Module 3
Probation and Diversion Programs
a. Responsibilities of Probation Agencies
Probation agencies have two major responsibilities: investigation and
supervision. Investigation involves obtaining information about the defendant and
preparing a presentence investigation report (PSI). In comparison, supervision
involves oversight of probationers while they are on community supervision.
During criminal justice processing, beginning when the offender first interacts
with the police, the probation agent collects information needed by decision makers.
The agent investigates to determine whether the defendant can be released on his or
her own recognizance or bail. If the case goes to court, between the time of conviction
and sentencing the agent must prepare a PSI documenting the offender’s past criminal
history and characteristics of the current crime.
Typically, the PSI includes information on the seriousness of the crime, the
defendant’s risk, the defendant’s personal circumstances (e.g., employment, family,
housing), a summary of the legally permissible sentencing options, and a sentencing
recommendation. If a prison sentence is recommended, the PSI includes information
on the recommended sentence length. In the case of a recommendation for probation
the PSI includes recommendations on both sentence length and conditions of
probation.
The Pre-Sentence Investigation (PSI) plays a pivotal role in the criminal
justice system, particularly in sentencing decisions. This comprehensive document
provides the judge with crucial information about the offender and their specific
crime(s). Within its pages lie details about the individual's background, criminal
history, personal circumstances, and the nature of the offense(s) committed.
Given its significance, the PSI serves as a primary source of information for
judges when making sentencing decisions. Research, such as that conducted by
Petersilia in 1997, underscores the substantial influence of the PSI on judicial
outcomes. Studies indicate that judges often rely heavily on the information presented
in the PSI, as it offers a comprehensive overview of the defendant's circumstances and
provides valuable insights into the appropriate sentencing considerations.
Furthermore, the PSI facilitates a more nuanced understanding of the
defendant's circumstances, enabling judges to make informed and fair sentencing
decisions. By presenting a detailed account of the offender's background, including
any mitigating or aggravating factors, the PSI equips judges with the necessary
context to tailor sentences that are both just and appropriate.
Moreover, the correlation between the probation officer's recommendations
outlined in the PSI and the judge's sentencing decisions underscores the document's
significance. Probation officers, tasked with compiling the PSI, possess specialized
knowledge and expertise in assessing offenders and determining suitable sentencing
options. As such, their recommendations carry considerable weight in shaping the
judge's final decision.
However, while the PSI plays a crucial role in sentencing decisions, it is
essential to recognize its limitations. The information contained within the PSI is not
infallible and may be subject to biases or inaccuracies. Additionally, factors such as
sentencing guidelines, statutory mandates, and judicial discretion also influence
sentencing outcomes, alongside the information provided in the PSI.
Despite these limitations, the PSI remains an indispensable tool in the
sentencing process, facilitating informed decision-making and promoting fairness and
equity in the criminal justice system. Its comprehensive nature and the insights it
provides into the defendant's circumstances contribute significantly to the pursuit of
justice and rehabilitation within the legal framework. Thus, the PSI stands as a
cornerstone of sentencing proceedings, serving as a conduit for justice and ensuring
that sentences are tailored to the unique circumstances of each case and individual
defendant.
Decision makers throughout the criminal justice system use the information
provided in the PSI. Probation officers, responsible for supervision, use it for initial
classifications of risk and needs, which determine the supervision intensity and
treatment plan. If offenders are sentenced to jail or prison, the PSI follows them and is
used for security and custody classification in prisons and eventually for release
decisions.
The second major task of the probation agent is to supervise offenders once
they are sentenced to probation. Depending on the supervision requirements, the agent
meets with the probationer, checks on the probationer’s employment, makes collateral
contacts (e.g., family, treatment providers), and conducts drug tests. The agent may
also assist the probationer in finding housing, employment, or needed social services.
The agent is responsible for completing risk and need classification instruments to
determine what supervision level is appropriate for each probationer and what
treatment services would be most appropriate.
b. The Organization of Probation
Probation is administered by more than 2,000 separate agencies (Abadinsky,
2008). These agencies differ by whether services are delivered by the executive or the
judicial branch of government, how they are funded, and whether they are primarily a
federal, state, or local function.
The structure and administration of probation and parole services vary
significantly across jurisdictions, reflecting the diverse approaches taken by states and
localities to address offender supervision and reintegration into society. While many
states opt for a unified statewide agency responsible for both probation and parole,
others adopt alternative models, such as separate probation agencies or local agencies
administered by the court or county executive branch.
In states where probation and parole services are combined into a single
statewide agency, there are several potential advantages. Consolidating these services
under one umbrella can promote consistency and coherence in policy implementation,
resource allocation, and administrative procedures. It facilitates centralized decision-
making, streamlines coordination among different components of the corrections
system, and promotes uniformity in service delivery across the state.
Moreover, a unified statewide agency may benefit from economies of scale,
allowing for more efficient use of resources and greater flexibility in responding to
evolving needs and challenges. By pooling resources and expertise, these agencies
can enhance their capacity to provide comprehensive supervision and support services
to individuals under community supervision, ultimately contributing to better
outcomes in terms of offender rehabilitation and public safety.
However, despite the potential advantages of a unified approach, some
jurisdictions opt for separate probation agencies or local agencies administered by the
court or county executive branch. There are several reasons why this model may be
preferred in certain contexts.
Firstly, local control and autonomy can be a driving factor behind the
establishment of separate probation agencies or local probation offices. By
decentralizing probation services, jurisdictions can tailor supervision and intervention
strategies to meet the unique needs and priorities of their communities. This localized
approach allows for greater responsiveness to local conditions, preferences, and
resources, fostering closer collaboration between probation officers and community
stakeholders.
Additionally, separate probation agencies or local probation offices may offer
increased accountability and transparency at the local level. By placing probation
services under the purview of local authorities, such as the court or county executive
branch, jurisdictions can enhance oversight and accountability mechanisms, ensuring
that probation practices align with community values and expectations.
Furthermore, the establishment of separate probation agencies or local
probation offices may facilitate innovation and experimentation in probation
practices. Local jurisdictions can develop and implement specialized programs and
initiatives tailored to the needs of specific populations or geographic areas, fostering a
culture of continuous improvement and learning within the probation system.
However, it's important to recognize that the fragmentation of probation
services across multiple agencies or jurisdictions may also pose challenges.
Coordination and collaboration between different entities can be more complex,
potentially leading to duplication of efforts, inconsistent practices, and gaps in service
delivery. Moreover, disparities in resources and capacity between jurisdictions may
result in inequities in access to probation services and support.
