I do not think we should apologize for seeking to revoke probations and using prisons as a tool of punishment and discipline. There seems to be a culture in the making that questions the very usefulness of imposing serious consequences for repeated misbehavior.

I also do not think any prosecutor should concede that the wrong people are being sent to prison. The last time we were accused of that misuse of public resources, a well-recognized study showed that our judgment was being exercised very well, thank you.

Given the size and variety of Texans, I strongly support the exercise of broad discretion in such decisions. And I am quite sure that, if put to a vote before the citizens of Texas, that they would again and again support the use of that discretion by prosecutors.

In my experience, the biggest "technical" violation that leads to revocation is failure to report. Exactly what program do we need to fund in order to get the defendant to do that? Isn't that exactly what probation is? If the defendant can't handle that simple idea, then he needs to be sent off.

I'm still a big believer in deterrence and retribution. Sure, I'll give a second chance by agreeing to probation, but if you can't live by its relatively simple terms...

I always give first consideration to what crime the defendant was placed on community supervision for. I think sometimes the fact that a defendant has already committed a crime and received a tremendous opportunity to stay out of prison gets lost in the term "Technical Revocation".



John L. Pool

That is particularly important when the defendant is on probation for a child-sex crime. Chances are the prosecutor gave a deferred because the victim couldn't testify. The defendant should have gone to the pen in the first place, but we just couldn't get there with the victim. Sometimes, or often, putting someone in prison is a two-step process. First get him to take the probation bait. In that instance a technical is a perfectly good means to achieve the proper end.

Having been a police officer, defense attorney, and a prosecutor, I suppose I am entitled to be as cynical as most. But, folks, I have yet to meet a crook who was not remorseful of but one thing: that he or she got caught, not that they did the crime. For those who continue to ponder and wring their hands over why we send folks to the pokey when they transgress (rehabilitation? revenge? punishment?), the answer is simple: because for at least some period of time, they can't commit any crimes or otherwise threaten our public. Period. We are protecting our constituents! Keeping a person in prison is considerably more cost effective than an innocent life somewhere. I also cast a jaundiced eye at the concept that most of these malefactors are all salvageable souls, if we can just scientifically plug them into the right mix of programs and pity. They may certainly be pitiable specimens, and one or two may actually get the idea and straihten his act up, but opportunities at "rehabilitation" for the most of them is only another opportunity to waste tax resources until they commit another crime. Certainly some self-help opportunities to get out of a criminal life should be made available for those who legitimately seek a law-obeying life and who unequivocally signal that intent, but if someone is given a chance to stay out of prison and still can't do what he agreed to do, there has to be a hammer: send him to the joint. And certainly, for "technical" violations (whatever those are), maybe parole can be sooner. But there has to be accountability, and there can't be any of that without sure 'nuff repercussions for failure to do what the court has told you you're supposed to do. Whew. Did I say all that?

To just dismiss an idea with the term "malarkey" sparks of someone who is so impressed with themselves that rather than give a proper response, they just dismiss the idea as "malarkey".
You spoke in Hunt County about the time the new prisons were developed and said that they would fill in just a few years; they did.
I've heard of a disease called judgeitis. I think the same thing could be applied to a district attorney.
If you pose the question of building more prisons today, you could probably get the majority of lock em up mentality to agree...until they finally get the bill.
We can build too many prisons.
You can't lock everyone up. I suppose you could but the budget for that state and the taxes that would have to be imposed would not be accepted by the taxpayer.
Sometimes probation can provide a more useful tool of punishment than prison because of the supervision, the inconvenience to the crook, the 30 days in jail for not reporting, the urinalysis tests, and the treatment, another 60 days in jail, the weekend night visit.
A sex offender who goes to prison is away from the public for two or ten years and then is right back in the community w/out treatment and ready to offend again. Did you know if you are in prison and don't want any sex offender treatment, no one can force you to participate and what are they going to do, lock you up?
If they have completed their sentence there is no supervision.
Sometimes the conditions of probation provide more protection to the public...I said sometimes.
Rehabilitation or supervision or monitoring an individual's life while on probation CAN when enough money is provided for the home visits be protection to the public, and if the crook wants it rehabilitation.

[This message was edited by larrydavidmckinney on 04-26-02 at .]

I used the word "Malarkey" to express my disagreement with the concept that prosecutors and judges are making bad decisions on who to revoke and send to prison. It is easy for someone to make a statement based on anecdotal evidence or their own political persuasion. History has shown that prosecutors and judges in Texas largely make good decisions on who should go to prison.

I also used the word "Malarkey" to express my disagreement with the concept that building prisons is a bad idea. For those of us who watched defendants serve one month per year of their sentence, leading to the disintegration of any realistic threat behind probation, we strongly believe that any effective probation law must have a real threat of prison time upon violation of the conditions.

