Rethinking Probation & Parole: How Much Supervision is Too Much?

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Wednesday, October 9, 2019, during a live teleforum conference call held exclusively for Federalist Society members.      

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled "Rethinking Probation & Parole: How Much Supervision is Too Much?" My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Marc Levin, who is the Vice President of Criminal Justice at the Texas Public Policy Foundation and Right on Crime. We also have Vincent Schiraldi, who is Co-Director of Columbia University Justice Lab at the Columbia School of Social Work, as well as former New York City Commissioner of Probation and Co-Director of a group called EXiT, which stands for Executives Transforming Probation and Parole.

 

Our third speaker, Rafael Mangual, had to bow out of today's call due to a last second emergency. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you both for sharing with us today. Marc, the floor is yours.

 

Marc Levin:  Thank you. Well, thanks everyone for joining us. It's a[n] interesting topic today, and one that often isn't examined as much as the question of how many people are incarcerated? But probation and parole are very large systems and, like any government program, it's really important to measure results. And, of course, I think there's some similarities to other programs like welfare where we want to really measure our success by how many people succeed and get off of the program rather than how many people stay in it.

 

      Touching first on probation, there's more than 3.6 million Americans on adult probation, not counting, of course, juvenile probation, and that's triple the figure in 1980. And then on the parole side, which is the other side of supervision, that, of course, is people that have been released from prison onto parole. That's about 875,000 people, which compares to only 220,000 in 1980, which, actually, that comes despite the fact that 16 states got rid of parole since 1980. That really occurred in the ‘90s and ‘80s. And it's probably -- it's basically, then, steady since then in the states that didn't abolish parole in the ‘80s or ‘90s that continued with it.

 

      So, of course, there's no parole in the federal system. One of the questions as we look at this is we can compare the United States to other countries, in particular the Robina Institute found the U.S. has five times as many people on probation per capita as European nations. But probation obviously was designed to be the lighter touch option to prison, to be an alternative to prison.

 

And part of the reason this whole discussion is important is sometimes it ends up being a trip wire in the terms of people ending up in prison who are initially placed on probation. And then of course you have people revoked from prison to parole, in this case, going back to prison. So all in all nationally, about half the people that enter our prisons are people that were revoked from probation or parole.

 

About half of those are for technical violations, and that can encompass a whole range of conduct ranging from missing appointments, leaving the county without permission, but also more serious things like violating a no-contact order with a victim. Of course, testing positive for drugs is a very common one, sometimes just simply marijuana.

 

That is really one of the areas that there's been a lot of focus on over the last decade as states have sought to figure out how can you really get people's attention, so they comply with conditions of supervision without necessarily breaking the bank by saying you're going to go back to prison or in the case of probation, go to prison for 5, 10, 15 years, whatever the remaining part of your sentence is.

 

I think that as we look at it, based on the research that's been done, there's some best practices that we can pursue that will improve outcomes for people on supervision. I think the first thing is to try to really re-examine the mission statement and figure out what should land people on supervision. There's a number of options when someone's charged with an offense, even if we're talking about, for example, misdemeanors. They can be fines, they can be put on pre-trial supervision rather than adjudicated and put on formal supervision.

 

And then police diversion, a lot of jurisdictions like Seattle have implemented the Law Enforcement Assisted Diversion program where police basically redirect certain individuals that are caught with drugs or prostitution. They refer them to a case worker. They go to treatment, and they're never on supervision. So there are these other off ramps from the justice system before somebody would go on probation.

 

So that helps with focus in on who really needs to be on probation. Then one of the really important things as to when somebody does come on to probation is to do an assessment of their risk, their criminogenic needs, and then you directly tie the conditions of supervision to those assessments rather than have it be a cookie-cutter program.

 

And then it's also really important to monitor the person's progress on supervision and adjust the level of supervision based on how they're doing. And these are objective assessments. There's many different types, many different companies and universities that have produced these types of assessments that can be administered by probation officers, parole officers, and they look at someone's risk factors, including their attitudes towards authority, their housing situation, employment situation. But, of course, as a parent, a lot of these are also needs. And so if you can address those needs, you can really reduce the risk that someone will reoffend.

 

I think there's also been growing interest, rightly so, in the different special populations of individuals on supervision. And Vinny, in particular, has done some really pioneering work dealing with emerging adults, those between ages of 18 and 25. And they, as one might know from anyone's who's worked in risk assessments knows, those of the younger age are much more likely to reoffend.

