Rethinking probation as primary punishment

Beaumont probation director Jim Stott offered this optimistic wish in Grits' comments to this post: "I hope that one day, we can effectively argue that prison is the alternative, not probation." That's an at-once ambitious and also a rather pedestrian goal - one that certainly should be achievable if the Texas Legislature continues to focus on the problem.

Probation is already the sentence a majority of adult felony offenders receive, but the adult system is still heavily reliant on incarceration compared to the juvenile courts, where fewer than 2% of convicted juveniles are sent to TYC - a ratio of 50-1 probation/prison. By contrast, the same ratio for adults is around 3-1. So there's a lot of room to move toward greater reliance on beefed up community supervision in the adult system.

Stott goes on to make an observation I think is too often underplayed or poo-poohed when it's raised, but which IMO really has tremendous merit:

Over the past three or four sessions we have had all kinds of legislative champions, who understand the community corrections system and are willing to focus more on treatment than retribution. As a probation official, I am pleased to see the message finally getting across. Being tough on crime is a great message, but it doesn't always mean a prison sentence. Much of the time being tough means holding people accountable and making them productive. In many cases, that is a far more severe sanction.

Many people don't believe that a probation sentence can be a "far more severe sanction" than a prison sentence, but there are many reasons why that can be true. Probation restrictions can be severe, including curfews, bans on drinking alcohol, and regular urinalysis requirements. What's more, probationers must pay significant fees, restitution and treatment costs, perform community service, and at least try to remain employed, which is collectively more than some people who wind up on probation - who may have chaotic, messed up lives to begin with - have ever personally accomplished before.

By contrast, though there's certainly an element of indignity, from another perspective jail or prison just provides "three hots and a cot" for a finite, definable period of time, living in an environment where someone else controls their schedule, activities, personal space, you name it. Such restrictions essentially infantilize the inmate instead of teaching him or her how to be responsible for themselves. For a lot of offenders, it truly is harder to be responsible for their own behavior in the free world than it is to sit out their sentence in a cell without ever doing the difficult work to change their mentality, habits, or associations.

I see this misconception frequently - the idea that probation is somehow not a "real" punishment. Mark Pryor over at DA Confidential, responding to a commenter's question regarding which offenses warrant probation vs. prison time, recently wrote:

first one needs to chalk up the purposes of the two options, probation and prison. Boiling them down to their essentials, I come up with:

Probation = rehabilitation
Prison = punishment

That's a typical framework for thinking about community supervision, but I also happen to think it's grievously flawed. He did caveat this statement by adding:

Sure, there are punitive elements to probation and one always hope for self-betterment in prison but from the stand-point of the prosecutor, those seem to be the basics. (I'd thought of adding "community safety" to the prison category but if rehabilitation is achieved, then probation gets us there, too). For a more detailed discussion of probation and its goals, look at last week's post, here.

But by undervaluing the "punitive elements to probation," I think prosecutors like Mark may come to over-rely on prison when they think "there has to be some punishment."

Whether an offender goes to prison or is sentenced to probation, the bottom line goal of their sentence from a public safety standpoint should be the same: To prevent the offender from committing more crimes. In most cases that goal is best served by supervising the offender in the community and requiring them to demonstrate they can be a functioning, productive member of society. That's something that can never be proven while sitting in a cell. Plus, the reentry period when they leave prison is the single riskiest period for recidivism - a treacherous stage in the process that probation wholly bypasses.

State Sen. John Whitmire told the Austin Statesman today that, “It’s premature now to be calling to close units, while we’re still seeing the full impact of all the diversion and treatment programs we started putting into operation in 2007.” I certainly see his point. Perhaps, though, the 2007 reforms shouldn't be viewed as the end-all be all, but the Lege could expand on that work and bolster diversion programs even further to push prison populations even lower.

When the 2007 reforms were first proposed in 2005, they were harshly attacked by Williamson County DA John Bradley and several House members (all of whom have left the Legislature, or will before next session) who complained that the changes would unleash a crime wave on the state. Not only did that not happen, though, crime continued to decline, even as thousands of offenders were diverted from prisons each year through the new programs.

Those attacks led bill sponsors to weaken the legislation and take out key provisions that would have resulted in much greater prison population reductions, according to LBB estimates. Now that we know the sky didn't fall when the first stage of probation reforms were enacted, the Lege should go back and pick up the rest of the proposals that were stripped out of the legislation in 2005.

Other strategies to safely reduce inmate numbers: Investing even further in diversion programming instead of leaving it at 2007/2009 levels. Those investments have seriously paid off and it's time the Lege upped their ante to achieve an even bigger return. I'd also like to see them seriously consider targeted sentence reductions for nonviolent offenses, starting with reducing low-level drug penalties by one offense category and indexing theft categories to inflation.

There are other creative strategies they could use to trim prison populations at the margins without harming public safety. That's a better strategy than sitting back and hoping the 2007 reforms will be enough to solve TDCJ's problems, when clearly more needs to be done.