[Those of you who read Tony Fabelo's recent article on probation reform in the May/June 2006 Prosecutor newsletter are invited to post comments or questions for discussion below. The article can also be found here:

May/June 2006 Prosecutor

The old probation thread he mentions in that article can be found through this link:

"Note to my friends" (March 8, 2005)

- SE]

[This message was edited by Shannon Edmonds on 05-04-06 at .]

Frankly, I think it's refreshing to see someone suggesting improvements to the probation system which don't involve reducing caseloads or revocations by early terminating a bunch of otherwise undeserving probationers.

I think most of us would agree that providing CSCD's with more manpower, equipment, resources and treatment options to better enable them to do their job is a good thing. Unfortunately, for too long the Legislature either took away resources and options from the CSCD's, or neglected their needs, leaving revocation as the only viable option in way too many instances.

I hope Dr. Fabelo and the folks in Travis County are successful.

This slipped down the list, so I thought I'd refresh it and give folks another chance to weigh in.

Even if you don't have comments on the article, I have another question: are articles like this on criminal justice "macro-policy" (for lack of a better term) of interest to you? Or do you prefer the standard "war story" and "nuts-and-bolts/how-to" pieces?

Just curious ...

I like both.

Which is the more successful probation department? Dept. A has a higher percent of it's caseload revoked and sent to TDC than Dept. B, because it (and its prosecutors and judges) is more aggressive about revoking for technical reasons. Dept. B, on the other hand, has a lower over-all revocation rate than Dept. A, because it rarely revokes a probationer unless he is arrested and convicted of a new crime.

If you are a legislator who considers protecting the people of this state from criminals to be a nusance problem that the state is saddled with addressing, and that public safety is not important (a very common belief amongst legislators, judging from what they pass), Dept. B is the "more effective" department.

On the other hand, if you believe that protecting the people of this state is the 1st Purpose of State Govt., or if your home is burgled by a probationer who's "only" violations his PO knows about are "technical violations" (reports irregularly, tests positive for cocaine now and again, is seen after curfew, keeps company with disreputable people, works sporadically, etc. etc.) you might think Dept. A is the more successful department.

It is a well-known fact that for every crime that results in an arrest and conviction, most criminals commit a vast number of other crimes which go undetected, or if detected, go uncharged, or if charged, go unprosecuted.

Thus, the probation department that has few revocations for technical reasons is allowing many active criminals to escape punishment. Probationers who blow off the rules of probation (i.e. technical violations) are not really being deterred from criminal behavior. And probation departments (and prosecutors and judges) who refuse to enforce these rules are making a mockery out of probation. It becomes a fraud on the public, which thinks that a person on probation MUST abide by the rules of probation, which are designed to discourage criminal behavior, or they will go to prison.

Having said all that, I must admit that I rarely seek to revoke the first time a probationer violates probation. I usually try several things before I figure he needs to go to the joint. But there are some which get fewer chances, because I figure they are too great a threat. In short, I try to use judgement in making these decisions. What I fear from a probation department that is run according to statistics, is that it will cease to use good judgement, and instead will run the office to make its numbers look good. And "looking good" will mean it has few technical violation revocations. I fear that probation departments will lose sight of their first responsibility, which is protecting society from the bad guys it supervises, just as the legislature which provides its funding, has lost sight that it's first responsibility is to protect the public.

Fabelo makes a good point when he says that in some large jurisdictions, each judge has his own policies concerning the terms of probation, resulting in a mishmash of contradictory probation policies. The solution he proposes, however, is worse than the problem it is supposed to solve. He says in Travis Co. they want to have a violations court magistrate who will pass on probation revocations, and if this magistrate thinks the situation warrants, passing the case to the probationer's court for a revocation hearing.

Suppose this probation revocation tzar turns out to be a Namby-Pamb--who get's rid of him?

If uniformity is so important, I suggest that probation departments be put under the authority of the D.A. He, unlike the probation revocation tzar, has to answer to the voters. Generally, D.A.'s are oriented towards protecting the public. Moreover, it is the prosecutor who "sells" the idea of probation to a victim. It is only right that he should have some control over a probationer who agrees to abide by the rules of probation in lieu of not going to prison or jail. I think probation departments that answer to the D.A. would be far more aggressive about collecting restitution, and keeping an eye on probationers than one which is largely accountable to no one, as seems to be proposed.

