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Probation the next target for Minnesota criminal justice reform

Minnesota prides itself on having one of the nation’s lowest incarceration rates, but an increasing number of experts say the less discussed trade-off is the large number of people on probation.

Minnesota has the third lowest incarceration rate in the nation, with 196 people per 100,000 in prison, according to the Bureau of Justice Statistics. But the BJS also found the state had the fifth-highest rate in the nation, with 2,328 people on probation per 100,000.

Some say that’s not a reflection of how many people have been convicted of crimes, but how long people spend on probation compared with other states.

“Our probation periods on folks convicted of crimes are exceedingly long compared to any other jurisdictions,” said Bill Ward, Minnesota’s State Public Defender, who oversees public defenders across the state’s 10 judicial districts. “We are far out of range of other states, including states with sentencing guidelines.”

In Minnesota, probation is generally determined by the maximum sentence of the crime for which a person was convicted. Ward says that’s how it works in the majority of the judicial districts and it leads to long supervised probation.

Of felonies sentenced in 2014 and 2015, the Minnesota Sentencing Guidelines found the average probation length was 65.8 months. In the Ninth Judicial District, covering nine counties in northwest Minnesota, the average probation length was 76.9 months, the third highest in the state.

“The problem with that is there is absolutely no evidence-based information that that’s adequate in any way,” Ward said. “Evidence-based practices is not to have people on probation for 10 to 20 years. It serves no purpose.”

Different standards

Perhaps no two people know quite as much about criminal justice in northwest Minnesota as Kip and Sheila Fontaine. The couple have been married for 30 years and involved in the state judicial system for even longer.

Kip Fontaine began practicing law as an assistant Polk County attorney in 1985 and served four terms as the Clearwater County attorney beginning in 1993. He’s spent the last 11 years with the Ninth Judicial District’s public defender’s office and now leads a group of 13 attorneys across nine northwest Minnesota counties.

Sheila Fontaine began working in corrections and probations in Crookston in 1986. In 2010 she became one of 30 dispositional advisers in Minnesota. She works with public defenders to argue for sentencing guidelines departures, when the court sentences people for more or less time after a conviction or sends a person to jail when guidelines call for probation.

Generally probation is determined by the maximum penalty for the crime committed, but the way crimes are prosecuted across the Ninth Judicial District varies widely, Kip Fontaine said, which leads to large differences in probation people receive for committing the same crime.

For instance, a smoking device with a trace amount of meth in one county will result in a petty misdemeanor possession of drug paraphernalia, he said. That same situation in another county would result in a fifth-degree possession gross misdemeanor. In another county it’s going to be a third-degree felony controlled substance crime for being in a park or school zone.

“So you go from a petty misdemeanor all the way up to a 10-year felony with the ramifications concerning probation and sentence hanging over your head that that entails,” Kip Fontaine said.

Different demands

The Level of Service Case Management Inventory is a tool corrections officers use to assess risk level and determine how great the need for supervision and interventions a person needs in probation. The goal is to move people throughout the risk assessment, gradually decreasing the level of supervision based on the progress of people on probation. But often, low-level offenders end up on supervised probation and those who complete their terms and conditions don’t have their supervision levels reduced.

“If you start demanding that they come to your office once a week, that they participate in programming that they may not need to reduce their risk to reoffend, all of a sudden it starts jeopardizing their family, it starts jeopardizing their jobs,” Sheila Fontaine said. “What they found in research is you increase their risk if you over-prescribe your probation.”

When people miss meetings or fail a substance test, they receive “technical violations,” which can result in jail time or eventually having a sentence executed.

“When you put them under a microscope, you’re going to find the flaws,” she said. “And it depends on how you respond to the flaws as to how more involved that person becomes in the criminal justice system.”

Probation officers used to be able to handle violations informally, she said.

“That has shifted so that every violation comes to the court as a formal probation violation in most counties,” Sheila Fontaine said.

In the Ninth Judicial District, counties vary in how much discretion the give their probation officers to make those calls. Probation officers in Red Lake, Roseau and Kittson counties appear to exercise more discretion than in Polk County, the Fontaines said.

Once a person completes the obligations and conditions of their probation, such as paying restitution and completing chemical treatment, his probation officer might write a discharge report to the court to move him off supervision early.

“In a lot of counties, that happens,” Kip said.

Sheila Fontaine estimates 95 percent of the time, the judge will read the report and discharge the person from probation.

“Except in Polk County,” she said. “That’s where the county attorney’s office has fought and gets involved with early discharges.”

Revocation rates

When people slip up or get caught on probation violations multiple times, their sentences are revoked. Revocation numbers are particularly high in northwest Minnesota.

A Minnesota Sentencing Guidelines Commission report found the Ninth Judicial District had the highest probation revocation rate in the state at 24 percent between 2001 and 2014. Beltrami County, home of Bemidji, had the highest rate in the state at 32 percent. Polk County tied for the second highest revocation rate at 28.5 percent. Statewide, the average revocation rate was 16.5 percent.

“It’s not just a Polk County issue, it’s these major counties in rural Minnesota issue,” Kip Fontaine.

Over the years, the way those violations are treated has become harsher, Sheila Fontaine said. She said all research shows putting people with a low risk to reoffend on heightened probation  statues increases the odds that person winds up incarcerated again, or even decides to execute his own sentence.

“It’s the microscope, at some point people say ‘I can’t do this anymore’,” Kip Fontaine said. “It’s kind of a false choice people are making.”

Probation violators do make up a large share of inmates a Tri-County Corrections.

“Without question probation violations is No. 1,” Larson said.

He said that number can be slightly misleading due to people who are transferred into the jail for brief periods, but probation and parole violators “far and away” make up the majority of the jail’s average daily population of 180.

Seeking a solution

Ward sits on the Earned Compliance Committee, which was commissioned by the 2016 Legislature to address the problem, and he said the task will be challenging.

“Too many counties in general really are not following evidence-based practices when it comes to terms of probation,” Ward said.

One potential solution is to put a five-year cap on supervised probation, which Ward said could be adjusted for certain crimes. Such a move would require an act in the Legislature, but could still be a few years off.

“What everyone agreed is, that the culture needs to be changed in all these places,” Ward said.