 

And so particularly when you're talking about 18 or 19-year-olds, they may actually still be in high school, perhaps on a voluntary basis. They may be living with their parents, so certain conditions like employment may not really be appropriate. And they may have a host of other needs that need to be addressed.

 

So some of the other special populations include those with traumatic brain injury, which is, in some places, as much as half of those on supervision, which is quite surprising. And then also those with mental illness. A number of jurisdictions now are really making sure they're tailing their supervision strategies to account for this.

 

I think one of the overall themes, particularly from those of us in the limited government camp, is to say how do we ensure probation conditions are the least restrictive, necessary to protect public safety? So what we found through the research is that excessive conditions basically run into several problems.

 

First of all, if you try to enforce everything on everyone, you end up actually not being able to enforce anything on anyone. And, of course, one of the areas is in some jurisdictions everyone on probation is prohibited from drinking alcohol, even if alcohol has nothing to do with their offense.

 

But in some of the large cities, you have caseloads of 100, 150, even 200, for example, in Philadelphia and how can the probation officer make sure 200 people on his caseload aren't having a glass of wine with dinner. And you also run into situations where there's examples of someone who's not supposed to be in a bar, and then there's something on their Facebook showing they were in a bar. And then the probation officer has them [inaudible 07:10].

 

That person's on probation for repeat DWIs, that's a good thing. But if we're enforcing conditions that don't have anything to do with their offense, then we're really not spending resources wisely. That's one of the, I think, common themes here is that since our main goal ought to be public safety and then secondly, of course, reintegrating people into society, then if we're allocating very limited bandwidth of the system to activities, part of probation officers that don't actually correlate with those goals, then we're really not getting the job done.

 

So one of the other things that's been very effective in the area of probation is earned time policies, that essentially say to someone when we put them on probation, "You can earn your way off of this, and just like it would be in a job in the real world, how you're treated is going to depend on large measure on what your behavior is, how you perform." And so there's about 18 states that have basically implemented earned time policies for people on probation since 2007. And it's also been adopted as a model policy in American Legislative Exchange Council.

 

And what the research has found is, for example, in Missouri, after they implemented the earned time law, people who were exemplary got off probation 14 months earlier and they were no more likely to commit a new offense during the time that they otherwise would've been monitored. That is just an obvious ley to right-size the system and actually have equally good outcomes or certainly no worse outcomes.

 

So one of the other things that a lot of jurisdictions have been looking at is funding for the probation system. And one of the challenges we run into is in a lot of places, probation departments are funded based on how many people are on probation. And as you might imagine, just like if you were funding a welfare department based on how many people are on welfare, you're going to create an incentive to keep people on probation for longer than necessary and not early terminate people who have been demonstrated to be exemplary.

 

One of the cases that's come up recently is that of Alice Marie Johnson who was commuted by President Trump after serving over 20 years in prison on a nonviolent drug charge. She was originally sentenced to life. She's now trying to get off of supervision, but the U.S. Attorney has objected, essentially saying that she's not a danger to public safety but she just needs to be punished more.

 

And really, that's not the mission of whether we're talking about post-release supervision or probation is to add additional punishment. It's really to say how can we best protect public safety?

 

When it comes to the funding of probation systems, a number of jurisdictions have started saying instead of funding based on how many people are on probation at a given time, let's first of all consider factors like how many people were referred to probation or how many felony arrests there are, the population of the jurisdiction, and then frontloading the funding.

 

One of the basic findings of all the research is most of the recidivism—and this is true both for probation and parole—is in the first two years that somebody is on supervision and if in fact they've proved exemplary during that timeframe, then it's very unlikely that they will recidivate after that.

 

So nonetheless, we see people on probation for 10, 15 years in many places. And then on the parole side, there's states like Nebraska that have lifetime parole, where people, unless you're approved by the governor, you stay on parole the rest of your life for certain sex offenses and such. These are obviously very serious circumstances, but at some point, if somebody was released from prison 20 or 30 years ago, even for something really bad, and now they're 75 years old and all that time they haven't had any problems on parole, it can hardly make sense to keep them on parole.

 

Now, another thing regarding funding is some jurisdictions have tied probation funding to performance. So, for example, reducing recidivism among people that are on probation, increasing employment rates. And then a lot of jurisdictions have started looking at the fines and fees associated with probation, and said that, really, we ought to look at somebody's ability to pay because, unfortunately, part of the reason people are revoked from probation to prison in Texas and other places is they are not able to pay fines, fees, and court costs.

 

Now, legislation was cast several years ago in Texas to say if somebody -- you have to prove that they have the ability to pay but they didn't, and so we've made some strides in that. But still, two-thirds of the motions to revoke from probation in Texas were technical violations include failure to pay probation fees as part of one of the reasons that somebody's being revoked.

