Incentivize probation to punish offenders in community

Grits wanted to highlight a recent report from our pals at the Texas Public Policy Foundation's Center for Effective Justice. Via Greg Glod, see an analysis of Texas' probation system and a recommendation for the Legislature to fund a program created in 2011 (which incidentally was Texas' last budget crunch) to use grant incentives to encourage probation departments to stop revoking so many offenders on technical violations and punish more offenders in the community instead of with maximally expensive prison sentences. In return, they'd keep 35 percent of the savings if they achieve performance goals. Unfortunately, wrote Glod:

The amount estimated for the most recent budget, and every budget since [SB 1055's] passage has been $0. It appears that not enough money in excess has been returned for the bill to be implemented. However, the structure of SB 1055 requires the commitment reduction plan to be submitted “no later than the 60th day after the date on which the time for gubernatorial action on the state budget has expired under Section 14, Article IV, Texas Constitution.” This might be too rigid of a timeframe to determine whether funding is available, and if it is, enough time to get a commitment reduction plan in place.  

To provide more flexibility and feasibility, current language from SB 1055 should be changed to allow CJAD and each local jurisdiction to reach agreement on how much each local jurisdiction needs for upfront funding, as well as for performance-based funding, at a later date than what the code today requires. 

The Texas Legislature should authorize this funding because it is a no-lose situation for the state and the counties. If the counties reach their goals, they will receive savings via the reduction in commitments. If they do not, the counties are required by statute to reimburse the amount they did not save but intended to save.

TPPF also recommended reviving vetoed legislation from 2007 to incentivize probation departments to reduce technical revocations. Former Republican House Corrections Committee Chairman Jerry Madden carried the bill which passed the Legislature easily but was vetoed. Here's what Glod had to say about it:

The majority of state funds distributed to probation departments are based upon the number of individuals the department has under direct supervision. This means that there is a substantial disincentive to terminate probation sentences for individuals who have followed all requirements of their probation, timely paid their restitution, and no longer need to be supervised. 

In 2007, House Bill 3200 was passed. The bill directed CJAD to develop a new basic probation funding formula based on certain criteria. First, it would base funding on the number of felony defendants placed on community supervision, rather than directly supervised. This means the department would not lose out on funding for terminating an individual’s probation early. Second, funding would be additionally based on each felony defendant participating in a pretrial program and supervised by the county. This addresses the current fiscal disincentive for local jurisdictions to divert appropriate individuals from probation altogether, such as by not bringing or by dismissing charges against those arrested for first-time, low-level drug possession contingent on completion of a drug treatment program. Third, a per diem amount would apply for each misdemeanant placed on community supervision. Fourth, higher rates of funding would be established for felony defendants who are serving the early years of their term rather than felony defendants who are serving the end of their term. This is based on data showing most new offenses and revocations occur within the first two years a person is on probation and that for those who have been exemplary in that time there is little or no benefit to further supervision. Fifth, funding would be reduced for departments with excessive numbers of technical revocations. Sixth, additional funding would be provided based on the number of early terminations, which is partly designed to compensate for the lost probation fees, which may be disproportionate to the savings from not supervising a person who required little supervision to begin with. 

The bill was vetoed because “technical revocation” was not defined. A possible solution is to define technical revocation can be defined as violating the terms of probation without any allegation of a new criminal offense. Additionally, it would be beneficial to instruct CJAD that in determining the penalty for excessive technical revocations consideration should be given to the risk level of a department’s caseload and the jurisdiction’s rate of sentencing nonviolent and low-risk offenders to prison. This ensures that jurisdictions that utilize probation in cases involving more challenging offenders are not penalized.

That same year, Perry signed probation reform legislation which he'd vetoed the session before, but he had not progressed far enough down the #cjreform path to embrace this part of the package at a time when critics were hollering at the tops of their lungs that the sky would fall if one less prisoner was incarcerated. With the benefit of 20/20 hindsight, it's easy to see that crime continued to fall after those reforms and implementing the economic-incentive part of the package surely would have been fine. If TPPF has its way, maybe the current governor will have another opportunity this year to sign such a bill.

Frequently economic incentives effect change in government more concretely than policy dicta. The reason half of revocations by local probation departments are still for technical violations, not new criminal charges, is that in 2007, the Legislature issued policy dicta but the Governor vetoed the accompanying economic incentives in HB 3200 that made it all work. So the main effects of the 2007 reforms were on the parole side, where technical revocations were driven down to record-low levels and parole release rates ticked up. Implementing Madden's idea would create new incentives - a "nudge," to use Cass Sunstein's phrase - for the same beneficial trends on the probation front.

Grits hasn't seen legislation to this effect yet, but I hope it's coming.