I recently trained some probation officers on something called graduated sanctions -- a best practice in the supervision of juveniles that gives probation officers discretion to respond immediately to probation violations without having to file a petition, arrest the kid and appear before the judge.
It’s worth mentioning, because a number of courts do not use it, but suffer busier dockets and tend to have higher detention and recidivist rates.
It has confounded me why some of us in this business haven't figured out that keeping officers in the field and out of the courtroom, reduces recidivism. The real work, you might say, is outside the courtroom.
But those of us doing graduated sanctions must do it correctly.
My observation of those jurisdictions that have not adopted this best practice is due to not knowing it is an effective supervision tool or because of philosophy -- either on the part of the judge, probation, or both -- that is grounded in either judicial discretion, a "get tough" attitude or a combination of the two.
Discretion is a double-edged sword -- it can kill your enemy or the one's you seek to protect. A common judicial response I often hear when doing training on risk assessment tools for detention decision-making--they take away our discretion.
Judicial discretion is not unfettered. It must be exercised within the parameters of the constitution and state law. For example, the criteria that guide judges in their decision to detain are two fold -- risk of flight and danger to the community. Judicial discretion to detain must be grounded in findings of fact that support the criteria. The question is what evidence creates a risk of flight or danger to the community?
Detention assessment instruments are objective tools to guard against bias of any kind. They are research driven and validated to predict re-offending with good accuracy. Despite the effectiveness of this tool, some judges protest the use of objective risk assessment instruments because they invade their discretion. They assume the assessment dictates their decision when in fact it informs their decision.
I was in Worcester, Mass., recently to address the juvenile court judges at their annual training. My topic was, "To Detain or Not to Detain: Three Parts Law, Two Parts Information, and One Part Discretion." We derive our discretion from the law and make our decision primarily on the information we receive. The more informed -- the better the decision.
My presentation was followed by the Commissioner of the Massachusetts Department of Youth Services, Edward Dolan, who analogized a judge's use of a detention assessment tool to the Red Sox manager deciding which reliever to use. It would depend on the batter, is it a lefty or a righty, did he use the pitcher yesterday, and so on using objective factors that help him to predict a good outcome.
A coach wants to win and is motivated to use objective criteria to inform his discretion on the right pitcher for that moment. Judges are motivated to prevent and reduce recidivism -- and the improper use of detention makes kids worse.
Likewise, judges who resist a graduated sanction program do so primarily because they fear releasing control to the probation officer.
A graduated sanction program is not about control -- it's about modifying behavior using swift and immediate responses to rule violations. Control and discretion are not interchangeable -- I control a case by an order, but use my discretion to delegate authority to probation officers for the sole purpose of enforcing my order and giving it meaning.
Conversely, some probation officers resist a graduated sanctions program because it's time consuming and inconvenient. Judges can't provide direct services. Behavior modification occurs in the field -- the home, school, counseling center, and so on.
Quite frankly – it’s not enough to do graduated sanctions if all it means is "graduated" and "sanctions."
The word "graduated" means "arranged in a successive order"--that means increasing or upward.
A seasoned probation officer in Arkansas once told me, "The elevator goes down too!" A response should be tailored to the violation and it can go up or down like an elevator depending on the circumstances and the needs of the youth.
The term "sanctions" means "to penalize, especially by way of discipline." The research is adamant that punishment and discipline alone does not reduce recidivism -- it increases it!
When I was punished in childhood my Mom always followed up with the "conversation" to help me make the connection between my behavior and the punisher -- that is the equivalent of therapy or treatment in the world of juvenile justice.
What if the violation of probation is a manifestation of something that is clinical in nature such as mental illness, cognition, or trauma? Punishers as sole responses do not change the behavior -- they make it worse.
I know this may be hard for some to accept who grew up with discipline as a deterrent factor. I am not dismissing discipline as a tool -- I grew up with my Mom quoting "Spare the rod, spoil the child." I am quite familiar with the spanking -- but I was more familiar with my Mom's kind words, loving arms and protective persona. Let's not forget I had a Dad who came to my sporting events, wrote to me every day I was in the Navy, and took me fishing -- not to mention I knew he would take care of my Mom.
You see, I didn’t come into this world as Johnny did with an addicted Mom dragging him to Trap Houses to get her fix and leaving him abandoned with strangers. Johnny suffers from post-traumatic stress disorder, a pathway to delinquency. The punishment that worked for me will not work for Johnny. We come from two different worlds.
The probation officer told me in court, "all graduated sanctions have been exhausted and to no avail." She wanted him detained, "there is nothing left," she said.
Sadly, she was right. If the focus is on "sanction" and not "response." Johnny's conduct is a manifestation of his diagnosis for which "sanctions" as the sole response is not helpful.
Johnny is a victim of serious neglect and a childhood collection of stress for which punishment will not help him navigate through his own emotional maze of confusion, fear and insecurity that in adolescence translates into a callous and defiant attitude and in turn delinquent conduct.
When we fail to get it right, we create a vicious cycle of callousness and defiance. We punish Johnny because he is callous and defiant without understanding why he is that way. In Johnny's eyes, he sees us as callous and defiant for punishing him for self-protective behavior and that's not fair in his world and ours too.
I understand why Johnny is callous. Now, what's our excuse?