« As Maryland takes another step toward capital repeal, limbo looms for five on state's death row | Main | Third Circuit panel discusses at length all the problems with SORNA »

March 14, 2013

"Rethinking the Use of Community Supervision"

The title of this post is the title of this important new paper now available on SSRN and authored by Cecelia Klingele.  As practitioners and policy-makers know, the back-end of the criminal justice system and the use of alternatives to incarceration are critically important "real world" sentencing issues that only rarely get sustained attention from the legal academy.  I am so pleased that Cecelia Klingele is a leading voice help ensuring these important legal and policy issues get the scholarly attention they need and deserve.  Here is the abstract of her latest work in this regard:

Community supervision, whether in the form of probation or post-release supervision, is ordinarily framed as an alternative to incarceration.  For this reason, legal reformers intent on reducing America's disproportionately high incarceration rates often urge lawmakers to expand the use of community supervision, confident that diverting offenders to the community will significantly reduce over-reliance on incarceration.  Yet, on any given day, a significant percentage of new prisoners arrive at the prison gates not as a result of sentencing for a new crime, but because they have been revoked from probation or parole.  It is therefore fair to say that in many cases community supervision is not an alternative to imprisonment, but only a delayed form of it.

This Article examines the reasons why community supervision so often fails, and challenges popular assumptions about the role community supervision should play in efforts to reduce over-reliance on imprisonment.  While probation and post-release supervision serve important purposes in many cases, they are often imposed on the wrong people, and executed in ways that predictably lead to revocation.  To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways.

First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense.  Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.

March 14, 2013 at 08:20 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2017d41d99c87970c

Listed below are links to weblogs that reference "Rethinking the Use of Community Supervision":

Comments

Punishment is a waste of time for most career criminals. The rewards of a criminal lifestyle are too great.

Incapacitation is the sole mature goal of the criminal law.

123D is the simplest, cheapest, and 100% effective path, since the deceased have a zero percent rate of recidivism. Massive worthless government worker unemployment would follow, and that is why the lawyer is protecting the career criminal.

Because rent seeking and insurrection against the constitution are mass crimes of the lawyer hierarchy, test the theory on them first. Arrest, try, and summarily execute all 15,000 of them. See crimes rates drop to below those of Japan and Switzerland. In a month.

Posted by: Supremacy Claus | Mar 14, 2013 8:53:14 AM

The agenda gets clearer: After all these years in which the Left has been telling us that we can reduce prison with stringent and carefully monitored community supervision, we are now told -- guess what!! -- that the "community supervision" part was just a head fake. Costs too much, etcetera.

I have said for a long time that the end-incarceration crowd was an exercise in deception -- that it was just a mask for the end-punishment crowd. I very much appreciate Mx. Klingele's coming out of the closet to vindicate my assessment.

Posted by: Bill Otis | Mar 14, 2013 11:08:42 AM

Bill's claim that probation is not punishment is either pure ignorance or itself just deception - it's often hard to tell which.

Sitting locked up in a cell is easy compared to succeeding on probation, passing UAs, paying restitution, etc., which is why many offenders choose incarceration over probation. And most probationers who fail do so in the first couple of years; long probation terms add very little extra marginal protection for the public. That's the basis behind the author's suggestion that probation conditions be limited - it's an acknowledgement of reality, which of course is not the forte of the tuff-on-crime crowd. All this tuffer-than-thou foolishness spouted by SC and BO is ridiculous hogwash. BO in particular chooses to almost never argue against what's actually said, instead pretending to know what the author really thinks and arguing against a straw man of his own creation, which is of course why no one cares to take him up on his offers to "debate." Since he won't or can't have an honest discussion based on the actual positions of his self-styled adversaries, a "debate" is just a waste of time.

Posted by: Gritsforbreakfast | Mar 14, 2013 11:45:36 AM

As a former prosecutor, I always saw probation as a form of triage. Impose a little community service requirement so that there was a clear punishment aspect and require restitution to the victim so that the victim was made whole and the defendant did not profit from her crime, but otherwise the purpose of probation was to assess what led the defendants to commit the crime and figure out what steps needed to be taken to correct the problem (e.g., drug treatment, helping them complete their education, mental health treatment, etc.).

