1200 words and three scholarly sources

Corrections in the Community.

© 2011, Elsevier Inc. All rights reserved. 117

C h a p t e r 5

When we are out of sympathy with the young, then I think our work in the world is over.

—George MacDonald

the Juvenile Crime problem The challenge of crime in the United States remains a major social problem that has serious and sometimes deadly consequences; however, in the past half-decade, the size of the problem has abated as the nature of crime has changed. For example, the Federal Bureau of Investigation reports that the crime rate has continued to decreased between 1998 and 2008 (Federal Bureau of Investigation, 2009)(see Figure 5.1).

The juvenile crime rate is considered a problematic aspect of the crime problem. Youths under age 18 now commit almost one in six of the most serious crimes in the nation and account for nearly one-half of the arrests for arson and about one-quarter of the arrests for robbery, burglary, lar- ceny-theft, motor-vehicle theft, and property crimes (see Figure 5.2). Once arrested, many youths are then processed through the juvenile justice system.

Juveniles and Community Corrections

accountability

decarceration

deinstitutionalization

diversion

drug courts

Fourteenth

Amendment

juvenile court

parens patriae

selective incapacitation

status offender

waiver

Key terms

F O S T E R , C E D R I C 1 6 9 2 T S

C h a p t e r 5 : Juveniles and Community Corrections118

0 10 20 30 40 50

Property crimes

Violent crimes

All arrests

Murder

Aggravated assault

Forcible rape

Robbery

Larceny-theft

Burglary

Motor Vehicle Theft

Arson

Figure 5.2 Of total arrest in 2008, percent of arrests for juveniles. Source: Federal Bureau of Investigation (2009).

Figure 5.1 Crime index in the United States, 1998–2008. Source: Federal Bureau of Investigation (2009).

0

1

2

3

4

5

6

1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

Crime Index Rate per 100,000

Thousands

F O S T E R , C E D R I C 1 6 9 2 T S

The Juvenile Crime Problem 119

However, when arrests for juveniles are compared to those for adults over the last 20 years, the percentage of crimes committed by juveniles has been declining (see Table 5.1).

Much of the juvenile crime in the 1980s and early 1990s was due to the emer- gence of crack cocaine, juvenile gangs, and violence as major aspects of gang culture (Allen & Simonsen, 2001). These crime issues and changes caused the society as a whole to rethink rehabilitation, to advocate “get tough” approaches, to waiver in their acceptance of juvenile courts, and to bind juveniles over for trial in adult courts. Fortunately, most juvenile offenders who come to the attention of the juvenile court will receive treatment and noncustodial dispo- sitions. As was the case with adult offenders, the development of community corrections has led to probation, currently the most frequently used disposi- tion for juvenile offenders.

Probation for juvenile offenders is defined as a legal status created by a court of juvenile jurisdiction. It usually involves (President’s Commission, 1967:130):

1. A judicial finding that the behavior of the child has been such to bring him within the purview of the court

2. The imposition of conditions upon his continued freedom 3. The provision of means for helping him meet those conditions and

for determining the degree to which he meets them

table 5.1 Percentage of Juvenile Arrests (under 18) among All Arrests, 2000, 2004, and 2008

Offense 2000 2004 2008

Total 17 15 15

Murder 9 8 10

Forcible rape 16 17 15

Robbery 25 22 27

Aggravated assault 14 14 13

Burglary 33 28 27

Larceny-theft 31 28 26

Motor vehicle theft 34 26 25

Arson 53 52 47

Violent crimes 16 15 16

Property crimes 32 28 26

Source: Federal Bureau of Investigation (2009).

F O S T E R , C E D R I C 1 6 9 2 T S

C h a p t e r 5 : Juveniles and Community Corrections120

Probation thus implies more than indiscriminately giving the child “another chance.” Its central thrust is to give him or her positive assistance in adjustment in the free community.

historiCal baCKground The historical precursors of juvenile probation are as generally outlined earlier. The legal underpinnings of modern juvenile probation were estab- lished in England during the early Middle Ages, under the principle of parens patriae: “The King, being father of His country, must protect the welfare of the children.”

As with adult probation, John Augustus is viewed as the “father of juvenile probation,” as many of his charges were female juveniles in trouble with the law. His work contributed to development of the first visiting probation agent systems in Massachusetts (1869) and passage of the first enabling legislation establishing probation for juveniles (1878). In the same era, the Society for the Prevention of Cruelty to Children (1875) was established. Their proposed pol- icies and activism contributed directly to the first juvenile court in America spe- cifically set up to address the care, treatment, and welfare of juvenile offenders: the Cook County (Chicago), Illinois, juvenile court in 1899.

The Cook County juvenile court emerged from the concerns of a group of compassionate, humanitarian, and wealthy women in Chicago who wished each child to receive the care, custody, and treatment as their natural par- ents should have provided (Lindner & Savarese, 1984). The juvenile court was one project devised to attain these objectives1 and utilized individual- ized treatment based on extensive diagnosis of the child’s personality and needs, with the judge serving as a counselor to the patient (juvenile). It was

Juvenile probation is the oldest and most widely used vehicle through which a range of court- ordered services is rendered. Probation may be used at the “front end” of the juvenile justice system for first-time, low-risk offenders or at the “back end” as an alternative to institutional confinement for more serious offenders. In some cases, probation may be voluntary, in which the youth agrees to comply with a period of informal probation in lieu of formal adjudication. More often, once adjudicated and formally ordered to a term of probation, the juvenile must submit to the probation conditions established by the court.

box 5.1 Juvenile probation

Source: Office of Juvenile Justice and Delinquency Prevention (1996).

1Chicago courts continue to innovate to handle juvenile offenders. See U.S. Bureau of Justice Statistics (1994). For a critical view of the Illinois juvenile justice system, see Berger (1994). See also Geties (2000).

F O S T E R , C E D R I C 1 6 9 2 T S

Historical Background 121

widely argued that the juvenile court would safeguard presumed supercon- stitutional rights2 (the child would receive more than his or her just deserts) and avoid the stigma of criminal conviction through informal court proceed- ings based on benevolent attention, understanding the juvenile, humanitar- ian intervention, solicitous care, and regenerative and restorative3 treatment. To attain these objectives, procedural safeguards guaranteed under the U.S. Constitution were abandoned; the focus was on the child, not the deed. Box 5.2 contains three selected Amendments to the U.S. Constitution that pertain to rights guaranteed to adults.

Juvenile court proceedings were informal, conducted in the absence of legal counsel, closed to the public, and individualized to maximize guidance and outcome. To protect and serve the “best interests of the child,” records were confidential. Legal challenges were rare.

Juvenile courts were established quickly throughout the various states, federal government, and Puerto Rico. By 1927, all but two states had enacted enabling legislation establishing both juvenile court and proba- tion. The theoretical assumption of juvenile probation was that provid- ing guidance, counseling, resources, and supervision would assist low-risk juveniles to adapt to constructive living, thus avoiding the necessity of institutionalization.

2Critics argue that this has not happened. See Feld (1993); and Getis (2000). 3Umbreit (1994) See also Umbreit (1995); and Umbreit and Vos (2000).

Fourth amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describ- ing the place to be searched, and the person or things to be seized.

Fifth amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless a presentment or indictment of a Grand Jury, except in cases arising in land or naval forces, or the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor to be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

sixth amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state or district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and the cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

box 5.2 seleCted amendments to the u.s. Constitution

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C h a p t e r 5 : Juveniles and Community Corrections122

The primary goals of probation became to assist juveniles in dealing with their individual problems and social environments. Resolving underlying causes of the youthful offenders would permit their reintegration into the community. It was argued that probation, rather than incarceration, should be the disposi- tion of choice, because

1. Probation provides for community safety while permitting the youthful offender to remain in the community for reintegration purposes.

2. Institutionalization leads to prisonization, the process of learning the norm, and culture of institutional living (Clemmer, 1940). This decreases the ability of the juvenile to function as a law-abiding citizen when released, thus leading to further involvement as an adult offender.4

3. The stigma of incarceration is avoided (Schur, 1971). 4. The negative labeling effects of being treated as a criminal are avoided. 5. Reintegration is more likely if existing community resources are used

and the youth continues to engage in social and familial support systems (family, school, peers, extracurricular activities, employment, friends, etc.).

6. Probation is less expensive than incarceration, arguably more humanitarian, and is at least as effective in reducing further delinquent behavior as is institutionalization.5

The “child saving movement” underlying the development of the juvenile court is clearly seen here.6

the legal rights oF Juveniles It is obvious that the juvenile court, as it developed over the twentieth cen- tury, addressed juvenile offenders under civil rather than criminal procedures (civil suits deal with individual wrongs, whereas criminal prosecutions involve public wrongs). The most important objective of the original creators of the juvenile court was to create a separate court system for delinquent, dependent,

4The perceived relationship between juvenile delinquency and adult criminality has been seriously challenged by recent research. Arguing that evidence is not sufficient to establish accurate predictions about whether juvenile delinquents would eventually become adult offenders, Lyle Shannon also found that the relationship that does exist can, in large part, be explained by the effects of processes within the juvenile and criminal justice systems, as well as the continued delinquent behavior of the juvenile. See Shannon (1982). 5See Solomon and Klein (1983). 6Not all scholars agree that the moving force behind early juvenile court development was benevolent. For example, A.M. Platt believes that the rationale for saving youths was part of a larger social movement that attempted to strengthen the position of corporate capitalism in the United States. He argues that the juvenile court was a means of preserving the existing class system. See Platt (1977).

F O S T E R , C E D R I C 1 6 9 2 T S

The Legal Rights of Juveniles 123

and neglected children. Following the doctrine of parens patriae, the juvenile court system suspended or ignored the legal rights constitutionally guaran- teed to all citizens: the right to trial and against self-incrimination and other rights. Constitutional rights were thought unnecessary for juveniles, as the court would focus on and uphold the best interests of a child in a civil setting. Many juvenile judges and child advocates perceived inequity and attempted to provide constitutional safeguards. Beginning in the 1960s, questions about juvenile court proceeding fairness and the constitutionally guaranteed rights of juveniles were brought to the U.S. Supreme Court. Significant changes were made. It is necessary to review those decisions to comprehend their impact on the juvenile justice system, especially contemporary juvenile probation.

Kent v. United States

In 1966, the U.S. Supreme Court was asked to consider the issue of the transfer (“waiver”) of a juvenile to the criminal court system.7 The issue was the legis- lative waiver of the juvenile court procedures (Grisso & Schwartz, 2000). The court stated:

There is much evidence that some juvenile courts . . . lack the personnel, facilities, and the techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that here may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children (Kent v. United States, 1966).

This case portended more important issues on which the court was asked to rule (Merlo, Benekos, & Cook, 1997).

In re Gault

In 1967, the court decided its first major issue in the area of juvenile court pro- cedures. In Arizona, Gerald Gault, then age 16, allegedly telephoned a neighbor woman and used obscene phrases and words. The use of such language over the telephone violated an Arizona statute. Gerald Gault was subsequently adjudicated a juvenile delinquent after a proceeding in which he was denied basic procedural safeguards otherwise guaranteed to any adult. This landmark decision8 categorically granted the following to all juveniles charged with delinquent acts that might result in such grievous harm as commitment to a correctional institution:

7Lee (1994). See also Jenson and Metzger (1994); and Merlo et al. (1997). 8In re Gault, 387 U.S. 1 (1967). See also Sanborn (1994b); and Manfredi (1998).

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1. Right to know the nature of the charges against them, to prepare for trial

2. Right to counsel 3. Right against self-incrimination 4. Right to confront and cross-examine accusers and witnesses

The Gault decision not only returned procedural rights to juveniles, it also ended the presumption that juvenile courts were beyond the purview and scope of due process protections (Sanborn, 1994a).9

In re Winship

This 1970 decision further defined the rights of juveniles. Proof used in a court finding of delinquency must show “beyond a reasonable doubt” that the juve- nile committed the alleged delinquent act (Sanborn, 1994b), the same proof standard used for adults in criminal trials. The court specifically found unper- suasive the argument that juvenile proceedings were noncriminal and intended to benefit the child (In re Winship, 1970).10 Currently, juveniles in juvenile court do not have the constitutional right to trial by jury (McKeiver v. Pennsylvania, 1971), although some states have extended this right to juveniles.

These three major decisions by the U.S. Supreme Court created the due process model for the juvenile court. The McKeiver decision seemed to indicate that the court was moving away from increased rights for juveniles, but in 1975 the court ruled in Breed v. Jones that once tried as a juvenile, a person cannot be tried as an adult on the same charges.11 In 1979 (Fare v. Michael C.), the court ruled on interrogation and indicated that a child cannot voluntarily waive his or her privilege against self-incrimination without first speaking to his or her parents and without first consulting an attorney.12 In 1984, the court distinctly departed from the trend toward increased juvenile rights by reaffirming parens patriae (Schall v. Martin, 1984). As Allen and Simonsen (1998:643) note:

As a result of Supreme Court cases, the juvenile court is now basically a court of law. . . .

9See also Sanborn (1994a); and Feld (1999). 10Historical data identifying main sources of the growth of juvenile prosecutions in London Court (1790-1820) can be found in King and Noel (1994). 11This would be a grievous case of double jeopardy. See also Sanborn (1994a). 12In Fare v. Michael C. (1979), a juvenile murder suspect consented to interrogation after he was denied the opportunity to consult with his probation officer. The U.S. Supreme Court ruled that there is no constitutional mandate to allow a suspect to speak with his or her probation officer. The court indicated that the trial court judge should take into consideration the totality of the circumstances of the youth’s waiver of his or her rights. Factors such as age, maturity, intelligence, and experience should be taken into consideration.

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The Legal Rights of Juveniles 125

Thus far, the procedural rights guaranteed to a juvenile in court proceedings are as follows:

1. The right to adequate notice of charges against him or her; 2. The right to counsel and to have counsel provided if the child is indigent; 3. The right of confrontation and cross-examination of witnesses; 4. The right to refuse to do anything that would be self-incriminatory; 5. The right to a judicial hearing, with counsel, prior to transfer of a

juvenile to an adult court; and 6. The right to be considered innocent until proven guilty beyond a

reasonable doubt.

Juvenile probation, as seen in court proceedings and used in juvenile courts, is currently vacillating between these two models (Rogers & Mays, 1987). On the one hand, we see liberal reformers who call for increased procedural and legal safeguards for juveniles; on the other hand, we have a conservative movement that focuses on the victim (Torbert, Gable, & Hurst, 1996) and seriousness of the crime (Clear & Cole, 1990).13 As one conservative put it, “You are just as dead if a 15-year-old shoots you as you are if a 25-year-old does.”14

13Berger (1994). Cohn is more pessimistic: Cohn (1994). 14See Sheley, McGee, Wright (1995). Bastian and Taylor (1994); and Rapp-Paglicci and Wodarski (2000).

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C h a p t e r 5 : Juveniles and Community Corrections126

CritiCisms oF the Juvenile Court and PARENS PATRIAE Criticisms of and disenchantment with the parens patriae juvenile court and its procedures (Moore & Wakeling, 1997) have been voiced by such groups as the American Bar Association, the judiciary, the federal government, practi- tioners, private nonprofit organizations, researchers, and voluntary organiza- tions, among others. Such efforts, when coupled with decisions by the U.S. Supreme Court, have created major changes in the juvenile justice system and particularly diversion of offenders, status offenders, decriminalization, and deinstitutionalization. We will see these changes as we review the contempo- rary juvenile justice system and juveniles in community corrections.

the Contemporary Juvenile JustiCe sCene Juvenile Court processing

Although there are some similarities between adult and juvenile systems, there are also some fundamental differences. Figure 5.3 shows a simplified ver- sion of case flow through the juvenile justice system. Figure 5.4 shows ages of juveniles upon referral to juvenile court. As has been the pattern for many decades, the highest rate was for 16 year olds, followed closely by 15 and then 17 year olds. Very few were under age 13.15 Figure 5.5 shows the referral

15Office of Juvenile Justice and Delinquency Prevention (1998).

Figure 5.3 The juvenile justice system flowchart. Source: Office of Juvenile Justice and Delinquency Prevention (2001).

Criminal justice systemDiversion

Statutory exclusionNon-law

enforcement services

Law enforcement

Diversion Detention

Diversion Dismissal

Prosecutorial discretion

Transfer to juvenile

court Judicial waiver

Prosecution Juvenile

court records

Informal processing/diversion

Formal processing

Adjudication Revocation

Revocation

Release

Aftercare

Residential placement

Probation or other non- residential disposition

F O S T E R , C E D R I C 1 6 9 2 T S

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offense for males and female offenders in 2003. Between 1980 and 2007, the juvenile arrest rate for simple assaults increased dramatically for both males and females. In addition, between 1994 and 2007, juvenile arrests for drug abuse violations increased more for females than for males. In general, female involve- ment in the juvenile justice system continues on a steady course upward.

Figure 5.4 Age at referral to juvenile court, 2007. Source: Sickmund, Sladky, and Kang (2010).

0

100

200

300

400

500

<12 12 13 14 15 16 17

Number of youthThousands

Figure 5.5 Referral offense for males and females, 2007. Source: Sickmund et al. (2010).

0

100

200

300

400

500

Personal Property Drug Public Order

Male FemaleThousands

F O S T E R , C E D R I C 1 6 9 2 T S

C h a p t e r 5 : Juveniles and Community Corrections128

More than half of those arrested for running away from home were female16 (see Figure 5.6). Curfew violations and running away from home are viewed as status offenses that can only be committed by juveniles.

Juvenile court processing of delinquency cases can be handled in several ways. At intake, referred cases are often screened by an intake officer who might decide to dismiss the case for lack of legal sufficiency or to resolve the matter formally or informally. Informal dispositions could include a voluntary refer- ral to a social agency for services, informal probation, or payment of fines or restitution. Formally handled cases are petitioned to juvenile court and sched- uled to an adjudication (or waiver) hearing. Of those youths referred to juve- nile court in 2005, about 58 percent were counseled and then released. The remaining 42 percent were referred to juvenile court jurisdiction, and of those about one in 138 were waived to criminal or adult court.

A status offender is generally a juvenile who has come into contact with juvenile authorities based on conduct that is an offense only when committed by a juvenile. A status offense is conduct that would not be defined as a criminal act when committed by an adult (Maxson & Klein, 1997).

box 5.3 status oFFenders

Figure 5.6 Arrests for runaway: 1999 and 2008. Source: Federal Bureau of Investigation (2009).

0

20

40

60

Male Female

1999 2008Thousands

16Office of Juvenile Justice and Delinquency Prevention (1998).

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The Contemporary Juvenile Justice Scene 129

At the disposition hearing, the juvenile court judge determines the more appropriate sanction or set of sanctions, generally after reviewing a predis- position (“presentence”) report prepared by a probation department. Here the range of options available to the judge is wide and typically includes commitment to an institution, placement in a foster or group home or other residential facility, probation, referral to an outside agency, day treatment or attendance center, mental health program, community correctional cen- ter (halfway house), or imposition of a fine, restitution, or community ser- vice. As shown in Figure 5.7, probation is the sentence most often imposed. Probation services (for regular or intensive probation) must cope with heavy caseloads every year. For some youths, out-of-home placement can occur. Residential placement could be in a public or private facility, and Figure 5.8

There are an estimated 18,000 juvenile probation professionals impacting the lives of juveniles in the United States. Eighty-five percent of these professionals are involved in the delivery of basic intake, investigation, and supervision services at the line officer level; the remaining 15 percent are involved in the administration of probation offices or in the management of probation staff.

box 5.4 Juvenile probation oFFiCers

Source: Office of Juvenile Justice and Delinquency Prevention (1996).

Figure 5.7 Placement of juveniles, 1987–2007. Source: Livsey (2010).

0

100

19 87

200

300

400

500

600

700

800

N u

m b

e r

o f

ca se

s

Thousands

Probation

Other sanctions

Residential placement

19 92

20 02

19 97

20 07

F O S T E R , C E D R I C 1 6 9 2 T S

C h a p t e r 5 : Juveniles and Community Corrections130

provides details on juveniles in facilities intended to hold juvenile offenders. In 2007, there were more than 148,600 youths in residential facilities. Most of these juveniles resided in public facilities owned and operated exclusively by state or local governmental agencies. Private facilities are those owned and operated by various nongovernmental organizations that provide services to juvenile offenders. It should be noted that an out-of-home placement can be a very traumatic experience for a juvenile, and suicide is the most common cause of death for youths held in custody (see Figure 5.9).

Figure 5.8 Residential placement for juvenile offenders in 2006. Source: Sickmund, Sladky, and Kang (2008).

0

10

20

30

40

50

60

70

80

90

100

Public Private Total

Thousands

Figure 5.9 Cause of death for juveniles in custody in 2006. Source: Hockenberry, Sickmund, and Sladky (2009).

Suicide Accident Illness Homicide

Number 4 10 1 0

0

5

10

15

F O S T E R , C E D R I C 1 6 9 2 T S

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Juveniles Waived to Criminal Court

All states set an upper age jurisdiction for juvenile courts, and it should be noted that all states have legal mechanisms that, under certain circumstances, permit youths to be tried in criminal court as if they were adults. These mechanisms were developed primarily in the last part of the twentieth century (Feld, 2001) and are major changes from previous philosophical bases of juvenile court proceedings.

Such changes were brought about in part by Kent v. United States, a case in which the U.S. Supreme Court began to require due process in juvenile waivers and lawmakers tried to construct simple and expedient alternatives to juvenile waiver hearings. Mechanisms included automatic exclusion based on specific age or offense criteria, authorization of prosecutors to direct-file juvenile cases in criminal court, or empowering judges to sentence directly to adult correc- tional institutions or blend dispositions by imposing a juvenile institutional commitment followed by commitment to adult criminal facilities (Ullman, 2000). These changes were fueled in part by alarm over an increase in juve- nile violence, an expanding caseload of juvenile drug offenders, and judicial assessments that many adjudicated delinquents were no longer amenable to treatment (Snyder, Sickmund, & Poe-Yamagata, 2000). In addition, offense exclusion provided a politically attractive strategy for “get tough” public offi- cials who proposed to “crack down” on increased youth crime. Figure 5.10 shows juveniles waived to criminal court from 1993 through 2007, the most

Figure 5.10 Number of juveniles waived to adult court, 1993–2007. Source: Sickmund et al. (2010).

0

2

4

6

8

10

12

14

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Thousands

F O S T E R , C E D R I C 1 6 9 2 T S

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recent available picture. Offenses for which waivers were sought included offenses against the person and property, drug law violations, and public order. Waivers have generally decreased since 1994, when they peaked.

Advocates of juvenile waiver mechanisms asserted that juvenile court sanctions and service constitute neither just nor effective responses to predatory and savvy youthful offenders and that criminal prosecution would ensure more proportionate punishment, more effective deterrence, and greater incapacita- tion. It was believed that by focusing on the offense rather than the offender, public safety would be strengthened and recidivism would be reduced. It was also believed that habitually violent juveniles belonging to gangs, abusing substances, and wielding guns should be arrested, charged as adults, and sen- tenced to prisons. In sum, authority was shifted from the judiciary to the pros- ecutor, although some states increased the authority of both. The correctional objective was selective incapacitation. It is important to note that the number of both juvenile arrests and cases waived to criminal court have declined since 1994 (Puzzanchera, 2010), reflecting the similar trend of decreasing involve- ment of juveniles in lives of crime and violence.

