Intermediate Sanctions

Most American jurisdictions have recently established new intermediate sanctions programs. Few such programs have diverted large numbers of offenders from prison, saved public monies or prison beds, or reduced recidivism rates. These findings recur in evaluations of community service, intensive supervision, house arrest, day reporting centers, and boot camps. The principal problems have been high rates of revocation and subsequent incarceration (often 40-50 percent) and assignment of less serious offenders than program developers contemplated. If intermediate sanctions are to achieve their aims, means must be found to assure that they are used for the kinds of offenders for whom they are designed. Three major developments in the 1960s and 1970s led to the perceived need in the 1980s and 1990s to develop intermediate sanctions that fall between prison and probation in their severity and intrusiveness. First, initially on the basis of doubts about the ethical justification of rehabilitative correctional programs (Allen 1964), and later on the basis of doubts about their effectiveness (Lipton, Martinson, and Wilks 1975; Brody 1976; Sechrest, White, and Brown 1979), rehabilitation lost credibility as a basis for sentencing. With it went the primary rationale for individualized sentences. Second, initially in academic circles (e.g., Morris 1974; von Hirsch 1976) and later in the minds of many practitioners and policy makers, "just deserts" entered the penal lexicon, filled the void left by rehabilitation, and became seen as the primary rationale for sentencing. With Michael Tonry is Sonosky Professor of Law and Public Policy at the University of Minnesota Law School. Mary Lynch graduated in 1995 from the University of Minnesota Law School. 01996 by The University of Chicago. All rights reserved. 0192-3234/96/0020-0002501 .00 100 Michael Tonry and Mary Lynch it came a logic of punishments scaled in their severity so as to be proportionate to the seriousness of crimes committed and a movement to narrow officials' discretion by eliminating parole release, eliminating or limiting time off for good behavior, and constraining judges' discretion by use of sentencing guidelines and mandatory penalties. Third, beginning in the 1960s and continuing into the 1990s, crime control policy became a staple issue in election campaigns, and proponents of "law and order" persistently called for harsher penalties. With this came a widespread belief that most sentences to ordinary probation are insufficiently punitive and substantial political pressure for increases in the severity of punishments. Because, however, most states lack sanctions other than prison that are widely seen as meaningful, credible, and punitive, pressure for increased severity has been satisfied mostly by increases in the use of imprisonment. These developments resulted in a quadrupling in the number of state and federal prisoners between 1975 (240,593) and 1993 (948,881) and in substantial overcrowding of American prisons. At year end 1993, the federal prisons were operating at 136 percent of rated capacity, and thirty-nine state systems were operating above rated capacity. An additional 51,000 state prisoners in twenty-two jurisdictions were being held in county jails because prison space was unavailable (Bureau of Justice Statistics 1994). Whatever the political and policy goals that vastly increased numbers of prisoners may have satisfied, they have also posed substantial problems for state officials. Prisons cost a great deal to build and to operate, and these costs have not been lightly borne by hard-pressed state budgets in the recessionary years of the early 1990s. In 1994, corrections budgets were the fastest rising component of state spending (National Conference of State Legislatures 1993). However, failure to deal with overcrowding attracts the attention of the federal courts, and throughout the 1990s as many as forty states have been subject to federal court orders related to overcrowding. Intermediate sanctions have been seen as a way both to reduce the need for prison beds and to provide a continuum of sanctions that satisfies the just deserts concern for proportionality in punishment. During the mid-1980s, intermediate sanctions such as intensive supervision, house arrest, and electronic monitoring were oversold as being able simultaneously to divert offenders from incarceration, reduce recidivism rates, and save money while providing credible punishments Intermediate Sanctions that could be scaled in intensity to be proportionate to the severity of the offender's crime. Like most propositions that seem too good to be true, this one was not true. During the past decade's experimentation, we have learned that some well-run programs can achieve some of their goals, that some conventional goals are incompatible, and that the availability of new sanctions presents almost irresistible temptations to judges and corrections officials to use them for offenders other than those for whom the program was created. The goals of diverting offenders from prison and providing tough, rigorously enforced sanctions in the community have proven largely incompatible. A major problem, and it has repeatedly been shown to characterize intensive supervision programs, is that close surveillance of offenders reveals higher levels of technical violations than are discovered in less intensive sanctions. Revocations for conduct constituting new crimes are seldom higher for offenders in evaluated programs than for comparable offenders in other programs. Nor is there reason to suppose that offenders in evaluated new programs commit technical violations at higher rates. But if they do breach a curfew or stop performing community service or get drunk or violate a no-drug-use condition, the closer monitoring to which they are subject