THE ISSUE. When spending taxpayer money on criminal justice, it is counterproductive and wasteful to enact policies that create more criminals, rather than enacting policies that reduce the incidence of crime. Taxpayers do not always benefit from sending low-risk offenders, especially first-time nonviolent felons, to prison. In prison, the offender is surrounded by other felons and removed from his family and community. Because the offender is unable to work and earn income, he may be unable to pay adequate restitution to the victim of the crime. Moreover, when he is released, he will be forced to transition back to life outside of prison, with the additional stigma of having been sent to prison. If he does not transition effectively, the state will quite possibly have transformed a low-risk nonviolent offender into a career criminal. In effect, taxpayers will have spent more money to become less safe.
As Mark Earley and Newt Gingrich have noted, “[j]ust as a student’s success isn’t measured by his entry into high school but by his graduation…celebrating taking criminals off the street with little thought to their imminent return to society is foolhardy.”
THE IMPACT. Probation presents an alternative to incarceration for certain low-risk offenders, and it carries three advantages when implemented appropriately. First, instead of sending the low-risk offender to prison, probation allows him a chance to remain in the community, which keeps family structures together, keeps a potentially productive worker available in the workforce, and allows the offender to be rehabilitated without suffering the stigma of having been in prison.
Secondly, because probation allows an offender to keep a job and earn income, it increases the likelihood that the offender will be able to pay proper restitution to the victim of his crime.
Third, because probation is significantly cheaper than incarceration, it can be a cost-effective form of rehabilitation. In Missouri, for example, incarceration is five times as expensive as probation, and the state has begun notifying judges of the costs of the sentences they administer. Lengthy and expensive sentences are necessary and unavoidable for serious offenders – but not necessarily for low-level, non-violent offenders. For these individuals, probation may be offered, and it may be conditioned on the offender receiving important services, like regular attendance at drug or psychiatric counseling, which can reduce the likelihood of recidivism. Thus, in some cases, society’s public safety goals may be achieved without the costs of incarcerating, facilitating reentry, and tracking down and re-incarcerating offenders who have become career criminals.
Probation can be made particularly efficient through the use of risk assessments, which are inventories containing questions designed to predict whether the individual will recidivate. The risk factors inquired about may include age, criminal record, employment status, history of substance use, and age of first offense. A risk assessment instrument can be administered when an offender begins probation to determine the appropriate level of supervision.
THE CONSERVATIVE SOLUTION.
• For low-level drug offenders with no violent prior crimes or sex offenses, in lieu of incarceration consider requiring probation with drug or psychiatric treatment.
• Research and utilize evidence-based best practices, such as risk assessments, to determine which offenders are low-risk for recidivism and thus better served by conditional probation.
• Enhance the use of problem-solving courts, such as drug courts, DWI courts, etc. These courts can provide specialized oversight and victim-offender mediation that present a low-cost alternative to incarceration.
• Give victims the right, upon request, to be informed of relevant proceedings, attend those proceedings, and express a preference to the prosecutor on the type of sentence.
• Institute performance-based funding for probation departments. Local probation departments that are successful should receive additional funds in order to further develop their methods. Other departments will adopt proven successful methods in order to qualify for enhanced funding.