Joe broke Sarah’s car window and stole her purse. This isn’t Joe’s first run-in with the law. He is already on probation, has two prior felonies (stealing a car and burglarizing a business), five Class A misdemeanors (for theft and drug offenses), and a smattering of Class B misdemeanors (more drugs and theft, DUI, and assaulting his girlfriend).
What should happen to Joe?
It may be useful to consider the purposes of punishment, often categorized as restoration (making the victim whole), rehabilitation (changing the offender so he does not reoffend), deterrence (punishing the offender so he and others will not think it worthwhile to commit future crimes), incapacitation (incarceration so the offender is temporarily incapable of committing new crimes), and retribution (punishment to make an offender experience something akin to the loss they have caused others or send a message about what society values and what society will not tolerate).
The Justice Reinvestment Act (JRI), passed in 2015, sought to reduce the prison population by putting lower-level offenders on probation and by reducing recidivism through treatment. And while the purposes of punishment are not mutually exclusive, JRI placed a definitive emphasis on rehabilitation.
This emphasis on rehabilitation, rather than incarceration, is manifest in the sentencing matrices: tables where the offender’s criminal history is reduced to a numeric score corresponding to a row in the table and the level of their current offense is assigned a column. The corresponding cell on the table indicates their presumptive sentence. And while judges may deviate from this, they do so rarely and reluctantly.
So where does Joe fall on the matrix? His criminal history is a Level III (I is the lowest and V is the highest) and his current offenses, vehicle burglary and theft, are both Class A misdemeanors. This earns him a presumptive sentence of probation with no initial jail time. This means a judge will impose a sentence of 364 days in jail, the maximum punishment for a Class A misdemeanor, but will suspend the jail time and instead place the offender on probation.
On probation, Joe will be required to keep his probation officer apprised of his address; check in regularly; not possess weapons, guns, or alcohol; maintain employment; and not associate with criminals. Joe will also work with his probation officer to develop an individualized case action plan to address the underlying causes of his criminal behavior. It may include things like getting drug or mental health treatment, participating in anger management classes, or getting a GED.
If Joe does well, his probation can be terminated early, and he will be eligible to have his convictions reduced and eventually expunged.
If he doesn’t do well, his agent can immediately impose small sanctions such as a temporary curfew, community service hours, or requiring GPS monitoring. If this fails to induce better probation performance, a judge can impose jail sanctions of increasing lengths. And while judges have discretion in how long of a sanction to impose, the presumptive length is fifteen days the first time, thirty days the second time, and forty-five days for the third and any subsequent times.
In theory, imposing increasingly severe consequences will incentivize better compliance with the terms of probation. But this hoped-for result hasn’t materialized. Perhaps people on probation are not disposed to modify behavior in response to incentives as demonstrated by the fact that they violated the criminal code in the first place. In 2017-2019, the most recent complete years for which data is available, only 55 percent of probationers successfully completed probation. The numbers are more dismal for parolees with only 25 percent successfully completing parole.
On the way to unsuccessful termination, each of these offenders encountered graduated sanctions, usually including at least three judge-issued jail sanctions. And unless and until probation is terminated, each sanction is followed by restarting probation. This cycle of probation, lesser sanctions, judge-imposed jail sanctions, and restarting the probation period can and frequently does drag on for several years. This is often exacerbated by probationers absconding—falling out of contact with their probation officer, so they can no longer be supervised. At any time, over 10 percent of probationers and parolees are in fugitive status.
One of the shortcomings of the graduated sanction model is that even a first-time sanction of fifteen days is likely to lead to a cascade of destabilizing effects like a loss of employment and accompanying inability to afford housing and transportation. And yet most jail stays are short: In the Salt Lake County jails in July 2022, the average stay was just twenty-six days.
The costs of disruption might be worth it if they led to a meaningful opportunity for the offender to change. Many sheriffs in Utah understand this and have created jail programs to help offenders do just that: overcome addiction, build life and job skills, get a GED or diploma, understand and live free from domestic violence, improve parenting, and plan for reintegrating into society so they can succeed when released.
But change takes time. Rome wasn’t built in a day, and years of dysfunctional thought patterns are likewise unlikely to be corrected in fifteen, or thirty, or forty-five days, especially for someone who has been unable to change their behavior with the structure of probation. If jail programs are to change offenders’ trajectories, they have to receive a long enough sentence or sanction for transformation to occur. The Utah County Jail offers a jail industries program where inmates work in the jail garden or kitchen or even in local businesses, but marketable skills can’t be meaningfully developed in a month. Both Utah and Salt Lake County Jails offer on-unit drug treatment programs, but they take ninety days to complete, and inmates aren’t eligible to begin prior to sentencing. The Salt Lake County Jail offers a GED program but it is most-effective when offenders have at least a sixty day sentence. Meaningful rehabilitative programming takes time.
Ultimately, if a judge feels that an offender has been given enough chances, she can terminate probation and require the offender to serve out the remainder of his suspended sentence. Unfortunately, when the imposition of the sentence is separated from the commission of the actual crime by a span of years, which is typical, the offender is unlikely to connect the punishment with the commission of the crime, making it ineffective both for deterrent and retributive purposes. The message being communicated is no longer, “Don’t burglarize cars and steal things,” but “Comply with court orders and probation officers.”
Incarceration is certainly not the answer for all offenders. Many are able to effectively rehabilitate in the community, saving taxpayer dollars and minimizing destabilizing disruptions for offenders. But for those who are unwilling or unable to do so, the current model yields the worst of both worlds: maximum disruption to any gains made in the community setting and no meaningful opportunity to change while incarcerated. Some offenders get to the point that they request to serve the remainder of their sentence in jail and close their case because it is preferable to continuously cycling in and out of jail.
We need to do a better job of determining up front, or at least earlier, which offenders are amenable to probation and which need a higher level of intervention to succeed. The sentencing guidelines should be adjusted to give more weight to prior probation performance and to account for the recency and frequency of criminal behavior. Judges should be less mechanical in applying graduated sentencing and sanction guidelines. If imposing probation is only setting an offender up for failure, it would be better to impose a jail sentence up front of sufficient length to complete programming designed to address the offender’s specific risk factors.
The goal of reducing incarceration is a noble one, but gains should be measured on a longer time scale. Sometimes a longer sentence or sanction coupled with effective in-jail programming may be the best option to rehabilitate offenders, decrease recidivism, and reduce incarceration in the long run.
Criminal Justice Policy Analyst
Amy was the Justice and Due Process Policy Analyst at Libertas Institute.