Studies of the effectiveness of waiver programs are ongoing. Risler, Sweatman, and Nackerud (1998) examined the impact of Georgia’s waiver legislation and found no significant reduction in the mean arrest rates (no deterrence) and sug- gested that such laws do not reduce serious violent crime. Redding (1999) argues that while juveniles are more likely to receive a longer and more serious sen- tence in criminal court, they may actually serve less time than they would in a juvenile facility. He found that criminal court adjudication generally produces

This doctrine of isolating the juvenile offender, or “social disablement,” proposes a policy of incarcerating those whose criminal behavior is so damaging or probable that nothing short of isolation will prevent recidivism. This “nothing-else-works” approach would require correctly identifying those offenders who would be eligible for long-term incarceration and diverting others into correctional alternatives. Thus, we would be able to make maximum effective use of detention cells, a scarce resource, to protect society from the depredations of such dangerous and repetitive offenders. Current correctional technology does not permit correctly identifying those who require inca- pacitation. Rather, the evidence is that we would probably incarcerate numerous nondanger- ous juveniles (a “false-positive” problem). However, there is evidence of effectiveness of some prediction scales to identify low-rate juvenile offenders for selective early release (Hayes & Geerken, 1997). This would be selective “decapacitation!” Whatever benefits might accrue to this sentencing doctrine have thus far eluded corrections.However, chronic repeat offenders (those with five or more arrests by age 18), who make up a very small proportion of all offenders, commit a very high proportion of all crimes. More research into correct classification of juvenile and adult offenders is needed.

box 5.5 seleCtive inCapaCitation

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higher recidivism rates for most offenders and that juveniles incarcerated in adult facilities receive fewer age-appropriate rehabilitative, medical, mental health, and educational services. Bishop (2000) reviewed the effects of juvenile waiver and concluded that expansive transfer policies send many minor and nonthreatening offenders to the adult system, exacerbate racial disparities (McNulty, 1996), and move youths with special and severe needs into correctional systems that are ill- prepared to provide treatment. Bishop also argued that creditable evidence shows that prosecution and punishment in the adult system increase recidivism and expose young people to heightened vulnerability and to potentially damaging experiences and penal outcomes. It will be interesting to observe additional out- come studies on judicial waiver legislation and practices.

Community Corrections

It should be obvious that the juvenile court makes decisions about youthful offenders based on assessments of needs, risks, and rehabilitation. Whether work- ing on an informal basis in the smallest juvenile court or using structured predic- tion and actuarial instruments that are combined with clinical experience, as in the most sophisticated and largest juvenile settings, the juvenile justice system is winnowing cases, attempting to match sanctions with needs and control. Allen and Simonsen (2001:95) refer to the process as “filtering” offenders into sanction options that address individual needs, community safety, and reintegration.

In the juvenile court, disposition decisions are based on individual and social factors, offense severity, and youths’ offense history. The dispositional philos- ophy includes a significant rehabilitation emphasis as well as many disposi- tional options that cover a wider range of community-based and residential services. Dispositional orders can be and often are directed to people other than the offender (family members, in particular), and dispositions may be indeterminate, based on progress toward correctional goals and treatment objectives. In some cases, authority of the juvenile court can extend to majority age (as defined by individual states).

As fascinating as “detention” and “incarceration” might be and are certainly nec- essary for some offender control, our focus here is on prevention, alternatives to incarceration, probation, and a variety of programs designed to divert juveniles from residential settings and provide treatment and control in the community.

Juvenile courts sometimes hold youths in secure detention facilities during court processing. The court may decide detention is necessary to protect the community from the juvenile’s behav- ior, ensure a juvenile’s appearance at subsequent court hearings, or secure the juvenile’s own safety. Detention may be also ordered for the purpose of evaluating the juvenile. About one in five of all delinquency cases are detained. Property offenders are least likely to involve detention.

box 5.6 detention

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Juvenile probation

Probation is the oldest and most widely used community-based corrections program. During probation, the juvenile usually remains in the commu- nity and can continue such normal activities as attending school or work. In exchange for this freedom, the juvenile must comply with a number of condi- tions. This compliance could be voluntary as in informal probation in lieu of formal adjudication, but it may also be mandatory. If the disposition results from a formal adjudication and probation, the juvenile must comply with con- ditions of probation as imposed by the court. Slightly more than one-half of the juvenile probation dispositions are informal (enacted without formal court adjudication or court order).

A juvenile might be required to meet regularly with a probation officer or supervisor, attend counseling, observe a strict curfew schedule, and/or com- plete a specified period of community service or even restitution. Such orders also imply the authority of the court to revoke probation should the juvenile violate conditions. If there is a revocation hearing, the court may reconsider its original disposition, impose additional conditions, or impose such severe alternatives as placement in a state youth authority.

At juvenile probation intake, juveniles are frequently assigned to caseloads based on their identified “risks” and “needs.” High-risk youths who may be in danger of becoming chronic offenders may be assigned to special pro- grams with strict supervision and individually designed treatment programs, including involvement of the youths’ families in court-ordered activity (e.g., parenting classes). Treatment might also include counseling on alcohol and other drug abuse, mental health interventions, employment preparation and job placement, community service projects, and afternoon programs (see Box 5.7). Such programs seek to reduce the number of chronic recidivists through a coordinated program of aggressive early intervention and treatment.

The field of probation is staffed by dedicated individuals who believe that young persons who break the law can change their behavior in favor of law-abiding activities. Probation depart- ments cannot, however, limit their intake of probationers such as private providers or state training schools, which routinely operate over capacity and often have caps on admissions. In that sense, probation is the “catch basin” of the juvenile justice system and is being confronted with increasing and more dangerous caseloads.

Source: Office of Juvenile Justice and Delinquency Prevention (1996).

box 5.7 Challenges to probation

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Investigation and diagnosis of other juveniles, usually at the intake or predis- position report level, may suggest treatment needs for mental health care, drug- abusing behavior (of juveniles and their families), or other precipitating factors contributing to the acting-out behavior of juveniles before the court. Some are diverted from further court processing, and others are placed in residential facil- ities, frequently run by private-sector service providers. Probation officers are sometimes required to supervise these juveniles. We first examine diversion programs and then aftercare (“parole”) of juveniles exiting residential settings.

diversion of Juveniles

The Gault, Kent, and Winship cases defined those constitutionally guaranteed rights that must be accorded every juvenile and formed the basis of the due process model noted earlier. This model requires adherence to minimally guar- anteed legal procedures,17 a voluntary and helping relationship, and the least restrictive environment necessary to treat the juvenile. It also requires a dem- onstrated need for detention18 and, absent this, a mandatory noncommitment to an institution (del Carmen, 1984, 1998).

The question of whether incarcerated juveniles have a mandatory right to treat- ment has been addressed in several federal cases. The most significant of these was Nelson v. Heyne (1974), which upheld a categorical right to treatment for confined juveniles under the due process clause of the Fourteenth Amendment. The appellate court stated that the parens patriae principle of the juvenile court could be justified only if committed delinquent youth receive treatment:

. . . the right to treatment includes the right to minimum acceptable standards of care and treatment for juveniles and the right to individualized care and treatment. Because children differ in their needs for rehabilitation, individual need for treatment will differ. When a state assumes the place of a juvenile’s parents, it assumes as well the parental duties, and its treatments of its juveniles should, so far as can be reasonably required, be what proper parental care would provide. Without a program of individual treatment, the result may be that the juveniles will not be treated, but warehoused (Nelson v. Heyne).

Despite the implications of Nelson, a nationwide survey of state, local, and pri- vately run juvenile detention facilities found serious problem areas, ranging from inadequate living space and crowding to high numbers of injuries to con- fined juveniles through “alarmingly widespread” suicidal behavior.19

17Sanborn (1994a). 18Bazemore (1994). 19Abt Associates (1994).

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There appears to be no consensus on which youths are best served by resi- dential (vs. community) care, although one study found that very high-risk youths responded best to residential placement, whereas low- and moderate- risk youths were best served on probation (Lowenkamp & Latessa, 2005).

The due process model and the Nelson requirements have significantly con- tributed toward the diversion process of juveniles. Cost is another factor; the American Correctional Association (2001) reports the cost of one juvenile insti- tution as $34,600 and $110,200 for Minnesota and Pennsylvania, respectively. Allen, Latessa, Ponder, and Simonsen (2007:336–337) define diversion as

The official halting or suspension, at any legally prescribed processing point after a recorded justice system entry, of formal juvenile justice proceedings against an alleged offender, and referral of that person to a treatment or care program administered by a nonjustice agency or to a private agency. Sometimes no referral is given.

Diversion programs function to divert juveniles out of the juvenile justice sys- tem, encourage the use of existing correctional facilities and agencies for such offenders, and avoid formal contact with the juvenile court. These programs include remedial education programs,20 foster homes, group homes, commu- nity drug treatment,21 attendance centers,22 and local counseling facilities and centers. The effectiveness of such programs is not yet definitively documented but preliminary evaluation reports indicate high efficacy.

Drug Courts and Diversion

The predisposition report may have also discovered that youths, either status offenders or those who have committed offenses, are experimenting, abusing, or chemically dependent on controlled substances, pharmaceuticals prescribed for others but coming under the control of juveniles, or other illicit drugs. In an increasing number of jurisdictions, such youths are afforded access to individually tailored treatment programs under juvenile drug courts. There, a formidable array of specific services may be available and may address not only the juvenile but family, friends, and employers. Studies to date suggest that drug court participants have lower recidivism rates and are less likely than comparison groups to be arrested in any category of offense. Thus, drug courts not only reduce recidivism but also enhance public safety (see Latessa, Shaffer, & Lowenkamp, 2002; Koetzel-Shaffer, 2006).

20An example of this is Project READ, San Jose State University. 21Mauser, Van Stelle, and Paul Moberg (1994); and Sarre (1999). 22McDevitt, Domino, and Brown (1997).

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deinstitutionalization

The concept of deinstitutionalization, also known as decarceration, is recent; 1969 is considered its inception. In that year, Jerome Miller began deinstitu- tionalization of incarcerated juvenile offenders in Massachusetts. Asserting that the era of confinement of children in larger correctional facilities was over and that an era of more humane, decent, and community-based care for delinquents had begun, Miller closed the major juvenile institutions. Confined charges were placed in small homes, using other, already exist- ing community-based correctional programs and services (Sherrill, 1975a, 1975b).

Initial program evaluations found that the community-based juvenile group did worse in terms of recidivism (74% vs. 66%) than earlier juveniles23 processed through the correctional units (McCord & Sanchez, 1983). However, closer analysis of data revealed that when community-based programs were implemented prop- erly, recidivism rates were equal or slightly lower than the institutional group.

While no other state has fully followed Massachusetts’ lead, several have devel- oped smaller more community-based facilities. Utah, for instance, closed a 350-bed training school and placed the 290 youths in community-based programs modeled on Massachusetts’ program. Again, researchers concluded there was no evidence that public safety had been compromised. There was strong evidence that Utah saved considerable money when compared to past correctional practices (Krisberg, Austin, Joe, & Steele, 1987).

Source: National Drug Court Institute. www.ndci.org/courtfacts.htm

Juvenile drug courts are intensive treatment programs established within and supervised by juvenile courts to provide specialized services for eligible drug-involved youths and their fami- lies. Cases are assigned to a juvenile drug court docket based on criteria set by local officials to carry out the goals of the drug court program. Juvenile drug courts provide (1) intensive and continuous supervision over delinquency and status offense cases that involve substance-abusing juveniles and (2) coordinated and super- vised delivery of an array of support services necessary to address the problems that con- tribute to juvenile involvement in the justice system. Service areas include substance abuse treatment, mental health, primary care, family, and education. Since 1995, more than 140 juve- nile drug courts have been established in the United States, and more than 125 are currently being planned.

box 5.8 Juvenile drug Courts

23Similar finding emerged when Maryland’s Montrose Training School was closed. Gottfredson and Barton (1993).

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In 1995, Ohio began a program entitled RECLAIM Ohio (Reasoned and Equitable Community and Local Alternatives to Incarceration of Minors). This statewide initiative is designed to assist counties in providing commu- nity services to adjudicated juvenile offenders. Essentially, local juvenile courts are given an allocation of funds to use for community-based alternatives. In turn, they must pay for all youths who are incarcerated in a state institution from their allocation. Results indicated that they are successfully reducing the commitment rate of juveniles to state facilities. Figure 5.11 shows the num- ber of admissions to state facilities before and after the implementation of RECLAIM. As shown, there has been a significant reduction in commitments to state institutions within the Department of Youth Services. RECLAIM has also strengthened local juvenile courts; private-sector service providers increased their participation; and cooperation across prosecutor, court, and court services increased. Failure rates were not unusually high, and the percentage of youths

box 5.9 Costs and beneFits oF early Childhood intervention A series of small-scale programs attempted to assess the costs and benefits of early childhood (pre- natal through age 4) intervention, asking if early interventions targeted at disadvantaged children benefit participating children and their families, and might government funds invested early in the lives of children yield compensating decreases in later government expenditures?Peter Greenwood examined five of the most rigorously designed programs for younger children; programs had a matched control group that was assigned randomly at program onset. In particular, he found: n IQ differences between program participants and control group members approached or

exceeded 10 points at the end of the program. n The difference in rates of special education and grade retention at age 15 exceeded 20

percent (Abecedarian project). n Participating children experienced 33 percent fewer emergency room visits through age

four than children in the control group (Elmira, NY Prenatal/Early Infancy Project). n Mothers were on welfare 33 percent less time in the same Elmira Project. n Earnings at age 27 were 60 percent higher among program participants (Perry Preschool

Program). n Benefits outweighed costs and savings were $25,000 versus $12,000 for each family

participating in the Perry program, and $24,000 versus $6000 for each higher-risk family participating in the Elmira program.

In addition, other advantages to program participants (relative to those in the control group) were decreased criminal activity, improved educational outcomes, and improved health-related indicators such as decreased child abuse, improved maternal reproductive health, and reduced substance abuse. Carefully targeted early childhood interventions can yield measurable benefits, and some of those benefits endure for some time after the program has ended.

Source: Greenwood (1999).

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participating in RECLAIM who were eventually committed to state institutions has remained low. Project RECLAIM is a constructive example of coordination and use of community corrections to avoid sending youths to secure institu- tions (Lowenkamp & Latessa, 2005).

Those favoring placement of juveniles in secure institutions cite the public’s fear of violent youth crime as a rationale for incarcerating young offenders. They also argue that “getting those thugs off the streets” prevents further offending (selective incapacitation), provides the structure and control necessary for treatment and educational programs (rehabilitation), and prevents other juveniles from com- mitting serious offenses (general deterrence). Deinstitutionalization advocates counter that many incarcerated juveniles were not committed for serious vio- lent offenses, institutionalization is costly, the deterrence evidence is almost nonexistent, the evidence of effective rehabilitation in correctional facilities is weak, and community alternatives are just as effective. Finally, opponents of institutionalization argue that local community alternatives, when coupled with child advocates, can substantially reduce commitments to state juvenile correctional institutions.24

24Macallair (1994). See also Macallair (1993).

Figure 5.11 Department of Youth Services felony admissions FY 1991–2007. Source: Ohio Department of Youth Services (2010).

0

500

1000

1500

2000

2500

3000

3500

1991 1993 1995 1997 1999 2001 2003 2005 2007

Reclaim Began Statewide 1995

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aftercare and Community Corrections

The majority of juveniles committed to state-managed residential facilities and training schools are serious, chronic offenders. They will eventually be released to the community through parole and onto aftercare. Previous research has shown that recidivism rates among juvenile parolees are unacceptably high, ranging from 55 to 75 percent (Krisberg, Austin, & Steele, 1991). A large per- centage of previously incarcerated juvenile offenders continue their crimi- nal involvement into adulthood. A major portion of the problem is that an already overburdened juvenile corrections and aftercare system is increas- ingly likely to face the kind of youths whom the system had either ignored or failed: serious, chronic offenders. What is needed with this population are effective intervention, intensive supervision and services, a focus on reintegra- tion while incarcerated, and a gradual transition process that utilizes commu- nity resources and social networks. This includes aftercare planning, parole officer contact during the institutional phase, and community-based providers working within the residential setting. The latter would include multifamily counseling and life skills services, supervised trips to the community, overnight or weekend home passes, substance abuse services, and money management skills. Virginia, Colorado, and Nevada are implementing such efforts (Office of Juvenile Justice and Delinquency Prevention, 2000).

the Future oF Juvenile probation and Community CorreCtions Several conclusions are suggested by this review of current trends and develop- ments. It is obvious that juvenile justice and juvenile probation are in a period of rapid change and that juvenile policy is vacillating between the old parens patriae and the newer due process model. Further, the roles and functions of the juvenile probation officer are undergoing change and enlargement. The various state juvenile systems and jurisdictions are moving toward diversion, waiver of juvenile offenders into the criminal justice arena, removal of the status offender from juvenile court jurisdiction, and deinstitutionalization of juve- niles. In addition, faced with legal constraints, requirements for treatment of incarcerated youths, and high costs of juvenile institutions, probation officers are facing emerging and divergent demands. Finally, to divert and refer juve- niles to social services, there must be increased community and private ser- vice programs and agencies to provide local community services to juveniles. States can encourage these developments with subsidies and legislation that enable local and county community corrections (Harris, 1996). Other chap- ters explore privatization of juvenile services; technologies applied to juvenile

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supervision (electronic monitoring, classification devices, specialized service providers, and so on); and newer supervision strategies, such as house arrest, day attendance centers, intensive supervised probation, and specialized casel- oads. Reintegrative and restorative approaches are being implemented across the nation, including restitution, victim–offender mediation, compensation, and community work orders. Issues surrounding crowding, changing faces of probation clients, and training needs can be found in later chapters.

Because juvenile probation services, as agents of court supervision for young offenders, depend on the philosophy of the juvenile court, court administra- tors, and referral agencies, a patchwork of temporizing procedures, responses, and programs is emerging. Some federal funding of coordinated efforts sug- gests that it is possible to implement intensive community-based aftercare programs. Yet with a shortfall in resources facing almost every court agency, innovation and strategic planning are required. There is no quick fix for the quandary of juvenile probation and corrections, and we conclude this section by pointing out that new demands will continue to emerge.

Dean Haumschilt is a parole agent in the California Division of Juvenile Justice (DJJ)—formerly the California Youth Authority (CYA)—and concerned with responsibility to the public after a ward’s parole. He oversees an institutional treatment group preparing juvenile charges for return to the community and for keeping the public safe. The Impact on Victims program requires wards to make changes in their belief system and behavior so they never hurt anyone else. The program attempts to neutralize delinquent, victimizing, or gang type of attitudes, values, and behavior. More than the minimum number of hours in program are required. Wards must incorporate what they learn about their victims, their hurts, fears, nightmares, and wanting some assurance that the ward who victimized them will not victimize them again (or someone else). Role-playing, modeling, behavior change, and cognitive therapy are part of the program. In the end, the group resource leader assesses the ward and asks

Has he or she demonstrated a 180-degree turn in behavior and values: dress, attitude, associations, speech, body language, commitment to change, and empathy? Change is measured by final written examination as well as oral interview and observation.

If the answer is “no,” leaders recommend that wards retake the course and continue to get time additions until either they change their values and the way they think and behave or they run

out of DJJ jurisdiction. Wards must become responsible for their behavior.

Source: Haumschilt (2001).

box 5.10 aCCountability and parole

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summary Our examination of the development of juvenile probation identified those his- torical events of the nineteenth and twentieth century that contributed first to the development of the juvenile court and then to a reexamination of the legal rights of juveniles. Beginning with the first juvenile court in Chicago (1899), the constitutionally guaranteed rights of juveniles were ignored in favor of a benevolent venue intended to provide each child such care, treatment, and welfare as should have been provided by natural parents.

By the 1960s, child advocates and concerned organizations began to ask if the juvenile court was running rough-shod over the rights of its charges while, at the same time, perhaps not delivering on promised benefits. A series of U.S. Supreme Court decisions eventually reasserted such constitutionally guaran- teed protections as the right to trial, to remain silent, to present evidence on one’s own behalf, to question and challenge the evidence presented against the charge, and most other rights available to adults.

Three major changes emerged. First, many jurisdictions undertook deinstitution- alization, moving their charges from state-controlled institutions into community corrections. Second, the emergence of juvenile drug gangs and increased violence led to demands for more punishment, such as waiver to adult court to stand trial as adults and assumedly be punished more severely. Third, increasingly produc- tive efforts were made to marshal a coordinated network of social and treatment programs that would provide rehabilitative and reintegrative services to youths and their families. Evidence of effectiveness as indicated by research on program outcomes suggests that such a coordinated program can yield significant reduc- tions in juvenile delinquency, violence, and recidivism. The three major changes continue, and perhaps the best prediction of future directions in juvenile proba- tion would be that change will increase in speed and intensity. There is much work yet to be done to prevent delinquency and increase public safety.

revieW Questions 1. Why was probation established across the nation much earlier for

juveniles than for adult offenders? 2. Why should probation be the disposition of choice with juvenile

offenders? 3. Identify and describe three major court cases that have affected juveniles. 4. What is deinstitutionalization, and what state led the way in this

movement? 5. Argue the case for binding over serious juvenile offenders as adults;

against this practice. 6. How can public safety be enhanced with juvenile aftercare?

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7. Identify five major innovations in juvenile community corrections. 8. Can early childhood intervention reduce juvenile offending? 9. Do drug courts reduce recidivism? 10. How has juvenile probation changed in the past decade?

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Redding, R. (1999). Juvenile offenders in criminal court and adult prison. Juvenile and Family Court Journal, 50(1), 1–20.

Risler, E., Sweatman, T., & Nackerud, L. (1998). Evaluating the Georgia Legislative Waiver’s effec- tiveness in deterring juvenile crime. Research on Social Work Practice, 8(6), 657–667.

Rogers, J., & Mays, G. (1987). Juvenile delinquency and juvenile justice. New York: John Wiley.

Sanborn, J. (1994a). Constitutional problems of juvenile delinquency trials. Judicature, 78(2), 81–88.

Sanborn, J. (1994b). Remnants of parens patriae in the adjudicatory hearing. Crime & Delinquency, 40(4), 599–615.

Sarre, R. (1999). Destructuring and criminal justice reform. Current Issues in Criminal Justice, 10(3), 259–272.

Schall v. Martin. 467 U.S. 253, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984).

Schumaker, M., & Kurtz, G. (2000). The 8% solution. Thousand Oaks, CA: Sage.

Schur, E. (1971). Labeling deviant behavior: Its sociological implications. New York: Harper and Row.

Shannon, L. (1982). Assessing the relationship of adult career criminals to juvenile careers. Washington, DC: U.S. Government Printing Office.

Sheley, J., McGee, Z., & Wright, J. (1995). Weapons-related victimization in selected inner-city high school samples. Washington, DC: Bureau of Justice Statistics.

Sherrill, M. (1975a). Jerome miller: Does he have the answers . . .? Corrections Magazine, 1(2), 24–28.

Sherrill, M. (1975b). Harvard recidivism study. Corrections Magazine, 1(2), 21–23.

Sickmund, M., Sladky, A., & Kang, W. (2008). Census of juveniles in residential placement databook. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

Sickmund, M., Sladky, A., & Kang, W. (2010). Easy access to juvenile court statistics: 1985-2007. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

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Snyder, H., Sickmund, M., & Yamagata, E. (1996). Juvenile offenders and victims. Washington, DC: U.S. Office of Juvenile Justice and Delinquency Prevention.

