I read in amazement Tony Fabelo's article in the "Issues in Prosecution" part of this website, "Texas can toss fewer criminals into prison." Fabelo is the former director of the now defunct Crim. Justice Policy Counsel, and should know better.

His argument seems to go: Tex. makes bigger use of probation than any other state, but probation doesn't work well, since half of the probationers end up getting revoked and sent to the joint. So we need to spend more money on residential treatment centers (ok by me), and cut probation to 2 years for non-violent offenders. Why? Two reasons: 1) good probationers are kept on probation for years, only because their PO fees help support the prob. dept. (40% of P.O. Dept. expenses are met by PO fees), and 2) many eventually go to prison anyway for violating one of the many technical violations of probation. He advocates that probation departments be funded in some other way so that they are less dependant on P.O. fees.

These are my observations.

1) Yes, Texas does have longer probations than other states, and does have more people on probation than other states. That's because we are a very forgiving state. In virtually every state in the union, probations are final convictions, and count towards prison time enhancements. In Tex. we can't use a probation to enhance a crook's prison time except for DWI and some sex offenses. We have lots of repeat offenders on probation. In almost all other states, & the Fed. system, these people would not be on probation--they'd be in prison.

Some of these people finally wake up, and straighten up their lives. But we shouldn't be surprized if many from the repeat population end up going to the joint.

2) Why should probationers not have to pay for probation? If a guy commits a felony, and instead of going to the joint he gets 8 years probation, and he turns his life around, & does everything he's required to do--why shouldn't he still be required to help pay for the system that benefitted him so much? Why should the taxpayers have to pick up even more of the cost of probation?

3) He states as true, without any evidence to support it, that significant numbers of probationers end up in prison for violating one of the many technical violations. He seems to imply 2 things: that a lot of probation rules are arbitrary and difficult to abide by, and that probationers are being revoked and sent to the pen for trivial violations of these technical conditions of probation.

In fact, most of the rules of probation are rules of conduct followed by all decent, law abiding people: get a job, support your dependants, avoid disreputable people, go to bed at night, do some kind of service for the community, etc. I do these every day, & I don't think its that hard. Admittedly I don't have to go to anger mgt. classes, or to alcohol or drug abuse classes, nor do I have to keep an appointment with a P.O. once a mo. (or even 4 times a year, as many probationers do). But I'm not a criminal getting a second chance, either.

Nor are probationers revoked for trivial reasons. I have been a prosecutor in Texas for many years, and have worked in 4 jurisdictions, & I have never heard of a probationer getting sent to the pen for trivial reasons. I have asked several experienced defense attys who work cases in multiple jurisdictions if they have ever heard of a probationer being sent to the pen for a trivial reason. None had. All agreed that probationers who get revoked worked hard at getting revoked. The only evidence I have heard of probationers being revoked for trivial reasons are claims by a state senator that a district judge in Harris Co. routinely revokes and sends to the pen probationers who are 15 minutes late for their probation dept. meetings. That's it. Just one crazy judge in the entire state, so lets do major surgery on our probation laws. As they say in California, "I don't think so!"

4) What would Fabelo do about thieves or vandles who do many thousands of dollars damage, and can't possibly pay off restitution in just 2 years?

5) What about the other half of probationers who don't get revoked and sent to the pen? Are they mostly just errant Boy Scouts who would have turned their lives around even without probation or the threat of prison? In my experience most are people who toe the line on probation only because they fear going to the joint. Take away the real threat of prison time, and you take away the biggest reason probationers go to anger mgt. classes, go to drug or alcohol abuse classes, do CSR, avoid drugs, avoid criminal types, get jobs, etc. To the extent probation works, it only works if prison is a credible threat.

6) Fabelo claims that the crime rate has not gone up, yet we are incarcerating more criminals. Maybe the reason it is not going up is because we are incarcerating more criminals. It certainly does not follow that the incarceration rate has nothing to do with the crime rate. Does Fabelo really believe that not incarcerating criminals who ignore the very simple rules of probation will have no effect on the crime rate?

7) I have no doubts that Texas state government can save a lot of money by not building more prisons. But let's be honest enough and admit that the people of Texas will pay for this economy in more crime. Right now, only 6.8% of the state budget is for criminal law enforcement. Protection from the criminal element is the 1st purpose of govt.--it is even more fundamental than building roads, or educating the young. Maybe the legislature needs to get its priorities straight.

The following premise of Fabelo's argument seems questionable at best: "Texas faces a serious shortage of prison beds. It's not happening because crime is increasing. Rather, judges are placing fewer offenders on probation and revoking more of their probations." I have not noticed any sharp increases in the number of "direct" sentences to prison, and the percentage of probationers I see being revoked has definitely not increased. Noticeably missing are any statistics to support this part of his argument.