Overall, the structure and administration of probation services reflect a
balance between centralization and decentralization, with jurisdictions weighing
various factors such as local needs, priorities, and administrative capacities in
determining the most appropriate model for delivering probation services. Whether
through a unified statewide agency, separate probation agencies, or local probation
offices, the overarching goal remains the same: to promote public safety, offender
rehabilitation, and the fair and effective administration of justice within communities.
Debates continue about whether probation should be administered by the
judicial or executive branch of government and whether it should be the responsibility
of municipal, county, or state jurisdictions (Petersilia, 1997). Some argue in favor of
local administration by the courts because this allows greater diversity. A local court
will be able to implement more innovative programming and will be less restricted by
state bureaucratic control.
Statewide probation systems offer a multifaceted approach to the
administration of justice, which extends beyond individual sentencing decisions. One
significant advantage lies in the coordinated effort between probation services and
other components of the corrections system. This coordination fosters a more
integrated and streamlined approach to funding allocation, decision-making processes,
and overall resource management within the criminal justice system.
By consolidating probation services under the umbrella of the executive
branch of the state government, a statewide probation system facilitates greater
synergy and collaboration among various correctional entities. This alignment enables
policymakers and administrators to implement cohesive strategies that address
broader issues such as offender rehabilitation, community safety, and the efficient
utilization of resources.
Furthermore, the centralized nature of statewide probation systems allows for
better coordination with other correctional functions, including parole, incarceration,
and rehabilitation programs. This interconnectedness ensures a holistic approach to
offender supervision and management, with probation officers working in tandem
with their counterparts in other correctional agencies to provide comprehensive
support and services to individuals under supervision.
In addition to enhancing coordination, statewide probation systems also offer
advantages in terms of funding allocation and resource optimization. By pooling
resources and standardizing procedures across the state, these systems can achieve
economies of scale, resulting in cost savings and improved efficiency. Moreover, the
centralized administration of probation services enables policymakers to allocate
funding based on statewide priorities and needs, ensuring equitable access to
resources across different regions.
Moreover, the alignment of statewide probation services with the executive
branch of the state government facilitates greater accountability and oversight. This
framework enables policymakers and administrators to implement uniform standards
and guidelines for probation supervision, ensuring consistency and fairness in
decision-making processes. Additionally, it allows for enhanced monitoring and
evaluation of probation programs and outcomes, enabling stakeholders to assess
effectiveness and make data-driven policy decisions.
Despite these advantages, it's important to acknowledge that statewide
probation systems also face challenges. For instance, centralized administration can
sometimes lead to bureaucratic inefficiencies and delays in decision-making.
Moreover, variations in local needs and priorities may pose challenges to achieving
uniformity and standardization across the state.
Nevertheless, by promoting coordination, resource optimization, and
accountability, statewide probation systems play a crucial role in enhancing the
effectiveness and efficiency of the corrections system. By fostering collaboration
among various stakeholders and streamlining administrative processes, these systems
contribute to the overarching goals of promoting public safety, offender rehabilitation,
and the fair administration of justice.
c. The American Probation and Parole Association
The American Probation and Parole Association (APPA) serves as a vital hub
for professionals engaged in the fields of probation, parole, and community-based
corrections, encompassing services for both adult and juvenile populations. With its
extensive network of members, the APPA plays a crucial role in advancing best
practices, fostering collaboration, and promoting innovation in the field of community
supervision.
At its core, the APPA serves as a platform for knowledge exchange and
professional development, offering a wide range of resources, training programs, and
networking opportunities for its members. Through conferences, workshops,
webinars, and publications, the association facilitates the dissemination of cutting-
edge research, evidence-based practices, and emerging trends in probation, parole,
and community-based corrections.
Moreover, the APPA serves as a collective voice for its members, advocating
for policies and initiatives that support effective and humane approaches to
community supervision. By engaging with policymakers, legislators, and other
stakeholders, the association works to shape public discourse, influence legislation,
and promote reforms that enhance the quality and impact of probation and parole
services.
One of the APPA's key strengths lies in its commitment to promoting diversity,
equity, and inclusion within the field of community supervision. Recognizing the
disproportionate impact of the criminal justice system on marginalized communities,
the association prioritizes efforts to address systemic disparities and promote fairness
and equity in probation and parole practices.
Furthermore, the APPA plays a vital role in fostering collaboration and
partnerships among diverse stakeholders involved in the criminal justice system. By
bringing together probation and parole officers, law enforcement agencies, courts,
treatment providers, advocacy organizations, and other stakeholders, the association
promotes a holistic and coordinated approach to offender supervision and
reintegration.
Internationally, the APPA serves as a global leader in advancing the field of
probation, parole, and community-based corrections. Through partnerships with
international organizations, cross-border exchanges, and collaborative initiatives, the
association facilitates the sharing of knowledge, expertise, and best practices on a
global scale, contributing to the development of more effective and humane
approaches to community supervision worldwide.
In addition to its advocacy and networking functions, the APPA also plays a
crucial role in supporting research and innovation in the field of community
supervision. Through its research initiatives, grant programs, and partnerships with
academic institutions, the association promotes the development and dissemination of
evidence-based practices that improve outcomes for individuals under supervision and
enhance public safety.
Overall, the American Probation and Parole Association serves as a
cornerstone of the community supervision field, providing leadership, support, and
resources to probation and parole professionals around the world. With its
commitment to excellence, equity, and collaboration, the association continues to
drive positive change and innovation in the field of probation, parole, and community-
based corrections.
Association members come from all levels of government including local,
state or provincial, legislative, executive, judicial, and federal agencies as well as
educators, volunteers, and concerned citizens with an interest in criminal and juvenile
justice. It has grown to become a voice for thousands of practitioners including line
staff, supervisors, and administrators.
APPA was first discussed in 1974, when probation practitioners expressed
frustration over the lack of national representation for their field. The Probation
Committee of the American Correctional Association recommended that probation
start a national-level association. However, almost immediately the organizers
realized parole was a “twin” of probation and should be included in the same
organization.
The American Probation and Parole Association (APPA) has a rich history
dating back to its founding in Louisville, Kentucky, in 1975. From its modest
beginnings, the organization has grown into a dynamic and influential force within the
field of community supervision, boasting a membership of over 3,000 individuals by
1999. Since its inception, the APPA has been dedicated to advancing the profession of
probation and parole through education, training, advocacy, and research.
One of the hallmarks of the APPA is its commitment to providing professional
development opportunities for its members. The organization hosts annual meetings
and training institutes, bringing together probation and parole professionals from
across the country to exchange ideas, share best practices, and learn from leading
experts in the field. These events serve as invaluable forums for networking,
collaboration, and continuing education, empowering members to stay abreast of the
latest developments and trends in community supervision.
In addition to its in-person gatherings, the APPA also publishes a scholarly
journal, Perspectives, which serves as a platform for the dissemination of research,
case studies, and commentary on issues relevant to probation, parole, and community-
based corrections. Through Perspectives, APPA members have access to cutting-edge
scholarship and practical insights that inform their work and contribute to the
advancement of the profession.
