More on mulcting probationers for fees in Bell County, Texas

In a recent post ("Probation Fines Contribute to 'Debtor's Prison' Problem in Texas"), Grits contributing writer Sandra Guerra Thompson linked to a report from the Robina Institute analyzing the Bell County probation system based on an analysis of records and interviews with dozens of probation and court officials, plus multiple focus groups with probationers. The whole thing is worth reading, but I thought it worthwhile to pull out a few highlights from the densely packed 25-page document.

For Bell County, "In 2014, the average length of probation sentences pronounced for misdemeanor cases was 14 months; for felonies it was 74 months or approximately 6 years."

The report cites a statute allowing courts to extend the length of probation for nonpayment of fees. In particular, the authors noted, "If the term of community supervision is extended, the term for a first, second, or third degree felony cannot exceed ten years. For a misdemeanor, an extension may not cause the defendant’s term to exceed three years unless the  extension is based on the defendant’s failure to pay fines, costs, or restitution, in which case the term may be extended for a further two years if the court finds an extension would increase the likelihood of payment. Tex. Code Crim. Proc. art. 42.12 §§ 21(b-2), 22."

Here's a bit of salient  detail about probation revocations:

In a two-month sample of violations hearings in Bell County during September and October 2013, probationers were revoked in more than 87 percent of all hearings. Nearly one-third of the revocations were for “technical-only” violations. Among probationers revoked and incarcerated for more than six months, more than a third were for technical-only violations. Statewide, about half of revocations for felony probation cases are a result of technical violations, while the other half are for subsequent new offense convictions or arrests. In fiscal year 2012, revocations of felony probation cases in the state accounted for thirty percent of prison admissions and forty-three percent of state jail admissions.

Overall:

In the year ending August 31st, 2014, eighteen percent of the felony direct supervision probation caseload ended in revocation and thirty-nine percent of the misdemeanor direct supervision caseload resulted in a revocation. The rate for the felony caseload is similar to the statewide rate: in fiscal year 2012 (the most recent available data), the revocation rate was 14.5% for the state.

Both probation officials and probationers agreed that, "Too many conditions are imposed during probation and conditions are not personalized at sentencing."

In Bell County, there are approximately 25 standard conditions for all probationers (see Appendix A). Additional conditions, such as attending a treatment program or increased reporting, are sometimes added as sanctions for noncompliance. While misdemeanants can initially be assessed as low risk and report less frequently, those convicted of felonies must be supervised for six months before they can be moved to a less frequent reporting  status.

Moreover:

probation officials felt that the conditions are sometimes are too “cookie-cutter,” and not tailored properly to individual probationers. For example, these officials commented that probationers who do not have alcohol or drug problems should not be required to attend substance abuse programming. The judicial perspective was similar: there are many conditions, and while the judges would like to be able to personalize them, there is often not the time or resources to do so. One noted exception was specialty courts, such as mental health court.  Interviewees expressed the belief that because specialty courts involve smaller caseloads, probation officers are better able to make individualized recommendations to the court.

Probation officers and probationers both emphasized how "Having too many probation conditions can also interfere with employment. The probationers at one site felt that the high number of conditions were too onerous to abide by them all."

Said one probation officer: "Probation is not just about punishment. If courts wanted to just punish, they would just send them to prison. Probation, especially for the young probationers, is a learning process. If you just are hard on probationers and it seems unrealistic, they just won’t come back."

For these reasons, "The numerous conditions can cause probation to be perceived as more difficult than incarceration." Indeed, "One probation officer suggested that a jail or prison sentence can be easier than a probation sentence as probation sentences are longer, more expensive (because of probationer fees), and have more requirements — a perspective that was echoed by many of the people we interviewed." Remarkably, inmates in jail advise one another to eschew probation for incarceration:

One probationer, after being on supervision for some time, felt that the conditions were better than being incarcerated, though others in the county jail told him that he should not take probation because of all of the conditions that would be imposed on him. He accepted probation anyway, since he had five children and did not want to be incarcerated away from them.

