There is growing pressure to put probation revocations under the legislative microscope because of the increased number of people going to prison from a revocation. Early numbers suggest that a large percentage are considered revocations for "technical" violations (meaning anything other than a new offense). The categorization is arbitrary, but it serves the legislative purpose of seeming to draw a line in a manner that lets the public think such revocations are a waste of public resources (meaning prison beds).

Do your judges consider the type of violation significant in deciding whether to revoke? What is the best way for prosecutors to avoid losing the discretion to seek revocations for conduct that we know is serious but not a new crime?

I have always failed to see why anyone thinks that a repeated failure to report to the community supervision officer is just a technical violation. How do we know what they're doing if no one even knows where they are? Failure to pay is generally an invitation to go to a restitution center (unless they come up with a good reason why that won't work either)rather than prison. Failure to pass a drug test indicates to me a new criminal violation (though it can't be proved directly). Is that just a technical violation? Until the legislature comes up with some other good intermediate sanctions- atleast in the rural areas, what do they really expect us to do? And I am talking about something other than confinement in the county jail (at local expense). If probation is a contract, how do you determine which terms are suggested conditions and which are really mandatory? Why bother with 25 conditions if only 2 or 3 will truly be enforced? After all, isn't it pretty fundamental that if they are not going to pay the fine and the cost of supervision (or even court costs), much less restitution, we might as well get a final conviction out of the deal? I would just as soon see a very lenient parole policy for the "technical" violators rather than a further watering down of community supervision. Has anyone tried increasing the amount of community service work time as the first sanction for other violations? At least that might accomplish something useful. Doesn't this whole argument kind of ignore the fact that it has already been determined the defendant engaged in serious criminal conduct (completely apart from the probation order)? What is so bad about "wasting" some resources for that conduct? After all, wasn't it supposed to be that threat which was designed to deter the conduct? If we don't have enough space, parole them out, rather than require a new offense to ever get them in. I think both judges and the legislature should take that approach.

[This message was edited by Martin Peterson on 12-29-01 at .]

The bigger issue for us may be just who controls the revocations. Prosecutors may get grief over this, but it seems that many times the judges control the action...

"The best defense is a good offense."

I don't know who said that, but that is the best way to kill dumb ideas that start floating around the legislature. Prosecutors need to be vocal in their condemnation of ideas that would endanger public safety. This means speaking up in public when such ideas are thrown about, writing letters to their legislators, and writing letters and op-ed pieces to the papers. What would really be helpful is if the TDCAA Board made a public statement explaining why this is a dangerous idea, and opposing it. That would give some ammo to those who oppose it.

Who is it that is proposing that probation revocations be restricted?

This dialogue takes place while community corrections officials are talking about being partners in crime prevention. To tell probation that only new offenses are revocable events is to tell them that crime prevention is not their job; that they are to be reactionary paper filers only and not proactive partners in prevention. If the Legislature does curb discretion in revoking for technical violations the public would not like the result. There would be a severe backlash the first time a probation official, in the wake of a high-profile crime, has to explain that, "Sure, he had not reported for three months, and, yes, he had given four consecutive positive drug tests, and, okay, we knew that he had a history of drug abuse and violent behavior, but he hadn't shot anybody yet so we couldn't do anything about it." Would the backlash fall at the Legislature's doorstep? Probably not.

I agree with Martin's assessment. Having discretion to revoke for this arbitrary designation of "technical" violations improves public safety. Illustration: I had an offender on probation for child sexual offense. Didn't like probation and absconded to another state. Was gone more than a year before being picked up. He served a very long jail sanction and was released to give it another try. A year later it was learned that he was having some child contact, using alcohol (part of his offense cycle), and other behaviors that would raise large red flags. His participation in treatment also hit the skids, and he was discharged. Knowing what was coming down the pike, he absconded again. Due to a lot of hard work and a little luck, he was found in another county soon thereafter and arrested. He got 11 years in prison. What does his file show? Revoked due to technical violations. I can barely spell Rhodes Scholar, but I am making an guess that a more reactive approach to this offender would have been a bad thing for the child that was next in line on his list. Just one of many possible illustrations. (The astute mind might propose filing a new charge for registration violations; however, the first absconding took place just before registration took effect. The second absconding could be pursued, but that is for another topic.)

[This message was edited by BMcK on 12-31-01 at .]

Rob, has TDCAA ever put together some sort of general policy statements (e.g. reducing discretion in revoking probation is bad) and invited individual prosecutors to sign on to it for presentation to the Legislature?

Of course, if the Legislature had raised funding for community corrections (as options for revocation) in the last 10 years, none of this would be a problem.

Judges are human, too, so I think it's illogical to suggest that they don't consider the type of violation (just as they consider the type of underlying offense) when sentencing a probationer. That has been my experience. And if the prosecutors' and judges' discrection is removed from the process, what could it possibly be replaced with? Some guidelines that say X underlying offense plus Y violation automatically results in Z sentence? Surely no one wants that.

