Unreliable data makes probation hard to assess
In Oregon, not every criminal assigned community service actually completes that piece of what is called restorative justice before being discharged from probation. And many, when discharged, have not paid their court-ordered victim restitution. That much is clear.
But much more is not. State records obtained by the Portland Tribune as well as subsequent interviews show that state and county probation data is murky and unreliable, and that many in the state and county criminal justice systems are unaware of the probation statistics, much less what they mean.
Only 30 percent of the community service hours ordered by Multnomah County courts were completed by the county's probationers and parolees at the time offenders were released from supervision, according to 2016 data obtained from the Oregon Department of Corrections (DOC). Only 15 percent of the restitution probationers had been ordered to pay back to their victims had been paid.
Multnomah County officials who oversee probation and parole at the county's Department of Community Justice dispute the state numbers, which show the county's compliance to be well below statewide averages. Clackamas County and Washington County probation officials also say their numbers—which they supplied--are off. DOC officials say they don't trust the numbers they publish after collecting data from each county's probation department.
Officials from all three counties as well as the DOC say that the flawed data highlights a number of problems in need of solutions. They all agree that without data they can trust it becomes nearly impossible to comply with a state directive requiring counties to follow only "evidence-based practices" in dealing with probationers and parolees.
Among the most astounded by the data are local prosecutors, who say they were not aware that so many people they had successfully prosecuted were neither completing their community service nor paying their restitution before getting released from supervision.
"The fact that people could be dismissed from probation when they haven't completed their community service just doesn't make a lot of sense," observes Washington County District Attorney Bob Hermann, who says he was unaware of the DOC data until contacted by the Tribune. "It's part of the cornerstone of successful probation. You're giving back to the community and it's relatively easy to monitor."
When the criminal justice system fails to require that community service is completed and restitution paid it fails victims, in Hermann's view.
"The victim has no method to enforce the order, so they rely upon the corrections department to work with courts to enforce the order," Hermann says. "If you're a small business owner or elder victim, unless you get restitution fairly quickly, it could be more devastating than one would think a property crime could be to someone."
"I think you have zeroed in on a deficit in the system," says Multnomah County First Assistant to the District Attorney Jeff Howes about the community service numbers.
Howes says if the state numbers are close to correct, he'd like to see completion of community service given higher priority. He says he will push state and county officials on both the accuracy of the community service statistics and the community service policies being followed.
"Your inquiry is a bit of a catalyst for us," Howes says.
The community service totals don't reflect an oversight, according to Chuck French, who spent 35 years as a prosecutor in Multnomah and Clackamas counties. French says many community corrections departments, including Multnomah County's, don't require offenders to complete their community service because it costs too much.
Multnomah County officials say cost is not an issue and that they have vans running probationers to trash pickup sites throughout the week.
French says that Multnomah County's reluctance to jail offenders who don't comply with the conditions of their probation—not performing community service, for instance—is directly related to Portland's high property crime rate. The city (along with Seattle and San Francisco) has for years been plagued by one of the highest property crime rates in the country, at the same time it has among the nation's lowest violent crime rates. Oregon's property crime rate is the 11th highest among the 50 U.S. states, according to FBI statistics.
"You have to be able to send a message when you want to," French says. "And we have essentially said in Multnomah County we are not going to do that. We are not going to send people to jail for minor crimes."
Jailing probationers for failing to comply with the conditions of their probation is expensive. French says that if the total includes time spent arresting, booking, processing and medically screening offenders, putting someone in jail for a day can cost close to $1,000.
Sill, in French's view, word has circulated that Portland is an especially tolerant city if you're a robber or a thief, and has begun to attract criminals from other states and other Oregon cities.
"It's kind of like tumbleweed. It just keeps moving until it hits something that stops it from moving," French says. "They come to Portland and stay because it becomes a very easy place to live."