Snyder, H., Sickmund, M., & Poe-Yamagata, E. (2000). Juvenile transfers to criminal court in the 1990s. Washington, DC: Office of Juvenile Justice and Delinquency Prevention.

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Torbert, P., Gable, R., & Hurst, H. (1996). State responses to serious and violent juvenile crime. Washington, DC: U.S. Office of Juvenile Justice and Delinquency Prevention.

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C h a p t e r 6

The most vivid disagreements over the matter of rights were caused by the ticket-of-leave system. There were only three ways in which the law might release a man from bondage. The first, though the rarest, was an absolute pardon from the governor, which restored him all rights includ- ing that of returning to England. The second was a conditional pardon, which gave the transported person citizenship within the colony but no right of return to England. The third was the ticket-of-leave.

—Robert Hughes

A couple was driving through the country one fall day when they came upon a large house with a sign hanging from the porch. The sign said: “Dr. E. Smith, Veterinarian and Taxidermist.” This seemed like an odd combination, so the couple drove closer. Under the name, it said: “Either way, you get your dog back.”

—Anonymous

Parole in America

American Prison

Association

conditional release

determinate sentence

deterrence

flopped

good-time credits

incapacitation

indeterminate sentence

mandatory release

mark system

pardon

parole

parole board

parole conditions

parole guidelines

parole revocation

penal colony

penitentiary

program credits

reformatory regime

retribution

selective

incapacitation

sentencing disparity

sentencing guidelines

transportation

Key terms

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the DeVeLOpmeNt OF parOLe The way prisoners are released has changed dramatically over the past few years (Solomon, 2006). Some are released by a parole board (about 22% in 2005), others finish their entire sentences and are released with no supervision (19%), and still others are given mandatory release with supervision (39%). We also know that parole is implemented differently from state to state. So what is parole, and how did we get to this point?

Parole is a correctional option that often evokes strong feelings. There are those who argue that it should be abolished entirely, whereas others believe that it provides men and women with an opportunity to demonstrate that they can reenter society and lead law-abiding and productive lives. Regardless of one’s position, parole is an important part of the American correctional sys- tem. Furthermore, because it is estimated that nearly 6,500,000 inmates are released to the community each year, many of whom will be under some form of correctional supervision, it is important that we understand the roots of parole and how it is granted.

Although the percentage of prisoners released on discretionary parole is at the lowest rate since the federal government began keeping track, parole remains a commonly used mechanism by which offenders may be released from a correctional institution after completion of a portion of the sentence (see Figure 6.1). Contemporary parole also includes the concepts of super- vision by state, release on condition of good behavior while in the com- munity, and return to prison for failing to abide by these conditions or for committing a new crime. As we shall see, earlier parole practices saw the development of these elements.

Figure 6.1 Adults exiting from prison by type of release: 2008. Source: Bureau of Justice Statistics, Unpublished data collected through the 2009 National Prisoner Statistics Program. Unpublished data delivered by Bureau of Justice Statistics upon special request in August 2010.

Expiration of sentence 28%

Other 7%

Parole board 22%

Mandatory parole 35%

Probation 7%

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the rOOts OF ameriCaN parOLe Parole from prison, like the prison itself, is primarily an American inno- vation.1 It emerged from a philosophical revolution and a resulting tradi- tion of penal reform established in the late eighteenth century in the newly formed United States. As with many other new ideas that emerged in early America, parole had its roots in the practices of English and European penal systems.

Early punishment for offenses were often what Langbein (1976:35–63) called “blood punishments.” Capital and corporal punishment were accepted penal practices in Europe and the United States well into the nineteenth century. This was so, in part, because the technology and economy of these principally rural societies were unable to process and control large inmate populations, and also because these societies had strong traditions of corporal punishment that were rooted in the Old Testament.2

In the late seventeenth and early eighteenth centuries, two massive social changes occurred that altered the direction of Western civilization and, con- sequently, had an impact on criminal law and penalties. The first was the Enlightenment, which gave rise to a conception of the human being as a ratio- nal and ultimately perfectible being and, along with this, a belief in basic human equality.3 Second, urbanization and the earliest movements toward industrialism simultaneously changed the nature of social interactions and created a new social class, the urban working class.

The writing of such thinkers as Locke, Voltaire, Beccaria, and Montesquieu, both created and reflected a changing conception of man and the social order. These writers believed that government or society existed because individu- als allowed it to exist. In other words, a “social contract” governed society. In order to be secure in their persons and possessions, free and equal individuals banded together and surrendered certain of their freedoms to the government on condition that it protect them from their enemies.

Among those enemies were criminals. The state assumed the responsibil- ity of controlling crime and, by administering justice, punishing offenders.

1Various forms of conditional release from incarceration were developed in other countries before an American state adopted a parole system. However, the core elements of a parole system administrative board making release decisions and granting conditional, supervised release with the authority to revoke it, were first created by legislation in New York State (1869). 2For a view of the impacts of conservative Christian beliefs on punishment of offenders, see Gramich and McGill (1994). In the area of impact of evangelical and fundamentalist religion on the death penalty, see Gramich, Cochran, Burish, and Kimpel (1993). For contrasting evidence, see Sandys and McGarrell (1997) and Johnson (2000). 3For an excellent reading of the movement as it relates to the study of crime, see Rennie (1978).

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Individuals surrendered their “rights” to seek revenge and to commit crimes or avenge themselves. The social contract was the product of rational, free indi- viduals. Because rational and free people had control of their own fates, they could be held responsible for their actions.

A crime was considered a “breach of contract,” an offense against all parties to the social contract, not just the injured party. This state of affairs enabled the establishment of a central body of law (such as the Common Law in England) and centralized control of enforcement. Finally, rational individuals, pre- sumed to have prior knowledge of the law and its penalties, were expected to perceive that it was in their own interest not to violate the law and suffer the penalties. Deterrence was the rationale of the criminal law and its sanctions, which were severe so as to enhance the deterrent effect of the law (Beccaria, 1764). In fact, more than 200 offenses carried the death penalty in England at one time. During the reign of Henry VIII, some 74,000 major and minor thieves were sent to the gallows. Under the reign of his daughter, Elizabeth I, 300-400 at a time were hanged, attracting large crowds where pickpockets flourished—even though pickpocketing was an offense punishable by death (Rennie, 1978).

Because the criminal law in colonial America developed from the English Common Law, it was also very harsh. Judges and magistrates in the English system had the option to impose a variety of penalties less severe than death, such as branding, maiming, the stocks, fines, or any combination of these. As a reaction against cruel punishments, the “benefit of clergy” was developed to mitigate punishment for clerics and the wealthy. Initially designed to sep- arate church and state, the “benefit” was eventually extended to all literate British citizens, even to those who could feign literacy (Clear, 1978:6–7; Briggs, Harrison, & McInnes, 1996).

The reluctance of juries to convict and judges to impose sentences that were perceived to be disproportionate to the severity of most offenses did much to detract from the deterrent effect of the law. In addition, the inequity evident in sentencing, coupled with the potential and actual practices of abuses of the power to suspend sentences altogether, led to calls for reform in the English eighteenth-century criminal code, particularly for a reduction in the severity of penalties. A gradual shift in the conception of humankind and concomitant reevaluation of the effectiveness and severity of punishment contributed sig- nificantly to the origins of parole as it exists today (Fogel, 1975).

Other writers, however, felt that poverty and lack of education, or heredity and biological inferiority, were factors that gave rise to crime. The shifting concep- tion of mankind as being at least partly at the mercy of forces beyond their control reduced the degree to which they could be held responsible for crimi- nal actions and paved the way for a reduction in the severity of many penalties.

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These changes in the philosophical conception of crime and punishment brought a new factor into the determination of sentences. Instead of imposing uniformly harsh sanctions for nearly all offenders, judges began to mitigate penalties for those “unfortunates” whom they “deemed to be worthy.”

In England, orders of transportation were thought to be a severe punishment. In the eighteenth century, banishment, a common penalty for the aristocracy or nobility for centuries, was imposed on the common offender for the first time. The judge would order the common offender transported to the colo- nies rather than to the gallows or pillory. The criminal would be allowed to go at liberty in the new land, sometimes for a period of indenture (Pisciotta, 1982), on the condition of not returning to England for a specified time period (such as 10 years), if at all (Hawkins, 1971). The concept of transportation thus avoids the extreme harshness of existing criminal law, while at the same time serving incapacitative purposes of those penalties. The serious felony offender, of course, was still sentenced to death.

While transportation was a partial solution to England’s crime problem and, for a time, helped settle and develop new lands (the colonies, however, had no simi- lar outlet for their offenders, with the exception of casting them into the wilder- ness, with usually the same results as the death penalty), it was only a temporary one. As a result of the American Revolution, England was forced to transport her convicts elsewhere (Campbell, 1994), and for a time they were sent to Australia; until, eventually, even Australia closed its doors to English convicts.4

Incapacitation is a crime prevention strategy based on specific deterrence that would dis- able the potential offender from committing another crime by isolating the instant offender. Common forms of incapacitation include transportation to other countries or colonies, commit- ting the offender to an asylum or mental hospital, and life-long imprisonment. A contemporary version of this strategy is “selective incapacitation,” a policy that would reserve prison beds for the most hardened, rapacious, and dangerous offenders. It would also require the use of community corrections for less severe offenders. Two major problems with selective incapacitation are the inability of corrections to devise clas- sification devices that would accurately predict which offenders would repeat (recidivate) or would not commit another crime. The second problem is more intractable: the widespread, but erroneous belief that all offenders are dangerous and cannot be controlled in the community. The latter has been a major impediment to the creation of community corrections.

BOx 6.1 iNCapaCitatiON

4For an excellent description of transportation to Australia, see Hughes (1987). Pretransportation detention usually was in hulks, dilapidated and unseaworthy naval vessels. See Campbell (1994).

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Criminologists commonly accept punishment by transportation as the princi- pal forerunner of parole (Hawkins, 1971). They argue that transportation was an organized, uniform process by which thousands of convicts were punished in a manner short of execution or corporal punishment, as it was a system wherein offenders eventually obtained their freedom. In addition, transporta- tion did not necessarily involve a period of incarceration.

the rise OF earLy prisON reFOrm The Treaty of Paris in 1783 acknowledged creation of the first republic in Western civilization since the fall of the Roman Empire. The United States of America, free from the English monarchy and founded on the teachings of the Enlightenment, became a fertile ground for the development of a new system of criminal justice.

While the influence of English Common Law, with its harsh penalties, was strong in the new republic, even stronger were anti-British sentiment and the desire to abandon the oppressive regime of the English king. American reform- ers moved away from the archaic, tyrannical sanctions of colonial law and toward a more humane and rational penalty of incarceration.5 It was argued that fair, simple laws, backed by certain and humane punishment, would erad- icate crime.

Chief among the reform groups were the Quakers (Offutt, 1995). The Judiciary Act of 1789 established imprisonment as the penalty for most crimes in Pennsylvania. In a nation that had newly acquired independence, what more fitting penalty could be found than the deprivation of liberty? When Patrick Henry uttered his now-famous line, “Give me liberty or give me death,” lit- tle did he know that he had identified the perfect penalty for crime. Prison replaced the penalty of death and yet denied liberty to its inmates. Much to the dismay of these first reformers, their efforts were not rewarded by a reduction in crime. Rather, the first penal institutions were dismal failures (Rothman, 1971:62):

The faith of the 1790s now seemed misplaced; more rational codes had not decreased crime. The roots of deviancy went deeper than the certainty of punishment. Nor were the institutions fulfilling the elementary task of protecting society, since escapes and riots were commonplace occurrences.

5For a conflicting interpretation of the political purposes intended for prisons, see Durham (1990).

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The search for the causes of crime continued. Reformers still believed that offenders were rational people who would strive to improve themselves, but the manner in which they could be convinced to obey the law was still unknown. In a time of rapid social change and movement from an agrarian to an industrial society, environmental factors came to be viewed as criminogenic: cities, poverty, and idleness were believed to be the hotbeds of crime.

The proposed solution that emerged was to remove the offender from bad environments and teach benefits of industry and morality. Offenders needed to be shown the error of their ways. Criminal law was required to do more than punish and deter; it should change the prisoner into a productive citizen. Punishment should serve to allow the prisoner to repent, to be trained, and to be reformed into a good citizen. A place to repent was thus needed, and pris- ons were developed to fulfill that need.

The original basis of prison was the reformation of the offender, and the ideal of reformation placed high value on discipline and regimentation. In short, in the newly created free society, incarceration itself was punishment and, while incarcerated, the goal was to reform the prisoner. Offenders were expected to obey strict rules of conduct to work hard at assigned tasks (Johnson, 1994). In this milieu, it was believed that the offender would learn the benefit of disci- pline and industry.

Founders of penitentiaries were mindful that prison was a means to an end; their successors were not (Rothman, 1971). Reformation of inmates came to be identified solely with confinement, and custody eventually grew to be the ulti- mate goal of incarceration (Rothman, 1971). Furthermore, inmates posed sig- nificant threats to the security of the penitentiaries. Prison officials resorted to severe corporal punishments in order to maintain control within the prison—a penalty the development of prisons was supposed to replace.

The second generation of prison officials also saw another way of keeping the inmates out of trouble. American industry in the mid-1800s was labor-intensive, and prison populations were ideal sources of inexpensive labor. Inmate labor was expected to generate the money necessary to run the prisons, and prison administrators were thus receptive to offers to hire entire populations. This situ- ation led to grossly underpaid prison labor, antagonism from unemployed free citizens, and emergence of the labor contractor as major force in institutional administration.6 The Report of the Massachusetts General Court Joint Special Committee on Contract Convict Labor (1880:16) illustrates the problem:

6For a review of the contemporary issues in the prison privatization movement, see Shichor (1993). See also Vardalis and Decker (2000).

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In the State Prison, contracts have been made which have no clause [giving] the State power to annul [them] … Such bargains are bad, and, carried out to the fullest extent with large contracts, may naturally be expected to lead to a condition of affairs that has existed in other States given ground to the popular assertion that contractors, and not the State, control the prison.

earLy praCtiCes iN Other NatiONs The first operational system of conditional release was started by the gover- nor of a prison in Spain in 1835. Up to one-third of a prison sentence could be reduced by good behavior and a demonstrated desire to do better (Carter, McGee, & Nelson, 1975). A similar system was enacted in Bavaria in the 1830s, and many prison reformers in France in the 1840s advocated the adoption of similar conditional release systems. In fact, the term “parole” comes from the French parole d’honneur, or “word of honor,” which characterized the French efforts to establish parole release. Prisoners would be released after showing good behavior and industry in the prison7 and on their word of honor that they would obey the law.

Despite the fact that these efforts predate those of Alexander Maconochie, it is he who is usually given credit as being the father of parole. In 1840, Captain Maconochie was put in charge of the English penal colony in New South Wales at Norfolk Island, about 1000 miles off the coast of Australia. To this colony were sent the criminals who were “twice condemned.” They had been shipped from England to Australia, and then from Australia to Norfolk (Allen & Simonsen, 2001). Conditions were allegedly so bad at Norfolk Island that men reprieved from the death penalty wept and those who were to die thanked God (Barry, 1957:5). The conditions on Norfolk Island were so unbearable that suicide became a means of escape and an act of solidarity. Hughes (1987:468) describes it in vivid terms:

A group of convicts would choose two men by drawing straws: one to die, the other to kill him. Others would stand by as witnesses. There being no judge to try capital offenses on Norfolk Island, the killer and witnesses would have to be sent to Sidney for trial—an inconvenience for the authorities but a boon to the prisoners, who yearned for the meager relief of getting away from the “ocean of hell,” if only to a gallows on the mainland. And in Sidney there was some slight chance of escape. The victim could not choose himself; everyone in the group apparently, had to be equally ready to die, and the benefits of his death had to be shared equally by all survivors.

7See Chayet (1994).

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It was under these conditions that Maconochie devised an elaborate method of granted conditional release. Maconochie’s plan was based on five basic prin- ciples (Barnes & Teeters, 1959:419):

1. Release should not be based on the completing of a sentence for a set period of time, but on completion of a determined and specified quantity of labor. In brief, time sentences should be abolished, and task sentences substituted.

2. The quantity of labor a prisoner must perform should be expressed in a number of “marks” that he must earn, by improvement of conduct, frugality of living, and habits of industry, before he can be released.

3. While in prison he should earn everything he receives. All sustenance and indulgences should be added to his debt of marks.

4. When qualified by discipline to do so, he should work in association with a small number of other prisoners, forming a group of six or seven, and the whole group should be answerable for the conduct of labor of each member.

5. In the final stage, a prisoner, while still obliged to earn his daily tally of marks, should be given a proprietary interest in his own labor and be subject to a less rigorous discipline to prepare him for release into society.

Under his plan, prisoners were awarded marks and moved through stages of cus- tody until finally granted release. His system involved indeterminate sentencing, with release based on the number of marks earned by prisoners for good con- duct, labor, and study. The five stages, based on the accumulation of marks, each carried increased responsibility and freedom, leading to a ticket of leave or parole resulting in a conditional pardon and, finally, to full restoration of liberty.

Maconochie has been described as a zealot (Hughes, 1987); however, his reforms made life bearable at Norfolk Island and can be described as revolu- tionary in comparison to the horrible conditions that existed there before his arrival. While Maconochie’s reforms transposed Norfolk Island from one of despair to one of hope, it was short-lived. Petty bureaucrats and a general mis- trust of Maconochie’s ideas led to his recall as commandant in 1843.

Sir Walter Crofton, director of the Irish prison system in the 1850s, built upon foundations laid by Maconochie. He decided that a transitional stage between prison and full release was needed and developed a classification scheme based on a system in which the prisoner progressed through three stages of treatment. The first was segregated confinement with work and training pro- vided to the prisoner. This was followed by a transition period from confine- ment to freedom, during which the prisoner was set to work on public projects with little control being exercised over him. If he performed successfully in this phase, he was released on “license” (Clare & Kramer, 1976; Maguire, Peroud, & Dison, 1996).

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Release on license was constrained by certain conditions, violations of which would result in reimprisonment. While on license, prisoners were required to submit monthly reports and were warned against idleness and associat- ing with other criminals. Prisoners on license, then, had to report, could be reimprisoned for violating the conditions of release, and had not been pardoned. These distinctions from earlier systems of release were large steps toward modern parole.

earLy ameriCaN praCtiCes Convicts sentenced to prison in America in the early 1800s received definite terms; a sentence of 5 years meant the offender would serve 5 years in prison. This strict sentencing structure led to overcrowded prisons and widespread problems in the institutions. It was not uncommon for a governor to grant pardons to large numbers of inmates in order to control the size of prison pop- ulations. In some states, this pardoning power was even delegated to prison wardens (Sherrill, 1977).

This method of rewarding well-behaved prisoners with reductions in sentence was first formalized in 1817 by the New York State legislature. In that year, the first “good-time” law was passed. This law authorized a 25 percent reduction in length of term for those inmates serving 5 years or more who were well behaved and demonstrated industry in their prison work. By 1869, 23 states had good- time laws, and prison administrators supported the concept as a method of keeping order and controlling the population size (Sherrill, 1977).

Liberal use of the pardoning power was continued in those states that did not have good-time laws, and the mass pardon was not uncommon even in those states that already allowed sentence reductions for good behavior. These devel- opments are important because they represent the first large-scale exercise of sentencing power by the executive branch of government, the branch in which parole boards would eventually be located.

A pardon is an act of executive clemency that absolves the offender in part or in full from the legal consequences of the crime and conviction. Probably the most famous example is President Gerald Ford’s pardon of President Richard Nixon for his role in the Watergate crimes. Executive clemency can include gubernatorial action that results in the release of an inmate from incarceration, as well as pardoning current and former inmates. Camp and Camp (2000) reported that pardons and other acts of clemency were awarded to 722 inmates.

BOx 6.2 parDON

Source: Camp and Camp (2000).

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Another philosophical base for American parole was the indenture system established by the New York House of Refuge. Although not called parole, for all intents and purposes, a parole system was already operational for juveniles committed to the House of Refuge in New York. The House of Refuge had developed a system of indenture whereby youths were released from custody as indentured servants of private citizens. Unfortunately, this system permitted corruption.8

To combat these abuses, the New York House of Refuge developed a system supervising the indentured. A committee was formed that selected youths for indenture, defined the conditions under which they served their indenture- ships, and established rules both for the superintendent of the House of Refuge and for the persons to whom youths were indentured.

There was no formal mechanism for releasing the youths from custody, but they were able to work off their contracts and thus obtain their freedom. Their masters could break the contracts and return the youths to the House of Refuge at any time. In essence, a parole system was operating.

In addition to these forms of release from custody before expiration of the maximum term, the concept of supervising released offenders had also been operationalized. It is important to note, however, that supervision of released prisoners prior to the creation of parole in America only required providing assistance and not crime control duties.9

In 1845, the Massachusetts legislature appointed a state agent for discharged convicts and appropriated funds for him to use in assisting ex-prisoners in secur- ing employment, tools, clothes, and transportation. Other states followed this

A parole board is any correctional person, authority, commission, or board that has legal author- ity to parole those adults (or juveniles) committed to confinement facilities, to set conditions for behavior, to revoke from parole, and to discharge from parole. Parole boards also usually can recommend shortening a prisoner’s sentence (commuting sen- tences), recommend pardons to a governor, set parole policies, and, in some jurisdictions, rec- ommend reprieve from execution. An example of parole policy would be a “zero-tolerance” policy for parolees whose urine samples indicate recent use of illicit drugs, usually resulting in certain return to confinement.

BOx 6.3 parOLe BOarD

8It was not uncommon for juveniles to be indentured without a careful investigation of those who would hold the indenture contracts. Thus, juveniles were sometimes indentured to criminals, and the conditions of their indentureships were virtually uncontrolled. 9The first legislatively authorized “parole officer” position was established in 1937 in Massachusetts. The officer was charged with assisting released convicts to obtain shelter, tools, and work. The legislation made no mention of any surveillance duties.

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example and appointed agents of their own. As early as 1776, however, chari- table organizations, such as the Philadelphia Association for the Alleviation of Prisoners’ Miseries, were already providing aid to released convicts (Sellin, 1970). By the late 1860s, dissatisfaction with prisons was widespread, and a concerted effort to establish a formal parole release and supervision system began. In 1867, prison reformers Enoch Wines and Louis Dwight reported that “There is not a state prison in America in which reformation of the convicts is the one supreme object of discipline, to which everything else is made to bend” (Rothman, 1971:240–243).

In 1870, the first meeting of the American Prison Association was held in Cincinnati, Ohio.10 Reform was the battle cry of the day, and the meeting took on an almost evangelical fervor (Fogel, 1975). Both Sir Walter Crofton and American warden F.B. Sanborn advocated the Irish system (Lindsey, 1925).

Armed with the success of the meeting, the focus of prison reformers shifted from incarceration as the answer to crime and, instead, concentrated on the return of offenders to society. Prisons remained central, but they were now seen almost as a necessary evil, not as an end in themselves. Prison reformers everywhere began to advocate adoption and expansion of good-time laws, assistance to released prisoners, adoption of the ticket-of-leave system, and parole. In 1869, the New York State legislature passed an act creating the Elmira Reformatory and an inde- terminate sentence “… until reformation, not exceeding 5 years.”