Part of the reason why so many fail is not how tough probation is, but how under-resourced community supervision is. The programs that really give hands-on attention (e.g. drug courts) succeed much better than those in which the assistance and supervision is much more sporadic leading to the defendants to return to the behavior that got them in trouble in the first place.

Posted by: tmm | Mar 14, 2013 12:40:53 PM

It's amusing when a two-bit liar like Grits (are the cops sitll tasing you, bro?) says something like:

"BO in particular chooses to almost never argue against what's actually said, instead pretending to know what the author really thinks and arguing against a straw man of his own creation, which is of course why no one cares to take him up on his offers to 'debate.' Since he won't or can't have an honest discussion based on the actual positions of his self-styled adversaries, a 'debate' is just a waste of time."

Among the nobodies who supposedly have not taken me up on my offers to debate -- they being a "waste of time" -- are Stephen Bright of the Southern Poverty Law Center (at Emory); Byron Stevenson and Sam Millsap (at the National Press Club), Prof. David Dow of Houston and Natasha Minsker of the ACLU (and the leader of the Prop 34 campaign)( http://www.fed-soc.org/debates/page-debate/death-penalty); Prof. Carol Steiker at Harvard; her brother Prof. Jordan Steiker right there in Austin (wake up to what's going on around you, Grits); Ronald Tabak, co-chair of the Death Penalty Committee of the American Bar Association’s Section of Individual Rights and Responsibilities (at Columbia); and Prof. Anthony Amsterdam of NYU (American University-hosted). This is a partial list. I have debated quite a few other people, most but not all of them professors of law.

And that's just on the death penalty.

I also offered to debate you, if you're not too stoned to remember. The reason you haven't is that, unlike the distinguished scholars with whom I have had these discussions, you just don't have the wattage, hotshot.

But even you know enough to retract your lie about my adversaries supposedly refusing to "waste their time" debating me.

Get to it.

Posted by: Bill Otis | Mar 14, 2013 12:53:38 PM

The level and duration of restraint imposed should be graduated, depending on the State's correction objectives. Sentences to prison, probation and placement on parole are old fashioned approaches to the problem. They control the duration of restraint, but have limited control over its level. As I have commented before, they are crude, ham-handed historical artifacts that are largely insensitive to the nuances of public policy.

Posted by: Tom McGee | Mar 14, 2013 1:00:48 PM

tmm --

"Part of the reason why so many fail is not how tough probation is, but how under-resourced community supervision is."

I agree, that is part of the reason. The other part is that they just have not changed the ways of thinking that led them to become criminals in the first place. They cannot or will not develop the determination to change their approach to life, in which other people are responsible for them but they're never (or seldom) responsible for themselves.

Posted by: Bill Otis | Mar 14, 2013 1:09:26 PM

The criminology literature has shown time and time again that antisocial peers and antisocial attitudes play a large role in recidivism. Probation fails for many for a variety of reasons, but two large reasons are failures to change ones peers and attitudes.

Posted by: Steve Erickson | Mar 14, 2013 7:02:49 PM

After a long time reading this blog and C & C, and even trying desperately to give him the benefit of the doubt as a personal matter (since he's a friend of a friend), I've come to the conclusion that Bill--at least insofar as he posts on this blog and C & C--is just trolling defense lawyers.

I don't think that there is anyone stupid enough to actually believe that no one belongs in prison. I've never much such a crazy person, and I've spent my career as a PD and some time in academia as well. I've also never met anyone who believes some of the things Bill professes to believe--and I've met some crazy right-wing prosecutors. But this--this is just silly.

I'm on the Ohio Criminal Sentencing Commission. All of the corrections officials, including the Republican Director of ODRC, believe in extensive local corrections and community supervision. All of the judges on the commission believe in community supervision, although they are also inclined to send more people to prison. And even most of the prosecutors believe in community supervision to some extent.

So what in the hell is going on here? Occam's Razor says Bill is trolling.

Supremacy Claus -- well, that's something else entirely.