French's charges are impossible to verify or refute, given the controversy over the state's data. Oregon Department of Corrections Assistant Director for Community Corrections Jeremiah Stromberg says he doesn't trust the numbers issued by his agency. He thinks they're low, but he's not sure how low. He has given each county the opportunity to change its numbers and, until confronted by the Tribune last week, none had.
The data depends on probation and parole officers recording when their charges have completed community service and paid restitution. "I cannot say with any certainty that they are entering it accurately," says Stromberg.
But focusing on the inaccuracy of the numbers may be missing the point, according to Stromberg. Clearly, he says, a significant number of probationers are being released without performing their community service or paying their restitution.
"There is a discussion that needs to occur around the value and importance of completing community service and a realistic conversation around a person's ability to pay restitution," Stromberg says. "I'm a firm believer that a small amount of restitution paid is better than none at all."
Studies show that victims care about receiving restitution from offenders, even if they don't receive the full amount they are owed, because it helps them feel that their case is still remembered, Stromberg says. And community service, he adds, can also be healing, if structured properly. He says after the Vernonia floods in 2007 probationers helped in the cleanup and they experienced "a huge sense of satisfaction."
About sixty percent of offenders on supervision are unemployed, according to Stromberg. For many of them, mandated community service can provide structure and accountability during the day. For those who have jobs, community service opportunities are also available weekends and evenings.
The statewide data shows that 21 percent of restitution is paid at the time offenders are released from supervision, but the remaining debt is turned over to the state Department of Revenue, which can garnish future wages.
Scott Taylor, Director of the Multnomah County Department of Community Justice, says he's certain Multnomah County's probationer community service numbers are better than the state data reflects, but he can't pin down exactly how much better.
"We don't question that there is a gap between what's been ordered and what's been completed," Taylor says. "The question is what is the right number."
Taylor says his best guess is that 25-30 percent of probationers are allowed to complete their probation without having completed their community service. Taylor says the state data on restitution payments was also flawed. Though he did not present alternative data, he says that a few probationers who owe and don't pay large restitution sums could skew the data so that it appears most probationers did not pay their restitution by release.
Still, Taylor recognizes the state figures, even if flawed, shine a light on an institutional problem. There are probationers who refuse to comply with the restorative justice elements of their sentencing, he says, and there's not a lot his probation officers can do about it.
Probationers, usually property crime offenders, have received their sentence as an alternative to incarceration. If they don't comply with the conditions, probation officers can sanction them in a number of ways. The most consequential sanction is jail. But probationers are subject to state corrections law which stipulates a maximum number of jail days, called custody units, to which they can be sanctioned. Once a probation officer has used up jail as a sanction on a probationer who still won't comply, there isn't much leverage left, according to Taylor.
"All we can do at that point is revoke them," Taylor says.
Since keeping non-violent criminals out of jail is the focus of Oregon's Justice Reinvestment Initiative, revoking probation is among the last things criminal justice officials want to do. And probation officers are more likely to not spend their jail time sanctions on uncompleted community service when there may be bigger issues looming. That jail sanction might be needed for a probationer who repeatedly fails drug tests or unlawfully contacts his or her victim.
"It's like we have a credit card for two or three years that we're trying to manage against," Taylor says. "We try to use it where we'll get the most effect on what we're trying to address."
So probation officers often take a more forgiving approach. "I may want to keep bringing him into the office and say, ' I really need you to do your community service,' " Taylor says.
Judges have leeway to extend probation for felony probationers who don't complete their community service, Taylor says. But if probationers have complied with all their other conditions, often judges are willing to dismiss supervision even if community service hasn't been completed.
"Community service is part of the (probation) conditions. We do want to have people comply," Taylor says. "We just have not figured out how to bring it all together."
Washington County community service completion by probationers is much higher than the 61 percent quoted in state data, says county community corrections assistant director Joe Simich. Why the discrepancy?
"If you want to see why our data is so bad, come look at our computer system," Simich says. The software used by county probation and parole departments is 20 years out of date, say Simich and his counterparts in other counties.
"The whole system needs to be scrapped and redesigned and rebuilt," Simich says.