This law created the reformatory as a separate institution for young offenders, expressly designed to be an intermediate step between conviction and return to a law-abiding life. Administrators of the reformatory were empowered to

Originally, the indeterminate sentence had no minimum length of period of incarceration. Later, legislatures changed this practice to require a minimum period of incarceration. Indeterminate sentences typically require a minimum and maximum period (1-3, 2-10, 10-25 years, etc.). Offenders ordinarily will be released during some point in the spread of years pro- nounced by the sentencing judge. Both minimum and maximum terms can be reduced by certain credits allowable under legal statute and practice. These include time spent in jail awaiting trial or sentence, good-time cred- its for behaving while in prison, and program credits awarded frequently for completion of institutional programs (attaining the equivalent of a high-school diploma, active involvement in Alcoholic Anonymous, basic welding classes, etc.).

BOx 6.4 iNDetermiNate seNteNCiNg

10For a history of the American Correctional Association, see Travisono, and Hawkes (1995).

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release inmates upon demonstration of their reformation. Such release was conditional, and released offenders were to be supervised by a state agent (Lindsey, 1925).

With the passage of this law, parole in the United States became a reality. It soon spread to other jurisdictions, and by 1944, every jurisdiction in the nation had a parole authority (Hawkins, 1971). Table 6.1 illustrates the rapid growth of parole in the United States up to the year 1900. Between 1884 and 1900, parole was adopted in 20 states. The rapid growth of parole, however, was fraught with difficulties and criticism.

the spreaD OF parOLe Parole release was adopted by the various state jurisdictions much more rap- idly than the indeterminate sentence. By 1900, some 20 states had adopted parole; by 1944, every jurisdiction had a parole system (see Table 6.2). The

table 6.1 States with Parole Laws by 1900

State Year enacted

Alabama 1897 California 1893 Colorado 1899 Connecticut 1897 Idaho 1897 Illinois 1891 Indiana 1897 Kansas 1895 Massachusetts 1884 Michigan 1895 Minnesota 1889 Nebraska 1893 New Jersey 1895 New York 1889 North Dakota 1891 Ohio 1896 Pennsylvania 1887 Utah 1898 Virginia 1898 Wisconsin 1889

Source: Adapted from Lindsey (1925).

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expansion of parole has been characterized as being a process of imitation (Lindsey, 1925), yet a great deal of variation in the structure and use of parole was observed.11

The growth and expansion of modern parole were assisted by a number of factors. One of the most important was the tremendous amount of support and publicity that prison reformers gave the concept at the National Congress on Penitentiary and Reformatory Discipline. Its inclusion in the Congress’s Declaration of Principles, coupled with the publicity of Alexander Maconochie’s work in New South Wales, provided the necessary endorsement of correctional experts.

In addition, it was quickly recognized that a discretionary release system solved many of the problems of prison administration. A major factor in favor of parole was that it supported prison discipline. A number of writers pointed out that by placing release in the inmate’s own hands, the inmate would be motivated both to reform and to comply with the rules and regulations of the

table 6.2 Significant Developments in Parole

Date Development

1776 Colonies reject English Common Code and begin to draft their own codes. 1840 Maconochie devises mark system for release of prisoners in Australian

penal colony, a forerunner of parole. 1854 Crofton establishes ticket-of-leave program in Ireland. 1869 New York State legislature passes enabling legislation and establishes

indeterminate sentencing. 1870 American Prison Association endorses expanded use of parole. 1876 Parole release adopted at Elmira Reformatory, New York. 1931 Wickersham Commission criticizes laxity in early parole practice. 1944 Last state passes enabling legislation for parole. 1976 Maine abolishes parole. 1979 Colorado abolishes parole release. 1984 Federal system abolishes parole as an early release mechanism. 1985 Colorado reinstates parole release. 1996 Ohio becomes 11th state to abolish parole. 2004 An estimated 600,000 inmates will be released from prison.

Source: Compiled by authors.

11See Lindsey (1925). Lindsey writes, “There has been considerable modification and variation in various phases of the system as it has spread from one state to another. Methods of administration are also widely different.” For an update on parole practices, see Runda, Rhine, and Wetter (1994).

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Early Public Sentiments 163

prison.12 Finally, parole provided a safety valve to reduce prison populations, which were generally overcrowded (Wilcox, 1929).

A third contributory factor was that the power to pardon was being exercised liberally in a number of states. The effect of liberal pardoning policies was to initiate parole even though it was not yet authorized by law.

These early parole systems were controlled by state legislators that, in gen- eral, rigidly defined which prisoners could be paroled. Most legislation autho- rizing parole release restricted it to first offenders convicted of less serious crimes. Through the passage of time and a gradual acceptance of the idea of discretionary early release, the privilege was eventually extended to serious offenders.

Because early parole systems were operated primarily by persons with a direct interest in the administration of prisons, decisions on parole release and those who acted as parole officers were institution based. Eligibility was strictly lim- ited, at the inception of parole, and was expanded only gradually to include more serious offenders. Supervision of released inmates was nominal, and the seeds of corruption and maladministration were present.

earLy puBLiC seNtimeNts The decade between 1925 and 1935 was a turbulent time, including both the economic boom (and the Prohibition Era) and the Great Depression. Crime, par- ticularly as sensationalized in the mass media, appeared to be rampant. As crime rates increased, the public felt increasingly more that crime was “public enemy number one.”13 This period also saw the rise of attempts by the federal govern- ment to stem interstate crimes, particularly kidnapping, bootlegging, bank rob- bery, and a host of newly enacted legislation that considerably widened the net of crime the government would seek to prevent and prosecute. Two significant events reflecting public concern about crime14 were establishment of the maxi- mum-security federal prison on Alcatraz and a crusade headed by J. Edgar Hoover,

12Perhaps chief among these were Wines and Dwight who, in 1867, published a report to the New York Prison Association entitled, Prisons and Reformatories of the United States and Canada. Albany. Other state committees echoed the call for a parole system. See Report of the Massachusetts General Court Joint Special Committee on Contract Convict Labor (1880). See also Roberts, Nuffield, and Hahn (2000). 13For a remarkably similar view of contemporary corrections and public fears, see Murphy and Dison (1990). See also Chiricos, Padgett, and Gerz (2000). 14On media influence on citizen perception and fear of crime, see Barlow, Burlow, and Chiricos (1995); Bennett and Flavin (1994); Wright, Cullen, and Blankenship (1995); and Chiricos, Escholz, and Gertz (1997).

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chief of the Federal Bureau of Investigation, against interstate crime. Hoover’s pro- nouncements assumed a political nature, as he strongly advocated neoclassical responses to crime: long-term prison sentences, abolition of parole, increased incarceration of offenders, use of the death penalty, and so on.15

Both the releasing and the supervising functions of parole were criticized sharply and roundly. The major concern of these criticisms was the failure of parole to protect the public safety. The Report of the Advisory Commission on Penal Institutions, Probation, and Parole to the Wickersham Commission in the 1931 summarized the problems with parole, stating:

Parole is defective in three main respects:

1. In the chasm existing between parole and preceding institutional treatment.

2. In the manner in which persons are selected for parole.

3. In the quality of supervision given to persons on parole.

In short, parole was seen as failing to be effective in attaining the promised and lofty goals. Primary arguments were that convicted criminals were being set loose on society, supervised inadequately, and unreformed. The concept of parole and the general ideology of reform were not yet under attack; it was the means and not the ends that were being criticized.

The decade of the 1930s saw the publication of two documents concerning parole, the 1931 Wickersham Commission Report, noted earlier, and, in 1939, the Attorney General’s Survey of Release Procedures (Hawkins, 1971). As with the reports of Wines and Dwight and the International Prison Congress of more than 50 years earlier, the 1931 and 1939 documents pointed to flaws in the opera- tion of American corrections and advocated reforms to improve both prisons and parole services.16

Simultaneously, the correctional medical model was on the rise. This crimino- genic approach was based on a belief that human beings are basically moral and that crime is a deviation from humankind’s basic behavior inclinations. Unlike earlier views that humans were, at heart, bestial, but restrained their primitive drives because reason informed them that by doing so they would be safe, the idea that humans are basically good led to the inevitable conclusion

15But see DeLoach (1995). 16Authors of these reports were joined by others. Reformers wanted full-time, paid parole authorities who had to meet certain qualifications and who were as far removed as possible from political patronage. See Colvin (1992).

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Legal Challenges to Parole 165

that there must be something fundamentally wrong with those who were bad. The job of corrections should then be to diagnose the problems, prepare and administer the treatment programs, and make offenders well again. Offenders committed crimes when social, personal, or psychological forces and factors overwhelmed them. Hence, the development of new habits, the threat of deter- rent sanctions, and the giving of religious instruction dealt only with the symp- toms of a deeper disorder. The real causes of crime remained deep within the personality structure of the offender. If the prisons were to be hospitals, the parole board was to release the patient when “well,” that is, when able to deal with all phases of everyday life. This development had significant implications for parole.

Between the adoption of parole release in Elmira in 1876 and the enactment of enabling legislation for parole in Mississippi in 1944, the concept of parole faced two critical challenges. The first involved the issue of legality of executive control over sentencing and indeterminate sentences. The second centered on the administration of parole systems. Toward the end of the first quarter of the twentieth century, a new behavioral technology came into its own and grew to be a predominant goal of corrections and sentencing. The rehabilitative ideal gave new legitimacy to parole, endorsing discretion.

LegaL ChaLLeNges tO parOLe The basic legal challenge raised against parole was that the placing of control over sentence length and criminal penalties in the hands of a parole board was unconstitutional. The specific arguments varied across individual lawsuits, but they were basically of two types. First, questions of infringement on the prin- ciple of the separation of powers clauses of the federal and state constitutions were raised in several states (Lindsey, 1925).

These suits claimed that parole release was an impairment of judicial sentenc- ing power, an improper delegation of legislative authority to set penalties, and usurpation of the executive branch’s power of clemency (Hawkins, 1971). For the most part, parole authorities emerged victorious from these court battles, and those constitutional questions of parole were laid to rest.

Parole is release of an inmate from confinement to expiration of sentence on condition of good behavior and supervision in the community. This is also referred to as postincarceration super- vision or, in the case of juveniles, aftercare.

BOx 6.5 parOLe

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A further rationale behind challenges to the constitutionality of parole release was based on the Eighth Amendment prohibition against cruel and unusual punishment. Although the issue was weighty, most criminal penalties were lim- ited by legislatively set maximum terms. The most common judicial response to these arguments was that indeterminate sentences could be interpreted as sentences that would not extend the maximum terms as set by the legislature or judge, thereby rendering moot the issue of cruelty by virtue of uncertainty (Hawkins, 1971).

aDmiNistratiVe ChaLLeNges We have seen that, in the late nineteenth and early twentieth centuries, parole practices were criticized for failing to protect the public. The basic arguments were that parole authorities were not following procedures that would lead to the release of only deserving inmates and that the lack of subsequent parole supervision placed the community in danger. Such were the complaints reflected by the Wickersham Commission and the Attorney General’s Survey. These were not the only critical voices.17

One salient argument, supported by ample evidence, was that parole had become a commonplace method of reducing prison populations. In several states, most inmates were released immediately upon expiration of their mini- mum terms. Only those inmates whose conduct records within prison showed a failure to conform were held longer. The problem was defined as inadequate or improper release decision making.

Blanket release policies were felt to be inappropriate for several reasons. First, because parole boards failed to consider risk and parole supervision was inad- equate, such wholesale release practices were felt to endanger public safety. Second, because most parole boards were dominated by prison officials, it was believed that too much weight was attached to prison conduct and the needs of the prison administration. Finally, failure to consider reformation efforts of the inmate, or the prison, worked to hamper the success of prisons in reform- ing criminals.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual pun- ishment inflicted.

BOx 6.6 eighth ameNDmeNt

17Field (1931). For sentiments of inmates denied parole, see West-Smith, Pogebrin, and Poole (2000).

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Proposed solutions were varied and involved beefing-up parole supervision staffs and increasing postrelease surveillance of parolees. It was believed that these actions could enhance public protection. Additionally, there were calls for professional parole boards composed of trained, salaried, full-time deci- sion makers who would be removed from the pressures of day-to-day prison administration and its needs and who were skilled in identifying those inmates who were reformed.

These proposals arose at about the same time behavioral sciences expanded into the world of public policy. Psychology and sociology were beginning to develop practical components in addition to their traditional theoretical bases. The new professions of clinical psychologist, social worker, and crimi- nologist were developing. An ability to predict, change, and control undesir- able human behavior was promised.18 Corrections and parole seemed ideal places in which these professions could have their most positive impact. The dawn of the rehabilitative model was at hand, and this model caused radical changes in the practice and organization of the American parole system, as we shall see.

graNtiNg parOLe As noted earlier, parole was originally implemented as a method of releas- ing reformed inmates at the ideal time. The primary focus of parole was the rehabilitation and eventual reintegration of the offender to society, although it also functioned to incapacitate violent and dangerous offenders whose probability of reoffending was believed to be unacceptably high. Parole also serves as a decompression period that helps the offender make the adjust- ment between the institution and the outside world. As such, parole is an integral component of reentry process. Figure 6.2 shows how the percentage of prisoners released on parole has declined over the past 65 years. Despite the decline in the percentage released on parole, the actual number of parolees has increased (see Figure 6.3).

OVerView OF the parOLe prOCess The parole process begins in the courtroom when the judge sentences an indi- vidual to a prison determinate or indeterminate sentence. The latter includes fixing a term by stating the minimum and maximum length of time the indi- vidual is to serve. At the expiration of a certain portion of that sentence, less

18Predicting postrelease behavior is difficult. See Gottfredson and Gottfredson (1994), and Heilbrun, Brock, and Waite et al. (2000).

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credit granted for good behavior and performance of duties, an individual becomes eligible for parole. The amount of the sentence that must be served and the amount of credit that can be given for good behavior and performance of duties vary from state to state. In Nebraska, an individual sentenced to a 3- to 5-year term can become eligible for parole at the end of 2 years and 5 months if they have behaved “properly” within the institution.19 This does not mean that a release will actually occur; it only means that the individual is eligible

19The offender’s mandatory release date in Nebraska is calculated as follows: For all odd-numbered maximum terms MR = (Max − 1)/2 + 11 months. For all even-numbered minimum terms MR = Max/2 + 5 months

Figure 6.2 Percentage of U.S. prisoners released on parole: 1940-2007. Source: Bottomley (1990): 319–374 and Glaze and Bonczar (2009).

0%

10%

20%

30%

40%

50%

60%

70%

80%

1940 1977 1999 2007

0 100,000 200,000

300,000 400,000 500,000 600,000

700,000 800,000 900,000

1985 1990 1995 2000 2007

Figure 6.3 Parolees in America: 1985-2007. Source: Glaze and Bonczar (2009).

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Overview of the Parole Process 169

to be released. A number of states have mandatory parole release statutes that state that at the expiration of a certain portion of the sentence, inmates must be released onto parole, unless the inmate chooses not to be released. A small number of inmates refuse to be released onto parole because they do not want to be subject to a parole officer’s supervision and consequently they choose to serve their entire prison sentence (“max out”).

Regardless of whether these individuals wish to max out or receive parole, insti- tutional officers compile information concerning their personal characteristics and backgrounds. Treatment progress is updated continually and, at some point time, the staff begins working with offender’s friends, family, and employers to develop a release plan.

The information, along with the presentence and institutional progress reports, is periodically brought to the attention of the releasing authority, usually a parole board. Some states review inmates’ progress on a yearly basis, even though they are not eligible for release. In accordance with the eligibility guidelines and an inter- view with the offender, the parole board decides whether to release the offender on parole. If the decision is to deny release, a future rehearing date is usually set. If a release is to be effected, the parole board then determines when and where the release is to be made. A contract, usually including very specific conditions of parole, is also established. Once a release has been achieved, inmates (now called parolees) come under the supervision of parole officers.

Statutes in almost every state allow for the reduction of a prison term based on an offender’s behavior in prison (“good time”) or for participation and completion of certain educational or treatment programs (“program time”). Reduction in time is awarded; such awards reduce the date to the parole board or minimum sentence, and maximum time to be served. Good-time credits are earned by a formula established within correctional settings, sometimes set into law but usually decided by institutional administrators in collaboration with the parole board. In California, the award is 4 months for each 8 months served (four for eight, or 1:2). If an offender is serving a 3 year sentence (36 months) and earns maximum good time, that offender will be in prison no more than 24 months. Some jurisdictions award time for pretrial detention and postconviction jail time while awaiting transport to prison. There are thousands of jail inmates who have been sentenced to prison but are being held back pending availability of prison space and transport to prison. These inmates generally earn “jail credits” at a 1:1 ratio and will bring those credits to the parole board, further reducing the maximum time they will serve as prison inmates. Finally, to encourage participation in institutional work and rehabilitation programs, credits may be awarded for participation in and completion of specific programs: welding, masonry, car repair, GED, drug treatment, and so on. The awards across jurisdictions vary, but usually approximate the “good-time credit” ratio.

BOx 6.7 gOOD time CreDits

(Continued)

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Current Operations

Parole is a complex procedure and has many functions and processes that differ from one jurisdiction to another. Traditionally, parole includes five basic functions:

1. Selecting and placing prisoners on parole 2. Establishing conditions of supervision (frequently case specific) 3. Aiding, supervising, assisting, and controlling parolees in the community 4. Returning parolees to prison if the conditions of parole are not met 5. Discharging parolees when supervision is no longer necessary or when

the sentence is completed.

Parole, unlike probation, is an administrative process located within the exec- utive branch of every state, as well as the federal government. This may soon change, however, for a number of states (Arizona, California, Delaware, Florida, Illinois, Indiana, Kansas, Maine, Minnesota, Mississippi, North Carolina, Ohio, Oregon, Virginia, Washington, Wisconsin, and the federal prison system) have

BOx 6.7 gOOD time CreDits—CONt’D Thus, an inmate sentenced to 3 years in prison but detained 4 months on a pretrial basis and held 4 months in jail after sentencing before being transported to prison would bring 8 months of jail time credit and would generally receive an additional 4 months for good time, the equiva- lent of serving 1 year against the term of punishment. If the offender participates in and gradu- ates from a drug treatment program within the first 12 months, that offender will usually serve less than 16 months before being released as having served the maximum sentence (“max out”): 36 months.

Discretionary release is parole of an inmate from prison prior to expiration of the maximum sen- tence, according to the boundaries set by the legislature and sentence. Discretionary release is associated with the indeterminate sentence and implies that the offender is ready for release and continued treatment within the community. Mandatory release is required release of the offender by the parole board because the stat- utes mandate release of any inmate who has served the equivalent of the maximum sentence. Mandatory release implies that the parole board refused to release an inmate prior to attain- ment of maximum sentence imposed by the court. Mandatory release means time served behind prison walls, when added to time credits for jail time, good time, and earned time, totals the sentence imposed by the sentencing court. About four in 10 inmates leave prison under mandatory release.

BOx 6.8 DisCretiONary aND maNDatOry reLease

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virtually eliminated the discretionary release power of these parole boards. Connecticut abolished parole in 1981 but reinstated it 9 years later, after prison costs surged.20 Similarly, Colorado abolished parole release in 1979 and rein- stated it in 1985. Thirty other jurisdictions have developed various system-wide parole guidelines that have restricted the discretionary powers of the parole boards.21 The operation of parole, obviously, is not all uniform.22

State parole systems vary widely in terms of their organizational makeup and administrative process.23 Most parole boards are independent state agencies that only administer parole. Depending on the state, there are anywhere from 3 to 19 members on a parole board (Camp & Camp, 2000). Only 22 states have any statutory requirements for specific qualifications for parole board mem- bers, and even those are usually stated in such broad terms as “possessing good character” or “judicious temperament.” In 1967, the President’s Commission on Law Enforcement and Administration of Justice recommended that parole board members be appointed solely on the basis of competence; however, in many states, appointment to the parole board appears to be based on politi- cal considerations. For example, only two states, Wisconsin and Ohio, appoint parole board members from a civil service list. The governor is directly respon- sible for parole board appointments in 45 states.

Governors appoint parole board members in 45 jurisdictions, usually with the advice and con- sent of the state legislature. The most frequent term is 4 years, and most states stagger the terms of office of members to achieve continuity of parole boards regardless of changes in the governor’s mansion or philosophy. Five-, six-, and seven-year terms are found in Alabama, Arizona, Georgia, and so on. Ohio parole board members serve an indefinite term. In Utah, parole board members are appointed by the Board of Corrections and serve 6-year terms. There are no statutory qualifications for parole board membership in 29 jurisdictions, but the other 22 jurisdictions have qualifications that speak to length of time and experience in correc- tions (or such related fields as welfare, religion, or law enforcement). Seven jurisdictions set the minimal educational level as at least a bachelor’s degree.

BOx 6.9 parOLe BOarD memBers

20Editors (1995). 21Runda, Rhine, and Wetter (1994). 22Such intrastate variations may also be true within states. For example, Sutton observed that the decision to place an individual in prison or not, and the length of the sentence per se, may be more a function of the county where the sentence was handed down than the nature of the offense. See Sutton (1981). But see Turner, Cullen, and Sundt (1997). 23Rhine, Smith, and Jackson (1992).

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parole selection process

In most jurisdictions, individual cases are assigned to individual members of the parole board. They review each case and make initial recommendations. These recommendations are usually accepted, although occasionally the board as a whole may seek to obtain more details. While there are some jurisdictions that make the final release decision solely on the basis of written reports, most states conduct some type of a formal hearing. The hearing may be with one member of the parole board or the assembled board as a whole (en banc) or may be handled by a hearing examiner with no members of the board pres- ent. Occasionally, prison staff are also interviewed. Some states send the board members and/or hearing examiners to the institutions to conduct the hearings, whereas others bring those to be interviewed to the board/examiners.

Parole selection guidelines differ widely from state to state. The U.S. Supreme Court has consistently held parole to be a privilege and, consequently, held that a full complement of due process rights do not need to be afforded at parole- granting hearings (Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 99 S. Ct. 2100 (1979)). As a result, the states have been given the opportunity to establish whatever inmate privileges they feel are appropriate at parole-granting hearings.

Inmates are permitted the use of counsel in 21 states and are allowed to present witnesses in 19 states. The rationale for the parole decision must be formally articulated in 11 parole jurisdictions. Most states have established regulations as to the amount of time an inmate is required to serve prior to parole eligi- bility. In 16 states, eligibility is obtained upon completion of the minimum sentence. In 10 states, as well as the federal system, eligibility is achieved upon completion of one-third of the maximum sentence. Other states use the num- ber of prior felony convictions and length of prior sentences to calculate eli- gibility rules. Even in states that use the same eligibility guidelines, there is such a wide variation in the length of the minimum and maximum prison terms handed down for the same offense that, in reality, there are literally as many variations in eligibility as there are parole jurisdictions.24 In addition to time factors, some states restrict the use of parole for those convicted of vari- ous serious personal offenses, such as first degree murder, kidnapping, and aggravated rape.25

If an inmate does not meet parole standards, the sentence is continued and a date is set for the next parole review. If parole is approved, the individual is pre- pared for release to the parole field service authority. Just how long an inmate

24Florida Office of Program Policy Analysis and Government Accountability (1996). 25English, Colling, and Pullen (1996).

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must wait to hear the verdict varies greatly. In many jurisdictions, the inmate receives word immediately. In others, and in those jurisdictions where no hear- ings are held, inmates are notified by the prison staff or by mail. Receipt by the inmate of formal written notification varies from immediately in several states to as long as 3–4 weeks in New Jersey.