Early release provisions in Texas' 2007 probation reforms aren't being promoted by the department but judges are apt to grant them when they receive a qualifying petition. The report found that, "The ability of probationers to petition for early release appears to serve as an incentive once probationers are aware of the possibility." However, probationers say their POs don't inform them about the possibility of early release, and probation officials "do not keep records of the frequency of petitions or grants of early termination." Clearly this isn't a departmental priority, probably because every probationer released from supervision early reduces the department's budget.

Shorter probation lengths make more sense from the perspective of determining the likelihood of reform. "Many criminal justice officials feel that they know early on in a sentence whether someone will be successful on probation," according to the report.

"One perspective from the prosecutor’s office was that a probationer’s success could be determined in the first few years of supervision: “We need [a term of probation] long enough to see if people will be successful, and we need about two years to see that. Most recidivism studies are based on three to five years.”

Noted the authors:

About half of the probation department’s budget, including salaries, comes from probationers’ payments. This degree of reliance on fee collection from probationers to meet basic operating needs is consistent across the state. Regular probation supervision costs the state $1.63 per day and costs the probationer $1.57 per day.

The state pays more for intensive supervision probation and specialized caseloads, while the burden on the probationer remains roughly the same. Fees were an important and salient issue throughout the interviews. Respondents stated that probationers are required to pay for pre-sentence investigations, supervision fees, drug testing, counseling, and fees added by the state legislature as well as restitution and fines.

Nonpayment of fees is the central conundrum of community supervision:

One officer stated that only a very small percentage of probationers stay current in making their payments. Officers often reported feeling like “bill collectors.” One officer stated, “It is such a challenge for most [probationers] who don’t have a car or have six kids. [It] is an uphill battle [to collect fees] from the first day.”

Said one probation officer:

Money is the hardest thing about probation, collecting money. We have a collection compliance class. It’s a sanction for people who are behind on their payments. This is one of the hardest things to talk to our clients about and then you have these situations when people say they only have enough money to put food on the table and take care of their family and what do you want me to do? They just don’t have any money. There is no income. A lot of them have problems getting employment because of their criminal history and that makes it difficult and if they do have a job, it is minimum wage and what takes precedent? Or, they’re on a fixed income and they can only pay so much.

The authors specifically found that, "Fees reduce the incentive and ability to grant early termination and may cause sentences to be extended or lead to sanctions."

Probationers who are successfully complying with their conditions (including paying their fees) are the ones for whom early termination is possible. However, once probation is terminated, no more supervision fees can be collected—meaning that every early termination deprives the probation agency of a portion of its anticipated budget. Several criminal justice officials noted that probation sentences are extended in order to collect unpaid fees (and restitution). Sometimes fees or community service can be reduced. However, there are some cases where probationers meet all of their conditions but are unable to pay all of their fees. Sometimes these cases are revoked and sometimes probation is extended until the fees are paid.

Grotesquely, probation officers reported "filing a revocation at the end of supervision if fees were unpaid."

While at the Legislature you'll often hear probation departments say the "never" revoke probationers over nonpayment of fees, the reality is more complex. Probation officers overtly tell their clients that they'll go to jail if they can't pay their fees, so when they cannot pay, sometimes they won't show up. A judge tied together the full picture:

A judge tied fees to other types of noncompliance and suggested the probationers abscond when they cannot pay their fees, and the absconding leads to revocation: “I’m not going to revoke someone over money especially if that’s the only violation, but that is usually coupled with failure to report because they were told, if they don’t pay, they would be revoked.”

Among those paying the freight, "Probationers viewed fees as more burdensome and more punitive than did criminal justice officials."

While the criminal justice officials were divided on their opinion of fees and payments, probationers overall felt that the fees were burdensome and led to more negative repercussions. If they didn’t pay, they were threatened with incarceration, told to complete classes, and had to report more frequently. One stated, “The only thing I don’t like [about the conditions of probation] are the payments. They don’t go off your incomes.” Another said, “They just expect you to come up with the money. . . I work but it’s not easy.”

The amounts owed varied, but were not insubstantial. In one site, one probationer reported owing an $1,800 balance. At the beginning, the payment was $60 a month, then around $200. The probationer didn’t know why the payment amounts changed or for what the money was owed, and was simply given a paper by his probation officer indicating how much to pay each month. Another reported paying $285 a month to probation and $200 a week for child support. Many of the probationers expressed the difficulty they had finding a job with their records.