February 29, Prison Population Control Task Force Members,

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1 February 29, 2016 Prison Population Control Task Force Members, I appreciate the opportunity to have participated in this task force. A great deal of information has been brought forth, and there have been excellent discussions about the drivers of Minnesota s prison population. But one thing we have learned is that there are no easy answers, and that no single solution is likely to stop the growth of our prison population. Our prison growth is the result of many individual policy decisions that each made sense at the time but that cumulatively led to this result. In order to reverse the flow, we will have to similarly look at multiple aspects of our criminal justice system and make adjustments. Senator Latz has proposed a full menu of policy options. I agree with the majority of them, and hope they will be pursued in this and the coming legislative sessions. Below are three additional options that I offer for consideration. 1. Institute an earned time program for prison sentences. Shortly after Minnesota enacted the sentencing guidelines, the state also enacted a truth in sentencing provision, which eliminated good time, and required that all offenders serve a standard two-thirds of the pronounced sentence in prison and one-third on supervised release. This provision brought certainty to sentencing. It gave victims assurance that offenders would serve a specified period in prison, and it allowed Minnesota to predict prison capacity with a high degree of accuracy. However, it also eliminated a means of providing an incentive for offenders to participate in programming and to refrain from behavior that could result in disciplinary sanctions while in prison. An earned time program would restore that incentive model by allowing offenders to earn a reduction in their prison sentences by engaging in their case plan and maintaining good behavior in prison. It would also serve public safety because any reductions in the prison term would be based on a demonstrated record of program participation and good behavior. Because this approach is more formulaic, it would also be less costly to implement than a parole-type second look provision such as the one recently presented to the task force. The major components of an earned-time program might be as follows. Earned time should be based on both program compliance and good behavior (half for each) while in prison. The amount of time that could be earned would be capped. For example, if an offender were permitted to earn 3 days of earned time per month, this would result in a maximum 10% reduction in the offender s sentence. The Minnesota

2 Sentencing Guidelines Commission reports that the average prison sentence is just over 45 months, so a 10% reduction would only reduce the average prison sentence by 4-1/2 months. This earned time program could be designed to fit within the current twothirds/one-third split. Offenders who participate could earn a reduction in their prison sentence, but offenders who do not participate would still serve a minimum of two-thirds of the pronounced sentence in prison. The most serious crimes, such as murder and certain sex offenses, could be excluded from the earned time program. Earned time would be forfeited if the offender escapes from prison or supervised release, commits a new crime, or commits a serious disciplinary infraction. Earned time would not be permitted for time spent in prison on a supervised release return. 2. Establish a new cap on the length of felony probation. Minn. Stat currently provides that probation for most felony offenses must be not more than four years or the maximum period for which the sentence of imprisonment might have been imposed. Data produced by the Sentencing Guidelines Commission indicate that the average terms actually imposed range from 4 to 13 years depending on the offense type (see attached report on probation lengths). The Robina Institute is currently engaged in a project to measure whether probationers are serving out the full length of their terms or if they are being discharged early. We are also attempting to measure when within that term recidivism occurs. Preliminary results from a small sample of counties show that revocations tend to occur within the first 3 years of probation, and that individuals who are not revoked are serving between 80 and 100% of their pronounced probation terms before discharge. The revocation data is consistent with annual reporting done by the Minnesota Sentencing Guidelines Commission. It demonstrates that lengthy probation terms are not necessary from a public safety standpoint because behavior that tends to result in failure on probation occurs within the first few years of probation. Instead, lengthy probation terms may actually harm public safety because it may act as a disincentive for probationers to engage in rehabilitative programming, and because it may prolong the period of difficulty for individuals attempting to obtain housing or employment, which are both critical factors to offender success. Attached is a document detailing statutory probation terms in 21 other states. Of the states reviewed, 12 states cap felony probation at 5 years or less. Based on the above information, I would propose a cap of 5 years for felony probation. As an alternative, some offenses, such as certain sex offenses, could be carved out for lengthier probation terms, but this carve out should be utilized sparingly. 3. Mandate regular reporting on probation revocations and supervised release returns. Testimony at the earliest meetings of the Prison Population Control Task Force indicated that probation revocations and supervised release returns make up a large proportion of annual prison admissions (though these two groups may have shorter prison stays than 2 P a g e

