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Probation innovation stymied by lack of data
In 2013 the Oregon legislature was about to pass a bill to fund what was believed to be a badly needed new prison in Junction City. The new prison would serve a projected rising population of felons. The state's incarceration rate had increased by nearly 50 percent in a previous ten-year period.
The Junction City prison was never built. Instead, guided by national nonprofits who made a strong case for keeping more offenders out of prison, legislators passed HB3194, which created the Justice Reinvestment Act. The money that would have gone to the new prison would instead fund county corrections departments around the state, which would come up with creative ways to deal with offenders on probation and parole. Probation, in essence, would increasingly become the alternative to incarceration.
The Oregon Criminal Justice Commission was formed to allocate the money to counties and measure how the expected new programs were faring. That was the whole idea, says Mike Schmidt, executive director of the commission. In the 2013-2015 biennium the commission sent $15 million in Justice Reinvestment funds to Oregon counties. In the current biennium, $39 million has been allocated.
The grants are not given for programs with a wealth of evidence showing they will succeed in lowering recidivism rates. County probation departments get the money, Schmidt says, and can figure out how they want to spend it. The hope, Schmidt says, is that data will show which programs in which counties are succeeding at keeping offenders from committing new crimes, and other counties can institute those programs.
"In a lot of ways it's kind of like they're our laboratory," Schmidt says.
In fact, HB3194 required a cost-benefit analysis of the ways counties were spending the money to ensure that public dollars were spent on programs that reduce recidivism.
So how's the experiment going?
"The accountability data of restitution and community service and completing (addiction) treatment at a statewide level is incomplete and not reliable," Schmidt says.
The state has been able to collect data on which probationers are being sent to prison and for how long, Schmidt says. But there's little data coming from county corrections departments that will reveal which programs in which counties are making a difference.
There are studies showing that if probationers complete community service and pay their restitution they are less likely to commit new crimes, Schmidt says. So imagine his frustration in knowing that county probation departments are telling the Tribune that the community service and restitution numbers they sent into the state—published in Tuesday's Tribune—aren't accurate. Probation officers saddled with outdated software, county officials told the Tribune, often aren't bothering to record what their probationers are doing.
The idea behind diverting money to the Justice Reinvestment program, according to Schmidt, was that counties could compare their numbers to other counties, see where they were doing poorly, and adopt better policies. That's not likely to happen if all the counties dismiss the state data.
"If you're not measuring it people aren't going to make it a point of emphasis," Schmidt says.
According to Schmidt, Multnomah, Washington and Clackamas counties haven't even sent the state 2015 data on reported crimes, the truest reflection of how much crime is occurring.
"That's a hole in our evidence," Schmidt says.
Oregon counties have received "buckets of money" to increase alcohol and drug treatment options for probationers, according to Schmidt. Metro-area counties now have dozens of treatment programs to which they can refer probationers. But they don't keep data on which programs are helping reduce recidivism. They don't even keep data on how long probationers spend in each program, or the percentage of probationers who graduate from each.
So nobody knows if the money spent on rehab for probationers or parolees is helping?
"I absolutely know how crazy this sounds. It's frustrating for us," Schmidt says.
Crazy sounds like wasteful to Clackamas County District Attorney John Foote. In 2003 the Oregon legislature passed a bill that requires county community justice officials to exclusively use "evidence-based programs" in dealing with probationers and parolees. Foote questions how anybody's community justice programs can be evidence based if everybody agrees the data being kept is unreliable.
Trusted data might help, Foote says, and it might also reveal how little impact some expensive probation department programs are having. And that might upset a number of criminal justice officials, academic criminologists and nonprofit experts around the country who, in his view, are invested in new alternative sentencing.
"There is an industry around the country of people who are selling ideas for offenders. They're everywhere," Foote says. "And there's also an industry of people who evaluate programs for a living. And they are aligned with each other.
"In essence this concept that they know 'what works' to reduce recidivism is a lie," Foote says. "It is really hard to change human behavior, particularly ingrained criminal conduct. They should stop telling us they know all the answers."