Now that's what I call thinking outside the box ... indeed!

I finally had time to read the article and enjoyed it. I have certainly heard a great deal of praise for Dr. Fabelo from many who have worked with him.

My biggest concern is that we use effective tools to measure the criminogenic risk factors he mentions. I do not know how many of you have ever looked at the Static 99 form used to evaluate sex offenders. It ranks risk based on factors such as age of the defendant, work history, social stability, and criminal history. By that measure, a 19 year old who has sex with his 15 year old girlfriend, does not have a job, and had a criminal mischief conviction at 17 has a higher risk assesment than the married, working, 40 year old man who has been molesting his stepdaughter for 3 years. Who believes the 19 year old is the bigger risk of reoffending?

The Static 99 form seems really good at predicting recidivism in burglars, but sex cases are what it is used for.

This is only one example, and many of the other measures used by our probation departments are satisfactory. But we do need to take care to use tools that really work, rather than simply work with what we have if we are to overhaul the system effectively.

I do not think locking everyone up is the answer, but neither is leaving everyone on the streets and hoping that, since we have not caught them, they are not breaking the law. Like many have said here before, you had to possess the crack before it ended up in your system, but the latter is a "technical" violation. But that is still not the guy I am most worried about - let's give him treatment; oh yeah, the Legislature gave money for a bunch of treatment beds, but fewer than they had stripped away in the previous couple of sessions. For instance, anyone miss the State Jail therapeutic community beds?

First let me thanks all my friends at TDCAA for allowing me to write the article, in particular to Rob K. and Sarah W. for their help. Second, I want my friends to know that I consider your journal a key forum to communicate on big picture policy discussions besides the "nuts and bolts". The article already has been circulated and/or reprinted by others and has reached more than 20,000 names on different lists. This is a statement on the credibility that your publication brings.

Regarding specific comments in the bulletin board, I am just "listening" at this time. However, I want to make sure that you understand that this effort is backed by a strong research effort. This is for sure the only effort like this in the state, and I venture to say in the country. I am writing "incubator" reports documenting what we do. One is already out reviewing the overall strategy for the probation changes. A second one is in process reviewing the assessment tools to be used in the diagnosis and the validation research behind the risk assessment. I am also trying to get more national funding support to research the more pleplexing question that continue to be raised: how to handle "technical" revocations. When do technicals seems to point to a pattern leading to new crimes? When do technicals are a reflection of relapse in treatment and more tolerance is acceptable? When do rules or conditions reach a point that they create a framework for failure as even minor violations become an affront to the system of supervision?

Not easy questions to address and we may not have a clear answer. Nevertheless, we do have these issues in the "radar screen" as relevant issues to tackle. So far we have tackle each part of the project with the general consensus of the Travis DAs office and Travis judges. We have maintain with them a clear framework for the changes backed by research and/or systematic process review. Surprisingly to some, but not to me, the DAs and judges have been "rational" in examining the information and guiding our work. Those that think that DAs and judges, because they are elected, or because of this or that, cannot be positive are wrong. If approached with credible systematic well developed information they are the best assest in the process. They do need to spend some time with us, and they have. This, at the end of the day, may be the biggest lesson. To have systematic reforms that make sense, you have to do a lot of work creating consensus not based on predisposed ideological positions but based on a good credible base of knowledge. The base of knowledge is never able to answer all questions but it sure helps in focusing critical issues.

I keep you posted on the progress. If you need any of the developing report ask Sarah and I she can get them from me. I the meantime, feel free to post more ideas.

Thanks, Tony

Dr. Fabelo's article lists the sponsors of effort to improve the "effectiveness" of probation to be, among others, the Open Society Institute. The OSI is headed up by George Soros, a billionaire crank who spends massive amounts of money on a web of organizations like the OSI, to change government to his extreme left wing views. Soros is behind the legalization of marijuana movement, which has had several successes in a number of states. He is also an enthusiast of abortion. I cannot imagine Soros would fund a program that would likely result in more evil doers going to prison.