Terry is right. The best way to preserve our discretionary authority is to get ahead of this curve and let all those people outside the criminal justice system (especially all those part-time, non-criminal lawyer legislators) know exactly what the ramifications of new-offense-only revocations would be.

BMcK illustrates the poster boy for our position with the child molester who doesn't re-offend, but committs some damn frightening "technical" violations. Proponents of the new-offense only revocation are going to have their own poster boys, too. They're going to dig up some poor, old, habitual petty thief from the penitentiary who's doing an 8-year sentence because he failed to do some community service and missed one meeting with his probation officer. (He tried to call in and tell them about his flat tire, but he couldn't get to a phone at any time on or after his reporting date. And every time he went to the community recycling center they sent him home because they didn't have enough work for him, and he just didn't think to get documentation of that. He swears it!)

We all have a lot of arguments that we present to juries when we don't want them to give probation to someone they just convicted. I believe those arguments, as echoed by Martin's comments suggesting that the debate ignores some pertinent facts, will work for this cause, too. When the next legislative session begins a year from now, 9/11/01 may seem like a distant memory, but I doubt it. I don't think the populace's sympathy for criminals is going to be as deep as it was as recently as the summer of 2001.

Tony Fabelo, the Executive Director of the Criminal Justice Policy Council, will play a large part in how all of this comes out. He will be collecting statistics on revocations.

And this is where the problem with technical revocations begins. He was told (by Legislative leadership) to group the reasons for a revocation into new offense and technical (everything else).

Now, this is one place where prosecutors can make a difference. During the debate over how to rewrite the Penal Code back in 1993, the debate was strongly influenced by statistics presented by Tony. However, prosecutors played a large part in helping to design how the statistics were collected and interpreted. So, anyone who is interested could contact Tony and ask to be involved.

These same statistics help prevent legislation by anecdote. For example, during the 1993 debate, some legislators thought that prosecutors were filling up prisons with nonviolent, low-level repeat shoplifters (known as "sock thieves"). Fortunately, Tony's numbers disproved that theory and forced the Legislature to take a more realistic approach.

All I know is that when people get to studying what actually happens in the system, they find that the folks in the system are making pretty good decisions. Remember, back in 1990, the guy who accused us of filling the prisons with hot check writers? Turned our he was all washed up and the survey of the pen proved it.

We just need to be sure that the legislators -- and candidates for office -- understand that judges, prosecutors, and probation work together to make pretty good decisions....

As to legislative efforts, it is a little early to say because we don't know who the legislature is yet, let alone what they will be interested in. Doesn't hurt to let your legislators know what you think on any subject, but it will be interesting to see what bubbles to the top in the next year...

It has been my experience, and I truely hope I am the minority here, that when a revocation is asked for it is almost always granted, regardless of the infraction or its seriousness, be it a new crime or that said probationer reported ten minutes late and didn't notify his probation officer ahead of time that he would be breaking his arm and making a side trip to the emergency room just before he was to take the afternoon off and lose half a day's pay so he could report at the convenience of the probation officer, thereby not causing any disruptions in his hectic schedule. It's a pity, but all the aforementioned abbominations happen with all to much regularity. But I feel as though I'm preaching to the choir..... Best one I ever saw was a case in which the probationer was doing such a fine job of keeping his nose clean that his officer believed he should be rewarded by an early termination of probation. Since there was no form for this request he used a revocation request form, striking out all reference to revocation. It was sent to the judge for consideration and, you guessed it.... probationer was released from jail only four weeks later, and after great deliberation given an early release from probation. Two weeks early!

I want to know why McKay has time to check out this site when he needs to be studying for lawschool. Keith

My experience has been exactly the opposite of sd1nash's: I find that most prosecutors and judges lose interest in a case once the crook is on probation. Typically probationers are given multiple chances to get on the bit, and when they are finally revoked, they are pled out for a fraction of their potential sentence. Typically, the prosecutor or the judge makes the mistake of only considering the violations of probation, rather than the seriousness of the offense for which the crook is on probation when determining a prison sentence.

I am a great believer in giving people a second chance, and even third and fourth chances, so long as there are consequences for the violations--for example adding 30 days jail time for minor violations, or sending to SAFE-P those that test dirty. But if they refuse to straighten up, I believe they should go to the joint with a lot of time--maybe at least 75--80 per cent of what they bargained for. To do otherwise is to undermine the authority of probation.

How do we contact Tony if we want to help with stats? I can easily keep up with our rural 3 county jurisdiction. Our guys get at least 2-3 freebies before they are sent up.

Tony Fabelo has an office in Austin and can be reached by phone at 512-463-1810.

Maybe sd1nash can parade that hapless victim in front of the legislature next session as demonstrative aid ("poster child"). Sounds pretty far-fetched to me. Most probation officers I know are at least vaguely aware of what happens to their probationers after a hearing on their case. Wonder what judge convenes such a hearing without a probation officer as a witness and then sentences the probationer to jail, apparently without having heard any evidence?

