Crime and Consequences
I. A woman is shot in Springfield
Shortly after midnight near the end of 1994, Juan Rosado left a Springfield house party carrying a loaded gun. The tatooed teenager belonged to the Los Solidos gang, which was suspected of shootings and robberies across the city. Rosado had just received word that members of a rival gang, the Latin Kings, were hanging out on a nearby street corner. It was a Los Solidos corner. Rosado was under orders to “take care of them,” and he knew what to do.
He and a friend got into a red Chevy Cavalier, and the pair drove off. It took only a few minutes to reach the intersection of Union and Orleans, an area of broken bottles and boarded-up buildings where the Latin Kings had last been spotted. They parked down the street, so the Kings wouldn’t see them, and Rosado jumped out. He held the long-barreled revolver in his right hand as he walked toward the corner. There were five or six people standing there. Rosado raised the gun and started shooting. All but one ran away.
Mission accomplished, Rosado raced back to the car, then returned to the house. He stuck the gun under a mattress and re-joined the party. A fellow gang member later told police Rosado had been “really excited about the hit.” Rosado did not know until he saw the six o’clock news the next night that he had killed a female bystander. Denise Hubbard, a 36-year-old mother of five children, died of a gunshot wound to the chest. She had been at the corner talking with friends. “Damn,” Rosado said at first, according to court records. Then he said, “Oh well.”
Rosado could have been found in violation of probation for any of these incidents. A tough judge could have thrown him back in jail. A more lenient judge could have imposed new probation conditions or extended his sentence. At the very least, Rosado could have received a warning. But no one took notice until after Denise Hubbard died on Dec. 28.
It turns out to have been a particularly bad time for the Springfield District Court probation department. Two probation officers were being investigated, and were later jailed, for soliciting $18,000 in bribes in exchange for letting probationers skip drunk driving and domestic violence programs. One of the officers had been assigned to Rosado.
Rosado’s case surely shows the Massachusetts probation system at its worst. But critics say this sort of horror story is all too common. Probationers were suspected of at least 24,600 new crimes in fiscal year 1997. While the state did not track the outcome of those cases, it is clear from news accounts, interviews, and publicly available criminal records that probationers have been convicted of several dozen murders, rapes, and brutal assaults in the past few years. And the Weld-Cellucci administration estimated last year that one-third of the people sent to state prisons–hundreds of convicts –were on probation at the time they committed the crime that landed them behind bars.
Outrage over the probation system’s failures grew in the wake of several incidents that attracted heavy media coverage in 1997. First Pedro Rosario of Allston, a convicted rapist, was sentenced to life in prison for raping and killing a 22-year-old Irish student, Orla Benson. Although Rosario had repeatedly violated his probation before the murder–robbing a bar, incurring motor vehicle charges, and skipping court dates–the probation system took no action until after Benson’s death. Then Charles Jaynes was charged with kidnapping, raping, and suffocating 10-year-old Jeffrey Curley of Cambridge and dumping his body in a Maine river. The Brockton man, who had been on probation for threatening to rape the children of a teacher who had once disciplined him, became a poster boy for the system’s problems. He had allegedly violated his probation so many times–robbing bank machines, forging checks, blowing off probation appointments, hearings, and fines–that 16 courts wanted him on warrants. But he was not arrested until after Curley’s death.
“We absolutely must do more,” says Rep. Paul Haley, D-Weymouth, chairman of the Legislature’s influential House Ways and Means Committee. “Probation is presently ineffective in its ability to adequately supervise probationers….A judge places someone on probation and no one is monitoring what he’s doing, no one is checking up to see if he’s gainfully employed, or if he’s continuing to break into houses to sustain himself.”
“The attitude is that probation is a joke, an absolute joke,” Don January, longtime chief probation officer in Lynn District Court, bitterly agrees. “For too long, we’ve been a laid-back agency that mainly pushes paper and has people report to us in our offices…. The majority of the people in our system never go outside the building during working hours, except for lunch.”