Posted by: Ohio PD | Mar 15, 2013 9:46:59 AM

Ohio PD --

1. First, could you define "trolling?"

2. Second, rather than using a general characterization -- whatever "trolling" turns out to mean -- I would ask you to re-read Doug's post at the top of this thread and my initial response to it, here and on C&C. I don't think there is any neutral way to look at Prof. Klingele's views EXCEPT as a reneging on the promise -- the promise routinely made by reduce-incarceration advocates -- that prison would be replaced by more extensive and careful community supervision than we have now. Prof. Klingele is proposing the opposite, and she does so explicitly, leaving no room for doubt.

How, other than reneging, could I understand her view?

3. "I don't think that there is anyone stupid enough to actually believe that no one belongs in prison."

But the great majority of commenters on this blog (and Doug) campaign for less imprisonment, being careful to avoid specifying how much less, being equally careful to avoid any even grudging acknowledgement that prison has played a large role in crime redeuction, and avoiding like the plague the fact thst such reduction is THE PRINCIPAL GOAL of a sane criminal justice system.

And yes, many of the defense-oriented commenters will start off with a tepid and perfunctory "well-yes-some-people-belong-in-prison," but move immediately to the usual narrative in which this admission is left in the dust, never to be heard from again.

Finally as to this point, much of defense lawyering is devoted to portraying the client as victim, and thus a person who really ought to be getting treatment as opposed to punishment. Do you disagree that that is the theme we hear again and again?

(Cont'd in next post)

Posted by: Bill Otis | Mar 15, 2013 10:53:00 AM

I will take a stab at this one.

Community supervision works for those that go, Ooops I messed up...I need to make a few changes or I will get to room with Bubba a lot longer than I want to...People that just ignore probation, and supervision need to go way for a while....Federal is way too long, the offender has forgotten what his crimes and troubles were...We need to shorten federal sentences by 40%-%50, then we would reasonable.

Community supersion for those that have just been released, would say its a great...Helps them get used to their new life and they have to be back early in the night and must be sober... Yeah....

For re-entry 3-6 months depending on how long one was gone, is helpful...Puts structure in there lives.

Posted by: MidWestGuy | Mar 15, 2013 10:53:17 AM

Ohio PD (cont'd) --


4. "I've also never met anyone who believes some of the things Bill professes to believe--and I've met some crazy right-wing prosecutors. But this--this is just silly."

What "things" do you have in mind?

That we should preserve the death penalty? You might not agree with that, but a big majority does, and the notion that it's "silly" is absurd. You must know this.

That prison helps reduce crime? Is that "silly?" No, it's not. It's a documented fact.

That drugs should remain illegal? The public is split on pot, but overwhelmingly believes that virtually all other illegal drugs should stay that way. Am I being "silly" in agreeing with them?

That academia is overwhelmingly tilted toward the defense side? If you've been there, as I am, this would not even be arguable to you. Indeed, what would be "silly" is any OTHER belief. I'm amazed I'm tolerated at Georgetown as well as I am.

Those are most of the points I argue on this board. So, again, what "crazy right wing" things do you have in mind? Please be specific. (I don't think you want to get me started on the crazy left wing things that show up on this board, e.g., that Kent Scheidegger is a Nazi because he was photographed in a business suit on the Supreme Court steps).

5. "I'm on the Ohio Criminal Sentencing Commission. All of the corrections officials, including the Republican Director of ODRC, believe in extensive local corrections and community supervision. All of the judges on the commission believe in community supervision, although they are also inclined to send more people to prison. And even most of the prosecutors believe in community supervision to some extent."

As am I. I have said here time and again that almost everyone who goes to prison will at some point get out, and that (if for nothing but self-interest), we should help them when they do.

If you'll re-read the article, it is Prof. Klingele, not me, who wants to poke big holes in community supervision -- this after those on her side (and yours) have been insisting for years, as part of the anti-incarceration campaign, that what we need instead of more prisons is more and stronger community supervision.

You seem to be a serious-minded person, so I am curious to see your response. In the meantime, tell John I said hello.