 

And so one of the things that some of the research has found, the qualitative research by the Robina Institute, is that when they surveyed probation officers, they said many people on probation skip the meetings with them because they don’t have the money to pay their fees, which, of course, now creates obviously a much more serious technical violation than not paying their fee which is missing a meeting. And so it distorts the entire system.

 

And then also, a number of probation officers expressed concerns that they spend too much of their time trying to collect money versus actually dealing with the criminogenic risk factors of the individuals they're trying to supervise.

 

So a couple more points and then I'll turn it over to Vinny. One of the really major initiatives in many jurisdictions is looking at graduated sanctions and incentives and this represents a[n] alternative to revoking someone to prison for, in many cases, many years for technical violations. And I often make an analogy to a child who touches a hot stove and there's not any parent who would say let's have them -- let's let them keep doing that and getting burned and then maybe after 10 instances of that, a month later, we will ground them for two years.

 

So the idea is, of course, to follow the research that essentially shows it's the swiftness and certainty of the sanction, not the duration, that changes behavior. And on the flipside of that, that positive incentives, which obviously can include things like earning your way off or probation that I mentioned earlier, but also some probation departments are using things that have been donated like restaurant gift cards and bus tokens and other things like that to provide a positive incentive for individuals that are performing in an exemplary way.

 

So those are, I think, really valuable. And one of the interesting things in Utah, if you're successful on probation, you can have your offense reduced from a felony to a misdemeanor in many cases. So that's yet another incentive. And in some places, of course, you could actually get your record sealed if you're successful on supervision, again, depending on what type of offense it is.

 

And then, I guess, one other thing that's very important is a number of jurisdictions have capped how long you'll serve if you're revoked from probation for technical violations, particularly if you were originally on probation for a lower level offense. And so, for example, in Louisiana, that was a major part of their justice reforms, and now 17 states have enacted such caps.

 

And after Louisiana did so in 2013, they were able to reduce the time served by 9.2 months and 22 percent fewer new crime revocations. They saved $17.6 million according to a Pew Study of Louisiana, "Caps on Technical Revocations," so have worked out well both for taxpayers and public safety.

 

So I will touch on later in the call some of the issues involving parole because there are some additional issues there in terms of objective decision-making, in terms of who gets parole and so forth, but once somebody's on supervision, the issues largely parallel those that we've already discussed relating to probation.

 

And so at this time, I'd like to turn it over to Vinny to make remarks. And then we will open it up to questions and comments.

 

Vincent Schiraldi:  Great. Thank you, Marc. Good morning, everyone. Thanks for having me on. I want to take it in a different direction from where Marc was, although I think his scan of the field was an excellent one.

 

      I just want to go back to the beginning where it all started in the 1800s where the U.S., we invented probation supervision. A Boston shoemaker volunteer was part of a temperance movement, John Augustus, founded probation back in the 1800s. He was the first probation officer. He went to the judge, said doesn't seem like you have enough tools in your toolbelt here. It's just either generally the stocks or fine, some of them are too poor to pay so then it was just the stocks. And we hadn't even invented penitentiaries at that point or release. And some of these folks really just need to stop drinking, they need to stop cavorting, and they need a life-reboot, and I'll volunteer to help do that.

 

      Eventually, he convinced a bunch of his temperance movement friends to join him, and they went and posted bail for thousands of people during their several year run. Only had to forfeit it once or twice during that period of time for failure to comply. And they just put time into helping people meet their needs and turn their lives around.

 

      Similarly, the warden of Elmira Penitentiary, the brand-new Elmira Penitentiary in 1876, Zebulon Brockway—they had great names back then—Zebulon Brockway and John Augustus. Zebulon is the "Father of U.S. Parole." Parole existed before in some other countries: France and Australia. But he invented it in the U.S. context and felt that, again, it was an act of mercy and it was an act of rehabilitation and reintegration. [He] felt that all people in prison are not the same.

 

      Some people work hard, they participate in programs, they play by the rules. Other people are a pain in the neck. They cause problems, they don't participate in any programs. And the guys that are doing better ought to be -- earn their way out of here sooner.

 

      And in both cases, both in probation and parole, that was a conditional release. It wasn't a full-on release. You had to obey certain rules. And so it started very individualized, very rehabilitative, very merciful. And then that was when mercy was not a dirty word in our penal systems.

