Tuesday, September 28, 2010

Irrationality: Creating incentives for defendants to choose incarceration

“To be quite honest, it’s a very rational decision” to choose incarceration over probation for many misdemeanor offenses, the director of the Bell/Lampassas County probation department told the Texas Tribune in a story titled "Many choosing jail time over probation," a subject we've discussed here on Grits for many years. Reports Brandi Grissom:
Across Texas, defendants ... who are charged with misdemeanor offenses are choosing to spend time in the local lockup rather than endure months on probation. They don’t want to deal with the hassle of probation conditions, and they can’t afford the thousands of dollars in fees that probation requires. People on both sides of the criminal justice system agree the trend is troubling: It means more people with criminal records and overcrowded local jails — and worse, it means that people charged with crimes like driving while intoxicated, possession of small amounts of drugs, and family violence are not getting the treatment they would receive on probation. 
The Texas Court of Criminal Appeals ruled last year that judges may insist on probation sentences instead of jail time, Grissom reports, but that can result in absurd outcomes since the only available consequence for intentional non-compliance with probation is jail time. Bottom line: Probation conditions are frequently too onerous and fees for misdemeanor probation in particular simply too high, creating a situation where the "rational" decision for a defendant leads to an outcome that's worse for public safety. In such instances, a better result would be for the system to offer more reasonable choices than to expect - against all logic and reason - that defendants will fail to make choices even those running the system believe are "rational" under the circumstances.

This is another example why it'd be folly for TDCJ to slash funding for community supervision while refusing to close its most expensive, older, outdated prison units: Putting the costs of probation on (often indigent) defendants is only viable up to a certain point, and probation conditions in Texas have long ago become so onerous that they're frequently counterproductive. Probation is so much cheaper than incarceration - and so much more likely to lead to rehabilitation when it includes evidence-based programming - that even if the state must pay for programming, it's better for both public safety and the state's bottom line to make community supervision work than to spend ever-more on prisons and jails.


Zeety said...

Yup, I chose jail over probation a few years ago on a Class B misdemeanor DUI, and it was a very easy decision to make since I had done a little county time previously.

Two years of probation; checking in weekly with the PO - which meant two to three hours lost work time, taking random UAs, subject to home and work visits, paying $25/mo fees, anger management classes from the "approved vendor" at $3000 and more lost work time, substance abuse classes at $25 a pop, weekly AA meetings (which I do any way), no leaving the county or state without written permission, no possession of weapons or ammunition, no associating with anyone with a criminal record...and any arbitrary condition the PO feels like tacking on.

The alternative was a 60 day sentence that would have been reduced by 50% or more depending on jail over-crowding.

On top of that, my record would not have been clean anyway. Not that hard a choice to make.

Anonymous said...

1047 seems to have confirmed what many have said about the system. One of your past 'experts' on this blog stated that anyone behind bars as volunteers was 'hogwash'; that it never happens. Seems that 'expert' is not really an expert at all.

Gritsforbreakfast said...

11:40, I honestly don't recall the reference. There are even "volunteers" on death row. Link to what you're talking about.

doran said...

Your post reminds me of two criminal defendants I represented years ago, when Texas prisons were horriblly over-crowded. Both clients had been convicted of non-violent felonies. One was sentenced to straight time in TDC; the other was placed on "shock" probation for 90 days in TDC.

The first client was released the day after he was admitted to TDC. TDC was simply too crowded to accept him.

The second wrote me a letter, instructing me not to file for release after his 90 day shock probation, because he was going to be released substantially before that 90 day period would have run. Again, TDC was just grossly over-crowded.

These are not exact parallels with the situation in your post, but they are similar in that now, with community supervision, and then, with incarceration at TDC, the system was either broken or was deep into the process of breaking down. When people start choosing incarceration over probation, you know that something is awry.

Anonymous said...

Just signed up a client last week for 6 months state jail. Jail is free, and 4 years of probation costs a boatload of money. Plus she has some medical problems, and she needs the free health care.

All for 0.2 grams of cocaine.

Thank you taxpayers!

Anonymous said...

It sounds like Texas probation has placed emphasis on money and become a quasi-cash register for government and government (insider) contracts more so than a rehabilitative measure.

When statements are made about the successful completion (rehabilitation) of probationers due to probation requirements then the assumption is that if not for these probation requirements and rehabilitative measures recidivism is a more likely outcome.

My question would be that if the probationary term was successfully completed, meaning that the convicted did not break probation by being (accused) of a new crime while on probation nor afterwards without these rehabilitative measures; would that outcome also be considered a successful completion of probation? I would think (yes) would be the only possible answer.

I submit also that a great deal of successful probationers would have been successful without probation requirements.

And, since there are so many of those considered to be failures of probation for reasons other than being (accused) of committing a crime while being on probation or afterwards but rather because they were unable to meet the monetary or requisite standards of probation, then why not make probation a straight forward contract without the booby traps.

Do not get charged with a new crime while on probation, and pay the fines and restitution accordingly without any other probation requirements. If a hardship occurs and the ability to make a timely payment is unlikely then that payment can be differed or sat out by serving one night in jail or by doing one day of community service with a total of 6months of deferments during the probationary term.

With a straight (do not get in trouble deal) my guess would be that many more would take probation and that many more would also complete probation successfully.

Soronel Haetir said...

This still highlights to me the strangeness of Texas sentencing people to either one or the other. The federal practice of split sentences, prison with the possibility of revocation during the period of supervised release makes far more sense to me than a straight term of incarceration with no follow-up.

rodsmith said...

" then why not make probation a straight forward contract without the booby traps."

You mean go back to what it legally was 50 years ago. That when you FINISHED your court ordered sentence you were considered a "probationary" citizen with thes SAME rights as everyone else and same conditions of life as EVERYONE else. BUT if you broke the same laws EVERYONE else had within x amount of days after your release they had an extra charge to hit you with that was usualy easier to prove then the new one!

Cant' do that! we'd not be able to keep up that 1,000,000,000,000 billion dollar prison industry that way and they have contracts to fill that require X number of prisoners in those beds!

Zeety said...

I wanted to let this thread play out a little more before I made my penultimate point.

Like any form of blackmail, using inceration as a tool to coerce behavior is bound to get old. You see them kids with their pants down around their knees and their civvies showing? Where do you think they got that from?

You think some rap star invented it? The fact is that doing a stretch in prison is a badge of honor for today's youth.

Someone better figure out a better paradigm.

Anonymous said...

This all stems from the way probation is funded. We have to squeeze the probationer to get the pay checks for the officers. If the state funded the officers it would be better than the defendants being squezzed for funds so there are enough officers. You squeeze them for more money they commit new crimes or give up and go to jail.

Anonymous said...

It is not just probation that has these counter productive expenses and restrictions. I know of inmates who refuse parole for similar reasons.