thieves.

If you look at the number of people charged with a crime every year, it's not a tiny percentage of society. Being involved in criminal justice system, sadly, is becoming average. The more behavior we criminalize the more it will become average.

Anonymous said...

A friend of mine was on probation, he never made it on time to the meetings and also he failed 4 drug test in a year.

It's all about the money! If they are in jail, the probation officer doesn't collect his money. Am I right?

Anonymous said...

Kelly, I'm worse than a bad probation officer; I'm an ex-prosecutor! (shriek!!!)

Seriously, though, ... ease up on the righteous indignation. Y'all are equating "sub-average" with "sub-human" or some other perjorative term. You shouldn't. Average merely means the mean, the median, the baseline, etc., and "sub" means below. And since less than 50% of the public goes thru the CJ system, those in it are, by definition, "sub-average." (And contrary to PL1's comment, the crime rate is holding steady, so there is NOT a higher percentage of the populace who are becoming criminals. It just feels that way due to general population increases.)

Furthermore, most misdemeanants are regular folk who just screwed up. And the numbers show that a super-majority (more than 2/3 is what I recall, but it might be even higher) of people on misdemeanor probation successfully complete it (unlike felons). So clearly, people who just made a silly mistake and got caught can right their ship, complete probation (such as it is), and move on.

I agree that funding drives local probation departments. Why? Because the gov't at the state and local level won't shoulder the fiscal responsibility. People way smarter than I have looked for years for ways other than user fees to fund probation, but to no avail. If y'all have any suggestions, let's hear it. I'm all ears. (No, really, you should see a picture of me ... all ears ... ;) )

Based on the comments above, it seems some people want more people on probation, but "easier" probation, with less revocations, sending less people to prison, and using more rehab, etc. -- oh, and don't rely on user fees to do it all. That's brilliant public policy. There's only one problem - money.

SHOW ME THE MONEY!!

-Shannon E.

p.s. - Scott, you can thank me later for stirring up some interest in Grits ... ;)

Anonymous said...

Show you the money?

Tell me this what does it cost tax payers to incarcerate someone for a year?

Probation officers are doing nothing more then being racketeers for the state.

It's all about the money!

Anonymous said...

Shannon, then there will always be 50% of the population that deserves whatever the system parcels out because they are sub-average. I believe this is understood among prosecutors as well as probation officers. Screw em if they can't achieve.

Probation is a cop out. Probation is simply a way to trick defendants out of exercising their right to trial. Guy pleads guilty to something he didn't do under a simple risk analysis. 8 months later, when he missed a meeting because he has no transportation, he wants to revisit the facts of the case, only to find that a preponderance of the evidence, most of which comes from the judge's employee, is all it takes to send him into TDCJ. It's a joke, whether you disdain the bottom half of the population or not. I find it hard to disregard the human cost, because I gotta talk to the mommas.

-Kelly

Terry said...

Defendants in Alabama courts commonly request that they be allowed to serve their full sentence with no possibility of parole. For a judge to grant this request is considered an act of mercy.

markm said...

Shannon: There's no way your typical criminal, who has trouble holding a minimum-wage job, is going to honestly make enough to both support himself and support the probation system through "user fees". (Nor can most of them make that much illegally - see Freakonomics on why drug dealers live with their mothers.) So apparently what happens (at least in TX) is that, because probation and prison funding comes from different budgets, rather than paying a few thousand dollars a year per convicted criminal to fund probation, taxpayers are paying about $30,000 each to operate prisons, plus building more prisons. It makes no sense at all.

I wouldn't mind user fees that were means-tested. Catch a corporate executive driving drunk in his BMW, and a share of his probation officer's salary plus the cost of classes and tests amounts to a fine that won't phase him. I hope the time spent going through the hoops does... But you might as well not even bother with probation as violate someone for not paying the same amounts from a low-wage paycheck.

Anonymous said...

Kelly:

I understand your view from the trenches, but you need to step back and look at the forest, not the trees. You can say "probation is simply a way to trick defendants out of exercising their right to trial," but the reality is that probation is the only safety valve keeping the criminal justice system afloat, since there aren't enough courts, judges, or lawyers to try everything. And if all those cases were tried, defendants would likely get stiffer sentences than they can get through plea bargaining -- that's why it's called a "bargain"!

But I'm interested to hear solutions here -- so feel free to share any you might have.

-Shannon E.

p.s. - I'm concerned that your example involves a defendant wanting to "revisit the facts of the case" in his revocation, since the law clearly prohibits him from doing so. I hope you're providing effective assistance of counsel to your clients so they can make informed decisions when choosing probation.

