Wednesday, June 07, 2006

Ex-Prosecutor: 'Probation is the only safety valve keeping the criminal justice system afloat'

In the ongoing comments to this Grits post on why defendants would choose jailtime over probation, an ex-prosecutor, Shannon E., suggests that focusing on individual cases risks missing the "forest" for the "trees." In the big picture, he said:
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.
That's a fascinating statement to me for a couple of reasons. For starters, it's kind of cute, I think, to fantasize about what would happen "if all those cases were tried." Our friend just admitted, after all, and it's quite true, that "there aren't enough courts, judges or lawyers to try everything." So that's the Big Bluff: If defendants actually all excercised their constitutional right to trial, the system would probably collapse in a month or so.

So why don't they? People facing criminal charges suffer from what's basically an economic dilemma - a "free rider" problem of massive proportions. It's in the interest of all defendants for all defendants to take their cases to trial. But in a situation where only a handful of cases see a jury and most defendants plea bargain, the risk to an individual defendant for a much higher sentence is significant. The decision to go to trial often appears too costly for any individual defendant, but it would benefit all defendants significantly if that's what happened. (It's the same reason no individual consumer would ever build a power plant, but electric utilities can afford to provide power for everyone because of economies of scale - the cost is less spread out over many people.)

In reality, with prisons and jails completely full, it's simply an empty threat to say that EVERY defendant would receive a worse sentence if they all went to trial. Texas has about 151,000 prison beds, which are already full, and more than 450,000 active probationers. Could they really ALL have received prison without a plea? I don't think so.

Back to the original question of defendants choosing jail over probation, since solutions were requested, I'd be remiss not to offer some. I responded thusly in the comments:
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?
Oh and thanks, Shannon, for livening things up around here a bit, and to Kelly, Mike and others for worthy contributions following that post and also this followup. I'm always happy to see substantive debate in Grits' comments.


calluna vulgaris said...

Probation squeezes money alright!!! From experience, probation for a Tarrant County DUI infraction carries not only a heafty fine, but also includes pages of programs, counseling services, drug testing, and probationer meetings all with associated charges for the probationer (and requires transportation). Jail time doesn't cost the offender a thing, but time- is something middle class people cannot afford. I found myself wishing I could have 'afforded' the jail time.

Anonymous said...

Good advice. All defendants should go to trial to crash the system. Create a bigger system to handle the case load and watch the line of people headed to jail!? Strange...

Gritsforbreakfast said...

Not advice, per se - just an observation about the absurdity of the prosecutors' position and the economics of plea bargains.

Anonymous said...

Calluna nails it: probation is for the middle class. Jail sentences of even a month are disabling for almost all employed people. Maybe caning should be an option.

The notion of taking every case to trial yields a sort of reverse "tragedy of the commons." The system relies on the isolation of the individual defendant, and no lawyer can advise a client to go to trial to advance a social goal. That said, an increase of even 10% of cases going to trial would force police to use more discretion in warrantless arrests, if only because the Sheriff has to deal with the inmates.

Some changes to the code could balance things out a bit. You could raise the standard of proof for probation revocations. A preponderance is currently required. Maybe clear and convincing would be more appropriate.

You could require witnesses in addition to probation officers, who enjoy the perfect confidence of the judges who employ them. The story told by the field probation officer is communicated to the judge by a courtroom probation officer. These courtroom POs are by and large reasonable, but field POs are of varying quality. You could also require field POs to offer voicemail for probationers, who currently are unable to leave messages for their POs.

You could take away the ugly end of deferred adjudication (sentencing anywhere within the range). You could limit judges' discretion in UA revocations, say to increasing CSR but not ordering inpatient rehab.

You could require employers to hold jobs for people jailed for revocation but subsequntly exonerated.

Any of this stuff would stiffen the position of the probationer, and would hamper the cycle of revocation that leads to so many probationers being jailed intermittently for stuff like being late to meetings, failing to pay moneys, and peeing dirty for pot.

I get sick thinking about a guy on probation for coke, who manages to stop doing coke but gets revoked for smoking weed. We need a much better understanding of drug addiction, and we need to accomodate the actualities.


Anonymous said...

