RD332 - Virginia’s Immediate Sanction Probation Pilot Program Implementation Report - October 1, 2013

Executive Summary:
In 2012, the Virginia General Assembly adopted budget language extending the provisions of § 19.2-303.5 of the Code of Virginia and authorizing the creation of an Immediate Sanction Probation program in up to four sites (Item 50 of Chapter 3 of the 2012 Acts of Assembly, Special Session I). Per § 19.2-303.5, the Immediate Sanction Probation program targets nonviolent offenders who violate the conditions of probation while under supervision in the community but are not charged with a new crime. These violations are often referred to as “technical probation violations.” The goal is to improve compliance with the conditions of probation and reduce recidivism by applying swift and certain, but mild, sanctions for each violation. Improving compliance with probation rules and lowering recidivism rates reduces the likelihood that offenders ultimately will be sanctioned with prison or lengthy jail terms. Implementing a swift-and-certain sanctions program is resource-intensive at the front end, with potential cost savings occurring later through fewer revocations, lower recidivism rates, and reduced use of jail and prison.

Per the General Assembly’s directive, the Virginia Criminal Sentencing Commission is assigned the responsibility for selecting up to four jurisdictions to serve as pilot sites, with the concurrence of the Chief Judge and the Commonwealth’s Attorney in each locality. The Sentencing Commission is also charged with developing guidelines and procedures for implementing the program, administering the program, and evaluating the results. Because supplemental funding was not included in the 2012-2014 budget, Virginia’s pilot project is being implemented within existing agency budgets and local resources. To support the pilot project, the Department of Corrections (DOC) is providing one new probation officer position for each pilot site. In addition, DOC has purchased handheld drug testing kits (“cup” tests), which provide the immediate test results necessary for the program.

Key elements of Virginia’s pilot program are based on Hawaii’s Opportunity Probation with Enforcement (HOPE) program. A 2009 evaluation of HOPE found a significant reduction in technical violations and drug use among participants, as well as lower recidivism rates, compared to similar offenders supervised on regular probation. HOPE has become known as the swift-and-certain sanctions model. While the operational details may vary from program to program, certain features are central to the swift-and-certain sanctions formula. These are:

• Higher risk offenders are identified for participation in the program.

• The judge gives an official warning that probation terms will be strictly enforced and that each violation will result in jail time.

• Program participants are closely monitored to ensure that there are no violations.

• New participants undergo frequent, unannounced drug testing.

• Participants who violate the rules or conditions of probation are immediately arrested and brought to jail.

• The court establishes an expedited process for dealing with violations (usually within three business days).

• For each violation, the judge orders a short jail term. The sentence for a violation is modest (usually only a few days in jail) but virtually certain and served immediately.

The focus on higher risk probationers is an important aspect of the swift-and-certain sanctions model. These are offenders who are at-risk for committing a new offense and/or who are not performing well on regular probation. Since swift-and-certain sanctions programs involve intense monitoring and are more time and resource-intensive than probation as usual, targeting higher risk offenders allows for the most efficient use of resources.

To be a candidate for Virginia’s Immediate Sanction Probation program, an offender must be identified as being at-risk for recidivating or failing probation. To measure recidivism risk, DOC probation officers administer the COMPAS risk/needs assessment instrument. This instrument is already being used by DOC to determine supervision levels for offenders entering probation. Recidivism risk is then used in conjunction with the number of technical violations the offender has committed to identify candidates for the program.

The Sentencing Commission worked closely with the Secretary of Public Safety’s Office and the Department of Corrections to identify potential pilot sites for the Immediate Sanction Probation program. The Sentencing Commission considered several factors, including regional and urban/suburban/rural representation, the size of the probation population in each jurisdiction, and expressed interest from one or more local officials. Over the course of 12 months, seven localities were invited to participate in the pilot project. Four localities have agreed to partner with the Sentencing Commission to implement the pilot program: Henrico (start date of November 1, 2012), Lynchburg (start date of January 1, 2013), Arlington (projected start date of October 1, 2013), and Harrisonburg/Rockingham County (projected start date of January 1, 2014). Program start dates were set by the local stakeholders.

While describing the basic components of a swift-and-certain sanctions program is relatively simple, implementing such a program is challenging. Ensuring that violations are addressed immediately and cases are handled swiftly requires extensive collaboration and coordination among numerous stakeholder groups representing multiple agencies and offices, including Circuit Court judges, Court clerks, the Commonwealth’s Attorney and his or her staff, defense attorneys, law enforcement, jailers, probation officers, and the Department of Corrections. The stakeholders in the selected pilot sites have excellent working relationships, which is essential to successfully implementing the program.

The Sentencing Commission has completed a number of tasks to support and facilitate the implementation of the program in each pilot site. The Sentencing Commission has developed guidelines and procedures, produced an Implementation Manual, written a warning script for judges to use when placing offenders in the program, created forms to help with administrative processes, assisted with the development of template court orders, ensured a point-of-contact was identified for each office/agency involved in the pilot program, identified a payment process for court-appointed attorneys working with the program, and worked with other agencies to develop new codes for automated systems so that program participants can be tracked. The Commission has met with all probation officers in Lynchburg, Henrico, and Arlington to explain the program and encourage the identification and referral of candidates. In addition, Commission staff organizes and participates in ongoing meetings and conference calls with local stakeholders to discuss potential solutions to challenges they face and to share updates on participant progress.