Gritsforbreakfast said...

Shannon, I think Kelly's saying that the defendants want to revisit the facts of the case, not the lawyer. They routinely want to do so because they pled guilty out of pragmatism, not necessarily (though certainly sometmes) because of the verity or appropriateness of the charges brought by the prosecutor.

What's more, your comments about probation being the only safety valve really makes Kelly's case - pragmatism, not justice, drives the plea bargain assembly line. Pleas make up 99.5% of criminal cases in Texas, which is higher than anywhere else I've heard of.

Here's a few solutions for you, Shannon, maybe you've heard some of them (or rather, opposed some of them) before? ;-) Shorten probation lengths (at 10 years our are highest in the country). Aggressively use early release provisions to give probationers ways to earn their way off probation through good behavior. Disallow probation revocations for at least the first 2-3 dirty UAs - provide treatment and lesser sanctions for such people. Disallow revocations for other technical violations and instead install a system of intermediate sanctions.

In short, treat probationers like humans who can be rehabilitated instead of bank accounts from which probation departments can squeeze money for a decade, and make POs SUPERVISE them instead of just shuffling paper and looking for excuses to revoke them. By reducing the total number on probation (through shortening lengths and use of early release), POs would actually have more time to do that supervision. Plus, if the system were designed to functionally supervise folks in the community, more people would have a reasonable expectation they could complete probation and fewer would choose jail

Or would that make too much sense?

Anonymous said...

Yes, Scott, I can't imagine where you came up with those ideas. ;)

I'm sure we could sit down together and draft up one hell of a probation system. But again, who's going to pay for it? The problem many people in the CJ system (not just prosecutors) had w/ the bill last session is that some of them felt it made empty promises that had been reneged upon before by the Lege, that it "bet on the come," and that it jeopardized public safety to get there (or so I hear).

And for someone who is highly skeptical of LBB's numbers when it comes to the effect of new crimes and punishments -- a skeptism I heartily share, btw -- folks like you who were pushing those changes sure changed tunes when it came to touting the cost savings that LBB estimated for that bill.

I think many people shared the goals of that bill, but the devil is always in the detail$. I look forward to seeing what gets worked out next session.

Anonymous said...

(Oops, I should have signed that "Shannon E." above! I don't like people who hide behind "anonymous")

Gritsforbreakfast said...

"folks like you who were pushing those changes sure changed tunes when it came to touting the cost savings that LBB estimated for that bill."

Sure, because at the end of the day that's what was in the fiscal note, so no matter what I think, their's is the "official" number for floor debates, etc., at the Lege. I thought at the time LBB low-balled the number, that the savings would be greater than they estimated, and before their number came out we'd been using a higher estimate that I think was probably more accurate. I'd love to see data regarding savings from diversion to treatment under HB 2668. I'm pretty sure it'd show a savings. After all, even those diverted from state jails to the Harris County jail save the state money.

Basically my criticism of LBB on the HB 2668 numbers is the same as my beef with their claim that incarcerating more people is free - both understated some costs and ignored others. When you're at an historical juncture where diverting 3-4,000 inmates per year means you don't have to build new prison units, the cost savings from diversion is much bigger than the low-balled estimates. Add that expense - or 3,000 extra private prison bed contracts - and you get closer to a "real" savings number, IMO.

Maybe you and I could sit down and come up with a system, but I think Chairmans Whitmire and Madden already have one in mind. How to pay for it? If Texas doesn't do it, we'll have to pay even more for prison space. I'm about to post on the ridiculousness of Perry's 10% decree, actually, for TDCJ and TYC - they don't have any choice but to spend more money on incarceration unless current policies change. More on probation would be cheaper - the lesser evil, methinks.

Thanks for reading, Shannon. Have a great weekend.

Mystik said...

but the reality is that probation is the only safety valve keeping the criminal justice system afloat, since there aren't enough courts, judges, or lawyers to try everything
No. The plea bargain is what keeps the system afloat. As an ex-prosecutor you're fully aware of that. Nothing says you have to offer probation.
As for defendants getting stiffer prison sentences if everybody suddenly stopped taking pleas, you know better than that as well. Truth is, many defendants would walk away on speedy-trial violations. Prosecutors that used to use all manner of tricks and 'pile-it-on' charging techniques to force a plea will be faced with bringing all those ludicrous charges to trial or dropping them.
And it wouldn't take long. I dare say that if every defendant in Harris County Texas decided tomorrow to go to trial the entire court system in that county would buckle within weeks.

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