If new programs are forthcoming, in my opinion they should include a focus on actually obtaining some useful community service. If you can't get them working to pay restitution or fines (or even court costs), maybe a little involuntary labor will cause a change of attitude, teach some discipline and get them accustomed to useful activity.

Is it not ironic that we are supposedly choosing the more expensive alternative because we are unwilling to adequately fund the less expensive one? One other observation: a goodly percentage of the half who currently don't "make" it on probation will not make it no matter how much supervision or money you throw at them on the outside. They are determined or maybe pre-destined to graduate to prison no matter what. We know that when we recommend them for probation. That will remain true unless, of course, graduation is never a possibility. If the object is merely to limit the number of beds or costs of the prison system, our job should be made easy. Certain conduct should simply be de-criminalized and handled with administrative sanctions. Why pretend any in Group B are criminals if they are never to have any criminal sanctions applied?

Has anyone considered the fact the state population has increased by 30% since the last round of prison construction 15 years ago?

... I know many prosecutors would like to make probations count as final convictions for future enhancement purposes (as Terry points out, that is not uncommon elsewhere). Would that change be a good "swap" in exchange for shorter probation periods, or not?

It would be a great "swap" since most probationers are going to screw up in the first or second year of probation anyway. Some of them are just a walking motion to revoke.

Swap for final convictions would be very good but I'd still like to see probation maximum at 5 years, as opposed to 2 (assuming we are going to have to swallow a reduction). I would also like to see us have an opportunity to extend up to 10 if warranted by violations, a need for more time to pay large restitutions or the like. It could be handled similar to the extension of the 10 year probations to 20 for sexual offenses.

As I recall, the good "Dr." spoke at one of our conferences a couple of years ago and was talking about a reduction in maximum probation to 5 years (not 2 years) to solve the problem.

quote:

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Originally posted by Chris Schneider:
Has anyone considered the fact the state population has increased by 30% since the last round of prison construction 15 years ago?

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As a matter of fact, the anti-incarceration types studiously ignore the explosive growth in state population and concentrate on the explosive growth in prison population. It doesn't take a rocket scientist to figure out that, if you bring in a bunch more people some percentage of them will be criminals, since you're not allowed to turn them away at the border, much less exile those born here who choose the wrong path. When you look at our numbers in perspective to our place as #2 in population as well as the explosive growth here in the last 40 years, the only crisis you will see is the inability to maintain appropriate revenue and infrastructure growth.

Good point, John. There are also places where the numbers of cases have exploded way out of proportion with any population increase. I know the population of my district has remained fairly static over the years, but the case numbers (due primarily to methamphetamine) have exploded. I have not researched the numbers, but I will bet that my percentage of cases that go on probation has remained pretty steady.

Tuck, I agree. 10 max. would have to be 5, and 5 max. on SJF down to maybe 3. And a judge would have to have to ability to modify and extend for good cause (restitution, etc.). I could also see keeping 10 the max. for 3g and Ch. 62 (sex offenders)(or otherwise, many current probation plea cases would no longer get probation), but getting rid of the extra 10 now available for the latter (does anyone use that?).

Anyone getting heartburn over that? I always kind of agreed with Ken's view of probation too ...

OK, all you people so ready to deal away discretion on probation, don't forget that the Leg will soon be combining your "agreements" with:

1) automatic early termination after service of 1/3 of the probation (see Haggerty bill); and

2) mandatory guidelines prohibiting revocation for technical violations (not yet filed).

You are granting a solution to a problem that does not exist. Shorter probations will mean:

1) more trials because defendants have less to lose;
2) weaker agreements because plea bargaining necessarily requires offering something less;
3) few funds because there will be much less collection of probation fees (especially once they find out they can't be revoked for nonpayment);
4) more crimes as defendants don't have a probation hanging over them to influence their behavior.

But, hey, as long as we all agree.

It's a trap.

The last time these sorts of allegations of abuse of discretion were made (a decade ago), it was directed at sentences. A study, done by that legendary statistician Tony Fabelo, showed that prosecutors, for the most part, were exercising it rather well, thank you.

This time, I guess we will go without the study and just accept the allegations, because money is the thing.

Look, every session, we could all find some commmon ground and sing Kumbyah, but the basic structure of the direct sentence and probation laws is sound. Its the funding that stinks. Probation is not given the tools, only the mechanism. Fight for the tools but don't give away the mechanism at the same time.