The parole-granting hearing is a very significant event for inmates. Regardless of the outcome, the result affects their lives greatly. They realize that a sin- gle inappropriate word or action could jeopardize their freedom for years to come. Yet despite the significance of the decision, the national average is prob- ably between 12 and 15 min per case. This means that parole boards are hear- ing approximately 15-20 cases per day. It is difficult to determine exactly how long a parole board deliberates because they operate in relative secrecy. In many cases, parole hearings are at least partially closed, and decision-making criteria are not really known to outsiders. Indeed, a major criticism of the parole process is a reluctance on the part of most parole boards to clearly articulate standards and guidelines for release.

California enacted a statute in 1996 that seeks to ensure that sexual predators in prison suffer- ing from mental disorders and deemed likely to reoffend are treated in a secure facility through civil commitment and are not released prematurely into society to victimize others. The Board of Prison Terms screens cases to determine if inmates meet criteria specified in the statute and then refers inmates to the California Department of Mental Health for clinical evalu- ations by two clinicians. If both clinicians concur that the inmate meets the criteria, a county district attorney may file a petition for civil commitment. If the judge determines that probable cause exists, the prisoner is scheduled for a court trial. A jury hears the case and, based on the “beyond a reasonable doubt” test, may determine that the offender meets the statutory criteria. In such cases, the offender is civilly committed to a Department of Mental Health facility for 2 years of treatment. Annual examinations are con- ducted; the offender may petition the court for conditional release (parole). At the end of 2 years, the prisoner is reevaluated and the court may enter an order for new trial to seek a new commitment of the offender. Since 1996, more than 300 sex offenders have been found to be sexually violent predators and committed to the Department of Mental Health for treatment.

BOx 6.10 sexuaLLy ViOLeNt preDatOrs

Flopped is inmate argot for being denied early release by the parole board for failing to meet parole board standards or expectations. When flopped, the inmate is usually given a “next review date” by the board, and his or her case will be heard again at that time. Frequently, the board suggests treatments, programs, or goals the offender is expected to complete before the next review (learning to read and write, AA involvement, life skills, etc.).

BOx 6.11 FLOppeD

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FaCtOrs iNFLueNCiNg parOLe DeCisiONs In theory, parole decisions should be based on the factors outlined in state statutes. In practice, however, it appears that parole boards are influenced by a wide variety of criteria, not all of which are articulated by law. Furthermore, some states do not have any legal guidelines.

In one of the first studies to examine parole board release decision criteria, Scott (1974) studied 325 males and 34 females facing a parole decision in a Midwest state in 1968. He determined that the seriousness of the crime, a high number of prison disciplinary reports, age (older inmates), a low level of edu- cation, a marital status of single, and (surprisingly) a good institutional record were factors that lengthened an inmate’s sentence. Prior record and race were determined to have no effect upon the parole decision.

However, in his study of 243 inmates in an eastern facility, Carroll (1976) found that race did play a significant role in this determination. A number of factors not related to the parole decision for white prisoners were impor- tant for blacks. Blacks who participated in treatment programs or were older were more likely to be released. The supposition is that these blacks were perceived as nonmilitant and therefore less likely to cause problems upon release.

As suggested by Dawson (1966), there appears to be three major release criteria that influence parole boards:

1. Factors for granting parole based on the probability of recidivism. 2. Factors for granting parole other than probability of recidivism. 3. Factors for denying parole other than probability of recidivism.

probability of recidivism

Perhaps the most basic aspect of the decision-making process is estimating the probability that an individual will violate the law if and when released on parole.27 This is known as the recidivism factor. Parole boards, as quasi- political entities, are extremely sensitive to the public criticism that may arise when parolees violate parole, especially if they commit a serious offense. Just how parole boards determine the probability of recidivism is unclear.

27Oregon Intermediate Sanctions for Female Offenders Policy Group (1995). Intermediate sanctions for females. Salem, OR: Oregon Department of Corrections.

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As early as 1923, Hart advocated the need to develop methodologically sound prediction tables for potential parolees that were based on data. Since this observation, many such scales and tables have been developed (Babst, Inciardi, & Jarman, 1970; Bromley & Gathercole, 1969; Burgess, 1928; Glaser, 1962; Gottfredson, Babst, & Ballard, 1958; Gottfredson & Gottfredson, 1993; Loza & Loza, 2000; Wilkins & MacNaughton-Smith, 1964). For more than 50 years, the value of prediction devices has been recognized as a means of standardizing parole release and assessing recidivism probability more accurately. At least one-half of all parole boards use formal risk assessment (Burke, 1997).28

Factors for granting parole Other than probability of recidivism

There are occasions when inmates are granted parole despite the parole board’s belief that they possess a relatively high probability of recidivism. In instances when offenders are believed not likely to commit a crime of a serious nature, the parole board may vote to grant parole. This factor is often accompanied by a determination that the inmate will gain little additional benefit from further institutionalization. For example, although an inmate may be an alcoholic with a long record of public intoxication arrests, the parole board may grant a release because it feels that the individual is rela- tively harmless and that continued institutionalization will very likely have little further impact upon the alcoholism problem. Compassionate release of inmates dying of cancer and AIDS also falls under this category (Pagliaro & Pagliaro, 1992).29

Occasionally, situations arise in which inmates have but only a short period of time to serve before the completion of their sentences. When such circum- stances arise, parole boards parole these individuals frequently, despite what may be a high perceived probability of recidivism, in order to provide even a brief period of supervisory control and, more importantly, to assist the parolee in the environmental decompression and social reintegration process.

An additional criterion that may swing a parole board, despite an appar- ent high recidivism probability, is the length of time served. If an inmate has failed to respond to institutional treatment but has served a relatively long sentence, the parole board may grant parole under the conviction that these individuals have paid their dues and that perhaps they will succeed

28Sutton (1981). 29Pagliaro and Pagliaro (1992). See also Hammett, Harrold, and Gross (1994). See Hammett, Harrold, and Epstein (1994).

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on parole to avoid being sent back. Occasionally, the maturation process will play an important role. When lengthy sentences are mandated for young persons, the parole board may affect an early release, noting the gen- eral process of maturation that will enable these individuals to adopt more acceptable patterns of behavior once released.

Factors for Denying parole Other than probability of recidivism

There are circumstances in which individuals may not be granted a release despite a relatively low recidivism probability. For example, when inmates have demonstrated occasional outbursts of violent and assaultive behavior, parole boards tend to be somewhat reluctant to grant release. As noted pre- viously, parole boards are extremely sensitive to public criticism, and while the probability of a violent attack may be very small, the seriousness of the incident would likely attract considerable media attention. Consequently, release in such a situation will often be denied. Community attitudes and values often play major roles in overriding the recidivism probability fac- tors. For example, murderers have traditionally been good parole risks in terms of likelihood of parole success. However, whether and how quickly they should be paroled is often a function of community attitudes. If a com- munity attitude is unfavorable, parole is likely to be denied, for the release of such an inmate might expose the parole board to bitter public criticism, and most parole boards prefer to keep an inmate in prison rather than incur the public’s anger.

There are also occasions when parole is used as a tool to support and main- tain institutional discipline. Individuals may possess very high potential for success on parole, but violate institutional rules and regulations continu- ally. In these situations, parole will frequently be denied. Occasionally, an inmate with a drug abuse problem may be counseled by the parole board to enroll in an existing drug-dependency program, sending a clear message to the inmate population that such rehabilitation programs are appropriate and functional for release. In this way, parole can be viewed as an incentive for good behavior and a sanction against inappropriate conduct. There are even situations in which parole may be denied so as to benefit the inmate. Circumstances occasionally arise when inmates are making rapid progress in academic pursuits or may be receiving and responding to necessary medical and/or psychological treatment. The parole board may temporarily postpone such a case for a few months to give these individuals the opportunity to complete their high school work, for example, or recover from medical treat- ment they are undergoing.

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Finally, there are situations in which the parole board may feel that individuals are good risks but ineligible for release because they have not served the mini- mum terms as fixed by the sentencing judge. Some have expressed a concern over the fact that the courts occasionally err in handing down sanctions more severe than necessary. Correctional officials, after more careful observation and evalu- ation than the courts could originally consider, may clearly document greater

The most visible function of a parole board is the discretionary release of an inmate from con- finement prior to the expiration of sentence on condition of good behavior in the community. This is commonly known as the parole release decision. However, parole boards have extensive authority to undertake a variety of other functions seldom acknowledged in the justice area. Setting Policy. The parole board enunciates and refines broad policy governing specific areas of parole, such as directives to community supervision officers on offenders whose drug tests show illicit drug use. Some policies require the officer to hold a revocation hearing under Morrissey v. Brewer; other jurisdictions may only suggest that officers tighten up the conditions of parole (“motivational” jail time, house arrest, or NA). When parole boards establish a “zero-tolerance” policy, a large portion of drug-abusing parolees may be returned to prison. Modification of presumed release date. If an offender is given a presumed release date, it usu- ally is based on conformity to institutional rules. When inmates persistently violate those, a decision may be made to delay release (“extend the time”) based on institutional behavior. In effect, the parole board reinforces control of prison inmates and encourages participation in institutional programs. Commutation of sentence. Inmates serving life sentences or double-life or life-plus-a-day or minimum sentences of several hundred years have few hopes of ever leaving the facility alive. It is possible, however, to petition the executive branch for commutation, a reduction in sen- tence length. A parole board, whose recommendation for commutation is seriously considered by the governor, usually hears the initial plea. “Lifers” who receive commutations usually leave the penal institution shortly thereafter. Revocation from Parole. If a supervising officer requests a hearing for revocation of parole under Morrissey and the hearing officer finds reasonable cause, the case will be heard by the parole board (or its authorized designee) and the offender’s grant of parole may be revoked. The offender is then returned to prison to serve additional time. Pardon. Only the executive branch may grant a pardon, absolving the offender in part or full from the legal consequences of the crime and conviction. Governors usually receive such peti- tions after they have been considered by the parole board, generally authorized to advise the governor on these matters. Reprieve. A reprieve is a stay in imposition of sentence, typically associated with death row inmates nearing their execution date. Parole boards, sometimes in conjunction with the gover- nor’s cabinet, may recommend reprieve to a governor. Incapacitation. Some offenders have demonstrated a pattern of violent and dangerous criminal behavior that continues unabated in prison. By denying parole and thus forcing such inmates to serve longer prison sentences, parole boards protect the public through disabling future vio- lent crime. This function is seldom recognized.

BOx 6.12 parOLe BOarD FuNCtiONs

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progress than the court expected. Nevertheless, as noted previously, state parole statutes may mandate a minimum time to be served (calculated as a percent- age of the minimum or maximum sentence) that even the parole board cannot ignore. Such inmates may be released, however, under work furlough programs.

parOLe BOarD reLease DeCisiONs All persons eligible for parole are not automatically granted a release. Occasionally, parole boards will not release individuals who could be released safely. This is partially a desire by parole boards to minimize the number of persons who are classified as good risks and released, but whom the board feel are, in reality, bad risks and expected to fail on parole. Failed parole is a prob- lem the boards seek to minimize (Wiggins, 1984).

Our ability to predict future recidivism has improved over the years; however, it is not without its critics (Gottfredson & Gottfredson, 1994; Monahan, 1981; Smykla, 1984). Furthermore, our ability to predict future violent behavior is limited, and as a result, there is a general tendency to overpredict dangerousness, which results in more persons being classified as bad risks,30 fewer persons being granted parole, and an increase in prison populations (Monahan, 1981). Although such tenden- cies have come under intense criticism, overprediction of dangerousness contin- ues (Morris, 1974; Smykla, 1984). This is probably due to the perception that overprediction is viewed as having smaller short-term costs. In the short run, it may be less expensive to incarcerate larger numbers of offenders than to permit a few dangerous persons to roam the streets and commit crimes. Such an approach is quite costly in the long run, however, as more and more persons are housed and cared for within the prison system. Furthermore, indications show that after extended prison sentences are served, some former inmates will commit more seri- ous crimes more frequently than they would have prior to their incarceration.

While the courts have ruled that parole cannot be denied on the basis of race, religion, or national origin,31 they have really not become involved in parole board policies and practices. This is due in large part to the fact that the Supreme Court has defined parole as a privilege rather than a right (Greenholz, 1979). Consequently, there is no constitutional mandate that there even be any formal parole release guidelines, no right to obtain access to institutional files, and no right to counsel at the hearing. Indeed, there is no constitutional requirement that there even be a formal hearing. The state is under no consti-

30Monahan and Steadman (1994). 31See Block v. Potter, 631 E2d 233 (3d Cir. 1980); Candelaria v. Griffin, 641 E2d 868 (10th Cir. 1980); Farris v. U.S. Board of parole, 384 F.2d 948 (7th Cir. 1973).

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Conditions of Parole 179

tutional obligation to articulate the reason for denial of parole, and there is no right of appeal, except as given by an individual state.

Most states have adopted laws and/or administrative policies that outline parole procedures. Some allow inmates access to their files and permit the presence of legal counsel. As of 1977, the U.S. Parole Commission32 and 23 states offered inmates the opportunity to internally appeal parole release hearing decisions (O’Leary & Hanrahan, 1977). Up to this point, however, courts have continued to refuse to become involved in any type of review of a negative parole board decision.

CONDitiONs OF parOLe Parole is, in essence, a contract between the state and the offender. If the offender is able to abide by the terms of the contract, freedom is maintained. If a violation of these conditions occurs or if a parolee is charged with a new crime, the parole board may revoke parole and return the offender to prison. The offender must abide by the contract and stay under parole supervision for the period of time outlined by the parole board. While every state has its own policies and procedures (Figure 6.4), parole usually lasts more than 2 but less than 7 years. Some states in fact permit discharge from parole after a very short time, as long as the offender has diligently adhered to the prerelease contract. While the exact content of the contracts varies from state to state and from individual to individual, the following federal guide- lines33 cover the majority of conditions that are usually adopted:

n You shall go directly to the district showing on this CERTIFICATE OF PAROLE (unless released to the custody of other authorities). Within 3 days after your arrival, you shall report to your parole advisor if you have one, and to the United States Probation Officer whose name appears on this certificate. If in an emergency you are unable to get in touch with your parole advisor, or your probation officer or his office, you shall communicate with [the United States Parole Commission].

n If you are released to the custody of other authorities, and after your release from physical custody of such authorities, you are unable to report the United States Probation Officer to whom you are assigned within 3 days, you shall report instead to the nearest United States Probation Officer.

n You shall not leave the limits of this CERTIFICATE OF PAROLE without written permission from the probation officer.

32Gottfredson and Gottfredson (1994). 33Hoffman (1994).

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Figure 6.4 Oregon Parole Board conditions of parole.

GENERAL/SPECIAL PAROLE AND POST-PRISON SUPERVISION CONDITIONS

Parole/Post-Prison Supervision is subject to all listed General Conditions and the designated Special Conditions. Prior to release the Board may modify the conditions at any time. After parole/post-prison supervision has commenced, conditions may be added upon your signed consent or after opportunity to be heard, orally or in writing.

Parole may be revoked for violation of any of these conditions and/or you may be returned when parole is not in your best interest or the best interest of society.

The Board may, at its discretion, sanction violations of Post-Prison Supervision Conditions; sanctions may include returning you to the Department of Corrections custody.

As used in this exhibit, the following words have the following meanings: “Offender” means persons released to parole or post-prison supervision. “Parole Officer” shall also mean the supervisory authority under the post- prison supervision system.

GENERAL CONDITIONS

1. Pay supervision fees, fines, restitution, or other fees ordered by the Board.

2. Not use or possess controlled substances except pursuant to a medical prescription.

3. Submit to testing of breath or urine for controlled substance or alcohol use if the offender has a history of substance abuse or if there is a reasonable suspicion that the offender has illegally used controlled substances.

4. Participate in a substance abuse evaluation as directed by the supervising officer and follow the recommendations of the evaluator if there are reasonable grounds to believe there is a history of substance abuse.

5. Remain in the State of Oregon until written permission to leave is granted by the Department of Corrections or a county community corrections agency.

6. If physically able, find and maintain gainful full-time employment, approved schooling, or a full-time combination of both. [Any waiver of this requirement must be based on a finding by the court stating the reasons for the waiver.]

7. Change neither employment nor residence without prior permission from the Department of Corrections or a county community corrections agency.

8. Permit the supervising officer to visit the offender or the offender’s residence or work site, and report as required and abide by the direction of the supervising officer.

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Figure 6.4—Cont’d

9. Consent to the search of person, vehicle, or premises upon the (required) request of a representative of the supervising officer if the supervising officer has reasonable grounds to believe that evidence of a violation will be found, and submit to fingerprinting or photographing, or both, when requested by the Department of Corrections or a county community corrections agency for supervision purposes.

10. Obey all laws, municipal, county, state, and federal.

11. Promptly and truthfully answer all reasonable inquiries by the Department of Corrections or a county community corrections agency.

12. Not possess weapons, firearms, or dangerous animals.

SPECIAL CONDITIONS

1. Offender shall be evaluated by a mental health evaluator and follow all treatment recommendations.

2. Offender shall follow a psychiatric or psychotropic medication monitoring program with a physician per the physician’s instructions.

3. Offender shall have no contact with minor females and shall not frequent

any place where minors are likely to congregate (e.g., playgrounds, school grounds, arcades) without prior written approval from their supervising officer.

4. Offender shall have no contact with minor males and shall not frequent any place where minors are likely to congregate (e.g., playgrounds, school grounds, arcades) without prior written approval from their supervising officer.

5. Offender shall submit to random polygraph tests as part of a sex offender surveillance program. Failure to submit to the tests may result in return to Department of Corrections custody. Specific responses to the tests shall not be the basis for return to Department of Corrections custody.

6. Offender shall enter and complete or be successfully discharged from a recognized and approved sex offender treatment program which may include polygraph and/or plethysmograph testing and a prohibition on possession of printed, photographed, or recorded materials that the offender may use for the purpose of deviant sexual arousal.

7. Offender shall pay court-ordered restitution to the clerk of the court of the county of sentencing (ORS 137.106, OAR 255-65-005).

8. When criteria applies, the Department of Corrections may notify the community of the sex offender’s status pursuant to ORS 181.507-509, OAR 291-28-010 to 291-28-030.

9. Offender shall not use intoxicating beverages.

10. Other: Special conditions may be imposed that are not listed above when the Board of Parole and Post-Prison Supervision determines that such conditions are necessary.

11. Offender shall have no contact with those listed below.

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n You shall notify your probation officer immediately of any change in your place of residence.

n You shall make a complete and truthful written report (on a form provided for that purpose) to your probation officer between the first and third day of each month, and on the final day of parole. You shall also report to your probation officer at other times as he directs.

n You shall not violate any law. Nor shall you associate with persons engaged in criminal activity. You shall get in touch immediately with your probation officer or his office if you are arrested or questioned by a law enforcement officer.

n You shall not enter into any agreement to act as an “informer” or special agent for any law-enforcement agency.

n You shall work regularly, unless excused by your probation officer, and support your legal dependents, if any, to the best of your ability. You shall report immediately to your probation officer any change in employment.

n You shall not drink alcoholic beverages to excess. You shall not purchase, possess, use, or administer marijuana or narcotics or other habit-forming or dangerous drugs, unless prescribed or advised by a physician. You shall not frequent places where such drugs are illegally sold, dispensed, used, or given away.

n You shall not associate with persons who have a criminal record unless you have permission of your probation officer.

n You shall not have firearms (or other dangerous weapons) in your possession without the written permission of your probation officer, following prior approval of the United States Board of Parole.

n You shall, if ordered by the Board pursuant to Section 4203, Title 18, U.S.C., as amended October 1970, reside in and/or participate in a treatment program of a Community Treatment Center operated by the Bureau of Prisons, for a period not to exceed 120 days.

The U.S. Parole Commission’s authority and reach are declining rapidly.34

parOLe reVOCatiON In 1972, the U.S. Supreme Court established procedures for parole revoca- tion with the case of Morrissey v. Brewer, 408 U.S. 471 (1972). In this case, the Supreme Court said that once parole is granted, it is no longer just a privi- lege but a right. Consequently, the court ruled that parolees should be granted

34Violators of federal statutes sentenced after November 1, 1987 do not fall under the authority of the U.S. Parole Commission but are instead sentenced under new federal sentencing guidelines, a form of determinate sentencing that emphasizes just deserts. Sentencing guidelines were developed by the U.S. Sentencing Commission and are quite similar to the system used under the Parole Commission.

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Problems with Parole Board Discretionary Power 183

certain due process rights in any parole revocation proceeding. While the court did not grant a full array of due process rights in Morrissey, it did advance the mandate of fundamental fairness. The court required the following minimum due process rights in the event of a parole revocation proceeding.

n Parolee given advanced written notification of the inquiry, its purpose, and alleged violation.

n A disclosure to the parolee of the evidence against him or her. n The opportunity to be heard in person and present witnesses and

documentary evidence. n The right to confront and cross-examine adverse witnesses. n A neutral and detached hearing body. n A written statement by the hearing body as to the evidence relied

upon and reasons for revoking parole.

The Morrissey case also established a dual state procedure, including a prelimi- nary inquiry at the time of the alleged parole violations as well as a formal revocation hearing. Left unanswered, however, was the right to counsel, and whether the exclusionary rule should apply to revocation cases. One year later, in the case Gagnon v. Scarpelli, 411 U.S. 778 (1973), the court held that parol- ees do have a limited right to counsel in revocation proceedings and that the hearing body must determine, on a case-by-case basis, whether counsel should be afforded. While it need not be granted in all cases, “… Counsel should be provided where, after being informed of his right, the … parolee requests counsel, based on a timely and colorable claim that he had not committed the alleged violation or, if the violation is a matter of public record or uncontested, there are substantial reasons in justification or mitigation that make revocation inappropriate.”

The exclusionary rule issue remains unanswered. While illegally seized evi- dence cannot be used in a criminal trial, many states do permit such evidence to be used in parole revocation cases, where the standard is “probable cause.” To date, the courts have generally upheld this practice.

prOBLems with parOLe BOarD DisCretiONary pOwer Beginning in the 1970s, dramatic shifts began in the field of corrections. Dissatisfied with high recidivism rates, many states opted to amend the tra- ditional indeterminate sentencing model and adopt some of the aspects of a determinate or fixed sentencing model (see Table 6.3). Use of the indetermi- nate sentence in the United States represented a grand experiment in control- ling, if not eliminating, criminal behavior. Indeterminate sentencing, in which

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the judge sets limits within legislatively determined minimum and maximum sentences (e.g., 1-7 years for burglary), would focus on the individual criminal and his or her needs rather than establishing a fixed penalty for certain types of crime. It sought to maximize the possibility of criminal rehabilitation through the use of various educational, vocational, and psychological treatment pro- grams in the institution, and the use of parole board that would release the inmate on parole at the optimum moment when change had occurred.