I also used the word "Malarkey" to express my disagreement with the concept that many criminal defendants, particularly violent offenders, can be better handled through probation. That is utter nonsense. There is no proven rehabilitative program for fixing a child molester, bank robber, or killer. I am basing that opinion on the work of the Texas Criminal Justice Policy Council, which studies these issues and reports to the Legislature.

And, regardless whether a person can be "fixed", I still strongly believe that punishment for a crime is appropriate. And we punish by locking people up. Probation is rarely punishment for a child molester, bank robber, or killer.

Now, for some nonviolent crimes, there is one rehabilitative area that shows some promise: drug and alcohol treatment. And I would wholeheartedly agree that the Legislature has woefully failed to continue to increase funding in that area. To the extent that people are being revoked and sent to prison because of the lack of treatment, I join your opinion as to the need for probation growth.

In short, I believe probation has a large role to play in the system. But I will not apologize for sending people to prison to be punished. Texans voted for the Penal Code and for their District Attorneys to enforce the Penal Code.

Judges and prosecutors are making correct and proper decisions by sending people to prison. Enforcement of the penal code is their responsibility.
For me to state otherwise was incorrect. Judges and district attorneys are also as you state doing a good job of enforcing the penal code and I totally agree.
I was there also when prison was a swinging door and people begged the courts to be sent to prison rather than be placed on probation.
More prisons were built and they needed to be. The new prisons as anticipated are full.
Now the question of how to spend any new money...and I know that isn't the court's problem or the district attorney's problem; it's the taxpayer's decision. If and when the legislature finds another 4 billion.
Thank you for mentioning drug and alcohol treatment. There are a few in the prisons where by law they should be. But perhaps the Courts and the district attorney's office need more choices.
The key is your subject a balance.
If any blame were to be placed, it would be on the legislature for putting the mode in gear and remaining in that gear for years without a balance.
I personally appreciate your explanation of the malarkey.
I still believe that an untreated sex offender will not remain in prison long enough if they are able to leave and move back in the population without treatment or supervision but...and if the policy council which reports on data that we within the system provide, studies the matter again with the specific focus of treatment outcome vs prison outcome and comes to the same conclusion, I would withdraw my statement. The policy council made statements on the technical violations last session and caused a re evaluation of the issue and they are finding that the word technical violation is misleading because of plea bargains and other factors in the motions to revoke. People were not being sent to prisons for failing to report or one dirty ua.
Texas judges and district and county attorneys do a good job of enforcing the penal code. The district attorney's log of cases is mind boggling, dockets are full, the prisons are full, probation is full with caseloads of 150 plus and parole is full with case loads above 75. A balance of some sort is needed.

It is true that caseloads and such are high, but all in all, I believe the criminal justice system is currently in excellent shape. There will always be tension between prison vs. probation but there is a sort of healthy standoff right now.

The prison population has actually leveled off and has recently gotten to where TDCJ has dropped contracts with county jails for the excess prisoners. Next to go will be the private prisons. And the crime rate continues to drop. These are all good things.

Of course, this has been accomplished without the appropriate increase in budgets for probation departments. And if TDCJ increased the funding for one thing it should be for community correction facilities (treatment, intermediate sanctions, mental health, etc.). But I won't be holding my breath.

Thank you for adding your thoughts to this tough issue. Probation officers are a huge reason it all works so well.

I have enjoyed your responses. Probation has been in advanced planning for the next legislature since November of last year. In regard to funding, I don't think anyone is optimistic. I think the board of TDCJ is also changing and giving some valid support to both probation and parole. You just have to have a life span of 100 years to enjoy the change.
Probation is a difficult job and unless you are working with your probation department and them with you there is no way to appreciate the magnitude of work involved in the criminal justice system in total.
It takes a strong court and likewise a strong district attorney to provide probation with the necessary enforcement tools to work with a quick response to a violation.
If probation and parole obtain additional funding we should be held responsible for our programs and provide data to support our conclusions.
Thanks for the exchange of ideas.

[This message was edited by larrydavidmckinney on 04-26-02 at .]

[This message was edited by larrydavidmckinney on 04-26-02 at .]

I think the probation revocation process is largely controlled by the judges in Tarrant County. So far as technical violations go, many Courts have instructed their probation officers not to file a petition until a certain number and type of violations are reached. (Speaking of which, are we unique in that in Tarrant County the petition is usually initiated and drafted by the probation officer?) Defense attorneys love to tell jury panels that even a single violation can result in probation being revoked. That suggestion often leads to my calling a probation officer to the stand to rebut that proposition.

Misdemeanor revocation hearings are almost unheard of. Even when a new offense is committed the revocation process usually does not begin until after the new offense is tried. How about a bill that would give the State the absolute right to call for the revocation hearing to be heard before the new offense is brought to trial?
I'd also like to see a bill that would raise the number of days in jail a defendant can be asked to serve as a condition of probation. Perhaps raising the maximum number from 30 to 60 days when we are dealing with a class a misdemeanor?

