PRISON TERMS TO BE REVIEWED

Va. To Unveil Program To Address Time Served For Technical Violations

On July 1, Virginia will break new ground in an effort to reduce a
prison problem bedeviling much of the nation.

At issue is Virginia's share of the hundreds of thousands of men and
women imprisoned, or reimprisoned in the United States each year,
because they broke rules - not because of new criminal
convictions.

They are called "technical violators," probationers and parolees who
violated the conditions set for their freedom. Their offenses range
from failing to report to their probation and parole officers on time,
to failing drug tests.

And they are a significant part of the reason why the prison
population in Virginia and in the United States has been steadily
breaking records for years.

Prison often is imposed on technical violators because there are
strong political or bureaucratic incentives to do so.

Virginia will try a two-stage effort. The first, to take effect July
1, involves voluntary sentencing guidelines for judges aimed at ending
the disparity in the way technical violators are punished across the
state.

For example, in Alexandria, 91 percent of technical offenders are
incarcerated; next door in Fairfax County, 46 percent are.

The second phase, possibly to take effect next year, will use risk
assessment to predict which technical offenders are most likely to
commit new crimes and need to be imprisoned, and which do not.

The first stage will not be without controversy.

For instance, while marijuana use will weigh heavily in determining
whether a violator needs to be imprisoned, it will not count toward
the length of the sentence.

Also under the guidelines, the admitted use of drugs such as cocaine
or heroin will not count toward sentence length, as long as there are
no drug-test results to back up the admission.

That, said Richard P. Kern, director of the Virginia Criminal
Sentencing Commission, is because an in-depth study of how judges
sentenced such offenders showed those usually were not factors
considered when judges determined a sentence.

Many criminologists and policy-makers, such as Kern, believe technical
violators, as a group, represent a relatively low threat to public
safety and do not belong in cells meant for dangerous offenders.

Other experts disagree. They urge caution when it comes to using
alternatives to prison for technical violators. They say many belong
behind bars and the threat of prison is needed to keep the others in
line.

Virginia's approach to the problem is the first of its kind in the
nation.

Last year, the General Assembly asked the Virginia Criminal Sentencing
Commission to develop the guidelines for probation and post-release
supervision violators who committed crimes on or after Jan. 1, 1995.

Virginia ended parole for all crimes committed on or after Jan. 1,
1995.

Most prison inmates released with convictions for crimes that occurred
after Jan. 1, 1995, are on probation. A small number are on
post-release supervision, which also has rules that can be violated.

Under the guidelines, a judge will use a point system to determine
whether an offender requires a jail or prison sentence, and then how
much of a sentence.

In developing the guidelines, the sentencing commission looked at
hundreds of past cases to see what most often has happened to
offenders who commit certain types of violations.

For example, Kern said, marijuana use has not been a significant
factor when judges determine sentence length.

The next phase, which may take effect next year, will involve
developing a way to determine the likelihood an offender will break
the law again or be a risk to public safety requiring prison.

This "risk assessment" scheme also would predict which offenders do
not require imprisonment.

If the scheme goes into effect, it probably will divert "a fair number
of these people" into an alternative program such as inpatient drug
treatment or closer supervision, Kern said.

Other states also are looking at the problem and largely doing so
quietly, so as not to appear being soft on criminals.

According to some Virginia officials, the stakes are
high.

In 2002, the most recent complete year for which figures are
available, 1,551 technical probation and post-release violators were
sent or returned to prison in Virginia. An additional 207 parole
violators were incarcerated.

That's roughly one in six prison admissions for that
year.

An estimated 3,000 technical probation violators are now in state
prisons - about 10 percent of the prison population.

Technical violators stay an average of nearly two years. "With an
average per capita cost of nearly $23,000, you're talking some real
money," Kern said.

There are enough to fill several prisons. Just this year, the General
Assembly approved more than $120 million in new prison construction to
add about 1,400 beds. And more prison construction is needed.

"This is a population that has slipped under the radar screen and now
we're going to have to deal with it," said Kern.

Barry Green, deputy secretary of public safety for Virginia, said,
"We've got to find a way to deal with this better without any
additional threat to the public or we're going to bankrupt ourselves."

"This is not in any way being soft on crime," he quickly added. "This
is looking at being smarter . . . A lot of these folks are just screw-ups."

Michael A. Wright, chief probation and parole officer for the Richmond
district - the busiest in the state with 3,000 offenders -
acknowledged that many who have their parole or probation revoked in
his district return to jail or prison.

He said that some are revoked because they are abusing drugs and there
is no money for residential substance-abuse treatment.

Because of budget cuts, money that was supposed to last a year for the
inpatient program was used up in two months, Wright said. "We have a
lot of funding for out-patient treatment and we're trying to use it as
productively as we can," he said.

"We can probably come up with a thousand people who are using drugs
right now. But what are we going to do with them?" he asked.

"The bottom line is, folks who are going to use are going to use. . .
. The judges are frustrated . . . they see the same people day in and
day out come back to them because of continued drug use," he said.

"There's a certain reality in Richmond," he said. Unlike some other
localities, "we have so many offenders who . . . don't seem to be
threatened or concerned about incarceration. It doesn't seem to deter
them whatsoever," he said.