3 those admitted for new convictions). Because Minnesota has a strong commitment to community supervision, a large proportion of the felony population is initially sentenced to probation rather than prison. But we do not have a clear picture as to how many probationers are being revoked to prison or why (e.g., treatment failure, failing to maintain contact with the probation officer, etc.). Nor do we have a clear picture as to why supervised releasees are being returned to prison. With better information about the numbers and reasons for both types of revocation, we will be better positioned to make decisions about what is and is not working about community supervision and to target our resources more effectively. Because our community supervision populations are so large, it is inevitable that unless we get revocations under control, they will continue to contribute to an ever increasing prison population. The DOC and county probation offices have just recently modified their systems to enable tracking of revocation information. Mandated reporting would ensure implementation of data collection and reporting practices. The Robina Institute would be pleased to offer assistance to the Legislature to further research and/or develop these or any other proposals stemming from the work of this task force. Sincerely, Kelly Lyn Mitchell Executive Director 3 P a g e

4 Robina Institute of Criminal Law and Criminal Justice UNIVERSITY OF MINNESOTA LAW SCHOOL x TH AVE SOUTH x N160 MONDALE HALL x MINNEAPOLIS, MN x ROBINA@UMN.EDU x PROBATION IN-DEPTH THE LENGTH OF PROBATION SENTENCES that will reduce revocations and achieve better outcomes for probationers. Probation Revocation Project Advisory Board The Probation Revocation Advisory Board (PAB) is comprised by Alexis Lee Watts of a diverse group of criminal justice professionals, including judges, practitioners, scholars, and other stakeholders in community In 2014, the supervision, Robina Institute who provide of Criminal guidance, Law insight, and Criminal and Justice published a report entitled Profiles in Probation feedback Revocation: on the Examining direction of the project. Legal Framework For more information 21 States, on 1 the purpose of which was to gain understanding of the laws the and Probation processes Revocation governing Project probation and the revocation Advisory Board, in a cross-section visit of states. Building from that report, this informational brief pulls together the statutes that govern the length of probation sentences in each of the twenty-one jurisdictions studied, 2 as well as the legal framework for early termination or extension of the probation term. Factors Determining Length of Probation The period of time that an individual will serve on probation is initially established by the court when the individual is sentenced. There are few constitutional restrictions on the length of probation, other than the requirement that the sentence conform to local laws. In many jurisdictions there are statutory limitations as to the length of the original probation sentence as well as whether and under what circumstances probation can be extended. Probation terms may typically be extended for probation violations or failure to meet certain conditions (e.g., not paying restitution). On the other hand, probationers may be incentivized by statutes that allow the court to shorten or terminate probation and release them from supervision, thus fulfilling their criminal sentence. Maximum Probation Terms for Felony and Misdemeanor Sentences Felonies are more serious offenses, and at this level, conviction may result in a prison sentence. For some dangerous offenses, state statutes may authorize a lifetime term of probation. 5 Setting lifetime probation aside, Table 1 focuses on the maximum terms of probation that may be imposed for other felony offenses in each jurisdiction. The most common length of felony probation is five years, with laws in 8 of the 21 states examined setting this as the maximum term. 6 In three states, the maximum probation period is unclear or discretionary. In three others, the maximum term of felony probation is tied to the maximum incarceration term for the crime. For example, in Minnesota, Table 1. Felony Probation Lengths Max. Length of Felony Probation States 1 year WA 2 years FL 3 3 years UT 4 years ME 5 years AL, IA, MO, MS, NY, NC, OH, OR 7 years AZ 10 years TX Discretionary Maximum term CO, MA CA, MN, PA, WI Unclear IN 4 the maximum felony incarceration term for a very serious crime is 40 years; this would also be the maximum possible length of probation for such an offense. 7 Misdemeanors are typically less serious offenses where the term of incarceration, if any, is shorter and is likely to be served in a county jail rather than a prison. However, states define misdemeanor differently; for example, in Pennsylvania, a misdemeanor sentence may extend for up to five years and may include a prison term whereas in Minnesota, a misdemeanor is punishable by a maximum of 90 days. 8 Most states researched set an absolute maximum number of years for which misdemeanor

