Crime & Courts

May 4, 2013

Sedgwick County officials seek ways to reduce probation failure rate

Criminals in Sedgwick County are “flunking out” of probation at a higher rate than the rest of the state, committing more crimes and jeopardizing public safety, officials said.

Criminals in Sedgwick County are “flunking out” of probation at a higher rate than the rest of the state, committing more crimes and jeopardizing public safety, officials said.

The reasons are piling up.

In part, it’s because offenders considered “very high risk” are getting sent to community corrections facilities instead of prison. In the past, the highest-risk offenders sent to corrections instead of prison landed in the county’s adult residential center, where they were closely monitored.

But budget cuts reduced the number of beds at the center from 120 to 65. Fewer spots for higher-risk offenders means they “now live in the community with less structure and supervision, high unemployment and association with other criminals,” Mark Masterson, director of the county’s department of corrections, said in a recent report.

“To say that services have not been compromised – the truth is they have,” Masterson said.

The rate of probation failure in fiscal year 2012, which ended June 30, in Sedgwick County was 55 percent, compared with 34 percent statewide. Of those highest-risk clients whose crimes carried a presumptive prison sentence but who were placed on probation, only three of 73 were successful under the program. Such clients would include offenders convicted of crimes as serious as second-degree murder, aggravated assault and battery and aggravated robbery.

That has a consequence. Corrections departments – state-mandated programs funded through an annual grant process – that don’t have a 75 percent success rate or don’t improve 3 percent over the past year aren’t eligible for some grants or unspent dollars.

The budget for community corrections in Sedgwick County is just more than $4 million, most of which comes from the state. Client fees and county funding make up the difference. For fiscal year 2014, the state has directed community corrections centers to provide no-growth budgets as well as the actual cost of providing services. There is a chance, however, that community corrections centers will receive more money from a bill known as the Justice Reinvestment Initiative, which Masterson said Gov. Sam Brownback has signed but whose funding is pending.

“Community corrections is a unique animal,” Masterson told The Eagle during an interview. Probation helps keep people out of costly prison, and “all of that makes sense so long as you’re funded at a level that you’re not jeopardizing public safety.”

County Commissioner Dave Unruh expressed concern about a “depreciation of public safety.”

“We can’t continue to service this population with a reduced funding stream,” Unruh said.

Masterson thinks there may be a solution, and it sounds as if it has buy-in from stakeholders in criminal justice.

Risk assessment

He is recommending that Sedgwick County district judges use a risk assessment tool when considering probation in cases where the presumptive sentence is prison.

The tool assigns a score to an offender based on his criminal history and a structured interview. The higher the score, the higher the risk.

Such tools have proven to be an accurate predictor of risk in juvenile cases, Masterson said.

Chief Judge James Fleetwood has been using the tool for about a year. He has found it beneficial, he said, but he stressed that judges can’t rely on it solely.

“Any scientifically reliable information that can be provided to a judge is always going to be for the good,” he said.

He said the scores have helped him determine, in some cases, that probation was not appropriate for an offender.

“The concerns of risk still outweigh the agreement of the attorneys” in some cases, he said. “The nice thing about the risk analysis tool is (judges) would have that information earlier in the process so a more informed decision can be developed earlier in the process.”

Sedgwick County District Attorney Marc Bennett said the assessment tool would be beneficial.

“I believe arming Judges with as much information as possible from as many objective sources is a positive,” Bennett wrote in an e-mail. “The two historical impediments to the use of the risk assessment tool earlier in the process have been who will administer and pay for the test prior to sentencing and the defendant’s right to silence prior to sentencing. Defense attorneys have historically held genuine concerns about granting probation officers access to their clients to administer a test of any kind prior to a sentencing.”

Judges, prosecutors and defense lawyers “have no access to ‘high risk’ determinations until after the sentencing has taken place,” Bennett wrote. “Even the pre-sentence investigation ordered by the court, which sets forth the defendant’s criminal history, is not generated until after the plea or conviction.”

When considering a plea agreement, prosecutors look at the nature and degree of the offense, any possible mitigating circumstances, the age and background of the defendant, the age of his or her prior convictions if any, the sufficiency of evidence, information available in police reports and forensic evidence analysis. Prosecutors also consider the availability and willingness of witnesses to testify, the safety of the community and individual victims and the recommendations of law enforcement before making any plea agreement.

“Every plea negotiation is unique, and all cases are determined individually on their own unique facts and circumstances. Judges then conduct their own review of the available record before determining whether to follow a plea recommendation,” Bennett said.

Fleetwood said the assessment tools have been made available to all district court judges within the past month.

“Judges are becoming more and more aware of the science of sentencing and supervision, and they’ve been open to the new trends of evidence-based management. I have no doubt that they will be using the tool now that it’s available to them,” he said. “We will probably see a jump in trials.”

And that will come with its own set of problems, he said.

“It’s a matter of balancing costs,” he said.

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