Telling all indicted offenders to go to trial is like telling all probationers to violate at the same time, because there are not enough beds to house them all. Yes, it has a union “work strike” appeal, but what if they just throw up tents in West Texas for probation violations. People plead guilty, primarily to get it over with, because of the long grind of trial and to relieve themselves from the overcrowded county jails. People plea bargain in hopes of saving themselves by letting someone else do their time. People go to trial that will not give up their constitutional rights to trial and believe their attorney will spend the hundreds of ours of investigation and preparation to find the holes in the state case. But how many have the million dollars to defend themselves; Cullen Davis, O.J. Simpson, etc., but not Joe Bloe who was arrested with a bag of marijuana. The fallacy of the system is that the police and prosecutors know 95% are going to plead guilty or make a deal, so they don’t consider evidence and proof as necessary, they get sloppy and screw up the cases on the real criminals. I am afraid of those who would break in my house or rob me on the street, I am not afraid of some dope smoker sitting in his home stoned. Arrest, prosecute and jail those I am afraid of and let the dope smoker’s employer worry about UAs, not the probation officer. I want the probation officer to know where the child molesters are, every minute of everyday. I want priorities to be reevaluated and the system to incarcerate dangerous individuals.

Anonymous said...

You're welcome, Scott! :)

I'll paste this in here from my response to your suggestions on the other post, then add another:

"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."

-Shannon E.

Anonymous said...

I love visiting the comments section on Gritsland -- it's like stepping into some alternate universe:

- where people are only in the criminal justice system by some random chance -- not because they actually committed a crime

- where "people plead guilty, primarily to get it over with, because of the long grind of trial and to relieve themselves from the overcrowded county jails" -- not because they are, in fact, guilty, and they are being forced to admit responsibility (oftentimes only by threat of incarceration)

- where requiring people to exercise that responsibility is akin to some sort of cruel and unusual punishment, since nothing they've done could actually be their fault

- oh yeah, I almost forgot -- and where cops and prosecutors and judges (and defense lawyers, if you're a defendant) are crooked and/or lazy

Sounds like a fun place to visit, but I don't want to live there.

-Shannon E.

Gritsforbreakfast said...

Heavens, Shannon, do you not get enough hugs over there at the prosecutors' association? ;-)

Texas has named nearly 2,000 separate acts felonies and thousands more misdemeanors. When God sat down to compile his list of forbidden acts, He came up with ten. What the Texas Public Policy Foundation has called the "overcriminalization of public life" definitely has roped "average" people into the system at various times in their lives. Actually, I've occasionally considered your sides' failure to recognize that fact to be a strategically useful blindside. Real people's stories don't always jibe with your stereotypes, and legislators haven't always agreed with you after they've heard them.

I responded to your other comments under the "Why Choose Jail" post. Best,

Anonymous said...

Mr. Prosecutor,
Saying people plead guilty because they are guilty is like thinking that people realize that what they did was against the law and turn themselves into authorities. How many people everyday walk into police stations and admit to smoking dope at some time, or speeding or shoplifting a piece of candy. Being forced to accept responsibility, like the American POW being forced to admit that they had invaded Korea or Viet Nam, I agree with your use of the word FORCED. People who don’t believe that what they are doing is that bad, don’t have a tendency to throw themselves on the mercy of a prosecutor. Being in county jail without bond wears one down and it takes perseverance to maintain while awaiting trial and sentencing. Some decide to plead guilty to an information or reduced charges or even an open ended plea, just get out of the county. Not many out on bond seek expedited sentencing or rush to make a deal, of course if they are out on bond, they probably already made a deal.

Anonymous said...


RE: "Being forced to accept responsibility, like the American POW being forced to admit that they had invaded Korea or Viet Nam"

Seriously, now, c'mon. I have a hard time understanding how someone -- even someone living in the Gritsland I described above -- can, with a straight face, compare the American criminal justice system with the illegal torture of military prisoners of war. Or are our jailers shoving sharpened bamboo shoots under inmates' nails, electrocuting them, and depriving them of food, water, and sleep?

If so, Scott and his ACLU buddies have REALLY fallen asleep at the wheel. ;)

It's that kind of hyperbole that prevents useful dialogue -- no matter how entertaining it may be.

Anonymous said...

(Oops, forgot to "sign" that one -- again!
-Shannon E.)

Anonymous said...

RE: "Texas has named nearly 2,000 separate acts felonies and thousands more misdemeanors."

For a comprehensive listing of all crimes, purchase Texas Crimes at this website:

TDCAA Publications

You can find dozens of tomes on fascinating legal topics, so hurry up and buy yours now!

(Thanks for the opportunity to plug our books, Scott!) :)

-Shannon E.

p.s. - and as you know, the opinions expressed herein are mine, and mine alone.