Ironically, the criticism comes as the national reputation of Massachusetts in crime-fighting grows. President Clinton and U.S. Attorney General Janet Reno hail the state as a model for establishing innovative probation programs in Boston that have contributed to the city’s lowest crime rate in 30 years. But while acknowledging several bright spots, critics including Acting Gov. Paul Cellucci, Massachusetts Attorney General Scott Harshbarger, prosecutors, legislators, academics–and some within the probation service–point out these problems in the system at large:
·–Almost 80 percent of probationers have a drug or alcohol problem, but drug tests are infrequent and sanctions are rare.
·–People suspected of violating probation, even when charged with a new crime, often wait months for a court hearing. Many found in violation go unpunished or receive just a mild sanction.
–The probation system is fragmented, run by 70 district courts, 14 superior courts, and an expanding juvenile court system, each with its own practices set by the presiding judge and chief probation officer. This leads to wide variations in quality and slows the pace of change. A state-level bureacracy adds to the confusion, as it has several different offices responsible for probation services–the Office of the Commissioner of Probation, which answers to the Administrative Office of the Trial Court, and the Office of Community Corrections, a separate Trial Court department.
The pressures are only mounting. The central fact of life in crime control is this: The vast majority of criminal offenders serve their sentences outside prison walls, and the number is expected to grow. While there are about 22,000 people behind bars in Massachusetts, there are about 60,000 people on probation. A severe shortage of prison space is compounding the problem. Massachusetts prisons are among the most overcrowded in the country, and officials faced with multi-million-dollar sticker shock for the new maximum-security facility in Shirley balk at building more. Without room to bunk new inmates, judges are under pressure to release more convicts into the community. And judges would be urged to start putting even more people on probation if the Legislature adopts a plan to set uniform sentencing guidelines for courts across the state. The proposal would eliminate mandatory minimum prison sentences for some non-violent drug offenders, and encourage judges to give probation time instead.
In the meantime, the probation population is becoming more and more difficult to control. Far more probationers are violent and have previous criminal records than a decade ago, according to annual reports compiled by the Office of the Commissioner of Probation. So it is not surprising that they also require much more intensive supervision. Of new adult offenders requiring personal contact with their probation officer, two out of five needed the highest level of supervision available in 1988. Four out of five are deemed to need maximum supervision today.
Former Gov. William Weld and then-Lt. Gov. Cellucci became so frustrated with the state of the probation system last year that they tried to take control. They proposed yanking the probation service away from the courts, which have run it for more than 100 years, and placing it under the executive branch of government where they could run it themselves. The idea has gone nowhere, despite support from Harshbarger, a Democrat, and most of the state’s district attorneys, Democrats and Republicans alike. Most legislators said they found the move too extreme. But some legislators made clear they were not happy with the status quo, and they urged probation officials and judicial leaders to do something about it.
There have been signs of progress. A new probation commissioner, John J. O’Brien, took over in January, and he is vowing an aggressive new approach to supervision. Judges are talking about expediting probation violation hearings across the state. And the Legislature is putting more money toward probation programs. But the system is large and slow to change.
II. Sam and Ralph make the rounds in East Boston
It’s almost 9 on a Tuesday night and Sam Bellistri has dark circles under his eyes. The veteran probation officer has been on the job 15 hours, since arriving at East Boston District Court at 6 a.m. to catch up on paperwork. But he still has things to do.
His gold badge dangling from a chain around his neck and a clipboard in hand, Bellistri climbs the stairs to a two-family house on St. Andrew Road. Ralph Amoroso, a police officer who serves as Bellistri’s partner one night a week, follows behind. A teenage girl answers the door and invites them in. But her mother is not home. The 40-year-old woman, who is on probation for larceny and has a long history of drug abuse and psychiatric problems, is on Bellistri’s list because she skipped another appointment. Bellistri pleads with the girl’s grandmother, who is watching TV in the living room, to convince her daughter to call him in the morning. “I don’t want to keep coming up here. I don’t want to bother you. I’m here every week for chrissake’s,” Bellistri says. “Tell her if she doesn’t come in,” Amoroso adds, “Sammy’s going to get a warrant for her arrest.”