5 Robina Institute of Criminal Law and Criminal Justice UNIVERSITY OF MINNESOTA LAW SCHOOL x TH AVE SOUTH x N160 MONDALE HALL x MINNEAPOLIS, MN x ROBINA@UMN.EDU x Table 2. Misdemeanor Probation Lengths Number of States AL, IA, MO, NC, TX, WA CA, CO, MS, OH, OR IN, ME, MN, WA AZ, NY, UT MA FL PA Discretionary 6 months 1 year 2 years 3 years 4 years 5 years Max probation could be imposed, often capped at two years or five years. Only Massachusetts allows full judicial discretion in the probation term. 9 (See chart above). Early Termination of Probation Early termination of probation is generally a reward for good conduct. In some jurisdictions offenders are not eligible until they meet certain probation conditions, which can sometimes include full payment of all fines, fees, and restitution. 10 Two states in our sample, Texas and Wisconsin, allow consideration for early termination only after a certain percentage of the sentence is served. 11 Two states, North Carolina and Texas, also have an automatic review of probation at a certain number of years to see if the probationer would qualify for early termination. 12 In contrast, some states studied have no explicit mechanism for early termination of probation and either don t allow it (Washington, Indiana) or allow it through common law (Minnesota, Massachusetts). 13 Probation Extension Extension of probation allows the court to add time to the probationary term that must be served, usually up to the maximum term possible for a given crime. In about a third of the states studied, probation could only be extended after a probation violation. However, in many other states, the extension of probation can occur upon failure to complete specific conditions, often related to financial obligations. 14 In a few states, extension is at the discretion of the court (frequently with some due process limitations). Two jurisdictions, Maine and Washington, have no provisions to extend the probation term. 15 Chart 1. Early Termination of Probation Chart 2. Extension of Probation 10% 52% 9% 10% 19% n No early termination n Early termination without specific statute n Early termination at discretion of court n Early termination for cause (i.e. in the interest of justice, for good behavior, meeting certain terms) n Can be terminated only after a certain % of time is served 19% 38% 10% 33% n No extension for most people n No extension without violation n Can be extended for cause or to ensure completion of certain conditions (i.e. restitution) n Can be extended at discretion of court