Furthermore, the APPA is actively involved in advocacy efforts aimed at
promoting policies and practices that support effective and humane approaches to
community supervision. The organization works closely with policymakers,
legislators, and other stakeholders to shape legislation, influence public opinion, and
advocate for reforms that prioritize rehabilitation, public safety, and the fair and
equitable treatment of individuals under supervision.
Beyond its domestic efforts, the APPA also maintains a strong international
presence, collaborating with probation and parole organizations around the world to
exchange knowledge, share best practices, and promote global standards of excellence
in community supervision. Through partnerships, conferences, and training initiatives,
the organization contributes to the development of more effective and humane
approaches to probation and parole on a global scale.
As the field of community supervision continues to evolve in response to
changing social, economic, and political dynamics, the APPA remains steadfast in its
commitment to serving the needs of its members and advancing the profession. With
its focus on education, training, advocacy, and research, the organization plays a vital
role in shaping the future of probation and parole, ensuring that individuals under
supervision receive the support and resources they need to succeed while promoting
public safety and community well-being.
d. Characteristics of Probationers
Most probationers are convicted of nonviolent offenses; about half are
sentenced to probation for felonies and about half for misdemeanors. According to a
recent survey by the Bureau of Justice Statistics, a large percentage of probationers
are serving time on probation for substance-related violations (Glaze & Bonczar,
2007). More than a quarter (27%) were convicted of a drug law violation, and 16%
were convicted of driving while intoxicated. Most probationers (73%) were serving
time for nonviolent offenses (including substance-related violations).
Property offenses, encompassing crimes such as larceny, theft, burglary, and
motor vehicle theft, constitute a significant portion of probationers within the criminal
justice system. These offenses collectively account for 19% of probation cases,
reflecting the prevalence of property-related crimes and the need for effective
supervision and intervention strategies to address them.
Larceny and theft, comprising 13% of probation cases, involve the unlawful
taking of another person's property without the use of force. These offenses often stem
from various underlying factors, including financial hardship, substance abuse, and
opportunistic behavior. Effective probation supervision for individuals convicted of
larceny and theft may involve addressing underlying issues such as substance abuse,
providing access to employment and education opportunities, and fostering prosocial
behaviors to reduce recidivism.
Burglary, constituting 5% of probation cases, involves unlawfully entering a
building or structure with the intent to commit theft or another crime. Burglary
offenses can pose significant challenges for probation supervision due to their
potential for repeat offending and the need to address underlying factors such as
substance abuse, mental health issues, and socioeconomic disparities. Probation
officers may employ a range of interventions, including cognitive-behavioral therapy,
vocational training, and community support programs, to address the root causes of
burglary and promote rehabilitation.
Motor vehicle theft, accounting for 1% of probation cases, involves the
unauthorized taking of a motor vehicle for personal use or profit. These offenses often
intersect with other criminal activities, such as auto theft rings and chop shops, and
may be driven by factors such as poverty, addiction, and criminal associations.
Probation supervision for individuals convicted of motor vehicle theft may involve
close monitoring of their activities, participation in substance abuse treatment
programs, and employment assistance to reduce recidivism and promote lawful
behavior.
In addition to property offenses, assaults represent another significant category
of probation cases, comprising 16% of probationers. Assaults encompass a range of
offenses, including sexual assaults (2%), domestic violence (5%), and other assaults
(9%), each presenting unique challenges and intervention needs.
Sexual assaults, constituting 2% of probation cases, involve non-consensual
sexual acts or behaviors perpetrated against another person. These offenses often have
devastating psychological and emotional impacts on victims and require specialized
supervision and treatment approaches to address the underlying causes of sexual
offending and promote victim safety and well-being.
Domestic violence, comprising 5% of probation cases, involves abusive
behaviors perpetrated within intimate relationships or family settings. Domestic
violence offenses pose complex challenges for probation supervision, requiring a
multifaceted approach that addresses the dynamics of power and control, promotes
accountability for abusive behaviors, and ensures the safety of victims and children
affected by domestic violence.
Other assaults, accounting for 9% of probation cases, encompass a broad
range of non-sexual, non-domestic violent offenses, including aggravated assault,
simple assault, and battery. These offenses may arise from various situational factors,
such as interpersonal conflicts, substance abuse, and impulsive behavior, and may
require tailored intervention strategies to address underlying issues and reduce the risk
of re-offending.
Overall, property offenses and assaults represent significant categories of
probation cases, highlighting the diverse challenges and intervention needs within the
criminal justice system. Effective probation supervision for individuals convicted of
these offenses requires a comprehensive, individualized approach that addresses
underlying factors, promotes rehabilitation, and enhances public safety. Through
collaboration with community partners, evidence-based interventions, and ongoing
monitoring and support, probation officers play a vital role in promoting positive
outcomes for probationers and communities alike.
In 2006, 24% of probationers were female, a much larger percentage of
females than in any other correctional sanction. The majority of probationers were
White (55%) and male (76%). In 2006, 29% were Black, and 13% were Hispanic or
Latino (of either race).
e. Conditions of Probation
Probation is a period of conditional release to the community. In return for
their freedom, probationers agree to abide by standard release conditions and any
special release conditions that have been imposed. Standard release conditions tend to
be very similar across jurisdictions, requiring probationers to report to the probation
officers at specific times, to work or go to school, to support dependents, to refrain
from moving without permission, to permit residential or workplace visits by
probation officers, and so forth. Special conditions of probation are tailored to meet
the needs or life circumstances of individual probationers. Such conditions include
drug testing, substance abuse treatment, mental health counseling, or community
service. Financial conditions such as court costs, supervision fees, or restitution are
also commonly imposed.
Conditions of probation generally fall into one of three categories: treatment
oriented, control oriented, and punishment oriented (MacKenzie & Souryal, 1997).
Additionally some restorative justice principles have been brought into the practice of
probation through the use of community service and restitution. The following
sections discuss these different types of conditions of probation.
Consistent with the rehabilitation model of probation, treatment-oriented
conditions are intended to facilitate long-term behavioral change. Through the
presentence investigation and classification systems, the presumed needs of offenders
are identified. A treatment plan is then developed and special conditions are used to
address the identified needs. For example, offenders believed to have problems with
drugs or alcohol are required to attend substance abuse treatment as a condition of
probation. Assuming that drug use is related to criminal behavior and that the
substance abuse treatment program can effectively curb drug use, the likelihood of
further criminal behavior should be substantially reduced as drug use declines. Hence,
treatment-oriented conditions are utilitarian in nature, promising to reduce future
criminal activity.