 

      And then it really existed that way for about 100 plus years until the 1970s when an obscure paper by a researcher at the City University of New York, a very Liberal researcher, interestingly enough, Robert Martinson—I think he fashioned himself a Socialist—found that nothing works when it comes to rehabilitating people who have run a foul of the law.

 

And this hit at a time when it was a very tumultuous time for America; it was the ‘70s. It was coming off the protests from the Vietnam War. There was a lot of sense of anarchy and coddling and crime was just about to start rising, so it hit at a time when people were almost eager to hear that this molly-coddling of prisoners was a silly approach.

 

And so that affected prisons, that affected prison programs, as Marc said, states started to abolish parole-release because if rehabilitation doesn't work, why should we pay some body of people to assess whether you have been rehabilitated or not? And so I want to take you to that moment for us correctional bureaucrats, because that's what I used to be under Michael Bloomberg, right? I was a probation bureaucrat.

 

Now you're in there fighting for your market share. Prisons, okay, they could cut their rehabilitative programs. They could stop giving pell grants. They still had something to fall back on. They were the embodiment of punishment, of deterrence, and they could incapacitate people. What did probation and parole have at that moment? All they were were an artifact of rehabilitation, so if nothing works, why should they even exist?

 

So like all good bureaucrats, we pivoted, and we started to become an artifact of punishment and surveillance. And we really lost our focus on rehabilitation, and we just became an extension -- instead of being an alternative to imprisonment, we became largely, not exclusively, but largely an extension of imprisonment.

 

And we both grew side-by-side, so you'd have thought that when probation and parole went form about a million to about 5 million, which is what we did. Late ‘70s, we were about a million people in probation and parole. At our peak in 2009, it was 5.1 million people on probation or parole. Now, it's dropped down, as Marc said, to about 4.5 million.

 

So about a five full growth before it came a 4.5 full growth. We grew right alongside prison, so you would think if we're an alternative, the more people on probation and parole, the fewer people should be in prison. And, no, that's not what happened. We just expanded right alongside, started to widen the social control, add more people to this surveillance function, which really has very little data behind it to support it.

 

So now, there are, as Marc said, 4.5 million people on probation and parole, and I want you to wrap your head around that for a second. Imagine any bureaucracy trying to supervise essentially the population of Louisiana or Kentucky. That's about how many people live in those states, or the combined population of Nebraska and New Mexico. Or in Pennsylvania, Pennsylvania probation has almost 300,000 people on probation or parole; that's the size of Pittsburg.

 

I want to submit to you all that I have no confidence that our probation and parole bureaucracies will ever be able to supervise that many people. I just don't think we can do it. I don't think we've ever funded it to be able to do it, and I’m not sure we should fund it to be able to supervise that many people. I think that's too damn many people under supervision.

 

So what I found -- and a lot of what we'll talk about as time goes on in this call is people being violated and imprisoned for frivolous stuff. I met a guy who spent a year in prison because the woman he married had a felony conviction, and you're not allowed to associate with somebody with a felony so he went to prison for that. Came out a year later and the same parole officer that violated him attended his wedding, changed his mind, and allowed him to get married and then attended his wedding.

 

Or another guy -- was homeless guy missed several appointments with his parole officer, shows up at Bellevue Prison dying of his heroin addiction, and gets violated. So instead of just being able to die in that bed, gets handcuffed to the bed, and dies as a prisoner rather than as a free person. And there was no question he was going to die.

 

So I'll talk about that more later, and those are the dramatic things we hear about that gets people incensed. But I want to talk about the banality of evil for a little longer before I go to those more dramatic cases, because that's where I think we miss that too much. When I became commissioner of probation, it wasn't just the remarkable cases, it was the day-to-day drudgery that probation reflected to me. 25-30,000 people on probation—I'm not sure we ever got the count completely right, by the way—and thousands of civil service protected bureaucrats essentially asking them the same five questions every week and telling them to go forth and sin no more.

 

So what happened as this moment happened in the 1970s where we launched mass supervision and launched mass incarceration, right around the same time -- that's when our prison and probation and parole population would start to explode. A couple things happened at that moment that I think is worth talking about, and then I'll turn it back over to the moderator and we can start having a debate and questions and stuff.

 

The social safety net shrank, for good or bad, people can argue about whether it should've or not, but it did. We stopped providing as much housing for people. We cut welfare benefits, education became more difficult to get for free or cheap. The caseloads exploded. We had no interest in funding this expansion of either corrections or probation and parole, but at least corrections had the Constitution to fall back on so state after state got sued and the settlements required certain standards. There really are no standards for probation. You could put thousands of people on caseloads, and no one's going to sue you for unconstitutional conditions.