As with most pilot programs, some challenges have been encountered in the implementation of Virginia’s Immediate Sanction Probation program. For instance, while there is considerable interest in the swift-and-certain sanctions model, finding localities willing to participate as pilot sites has taken some time. The pilot project is being implemented within existing budgets and resources and three jurisdictions approached by the Sentencing Commission declined to participate, citing resource constraints as one of the reasons. Additionally, in the two pilot sites operational at the time of this report (Henrico and Lynchburg), the number of program candidates identified by probation staff has been lower than initially expected. Stakeholders in one of the pilot sites have indicated that the eligibility criteria excluding offenders who have obligations to courts outside of the pilot jurisdiction significantly reduces the pool of eligible candidates. Subsequent analysis provided by DOC quantified the impact of this eligibility criteria for each Probation District. This criteria was established for the pilot program to ensure that judges in the pilot sites have jurisdiction over the cases and can swiftly impose sanctions. Should the program expand to additional localities in the future, options will be explored that may render this eligibility criteria unnecessary. Stakeholders have also indicated that other eligibility criteria reduce the pool of eligible offenders, most notably the restriction relating to violent offenders. Per § 19.2-303.5, offenders on probation for a violent crime as specified in § 17.1-805 are not eligible for the program. As initially designed, the Sentencing Commission also excluded offenders with a prior violent offense. Based on feedback from stakeholders in the pilot sites participating at that time (Henrico and Lynchburg), the Sentencing Commission initiated discussions with the Secretary of Public Safety’s Office, Commonwealth’s attorneys, and others. Additionally, a comprehensive review of eligibility criteria and evaluation findings for similar swift-and-certain sanctions programs was conducted. After careful consideration, the Commission expanded the criteria to allow offenders with a prior conviction for an offense listed in § 17.1-805 to be considered for the program. While these offenders can be considered, the judges determine if an offender is placed into the program.

Piloting a swift-and-certain sanctions program also presents specific challenges for Probation & Parole Districts. The intensive nature of this program, coupled with the need for an immediate response to every violation, can pose several administrative challenges for a participating District. For instance, establishing and executing a procedure for the frequent random drug testing of program participants that yields immediate results can be difficult. According to DOC personnel, drug testing of Immediate Sanction Probation participants cannot be incorporated into the Districts’ existing drug testing protocol set up for testing a large number of probationers in a single day (known as “color code”). As a result, the Immediate Sanction Probation officers must select drug testing dates and times, notify offenders when they need to report, collect the sample, and enter the drug screen results into a centralized tracking system. As the project continues to grow, the Sentencing Commission will continue to work with DOC and participating Probation & Parole Districts to develop efficiencies wherever possible.

Limited resources for substance abuse services may pose an additional challenge. The swift-and-certain sanctions model has been shown to be extremely useful for distinguishing between offenders who are able to cease drug use through the imposition of brief, but certain, jail stays and those who are unable to do so due to addiction issues. An offender who continues to use drugs in spite of regular drug testing, and who has been jailed multiple times for continued use while in the program, would be a likely candidate for additional interventions, such as substance abuse treatment. The court may refer a participant to substance abuse services or a drug court program, depending on the offender’s suitability and the availability of treatment resources. While offenders with a diagnosis involving a severe mental illness are not eligible to participate in the program during the pilot phase, offenders with less serious mental health issues who are stable in regards to their medications may participate if they are otherwise eligible. Resources are limited, however, and substance abuse and mental health treatment options are not uniformly and consistently available across the pilot sites.

Despite the challenges, stakeholders in the participating pilot sites have demonstrated a strong competency and willingness to collaborate and to develop innovative solutions to overcome many of the challenges as they have arisen.

As of September 30, 2013, a total of 48 offenders had been placed into the Immediate Sanction Probation pilot program (25 in Henrico and 23 in Lynchburg; Arlington and Harrisonburg/Rockingham were not yet operational at the time of this report). More than half of the participants (27 of 48, or 56%) have not committed a violation since being placed in the program. This is significant given that all of the offenders had a record of technical violations (on average, participants had four technical violations prior to entering the program). Two participants have been removed from the program; one of these offenders was terminated due to noncompliance and given a prison sentence, while the other was allowed to move out of the pilot jurisdiction and could no longer participate in the program.

In addition to administering the program, the Sentencing Commission has been charged with completing an evaluation of the pilot project. Outcome measures will include recidivism rates and the use of jail and prison resources. It is also important for the evaluation process to determine if the pilot programs were able to achieve both swiftness and certainty in sanctioning program violators. For Henrico and Lynchburg combined, 54% of the program violations have been handled by the court within three days of the commission of the violation, with an average of 3.6 days between the violation and hearing. Once a participant is arrested for a violation, courts are conducting hearings within an average of 1.2 business days. All of the violations in the pilot programs have been met with jail sanctions, per the program’s design, and the sanction days are consistently within the ranges recommended by the Sentencing Commission.

In the coming months, Sentencing Commission staff will assist the stakeholders in Arlington and Harrisonburg/Rockingham with the implementation of the Immediate Sanction Probation program in those sites. Staff will also continue to work closely with the existing programs in Henrico and Lynchburg. The evaluation phase of the Immediate Sanction Probation pilot project is expected to begin in July 2014.