My reality is different. Revocations are extremely frustrating, taking inordinant amounts of everyone's time, dealing with the same probationers repeatedly because I, in concert with the probation officer and often the judge, struggle mightily to come up with a resolution that will be of SOME benefit to SOMEONE. SOMEHOW.

Frequently, the answer is, "No, we don't take violent offenders at our drug rehab / restitution center program," so I DO have to stick someone in the county jail and tell the theft victim, "not only will you never see a dime, but since our jail is overcrowded we are going to spend your tax money to rent a cell in the next county for this loser who won't report, stay clean, do service, get a job, or cooperate in any way with probation terms." "Good luck with your small business."

But, that's just me. I could be wrong.

-Neel

I sometimes think the Legislature is basing their information on technical revocations based on what specific allegation/s the defendant may plea "true" to. I have seen a number of revocations with numerous violations, say 4 positive UA's, failure to report, failure to pay fees, failure to work CSR, go to counseling, etc. (someone that is very difficult to supervise), and he is before the Court on a revocation hearing, enters a plea agreement for X number of years in TDCJ and pleas "true" to say not reporting and paying fees. The items he pleas to are reflected in the judgment revoking probation.... but all the other allegations are disregarded.

So.... someone who looks at just that Judgment may believe this poor soul is in prison just because his car broke down on the way to the probation office and he couldn't get in in time and the community service center didn't have any work for him to do (but he forgot to get documentation this). They don't see the 4 positive UA allegations, the one or two prior jail sanctions, and the fact the probation officer hasn't been able to find him for two months.

As it is, it's often pretty tough to get the probationer to work his CSR, go to counseling, even show up for a scheduled appointment. If word got around (and it would) that he couldn't be revoked because of these infractions (the so-called "technical violations"), they would be almost impossible to monitor.

Now, John Washburn, explain to me why it seems so difficult for legislators to comprehend what you have just said. I repeat, the answer is quicker parole for "technical" violators-- assuming that group can be accurately identified-and not making community supervision a bigger joke.

The reason for a crook's revocation is only part of the reason he is in the joint. The offense he committed to get himself on probation, and his previous criminal history are at least as important.

Several mos. ago we held a revocation hearing, and proved up several technical violations. The court sentenced the crook to 75 years TDC. I sure hope no one thinks: he only committed technical violations; let's put him on the fast-track for early parole. He helped plan a capital murder that killed two people. He got deferred in return for his cooperation and testimony. He was given several chances to straighten up while on probation, and we finally had enough. He needs to rot in prison.

The 1st purpose of govt. is to protect the people, and if that means building more prisons, so be it.

"Build More Prisons" is not an answer to crime unless you are in Saudi Arabia and the money flows and flows like oil. Texas housed 167,000 inmates before the last legislative session. Someone in the senate who happened to glance at the budget decided that being the largest prison system in the world was not the record that Texas wanted to maintain, considering the deterrence evidenced in crime was not THAT remarkable.
The legislature decided to look at placing money in programs that might deter or alter the criminal pattern or swing that ol' pendulum back to probation and parole where they operate at a lower cost. They actually didn't put any more money in the bucket, but the thought was there.
Seventy five years in prison looks good in print; however, how many years will that person spend in prison before they are tossed back to the community with a PhD in crime and nothing to deter the criminal thinking or keep track of their behavior? If it is a capitol crime, 40 years, if not, much shorter, but I guess it looks good in the morning newspaper. In Texas, we don't have prison without parole, so one does not 'rot in prison'. One stays warehoused for up to $85 per day so every teacher who teaches for $24,000 a year, every police officer who guards the public for $16,000 a year, everyone in public servic, and every citizen who wants more public services should say we can't afford to build more prisons and have better schools or afford quality law enforcement or have any program will have any effect on crime prevention or rehabilitation. Every prison has to feed, clothe, and care for its inmates 24 hours a day seven days a week, 365 days a year, in sickness and health, young and old.
The "crook" will be eligible for parole in 40 years and who knows how the law will change in 40 years.
167,000 people in Texas "joints" for burglary of a building, or driving while intoxicated, or every non violent crime equals over 5 billion dollars a year. I don't see how that protects the people when the price goes into our education, highways, medication, housing, parks and every other public program. We can't live outside a fort and call ourselves protected and happy.
If you are really serious about technical violations, find out how many people are in prison because the probation or parole departments did not have the programs funded that might keep them out of prison. No one goes to prison for one dirty ua or missing a report one time; however, people do go to prison for non violent crimes that could be dealt with more effectively in probation and parole departments if they had more core money. Make the probation departments accountable for the new money but for God's sake don't build new prisons.

[This message was edited by larrydavidmckinney on 04-23-02 at .]

Malarkey.