I don�t suggest we roll over and let the Leg scratch our bellies and tell us it will be ok. My preference is that they leave probation alone. My suggestions are based on the assumption that some changes are going to happen with or without our input. This situation is not unlike 1994 when many of you did all you could to make SJF a little less painful. Perhaps our strategy should be to bow up and demand no changes. If, however, tampering with the probation law is truly inevitable, lets get all we can and minimize the damage. If we can keep, or acquire the following in exchange for term reductions, the tampering may be tolerable IMO:

1. Real final convictions for probated sentences useable for enhancements;

2. The ability to extend probation on non-violent offenders from five years maximum up to ten years under certain circumstances (restitution, counseling, minor infractions);

3. 3(g) probation terms remain at 10 year maximum;

4. Leave SJF probation terms at 5 years.

These changes would have little effect on what my office already is doing and we could possibly get final convictions for probation in the process. What I cannot support is any more mandatory probations. Early terminations/shorter probation terms should be mutually exclusive concepts. I can not see reducing maximum probation terms to five years in most cases AND then having an automatic release in 20 months. I also agree that codifying the concept of �technical violations� is a big problem and should be avoided if at all possible. If the Leg is insistent on messing with probation, we need to see how to minimize the damage. I also agree that any changes to probation should be tied to some form of different/increased funding. That is the real problem.

Hey, Shannon, while they are tinkering with this, why don't we try to figure out a way to keep jurors from getting thrown off the jury panel for refusing to consider probation in murder and sexual assault cases. I have proposed in the past that the probation issue be a judge issue and not a jury issue but I know many prosecutors don't agree with that approach. Assuming everyone agrees that it would be a good thing to keep these people from being thrown off the jury, is this something we might throw into the mix?

John, no one is suggesting that we should reach an agreement just to be agreeable. It is simply a recognition that if some legislative proposals gain traction and are inevitable, despite our best efforts to oppose them, then it makes sense to obtain some gains at the same time.

As galling as it is, on occiasion we must probate sex offenders. With a minimum of three years of "treatment" (another debate)a five year probation seems a bit shortish. I'm with John Bradley on his concerns and paramount among them the spectre of early release from a five year probation for those crimes which allow early release. How about DWI? Is five years really long enough for interlock? Clearly the Leg will not be spending the dollars to build more prisons so I guess there will be changes. Does anyone find it strange that one of the changes contemplated (and likely in some form to pass) is to hurry and get folks off probation before they violate? How many probationers are really being sent to the pen in years six, seven or eight? I seems these are the people who relieve the taxpayers through payment of supervision fees. The real fix would be to exempt them from revocation in years one through four, but that is just a "modest proposal."

Who said anything about abolishing probation for a sex offense? But why should we have to lose most of a jury panel in a case where NO ONE IN THEIR RIGHT MIND would give probation? We should be smart enough to craft an answer that allows us the discretion to do the right thing but also keep law abiding citizens on a jury. This probation dance we do during voir dire is stupid and it ignores reality.

I didn't mean to imply that sex offender probation was on the way out; I meant that that class of offender, when probated, needs the longest term possible. I think five years is not long enough. I'll bet sex offenders would be exempt from shortened probation because no legislator could vote against such an amendment. MADD could probably handle getting DWI longer probation and then the floodgates would open, with new crimes exempted every session.

It is not inevitable that probation is going to be shortened, or that technical violations will no longer suffice to revoke probation. There is no such clammering for this amongst the public. In fact, the public would be appauled if they knew what the "let's shorten probation so we don't have to lock up the crooks" were up to.

That is the key to our strength. The public is on our side, if they know the facts. The way to defeat this is for prosecutors to get active in opposing this. This means prosecutors--especially elected prosecutors--need to write to their reps and st. senators explaining why this is a poor idea, and then follow up with phone calls. Make it clear as a bell why these proposals are dangerous to the public.

Another thing we can do is write op-ed pieces for our local papers, explaining the proposals, and why they are bad for Texas, and urging readers to write their representatives and senators. Another thing is to offer to be a resourse to reporters who are writing on this issue.

Rotary, Lions, and other such clubs are always scratching for speakers. If you want to polish your public speaking skills, call them up, & tell them you want to discuss the criminal justice system in Tex., and ideas that are floating around the legislature.

The only way the legislature can gut probation, is if they public is kept from the facts.

Which is more concerning:
1. The technical offense of a positive UA for meth
OR
2. A new offense of speeding or DWLS

The "technicality" of a hot UA inevitably means that the probationer committed a new felony - possessing the drugs that were used. A new offense could mean as little as a Class C offense or a new crime involving a "technicality".

I recognize that the politicians in Austin are just trying to save a buck or promote their political leanings, but how about a little honesty in this technicality vs. new offense discussion? Am I asking too much?