Probation practice swamps justice system, leads to higher risk offenders

Number of adults on probation has increased about 6 percent each year

By Katie Campbell
BridgeTower Media Newswires
PHOENIX — Arizona’s Adult Probation Services Division is increasingly responsible for more high-risk offenders under a sentencing practice called “probation tails.”

Typically, offenders who receive a prison sentence are eligible to serve 85 percent in the custody of the Department of Corrections and the remaining term under community supervision, which is also under DOC.

A probation tail means an offender receives a prison term on one charge and a probation term to be served immediately after on a second charge. Under that model, probation essentially takes the place of community supervision.

People in the criminal justice system say the practice of using probation tails in sentencing makes for harder core offenders and works as an additional, unnecessary form of punishment.

Director Kathy Waters, director of the Adult Probation Services Division, said probation in its purest form is an alternative to prison, allowing her officers to make contact at the front end with lower risk probationers. But once those offenders go to prison, they come to probation with greater needs and at higher risk of reoffending.

“It really changes who we’re dealing with,” Waters said. “If they had anything positive going on in their lives, chances are that’s now been delayed or disrupted.”

Offenders who had steady employment, homes, vehicles, support systems could easily lose all of that when they go to DOC. Waters called the challenges that follow “collateral consequences” that could lead probationers to reoffend if they do not receive effective guidance.

The number of people on adult probation has steadily increased by about 6 percent each year in the past two fiscal years with similar results anticipated in 2017 and 2018. That growth is due in part to traditional probation sentences, but the growing popularity of the probation tail has significantly contributed to the trend and forced APSD to adjust.

Waters said increased probation tails translates to more training needed for her officers to drill down on the needs and safety concerns that come with more high-risk probationers. That includes training to guide offenders through replacing Social Security cards, navigating job applications to account for work experience while in custody and mirroring effective treatment plans, like education programs or addiction therapy.

The state Auditor General’s Office is also expected to release a report with recommendations for the program in the coming months.

That may more extensively discuss needs that are currently addressed year to year.

Last year, APSD received state funding for 15 additional probation officers, excluding those needed in Maricopa County. Funding for Maricopa County’s officers is left to the county coffers.

This year, Gov. Doug Ducey’s executive budget proposed more than $750,000 to fund 19 additional adult probation officers. The additional officers will allow Waters to determine how best to distribute ASPD’s available probation force. It’s a sort of “shell game,” she said, because the numbers never stay still for long.

According to ASPD’s most recent data, there are nearly 16,000 open adult standard probation cases across Arizona. State statute stipulates an average ratio of 65 probationers to each officer, but eight counties are operating at or above capacity as of February. Statewide, excluding Maricopa County, APSD is at 98 percent of caseload capacity.

By continuing to give Waters the additional bodies she needs, according to the budget, the governor’s goal is “to identify and address individual offender needs and work toward correcting criminal behavior, ultimately lowering recidivism rates.”
The number of probation tails is expected to grow, but Waters said there is currently no evidence that clearly shows they have any impact on recidivism.

“I don’t have any reports that say the tails recidivate any higher or lower,” she said. “All I can say is they’re higher risk (offenders), and we do know that higher risk fail at a greater rate than lower risk.”

That’s a generality right now. Until Waters’ division can analyze a significant amount of data, she cannot know whether tails are proving to be an effective deterrent to reoffending.

Waters said there will always be those who say probation is better than community supervision because her officers get more time to meet the needs of those reentering society. An offender may spend between six and nine months under community supervision but an average of three to five years on probation.

Still, she sees recidivism as less about time and more about a systemic problem.

Prosecutors offer plea agreements that include probation tails in lieu of additional prison time as an incentive to take the deal. But if DOC cannot provide the services an offender needs to successfully rejoin society, those deals ignore the root problem and may set offenders up for failure once they are released.

In the case of an offender with a drug addiction, accepting a deal with a probation tail attached might just be a sucker bet.

With experience as both a defense attorney and prosecutor, attorney Kurt Altman can see both sides. Altman, the state director of conservative criminal justice reform group Right on Crime, said when used to the client’s benefit, a tail provides access to far more services through probation than through DOC.

Unfortunately, he said, he does not often see prosecutors use them in a way that serves justice for the individual or society at large.

“If you look at it from a cynical view, it’s a way to almost double somebody’s sentence when they are unlikely to be successful on probation,” he said. “Ultimately, our system of justice should punish if that’s what’s needed, rehabilitate to the extent it can, but create a situation where this person can be reintegrated somehow. And these probation tails don’t seem to be utilized in that manner for the most part.”

If an offender violates community supervision, Altman explained, he or she can only be returned to DOC for a period that amounts to the original prison sentence. For example, the offender may only return to prison for one year on a two-and-a-half-year term after serving the first year and a half in custody. But a probation tail is tacked onto an additional felony charge that often carries a longer prison range if probation is violated.

And Altman said agreements including probation tails often seem to be offered to clients who have no choice but to accept.

After 30 years in corrections, Waters does not see the merits of that thinking.

“Prison should be for those people we’re afraid of, violent offenders,” Waters said. “But we’re putting people in prison because they have substance abuse problems, and then they go to DOC, and they only have so much treatment they can offer.
“If there’s an alternative to incarceration, that’s what you should do… If we’re going to send them to DOC, then something positive should happen in DOC. You can’t just incapacitate them, and then we’re left to deal with the real problem when they come out.”