Posted by: Bill Otis | Mar 15, 2013 11:02:56 AM

I will tell John you said hello, and I will read the article and respond to it--you're right in suggesting that I haven't. And I'll concede most of the points you suggest in #4 even before I do, since there really isn't any argument that they're incorrect. I disagree about pot and on the death penalty, and I think drug sentences are too long. And I will say my alma mater and Doug's current employer OSU law is a good counterexample to the "overwhelmingly tilted" argument--if you examine the tenured faculty there you will not find a single defense lawyer, but you will find several former prosecutors. But ultimately, those objections are quibbles -- your main points are sound.

But the thrust of my point about local corrections / community supervision is using it IN LIEU of prison, not merely as a supplement to reentry. And that's the way the players on the criminal sentencing commission that I mentioned view it as well. Prison is (1) expensive and (2) really doesn't work as an end in itself. Unfortunately, that's the way it's often viewed, and rhetorically the way that I've often seen you refer to it.

And as for trolling, I'll use Wiki's definition: http://en.wikipedia.org/wiki/Troll_(Internet) . Certainly your posts are always on-topic, and perhaps your goal isn't to disrupt normal conversation, but both here and on C & C they are frequently inflammatory and seem to provoke emotional responses rather than reasoned debate. And that's because they're only infrequently as measured as your last two comments directed at me.

I'll read the article and get back to you with more as soon as I can, but it may be a day or two.

Posted by: Ohio PD | Mar 15, 2013 11:48:43 AM

A small clarification. The paper does not suggest that community supervision (or any lesser sentence) should replace prison in cases where it is warranted for just punishment or public safety. The paper discusses the proper (and improper) use of community supervision in typical cases involving people whose crimes are minor, whose culpability is low, and/or whose threat to public safety is minimal; and for those who have served their sentences and are transitioning back to their communities. When community supervision is used, of course it should be thoughtful, well-resourced, and carefully executed. My point is that it is often used in ways and for people who would be better punished in differently, be it through jail time, fines, or unconditional discharge. If anything in the paper misleads on that point (or any other), I welcome suggestions for revision and clarification. [email protected]

Posted by: Cecelia | Mar 15, 2013 1:11:13 PM

Prof. Klingele --

"A small clarification. The paper does not suggest that community supervision (or any lesser sentence) should replace prison in cases where it is warranted for just punishment or public safety. The paper discusses the proper (and improper) use of community supervision in typical cases involving people whose crimes are minor, whose culpability is low, and/or whose threat to public safety is minimal..."

With all respect, Professor, there are going to be vastly differing views of the meaning of the clause, "...people whose crimes are minor, whose culpability is low, and/or whose threat to public safety is minimal." For example, what specifically do you mean by a "minimal" threat to public safety? This has already come up in the prison release/Plata-compliance plans in California, where the promise of releasing "only" those who are "minimally" dangerous to others has proved unreliable if not point-blank false. There will be similar widely varying views of the meaning of your phrase "...in cases where it is warranted for just punishment or public safety." There are many in academia (and I suspect, although I don't know, that you're among them) who have thought for years that prison is neither warranted nor just for a big percentage of the criminals upon whom it is now imposed.

I do not believe there is any reasonable argument that the gist of your paper's suggestions is in tension with one of the main implicit (and often explicit) promises of the anti-"incarceration nation" movement: That, if we were to start releasing prisoners, we would replace prison with more and stronger community supervision, not less and weaker.

Finally, I wonder whether you would agree that increased incarceration over the last twenty years has contributed significantly to the massive lowering of the crime rate (and hence to lower crime victimization) over that time. If so, I wonder whether you would also agree that significantly less incarceration is somewhere between likely and certain to increase the amount of crime.

Bill Otis
Chief of Appeals, USAO for the EDVA, 1981-1999

Posted by: Bill Otis | Mar 15, 2013 1:59:33 PM

For some reason I had a post deleted from this thread in which I delineated some of the problems that both "hard on crime" advocates such as Bill Otis, and the "soft on crime" advocates such as Grits. I opined that the answer lies in constitutionally restructuring the judicial sentencing clauses, to which instead of a single, finite sentence time which would incorporate incarceration, parole, training, and ostensible reintegration into the society of a presumably reformed offender, I would like to see a change so that there are two phases to the sentence. The first phase would incorporate hard time, either jail or prison. For serious crimes, there should be no ambiguity of the length of time a prisoner should serve in lockup. This is necessary for the victims and the community at large, as well as provide for the most visible deterrent for others to see. Bill Otis brought out many valid points on this issue.