Through this “medical model of corrections,” it was argued that such parole board decision making would offer several benefits:

table 6.3 Sentencing Models by State

State Type of sentencing

Mandatory sentencing Mandatory offenses

Alabama Determinate Yes Repeat felony Alaska Determinate,

presumptive Yes Murder, kidnapping, firearms, repeat felony

Arizona Determinate, presumptive

Yes Firearms, prior felony convictions

Arkansas Determinate Yes Robbery, deadly weapons California Determinate,

presumptive No

Colorado Determinate, presumptive

No

Connecticut Determinate Yes Sex assault with firearm, burglary, repeat felony, assault on elderly

Delaware Determinate Yes Murder, kidnapping, prison assault, robbery, narcotics, deadly weapons, habitual criminal, obscenity, others

Florida Indeterminate Yes Drugs Georgia Determinate Yes Armed robbery, burglary, drugs Hawaii Indeterminate No Idaho Determinate Yes Firearms, repeat extortion, kidnap or rape with bodily injury Illinois Determinate Yes Major offenses, specified felonies and offenses, repeaters,

weapons Indiana Determinate,

presumptive Yes Repeat felony, violent crime, deadly weapons

Iowa Indeterminate Yes Forcible felonies, firearms, habitual offenders, drugs Kansas Indeterminate Yes Sex offense, firearms Kentucky Indeterminate No Louisiana Indeterminate Yes Drugs, violent crime Maine Determinate No Maryland Determinate,

guidelines Yes Repeat violent offenders, handgun

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State Type of sentencing

Mandatory sentencing Mandatory offenses

Massachusetts Indeterminate Yes Firearms, auto theft, drug trafficking Michigan Indeterminate Yes Murder, armed robbery, treason, firearms Minnesota Guidelines No Mississippi Determinate Yes Armed robbery, repeat felony Missouri Determinate Yes Dangerous weapons, repeat felony Montana Indeterminate Yes Firearms Nebraska Indeterminate No Nevada Determinate Yes 2nd degree murder, 1st degree kidnapping, sexual assault,

firearms, repeat felony New Hampshire Indeterminate Yes Firearms New Jersey Determinate,

presumptive Yes Sexual assault, firearms

New Mexico Determinate, presumptive

Yes Firearms

New York Indeterminate Yes Specified violent and nonviolent felonies North Carolina Determinate,

presumptive Yes Armed robbery, 1st degree burglary, repeat felony with firearm

North Dakota Determinate Yes Firearms Ohio Determinate Yes Rape, drug trafficking, firearms Oklahoma Determinate No Repeat felony Oregon Indeterminate,

guidelines Yes Drugs

Pennsylvaniaa Indeterminate, guidelines

Yes Selected felonies with firearms, within 7 years of prior convictions, in or near public transportation

Rhode Island Indeterminate No South Carolina Determinate Yes Armed robbery, drugs, bomb threat South Dakota Indeterminate No Tennessee Determinate,

indeterminate Yes Specified felonies, firearms, repeat felony

Texas Determinate Yes Repeat felony, violent offenses Utah Indeterminate No Vermont Indeterminate Yes Drugs, violent crime Virginia Determinate No Washington Indeterminate Yes Firearms, rape, repeat felony West Virginia Indeterminate Yes Firearms in felony Wisconsin Indeterminate No Wyoming Indeterminate No

a Pennsylvania updated as of December 1982. Sources: Morelli, Edelman, and Willoughby (1981). Criminal Courts Technical Assistance Project (January, 1982). and Kanvensohn (1979).

table 6.3 Sentencing Models by State—Cont’d

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n It would provide an incentive for rehabilitation by linking it to release from prison.

n This incentive would also apply as a mechanism to control the prison population, ensuring inmate discipline and safety.

n Another latent function of parole would be to provide a mechanism to control the size of the prison population.

n Similarly, the parole board would share the responsibility for societal protection with the judiciary through its control over prison release procedures. The board could also serve as a check and balance to judicial discretion by reducing sentencing disparities (such that inmates who committed the same crime would serve approximately the same amount of actual time in prison).

However, a number of factors combined to question the efficacy and fairness of medical model. Penologists, such as Martinson (1974) and MacNamara (1977), reviewing the outcome of research reports on correctional rehabilitation programs, concluded that the medical model failed to cure criminals, reduce recidivism, or protect the public.35 Others (Morris, 1974) argued that the medi- cal model harmed inmates because the program participation was tied to and dependent on such participation. From the inmates’ point of view, the deci- sions of the board were arbitrary, capricious, prejudicial, unpredictable, and not subject to external review by any other governmental body (Irwin, 1977). In fact, a number of studies (see Goodstein, 1980) have indicated that inmate frustration over failure to obtain release on parole is a factor that contributes to prison violence (Hassine, 2004).

parOLe BOarD DeCisiON-maKiNg guiDeLiNes Concerns over some of these issues led a number of jurisdictions, including the Federal Parole System, to adopt parole release guidelines. The U.S. Parole Commission developed its system of parole decision-making guidelines in 1974. The major complaint against parole board decision making has been, and remains, the great amount of discretionary power. The parole decision-making guidelines propose to structure this discretionary power to promote equity and fairness36 and also to reduce sentencing disparity. The task was to make the decisions of the parole board less arbitrary and more explicit.

35The weight of evidence has shifted against the “nothing works in corrections” argument. Overwhelming evidence shows that programs designed specifically for offenders’ needs and delivered in a coherent manner by trained intervention personnel assisted by competent supervisors work and are effective. See Cullen and Gendreau (2001). 36As defined by Gottfredson, Hoffman, Sigler, and Wilkins (1980:7), equity and fairness mean that “similar persons are dealt with in similar ways in similar situations. Fairness thus implies the idea of similarity and of comparison.”

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These guidelines usually involve a consideration of the seriousness of the commit- ment offense and a “risk” score that includes factors predictive of failure or success on parole. Recommended terms of incarceration are predetermined. For example, if the offender is rated as a “good” risk level and has committed a less serious offense, his or her recommended term of incarceration might fall between 6 and 9 months. Conversely, an offender rated as a “high risk” and convicted of a more serious offense might serve a much longer term prior to consideration for parole.

In this fashion, the guidelines system attempts to structure the discretionary power of the parole board while at the same time maintaining equity and fair- ness (Hoffman, 1983).

Board examiners are also permitted to deviate from the guidelines. Examiners can shorten or lengthen the amount of time specified by the guidelines when, in their judgment, the case at hand appears to merit such consideration. However, when such a step is taken, the examiner is usually required to state the specific factors present that led to such a judgment.

Research indicates that guidelines appear to have some effect in reducing sentenc- ing disparity among inmates. Sentencing disparity is divergence in the types and lengths of sentences imposed for the same crimes, with no evident reason for the differences. The use of parole board decision-making guidelines attempts to deal

One alternative to limiting sentencing disparity is the presumptive sentencing system, a varia- tion of the determinate sentence. In presumptive sentencing, the state legislature sets minimum, average, and maximum terms, allowing the judge to select a term based on the characteristics of the offender and any aggravating or mitigating circumstances proven in court. The sentence imposed will be the time served, less any credits against that sentence that the offender earns (jail time, good time, and program time). California has a presumptive sentencing structure that provides three options to the sentencing judge, as seen here for the crime of burglary.

1. Aggravating circumstances: 7 years 2. Presumptive (average) sentence: 5 years 3. Mitigating circumstances: 3 years

Ordinarily, the judge would decide if the offender should be placed on probation or imprisoned (the “in-out” decision). Assuming imprisonment to be the answer, the judge would impose the average or presumed term of 5 years, unless mitigating circumstances were present at the time of the offense (such as the offender being under the influence of a controlled substance at the time of the offense or had a weak personality and was easily led into committing crime for peer approval). If mitigating circumstances were proven, the judge would impose the least sentence (3 years). However, if aggravating circumstances were proven in court, the judge must impose the highest sentence (7 years). Examples of aggravating circumstances are gross bodily harm to the victim, prior incarceration in prison, or victim extremely vulnerable (blind, frail, paraple- gic, over 60 years of age, and so on).

BOx 6.13 presumptiVe seNteNCiNg

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with the traditional problems of the parole process. They do not represent a pana- cea, but they are an alternative to the typical method, outright abolition, or use of determinate sentencing. There is evidence of more widespread adoption and use of formal risk assessment, as well as toward structural revocation decision making (Runda et al., 1994; Samra, Pfeifer, & Ogloff, 2000).

get-tOugh seNteNCes While some criminologists and practitioners have been content to alter various aspects and procedures of the parole process, others have called for its com- plete abolition. A number of states have, for all intents and purposes, abolished parole. Whatever the change, one should be aware of the argument by Bill Woodward, former Director of Criminal Justice in Colorado (Gainsborough, 1997:3): “The problem with abolishing parole is you lose your ability to keep track of the inmates and the ability to keep them in treatment if they have alco- hol and drug problems.” As seen in Table 6.4, the attack on parole release has been ongoing for more than 20 years.

One example of shifts in sentencing can be seen in the development of three- strikes sentencing statutes across the United States. While some argue that they have the potential to reduce violent crime committed by repeat offenders by selective incapacitation of up to 25 years, the multiple-billion dollar costs for prison construction, operations, and maintenance are considerable. Further,

In an attempt to limit, if not remove, sentencing disparity, many jurisdictions have implemented a set of guidelines to help judges decide what sentence should be imposed given the serious- ness of the offense and the characteristics of the offender. Guidelines are based on past expe- rience by a large number of sentencing judges and represent average sentences imposed by sentencing peers in similar cases. Obviously, inasmuch as the determinations are guidelines, judges are not required to impose the recommended sentence (but at least must state in writ- ing why they are deviating from the recommended range). One such guideline to determine sentence length is from Minnesota. Across the top of the guideline grid is a score for the characteristics the offender brings to the sentencing hearing: number of prior juvenile adjudications, adult convictions for misdemeanors and felonies, num- ber of times the offender has been previously incarcerated, employment status and educational attainment, and so on. Obviously, the higher the score, the worse the criminal history and the longer the recommended sentence length. The severity of the offense is found on the left side of the grid, ranked from the least severe to highest offense. After the judge calculates the criminal history score, she or he locates the offense category and reads across to see what other judges have done in terms of sentence length. The sentencing judge then imposes a sanction within the suggested range. Obviously, such guidelines must be revalidated frequently.

BOx 6.14 seNteNCiNg guiDeLiNes

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Reentry: The New Challenge 189

locking up second- and third-time offenders for long periods of time will not (1) address the successive waves of juveniles and young offenders who will take the place of those incarcerated for 25 years, (2) reduce the risk factors of individuals involved in crime, nor (3) be accurate enough to isolate the truly dangerous from the truly stupid. Three-strikes sentencing assumes that offenders operate as rational persons in a middle-class background and are driven by free will to commit crimes. Most criminals are neither so simplistic nor pure. A number of states and the federal government have enacted these laws since 1993 (Campaign for an Effective Crime Policy, 1996). California has used these statutes more extensively than other states, and at least 49,000 offenders have been sentenced to at least twice to three times the sentence they would have received, absent these “enhancement” laws. One untoward outcome is that geriatric inmates (those over age 50) will become an increasing proportion of California’s prison population, leading one wag to refer to the California prison system as the largest “old-age home” in the nation.

reeNtry: the New ChaLLeNge The large number of incarcerated offenders in the United States has led to the inevitable result—a large number of offenders who will reenter society each year. In fact, reentry has become the new buzz word used by policy makers to describe the process by which offender come back into the community. Some have argued that parole is essential to this process (Travis and Petersilia, 2001),

table 6.4 Significant Events in the Abolition of Parole

Year Event

1976 Maine abolishes parole 1978 California abolishes indeterminate sentences and discretionary

parole release 1980 Minnesota abolishes parole 1983 Florida abolishes parole 1984 Washington abolishes parole 1985 Colorado reestablishes parole 1986 Congress abolishes parole at the federal level 1990 Delaware abolishes parole 1993 Kansas abolishes parole 1994 Arizona and North Carolina abolish parole 1995 Virginia abolishes parole 1996 Ohio abolishes parole 1998 New York passes Jenna’s Law, which eliminates discretionary

release for all violent felony offenders

Source: Compiled by authors.

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whereas others (Austin, 2001) believe that because a high percentage of offend- ers pose minimal risk to public safety, parole supervision should be eliminated or shortened to about 6 months. As it is estimated that a significant percent- age of offenders who will be returning to the community will have a number of important needs (Lowenkamp & Latessa, 2005; Lurigio, 2001), there is little doubt that services and treatment in the community should be an important part of the reentry process. Indeed, several states have already created reentry programs designed to coordinate efforts and services among the institution, parole, and community correctional programs and treatment providers.

summary Although the early beginnings of parole can be traced to Europe and Australia, the process as it is known today is almost exclusively an American invention. Once embraced by early reformers, parole spread quickly and, by 1944, every state jurisdiction had a parole system. Despite growth, parole was not without its detractors. Early criticism of parole included a suspicion of the way in which prisoners were selected for release, concern over a lack of community supervi- sion, and extensive abuse by prison authorities. Many of the criticisms leveled at parole continue today.

There is considerable contemporary discussion relative to the value of parole. Indeed, there are those who oppose the indeterminate sentencing mode in gen- eral and wish to see parole abolished in particular. Concerns over these issues, and the perceived ineffectiveness of the present parole system, have led jurisdictions to either abolish parole altogether or adjust the entire parole process dramatically. Of all community programs, parole faces perhaps the greatest challenge. There are new indications, however, that pragmatism in the form of simple economics may renew an interest in parole. As our jail and prison populations swell above capacity, criminal justice planners and politicians will be forced to either continue to construct new facilities or develop alternative models. Parole emerges as a rela- tively inexpensive alternative model and, perhaps more importantly, one that is already in place. There is a need, though, to improve both the parole process and supervision so as to overcome the deficiencies detailed earlier.

Even if this apparent renewed interest in parole phases out, and parole as we know it is abolished in a stampede toward the determinate sentencing model, the need to assist inmates in their transition from the institution to the free community will remain. The problems facing released inmates are usually temporal or material—obtaining employment, suitable housing, financial aid, alcohol and other drug abuse, and so on.

As parole moves toward structuring release and revocation decisions to remove unwanted discrepancies and jurisdictions consider abolition of parole as a release mechanism (whether assisted by guidelines or from clinical experience),

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two facts remain. First, parole has always served as a “release valve” or mecha- nism to prevent (or lower) prison overcrowding, a fact sadly ignored by policy makers and politicians. Second, discretionary parole has within it the author- ity to retain dangerous persons whose behavior would lead reasonable persons, citizens, and experienced correctional practitioners alike to protect society by not paroling dangerous offenders. If the nation is to avoid the even more extreme of hiking sentences by multiples of current statutory terms, parole authorities should have the ability to protect the public by selective incapacitation of those who have several convictions for crimes against a person (murder, rape, aggra- vated assault, robbery, etc.). Of course, it is important to remember that parole board members are human, and as such they cannot be expected to be infal- lible. Some inmates invariably are released who should not be, whereas others are kept far longer than necessary. Outcomes such as these require consider- ation of ways and means to intended objectives, as well as justice.

reView QuestiONs 1. Contrast the punishment model with the reform model of corrections. 2. How did Maconochie contribute to the development of parole? 3. How did parole develop in the United States? 4. What were the early criticisms of parole in America? 5. What were three elements of corruption that emerged in American

corrections between 1790 and 1930? 6. Contrast the view of criminals offered by Maconochie with that of

J. Edgar Hoover. 7. How did the decade from 1925 to 1935 affect attitudes of the American

public toward parole? 8. Debate the following resolution: Discretionary parole from prison should

be abolished. 9. What functions do parole boards serve? 10. If parole boards could not release offenders into the community, would

they be abolished? Why or why not? 11. How do sentencing guidelines work? Parole guidelines? 12. How can parole boards use and implement intermediate sanctions? 13. How can three-strikes laws affect corrections?

reCOmmeNDeD reaDiNgs Hughes, R. (1987). The fatal shore. New York: Alfred A. Knopf. This is the definitive book on the

history of Australia as a penal colony, and the beginning roots of parole as developed by Captain Maconochie.

Rothman, D. J. (1971). The discovery of the asylum: social order and disorder in the New Republic. Boston: Little, Brown. This book presents an excellent history of the use of punishments and corrections in early colonial America.

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Rothman, D. J. (1980). Conscience and convenience: the asylum and its alternatives in progressive America. Boston: Little, Brown. A fastidious discussion of the modern effort to reform the pro- grams that have dominated criminal justice in the twentieth century.

reFereNCes Allen, H. E., & Simonsen, C. E. (2001). Corrections in America (9th ed.). Upper Saddle River, NJ:

Prentice Hall.

American Correctional Association (2001a). Directory. Laurel, MD: ACA.

American Correctional Association (2001b). Probation and parole 2001-2003. Lanham, MD: ACA.

Austin, J. (2001). Prisoner reentry: current trends, practices, and issues. Crime & Delinquency, 47, 314–334.

Babst, D. V., Inciardi, J. A., & Jarman, D. R. (1970). The uses of configural analysis in parole prediction research. New York: Narcotics Control Commission.

Barlow, M., Barlow, D., & Chiricos, T. (1995). Economic conditions and ideologies of crime in the media: a content analysis of crime news. Crime & Delinquency, 43, 3–19.

Barnes, H. E., & Teeters, N. D. (1959). New horizons in criminology. Englewood Cliffs, NJ: Prentice Hall.

Barry, J. V. (1957). Captain Alexander Maconochie. The Victorian Historical Magazine, 27, 1–18.

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C h a p t e r 8

Assessment is the engine that drives effective interventions. —Edward Latessa

INtrODUCtION Over the years, the assessment of offenders has evolved from using a “gut feeling” to instruments that focused on past behavior (static indicators) to what are now called fourth-generation instruments. The latest instruments combine static and dynamic factors together to provide a more accurate prediction of risk, as well as identification of the crime-producing needs that should be targeted for change.

Offender Assessment

actuarial prediction

reliability

classification system

responsivity

false negatives

risk management

false positives

risk predictors

major risk factors

risk reduction

reassessment

validity

Key terms

Static risk predictors refer to those factors or characteristics of an offender that cannot change. An example would be criminal history. For example, the number of prior arrests, age at first arrest, number of times incarcerated, and so on are good predictors of risk. However, once in place they cannot change. Dynamic risk predictors are those factors or characteristics of an offender that contribute to their risk, but are changeable, for example, peer associations, substance abuse, crim- inal thinking, and lack of employment. These factors also help predict reoffending and provide the probation or parole officer with areas to target. It should be noted that there are two types of dynamic factors: acute and stable. Acute factors can change quickly (such as employment), whereas stable factors are areas that take more time to change (such as attitudes and values).

BOx 8.1 statIC VersUs DyNamIC rIsK preDICtOrs

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ImpOrtaNCe OF assessmeNt aND CLassIFICatION There are a number of reasons that classification and assessment of offenders are important in community corrections. First, assessment and classification help guide and structure decision making and provide important information that correctional practitioners and officials can use for basing decisions such as parole release. Second, it helps reduce bias by eliminating extralegal factors, such as race and gender, from consideration. Third, it enhances public safety by allowing court and correctional agencies to identify higher-risk offenders. Fourth, it helps manage offenders in a more efficient manner. This allows agen- cies to develop caseloads and workloads around risk and needs and to con- serve scarce resources for those who need them most. Finally, the use of these instruments can aid in legal challenges. It is much easier to justify a decision based on a structured process that has been validated than on “gut feelings.” Perhaps the most important reason to conduct good assessments of offenders is that it improves the effectiveness of correctional programs. This is best illus- trated by looking at some principles.

prINCIpLes OF OFFeNDer CLassIFICatION Through the work of a number of researchers, our understanding of classifica- tion and assessment and the important role it plays in community corrections is becoming more apparent (Andrews, 1983, 1989; Bonta & Motiuk, 1985; Gendreau, Goggin, & Little, 1996; Jones, 1996; Kennedy & Serin, 1997; Latessa & Lovins, 2010).

Through the work of Andrews, Bonta, and Hoge (1990), there has been an identification of certain principles that can help the guide assessment and clas- sification process. Let’s now review these principles.

n Risk—Higher-risk offenders are characterized by greater criminogenic needs; use a valid and reliable measure to assess offender risk; target higher-risk offenders for treatment.

n Need—Match offenders to programs that address their criminogenic needs; target more criminogenic needs than noncriminogenic needs.

n Responsivity—Use potent behavior change strategies (i.e., social learning, cognitive-behavioral approaches); deliver intervention in a style and mode consistent with the ability and learning style of the offender and recognize that individuals may be more responsive to certain staff.

n Professional Discretion—Having considered risk, need, and responsivity, decisions are made as appropriate under present conditions.

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217Principles of Offender Classification

risk

For our purposes, risk refers to the probability that an offender will reoffend. Thus, high-risk offenders have a greater probability of reoffending than low- risk offenders. It is important to remember that seriousness of the offense usu- ally trumps “risk.” That is, someone who commits a violent offense may be incarcerated, even if they are at low risk to reoffend.

The risk principle involves predicting future criminal behavior and matching interventions and supervision to the risk level of the offender. This principle states that interventions should be focused primarily on higher-risk offenders. The reason is simple: they have the highest chances of reoffending. Besides, why should we devote resources to those offenders who have a low probability of coming back again? Here is another way to think about it. Suppose that half of all offenders who leave prison never return. Are we worried about this group? Well, not as much as the half that will return. This is the group we are most concerned about and the ones where we should place most of our efforts. Of course, in order to meet this principle, it is necessary to know who is the higher- risk offender, which involves a valid and reliable assessment process. Not only it is a question of resources, but it is also an effectiveness question. A number of studies have shown that placing lower-risk offenders into intense programs and higher levels of supervision can actually increase their failure rates.

Figure 8.1 shows results from a study of intensive rehabilitation supervision in Canada. Data showed that higher-risk offenders placed in the intensive rehabilitation supervision program had a 32 percent recidivism rate after the two-year follow-up. Higher-risk offenders not placed in the program had a 51 percent recidivism rate. This is a 19 percent reduction in recidivism for higher- risk offenders. However, low-risk offenders placed in the treatment program

Figure 8.1 Study of intensive rehabilitation supervision in Canada. Source: Bonta, Wallace-Capretta, and Rooney (2000).

Recidivism Rates

Treatment Nontreatment

51.1

14.5

High Risk

60

Low Risk 32.3 31.6

50

40

30

20

10

0

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reported the same recidivism rate as their high-risk counterparts. Conversely, lower-risk offenders not placed in the program reported a recidivism rate almost 20 percent lower. In a nutshell, the intensive rehabilitation supervision program worked for higher-risk offenders, but actually increased recidivism rates for lower-risk offenders.

The risk principle can also be seen in a study that Latessa, Lovins-Brusman, and Smith (2010) conducted in Ohio. This study examined the effectiveness of 44 halfway houses and 20 community-based correctional facilities and involved more than 20,000 offenders. Figure 8.2 shows average changes in recidivism based on the risk level of the offender. Low-risk offenders actually showed an increase in recidivism, while there was a reduction in recidivism for high-risk offenders.

The question is why do programs that have such a positive effect on high- risk offenders have such as negative effect on low risk? There are a couple of explanations. First, placing low-risk and high-risk offenders together is never a good practice. For example, if you had a son or daughter that got into some trouble would you want them placed in a group with high-risk kids? Of course not. Second, when we take lower-risk offenders, who, by definition, are fairly prosocial (if they weren’t they wouldn’t be low risk) and place them in a highly structured, restrictive program, we actually disrupt the factors that make them low risk. For example, if you were sent to a correctional treatment program for 6 months, how many of you would lose your job or have to drop out of school? How many would have family disruption? How many think the neigh- bors would have a “welcome home from the correctional program” party when you got out? In other words, you would probably increase your risk, not reduce it. The risk principle is the “who” to target.

Need

The second principle is known as the need principle and is the “what” to target. The need principle states that interventions and programs should target crimi- nogenic risk factors, those areas highly correlated with criminal behavior.