 

And so that's what started to happen. We put way too many people on people's caseloads, even though twice as many people are on probation and parole as are in prison, 9 out of 10 correctional dollars goes to prisons, not to probation and parole. So we did it on the cheap. It kind of seems free to policymakers and judges. So if I could give you a year on probation, why not give you three or five? Or ten? Because it's free, and it covers my behind.

 

The work, both from a probation officer and from a, I think, judicial level, became extraordinarily risk averse. And so we started to pile conditions on people and then enforce those conditions because that's what bureaucracies do. When you tell probation officers, "Make this guy abide by the following 22 conditions," and he doesn't abide by one of them, they will revoke that person.

 

Some of them are heroes, and they'll say no, no, no. I'm going to individualize this moment and this decision and not put this person in jail for dying of his heroin addiction. I'm going to use my sense here and let him die as a free man, not as an inmate or for marrying the love of his life. But others won't. They will say, "What is in this for me?"

 

I want to talk about incentives. If I'm a probation officer or parole officer, and I don’t violate this guy for marrying this woman with a felony, and he goes on and lives a happy, healthy, productive life, I get absolutely nothing for that. But if he gets revoked, if he steals something from a supermarket or crashes his car drunk driving, I'm going to be in deep trouble.

 

So, eh, like I said, every once in a while, people are heroes and they say I don't care to not write him, I'm not going to send this guy to prison for getting married. But a lot of people say -- eventually they get worn down by it and they just write that revocation and move on.

 

Interestingly, for some folks, like in the case of the guy that died in Bellevue, they'd like to provide treatment for those folks, the probation officers and parole officers would, but there's not many resources for that. The one resource we've made infinitely available to them, which is the most expensive resource, is prison. They can always write a revocation and get a guy locked up. Want to get a guy into treatment, you got to have a big sale for that. And so over time, these hyper risk averse environments became super bureaucratized and just started writing out revocations.

 

The best way I can describe it to somebody who's never been on probation or parole and hasn't spent a lot of time with their nose in it is imagine the way you feel when you go to the Department of Motor Vehicles, and you sit there all day trying to get your car registered or your license renewed or some such thing that you're doing there. You're a good citizen, you're actually paying money to abide by the law and license yourself. And you come away feeling a little bureaucratized.

 

Now imagine you had to do that every week for a decade or they'd send you to prison. And that helps you begin to understand what this feels like and what this is for many of the 4.5 million people, many of the population of Louisiana, and actually larger than the population of half of all U.S. states who are under supervision today in America.

 

So plenty of people trying to do good work and they're doing motivational interviewing and in there, there's good people, but I think by and large, one of the things that the conservative movement has rightly taught people in the United States is that large bureaucracies tend to bureaucratize, and they tend to lose sight of the mission which in this case is public safety through rehabilitation. It's really the only justification for probation and parole. They got to provide us a public safety through rehabilitation, otherwise their whole reason for existence is suspect.

 

And I think that over time, what happens in these large bureaucracies is that they lose sight of that mission and they become paper processing and human life processing factories, and that's what I experienced when I went in. And it's not because the people that worked for me were uniquely evil, in fact, quite the contrary. They were uniquely normal. They were just regular folks trying to do their jobs. Many of them thought the things they did every day were ridiculous, but they did them anyway because you guys could say why, why that because is I think in part to get paid and in part because over time, you stop seeing the humanity of too many people flooding through your office every day.

 

So I think we need to shrink this substantially. I think portions of it really ought to be done by communities, either paid or voluntarily. And I think that the role for probation and parole should be super limited, super focused, as Marc said, on the beginning periods, very incentivized, to be sure. Conditions should still exist and failure to abide by significant ones should come with the potential of reincarceration, but there should be lots more incentives to earn your way off sooner that motivate people to thrive rather than threaten them.

 

But by and large, I think it should be smaller, and I think a lot of the things that we're now asking communities to do -- probation officers to do and parole officers could and should be done by communities, by churches, by volunteer groups, by groups that help people successfully reenter and very much limit the role of probation and parole going forward. So that's my story, and I'm sticking to it.

 

Marc Levin:  Yeah, I had a couple of things to add to the discussion about Vinny's thoughts on the first. Rafael wrote an article, and since he, unfortunately, couldn't be on the call, I thought it's important to point out a couple of the things he noted which were that about a third of those convicted of violent felonies and some of the large urban counties had some sort of criminal justice status. They were either on probation, parole, or they were released pre-trial, whether on bail or otherwise pending their case at the time of the offense.