As the name suggests, control-oriented conditions are intended to control or
restrain the behavior of probationers in the community. There are several types of
control-oriented conditions. One type limits the opportunity of probationers to commit
further crime. Such conditions include curfews and prohibitions against associating
with certain people or frequenting certain areas or establishments. Another type of
control-oriented condition limits a probationer’s privacy, thereby increasing the risk of
detection. Examples of this type of condition might include submitting to searches or
permitting visits to the home or workplace. A third type of control-oriented condition
that tends to overlap with treatment-oriented conditions entails mandatory
employment or education. Such conditions can be considered control oriented simply
in that employment and education typically provide supervision and take up a great
deal of a probationer’s time. In short, control-oriented conditions are those that seek
to regulate probationer behavior in the community in an attempt to prevent crime
during the period of supervision.
Punishment-oriented conditions imposed on individuals under probation
supervision encompass a variety of sanctions designed to reflect the gravity of the
offense committed. These conditions, distinct from treatment- or control-oriented
measures, focus primarily on punitive measures aimed at holding offenders
accountable for their actions and deterring future criminal behavior.
One commonly imposed punishment-oriented condition is community service,
which requires probationers to perform unpaid work for a specified number of hours
within the community. Community service not only serves as a tangible consequence
for the offense but also fosters a sense of restitution and contribution to the
community. By engaging in meaningful work, probationers may gain valuable skills,
develop a sense of responsibility, and demonstrate their commitment to making
amends for their actions.
Restitution is another punitive measure often imposed as a condition of
probation, requiring offenders to compensate victims for financial losses resulting
from their criminal conduct. Restitution aims to restore victims to their pre-crime
financial status and provide them with a sense of justice and closure. Additionally,
restitution serves as a deterrent to future offending by holding offenders financially
accountable for the harm they have caused.
Court costs and supervision fees are additional punishment-oriented conditions
commonly imposed on probationers. These financial obligations require offenders to
pay fines, court fees, and administrative costs associated with their probation
supervision. While intended as punitive measures, court costs and supervision fees
may also serve practical purposes, such as offsetting the costs of probation services
and supporting victim compensation funds.
In addition to these sanctions, probationers may be subject to other
punishment-oriented conditions, such as curfews, electronic monitoring, and driver's
license restrictions. These measures are intended to restrict probationers' freedom and
mobility, imposing tangible consequences for their criminal behavior and reinforcing
the seriousness of the offense.
While punishment-oriented conditions play a crucial role in the probation
system, it is essential to balance the goals of accountability and rehabilitation.
Excessive reliance on punitive measures may undermine the rehabilitative potential of
probation and perpetuate cycles of criminality. Therefore, probation officers must
carefully consider the individual circumstances of each case and tailor sanctions to
address underlying factors contributing to the offender's behavior.
Furthermore, the effectiveness of punishment-oriented conditions hinges on
their consistent enforcement and monitoring. Probation officers play a critical role in
ensuring compliance with court-ordered sanctions, monitoring probationers' progress,
and addressing violations promptly and appropriately.
Overall, punishment-oriented conditions serve as important tools in the
probation system, reflecting society's expectations for accountability and justice. By
imposing tangible consequences for criminal behavior, these sanctions seek to
promote public safety, deter future offending, and uphold the integrity of the justice
system. However, they must be applied judiciously and in conjunction with
rehabilitative efforts to maximize their impact and support the long-term success of
probationers in reintegrating into society.
Restorative justice is a philosophy of jurisprudence that attempts to restore
victims, offenders, and communities to their situation before the crime (Braithwaite,
1998). Although there have been few programs directly using restorative programs for
adult probationers, some believe that community service and restitution are
representative of restorative justice principles. Both of these are common conditions
of probation.
f. Probation Revocation
Probation status can be revoked for either a new crime or a technical violation
of the conditions of probation. Conditions of probation are essentially a list of things
required of the probationer. This is part of the contract with the court. The court
agrees to permit offenders to serve sentences in the community if they abide by the
required conditions. When probationers do not comply with the conditions of their
probation they are considered to have violated the contract, and they can be punished.
Technical conditions are requirements that would not be criminal offenses if the
person were not on probation.
A substantial number of probationers fail to comply with release conditions
and are consequently arrested and disciplined. Many of those who begin probation do
not successfully complete their sentence. For example, in 2006, only 57% of the
probationers who left probation exited successfully (Glaze & Bonczar, 2007).
The statistics regarding the outcomes of individuals under probation
supervision shed light on the multifaceted nature of the probation system and the
various challenges and complexities involved in supervising offenders within the
community.
Of particular note is the fact that 18% of individuals under probation
supervision ultimately became incarcerated. This includes individuals who were
incarcerated for committing a new crime (4%), violating the terms of their probation
(9%), or for other reasons (5%). Each of these scenarios presents unique challenges
and implications for the probation system.
Firstly, individuals who are incarcerated for committing a new crime highlight
the ongoing risk posed by certain offenders and the limitations of probation
supervision in preventing recidivism. Despite efforts to address underlying issues and
promote rehabilitation, some individuals may continue to engage in criminal behavior,
ultimately resulting in incarceration.
Similarly, individuals who are incarcerated for probation violations underscore
the importance of accountability and compliance with court-ordered conditions.
Violating the terms of probation, whether through failing drug tests, missing
appointments, or engaging in prohibited activities, can have serious consequences and
may lead to incarceration as a means of enforcing compliance and ensuring public
safety.
Additionally, individuals who are incarcerated for other reasons, such as
technical violations or administrative issues, highlight the complexities and potential
pitfalls of the probation system. Factors such as inadequate supervision, limited
resources, and systemic barriers may contribute to individuals being incarcerated for
reasons unrelated to their criminal behavior, raising questions about the fairness and
effectiveness of probation practices.
Furthermore, the statistics reveal that 4% of individuals absconded from
probation supervision, indicating a failure to maintain contact with probation
authorities and comply with supervision requirements. Absconding not only
undermines the goals of probation but also poses risks to public safety and the
integrity of the criminal justice system.
Moreover, 12% of individuals were considered to have ended their probation
unsatisfactorily, indicating that they did not successfully complete supervision
requirements. This may include individuals who failed to comply with treatment
programs, violated the terms of their probation, or otherwise did not meet the
expectations set forth by the court. These outcomes underscore the challenges
inherent in supervising individuals with complex needs and histories of criminal
behavior.
It is worth noting that an additional 8% of individuals left probation for other
reasons, including death, indicating that not all cases result in traditional outcomes
such as successful completion or incarceration. Each of these cases represents a
unique story and underscores the importance of individualized approaches to
probation supervision that address the diverse needs and circumstances of
probationers.