Correlates of Criminal Conduct

What factors are correlated with criminal conduct? This is a critical ques- tion and one that criminologists have been wrestling with since criminology began. The first person to study criminals scientifically was Cesare Lombroso, who in 1876 wrote Criminal Man. Lombroso had personally studied more than 5000 Italian criminals and, based on his studies, believed that about one-third of all offenders were “born” criminal, or what he called atavistic throwbacks. Lombroso believed that the born criminal could be identified

Figure 8.2 Average difference in recidivism by risk for halfway house offenders. Source: Latessa et al. (2010)

Low risk recidivism by 3%

Moderate risk recidivism by 6%

High risk recidivism by 14%

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through a number of factors: excessive hairiness, sloping foreheads, tattoos, solitary line in the palm of the hand, and other attributes. Despite the pop- ularity at the time of this theory, Lombroso was wrong and his work was flawed. The reason he is important, however, is that he was the first person to try and study criminals scientifically. Since Lombroso, there have been hun- dreds, if not thousands, of studies. Of course, this is part of the problem. If you start reading this literature, it will take years, and when you are done you will be just as confused as when you started. For every study that says some- thing is a risk factor, there is another that says it isn’t. So what do we believe? Fortunately, through the use of meta-analysis, researchers have been able to review large numbers of studies and determine effect sizes (how strong factors are in predicting risk).

Over the years, research by scholars such as Gendreau (1996), Simourd and Andrews (1994), and Andrews and Bonta (1996) has provided an identifica- tion of the major risk factors associated with criminal conduct. Table 8.1 shows

table 8.1 Major Set of Risk Factors

1. Antisocial/procriminal attitudes, values, beliefs, and cognitive emotional states 2. Procriminal associates and isolation from anticriminal others 3. Temperamental and personality factors conducive to criminal activity, including

n psychopathy n weak socialization n impulsivity n restless/aggressive energy n egocentricism n below average verbal intelligence n a taste for risk n weak problem-solving/self regulation skills

4. A history of antisocial behavior n evident from a young age n in a variety of settings n involving a number and variety of different acts

5. Family factors that include criminality and a variety of psychological programs in the family of origin, including n low levels of affection, caring, and cohesiveness n poor parental supervision and discipline practices n outright neglect and abuse

6. Low levels of personal educational, vocational, or financial achievement 7. Low levels of involvement in prosocial leisure activities

n allows for interaction with antisocial peers n allows for offenders to have idle time n offenders replace prosocial behavior with antisocial behavior

8. Abuse of alcohol and/or other drugs n it is illegal itself (drugs) n engages with antisocial others n impacts social skills

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C h a p t e r 8 : Offender assessment220

the eight major risk factors, or correlates of criminal conduct, starting with antisocial, procriminal attitudes, values, beliefs, and cognitive emotional states (such as anger and rage).

The risk factor of antisocial, procriminal attitudes, values, beliefs, and cognitive emotional states manifests itself in several important ways—negative expressions about the law, about conventional institutions, about self-management of behav- ior, and a lack of empathy and sensitivity toward others. In addition, offenders often minimize or neutralize their behavior. Neutralizations are a set of verbal- izations that function to say in particular situations that it is okay to violate the law. Neutralization techniques include denial of responsibility—criminal acts are due to factors beyond the control of the individual (I was drunk; some dude told me I could borrow his car, etc.); denial of injury—the offender admits responsi- bility for the act, but minimizes the extent of harm or denies any harm was done (i.e., yeah, I beat him up, but they only went to the hospital so they could collect unemployment); denial of the victim—reverses the role of the offender and vic- tim and blames the victim (i.e., she knows not to nag me; I’m really the victim here); system-bashing—those who disapprove of the offenders act are defined as immoral hypocritical or criminal themselves (i.e., everyone uses drugs, I just got caught); and appeal to higher loyalties—live by a different code; the demands of larger society are sacrificed for the demands of more immediate loyalties (i.e., me and my boys have a different set of rules we live by).

The second major risk factor is one that we are all familiar with—having pro- criminal friends and a lack of prosocial friends and acquaintances. As our mothers all knew, whom you hang around with is very important. Friends often act as role models, provide the context, and provide the reinforcement for criminal behavior.

The third major risk factor is one that is often ignored in assessment— temperamental and personality factors. These include acting impulsively, weak socialization, being adventurous and a risk taker, and a lack of coping and problem-solving skills. Please note that egocentrism is correlated with risk. Many offenders are self-centered and have an inflated sense of self (as opposed to the commonly held perception that offenders suffer from low self-esteem). Studies are finding that criminals are more likely to be characterized as nega- tive or hostile in interpersonal relationships, unempathetic, and lacking in self- control. However, personality is most likely working in tandem with other risk factors such as peers and attitudes. Just being egocentric will not make some- one a high risk for criminal conduct. If that were the case, we would have to lock up most of the judges and professors in this country.

The fourth major risk factor is the one that is used most commonly: history. This includes criminal history and other antisocial behavior. While history is a very strong predictor of future behavior, it has its limitations. The first

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limitation is that it is not very dynamic, and while it is useful for prediction, it does not provide much direction as to targets for change. The other limitation of history is that one has to have the history before it can be used in prediction. For example, it is not difficult to predict that someone who has four or five prior DUI offenses has a drinking problem and might drink and drive again. At one point, however, they had their first DUI. Undoubtedly, they probably had a number of other risk factors; however, because they had no history of DUI offenses, we would have had little on which to base prediction if we relied primarily on history. Again, this is not to say that history is not a very strong (if not the strongest) predictor of future behavior. Life course studies indicate that by age 12 up to 40 percent of later serious offenders have committed their first criminal act and that by age 14 up to 85 percent have committed their first criminal act.

The fifth major risk factor involves family factors, including criminal behavior in the immediate family, and a number of other problems, such as low levels of affection, poor parental supervision, and outright neglect and abuse.

In at six are low levels of personal educational, vocational, and financial achievement—essentially work and school are correlated with risk and round out the top six. Getting an offender a job or an education is important for sev- eral reasons (structures time, gets them around prosocial people, helps them support family and self), but if one thinks that working is for chumps, shows up late for work all the time, fights with boss or co-workers, and so forth how long will they last on the job? Can you see why attitudes and values are so important to identifying and reducing risk? It is a critical factor in determining how we behave.

Finally, factors seven and eight would include a lack of prosocial leisure activi- ties and interests and substance abuse. Of course, both of these allow for inter- action with antisocial peers and, in the case of drugs, are usually illegal in and of themselves.

A minor set of risk factors includes lower-class origins as assessed by adverse neighborhood conditions and some personal distress factors, such as anxi- ety, depression, or officially labeled as mentally disordered. Finally, some biological and neuropsychological indicators have also shown some cor- relation with criminal conduct. Again, however, these factors are relatively minor and should not be the major focus or targets for changing criminal behavior. For example, making an offender feel better about himself with- out reducing antisocial attitudes and values will only produce a happier offender. Many researchers believe that most of the secondary risk factors run through the first four: attitudes, values and beliefs, peer associations, personality, and history. There are referred to as the “Big Four” by Andrews and Bonta (2010).

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C h a p t e r 8 : Offender assessment222

A study conducted by researchers at the Pennsylvania Department of Corrections looked at factors related to failure for parolees. As shown in Table 8.2, most factors were related directly to attitudes, peers and associates, and personality.

Criminogenic risk factors should be the major target of programs and inter- ventions, while noncriminogenic risk factors, such as lack of creative abili- ties, physical conditioning, medical needs, anxiety, and low self-esteem, are not highly correlated with criminal conduct and should not be the targets for programs.

table 8.2 results from pennsylvania study of parole Failures

Social network and living arrangements, violators were: n More likely to hang around with individuals with criminal backgrounds n Less likely to live with a spouse n Less likely to be in a stable supportive relationship n Less likely to identify someone in their life who served in a mentoring capacity

Employment and financial situation, violators were: n Slightly more likely to report having difficulty getting a job n Less likely to have job stability n Less likely to be satisfied with employment n Less likely to take low end jobs and work up n More likely to have negative attitudes toward employment and unrealistic job expec-

tations n Less likely to have a bank account n More likely to report that they were “barely making it” (yet success group reported

over double median debt)

Alcohol or drug use, violators were: n More likely to report use of alcohol or drugs while on parole (but no difference in

prior assessment of dependency problem) n Poor management of stress was a primary contributing factor to relapse

Life on parole, violators were: n Had unrealistic expectations about what life would be like outside of prison n Had poor problem-solving or coping skills

– Did not anticipate long-term consequences of behavior n Failed to utilize resources to help them

– Acted impulsively to immediate situations – Felt they were not in control

n More likely to maintain antisocial attitudes – Viewed violations as an acceptable option to situation – Maintained general lack of empathy – Shifted blame or denied responsibility

Successes and failures did not differ in difficulty in finding a place to live after release Successes and failures equally likely to report eventually obtaining a job

Source: Bucklen and Zajac (2009).

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223Principles of Offender Classification

Figure 8.3 shows results from a meta-analysis that compared effects from pro- grams that target criminogenic versus noncriminogenic needs. As can be seen by this graph, programs that target at least four to six more criminogenic needs produced a 31 percent reduction in recidivism, while those programs that tar- geted one to three more noncriminogenic needs essentially showed no effect on recidivism. These data illustrate the importance of assessing and subse- quently targeting dynamic risk factors that are highly correlated with criminal conduct. It also illustrates that the density of criminogenic needs targeted is also important. For example, most higher-risk offenders have multiple risk fac- tors, not just one; as a result, programs that are limited to focusing on one or two targets for change may not produce much effect. Let’s take, for example, employment. For many offenders on probation or parole, being unemployed is a risk factor, but is it a risk factor for you? If you were unemployed, would you start robbing people or selling drugs? Most of us wouldn’t. What we would do if we lost our job is to go out and get another one. In other words, just being unemployed is not that big of a risk factor unless, of course, you think working is for fools, you say things like “I can make more money in a day than most can in a month,” you hang around others that don’t work, and so forth. In this case, being unemployed is a risk factor because you have a number of other critical risk factors, plus you have a lot of time on your hands to do nothing but get into trouble. Just targeting employment without including other risk factors (such as attitudes) will not produce much effect.

responsivity

The third principle is called the responsivity principle—matching offenders to programs and interventions based on learning styles and ability. Responsivity factors include those characteristics of an offender related to their learning abil- ity and program engagement. Examples would include motivation or readiness

Figure 8.3 Targeting criminogenic need: results from meta- analyses. Source: Gendreau, French, and Taylor (2002).

−0.05

0

0.05

0.1

0.15

0.2

0.25

0.3

0.35

Target 1−3 more non- criminogenic needs

Target at least 4−6 more criminogenic needs

Reduction in Recidivism

Increase in Recidivism

F O S T E R , C E D R I C 1 6 9 2 T S

C h a p t e r 8 : Offender assessment224

to change, social support for change, intelligence, psychological development, maturity, and other factors that can affect an offender’s engagement in a pro- gram. These factors are often ignored in the assessment process. For example, say you have identified the risk and need levels of an offender, but he or she is low functioning. Because that person will not do well in a program that requires normal functioning, this factor should be taken into consideration when matching him or her to a program, group, or caseworker.

professional Discretion

The final principle is called professional discretion. Basically, this means that the person conducting the assessment, having considered risk, need, and responsivity factors, should now include his or her professional judgment in making a final decision. Remember that risk and need assessments are designed to help guide decisions, not to make them.

One of the reasons this information is presented is to show that many of the known correlates of criminal conduct have not always worked their way into risk-prediction instruments. As we shall see, this problem began to remedy itself in the 1970s.

the eVOLUtION OF CLassIFICatION How is offender risk determined? This is obviously a very important question because it can affect public protection and the manner in which an offender is supervised (or whether they are even released) in the community.

The first generation of risk assessment in criminal justice refers to the use of “gut feelings” to make decisions about the risk of an offender. With this pro- cess, information is collected about the offender, usually through an interview or file review. The information is then reviewed, and a general assessment or global prediction is made: “In my professional opinion . . .” The problems with this approach are considerable and have been delineated by Wong (1997) and Kennedy (1998):

n Predictions are subject to personal bias n Predictions are subjective and often unsubstantiated n Decision rules are not observed n It is difficult to distinguish levels of risk n Information is overlooked or overemphasized.

The second generation of formal classification instruments was pioneered by Bruce, Harno, Burgess, and Landesco (1928). Development of a standard- ized and objective instrument was brought about by the request of the Illinois

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225The Evolution of Classification

parole board, which wanted to make more informed decisions about whom to release on parole. Bruce and colleagues reviewed the records of nearly 6000 inmates. Table 8.3 illustrates factors found by Bruce et al. (1928) in their risk prediction instrument. While many of these categories seem out of date today, the Burgess scale was one of the first attempts to develop an actuarial instru- ment to predict offender risk. There are several pros and cons to this approach (Kennedy, 1998; Wong, 1997):

Pros n Is objective and accountable n Covers important historic risk factors n Is easy to use and reliable n Distinguishes levels of risk of reoffending

Cons n Consists primarily of static predictors (i.e., factors that are immutable) n Does not identify target behaviors n Is not capable of measuring change in the offender.

The second generation of risk prediction recognized that risk is more than simply static predictors. The best example can be seen in the Wisconsin Case Management Classification System. First developed and used in Wisconsin in

table 8.3 Factors in the Bruce, Harno, Burgess, and Landesco Scale

General type of offense (e.g., fraud, robbery, sex, homicide) Parental and marital status (parents living, offender married) Criminal type (first timer, occasional, habitual, professional) Social type (e.g., farm boy, gangster, hobo, ne’er-do-well, drunkard) Community factor (where resided) Statement of trial judge and prosecutor (recommended or protests leniency) Previous record Work record (e.g., no work record, casual, regular work) Punishment record in prison Months served prior to parole Intelligence rating Age when paroled Psychiatric prognosis Psychiatric personality type (egocentric, socially inadequate, emotionally unstable)

Source: Bruce et al. (1928).

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1975, the Client Management Classification (CMC) System is designed to help identify the level of surveillance for each case, as well as determine the needs of the offender and the resources necessary to meet them. With adequate classifi- cation, limited resources can be concentrated on the most critical cases—those of high risk (Wright, Clear, & Dickson, 1984). Following Wisconsin’s develop- ment of the CMC, the National Institute of Corrections (NIC, 1983) adopted it as a model system and began advocating and supporting its use throughout the country. It has been proven satisfactory in many jurisdictions, including Austin, Texas (Harris, 1994).

The foundation of the system is a risk/needs assessment instrument com- pleted on each probationer at regular intervals. Cases are classified into high, medium, or low risk/needs. In turn, these ratings are used to determine the level of supervision required for each case. Tables 8.4 and 8.5 illustrate the Wisconsin risk and needs assessment components of this system.

Once an offender is classified into a risk/needs level with the Wisconsin risk and needs assessment tools, a more detailed assessment of that case could be made with a profiling interview that helps determine the relationship between the officer and the offender. This element of the Wisconsin sys- tem is called the CMC system and is composed of four unique treatment modalities.

n Selective Intervention. This group is designed for offenders who enjoy relatively stable and prosocial lifestyles (e.g., employed, established in community, and minimal criminal records). Such offenders have typically experienced an isolated and stressful event or neurotic problem. With effective intervention, there is a higher chance of avoiding future difficulty. Goals of treatment for these individuals include the development of appropriate responses to temporary crises and problems and the reestablishment of prolife patterns.

n Environmental Structure. The dominant characteristics of offenders in this group consist of deficiencies in social, vocational, and intellectual skills. Most of their problems stem from their inability to succeed in their employment or to be comfortable in most social settings—an overall lack of social skills and intellectual cultivation/ ability. Goals for these persons include (a) developing basic employment and social skills, (b) selecting alternatives to association with criminally oriented peers, and (c) improving social skills and impulse controls.

n Casework/Control. These offenders manifest instabilities in their lives as evidenced by failures in employment and domestic problems. A lack of goal directedness is present, typically associated with alcohol and drug problems. Offense patterns include numerous arrests, although

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227The Evolution of Classification

table 8.4 Wisconsin Risk Assessment

File _______ of ________

CLIENT NAME _________________________________________________ CASE NUMBER ___________________ Last First MI

OFFICER _____________________________________________________ UNIT LOCATION ___________________ Last Social Security Number

ARRESTED WITHIN (5) YEARS PRIOR TO ARREST FOR CURRENT OFFENSES (exclude traffic):

0 No 4 Yes NUMBER OF PRIOR ADULT INCARCERATIONS IN A STATE OR FEDERAL INSTITUTION:

0 No 3 1 - 2 6 3 and above NUMBER OF PRIOR ADULT PROBATION/PAROLE SUPERVISIONS

0 None 4 One or more NUMBER OF PRIOR PROBATION/PAROLE REVOCATIONS RESULTING IN IMPRISONMENT (Adult or Juvenile):

0 None 4 One or more AMOUNT OF TIME EMPLOYED IN LAST 12 MONTHS:

0 More than 7 months 1 5 to 7 months 2 Less than 5 months 0 Not applicable NUMBER OF PRIOR FELONY CONVICTIONS (or Juvenile Adjudications):

0 None 2 One 4 Two or more 0 None 3 One 6 Two or more 7 Three or more AGE AT ARREST LEADING TO FIRST FELONY CONVICTION (or Juvenile Adjudication):

0 24 and over 2 20 - 23 4 19 and under AGE AT ADMISSION TO INSTITUTION OR PROBATION FOR CURRENT OFFENSE:

0 30 and over 3 18 - 29 6 17 and under 0 30 and over 4 18 - 29 7 17 and under

D A T E

RATE THE FOLLOWING BASED ON PERIOD SINCE LAST REASSESSMENT ALCOHOL USAGE PROBLEMS

2 Occasional abuse; somedisruption of functioning0 No interference with functioning 4 Frequent abuse; seriousdisruption; needs treatment 2 Occasional abuse; somedisruption of functioning0 No interference with functioning 3 Frequent abuse; seriousdisruption; needs treatment

2 Occasional abuse; somedisruption of functioning0 No interference with functioning 4 Frequent abuse; seriousdisruption; needs treatment 1 Occasional abuse; somedisruption of functioning0 No interference with functioning 2 Frequent abuse; seriousdisruption; needs treatment

OTHER DRUG USAGE PROBLEMS

2 Technical PV only0 None 4 Misdemeanor arrest(s) 8 Felony arrest TYPE OF ARRESTS (indicate most serious, excluding traffic)

5 Mainly with negative individuals0 Mainly with noncriminallyoriented individuals ASSOCIATIONS

0 No adverse difficulties/motivated to change 2 Periodic difficulties/uncooperative/dependent 5 Frequent hostile/negativecriminal orientation ATTITUDE

Scale: Max—17 and above Med—9-16 Min—8 and below

TOTAL

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table 8.5 Wisconsin Assessment of Client Needs

File _______ of ________

CLIENT NAME _________________________________________________ CASE NUMBER ___________________ Last First MI

OFFICER _____________________________________________________ UNIT LOCATION ___________________ Last Social Security Number

Scale: Max—26 and above Med—13-25 Min—12 and below TOTAL

2 Symptoms limit but do not prohibit adequate functioning

0 No symptoms of emotionaland/or mental instability 3 Symptoms prohibit adequate functioning and/or has Court or Board imposed condition

8 Severe symptoms requiring continual attention and/or explosive, threatening and potentially dangerous to others and self

EMOTIONAL AND MENTAL STABILITY

3 Some disorganization orstress but potential for improvement

0 Stable/supportive relationship 7 Major disorganization orstress DOMESTIC RELATIONSHIP

2 Associations with occa-sional negative results0 No adverse relationships 4 Associations frequentlynegative 6 Associations completelynegative ASSOCIATIONS

2 Occasional substanceabuse; some disruption of functioning and/or has Court or Board conditions

0 No disruption of functioning 7 Frequent abuse; serious disruptions; needs treatment DRUG ABUSE

2 Occasional abuse; somedisruption of functioning and/or has Court or Board conditions

0 No disruption of functioning 7 Frequent abuse; serious disruptions; needs treatment ALCOHOL USAGE

2 Underemployed0 Satisfactory employment,no difficulties reported; or homemaker, student, retired, or disabled

4 Unsatisfactory employ-ment; or unemployed but has adequate job skills/motivation

5 Unemployed andvirtually unemployable; needs motivation/ training

EMPLOYMENT

2 Low skill level causingminor adjustment problems

0 Adequate skills, able tohandle everyday requirements

6 No identifiable skills and/orminimal skill level causing serious adjustment problems

ACADEMIC/VOCATIONAL SKILLS/TRAINING

1 Situational or minor difficulties0 No current difficulties 5 Chronic/severe difficulties FINANCIAL MANAGEMENT

2 Periodic difficulties/uncooperative/dependent0 No adverse difficulties/motivated for change 4 Frequently hostile/negative/criminal orientation ATTITUDES

2 Adequate living, i.e., temporary shelter0 Suitable living arrangement 4 Nomadic and/or unacceptable RESIDENCE

1 Some need for assistance;potential for adequate adjustment

0 Able to function independently 3 Deficiencies severely limitindependent functioning MENTAL ABILITY (INTELLIGENCE)

1 Handicap or illness; interferes with functioning on a recurring basis

0 Sound physical health; seldom ill 2 Serious handicap or chronicillness; needs frequent medical care

HEALTH

2 Real or perceived situations or minor problems

0 No apparent dysfunction 6 Real or perceived chronic orsevere problems SEXUAL BEHAVIOR

3 Medium0 Low 5 Maximum OFFICER’S IMPRESSION OF NEEDS

D A T EF

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229The Evolution of Classification

marketable job skills are present. Unstable childhoods, family pressure, and financial difficulties are typically present. Goals appropriate for this group include promoting stability in their professional and domestic endeavors and achieving an improved utilization of the individual’s potential, along with an elimination of self-defeating behavior and emotional/psychological problems.

n Limit Setting. Offenders in this group are commonly considered to be successful career criminals because of their long-term involvement in criminal activities. They generally enjoy “beating the system,” they frequently act for material gain, and they show little remorse or guilt. Because of their value system, they adapt easily to prison environments and return to crime upon release. Goals for this group are problematic, but include changing the offender’s basic attitudes and closely supervising his behavior within the community.

Information for the CMC is based on a structured interview with the offender. After a case has been classified, an individual treatment plan is developed. Results from the CMC have found that approximately 40 percent of probation caseloads are selective intervention, 15 percent are environmental structure, 30 percent are casework control, and 15 percent are limit setting.

Despite advantages of the CMC, there are several shortcomings. One is the fact that risk and needs are assessed separately and not integrated fully. Another problem with this system is that the CMC component is time-consuming to administer and scoring is somewhat involved. In practice, many probation departments that use this instrument rely more heavily on the risk component, which is composed of mainly static predictors.

Actuarial or statistical prediction involves examining a group of offenders and identifying the factors associated with recidivism (or some other measure of outcome). With statistical pre- diction, offenders with a certain set of characteristics have a range of probabilities associated with success or failure. So, for example, if we have 100 high-risk offenders and our classification instrument indicated that the probability of failure for high-risk offenders is 75 percent, we are relatively confident that 75 out of 100 of those offenders will recidivate (assuming no interven- tion). Of course, we are predicting to the group and not the individual, so we do not know which 75 will fail. With clinical prediction, a trained professional gathers information and then uses his or her professional experience and judgment to render an opinion about the likelihood that an individual will fail or succeed. The evidence is very strong that actuarial or statistical prediction is more accurate than clinical prediction.

