If you’re in the company of a federal probation officer long enough, it’s only a matter of time before the acronyms start to fly. A statement like “let’s use a CBT/MRT with evidenced-based practices to lower those dynamic risk factors by 5%” is the type of thing that a federal probation officer might say. Loosely translated, this means “the person I’m supervising has a risk of engaging in troublesome conduct, but if we use a cognitive behavioral treatment like moral reconation therapy to change or influence decision making, we can make it less likely statistically that the person will go back to prison.” The translation sort of makes sense, but there are still some weird words in there like “reconation.”
One of the most trusty tools in the federal probation officer toolbox is one of the most common acronyms, the PCRA (usually pronounced “pickrah”), which stands for “Post Conviction Risk Assessment.” The PCRA helps a federal probation officer determine the appropriate level of services for a person on supervised release. Most persons convicted of federal crimes are sentenced to time in prison followed by supervision in the community, which is called supervised release (click here for a detailed description of probation officers). The typical length of a supervised released term after prison is 3 to 5 years, during which a federal probation officer supervises the person convicted of the federal crime while he or she lives at a halfway house or in the community. Supervised release comes with standard conditions like not leaving Rhode Island without permission, not possessing a firearm, and following a probation’s officer’s instructions, and sometimes with special conditions like participating in substance abuse treatment or community service that the sentencing judge can impose on a discretionary basis at the time of sentencing. Violation of standard or special conditions, or committing a crime while on supervised release, can land the person back in prison quickly. This is called “recidivism” in probation officer-speak.
In addition to public safety generally, the primary goal of supervision is to prevent recidivism by encouraging the convicted person not to engage in criminal or anti-social behavior. As outlined in a detailed official overview of the PCRA, it uses massive amounts of data on past supervision outcomes to determine which persons need more supervision, which of the person’s characteristics should be addressed, and how probation officers should supervise for the most positive outcomes. To generate an individualized PCRA score, the probation officer and the convicted person both provide input in categories like criminal history, education, employment, substance abuse, and social networks. The PCRA crunches all the inputs and assigns a risk level to the convicted person of low, low/moderate, moderate, or high (along with a bunch of other helpful stuff). Historically, a convicted person in the “high” risk category has about a 50% chance of recidivism (committing another crime), while a “low” risk person has a 9% chance. Not surprisingly, probation officers devote more resources to persons assigned a high risk than a low risk.
A promising new report suggests that the PCRA is working. Overall, between 2009 and 2013, the percentage of convicted persons under supervised release who have been rearrested for a crime within three years has declined from 19.3% to 16.3%. Even convicted persons in the high-risk category have trended downward from 41.9% to 36.6%. It’s hard to pinpoint all the causes of this downward trend, but major contributors are almost certainly the rise of increased focus on reentry programs through things like the Hope Court, focus on reentry by convicted persons themselves, and, as the new PCRA report notes, probation officers’ “consistent effort to apply evidence-based principles to policy and practice decisions” with things like encouraging pursuit of education, employment, substance abuse and mental health treatment, and increasing the convicted persons’ awareness of decision-making skills.
With the PCRA showing signs of quantifiable success, it will be interesting to see whether the federal judicial system can apply the same principles and methodology to another probation officer acronym, the so-called PTRA, which stands for Pre-Trial Risk Assessment. Unlike the PCRA, the PTRA does not seem to have a robust body of data around its use and efficacy.
The PTRA is important because it addresses one of the most significant decisions in a criminal case — whether to detain a person who is accused but not convicted of a crime. Generally, if the government can show probable cause that a person has committed a crime, the government can arrest the person, bring the accused before the court, and ask the court to detain the person in prison before the trial starts and before the person is convicted. This is a major inflection point in a criminal case, because if the accused person is detained in prison, it is much harder to prepare a defense and the accused is severed from family and the community.
There are good reasons to detain persons accused of crimes, particularly if there is a good chance the person is a danger to the community, likely to try to intimidate witnesses, or presents a risk of flight to avoid the trial. Nevertheless, commitment to prison before conviction is a very significant restraint on personal liberty, and it should not be done lightly. The federal Bail Reform Act, codified at 18 U.S.C. 3142, reflects this policy by directing federal judges to release an accused person unless he or she presents a risk of flight or danger to community. If the judge determines there is a risk of flight or danger to the community, the Bail Reform Act directs the judge to order the “least restrictive further condition, or combination of conditions” that will ensure the person will show up to court (not flee) and will not be a danger to the community. Pre-trial detention in prison is the most extreme step under the Bail Reform Act, and a last resort if no other combination of conditions (such as turning in a passport or wearing an ankle bracelet) can deter risk of flight or danger to the community. Most judges hold that to warrant pre-trial detention, the government must prove risk of flight by a preponderance of the evidence, or must prove danger to the community by clear and convincing evidence.
In practice, the bail decision — whether to release or detain an accused person in prison — is a difficult decision based on limited information. Unlike the PCRA, when the person is already convicted and the probation officer has detailed information about the person’s background and characteristics, the pre-trial detention decision happens on the fly. The accused person is usually arrested and brought to a holding cell before the court appearance to determine bail, which happens shortly after the arrest. The probation officer might attempt to interview the accused to glean information for the judge’s detention decision, but in many cases, it’s a fair bet that the accused isn’t too psyched to talk to (or trust) someone the accused perceives as an agent of the government who just arrested him or her.
Because of the limited knowledge and data available at the time of the judge’s pre-trial detention decision (as assisted by the federal probation officer), it’s probably harder to design the PTRA to have the same level of effectiveness about predictive outcomes as the PCRA. Nevertheless, there are smart folks in federal probation and the court system, and it’s certainly worth a shot. The new PCRA study shows that evidence-based practices can achieve positive outcomes. Through study and refinement of the PTRA, there are probably steps that the government can take that will assist in determining whether an accused presents a risk of flight or is a danger to the community, and that also lower the statistical likelihood that a released defendant will engage in troublesome conduct.
It sounds boring with all the acronyms, but government restraint on freedom of movement is an infringement on one of the most basic forms of liberty. The new PCRA study shows that the PTRA can play a role in balancing the public’s interest in a safe community against an accused’s right to the least restrictive conditions of supervision before trial and potential conviction.
Update: after this blog post was originally published, the Administrative Office of the U.S. Courts released updated data on the PTRA, available here.