6 Robina Institute of Criminal Law and Criminal Justice UNIVERSITY OF MINNESOTA LAW SCHOOL x TH AVE SOUTH x N160 MONDALE HALL x MINNEAPOLIS, MN x ROBINA@UMN.EDU x Why Does the Length of Probation Matter? Probation length prompts consideration of many competing interests. The probation term must be long enough to ensure community safety, to provide rehabilitative services, and to adequately punish offenders. Effective probation terms can both prevent future crime and foster individual growth for probationers. However, unnecessarily lengthy terms of probation may not benefit any of the stakeholders involved. State and local governments, for example, must determine whether the benefits to public safety of long supervision terms are outweighed by the rising costs over time of maintaining supervision over steadily growing caseloads. 16 [T]he length of the probation term depends on what an officer wants to accomplish and what resources the agency has in place to assist the offender in working toward his/her goals. Community tolerance and public safety factors also have to be considered [ ]. Carl Wicklund, Former Director, American Probation and Parole Association Therefore, it is important to strike a balance in probation length. In a 2014 study by the Center for Effective Public Policy prepared for the National Institute of Corrections, recommendations included systematically matching probation length to offender risk level and concluding the probation term after important rehabilitative goals and program successes were accomplished, rather than at a specific time. 17 Carl Wicklund, former director of the American Probation and Parole Association, believes that lengthy initial probation sentences may be justified, but that in appropriate cases probationers should be released from their term when they have accomplished all that was expected of them. For higher-risk offenders, he notes that the length of the probation term depends on what an officer wants to accomplish and what resources the agency has in place to assist the offender in working toward his/ her goals. Community tolerance and public safety factors also have to be considered [ ]. 18 The results in this brief may provide context for this ongoing discussion. REFERENCES 1 Robina Inst. of Crim. Law & Crim. Justice, Profiles in Probation Revocation: Examining the Legal Framework in 21 States (2014), publications/profiles-probation-revocation-examining-legal-framework-21-states/ [hearinafter Profiles in Probation Revocation]. 2 The states we examined were: Alabama, Arizona, California, Colorado, Florida, Indiana, Iowa, Maine, Massachusetts, Minnesota, Mississippi, Missouri, New York, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Utah, Washington, and Wisconsin. 3 The maximum in Florida may be less for those placed on community control where the entire sentence was under 2 years. Fla. Stat (4)(2015). 4 Indiana recently repealed the statute that set the maximum term of probation for a felony. Ind. Code (repealed eff. July 1, 2014). 5 See, e.g. Ariz. Rev. Stat. Ann (2015). 6 Profiles in Probation Revocation, supra note 1. 7 Minn. Stat. Ann , subd. 2 (2015) Pa. C. S. 106 (2015); Minn. Stat , subd. 3 (2015). 9 Mass. Gen. Laws ch. 297, 1A (2015); Mass. Gen. Laws ch. 276, 87 (2015). 10 See Fla. Stat (3) (2015); Iowa Code 907.7(3), 907.9(1) (2015). 11 Tex. Code Crim. Proc. Ann. art (a) (2015); Wis. Stat (2)(c)(3) (2015). 12 Tex. Code Crim. Proc. Ann. art (a) (2015); N.C. Gen. Stat. Ann. 15A-1342(d) (2015). 13 Profiles in Probation Revocation, supra note 1, at 30, 46, 86; Commonwealth v. Hunt, 900 N.E. 2d. 121, 124 (Mass. App. 2009). 14 See, e.g. Minn. Stat. Ann , subd. 2(g)-(h) (205) (extension can occur if probationer fails to pay restitution or complete treatment). 15 Profiles in Probation Revocation, supra note 1, at 88; Me. Rev. Stat. tit. 17-A 1202, 1203-C (2015). 16 See e.g., Minn. Sentencing Guidelines Comm n, Probation Revocations at 7 (Jan. 2015) (detailing the increase in volume of felony cases sentenced to probation from 2001 to 2012); Mariel Alper et al., American Exceptionalism in Probation Supervision (Robina Inst.of Crim.Law & Crim. Justice 2016), that the U.S. probation supervision rate in 2013 was more than five times greater than the rate for European countries). 17 Ctr. for Effective Pub. Policy, Dosage Probation: Rethinking the Structure of Probation Sentences (2014), 18 Am. Prob. And Parole Ass n, Probation and Parole FAQs Qs. 8-9, citing communication from Carl Wicklund, DynamicPage.aspx?WebCode=VB_FAQ#8.

7 Months Minnesota Sentencing Guidelines Commission Length of Stayed Sentences: Sentenced Minnesota Sentencing Guidelines Commission (MSGC) monitoring data are offender-based, meaning cases represent offenders rather than individual charges. Offenders sentenced within the same county in a onemonth period are generally counted only once, based on their most serious offense. Information Requested: Information on the average pronounced probation length by judicial district and/or county. Also, if there are some counties who might keep offenders on probation for over 10 years or so. Analysis: Figure 1 displays the average pronounced length of probation from , by offense type, for offenders sentenced for felony offenses. MSGC has no information on how long offenders actually serve on probation before they are discharged. Probation terms for felony offenses that received misdemeanor or gross misdemeanor sentences are included. 6% of the offenders placed on probation for felony offenses received a M/GM sentence during this period. Criminal sexual conduct offenses received significantly longer probation terms when compared to other offense types. Figure 1: Avg. Pronounced Probation Length by : Felonies Sentenced Avg. Pronounced Probation Person Property Drug Other DWI Crim Sex Total Probation Table 1: Pronounced Probation Terms of 120 Months or More: Criminal Sexual Conduct s vs. Other s Criminal Sexual Conduct? Total No Yes 120 No Yes Total 46,525 6,785 53,310 % w/in CSC 87.3% 12.7% 100.0% 447 1,331 1,778 % w/in CSC 25.1% 74.9% 100.0% 46,972 8,116 55,088 % w/in CSC 85.3% 14.7% 100.0% Source: MSGC Monitoring Data 5/15/2014 Page 1 of 10

