Senate Criminal Justice – Update on Zero Tolerance, Early

Senate Criminal Justice Committee October 7, 2009

Walter A. McNeil, Secretary Florida Department of Corrections

Violations of Probation

Probation Officer Responsibilities • Probation Officers monitor and enforce conditions of supervision. • It is the officer’s responsibility to notify the court whenever the officer has reasonable grounds to believe that a violation of any condition of supervision has occurred. • Officers notify the court of violations by sending the court a warrant, affidavit, and violation report or by sending the court a technical violation notification letter.

Violations of Probation • New arrests (felony, misdemeanor, criminal traffic) • Technical violations – – – – – – –

Not reporting as required or instructed Moving without permission Positive drug test Failure to attend evaluation or treatment Having contact with the victim Failure to comply with curfew Failure to pay victim restitution

Violations of Probation • Florida caselaw provides that violations of probation must be willful and substantial. • Historically, probation officers used their judgment as to whether an offender’s violation was willful or substantial in determining whether to file a violation.

Zero Tolerance March 2003 - The Department announced a zero tolerance policy due to inconsistencies found statewide in reporting violations. Under the zero tolerance policy, probation officers were required to report all alleged violations of probation to the court, regardless of whether the officer felt that the violation was willful or substantial.

Elimination of Zero Tolerance • Early 2006 – The Department’s policies regarding reporting violations changed. • Probation officers were once again permitted to use their judgment as to whether a violation was willful or substantial in determining whether to file a violation. • Officers were also required to include in the violation report a recommendation as to how the court should dispose of the violation. • Throughout 2007, every probation officer and supervisor was provided training to ensure officers were reporting violations of probation consistent with the new policies.

Technical Violation Notification Letters • June 2007 – Senate Bill 1792 – Authorized courts to accept a “Technical Violation Notification Letter” in lieu of a warrant, affidavit, and violation report.

• Approximately ¾ of judges statewide have authorized the Department to submit technical violation notification letters.

Impact • The elimination of zero tolerance, the increased use of “Technical Violation Notification” letters, and requiring violation disposition recommendations has had a significant positive impact.

 Violations are being handled without arrests and use of jail beds.  Prison admissions due to technical violations decreased by 19% (1,971 offenders) in FY 08-09.  Equates to more than a $39 million savings.

EARLY TERMINATION OF PROBATION

Early Termination •

Section 948.04(3), Florida Statutes If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date.

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Although the statute provided that recommendations for early termination of supervision may occur at any time, Department procedure was more restrictive.

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Department procedure required offenders to serve at least 18 months or 1/2 of the supervision period, whichever was greater, before an officer could recommend early termination.

Early Termination • In November 2008, the Department revised its early termination policies to require that offenders serve at least 1/2 of their supervision period before an officer could recommend early termination. • In late 2008, the Department conducted a statewide review of each probation case to determine whether an offender was eligible for early termination. • As a result, the number of early terminations has doubled over the past year.

Impact • The Department’s revised early termination policies have greatly contributed to increasing the offender supervision success rate. January, 2007

29.4%

July, 2009

44.1%

SENATE BILL 1722 Sections 1 and 2

SB 1722 – Section 1 •

Created s. 775.082(10), Florida Statutes – If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points are 22 points or fewer, the court must sentence the offender to a non-state prison sanction. – Court can sentence to prison if the court makes written findings that a non-state prison sanction could present a danger to the public.

SB 1722 – Section 1 • CJIC estimated that if 50% of eligible offenders were diverted from state prison, there would be 329 fewer prison admissions this fiscal year.  $3.3 million savings (annual operating costs) • Over a five-year period, CJIC estimated that there would be 962 fewer prison admissions.  $69.3M million savings (annual operating costs)

SB 1722 – Section 2 • Creates the Prison Diversion Program (s. 921.00241, F.S.) • Effective for offenses committed on or after July 1, 2009, a court may sentence offenders who meet the following criteria to a non-state prison sanction: – The offender's primary offense is a felony of the third degree. – The offender's total sentence points score is not more than 48 points, or the offender's total sentence points score is 54 points and 6 of those points are for a violation of supervision and do not involve a new violation of law. – The offender has not been convicted or previously convicted of a forcible felony as defined in s. 776.08, but excluding any third degree felony violation under chapter 810. – The offender's primary offense does not require a minimum mandatory sentence.

SB 1722 – Section 2 • If the court elects to sentence a person to a non-state prison sanction, the court shall sentence the offender to a term of supervision with mandatory participation in a prison diversion program. • The prison diversion program shall be designed to meet the unique needs of each judicial circuit and of the offender population of that circuit. The prison diversion program may require residential, nonresidential, or day-reporting requirements; substance abuse treatment; employment; restitution; academic or vocational opportunities; or community service work.

SB 1722 – Section 2 • $700,143 appropriation to establish two pilot programs. • Worked with local judges and community organizations to establish pilot programs in Hillsborough and Pinellas counties • Hillsborough program started September 1, 2009 • Pinellas program started October 1, 2009 • Program duration is 6 months to 1 year and consists of a myriad of services that target the individualized needs of the offender. • Employment assistance, vocational programs, substance abuse treatment, help with family issues, behavior counseling and support, anger management, etc.

SB 1722 – Section 2 • CJIC estimated that if the Prison Diversion Program were implemented statewide and if 2.5% of the eligible population were diverted from prison, there would be 62 fewer prison admissions this fiscal year  $622,046 savings (annual operating costs) • Over a 5-year period, CJIC estimated that there would be 229 fewer prison admissions  $4.9 million savings (annual operating costs) • Prison Diversion is not statewide – currently only operating in Pinellas and Hillsborough counties.

Walter A. McNeil, Secretary Florida Department of Corrections