Overall, the statistics regarding probation outcomes highlight the complexities
and challenges involved in supervising individuals within the community. While
probation can offer opportunities for rehabilitation and reintegration, it also requires
careful monitoring, accountability, and support to ensure positive outcomes for both
individuals under supervision and the broader community.
In seeking to control the behavior of probationers and to ensure that they
comply with the technical conditions of probation, probation officers possess a wide
range of sanctions. Sanctions range in severity from warnings to placement in a
residential center to revocation. Revocation is the most serious sanction available to
probation agencies. The threat of revocation and presumably incarceration is intended
to serve as a deterrent. Specifically, it is hypothesized that the threat of revocation will
deter probationers from violating the conditions of supervision.
The utilization of the threat of revocation as a means of coercing treatment
represents a complex intersection of legal, ethical, and practical considerations within
the probation system. This strategy, while controversial, is often employed with the
intention of motivating probationers to engage in counseling or treatment programs
that address underlying issues contributing to their criminal behavior.
At its core, the threat of revocation serves as a form of leverage to encourage
compliance with court-ordered treatment requirements. Probationers are made aware
that failure to adhere to treatment protocols or meet program expectations may result
in the revocation of their probation status, leading to potential incarceration or other
sanctions. This coercive element is intended to incentivize probationers to take their
treatment obligations seriously and actively participate in the therapeutic process.
However, the use of revocation threats raises ethical considerations regarding
the voluntariness of probationers' participation in treatment. Critics argue that
coercion undermines the principle of informed consent and may compromise the
therapeutic relationship between probationers and treatment providers. Moreover,
coercion may perpetuate feelings of mistrust and resentment among probationers,
potentially hindering their willingness to engage meaningfully in treatment.
Furthermore, the efficacy of coercion as a means of promoting treatment
engagement is subject to debate. While the threat of revocation may initially compel
probationers to attend counseling or treatment sessions, it does not necessarily
guarantee sustained participation or meaningful progress. Research suggests that
coerced treatment may be less effective than voluntary treatment in producing positive
outcomes, as it may not address the underlying motivational factors driving behavior
change.
Moreover, reliance on coercion may exacerbate disparities in access to
treatment, particularly among marginalized populations. Probationers facing
socioeconomic barriers, mental health issues, or substance abuse disorders may be
disproportionately impacted by coercive tactics, further exacerbating inequalities
within the criminal justice system.
In light of these considerations, probation officers and treatment providers
must approach the use of revocation threats with caution and sensitivity. Whenever
possible, efforts should be made to foster a collaborative and supportive environment
that empowers probationers to actively participate in treatment of their own volition.
This may involve providing comprehensive information about treatment options,
addressing barriers to participation, and offering incentives for positive behavior
change.
Additionally, probation systems should prioritize the provision of voluntary,
evidence-based treatment options that respect probationers' autonomy and dignity. By
focusing on empowering individuals to make informed decisions about their treatment
journey and addressing the root causes of their behavior, probation systems can
promote more effective rehabilitation and reduce the reliance on coercive measures in
promoting treatment engagement.
Ultimately, the use of the threat of revocation as a means of coercing treatment
represents a complex balancing act between accountability, rehabilitation, and ethical
considerations within the probation system. Moving forward, probation policies and
practices should strive to strike a delicate balance between promoting treatment
engagement and upholding the principles of autonomy, dignity, and fairness for all
probationers.
g. Officer Discretion
Probation officers have traditionally exercised a great deal of discretion in
choosing between the various sanctions available to them. Clear, Harris, and Baird
(1992) reviewed prior research and concluded that the magnitude of officer discretion
is considerable. In summarizing the scant research literature on probation officer
responses, they found that officers had a great deal of discretion, and even within the
same office responses to similar situations varied widely; officers tailored their
decisions to gain the approval of immediate supervisors; and officers became more
punitive in their attitudes in the late 1970s and 1980s.
Clear et al.’s (1992) evaluation of six probation agencies supported the
conclusions of earlier research. They, too, found that officers possess a great deal of
discretion, resulting in wide variation in officer responses to similar offenses.
Variation in probation officer responses may result from factors such as an officer’s
attitude toward rehabilitation. For example, officers who support rehabilitation may
be willing to overlook minor violations in order to establish an effective supervision
relationship.
However, it should be noted that although probation officers have a great deal
of discretion in sanctioning probationers, their role in the revocation process may be
more limited. Clear et al. (1992) discovered, contrary to popular belief, that individual
agents may have little control over the decision to revoke or over the consequences of
the revocation order. Higher administrators in the probation department, department
policies, and court officials have the final decision-making authority.
Not only is there a great deal of variation within probation departments in
responding to technical violations, but there appears to be a great deal of variation
between probation departments as well. For example, Clear et al.’s (1992) evaluation
of six probation agencies revealed that the conditions necessary for revocation varied
widely between jurisdictions. Probation officer responses within an agency appear to
be shaped by organizational policy and tradition.
Organizational policy refers to the formal sanction policies. Differences in
organizational policy between jurisdictions include the availability of alternatives to
revocation, the type of supervisory review of case records and officer decisions, and
the requirements for initiation of the revocation process (Clear et al., 1992).
The impact of organizational policy on individual probation officer responses
is a critical consideration within the probation system, influencing the exercise of
discretion, the application of sanctions, and the overall effectiveness of supervision
practices. Organizational policies play a pivotal role in shaping probation officers'
decision-making processes, as well as in fostering consistency, accountability, and
adherence to professional standards.
One key aspect of organizational policy is the degree of supervisory review
imposed on probation officers' actions. In jurisdictions where there is a high level of
supervisory oversight, probation officers may have less autonomy and discretion in
their decision-making, as their actions are subject to closer scrutiny and approval by
supervisory personnel. This can lead to a more regimented and standardized approach
to probation supervision, with patterns of responses to violations being shaped by the
directives and preferences of supervisory officers.
The presence of supervisory review can serve several purposes within the
probation system. It can help ensure adherence to agency policies and procedures,
promote consistency in decision-making across probation officers, and provide
opportunities for feedback, mentoring, and professional development. However,
excessive supervisory oversight may also have drawbacks, such as stifling creativity
and innovation, eroding morale among probation officers, and undermining trust and
rapport with probationers.
Moreover, organizational policies regarding the allocation of resources,
caseload management, and workload expectations can significantly impact probation
officers' ability to effectively carry out their duties. In jurisdictions where probation
agencies are understaffed or under-resourced, probation officers may face higher
caseloads, increased workloads, and limited time and resources to devote to individual
cases. This can impede their ability to conduct thorough assessments, provide
adequate supervision, and implement appropriate interventions, leading to challenges
in effectively addressing probationers' needs and reducing recidivism.