8 The following set of graphs display the average pronounced probation terms by offense type and judicial district. For example, from , the average pronounced probation term in District 1 was 54 months. While sex offenses have the longest average pronounced probation term, drug offenses have the greatest range, from an average low of 36 months to an average high of 131 months. Figure 2: Avg. Pronounced Probation Term by District for Each Person s Property s Total Total Drug s DWI s Total Total Sex s Total Other s Total Source: MSGC Monitoring Data 5/15/2014 Page 2 of 10

9 Table 2 displays the average pronounced length of probation from , by county and offense type, for offenders sentenced for felony offenses. For example, in Aitkin, 33 offenders received a stayed sentence for a person offense. The average pronounced probation length for these 33 offenders was 57 months. Table 2: Avg. Pronounced Probation Term by and : Sentenced person Crim Sex property Total drug person 68 3 Aitkin other property DWI drug Crim Sex Big Stone other 48 5 Total DWI 76 3 person Crim Sex property 67 1,087 Total drug person Anoka other property DWI drug Crim Sex Blue Earth other Total 82 2,913 DWI person Crim Sex property Total drug person Becker other property DWI drug Crim Sex Brown other Total DWI 76 6 person Crim Sex property Total drug person Beltrami other property DWI drug Crim Sex Carlton other Total DWI person Crim Sex property Total Benton drug person other Carver property DWI drug Source: MSGC Monitoring Data 5/15/2014 Page 3 of 10

10 Cass Chippewa Chisago Clay Clearwater other DWI Crim Sex Total person property drug other DWI Crim Sex Total person property drug other 49 9 DWI 84 4 Crim Sex 90 6 Total person property drug other DWI Crim Sex Total person property drug other DWI Crim Sex Total person property drug other DWI 84 6 Crim Sex Total Cook person 50 7 Cottonwood Crow Wing Dakota Dodge Douglas property 40 9 drug 39 7 other 33 4 DWI 62 6 Crim Sex 96 5 Total person property drug other DWI 60 4 Crim Sex 72 9 Total person property drug other DWI Crim Sex Total person 54 1,030 property 54 1,699 drug other DWI Crim Sex Total 59 3,942 person property drug other DWI Crim Sex Total person property drug other DWI Crim Sex Source: MSGC Monitoring Data 5/15/2014 Page 4 of 10

11 Total DWI person Crim Sex property Total 39 10,748 drug person Faribault other property DWI drug Crim Sex Houston other Total DWI person Crim Sex property Total drug person Fillmore other property DWI 84 7 drug Crim Sex Hubbard other Total DWI person Crim Sex property Total drug person Freeborn other property DWI drug Crim Sex Isanti other Total DWI person Crim Sex property Total drug person Goodhue other property DWI drug Crim Sex Itasca other Total DWI person 46 5 Crim Sex property Total drug 89 9 person Grant other 60 2 property DWI 84 2 drug Crim Sex Jackson other 88 3 Total DWI person 38 3,115 Crim Sex Hennepin property 38 3,512 drug 37 2,329 other 38 1,137 Kanabec Total person property Source: MSGC Monitoring Data 5/15/2014 Page 5 of 10