The software makes it cumbersome for probation officers to log when their charges perform community service and pay restitution, say Simich and others. So often, they don't bother, Simich says, echoing officials in all three counties.
Washington County has the best completion rates among the three Portland-area counties, but with other counties claiming their data is better than the state numbers show, there's no way to know if Washington County is actually doing a better job of supervising its probationers. And Simich says he has no idea how to gauge the accuracy of state figures that show Washington County's restitution payments at 44 percent.
Many probationers don't have the money to pay restitution during their supervision period, says Simich. But if a probationer is regularly paying even $25 a month, probation officers will usually let their probation expire.
Community service is another matter, in Simich's view. "There's no excuse," he says. "You can do it on weekends. Nonprofits will always work around your schedule."
Washington County has contracts with dozens of nonprofits at which probationers can volunteer to work off their community service hours.
A flawed sanctioning system is one of the reasons offenders get to avoid performing their assigned community service, says Clackamas County Community Corrections Director Jenna Morrison.
A probation officer can decide to sanction an uncooperative offender to less than a year in jail. But when that offender returns from jail, he or she is on a new status called post-prison supervision. The uncompleted community service hours have disappeared, and probation officers don't have the option of extending post-prison supervision periods, Morrison says.
After reviewing the state data chart Morrison re-checked each Clackamas County probationer's records and found that collectively they had completed 79 percent of the their community service time, not 47 percent, and had paid back 66 percent of their restitution.
Multnomah County's Taylor says his computer systems are so outdated probation officers can't easily look up whether their own probationers have paid their restitution. Police, courts, district attorneys and probation/parole officers all operate their own databases, he adds.
Morrison says she's frustrated too. *I feel like there's this impression that we're not showing data because we don't like what the data shows, but the reality is we just don't have good data to show," she says.
Clackamas County is incorporating probation programs that national experts say are evidence-based, according to Morrison. "I can't tell you if these programs are working," she says. And she won't be able to unless money gets allocated for new software.
"The problem is this, from my perspective. There are a lot of mandates about outcomes but no investment in infrastructure," Morrison says.
Probation solutions may require a look to the past
Multnomah County probation officers are carrying such large case loads they often can't closely monitor their probationers, says Scott Taylor, Director of the Multnomah County Department of Community Justice. Taylor would like a system where a probationer who fails to show up for assigned community service gets tracked down that day or the next and escorted to a county work detail.
Taylor says the county probation department will soon implement a special response team which will able to provide that immediate consequence.
Multnomah County Chief Deputy District Attorney Jeff Howes says 20 years ago offenders who were "screwing up but not completely screwing up," for instance not showing up for community service work, were given what was called "sit sanctions." They'd be taken to the county courthouse and be forced to watch drug court cases all day.
Up until about 15 years ago Multnomah County had a residential restitution center and a forest work camp in the Troutdale area available for probationers who weren't fully complying with their conditions. "I can think of no two better programs we had," Howes says. Both were lost due to budget cuts.
"What we don't have is these alternatives that require something of the probationer and is a step between community service and full lock down," Howes says.
The state data shows Douglas and Linn counties appear to be getting the best compliance from probationers, and those two counties just happen to have their probationers under the control of the Oregon Department of Corrections, says Assistant Director for Community Corrections Jeremiah Stromberg,
One of the solutions in Douglas County, Stromberg says, was emphasizing incentives for probationers who comply with all their conditions, rather than consequences for those who don't. Counties have the leeway to discharge probationers from supervision early, and that incentive has been widely used in Douglas and Linn counties.
Restitution payment in Douglas and Linn counties jumped from 21 percent to 35 percent, mostly due to the new policy, according to Stromberg. The state data has Douglas and Linn Counties showing best in state community service completion rates, about 73 percent.
Stromberg reports that probation directors in Douglas and Linn Counties are assiduously tracking community service and restitution and taking the collection of data seriously. Probation officers are required to double check that all community service has been completed in the months before an offender's supervision is about to end.