The pair takes Amoroso’s cruiser weekly through the working-class neighborhood that borders Logan Airport. They make 15 to 20 stops, visiting drug dealers, drug users, drunk drivers, robbers, and people convicted of assault and battery, many for domestic violence. They check whether probationers are living where they say they live, going to drug or alcohol treatment, and paying their monthly fees and fines. And they look for signs of a return to crime–the sudden acquisition of a large-screen TV, a razor blade on the coffee table, glassy eyes. Amoroso goes to protect Bellistri, who is not allowed to carry a gun, and to make any needed arrests.
Some people are surprised to see them on this below-freezing January evening; some seem almost happy. (Bellistri allows CommonWealth to ride along provided that no names of probationers or their relatives appear in the story.) A 37-year-old man on probation for possession of marijuana with intent to distribute, and assault and battery, greets Bellistri with a warm “Hey, Sammy” just before 7 p.m. He is on his way to a Narcotics Anonymous meeting at a local community center. Bellistri has been trying to help the man’s girlfriend, who is on probation for prostitution, find treatment for her heroin addiction. The last weekend, a cop found her wandering, dazed, around Maverick Square. The man, who says he has been on probation “most of my life,” seems sincere when he says he appreciates Sam’s attention: “It shows me he cares.” In the past, he explains, he would show up for appointments with other probation officers, say “what you had to say,” pay his fees, and be left alone until his next appointment.
Later in the evening, a sheepish 18-year-old on probation for possession of marijuana slumps against his bedroom door and says he could not care less whether Bellistri comes by: “It just saves me a trip [to the courthouse], that’s all.” But his mother, who coordinates airplane cleaning crews at the airport, is grateful. “He’s been on probation for years, and this is the first probation officer to make house calls,” she says. “They should have done it while he was on juvenile probation. If they had someone check, maybe [the kids] would be where they were supposed to be.”
The probation-police partnership, which goes by the official name “Operation Nightlight,” appears to be making a difference. Crime dropped 27 percent last year in East Boston, and law enforcement officials say Nightlight is one of the reasons. Two probation officers in Dorchester District Court created the night-time supervision program with local police in 1992, and other Boston probation departments started a few years later. Bellistri says he jumped at the chance to give it a try. Now he makes home visits with police officers two nights a week and one day each weekend.
“I’d been like a chained dog to this desk of mine since I came here,” says Bellistri, 56, who has been a probation officer for three decades. “Every time a guy comes in here, I know he’s bullshitting me. But you can’t do anything on it.” With Nightlight, “there’s no miracles,” he adds, “It’s just that they know we’re out there now so…the games and all the bullshit is over.”
The idea of supervising probationers where they live and work is as old as probation itself. Much like the philosophy behind community policing, it stems from the knowledge that crime is not committed only Monday through Friday, from 8:30 a.m. to 4:30 p.m, when probation departments are open for business.
But while veteran probation officers say they were regulars on the street in the 1960s and ’70s, most retreated inside as the field became more focused on social work. And through the late ’80s and early ’90s, few dared venture back into the community because the rising violence seemed beyond their control. “Fortress probation” became the rule, especially in urban areas, says Bill Stewart, one of the co-founders of Operation Nightlight. “All of us in the inner-city courts bought into the media [image of] the ruthless sociopath gang member ‘New Jack City’ type of kid,” recalls Stewart, now an assistant chief probation officer in Dorchester District Court. “It became easy for us to just assume we couldn’t do much….[We thought] we don’t have the equipment and the resources. We’ll have to just wait and do the body counts.”
But when Stewart went back on the street in 1992, he found he could make an impact. By getting to know the young offenders he supervised, helping them solve their problems, and holding them accountable for their actions, he soon saw an increase in cooperation from even the “hardest core” kids. “We took away their anonymity,” he explains. Today the idea is catching on across the country. Fueled in part by the successes in Boston, the concept of “community probation” has become one of the hottest trends in criminal justice.