One piece of evidence that isn't widely disputed, Foote says, is that since 2003 Oregon recidivism rates have steadily climbed.
"That is the story that is not being told," Foote says.
There's a reason, Foote says. More like a motivation. Money.
"Saving state government money, that's what this whole thing is about," Foote says of decreased incarceration rates and increased spending on probation and parole. "Everybody wants the money. Everybody wants control."
The conditions supposedly attached to the increased state funding for probation and parole are meaningless, according to Foote. "Everybody announces their program is evidence-based," he says.
There are evidence-based programs, says Adam Gelb, who directs the Pew Charitable Trusts Public Safety Performance Project. Gelb claims that probation departments can cut recidivism by 30 percent if they use the latest tools, which include sophisticated risk assessment of probationers, cognitive behavioral therapies, swift and certain sanctions, and rewards to probationers who comply with their conditions. But Gelb says those tools are interpreted differently in each jurisdiction.
Gelb also says that not all criminologists agree on the tools. Some say the emphasis should be on providing offenders decent jobs and homes. Others say addressing impulse control and anti-social attitudes will do more to keep offenders from committing new crimes.
"There is no uniformity of opinion on some of the major issues here," Gelb says.
Tracking data to provide answers to these questions is a relatively new concept, according to Gelb.
"All of us who work in this field feel the frustration on a day to day basis," Gelb says."The criminal justice system has to do a much better job collecting data, tracking performance and making adjustments. But you have to realize that it's only been in the last 15 or 20 years that these discussions have even happened."
Still, lack of reliable data from probation departments isn't reason enough to continue the status quo, in Gelb's view.
"Simply locking up more people for longer prison terms produces little to no public safety benefit at a huge cost to taxpayers," Gelb says.
"Probation is an incredibly understudied part of our criminal justice system," says Insha Rahman, senior planner at the Vera Institute of Justice, a New York city-based nonprofit "committed to ending mass incarceration," according to its website.
In 2008 the Vera Institute consulted with Multnomah County on probation practices. The Institute' s 2008 report said probation officials here should consider a spectrum of swift and certain sanctions for probationers who don't comply with their conditions, including more community service. Pew has also consulted locally on ways to reduce incarceration, as has the John D. and Catherine T. MacArthur Foundation, which currently is funding a county effort aimed at reducing the local jail population.
Oregon's probation data may be flawed, but other states aren't even collecting the data, say experts at the University of Minnesota Law School's Robina Institute of Criminal Law and Criminal Justice. That means it's impossible to try and compare Oregon's rates of restitution payment and community service worked.
Focusing on un-served community service time and unpaid victim restitution can be a mistake, says Ebony Ruhland, who studies probation and parole for the Robina Institute. In her view, offenders are already burdened by too many conditions which make it hard for them to get on with their lives, and which make them feel they criminal justice system is biased against them.
"If we end these community service requirements, that will make people under supervision feel like the system has more legitimacy," Ruhland says.
If offenders are being allowed to finish probation without completing community service, that's a positive sign, says Robina Institute sociologist Michelle Phelps. Shed rather probation be limited to bigger issues.
"It (community service) is not helping them find work or deal with substance abuse or family problems," Phelps says. "It's really just a way to make work for people so folks in charge feel like they're doing something and punishing people adequately."
That's not how Portland attorney Meg Garvin sees it. Garvin, executive director of the National Crime Victim Law Institute, says victims want to believe that the conditions offenders were given at sentencing were real and will be enforced. Many victims will understand if down the line their offenders are unable to pay restitution, Garvin says, but they should be included in a discussion with probation officers and offenders before probation is dismissed.
"It all comes down to, at the time of sentencing we told the community and the victim and the (offender), 'Here are the things you need to do to redress the harm you caused to individuals and this community. And downstream we're saying, 'We didn't mean that,' " Garvin says.
Unreliable probation data undermines the idea of restorative justice, which says victims have a voice in probation decisions, according to Garvin.
"We have to have data that's accurate so we can make reasonable public policy choices," Garvin says. "If the data is not complete then all our public policy choices have the risk of being flawed."