Additionally, organizational policies related to training, professional
development, and performance evaluation can shape probation officers' attitudes,
skills, and behavior. Training programs that emphasize evidence-based practices,
cultural competence, and trauma-informed care can better prepare probation officers
to work with diverse populations and address complex needs. Likewise, performance
evaluation systems that recognize and reward positive outcomes, such as reduced
recidivism rates and successful completion of probation, can incentivize probation
officers to prioritize effective supervision strategies and interventions.
Furthermore, organizational policies regarding collaboration and partnerships
with external stakeholders, such as treatment providers, community organizations, and
law enforcement agencies, can impact probation officers' ability to access resources,
leverage support networks, and coordinate services for probationers. Effective
collaboration can enhance the effectiveness of supervision efforts, improve outcomes
for probationers, and strengthen community safety.
In sum, organizational policy plays a central role in shaping probation officers'
responses to violations and overall supervision practices. By establishing clear
expectations, providing adequate support and resources, and promoting a culture of
accountability and continuous improvement, probation agencies can empower
probation officers to make informed decisions, exercise discretion judiciously, and
achieve positive outcomes for probationers and communities alike.
Equally important as organizational policy in shaping probation officer
responses is organizational tradition. According to Clear et al. (1992), sanctioning
policy reflects the “workability” of formal policy, the availability of resources, and the
relationship between the probation agency and the judicial branch of government. For
example, probation officers report that they sometimes fail to strictly adhere to formal
policy, such as the reporting of all violations, if they believe that it is in the best
interests of the probationer not to do so.
Clear et al. (1992) provide valuable insights into the decision-making
processes surrounding sanctions and revocations within the probation system,
emphasizing the significance of understanding the local legal culture in shaping these
decisions. This finding underscores the importance of contextual factors, institutional
norms, and professional practices in influencing probation officers' judgments and
actions.
One key aspect highlighted by Clear et al. (1992) is the role of discretion in
probation decision-making. Probation officers are vested with considerable discretion
in determining appropriate sanctions and responses to probation violations, allowing
them to tailor interventions to the unique circumstances of individual cases. However,
this discretion is not exercised in a vacuum but is rather influenced by a range of
factors, including legal norms, organizational policies, and professional norms.
The concept of legal culture encompasses the shared values, beliefs, and
practices within a legal community, shaping how legal actors interpret and apply the
law. Within the context of probation, the local legal culture may influence probation
officers' attitudes towards rehabilitation, punishment, and risk management, guiding
their decision-making processes. For example, in jurisdictions with a strong emphasis
on punitive approaches to probation, officers may be more inclined to impose harsher
sanctions for probation violations, whereas in jurisdictions with a more rehabilitative
orientation, officers may prioritize interventions aimed at addressing underlying
issues and promoting behavior change.
Furthermore, Clear et al. (1992) draw parallels between probation decision-
making and other stages of the criminal justice process, such as police and court
decision-making. Just as police officers exercise discretion in deciding whether to
arrest or issue a citation, probation officers exercise discretion in determining
appropriate responses to probation violations. Similarly, just as judges exercise
discretion in sentencing decisions, probation officers exercise discretion in imposing
sanctions and conditions of supervision.
The finding that decisions about sanctions and revocations are best understood
in the context of the local legal culture underscores the need for interdisciplinary
approaches to studying criminal justice decision-making. By integrating insights from
sociology, criminology, psychology, and legal studies, researchers can gain a more
comprehensive understanding of the complex dynamics shaping probation decision-
making processes.
Moreover, the emphasis on the local legal culture highlights the importance of
organizational context and institutional dynamics in shaping probation practices.
Factors such as agency culture, leadership styles, resource constraints, and community
attitudes towards crime and punishment all play a role in influencing probation
officers' decision-making processes.
In sum, Clear et al. (1992) provide a nuanced analysis of probation decision-
making, emphasizing the significance of understanding the local legal culture in
shaping sanctions and revocations. Their findings underscore the complex interplay of
legal, organizational, and professional factors in guiding probation officers' judgments
and actions, highlighting the need for context-specific approaches to studying and
improving probation practices.
h. The Context and Goals of Diversion: Punitive Alternatives to Imprisonment
The question of how best to respond to violations of the law has occupied
societies for centuries. The challenge is to satisfy the desire for retribution while
avoiding the excesses of revenge and to increase social order, preferably by
convincing people not to commit future crimes (deterrence). Banishment, corporal
punishment, fines, imprisonment, and rehabilitation have all been used and debated,
and in the United States and elsewhere all these methods remain in use, although we
commonly avoid discussion of the first two.
Diversion first developed in the late 19th century in response to concerns that
incarceration was inappropriate and counterproductive for youth who were being
arrested, prosecuted, and punished without recognition of their special status as
children. As “child saving,” diversion programs provided alternatives to “Jim Crow
juvenile justice” that nonetheless provided social control, often targeting black youth
in particular (Ward, 2009). Alternative punishments emerged as a means of
sanctioning children who committed crimes while avoiding the damaging effects of
being incarcerated with adults and in the same way as adults (Feld, 1998; Zimmering,
1998). Diversion was intended to “do good by doing less harm,” avoiding the
corrupting impact of incarceration on youth sanctioned for committing a crime or,
later, for status offenses, the noncriminal acts such as truancy that could land juveniles
in custody. This goal of reducing harm has sometimes been coupled with the
interventionist goal of rehabilitation, but the two are distinct and possibly in
opposition.
Once a person is arrested, there are multiple points at which he or she may be
offered a diversion program. The broadest distinction is whether the diversion is
offered before trial as an alternative sentence or offered after a sentence has been
imposed and partially served. Much of this volume is devoted to the latter variation,
sometimes called back-end programs, which divert incarcerated offenders from a
portion of their sentence.
Participation in front-end diversion programs is most often negotiated as a
condition of a deferred sentence, with the understanding that the guilty plea will be
voided and the charges will be dropped (or in some cases lessened to a lower charge)
upon successful program completion. As part of the pretrial agreement, the defendant
admits guilt for a specific charge that carries a stated term of incarceration. However,
the judge holds the custodial sentence in abeyance, permitting the offender to attend
the diversion program. The defendant agrees that if he or she fails to complete the
program, he or she will be punished by having to serve the stated term of
incarceration. In negotiating such plea agreements, some prosecutors and judges insist
that defendants plead guilty to charges that carry lengthier sentences than the charges
they would offer absent the diversion alternative. They believe the harsher sentence
motivates defendants to remain law-abiding while attending the program. If the
offender completes the program successfully, the court may void the original guilty
plea. At that point, the judge will either dismiss the case or permit the offender to
plead guilty to a lesser offense with a sentence of time served or probation.