In addition, part of the sentence would mandate a reintegration phase for each offender. Part of the problem of "maxing out" or early release for offenders is that most of them are not able to properly assimilate back into the community. Grits brought out many valid points on this issue.

So the answer is to do both: hard incarceration time behind bars, coupled with gradated levels of reintegration into the community. Each component has its own rules per sentencing guidelines, rather than exist as part of a finite sentencing edict that requires both incarceration and parole, or only one of them, which confounds communities and victims alike. I won't go into the details I did in the now-absent post for space restraints, but I think everyone gets the gist of this process.

OH! And costs: Space doesn't permit me, but the costs would be born by the reduced costs associated with lessor overall recidivism. If one can divorce the various interest groups and look strictly at data, this should be fairly calculated at great savings to the curry morass we are in now.

Posted by: Eric Knight | Mar 15, 2013 7:07:44 PM

The theory behind imposing restraints is that a person's autonomy is conditional. Behave irresponsibly and you loose some measure of your autonomy. Autonomy is not an either/or proposition. It is proportional to the target problem, which is antisocial behavior.

The traditional idea is that a person is either incarcerated or not incarcerated, which is inconsistent with the theory of a person's autonomy. That is why I propose a graduated system of restraints. Correctional people do this all the time with their classification systems. Why can't the court's do the same?

Restraints should be imposed in proportion to a person's accountability and in proportion to that person's risk of committing another crime. Those restraints that are most restrictive should control at any given point in time. Generic restraints are recursive; i.e., less restrictive restraints fit inside of more restrictive restraints. In this way all of the State's core objectives can be accomplished in each case.

Posted by: Tom McGee | Mar 15, 2013 7:50:48 PM

Eric Knight --

Thank you for a thoughtful post.

Here's a tip about comments that you think got posted but actually disappear. I got the tip from a smart but infrequent poster called Anonymous One:

If you have a long post, sometimes the blog will say it's been posted, but that is a head fake (as you seem to have found out). The blog seems to not want to post really long comments. So if you have such a comment, copy it before you hit the "post" button.

Sometimes long ones show up, and sometimes they don't. There's no way to tell in advance. So if it looks pretty long, copy it to be on the safe side. If it doesn't take, break it up into two or three parts an try again. That has worked for me.

Posted by: Bill Otis | Mar 15, 2013 7:51:54 PM

I am pleased to report that Professor Klingele has responded to my comment here on the blog Crime and Consequences. Her response is the first comment on my entry, http://www.crimeandconsequences.com/crimblog/2013/03/the-incarceration-nation-shell-2.html

This has the makings of a debate in the best sense. I am grateful to Prof. Klingele for her engagement.

I also recommend reading Steve Erickson's post at http://www.crimeandconsequences.com/crimblog/2013/03/when-monitoring-bracelets-fail.html His post shows in grotesque detail what happens when community "supervision" goes awry, which we know in advance it is certain to do.

Posted by: Bill Otis | Mar 15, 2013 8:53:24 PM

"The criminology literature has shown time and time again that antisocial peers and antisocial attitudes play a large role in recidivism. Probation fails for many for a variety of reasons, but two large reasons are failures to change ones peers and attitudes."

Steve Erickson

Impossible to resist recidivism if one returns to one's crime lifestyle community. It should be a condition of probation that inmates move to a different town. They may not be able to afford to due to poor job prospects. These prospects are damaged by lawyer regulatory restrictions on employing anyone with a felony conviction. The regulations should be restricted to limits that are relevant to the indicted crime, not the adjudicated crime, a fictitious one in 95% of cases.

Posted by: Supremacy Claus | Mar 16, 2013 5:30:47 AM

Ohio PD: There is no greater love than the love great enough to correct.

Posted by: Supremacy Claus | Mar 16, 2013 5:31:26 AM

Punishment is pointless for criminals. Most of them are just waiting to get out, and once they get out, they either learned something from where they were, or they'll keep causing ruckus.

Posted by: Jeremey Kurtz | Sep 26, 2013 6:52:32 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB