GETTING A HANDLE ON PROBATION

So-Called 'Technical Violations' Result In A Recycling Of Prison Inmates

Crime is down, convictions are down, but the number of prison inmates is up.

A big part of the increase in Virginia's prison population can be traced to
the recycling of inmates, said Rick Kern, director of the Virginia Criminal
Sentencing Commission.

This week, the commission took steps to make the recycling more predictable
and equitable.

Inmates typically are released with "time over their heads," as judges and
prosecutors often say. But the possibility of being ordered to serve
suspended prison sentences isn't enough incentive for many of those set
free to abide by the terms of their probation.

Much of that trouble involves "technical violations" of probation, the term
used in the criminal-justice system to describe anything other than a new
criminal offense.

Some probationers use drugs, don't report to their probation officers or
have trouble finding work and making restitution to victims.

Before the state abolished parole in 1995, the Virginia Parole Board
usually was the agency that ordered the technical violators back behind bars.

That amount of time was controlled largely by state law and averaged about
11 months, Kern said.

With the abolition of parole, the judge who sentenced the defendant in the
first place decides whether to send him back to prison and, if so, for how
long.

The judge typically has a much wider range than the parole board. As an
example, a first-time drug dealer might be sentenced to 10 years in prison,
with nine years suspended.

The judge might think that sentencing him to two years is reasonable
because it would be less than a quarter of the suspended time.

But that two years would still be twice the time the parole board imposed
on average, and, in fact, the average sentence a judge imposes for a
technical violation is 22 months, Kern said.

With a one-third increase in the number of technical violators returned to
prison between 2000 and 2002, that extra time makes a big difference in the
prison population, Kern said.

And that time behind bars may do little to enhance public safety, he said.

"This is one population we can get our arms around and figure out a more
cost-effective way to punish them. Most of them have substance-abuse problems.

"The Catch-22 of all this is that the more you supervise people in the
community, the more revocations you're going to have. There's a big need
for substance-abuse treatment of some sort to address some of these
issues," Kern added.

Another problem with the way technical violators are ordered back to prison
is the difference in the way judges handle them.

One judge might impose all the suspended time hanging over a defendant for
a violation that another judge might think didn't deserve incarceration.

The sentencing commission decided to develop guidelines that would apply,
"regardless of the personalities involved and the region and the circuit,"
much as it has done with similar guidelines when a defendant is first
sentenced, Kern said.

Kern's staff generated a form that produces a score for technical violators
based on the original offense, the length of time the defendant has been
released before committing the violation, whether he has been charged with
violating probation before and whether he has failed at earlier programs
that did not involve incarceration.

If the score exceeds a threshold, another form is used to decide how much
time the defendant should serve.

The commission will ask the General Assembly to approve the concept during
its next session. It has also asked Kern to come up with a form that would
quantify the risk if a defendant is not incarcerated.

How to handle technical violators "is a growing concern nationwide, but
we're the first state in the country to do something like this," Kern said.
"No other state, even those with sentencing guidelines, has anything like this."