The two aims of diversion are to divert offenders from the harms of
incarceration and toward rehabilitative interventions designed to change the behavior
(and often the character) of the offender. Community-based interventions promise to
produce better outcomes than traditional incarceration because they prevent the prison
culture from derailing the rehabilitation process (Natarajan & Falkin, 1997). To
varying degrees, incarcerated offenders become socialized to the inmate subculture
that values solidarity among fellow inmates and resists official correctional goals
(Sykes & Messinger, 1960). The threat of peer violence and the deprivation of basic
needs also force many inmates to seek protection and privileges through gang
affiliation. This climate is not conducive to effective rehabilitative treatment. More
recent scholarship reveals that the removal of able bodies from disadvantaged
neighborhoods further exacerbates familial stresses, destroys social ties, and
deteriorates the socioeconomic fabric of the community (Clear, 2007; Pager, 2007).
The continued reliance on mass incarceration will further reduce the ability of inner
cities to support the reentry of returning ex-offenders unless an effort to expand the
use of alternatives to incarceration is sustained.
Although the goals of diversion from incarceration and treatment in the
community are similarly cast as alternatives to simple (i.e., nontherapeutic)
incarceration, they differ from each other in important ways, including their measures
of success. Straight diversion programs, such as those that seek to reduce prison
overcrowding or those that seek to spare youth from the damaging experiences of the
adult criminal justice system, have a corresponding goal: to reduce the use of
incarceration. That goal can be measured in terms of sentencing patterns for various
offenses (Belenko, Schiff, Phillips, & Winterfield, 1994). However, diversion
programs that also seek to change offender behavior, called interventionist programs,
have additional goals beyond the negative impacts of incarceration and reductions in
system costs. Specifically, interventionist program goals include reducing problematic
behavior such as drug use, out-of-marriage pregnancy, and vagrancy and reducing
illegal activity or recidivism (Mears, Winterfield, Hunsake, Moore, & White, 2003).
To measure the impact of these interventionist efforts, researchers must track and
monitor offenders over time to assess whether they use drugs or gain and keep jobs,
for example, and whether they are arrested for new crimes. Most current programs
that are labeled as diversion programs are interventionist in their orientation. This
reflects both program administrators’ interest in rehabilitation and policymakers’
interest in maintaining public safety while avoiding the perception that they are soft
on crime.
A central concern of any diversion program is ensuring participant eligibility
and screening out people who present an unacceptable risk of reoffending. No judge,
prosecutor, or policymaker wants to be the one who lets a convicted offender out of
jail if that offender goes on to commit a high-profile crime. In truth this almost never
happens, but the possibility that a participant in a diversion program could commit a
horrible crime such as murder carries great power in judicial policymaking. Public
safety is a hypothetical concern in many respects, but it is one that dominates
decisions about diversion sentences.
Generally, policymakers see nonresidential diversion programs as less secure
and posing greater risks to public safety. Offenders in these programs are likely to
reside in the same communities where they have obtained drugs and committed
crimes in the past. Residential program settings are also often preferred because they
are perceived as more punitive. Terms such as difficult, rigorous, and intensive are
used to describe the regimen of residential therapeutic communities; these programs
usually require participant stays of a year or more, which some liken to a jail
sentence. Some research has found that judges and prosecutors with extended
exposure to outpatient treatment, such as those who work in drug courts, are more
willing to endorse nonresidential programs (National Institute of Justice, 2006). The
intertwined roles of treatment and supervision continue to influence the structure and
use of diversion programs, requiring compromise and leaps of faith from
policymakers, court actors, and service providers alike.
i. Diversion Program Descriptions
This section describes three of the most common forms of diversion programs.
The first is independent alternatives to incarceration (ATIs), including such national
programs as Treatment Alternatives to Street Crime (TASC) and Drug Treatment
Alternative to Prison (DTAP). Then it describes drug courts, the effort at systemic
change in case processing that started about 20 years ago in Miami and has become a
national effort. Finally we describe boot camps, the demanding semi-prisons designed
to provide a quick and unforgiving combination of punishment and therapy.
ATI programs provide therapeutic or other constructive programming (e.g., job
training) and supervision for offenders who are placed in the ATI by a judge. They
may be residential or day programs and may require full-time or part-time activities.
They typically have both clinical and nonclinical staff and work to address
participants’ needs, as determined in extensive assessments conducted shortly after
program entry. Unlike some other intermediate sanctions, ATIs try to admit only
defendants who would otherwise be incarcerated. ATIs can be individual programs
working with their own representatives in the courts individually or in coordinated
alliances of programs. Or they can be coordinated by agencies such as TASC that act
as liaisons or brokers between an array of treatment providers and the court, which
works best when the courts can maintain significant legal jeopardy (i.e., for people
convicted of serious offenses facing incarceration sentences) (Anglin et al., 1996).
ATIs can also be operated by prosecutors, who often have the greatest control over
eligibility because sentencing mandates and plea negotiations are determined largely
by prosecutorial decisions. In both cases the treatment providers or the treatment
liaisons must rely on word of mouth among defense attorneys and sympathetic judges
to get cases. Judges rarely systemically seek out these diversion programs, and their
use is never systematic across judges. ATIs are never a local policy that can be relied
on for all cases of a specified eligibility.
In 1989 the first drug court opened in Miami. It was designed to
institutionalize and standardize the potentially coercive element of the criminal court
to encourage defendants to enter drug treatment. The court model reflected the
consternation among some court actors that a revolving door of drug use, arrest,
sentencing, and release did little to reduce drug use or the crime associated with drug
use. The drug court model was to place offenders in treatment in exchange for a lesser
or no conviction and monitor their compliance through regular communication
between therapeutic (drug treatment) staff and the judge and between the judge and
the offender.
Drug courts use the coercive power of the judge and of a jail sentence in the
event of failure to complete the program to place defendants in drug treatment and
monitor them until they complete treatment. In this regard they are very much like the
ATIs, TASC, and DTAP programs discussed earlier. Also like these programs, drug
courts try to address the broader needs of defendants and try to place them in
treatment that works for them. To maintain this kind of flexibility, drug courts have
successfully institutionalized four components: a court coordinator, a network of
treatment providers, graduated sanctions (and rewards), and a data system to track
participant behavior.
The court coordinator is the resource to the judge in a drug court who makes
sure that each participant is assessed, placed in appropriate treatment, and tracked
weekly (or more often) for treatment attendance and behavior compliance including
drug testing. The coordinator ensures that the reports about the participant are
delivered regularly to the judge and that those reports are reliable. It would be difficult
or impossible for a judge to manage a caseload of any significance without a
coordinator, so this person plays a key role in maintaining a drug court, but it is a full-
time job. Drug treatment can be delivered through various models ranging from 12-
step programs that are entirely volunteer run (e.g., Alcoholics Anonymous) to 2-year
residential treatment programs. Ideally drug courts have multiple treatment options
from which to choose in order to retain a participant whose addiction is too great for a
low-intensity treatment model, for example, or a participant who is too independent
and high functioning to do well in a residential program with many restrictions.