 

And, of course, he also notes 83 percent of the released state prisoners are arrested for a new offense at least a month after their initial release. So, of course, that would indicate prison is even less effective than supervision, other than, of course, the incapacitation benefit which Vinny noted.

 

      And, of course, the last statistic deals with arrests, it's not the same as convictions, but we can all agree that the correctional system as a whole doesn't reduce recidivism as much as we would like, and they can question even whether in some cases it's reducing recidivism at all. Are people getting worse in some prisons and maybe probation?

 

There is some evidence that when someone who's low risk is on probation, for example, a lot of times someone with a first time DWI and no prior criminal record, they have a job, they're stable, and they have to go to the -- let's say you make them go to probation office a few times a week during their working hours. Well, now, all of a sudden, they're having difficulty keeping their job because they're always busy going to the probation office. So you actually make people more of a risk even though you're trying to make them less of a risk.

 

      I think this issue of recidivism reduction and also the question of are there people -- in addition to what I think I discussed with Rafael is he would say, and I think we would all agree, there's some people on probation who shouldn't be on probation at all, but there's some people who maybe should be in prison. And, perhaps, that's because we all know of cases where someone was charged with a very serious sex offense or violent offense but the victim wouldn't testify, so the only option, for example, for the prosecutor would've been potentially an acquittal versus at least putting them on probation, they have some accountability.

 

      Another issue that's rather interesting, and we haven't touched on I think, is the due process that somebody's entitled to when it comes to being revoked from probation or parole for technical violations. And, in fact, there was a Supreme Court decision in this most recent completed term, United States v. Haymond, and essentially, it was a 5-4 decision where Justice Gorsuch actually sided with the more Liberal members of the Court, but it essentially dealt with whether someone was entitled to a jury trial when they were on post-release supervision and it was a new charge.

 

And the Court went 5-4 [inaudible 32:43], and specifically the Court ruled that it couldn't just be by a preponderance of the evidence, but if the person in this case would be subjected to a new mandatory minimum of five years for alleged possession of child pornography. But, again, the Court said preponderance to the evidence, to add that on just by virtue of the judge without a jury trial was not a sufficient standard.

 

      And it does bring to mind that people facing probation or parole revocation for technical violations, those instances -- or a new offense, misdemeanor or felony, if it's dealt with through the revocation side, they may not be entitled to a lawyer in all states. They may not necessarily have the burden of proof, may just be this preponderance of the evidence, which is now called into question, at least in some context, by United States v. Haymond, that decision was issued on June 26.

 

      So I think we do need to pay more attention to what the constitutional rights are in people facing revocation. So I'd be interested in Vinny's thoughts on that and also, of course, if we have anybody on the line with questions or comments.

 

Micah Wallen:  We did have one person with a question lined up. Did we want to go to that person first or go ahead and toss it over to Vinny?

 

Vincent Schiraldi:  If we have somebody with a question, why don’t' we go them, and I can maybe -- I'll take a shot at the question and then at some of the things Marc said.

 

Micah Wallen:  All right. Caller, as soon as you hear the prompt, go ahead and ask your question.

 

Caller 1:  Thank you for the history of the 1970s. I didn't catch the name of the article you said that was very obscure but had benefits so please tell again. And, also, you said there is now lawsuits on the constitutional issues, which I guess is what Marc had just stated today, would you tell us what are two of those cases?

 

Marc Levin:  I think she was referring to the Martinson article, Robert Martinson on the [inaudible 34:24].

 

Vincent Schiraldi:  Oh. Yes. Yeah, it's interesting because John Deyulio called it at the time, I don't know if he would suggest anything's been more cited, but he called it the most cited article in the history of criminology. It's called, "The Martinson Report." If you just google The Martinson Report, I'm sure it's got some long bureaucratic name, but the Martinson Report, that'll get it to you.

 

      So let me take a shot at some of the things Marc said. We're not talking about a system. We're talking about literally thousands of systems around the country, both on probation and parole. Every state has a different parole body and adjudicated parole violation hearings differently, and there are literally over 2,000 probation departments in America.

 

So I'm painting with a broad brush, some people are busting their butt and doing really good work within the challenging parameters they work. I just wanted to say that because in any -- even in a long format discussion like today's, there's going to be some generalizations that don't fit the specific instances sometimes.

 

      That said, I think that revocations hearings, both in terms of probation and parole can very, very often entropy into a kangaroo court. People facing revocation do not have all the rights that normal citizens do. They do not have the right to be -- for convictions beyond a reasonable doubt. It's a preponderance of evidence standard which means if you're looking at a scale and the scale just tips a little, that's enough.