In my experience as a prosecutor, the greatest weakness of probation is that probation violations are not taken seriously enough, by prosecutors and judges. When was the last time you saw a pen pack of a guy who got deferred adjudication for a 2nd or 1st degree felony, and when he was finally revoked, only got close to the minimum amount of time in prison? That is the norm. It is rare to see such people get hammered with a stiff sentence. Indeed, if memory is right, the average sentence for probation revocations that result in pen time is only a very few years--something like three.

Typically, these people have been given many chances by probation, then by the prosecutor, then by the judge, to "get on the bit," and when all else fails they are given a relatively light sentence.

I think it is very common for probation officers, prosecutors, and judges to completely forget the underlying crime for which the probationer is on probation when it comes time to finally send them the the joint, and they end up being punished as if they are only being punished for the seriousness of the probation violations.

I am a big believer in 2nd chances, and in probation. It is for that very reason I do not want to see probation weakened even further.

Just for the record, we have different funding sources for the Travis probation project. None of the funders have put any litmus test- the goal is to figure out how to improve probation and document this effort so other localities here and around the country can examine the experience.

Anyway, I will never accept money if we have to follow a litmust test to produce some predetermined result. I know...now days that is hard to believe......but if you know me you should know better.

Dr. Fabelo has always been a straight shooter and has documented his findings well.

One thing I would like to see is more of an effort to document all the chances and the number of motions to revoke or adjudicate that were filed before a defendant is finally sent to state jail or prison.

Example: 1st Motion to Revoke; the defendant is given a warning and some minimal county jail time as a condition of probation. 2nd Motion to Revoke: defendant is sent to a drug tratment program. 3rd Motion to Revoke: Defendant stops reporting for six months, gets arrested and tests positive for cocaine. Defendant is revoked and the judgment reveals only that he failed to report and tested positive. The statistics do not show that he was given a lot of chances before revocation. This leads legislators to think that we are sending defendants to state jail or prison unnecessarily. Is there a way to document all these efforts to make the statistics reflect what really happened?

Thanks for your support.

Yes, we are in the process of setting a detailed study of revocations.

Yes, you are also correct in indicating that very few people get revoked for a "technical" for only one violation.

There are usually many attempts to work with the offender before a revocation. We actually documented this in a Criminal Justice Policy Council report that we published in 2002 (may still be in the CJPC web site through the LBB now).

You hit in a key issue: why have prior attempts to work with the offender failed? Is it because these offenders are total losers or is it because supervision strategies are not that good (or a combination)? Is it because so-called programs are not that good, in particular to address the issue of substance abuse? It is because the probation officers have become so overwhelmed that all they do is process paperwork and do not have time to go out, try to help the offenders, connect with community organizations, etc. to make supervision more effective? Is it because we are applying the same tolerance level to low risk offenders that we apply to high risk offenders and in the process reducing the effectiveness of supervision for the low risk offenders?

If we cannot figure out this part of the equation, we would not be able to succeed. We know that supervision strategies are weak based on my assessment of Dallas and Travis. We also know that there are a lot of stuff out there that are called "programs" but are just mere cursory interventions not oriented to effectiveness.

When we understand better this part of the equation we will be able to point to what needs to happen to improve supervision strategies, programs and to match better the tolerance levels to the risk of offenders.

Give me some time to develop the stats.....we will....and maybe we can get a better understanding of what to do next. Maybe was can do something that is less driven by the poster case anecdotes that tends to more and more dominate policy making!!

I just finished reading Mr. Fabelo's article on the problems with probation across the state & possible solutions.

I was completely opposed to Mr. Fabelo's recommendations last legislative session, therefore, I approached his article with some skepticism.

However, I found most of his article to be based on good common sense. I, myself, have often wondered why there was not a comprehensive battery of tests to identify individual offenders problems and tailor an individual plan.
Obviously, I have chocked it up to the lack of funding for the most part.