But it is important to note that even in the midst of all this Boston-based innovation, Bellistri was an exception in his department until recently. Only one other East Boston probation officer was participating in Nightlight in January, and she went out just three times a month. Overburdened with large caseloads and overwhelmed by administrative duties, most of the others made some daytime home visits but did the bulk of their work in the courthouse on Meridian Street. By February, the department had several new employees. Then four of the nine full-time probation officers were working at least one night a week.
Bellistri, who trains others for field work, says he has found some resistance around the state. “When I talk to probation officers and say I’m doing night work, they say, ‘You’re crazy,’ ” says Bellistri, who juggles a caseload of 175 probationers, about half requiring regular personal contact. “A lot of people don’t want to take on the extra work….They’re so in tune to doing things the way they’ve done things the last 15 to 20 years, they’re scared of change.” They also don’t want to get hurt–something Bellistri says he understands. “You knock on a door, you don’t know what’s on the other side,” he says. “You’ve got to teach them how to protect themselves.”
III. Aggressive field work should be the rule. But is it?
Seventy percent of Massachusetts probation departments do some type of field supervision, with police officers or on their own, according to state probation officials. Boston boasts 14 Operation Nightlight teams and Revere and Chelsea recently created similar programs. The number is clearly higher than it was a few years ago, when Juan Rosado was on probation in Springfield. But almost one-third do none at all. And the Office of the Commissioner of Probation does not know how many individual probation officers are involved statewide, how much time they spend on the road, whether they work days, evenings, or weekends, or what the results have been. James Kazeniac, president of the Massachusetts Chief Probation Officers Association, acknowledges that participation, which is strictly voluntary, varies greatly from courthouse to courthouse. “That’s an ongoing problem. I’m not going to minimize it,” says Kazeniac, chief probation officer in Ayer District Court.
Experts say aggressive field work should be the rule. J. Richard Faulkner, a probation and parole specialist for the National Institute of Corrections, part of the U.S. Department of Justice, gushes about the benefits of Operation Nightlight. But he says every probation officer should spend 75 to 80 percent of his or her time on the job–a mixture of days, nights, and weekends–in the community. Even the best probation departments in the state fall short of that standard.
“It’s being done by a select group of officers who really want to do that kind of work,” says Jack McDevitt, who runs the Center for Criminal Justice Policy Research at Northeastern University and has studied Massachusetts probation programs for 10 years. “The big issue facing probation is…are we going to make [community work] part of the job, where people get promoted based on their participation? Are we going to send the message that this is what we value as an organization?”
In the past, some critics blamed the problems on a system plagued by patronage and other hack hirings. Probation officers were often chosen for their political connections, not their qualifications. Many put little effort into the job. Though clearly the exception, some employees, such as the Springfield bribe-takers, made matters worse. The quality of new hires improved once former Probation Commissioner Donald Cochran took steps to professionalize the service in the 1980s. He established minimum qualifications to become a probation officer–a bachelor’s degree and a year of relevant work experience–and set up a screening process through the commissioner’s office.
Today some critics maintain that the root of the resistance is attitudinal: Too many probation officers, especially among the veterans, don’t want to leave the comfort of the courthouse. But a growing number say the problem is more practical: Even those who value street work–and there are many–can’t find the time, equipment, or training to do it effectively. “There are models all over this state of exceptionally dedicated probation departments,” says Attorney General Scott Harshbarger. But others “simply don’t have the resources or powers.”
Probation officers in many Massachusetts courts are buried under a “blizzard of paperwork, fee and fine collection, and just an overwhelming number of probationers,” says Berkshire County District Attorney Gerard Downing. Rep. Peter Larkin, D-Pittsfield, says that the probation service has been relegated to “clerk’s status,” and “for all intents and purposes…is a collection agency.” Even some of the system’s harshest critics acknowledge that probation officers could spend more time in the community if the courts hired more people to share their administrative responsibilities.
Consider, for example, Tom McPhee, a longtime probation officer in Plymouth County Superior Court. McPhee has a caseload of 50 drug dealers, sex offenders, and armed robbers. He spends one day a week on the road, checking up on probationers at home and at work. But the rest of his time is split between an office in Plymouth and court in Brockton, where he interviews new probationers, handles bail reviews, and makes sentencing recommendations to judges. In order to do the job correctly, McPhee says, he’d have to spend at least two or three days a week in the field.