 

      Very often what that boils down to is you're a criminal, and you're being accused by a good law enforcement official, the probation officer. And so you're guilty. It's very difficult for people on probation to overcome that barrier. They're not entitled to representation. They're certainly not entitled to paid representation at that point, so very often they’re, before the law, undefended by anybody other than themselves, very, very often.

 

      And very often, they are guilty of the stupid thing they're accused of. So let me give you one example. There are many, but I'll give you one which is associating with somebody else with a criminal record. So one out of three black men in America have a felony conviction. They have a felony record. In 2007—I haven't seen a later study than that—one out of twelve black men in America was on probation.

 

So what that means is essentially probation officers throughout America can pretty much violate anybody on their caseload who's a black man because they're going to almost have to associate with the one out three with a felony. Did that ever happen? Does it? Oh no, such a thing would never happen, especially not if the world was watching.

     

      Okay, so this guy named Nipsey Hussle got shot and killed in Los Angeles. He was a former gang member, but he had turned his life around, was a successful musician and philanthropist, so much so that he was eulogized at his funeral by the mayor of Los Angeles. President Obama wrote in with flattering remarks about him.

 

Not well publicized was that when he got shot, he was donating clothing to a 56-year-old guy on parole named Kerry Lathan, who lived in a local half-way house. The guy was going to go out to look for work. Nipsey Hussle owned a clothing store. He was donating clothing to this guy when the shooter came by, and Kerry Lathan was collateral damage.

 

      Lathan got shot in the back, was hospitalized in Los Angeles General Hospital. While he was hospitalized, his parole officer slapped a technical violation on him for associating with a known gang-member, Nipsey Hussle. So while the world was watching, this wasn't like some secretive, back-door, just routinized thing, even while the world was watching, this parole officer did that.

 

Why do people do these things? Do we have a uniquely sadistic and evil group of people who come to work at probation and parole who violate people on their deathbed or when they got shot and are sitting in a wheelchair? I don't think so, no. I think they get ground down by risk averse resource-starved bureaucracies. I'm not sure that's fixable with additional resources. I don't think elected officials are ever going to adequately fund this. What are they going to do, raise taxes or cut funding to schools?

 

I think the only way to solve it is to substantially reduce the number of people under supervision and focus like a laser on the period of supervision that, as Marc said, is when most of the stuff happens, and stop keeping people on forever and ever, and stop putting people on who really don't belong there.

 

Marc Levin:  Yeah, and I'll just add to that in saying that a number of the conditions are vague as well. So, for example, there's one condition that I cited in one probation department. It says you have to abandon evil associates and ways, which obviously, there's a song, "Evil Ways," it's specific about to be a Santana song, but to tell people you can't -- you have to abandon your evil ways, well, what does that mean? And this same vagueness issue we deal with with overcriminalization with the growth of criminal laws that are often ambiguous.

 

      But on this association issue, that's very important. Actually, people have a right to, I think, to -- for example, in Texas, we have a number of people on parole and people that are formerly incarcerated, they can come up to the capital and they're with other people who are in that same boat, and tell legislators about the system. And, thankfully, they're allowed to do that, but then, for example, in Massachusetts, there's a general parole condition that prohibits anyone from engaging in "a continuous pattern of association with persons known to have a criminal record."

 

      So it creates this chilling effect and certainly, if someone is planning a new crime with someone else on parole or someone with a criminal record, that's a different matter. And I think one of the other issues that's ignored is that sometimes the best mentor for people are trusted messengers, those that may have been in the system themselves at some point.

 

So you could have someone who's, let's say, just on probation or just got out of prison on parole who's in their 20s, and then you can have a mentor who may be 50 or 60 and has been out of the system a long time, and that type of relationship would be precluded by some of these very strict rules.

 

      One of the interesting examples also is trying to actually reexamine how much of the system needs to be under control of the government versus could be delivered through non-profits, whether religious or non-religious. And so in Colorado, for example, in 2014, they carved out some money out of the corrections budget for this program called WAGEES, Work and Gain Education and Employment Skills. And it incorporates this trusted messengers concept because you have, essentially, a[n] over-arching non-profit that gives some grants to individuals, sometimes very small non-profits that work with people on parole.

 

      And so there's a one-stop center in Denver that work does work force training and so forth, that works with parolees. And the two people running it themselves have been incarcerated many years ago. And the results so far have really been stunning, about 2.5 percent of people -- participants have been returned to prison since they've been in these WAGEES program in Colorado.

