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Position Statement

Conditional Early Release Program
Enacted: Jan 1998
Revised:
Position

The American Probation and Parole Association does not support the recommendation of the Criminal Justice Task Force of the American Legislative Exchange Council (ALEC) to expand the private bail system to provide the conditional early release of non-violent offenders from sentenced incarceration. Furthermore, APPA believes that this conditional early release program is motivated by financial profit and is contradictory to APPA’s vision of a balance of prevention, intervention and advocacy. APPA does support any early release program that:

  1. Works to provide the judiciary with information related to the accused's likelihood of returning for trial or sentencing.
  2. Provides a continuum of sanctions allowing increasingly restrictive release options correlated to crime severity, community protection and a defendant’s financial status.
  3. Supports the use of financial penalties assessed only to the offender.
  4. Holds the offender accountable for the crime if a period of incarceration, parole or probation is mandated following plea or trial disposition.
  5. Draws the offender and his/her family into the rehabilitative process, but does not displace accountability for the offender’s actions on the family.
Background

A recent proposal sponsored by the Criminal Justice Task Force of the American Legislative Exchange Council (ALEC) recommends expanding the private bail system to provide the conditional early release of non-violent offenders from sentenced incarceration. Individuals confined at the pre-trial stage would also be considered for this early release. Such releases, facilitated through performance bond and indemnity agreements, would in theory reduce prison and jail overcrowding, as well as recidivism. Their conditional early release program would work as follows:

  • Legislatively defined participants (misdemeanant and non-violent offenders) would be chosen by the releasing authority at the pre or post disposition stage.
  • Participants would enter the program under surety bond, within certain conditions imposed by the releasing authority. Conditions could include mandatory reporting, home arrest, drug testing, participation in a recovery program, non-interference with victims, payment of restitution and remaining free of subsequent arrests.
  • Persons in the participants’ release environment, such as parents and guardians, would sign "agreements of indemnity," whereby they, along with the surety, would have incentive to encourage the participants’ compliance.
  • The bond could be revoked by the court or other proper jurisdiction upon any breach of condition. Should this occur, the surety would have to pay a financial penalty to the state.

The above plan is based upon the premise, promoted in recent articles by ALEC, that government is failing to fulfill its basic responsibility to provide for the safety of its citizens. Specifically, ALEC attributes this failure to: 1) chronic prison and jail overcrowding and 2) the inability of public agencies charged with the supervision of felons and misdemeanants in the community (i.e. probation and parole) to acceptably perform this responsibility. The first, according to ALEC, prevents the incarceration of violent offenders, and by implication, forces non-custodial alternatives upon the judiciary in sentencing those offenders. ALEC further contends that government’s failure to acceptably provide supervision is the reason for the high recidivism rate, as a consequence of the "woefully ineffective"1 services provided by probation and parole.

A primary question is whether private sureties should assume certain law enforcement and corrections functions. ALEC’s position promises unprecedented results, including an instant solution to the problem of prison overcrowding, a substantial reduction in recidivism rates, and a measurable decrease in the financial burden now borne by taxpayers to incarcerate or supervise offenders. Given the unique relationship between surety and "client," is it advisable, or even possible, to expand its scope?

Discussion

Privatization of government services is a trend, which shows few signs of abating. Inspired by economic pressures, political forces, and the public’s desire for greater efficiency and a better "return" on their tax investment, it is now being driven by private enterprise’s vision of ever-increasing markets. Lobbies, which represent the private probation and prison industries, tout their services as faster, better and, above all, cheaper. Early reports, however, reveal troubling outcomes if certain aspects of government are contracted to the lowest bidder, especially where issues of cost control and public safety are concerned.

These issues are inherent in any discussion of the conditional early release program sponsored by ALEC. First and foremost is the question of money: Will only those capable of paying the percentage down be among the "legislatively defined participants" chosen by the releasing authorities? Similarly are they the only ones who’ll be able to take advantage of such a program if "chosen"? By its very nature, the surety bond process is discriminatory against the indigent defendant. Under this proposal, the indigent incarcerated defendant would languish in jail if they did not have relatives or friends to provide a surety.

Another aspect of the money issue concerns the amount an offender will be required to put down to gain release from custody. The current rate for a bail bondsman is ten percent. This percentage pays for preparing the bond, getting the offender released, and making sure he or she gets to court. Under ALEC’s plan, the performance bond would include a laundry list of requirements. These requirements include actual supervision, which involves substantially more than appearing in court. It is highly unlikely that ten percent would be considered adequate remuneration for providing these services.