makes the chances of discovery high; once the discovery is made, many program operators believe they must take punitive action-typically revocation and resentencing to prison-to maintain the program's credibility in the eyes of judges, the media, and the community. A second major lesson is that elected officials and practitioners often prefer to use intermediate sanctions for types of offenders other than those for whom programs were designed. Many evaluations of intensive supervision programs and boot camps, for example, have shown that any realistic prospects of saving money or prison beds require that they be used mostly for offenders who otherwise would have served prison terms. Yet many elected officials and practitioners resist. Elected officials resist because they are risk averse. Even in the bestrun programs, offenders sometimes commit serious new crimes, and officials are understandably concerned that they will be held responsible for supporting the program. The Massachusetts furlough program for prisoners serving life sentences from which Willy Horton absconded, for example, had been in operation for fifteen years and was started under a Republican governor in 1971, but Democratic governor 102 Michael Tonry and Mary Lynch Michael Dukakis was held politically accountable for Horton's 1986 rape of a Maryland woman. As a result of this and similar incidents, elected officials often support new intermediate sanctions but then take pains to limit eligibility to low-risk offenders. One illustration is the series of recent federal proposals for boot camps for nonviolent firsttime youthful offenders. For reasons explained in the discussion of boot camps in Section II below, young nonviolent first-offenders are among the least appropriate imaginable participants in boot camps if the aims include cost savings and reduced savings on prison beds. Practitioners, particularly prosecutors and judges, also often resist using intermediate sanctions for the offenders for whom they were designed. Partly this is because they too are reluctant to be seen as responsible for crimes committed by participants. This is why, as the discussion of intensive supervision in Section II documents, judges are often unwilling to cooperate in projects in which-as part of experimental evaluations-target categories of offenders are to be randomly assigned to a community penalty or incarceration. Partly judges' "misuse" of intermediate sanctions occurs because they believe new community penalties are more appropriate for some offenders than either prison or probation. Forced by limited program options to choose between prison and probation, they will often choose probation because prison is seen as too severe or too disruptive of the offender's and his family's lives, albeit with misgivings because they believe ordinary probation too slight a sanction. Once house arrest or intensive supervision become available, those penalties may appear more appropriate than either probation or prison. This not uncommon pattern of use of intermediate sanctions by judges for offenders other than those program planners had in mind is often pejoratively characterized as "net widening." That epithet oversimplifies the problem. From the perspectives of the desirability of proportionality in punishment and of availability of a continuum of sanctions, the judge's preference to divert offenders from probation to something more intrusive is understandable, perhaps admirable. From the perspective of the designers of a program intended to save money and prison space by diverting offenders from prison, however, the judge's actions defy the program's rationale and obstruct achievement of its goals. Probably the most important lesson learned from fifteen years' experience with intermediate sanctions is that they are seldom likely to Intermediate Sanctions achieve their goals unless means can be found to set and enforce policies governing their use. Otherwise, the combination of officials' risk aversion and practitioners' preferences to be guided solely by their judgments about appropriate penalties in individual cases are likely to undermine program goals. Means must be found to establish policies governing the choice of sanction in individual cases. Two complementary means are available. First, discretion to select sanctions can be shifted from judges and prosecutors to corrections officials. "Back-end" programs to which offenders are diverted from prison by corrections officials, or released early, have been much more successful at saving money and prison space than have "front-end" programs. Similarly, parole guidelines have been much more successful and less controversial in reducing parole-release disparities than have sentencing guidelines in reducing sentencing disparities (Arthur D. Little, Inc. 1981; Blumstein et al. 1983, chap. 3 ). Presumably, these findings occur because decision processes in bureaucracies can be placed in fewer peoples' hands and can be regularized more readily by use of management controls than can decisions of autonomous, politically selected judges. Second, sentencing guidelines, which in many jurisdictions have succeeded in reducing disparities in who goes to prison and for how long (Tonry 1993), can be extended to govern choices among intermediate sanctions and between them and prison and probation. Some states have made tentative steps in this direction and many are considering doing so. Section III below summarizes some of this experience and suggests how current initiatives can be advanced. First, though, to provide a necessary backdrop, Section I gives a brief overview of problems that make reductions in recidivism, costs, and prison use difficult to achieve. Section II summarizes experience to date with the implementation and evaluation of various intermediate sanctions, including boot camps, intensive supervision, house arrest and electronic monitoring, day reporting centers, community service, and day fines. Each of these sections provides an overview of program characteristics and discusses evidence concerning various measures of effectiveness, including implementation, net widening, and success at reducing recidivism, saving money, and diminishing demand for prison beds. The emphasis is mostly on American experience and research, but research elsewhere, especially in England and Wales, is touched on as appropriate. 