In addition, I see an inherent problem in how individual judges make decisions regarding revocations. For example, in my district one judge is pretty tough on those who violate their probation. He truly sees it as a compact between himself & the offender. He often maxes out those who violate probation. However, he is also quick to identify those with substance abuse problems and address those offenders with treatment options. However, the other judge in our district is much less concerned with probation violators and hits them at the low end of the sentencing spectrum regardless of how egregious their underlying offense or any new offense they commit for that matter.

The idea of having a magistrate who addresses violations of probation would bring uniformity to a district, however, what guidelines will they follow, if any? Are they going to answer to the public? How are these magistrates to be funded given the tight budget?

To me the reality in Texas is we will have to build new prisons, period, whatever is done with probation. This is a reality politicians in Austin must face, frankly, I do not understand their resistance to this idea. I guess money is more important than the public safety.

P.S. I agree probation departments would be more effective under a district attorney's authority! Although, we all know that will never happen.

I trust that Dr. Fabelo will bring empirical evidence to back any probation reform program he advocates. I am ready to be persuaded by sound data. Lord knows I have only the evidence of anecdote, experience and intuition. I think the outcry from prosecutors over some of the proposed "reforms" of the last Leg session was largely based on the suspicion that the reformers had no data either.

Perry plans to resurrect tracking of criminal justice trends in Texas

Statistical Analysis Center would replace a policymaking council that was closed in 2003 in cost-cutting move.

By Mike Ward
AMERICAN-STATESMAN STAFF
Monday, December 11, 2006

In the latest signal that prison reforms are a top state priority, Gov. Rick Perry plans to establish a new office to analyze criminal justice statistics and trends in Texas for the first time in nearly four years, officials confirmed today.

The new Statistical Analysis Center would do much of what the Criminal Justice Policy Council did before Perry vetoed its appropriation in 2003 � without the policy part, Perry aides said.

"It will collect statistics and analyze data and provide reports to policymakers for their decisions," said Ted Royer, Perry's deputy press secretary.

Today's move could soon give the state three sources of justice statistics. The Legislative Budget Board already charts prison population trends, and legislative leaders are poised to bring back the former head of the policy council � now a national justice-policy consultant � as an adviser when the legislative session begins in January.

Since the demise of the policy council, which advised state leaders on issues including convict-population trends, reasons for recidivism, and the effectiveness of probation and parole programs, the budget board has collected criminal justice statistics and provided some forecasting.

But increasingly, legislative leaders have complained that they need more professional analysis and prognostication than the budget board has the staff to provide.

Royer said details of the new data center are expected to be announced later this month. He and other officials confirmed its creation and provided some details after the Austin American-Statesman learned of the initial details.

"That's fantastic," House Corrections Committee Chairman Jerry Madden, R-Richardson, said when told of Perry's move.

"We are in critical need of valid numbers and competent people to help project the needs of Texas," said Sen. John Whitmire, D-Houston, chairman of the Senate Criminal Justice Committee. "Anything that will provide accurate information will be most welcome."

Madden said he and Whitmire are working to arrange for Tony Fabelo, the policy council's former director, to advise legislative leaders. Funding for his help would come from a grant from the Council of State Governments, a legislative trade group.

That group is funding justice-system studies in Connecticut, Pennsylvania and Kansas, looking at much the same issues that Texas faces.

"My heart is in Texas. My heart is helping people in Texas try to figure out what to do," said Fabelo, reached by phone in Kansas.

In June, Madden and Whitmire called on Perry to revive the policy council to help Texas plan for its growing population of convicted criminals. Since the council disappeared, prisons are full again, with almost 154,000 inmates, leading some officials to wonder whether they could have been better prepared.

In 2003, Perry vetoed the $1.2 million annual budget for the council in a move touted as necessary to cinch up a bare-bones state budget. Its duties were assumed by the budget board, an arm of the Legislature that provides statistical and budget guidance for lawmakers.

But in the years since, lawmakers have increasingly voiced consternation about a lack of the analyses and planning reports on criminal justice trends that they said were essential to keeping ahead of the prison crowding that plagued Texas two decades ago.

Although the Legislative Budget Board has provided the statistical basics such as prison population numbers and trends, Madden and Whitmire said it has been unable to review and analyze how well specific corrections programs are working and what other programs and initiatives might be needed.