ALEC proposes that some of this supervision be provided by parents, guardians and others, who having a signed "agreements of indemnity," have a vested interest in "encouraging" compliance. But what if all that encouragement doesn’t work? Experienced probation and parole offices know that a family member, uniquely privy to non-compliant and possibly illegal behavior, would have to ignore feelings of loyalty and fear of financial loss to report such behavior. The circle of responsibility described by ALEC looks a great deal like a noose when viewed in this light.2

The bondsman’s position is no less precarious. After being paid a percentage, the risk of financial loss is significant. Under the proposed terms of the performance bond, violation of any of the conditions will result in the bond’s revocation. Two things will then happen: the offender will be taken into custody, and the surety will have to pay a penalty to the state. Under a conventional bond agreement, returning an offender to jail who has failed to appear in court preserves the bondsman’s profit. He has discharged his duties, and everyone, with the exception of the defendant, is happy.

Under ALEC’s proposal, however, the bondsman will lose money regardless of whether he returns the offender to jail. Under these circumstances there is little incentive for the bondsman to supervise that offender in any real sense of the word. Supervision involves more than just monitoring behavior. It consists of intervention and counseling, along with repeated attempts to enforce conditions where there is non-compliance. Ultimately, following through on stated consequences (i.e. jail) might become necessary, if supervision and intervention are unsuccessful. There is an obvious conflict of interest if the bondsman loses money when an offender has to be taken back into custody and the bondsman provides the supervision that uncovers violations resulting in rearrest. It seems logical that this arrangement would be a disincentive for the bondsman to provide meaningful supervision.

The highly constrictive nature of the performance bond as outlined by ALEC is attractive to both legislators and the public. The consequences for both family members and bondsmen, should the offender violate the conditions, seem to offer great incentive for everyone involved to keep the offender on the path to rehabilitation. Instead, they are what will keep any such proposal from working. A system that does not hold the offender alone accountable for his behavior and imposes financial burdens on those who have no real control over him is doomed to failure.

The true victim of the ALEC’s conditional early release program, however, may be public safety. According to the Criminal Justice Task Force appointed by ALEC, "Freeing inmates who are not threats to law abiding citizens allows the justice system to ensure that those who are will remain incarcerated for the duration of their sentence."3 In fact, non-violent offenders who are sentenced to jail or prison are the very recidivists targeted by ALEC. These offenders do pose a serious threat to their communities. They are the career criminals who have been convicted of property crimes and crimes involving drugs or prostitution. ALEC’s plan to release such offenders without their serving any time is not only irresponsible, it’s potentially dangerous. Incarcerating these offenders for part of their sentences serves a two-fold purpose of providing consequences for repeated criminal behavior and disables them from committing new offenses during the time they are in custody. A period of incarceration also provides time for substance abuse treatment, mental health treatment and medical treatment for diseases, which are often, the result of criminal behavior (i.e. HIV, hepatitis, tuberculosis, etc.).

Perhaps a greater threat to public safety, however, is ALEC’s stated goal of ensuring that violent offenders will remain incarcerated the entire length of their sentences. At first glance, this appears to be an excellent way to address the public’s fear of violent crime. The two-fold purposes of punishment and incapacitation from committing new crimes are fulfilled, and for a time, everyone can feel safe. With the exception however, of those given life or death sentences, most violent offenders are released back into the community. Under ALEC’s proposal, no one would provide true intervention, prevention or supervision. Interaction with these offenders would be limited to rearrest when violent offenses were recommitted, and the slow and costly process of adjudication would begin again.

As an alternative to ALEC’s proposal, consider that the primary role of probation and parole incorporates a balance between intervention and control. This balance is the conceptual framework within which public safety issues are addressed. Criminal justice professionals are proactive in identifying offender needs and interjecting appropriate treatment and referral services as catalytic agents for promoting positive behavior changes. While surveillance and enforcement are crucial elements of probation and parole supervision, it is the success of positive interventions, which achieves both long and short-term community safety.

The introduction of effective interventions by probation and parole officers presupposes a set of working principles and supervision techniques adhered to by skilled professionals. This relationship-focused approach is unlike that suggested in the ALEC’s early conditional release program. While ALEC’s proposal assigns some incentive to bondsmen, parents and guardians to see to it that participants abide by the release conditions, there is no professional intervention in their lives. Therefore, there is little hope for positive behavioral change, which is the only effective weapon to combat recidivism.

Probation and parole officers are responsible for assisting the offender and monitoring and enforcing conditions of supervision. To relinquish these responsibilities to an entity whose mission is to make money, and whose only weapon is taking an offender into custody, would have an enormous negative impact on both the community and the criminal justice system.

References
  1. The State Factor, April 1995, "Criminals on the Streets. A Citizen’s Right to Know," by the Criminal Justice Task Force, American Legislative Exchange Council, p.1.
  2. The State Factor, November 1994, "Conditional Early Release. Relieving Prison and Jail Overcrowding," by the Criminal Justice Task Force, American Legislative Exchange Council, p.2.
  3. The State Factor, November 1994, "Conditional Early Release. Relieving Prison and Jail Overcrowding," by the Criminal Justice Task Force, American Legislative Exchange Council, p.3.