In Lynn District Court, one of the state’s busiest, Chief Probation Officer Don January has divided his staff between courthouse and street responsibilities. Each of the 12 field officers must spend three days a week in the community. But the court has 1,200 cases requiring regular contact, which means caseloads of 80 to 100 offenders apiece, most in need of maximum supervision. “It works out great, but it would work a lot better if we had more people,” January says. “I just feel frustrated that I’m not allowed to do the job the way it should be done. We have not kept up with the times or the types of crimes being committed.”
Although probation officers may arrest people they suspect of violating probation, state law prohibits them from carrying guns. Thus many are incensed that they can’t get basic safety equipment, such as handcuffs, Mace, bullet-proof vests, or even phones, because probation is not a courthouse priority. It took three years for January to get radios, and then only because the court had a small budget surplus, he says. They still don’t have flashlights.
Several probation officers in courts around the state told CommonWealth they are worried about a lack of safety training. None would allow their names to be used because they worry that criticizing their departments could hurt their careers. Those who work regularly with police say they value the partnerships, but point out that police officers can’t always be by their side. “They’re pushing for proactive work, but they’re not giving us the training that so many probation departments around the country do, like self-defense,” said one urban probation officer, who has many gang members on his caseload. “It’s only a matter of time before there’s some serious assault.” Several said they are reluctant to make arrests, even when they see blatant violations, because they aren’t equipped to handle any trouble that may arise.
IV. At a minimum, deal with the drug problem
Criminal justice experts say probation services are woefully underfunded throughout the country. Although people on probation and parole make up 72 percent of the criminal offender population, only 16 percent of corrections budgets goes to supervise them, according to Michael W. Forcier of BOTEC Analysis Corp., a Cambridge policy research firm. (Mark A.R. Kleiman of BOTEC wrote Criminal Justice in Massachusetts: Putting Crime Control First for MassINC, the publisher of CommonWealth.) It is impossible to make a similar comparison for Massachusetts because the juvenile and district courts, which employ most of the probation personnel, do not break out their probation expenditures. But consider that the Office of the Commissioner of Probation has a $4.8 million budget this fiscal year, and superior court probation services share about $8.6 million. In contrast, it costs more than $600 million a year to run the state and county prisons.
But just adding money–no matter how much becomes available–cannot solve the system’s problems, unless it is used more wisely, many experts say. While better funding for basic equipment, training, and personnel are key to the expansion of field supervision, most agree that more needs to be done. “I don’t think we can do this without additional resources, but we should also better target the resources we’ve already got,” says John Larivee, executive director of the Boston-based Crime and Justice Foundation, which issued a 1991 report critical of the probation system.
Instead, many experts have been promoting the use of “intermediate sanctions,” such as mandatory drug testing, day reporting centers, and electronic monitoring devices. There’s a clear dearth of such programs in Massachusetts, according to a 1996 survey by the Massachusetts Sentencing Commission. Created to study the need for statewide sentencing reform, the commission has recommended a set of uniform sentencing guidelines for judges that include the use of intermediate sanctions statewide. “There was a real void in our resources to provide those kinds of sanctions and services…that would hold offenders accountable,” says Frank Carney, the commission’s executive director.
“The minimum a probation system ought to do is require the people who are drug involved to abstain. Massachusetts, like everyone else, doesn’t do that,” says Mark Kleiman, a nationally-known drug policy analyst and author of Against Excess: Drug Policy for Results. In fact, probation officers responding to the Sentencing Commission’s survey named the expansion of on-site drug testing as one of their greatest needs, given that four of every five probationers have a drug or alcohol problem. Although every probation department now has access to drug testing, the state does not know how many have it in the courthouse. The Office of the Commissioner of Probation also can’t say know how many tests are given each year, what the results are, or what the sanctions are for failure.
