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With those goals in mind, the council developed a menu of policies that state decision-makers and supervision administrators can use to reshape community supervision. Arnold Ventures supported the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota to examine the research underlying the policies and practices identified by the council, and where such an evidence base exists, it is summarized and cited in this framework. The recommendations are arranged according to seven broad objectives:
This report details the challenges facing community supervision systems around the country and outlines specific policy changes that states can make to achieve improved outcomes. Although legislative action represents the best vehicle for adopting sustainable reforms, this document also includes a range of administrative changes that officials can make to improve policy and practice at the agency level. These recommendations are supported with examples of policy changes already adopted in jurisdictions across the U.S. and summaries of the research on their impact. The council encourages policymakers to view its recommendations and the accompanying state examples as a starting point for discussion rather than the bounds of what is possible.
For these reasons, this policy framework recommends increasing diversion at the front end of the criminal justice system, reclassifying certain offenses, and ensuring that specialty courts adhere to evidence-based practices.
Diversion policies, such as those that require individuals to attend substance treatment in lieu of prosecution for low-level drug offenses, limit the number of people entering the courts and, in turn, reduce admissions to jails, prisons, and community supervision, especially probation, decreasing the size of the supervised population and the overall correctional footprint.
To increase the use of diversion, policymakers should establish intervention strategies for people with a variety of criminal histories, provide sufficient programming and treatment alternatives, and ensure that people are not required to pay for such programs, which could create financial obligations that place them at risk of incurring penalties for nonpayment. Diversion policies are discussed in detail below.
The use of cite and release as an alternative to arrest and jail admission reduces the consumption of justice system resources and cuts the number of people entering the criminal justice system, including community supervision. In addition, the policy allows people who do not pose a flight or public safety risk to continue working, attending school, and taking care of their families and other obligations. This approach is an example of a proportional response that promotes harm reduction while still ensuring accountability.
Community service represents a promising alternative to incarceration and supervision but can also replicate or even exacerbate the disparate harms associated with legal financial obligations. Jurisdictions should ensure that the number of hours imposed is proportionate to the offense and offer nonmanual work options to ensure accessibility. Further, community service imposed in lieu of supervision should be administered by an agency other than a probation department, potentially a community court or restorative justice program. And individuals carrying out mandated community service should not be charged fees to participate.
Community service is already a feature of sentencing in many jurisdictions; estimates suggest that more than 60 percent of lower courts in the U.S. use community service as a sentencing option, though it is most often imposed alongside fines and fees, probation, and even incarceration.17 Although the use of community service as an alternative to supervision and incarceration has not been widely embraced in the U.S., it has long been common practice in many European countries, where it often serves a restorative justice purpose.18
Reclassifying minor moving vehicle offenses, such as traffic violations that do not involve injury, from felonies or misdemeanors to citations (i.e., infractions that do not include the potential for incarceration) can reduce the number of people exposed to the harmful effects of detention and lower costs associated with processing cases and incarcerating people, which place heavy burdens on local resources. Individuals convicted of such reclassified offenses would face shorter supervision terms and would not be subject to incarceration. Removing jail or prison time as a penalty for moving vehicle offenses could also eliminate the use of supervision for these crimes, lowering the overall number of people placed on probation and allowing resources to be prioritized for individuals who can most benefit from them.
Many jurisdictions treat drug possession as a felony. In some cases, even trace amounts of a substance can result in a felony conviction, supervision, and even a prison sentence. In recent years, however, an increasing number of states have adopted reforms that reclassify and redefine certain drug crimes. Between 2009 and 2013, more than 30 states reformed their drug laws, often focusing on reducing the maximum allowable prison terms for certain felony drug offenses, downgrading felonies to misdemeanors, and sometimes eliminating a supervision term in its entirety.21
The changes reflect research showing that supervision and incarceration are less effective than communitybased treatment in reducing substance misuse.22 A 2018 Pew analysis compared publicly available data from law enforcement, corrections, and health agencies and found no relationship between drug imprisonment rates and rates of drug use, overdose deaths, or arrests for drug law violations, indicating that incarceration does not discourage drug use.23 (See Figure 2.) Rather, research has consistently shown that more severe criminal justice responses are ineffective at deterring drug use or mitigating the harm it can cause.24
In recent years, a handful of states have reclassified drug possession offenses from felonies to misdemeanors to reduce the possible penalties for drug possession and relieve pressure on state prisons.
For example:
These reforms passed with overwhelming bipartisan support and share three critical details with each other and with similar policies in other states.31 They classified convictions for simple drug possession up to at least the third offense as misdemeanors, removed state prison as a possible penalty for drug possession, and applied to virtually all controlled substances. The states experienced considerable benefits from these reforms, including reduced state prison and jail populations and greater investment in substance use and mental health treatment through averted costs of imprisonment.32
Property offenses are typically categorized according to the monetary value of the item stolen or destroyed, but many of these thresholds have not kept pace with inflation. As a result, property crime penalties are often out of proportion to the specific offense committed. Based on these out-of-date thresholds, theft of even a small-value item can be a felony and can result in at least a year in state prison. Raising or reclassifying property offense thresholds can prevent the inadvertent escalation of penalties for the lowest-level crimes, ensure proportionality, and divert people from the criminal justice system when appropriate.
Felony theft thresholds vary widely across states. Stolen property valued at $200 is classified as a felony in New Jersey, while in Wisconsin or Texas, losses must be at least $2,500 for a crime to merit a felony charge.33
Similarly, an analysis of 28 states that raised their felony thresholds between 2001 and 2011 found that those changes did not affect overall property crime or larceny rates and that the studied states reported about the same average decrease in crime as states that did not change their laws.36
Problem-solving courts provide an alternative to standard case processing and can reduce criminal justice system involvement. Problem-solving courts often target the underlying cause of certain offenses, using a combination of coordinated treatment, case management, and supervision in the community. Drug courts are the most widely adopted problem-solving model in the U.S., but jurisdictions now operate a variety of courts to address different populations and treatment needs.37 Some courts address particular offenses, such as domestic violence or driving under the influence, while others focus on specific populations, such as veterans or people with mental illness, or target a particular stage in the criminal justice system, like re-entry.38 Because of their prevalence, drug courts have the largest evidence base to support their effectiveness at reducing recidivism; more research is needed for other models.
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