BOx 8.2 aCtUarIaL VersUs CLINICaL preDICtION

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C h a p t e r 8 : Offender assessment230

A later version of third-generation assessment instruments successfully com- bined risk and needs and are relatively easy to use. One example is the Level of Service Inventory−Revised (LSI-R), designed by Andrews and Bonta (1995). The LSI-R has been extensively tested and validated across North America. The LSI-R consists of 54 items in 10 areas. Information is collected primarily through a structured interview process. The LSI-R has been found to be one of the most valid instruments in predicting recidivism.

More recently, the LSI-R was updated by reorganizing the original 10 sub- components into general and specific risk and need factors. This new instru- ment is considered fourth generation and is called the Level of Service/Case Management Inventory (LS/CMI) (Andrews, Bonta, & Wormith, 2004). It represents an improvement over the previous version (and other third- generation classification instruments), as it emphasizes the link between assessment and case management. In addition to identifying risk and need factors, the LS/CMI acknowledges the role of personal strengths and spe- cific responsivity factors in an offender’s amenability to treatment. Figure 8.4 shows recidivism results from 561 probationers whose risk was assessed using the LS/CMI (see Andrews & Bonta, 2006). Recidivism rates increase directly with LS/CMI scores. A sample of some LS/CMI categories is shown in Table 8.6.

Another example of a fourth-generation assessment tool is the newly devel- oped Ohio Risk Assessment System (ORAS)(Latessa, Lemke, Makarios, Smith, & Lowenkamp, 2010). Unlike previous tools, the ORAS was developed and vali- dated by examining offenders at various decision points in the criminal justice

Figure 8.4 Level of service/ case management inventory and recidivism. Source: Adapted from Andrews and Bonta (2006).

0%

20%

40%

60%

80%

100%

120%

Very low (0−4) Low (5−10) Medium (11−19) High (20−29) Very high (30+)

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231Juvenile Risk/Need Assessment Tools

system. The result is four assessment tools (pretrial, community supervision, prison intake, and reentry), each designed to assess offenders based on where they are in the system.

JUVeNILe rIsK/NeeD assessmeNt tOOLs Traditionally, there have been fewer actuarial instruments available for juve- nile offenders. Recently, however, we have seen the development of a number of new instruments designed specifically for this population. The Ohio Youth Assessment System (OYAS), the Youthful LS/CMI, the Youthful Assessment and Screening Instrument (YASI), and the Youthful COMPAS are examples of risk and need assessment tools that have been developed recently for use with the juvenile population. These instruments are very similar in nature to the latest generation of adult instruments. Figure 8.5 is an example of the report gener- ated from the Dispositional Assessment of the OYAS. This tool includes seven domains and gives the judge a view of the overall risk of the youth as well as scores in each domain.

table 8.6 Areas of the LS/CMI

Source: Adapted from Andrews and Bonta (2006).

Section 1. General Risk/Need Factors Criminal history Education/employment Family/marital Leisure/recreation Companions Alcohol/drug problem Procriminal attitude/orientation Antisocial pattern

Section 2. Specific Risk/Need Factors Personal problems with criminogenic potential

Diagnosis of “psychopathy” Anger management deficits Poor social skills Underachievement

History of perpetration Sexual assault, extrafamilial, child/adolescent

–female victim Physical assault (extrafamilial adult victim) Gang participation

Section 5. Special Responsivity Considerations Motivation as a barrier Women, gender specific Low intelligence Antisocial personality/psychopathy

Section 9. Case Management Plan

Program targets and intervention plan

Criminogenic Need Goal Intervention

1.

2.

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C h a p t e r 8 : Offender assessment232

speCIaLIZeD assessmeNt tOOLs There are also classification systems designed for certain types of offenders or need areas, such as the mentally disordered, sex offenders, and substance abusers. Some of these tools help classify and recommend levels of inter- vention. Figure 8.6 shows the use of specialized assessment tools across the United States.

Figure 8.5 Ohio Youth Assessment System full report: Dispositional tool.

Percentage of recidivism

Treatment priorities

Level of risk

Low

% R

e ci

d iv

a te

100 Moderate High

Low Moderate High

08/15/2009

JJS

High

Mod

Low

Family

R is

k le

ve l

Peers Education/ Employment

Prosocial Substance. Mental health

Values

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ChartDirector(unregistered) from www.advsofteng.com

08/15/2009

75

50

25

0 0

9

18

27

17

Figure 8.6 Use of specialized assessment tools by probation, parole, and community corrections service providers (percent). Source: Hubbard, Travis, and Latessa (2001).

0

10

20

30

40

50

60

70

Drug Alcohol MH DV Sex Violent

Probation/parole CC providers

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233Criticisms of Offender Classification Instruments

One of the major advantages of actuarial risk and need assessment tools is that they are standardized and objective and help distinguish levels of risk or need (e.g., high, medium, low). Because they are based on statistical studies, they also reduce bias and false positive and false negative rates (Holsinger, Lurigio, & Latessa, 2001).

In a national survey of probation and parole agencies concerning the use and practices surrounding class classification, Hubbard et al. (2001) found that the vast majority of agencies reported using some actuarial instrument to assess and classify offenders. A summary of their findings is presented here.

n Almost 75 percent of the probation and parole agencies and about 56 percent of the community corrections service providers reported that they classify using standardized and objective instruments.

n Large agencies were more likely to classify clients than were smaller agencies.

n More than 83 percent of the respondents reported that it was “absolutely” or “very necessary” to classify on risk and 66 percent on needs.

n The most widely used instrument was the Wisconsin Risk and Need instrument, followed by the LSI.

n Nearly all respondents agreed that case classification makes their job easier, benefits the offender, creates a more professional environment, helps staff make better decisions, increases effectiveness of service delivery, and enhances fairness in decision making.

n The most common uses of these tool were officer workloads 75 percent, staff deployment 54 percent, development of specialized caseloads 47 percent, and sentencing decisions 20 percent.

n Nearly 80 percent of the agencies reported using the various instruments to reassess offenders.

CrItICIsms OF OFFeNDer CLassIFICatION INstrUmeNts Offender classification is not without its critics. Some argue that the instru- ments are nothing more than “educated guesses” (Smykla, 1986:127), whereas others are more concerned about their proper use and accuracy (Greenwood & Zimring, 1985; Wilbanks, 1985). Some critics, such as Baird (2009), argue that risk and need factors should not be combined because risk factors are dis- tinct from need factors. However, others contend that most of what are called “needs” are in fact “risk” factors (i.e., substance use, peer associations, atti- tudes, and values) and should be integrated into the tools. Another major concern centers on use of a risk instrument in one jurisdiction that has been

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developed and validated in another. The argument is made that just because a risk instrument is accurate in one jurisdiction does not necessarily mean it will be effective in predicting outcome in another (Collins, 1990; Kratcoski, 1985; Sigler & Williams, 1994; Wright et al., 1984). As Travis (1989) stated, “Ideally, a risk classification device should be constructed based on the population on which it is to be used.” Most researchers, however, believe that while cut-off scores may vary across jurisdictions, risk factors are common across offender populations and jurisdictions.

aDVaNtaGes OF assessmeNt tOOLs Despite these concerns, most believe that the use of validated assessment instruments is a major advancement in offender management and treatment. For example, Clear (1988:2) maintains that the implementation of these pre- diction instruments has two main advantages:

First, they improve the reliability of decisions made about offenders—in a sense they make correctional officials more predictable. Second, they provide a basis on which corrections personnel can publicly justify both individual decisions and decision-making policies. In both cases, the advantage is grounded in the powerful appearance of “scientific” decision making.

In addition to the advantages just given, the use of assessment tools based on dynamic factors provides the ability to reassess the offender to determine whether there has been a reduction in risk score. This allows an agency to move beyond risk management to risk reduction, the ultimate goal of community corrections. Figure 8.7 illustrates initial assessment and reassessment scores from a sample of youths supervised on probation. As shown, these data can help a probation department better focus its resources and strategies.

Another example is demonstrated in Figure 8.8, which shows results from the reassessment of offenders sentenced to an Ohio community-based correctional facility. The purpose of these facilities is to provide up to 6

False positives occur when offenders predicted to fail actually succeed, whereas false negatives occur when predicted successes actually fail. False negatives are potentially very costly; hence most classification strategies err on the conservative side. The goal of most assessment and classification processes is to minimize both false positives and false negatives. Some studies of clinical assessment have found that clinicians will over- predict violence in two out of three cases!

BOx 8.3 FaLse pOsItIVes aND FaLse NeGatIVes

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235Advantages of Assessment Tools

months of secure, structured treatment to felony offenders who would oth- erwise be incarcerated in a prison. Results from this study show that the greatest reductions in risk scores were for the highest-risk offenders, while low-risk offenders actually saw their risk scores increase. In general, treat- ment lowers offenders’ risk of recidivism. These data demonstrate the risk principle, which states that intensive treatment services should be reserved

Figure 8.7 Youthful LSI: Assessment and reassessment. Source: Latessa and Taylor (2001).

0

0.5

1

1.5

2

2.5

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3.5

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n se

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E d u c

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S A

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A ttitu

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Initial=19.4

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Total of 84 youth have been reassessed

Figure 8.8 Results of treatment as measured by changes in LSI-R scores (by risk category)(N = 559). Source: Latessa and Lowenkamp (2001).

−10

−8

−6

−4

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Increase/Decrease in LSI-R Scores of Low to High Risk Offenders

2.6

−0.37

−5.01

−8.9

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for higher-risk offenders. As can be seen from these data, when lower-risk offenders are placed in an intensive intervention program, the outcome is often detrimental to the offender. There are two reasons this effect occurs. The first may be due to the influence of higher-risk offenders on low-risk, more prosocial individuals. The second is probably due to the disruption of prosocial networks and other social support mechanisms that low-risk offenders usually possess (or they would not be low risk!). For example, placement in a program such as the one described earlier usually results in loss of employment and disruption to the family.

reliability and Validity

A number of important considerations with any risk need assessment process need to be considered. How easy is the instrument to use and score? How long does it take to complete? How much training is involved? Is an interview involved; if so, how do you verify the information? How much does it cost? These and other questions are important considerations when selecting a risk need assessment instrument. Of vital importance is the reliability and valid- ity of the instrument. Reliability refers to the consistency of the instrument. For example, if two probation officers were to use the LSI to assess the same offender, how similar would they score him or her? This is referred to as inter- rater reliability and can be a problem with more dynamic instruments. The second important consideration is validity, the accuracy of the instrument in predicting what it is we want it to predict. They both are important. It doesn’t do any good to have an accurate tool if no one can agree on the score. Likewise, they might all agree on the score, but if it doesn’t predict what we want it to, then it doesn’t really matter. As a general rule, most good instruments are about 80 percent accurate. This is determined by validation studies in which we determine the correlation between the score and some outcome (usually some measure of recidivism)—the higher the correlation, the stronger the rela- tionship. Two important factors have been found to increase the validation of assessment: training of staff on the tool and experience using the tool (Flores, Lowenkamp, Holsinger, and Latessa, 2006).

points about “Good” assessment

A number of points about classification and assessment should be considered. First, there is no one-size-fits-all approach. Each agency or jurisdiction has different needs. For example, if operating a pretrial release program, one of the considerations would be “failure to appear.” This might not be important to a secure residential program. There is also no one instrument that will pro- vide all the information needed for a comprehensive assessment. Assessment often has to be a flexible process that expands as warranted. Second, it is

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237Advantages of Assessment Tools

important to validate instruments to ensure accuracy and to determine the degree to which they can predict different outcome measures. For example, if an agency is interested in predicting sex-offending behavior, they need to make sure that the tools they are using can predict this outcome accurately. Third, classification and assessment are not one-time events. Risk can change over time. An offender who began supervision without a job, drinking, and hanging around with a bad crowd but 6 months later is employed, sober, and attending to family responsibilities will be lower risk than when he or she began supervision. Fourth, statistical prediction is more accurate than clinical prediction. We have known this since 1954. Instruments specifically designed and validated on offender populations will more accurately pre- dict outcome than the best clinical assessment process. Classification based on standardized factors is also more reliable, easier to make, less time-con- suming, and less expensive than clinical assessment. Finally, as mentioned previously, decisions based on objective criteria are less vulnerable to legal challenges.

problems with assessment

Despite the obvious problems associated with developing, norming, and vali- dating instruments designed to predict human behavior, there are also a num- ber of other problems associated with offender assessment.

Many agencies assess offenders, but ignore important factors. An example would be an agency that relies on a static risk assessment instrument that focuses primarily on criminal history. An offender without a long criminal history might be classified as low risk even though they may have a number of other important risk factors. Another example would be an agency that focuses primarily on substance abuse and ignores antisocial attitudes, antiso- cial friends, and other criminogenic risk factors. Another problem common with offender assessment are processes that assess offenders but do not pro- duce scores or distinguish levels. These processes are usually quasi-clinical in nature. The program or probation department will gather a great deal of information about the offender, write it up the narrative form, but when fin- ished will not be able to distinguish levels of risk or needs. A third problem is programs and agencies that assess offenders and then essentially don’t use the information; everyone gets the same treatment or intervention regardless of the assessment results. A fourth problem is that some programs begin using an assessment tool without adequately training the staff on their use or inter- pretation. This affects the instrument’s reliability and accuracy, and a host of other problems often emerges when this happens. Finally, many assessment instruments are adopted without being normed or validated on an offender population. Without this information, the accuracy of the instrument is essen- tially unknown.

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Despite these concerns, the latest generation of classification instruments allows the probation or parole department an effective and fairly simple means of classifying and managing offenders. It is important to remember that instruments such as the CMC or LSI-R can be important and useful tools in assisting the community correctional agency and the supervising officer in case management. They neither solve all the problems faced by probation and parole agencies nor they fully replace the sound judgment and experi- ence of well-trained probation and parole officers (Klein, 1989; Schumacher, 1985).

staNDarDs OF CLassIFICatION Travis and Latessa (1996) have identified 10 elements of effective classification and assessment. They include:

n Purposeful. Generally, the purpose of classification and assessment is to ensure that offenders are treated differentially within a system so as to ensure safety, adequate treatment, and understanding.

n Organizational Fit. Organizations and agencies have different characteristics, capabilities, and needs.

n Accuracy. How well does the instrument correctly assess outcome? Is the offender correctly placed within the system? Basically, reliability and validity are the key elements to accuracy. Glick, Sturgeon, and Venator- Santiago (1998:73) explain reliability and validity thus: Reliability may be defined as hitting the same spot on a bull’s eye all the time. If your system is reliable but not valid, you may be hitting the target consistently, but not the right spot.

n Parsimony. This refers to the ease of use, the economy of composition, and achieving accuracy with the least number of factors. In other words, short and simple.

Criminogenic needs refer to those crime-producing factors associated with criminal behavior. The new generation of risk assessment tools measures these needs. Some of the promising need factors that should be identified by researchers include the following:

Changing antisocial attitudes Changing antisocial feelings Reducing antisocial peer associations Promoting familial affection and communication Promoting familial monitoring and supervision Increasing self-control and problem-solving skills Reducing chemical dependencies

BOx 8.4 CrImINOGeNIC NeeDs aND prOmIsING tarGets

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239Standards of Classification

n Distribution. How well does the system disperse cases across classification groups? If all offenders fall into the same group, there is little distribution.

n Dynamism. Is the instrument measuring dynamic risk factors that are amenable to change? Dynamic factors also allow you to measure progress and change in the offender. It also facilitates reclassification.

n Utility. To be effective, classification systems must be useful. This means that staff achieve purposes of classification and goals of the agency.

n Practicality. Closely related to utility is the practical aspect of classification. The system must be practical and possible to implement. A process that is 100 percent accurate but impossible to apply in an agency does not help that agency. Similarly, a system that is easy to use but does not lead to better decisions is of no value.

n Justice. An effective classification and assessment processes should produce just outcomes. Offender placement and service provision should be based on offender differences that are real and measurable, and yield consistent outcomes, regardless of subjective impressions.

n Sensitivity. This is really a goal of the classification process. If all elements are met, the most effective classification and assessment processes are sensitive to the differences of offenders. At the highest level, this would mean individualizing case planning.

Recognizing differences in offenders that affect their engagement in treatment and their ability to learn is part of assessing responsivity. Developing a strategy to overcome these barriers is part of developing a good case plan. Some responsivity considerations include:

Factors more common

General population with offenders

Anxiety Poor social skills

Self-esteem Inadequate problem solving

Depression Concrete-oriented thinking

Mental illness Poor verbal skills

Age Social support for service

Intelligence

Gender

Race/ethnicity

Motivation

BOx 8.5 respONsIVIty FaCtOrs

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CLassIFICatION aND FemaLe OFFeNDers Several scholars have questioned the notion that risk factors used to pre- dict antisocial behavior for male offenders are similar to those needed for females offenders (Chesney-Lind, 1989, 1997; Funk, 1999; Mazerolle, 1998). The neglect of female offenders has been a consistent criticism in many area of criminological and criminal justice research, from theory development to the development of correctional interventions (Belknap & Holsinger, 1998; Chesney-Lind & Sheldon, 1992; Funk, 1999). Furthermore, the lack of instruments that discriminate between males and females has been a common criticism of current risk/need assessment efforts (Funk, 1999). The basis for this criticism is twofold: (1) different factors may be involved in risk assessment for females and (2) the risk factors may be similar, but exposure to these factors may present different challenges for female and male offenders (Chesney-Lind, 1989; Funk, 1999; Gilligan & Wiggins, 1988).

There is no question that there has been considerably less research con- ducted on female offenders than males; however, several studies that have examined risk factors and gender have found that instruments such as the LSI can be useful in assessing and classifying female offenders (Andrews, 1982; Bonta & Motiuk, 1985; Coulson, Ilacqua, Nutbrown, Giulekas, & Cudjoe, 1996; Hoge & Andrews, 1996; Motiuk, 1993; Shields & Simourd, 1991; Smith, Cullen, & Latessa, 2009). In a study examining risk prediction for male and female offenders, Lowenkamp, Holsinger, and Latessa (2001) added to this research by looking at 317 males and 125 females. They found that the LSI-R was a valid predictive instrument for female offenders. They also found that a history of prior abuse (sexual or physical), although more prevalent in female offenders, was not correlated with outcome. Smith and colleagues (2009) conducted a meta-analysis of studies involving the use of the LSI with females. With a sample of 14,737 offenders, they concluded that the LSI-R was a valid tool for use with women. Although the debate will likely continue, it appears that the evidence is mounting that instruments such as the LSI can indeed be used to assess and classify offenders, both male and female.

risk management: Involves determining risk level of the offender and providing appropriate sanctions and supervision. risk reduction. Involves determining risk level and crime producing needs and reducing risk factors through effective interventions and appropriate supervision.

BOx 8.6 rIsK maNaGemeNt Vs. rIsK reDUCtION

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241Recommended Readings

sUmmary This chapter discussed an important aspect of community corrections: assess- ment of the offender. One of the most critical aspects of supervising the offender in the community is the determination of risk and need levels. Over the years, assessment and classification have advanced beyond guesswork about whether an offender might reoffend to more scientific approaches that examine both static and dynamic factors that can assist the community cor- rectional professional in determining “who” and “what” to target in order to meet the goal of public protection. While offender assessment is not with- out its critics, the vast majority of community correctional agencies utilize assessment tools, which means that it is incumbent that these tools serve the purposes they were designed for: accurately sorting offenders into levels of risk and identifying those characteristics of the offender that are amenable to change.

reVIew QUestIONs 1. How can risk/needs assessments be used in probation? 2. What are the major correlates of criminal conduct? The “Big Four”? 3. What was the first actuarial instrument developed for predicting risk?

What is the major limitation of this tool? 4. What is the difference between the Wisconsin Risk/Need assessment tools

and the LSI? 5. What are the 10 standards to good classification? 6. What are the four principles of classification? 7. Give three examples of responsivity characteristics and discuss ways they

can impede an offender. 8. What is the difference between a static and a dynamic predictor? 9. What are two ways to increase the validation of an assessment tool? 10. What are some of the criticisms of assessment tools? 11. Why do you think actuarial assessment tools have proven more reliable

and valid than clinical assessment processes?

reCOmmeNDeD reaDING Van Voorhis, P. (1994). Psychological classification of the adult male prison inmate. Albany, NY: State

University of New York.

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reFereNCes Andrews, D. (1982). The level of services inventory (LSI): The first follow-up. Toronto: Ontario Ministry

of Correctional Services.

Andrews, D. (1989). Recidivism is predictable and can be influenced: Using risk assessments to reduce recidivism. Forum on Correctional Research, 1(2), 11–17.

Andrews, D., & Bonta, J. (1995). LSI-R the level of service inventory—Revised. Toronto: Multi-Health Systems, Inc.

Andrews, D., Bonta, J., & Hoge, R. (1990). Classification for effective rehabilitation rediscovering psychology. Criminal Justice and Behavior, 17, 19–52.

Andrews, D. A. (1983). The assessment of outcome in correctional samples. In M. Lambert, E. Christensen, & S. DeJulio (Eds.), The measurement of psychotherapy outcome in research and evaluation. New York: Wiley.

Andrews, D. A., & Bonta, J. (1996). The psychology of criminal conduct (1st ed.) Cincinnati: Anderson.

Andrews, D. A., & Bonta, J. (2006). The psychology of criminal conduct (4th ed.) Newark, NJ: LexisNexis Matthew Bender.

Andrews, D. A., & Bonta, J. (2010). The psychology of criminal conduct (5th ed.) New Providence, NJ: LexisNexis Matthew Bender.

Andrews, D. A., Bonta, J., & Wormith, S. J. (2004). The level of service/case management inventory. Toronto: Multi-Health Systems, Inc.

Baird, C. (2009). A question of evidence: A critique of risk assessment models used in the justice system. Madison, WI: National Council on Crime and Delinquency.

Belknap, J., & Holsinger, K. (1998). An overview of delinquent girls: How theory and practice have failed and the need for innovative changes. In R. T. Zaplin (Ed.), Female crime and delinquency: Critical perspectives and effective interventions (pp. 31–64). Gaithersburg, MD: Aspen.

Bonta, J., & Andrews, D. (1993). The level of supervision inventory: An overview. IARCA Journal, 5(4), 6–8.

Bonta, J., & Motiuk, L. (1985). Utilization of an interview-based classification instrument: A study of correctional halfway houses. Criminal Justice and Behavior, 12, 333–352.

Bonta, J., Wallace-Capretta, S., & Rooney, J. (2000). A quasi-experimental evaluation of an Intensive rehabilitation supervision program. Criminal Justice and Behavior, 27(3), 312–329.

Bruce, A., Harno, A., Burgess, E., & Landesco, J. (1928). The workings of the intermediate-sentence law and the parole system in Illinois. State of Illinois.

Bucklen, K. B., & Zajac, G. (2009). But some of them don’t come back (to Prison!) resource depri- vation and thinking errors as determinants of parole success and failure. The Prison Journal, 89(3), 239–264.

Chesney-Lind, M. (1989). Girls’ crime and women’s place: Toward a feminist model of female delinquency. Crime & Delinquency, 35, 5–29.

Chesney-Lind, M. (1997). The female offender. Thousand Oaks, CA: Sage.

Chesney-Lind, M., & Sheldon, R. (1992). Girls, delinquency, and juvenile justice. Belmont, CA: Wadsworth.

Clear, T. (1988). Statistical prediction in corrections. Research in Corrections, 1, 1–39.

Collins, P. (1990). Risk classification and assessment in probation: A study of misdemeanants. Unpublished master’s thesis. Cincinnati, OH: University of Cincinnati.

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