In our 3 counties, we have never sent a probationer to the joint because we lacked "core money" for rehab programs. In every case we've sent a crook to TDC for "Technical violations," it was because the crook refused to comply with the rules of probation. In every case, the crook was given multiple chances to get on the bit, often coupled with some time in the jailhouse to ponder his mistakes. And eventually we had enough and sent him off.

I am curious what under-funded program will offer some hope of rehabilitating a probationer who is sent to a restitution center, where he repeatedly violates their rules, until finally they decide to kick him out? For probationers who repeatedly blow off curfews, travel out of county without permission, remain jobless,hang out with disreputable people, blow off drug/alcohol classes, don't pay their restitution and fines, and don't show up for meetings with their probation officers--is there a progarm out there that has any success in turning such people around? If not, then your only choices are: 1) Send the guy to the joint, or, 2) leave him on probation, thereby sending the message to him and his fellow probationers that probation "rules" are more accurately described as "suggestions."

In Hunt County we have tried the revocation process both ways. Once the district attorney's office has enough staff to do the revocations, we will gladly turn the responsibility over to them. We do have two Court officers who review all motions to revoke to make sure the wording is acceptable. We work together and if there is a problem we have been able to correct it. The defense has left the issue of who initiates the filing alone.
Misdemeanor revocation hearings are held because we have a new County Attorney. Jail time is rarely used.
I think the issue of "TECHNICAL VIOLATIONS" was misrepresented last legislative session. This session more studies have been done to document that crooks are sent to the joint because they have committed another offense while on probation or in a rehabilitation center. One dirty UA or failure to report or failure to pay is not the issue. For one to be sent to ID, it is a culmination of a collection of minor violations w/another offense attached and a plea bargain to save everyone the time of a formal hearing.
No program can offer hope to someone who has given up or is intent on going to prison.

.

Never forget Al Capone went to prison for tax evasion - any study should factor in the fact that sometimes we get them for what we can. I have dropped one for "dialing a wrong number on a phone". He's a monster, but ... Don't take away our ability to drop a monster any way we can. Remember the oath to see justice done.

Is failure to pay restitution always a technical. I have got an appeal gearing up on a woman who refused to adjust her life style to pay restitution -- "why should my husband suffer?" She lives in a brick house they are buying, big cable TV bill, etc. The issue for the judge was if the victims (children) should adjust and suffer or if the criminal should adjust and her family suffer. She's on an appeal bond ... we'll see.

Tony Fabelo's group at the Criminal Justice Policy Council has just released a report on felony probation revocation in Texas. The findings suggest that there are few "technical" revocations of felony probation -- most happen because of new crimes. Among the findings, CJPC reports that:

* more than half (59%) of all revocations happen for an allegation or conviction or a new offense;
* almost half (47%) of the offenders revoked for a new offense had more than one law violation;
* of the "technical" violations, most of those revoked for administrative violations violated more than one of their rules of supervision (51% violated 2-5 rules, and 41% had violated 6 or more);
* most offenders (over 70%) revoked participated in treatment programs some time during their probation period, indicating that some attempt was made to assist them while under supervision;
* almost all of the offenders revoked were delinquent in payment of their fees, but almost none were revoked for only non-payment of fees (less than 1%).

A downloadable copy of the report is available in Adobe Acrobat at the policy council's website at www.cjpc.state.tx.us

check out Fabelo's study issued today: Monday, May 6th. What folks in the trenches have been saying all along -- courts are making rational decisions concerning probation revocation.

This is a very important study, because it debunks the talk going around that prosecutors and judges continue to fill the prisons with unwarranted probation revocations.

We have a link to the study in the issues in prosecution section...it's worht a read.

Probation received a copy of the report on Monday and the results were not a surprise. Everyone in the trenches knew what technical violations were but data is the key to explanation.
We knew that we didn't have people going to prison for missing one office visit.
What is of concern for the field of probation is too much emphasis on beds?
Probation is trying to steer emphasis on the legislature back to basic services and then we have such a strong recommendation for probation regulated beds. The moment you speak bed space, you talk about $$$. Core services are swapped for mental health and bed space.
Texas Judges will not be regulated by sentencing guidelines as noted by the disclaimers.
Beds are not the total answer.
Core service is not money for treatment. Core services are money for field visits, officers to meet with the probationers each month. When you have to sacrifice the ability of an officer to see 80 probationers per month vs. 150, there is a quality problem.
If the money is given for bed space, the expense becomes enormous because you have to meet jail standards and go to 24/ time wise and currently we are not geared for that time space.
24/7 is a prison's responsibility. Probation doesn't have the money to accommodate 24/7 supervision. To have the on call mindset, we change from probation officers to jailers.
In the words of a famous prosecutor Balance...Balance...