Kleiman, chairman of BOTEC Analysis and lead author of Putting Crime Control First, advocates a “coerced abstinence” model: All drug-involved offenders would be tested for drug use twice a week and given automatic but mild sanctions, such as a few days in jail. Sanctions could escalate for repeated failures over a short period. Probation officers could help offenders find treatment. But facing constant pressure to abstain, many probationers are likely to seek out treatment on their own, Kleiman says.
Attorney General Scott Harshbarger says it’s time to try some type of “coerced abstinence” program in Massachusetts as part of a broader plan to improve probation departments across the state. “If you don’t have the capacity to do [regular] drug testing, you’re not going to be able to maximize the use of probation,” Harshbarger says.
V. Top leaders say: We’re coming around
The state’s top probation officials say they have heard the critical messages of the last year loud and clear. Both the new probation commissioner, John J. O’Brien, and the judicial chief who appointed him acknowledge that the system has had some problems, but promise that improvements are imminent.
Only five weeks on the job, O’Brien brought along his top deputies to a recent interview at probation headquarters on the fourth floor of One Ashburton Place in downtown Boston. Seated around a table in a drab conference room, the men called this a historic time for Massachusetts probation. “We’ve looked at some of the criticisms and addressed them. In the short term, we’re going to see dramatic changes,” said O’Brien, who replaced retiring probation commissioner Donald Cochran on Jan. 1. His top goals? To enhance field services and help establish new community corrections programs across Massachusetts.
Ronald P. Corbett, Jr., who has been a deputy probation commissioner for five years, said the system’s biggest problem has always been a lack of resources. “All of us would admit we just didn’t have the arsenal until now to provide adequate supervision,” he said. But he and O’Brien pointed out that the probation “toolbox” has grown significantly since the Legislature created a new Office of Community Corrections in 1996 to expand intermediate sanction programs for probation, parole, and prisons. The office (which is part of the state trial court system but run separately from the Office of the Commissioner of Probation) has $17.5 million to spend so far. O’Brien was its first executive director.
Steve Price, the new executive director, said the top priority has been hiring 170 “associate probation officers” to take over some of the courtroom duties of local probation departments. The idea is to free up traditional probation officers so they can spend less time assisting judges and more time supervising offenders in the community. About 130 of the new hires came on the job in February, and Price promised about 40 more by July 1. The office is sending them to courts that have shown a strong interest in field work. Officials hope the move will spur less aggressive departments to change their ways. (Although the state budget allocated $2.75 million to hire 200 people, Price said that amount will not foot the whole bill, so fewer officers will be hired.)
The Office of Community Corrections also intends to create a range of new programs to provide more intensive supervision of probationers. A $3 million plan, approved in February, calls for the establishment of four pilot “community corrections centers” in Hampden, Worcester, Barnstable, and Norfolk counties. Each is to offer drug testing, day reporting, and electronic monitoring, as well as education, job training, and drug treatment programs. The plan also provides $350,000 for drug and alcohol testing in other locations across the state. About $390,000 will pay for programs in Suffolk County. The office has another $10 million it can use to expand the services statewide, but Price has not yet decided the details.
Without these resources available in the past, probation officials said they could not ask most probation officers to spend a lot of time in the field. But now “it’s going to be expected,” O’Brien said, though officials will still not require it. “There’s a huge training apparatus supporting this,” Corbett added. “We’re convinced the majority of courts have gotten the message.”
VI. Probation violations: When ‘tracking’ means walking
“Aggressive field work” includes reporting incidents when probationers break the rules. All too often, critics say, the Massachusetts system has winked at probation violations, even when people are accused of committing new crimes. And there’s another problem: When probation officers do bring alleged violations to court, it is routine for the hearings to be postponed so many times–or result in sanctions so light–that the exercise becomes almost meaningless.
In Juan Rosado’s case, he could have been charged with multiple violations of probation–for the new crimes for which he was arrested or his missed court dates and unpaid fines. But he never had a hearing, never even received notice of an alleged violation. Had he been hauled into court, a judge could have punished him with sanctions ranging from a warning, to a curfew, to a year in jail–the length of time his prison sentence for breaking into the car dealer had been suspended. In any case, he may not have had the chance to attend the party where he was ordered to “take care of” the Latin Kings.