 

And I think that, really, the idea behind it is that sometimes -- if you're on parole, do you want to say to your parole officer you're having a bad day or you're worried you might go back to drugs or you have these other needs that need to be addressed versus if you're actually talking to a mentor, someone who's not in a position to revoke you to prison, you're more likely to be candid and you're more likely to also, perhaps, put a lot of stock in what they're -- in the advice they're giving you.

 

      So I think we really need to look at how we can deliver some of the interventions that are effective under other offices than necessarily the government and by partnering with non-profits and particularly those that are embedded in the community and that may indeed have people who are with a criminal record or formally incarcerated doing some of that work.

 

Micah Wallen:  If either of you had anything further to discuss or closing remarks, so Vince, back over to you.

 

Vincent Schiraldi:  Yeah, just want to follow-up on what Marc just said. So New York used to have 70,000 people on probation. By the time I got there, there was about 30. By the time I left, it was about 25,000 people on probation. So it's an interesting key study, one that's from the mid-‘90s then I arrived in 2010. And most of that time, by the way, was under Rudy Giuliani and Michael Bloomberg. So it wasn't under a bunch of Liberals that were just throwing people of probation.

 

      The number of people on probation plummeted during that period of time. The budget for the department did decline. It didn't decline by that percentage so there were more resources per person on probation, but, still, the city was spending $25 million less per year on probation when I got there than it was in the mid-‘90s.

 

      So now you have a more focused department with resources to actually do something with the proportionally riskier people on probation. So what were the outcomes of that? Did the jail population explode because we weren't putting people on probation, we were sending them to jail? Did crime go up? No and no. Crime dropped by over two-thirds during this period of time. Homicides went from 2,200 a year in New York to under 300 last year. And the number of people on Rikers Island and New York City's jails dropped from 22,000 to around 7,000.

 

      New York is just one example. Marc mentioned Missouri. Marc, he mentioned Louisiana. There are several, Arizona, several states where they have very substantially said no, we're not going to put so many people on probation. We're going to incentivize good behavior by letting people off earlier. We're going to revoke some people but only when what they've done is really attached to their criminal behavior.

 

New York revocation rate is three percent, and so very much of this now is mass produced justice. And I think another word for mass produced justice is injustice. It ought to offend us all, and we really need to do something about it. Right alongside with efforts to reduce mass incarceration, we need to be reducing mass supervision.

 

Micah Wallen:  And Marc, did you have any other closing remarks?

 

Marc Levin:  Well, I would just say I think it's really encouraging that we're seeing opportunities that the jurisdictions have demonstrated that it's possible to right-size community supervision and produce better results for the people that do need to        be on supervision. And I've really been impressed with a lot these folks or members of Vinny's group, EXiT, but there's really a new generation of directors of probation around the country.

 

And, of course, in some states, probation's a state-wide function, and in other states, there's individual county departments. But I think as much as, of course, our focus is on legislation, which dozens of states have adopted legislation to streamline probation and parole and also to really encourage evidence-based practices in terms of supervision, I think that there's also been, and there continues to be, growing momentum for changes and practices that actually heads of corrections agencies, heads of probation and parole departments, that they're able to implement themselves in many instances.

 

And so, I think sometimes even though, as Vinny said, he was a bureaucrat in some sense, I think that many of these leaders are increasingly, I think, responding to the public and policymakers appetite for saying we really, just like other government agencies and functions, we have to have a lens of accountability. We have to make sure that we're spending limited funds wisely and that we're really able to justify everything we're doing in terms of the results that are being achieved.

 

So I'm encouraged by the developments in the field, and I think that there's a lot more work to be done but look forward to -- if anyone has any further questions, they can contact Vinny or I, and we'll be glad to assist them.

 

Vincent Schiraldi:  Oh my goodness, he is so right. And I neglected to even mention the organization we formed which is 70 probation and parole commissioners launched EXiT, which is -- stands for Executives Transforming Probation and Parole. They say many of the things we all just said, it's very rare that people who are running correctional bureaucracies say that those correctional bureaucracies should be smaller. I think it's something policymakers should pay attention to.

 

      So, again, it's called EXiT, which is stands for Executives Transforming Probation and Parole, and I think it's really added to the dialogue along with groups like Right on Crime and Pew and Reform and Arnold's Foundation that are really pushing the envelope on turning this system back into a much more modest, focused, and successful approach. So I definitely want to echo what Marc said, and shame on me for not plugging my group earlier.

 

Micah Wallen:  And on behalf of The Federalist Society, I'd like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.