However, developing a network of programs can be challenging. Not all communities
have a range of treatment programs; not all treatment programs have been tested or
evaluated, and their models may be ineffective; and not all treatment programs are as
devoted to public health and public safety as they are to making money (in this case
through government contracts). For these reasons, the court coordinator should
regularly monitor and meet with treatment providers to assess their commitment,
capacity, and efficacy.
Boot camps are militaristic short-term incapacitation programs that originated
in 1983 in Georgia and Oklahoma. They became increasingly popular throughout the
1980s and 1990s and operate now for both juveniles and adults and in federal, state,
and local jurisdictions (MacKenzie, 2006).
In general, they feature a rigid daily routine emphasizing physical activity.
However, there is variation between the programs in regard to their emphasis on
rehabilitation and aftercare. There are three generations of boot camps, the earliest of
which (e.g., “Scared Straight” or shock incarceration programs) followed a military
model of early rising, a long day of activity, strict restrictions, physical activity as
punishment, and a graduation ceremony upon completion of the program (Parent,
2003). The goal of these programs is learned strict social control to decrease
recidivism. The second generation maintains the rigid structure but incorporates
rehabilitation into daily program content through programs such as drug treatment and
educational services. This style of boot camp also uses intensive supervision, largely
as a response to concerns about public safety. The third generation sought to further
advance the public safety and rehabilitation components by including an aftercare
component that mandated therapeutic contact with the offender after release.
Do these diversion programs work? They can be evaluated in at least three
distinct categories (which can also be used in combination): diversions intended to
keep people out of jail or prison because of the harms and costs associated with the
latter, diversions intended to respond to the underlying causes of criminal offending
through therapeutic and behavioral interventions, and diversions intended to
demonstrate public accountability for huge court caseloads and swelling prison and
jail populations. ATIs, drug courts, and boot camps each satisfy some of the standards
suggested in these models and fail to satisfy others. If a diversion engages in net
widening, then it fails the first set of goals. If a diversion addresses and engages with
participant problems, it may succeed in the second. If a diversion program maintains
low recidivism rates—even if it engages in net widening—it may succeed in the third,
which is also the most common measure of success for these programs.
j. Policy Issues in Diversion Programs
The United States maintains a decentralized criminal justice system that is rife
with contradictions. Although crimes are nationally specified—for example, it is
illegal to sell cocaine anywhere in the country—the severity of each crime varies by
state. Consequently, punishments are not consistent across states, so the crime that
leads to incarceration in Indiana may result in straight probation in Illinois. In addition
to this fundamental challenge to our conception of justice, most states do not have
centralized court systems, so each county and even each judge may apply the law
differently. In this context diversion programs may be destined to remain boutique
options, never able to reach the number of cases that would make them sustainable for
all eligible cases.
To maximize the number of cases sentenced to alternatives, policymakers
behind the drug court movement realized that they would have to develop sustained
cooperation between court stakeholders. These stakeholders include the judiciary,
defense and prosecuting attorney agencies, clinicians and other service providers,
government, and other funders and political operatives. Because drug courts gain
widespread collaboration in how cases are processed, they can reasonably attempt to
screen all eligible cases for program entry. An independent ATI or even a state-run
boot camp has much less assurance that all eligible cases will be screened for
diversion because unlike drug courts these diversion programs maintain no central
screening, so the mechanisms of case placement and management do not exist.
Many diversion programs respond to the perception that drug abuse or other
chronic problems lead to offending. This perception is based largely on a desire to fix
the problem of crime by finding the source of crime. Therefore, it is perfectly suited
to the interventionist inclination of policymakers who support diversion. At the same
time, treatment satisfies the mandate to punish by requiring the offender to participate.
There is some consensus that mandated treatment may be as effective as—and
perhaps more effective than—voluntary treatment (Young, 2002). But the
mechanisms of treatment remain poorly researched and poorly understood. There is
little accountability regarding the content of treatment (predictably, because courts are
not run by clinicians), so rigorous examination of treatment content and coherence is
unlikely. There is also the chance that mandated treatment is helpful only to those who
want treatment. If motivation is central, then linking treatment to the criminal justice
system becomes a way to get people who want treatment and are arrested into
treatment that they could not get if they had not been arrested. In that case, court-
mandated treatment becomes a segregated form of health care in which some people
(who obey the law or who can afford it) get treatment through civilian channels and
others (who cannot afford care and break the law) get it through threat of
imprisonment. Logistically this opposition may not present a significant obstacle to
treatment as diversion, but ethically and within our moral political philosophy it may.
Perhaps most at risk for this type of confusion are the drug courts and other
problem-solving courts for two reasons. First, judges and other court staff are
encouraged to make decisions about clinical matters by keeping a participant in
specific programming and, more overtly, by speaking to and often lecturing a
participant about the therapeutic process. Second, these programs provide a market
for treatment, with a steady demand and stable funding. Because some treatment is
provided as a for-profit endeavor, and even nonprofit programs are pushed to maintain
or increase their budgetary obligations, there is a powerful incentive to approach the
partnership between treatment and the courts as a relationship between business
partners in which the court is a client of the treatment program. This relationship
could be benign or beneficial, but it also diverts the focus from program participants.
In using treatment as a punishment, judges, prosecutors, and policymakers run the risk
that the image of rehabilitation overwhelms its practice.
But these indicators do not assess program success in meeting interventionist
goals for diversion. Broadly, there are two goals of intervention, rehabilitation and
public safety, each of which can be assessed too leniently or too severely. Offender
rehabilitation seeks improvement in social functioning, measured primarily as a
decrease in offending and drug use. But there is a difference between compliance with
prohibitions against crime and rehabilitation of the impulse to commit crimes. It may
be that simply changing behavior during the program (including through threat of
sanction alone) is sufficient to change long-term behavior by developing a law-
abiding pattern that stays with participants after they leave a program. It may also be
that once the threat of sanctions is removed, along with the supports associated with a
program (e.g., counseling, resources, peers), the motivation to avoid old habits of drug
use and crime wanes. Then, if the opportunities to offend are still around the ex-
offender, that person may have little reason to decide not to offend or take drugs.
Advocates of a diversion initiative may be willing to accept that long-term gains are
significantly less than in-program rehabilitative effects, but it is often difficult to
convince policymakers and others in search of demonstrable progress that realistic
goals should carry the day. Policymakers’ views and expectations are important
because they are the ones who come up with the will, the funding, and other resources
to implement diversion programs in the first place. If they are not happy with results,
diversion programs will not survive.