104 Michael Tonry and Mary Lynch I. General Impediments to Effective Intermediate Sanctions In retrospect, it was naive (albeit from good intention) for promoters of new intermediate sanctions to assure skeptics that recidivism rates would fall, costs be reduced, and pressure on prison beds diminish if new programs were established. The considerable pressures for net widening and the formidable management problems involved in implementing new programs interact in complex ways to frustrate new programs. Although these challenges are now well understood, that knowledge has been hard won. A. Recidivism Consider first recidivism rates. From well-known evaluations of community service (McDonald 1986), intensive supervision (Petersilia and Turner 1993), and boot camps (McKenzie and Souryal 1994), to mention only a few, comes a robust finding that recidivism rates (for new crimes) of offenders sentenced to well-managed intermediate sanctions do not differ significantly from those of comparable offenders receiving other sentences. Recidivism and revocation rates for violation of other conditions, by contrast, are generally higher. From different perspectives, both findings may be seen as good or bad. The finding of no effect on rates of new crime may be seen by many as good if the offenders involved have been diverted from prison and the new crimes they commit are not very serious. Sentences to prison are much more expensive to administer than sentences to house arrest, intensive supervision, or day reporting centers, and if the latter are no less effective at reducing subsequent criminality, they can potentially provide nearly comparable public safety at greatly reduced cost. But they do not provide "comparable public safety": by definition, crimes committed in the community by people who would have been in prison would not otherwise have occurred. Thus, if diverted intermediate sanction participants commonly commit violent or sexual crimes, "no difference in recidivism rates" provides little solace. If, however, participants seldom commit violent or sexual crimes, the open-eyed choice that must be made is between avoidable minor crimes and substantial costs to hold people in prison. The suggestion that every offender be confined until he will no longer offend is impracticable. Property offenders particularly have high reoffending rates, more than 30 percent of American and English males are arrested for nontrivial crimes by age thirty, and all offenders cannot be confined forIntermediate Sanctions ever. In effect, this trade between costs and allowing avoidable crimes to happen is made whenever community sentencing programs are established. From the other side of the punishment continuum, the finding of no effect on new crimes raises different issues. If ordinary probation is no less effective at preventing new crimes than is a new intermediate sanction at three times the cost, the case for sentencing offenders to the new program instead of probation cannot be made on cost-effectiveness terms. That does not mean that no case can be made; Petersilia and Turner (1993), among others, have offered the just-desert argument for intermediate sanctions that they can deliver a punishment that is more intrusive and burdensome than probation and appropriately proportioned to the offender's guilt. This is a plausible argument, but it shifts the rationale from utilitarian claims about crime and cost reductions to normative claims about the quality of justice. The equally robust finding that participants in intermediate sanctions typically have higher rates of violation of technical conditions than comparable offenders otherwise punished provokes a not-quiteparallel set of concerns. Most observers agree that the raised violation (and related raised revocation) rates result from the greater likelihood that violations will be discovered in intensive programs, and not from greater underlying rates of violation. From a "the law must keep its promises" perspective, the higher failure rates are good. Offenders should comply with conditions, and consequences should attach when they do not. The contrary view is that the higher failure rates expose the unreality and injustice of conditions-like prohibitions of drinking or drug use or expectations that offenders will conform to middle-class behavioral standards they have never observed before-that many offenders will foreseeably breach and that do not involve criminality. Many offenders have great difficulty in achieving conventional, law-abiding patterns of living, and many will stumble along the way; a traditional social work approach to community corrections would expect and accept the stumbles (so long as they do not involve significant new crimes) and hope that through them, with help, the offender will learn to be law-abiding. From this perspective, it is an advantage of low-intensity programs that they uncover few violations and a disadvantage of high-intensity programs that they do. Thus the evaluation findings on recidivism and revocation rates elicit different reactions from different people and in light of different con106 Michael Tonry and Mary Lynch ceptions of how the corrections system ought to work. In addition, however, they illuminate a major impediment to aspirations to reduce prison use by means of establishment of intermediate sanctions.