12 Kandiyohi Kittson Koochiching Lac Qui Parle Lake drug other DWI 76 3 Crim Sex Total person property drug other DWI Crim Sex Total person property drug 60 3 other 36 1 DWI 84 1 Crim Sex Total person property drug other 29 3 DWI 66 4 Crim Sex Total person 63 4 property drug 52 3 DWI 84 2 Crim Sex Total person property drug other 29 7 DWI 57 7 Crim Sex Total Lake of the person 60 8 Woods property 54 6 LeSueur Lincoln Lyon McLeod Mahnomen drug 60 8 other DWI 84 8 Crim Sex Total person property drug other DWI Crim Sex Total person 52 3 property drug 46 6 other 46 6 DWI 52 3 Crim Sex 90 4 Total person property drug other DWI Crim Sex Total person property drug other DWI Crim Sex Total person property drug other DWI Crim Sex Source: MSGC Monitoring Data 5/15/2014 Page 6 of 10

13 Total DWI person Crim Sex property Total drug person 44 6 Marshall other 56 6 property DWI 84 6 drug Crim Sex Murray other 60 2 Total DWI 84 1 person Crim Sex 80 3 property Total drug person Martin other property DWI drug Crim Sex Nicollet other Total DWI person Crim Sex property Total drug person Meeker other property DWI 84 7 drug Crim Sex Nobles other Total DWI person Crim Sex property Total drug person Mille Lacs other property DWI drug 99 4 Crim Sex Norman other Total DWI 68 3 person Crim Sex property Total Drug person Morrison other property DWI drug Crim Sex Olmsted other Total DWI person Crim Sex Mower property drug other Otter Tail Total 89 1,532 person property Source: MSGC Monitoring Data 5/15/2014 Page 7 of 10

14 drug person 64 2,188 other property 65 2,335 DWI drug 92 1,567 Crim Sex Ramsey other Total DWI person Crim Sex property Total 72 6,953 drug person 53 5 Pennington other property DWI drug Crim Sex Red Lake other 76 6 Total DWI 82 5 person Crim Sex property Total drug person Pine other property DWI drug Crim Sex Redwood other Total DWI 79 9 person Crim Sex property Total drug person Pipestone other 40 3 property DWI 70 5 drug Crim Sex 80 3 Renville other Total DWI 72 6 person Crim Sex property Total drug person Polk other property DWI drug Crim Sex Rice other Total DWI person 50 6 Crim Sex property Total drug person 48 2 Pope other 33 4 property DWI 72 6 Rock drug Crim Sex other 36 4 Total DWI 68 3 Source: MSGC Monitoring Data 5/15/2014 Page 8 of 10

15 Roseau St. Louis Scott Sherburne Sibley Stearns Crim Sex Total person property drug other DWI Crim Sex Total person property drug other DWI Crim Sex Total 38 2,830 person property drug other DWI Crim Sex Total 67 1,217 person property drug other DWI Crim Sex Total person property drug other DWI 84 5 Crim Sex Total person property drug Steele Stevens Swift Todd Traverse other DWI Crim Sex Total 91 1,684 person property drug other DWI Crim Sex Total person 60 8 property drug other 52 3 DWI 84 3 Crim Sex Total person property drug other DWI 84 2 Crim Sex 84 5 Total person property drug other DWI 84 9 Crim Sex Total person property 81 9 drug other 27 4 DWI 84 1 Crim Sex -- 0 Total Wabasha person Source: MSGC Monitoring Data 5/15/2014 Page 9 of 10

16 property drug drug other 30 4 other 96 5 DWI DWI Total Crim Sex person Total property person drug property Winona other drug DWI Wadena other Crim Sex DWI 98 6 Total Crim Sex person Total property person drug property Wright other drug DWI Waseca other Crim Sex DWI 81 9 Total Crim Sex person Total property person property drug Yellow Medicine drug other DWI 94 5 Washington other Crim Sex 92 3 DWI Total Crim Sex person 54 14,323 Total 71 1,872 property 61 18,268 person drug 84 13,300 property Total other 48 4,944 drug DWI 77 2,475 Watonwan other Crim Sex 156 1,778 DWI 84 3 Total 67 55,088 Crim Sex Total Wilkin person 80 6 property Source: MSGC Monitoring Data 5/15/2014 Page 10 of 10