Suffolk County District Attorney Ralph C. Martin II has seen several similar cases. One that fell in his jurisdiction involved Pedro Rosario, the convicted rapist arrested for robbery four months before killing Irish student Orla Benson. Rosario never faced a probation violation hearing until after the murder. “We see enough instances to know there is a lack of uniformity and there are cases where public safety has been jeopardized because a person’s probation hasn’t been revoked,” says Martin, president of the statewide association of district attorneys. “To the extent that someone makes a mockery of the system, we all look bad–police officers, prosecutors, judges, probation officers. That’s what inspires a lack of confidence by the public.”
Massachusetts has seen a dramatic rise in the number of people accused of probation in the last decade. There were approximately 27,300 alleged probation violations in 1987, compared with 48,300 in 1997 — an increase of 77 percent. The number of people charged with violating probation by committing a new crime more than doubled in that period. There were 10,600 alleged probation violations stemming from new criminal charges in 1987 compared with 24,600 in 1997. The others were suspected of violating so-called “technical” conditions of probation, such as skipping appointments, missing court dates, or failing to pay fines. The state does not track the outcome of any of these cases.
1987 through 1991 are calendar years; 1992 through 1997 are fiscal years
Plymouth County District Attorney Michael Sullivan says taking action on all suspected violations, from missed appointments to new crimes, is crucial to preserving the purpose of probation.”I’m not suggesting that for every minor technical violation someone should have to go to prison. But for every violation of probation there should be some type of response by the courts,” says Sullivan, the D.A. association’s vice president. “A lot of times people on probation don’t feel it’s that big a deal, because in most instances it’s not going to be significant consequences.”
“Probation has to mean something,” agrees Harshbarger, who wants to see criminal offenders “on a much shorter leash” in the community. “If you violate probation, then there has to be a sanction.” (See “Harshbarger’s Plan“, CW, Spring 1998)
Victims rights advocates say that follow-up is key. Nancy Scannell, director of public policy for the Massachusetts Coalition of Battered Women Service Groups, says she hears often about men on probation for domestic violence who violate a restraining order and “nothing happens, they’re still on the street, there’s no follow-through. And that puts the victim more at risk.” While many probation officers do an excellent job, she says the consequences are huge when they don’t: “When the probation officers are not paying attention, it’s very dangerous….They’re either reinforcing the fact that this victim is powerless and, no matter what they do, no one’s going to listen, no one’s going to care. Or they’re holding the batterer accountable. And that’s inestimable in reducing recidivism…Then other victims feel they can come forward.”
Massachusetts probation officers issued more than 48,000 notices of alleged violations in fiscal year 1997. About 24,600 were for new criminal charges–more than twice as many as 10 years ago. The rest were for false addresses, unpaid fines, and violations of other so-called “technical” conditions of probation. But in what some say is an illustration of the importance placed on the issue, the Office of the Commissioner of Probation does not track the outcome of these cases. Officials do not know how many notices resulted in court hearings, how many probationers were found to be in violation, how many times probation was revoked, or what other sanctions were given.
Ask who’s at fault for the lack of action and watch the finger-pointing begin. Judges say probation officers don’t bother to bring forward the allegations. Probation officers say judges give the proceedings a back seat to other court business. And prosecutors blame them both.
When it comes to violations stemming from new criminal charges, one powerful factor appears to be tradition. It’s been an unwritten rule for as long as anyone can remember that probationers charged with new crimes–an automatic alleged violation of probation’s first rule, to obey all local, state, and federal laws–should not have to face a probation violation hearing until after the new offense is resolved. To many, it seemed a matter of fundamental fairness: How can someone be found guilty of violating probation for committing a new crime of which the person has not yet been convicted, and may be acquitted? Probation officers asked for continuances, and judges obliged, often postponing the hearing for months, until after trial.
It’s called “tracking,” and Geline Williams, an assistant district attorney in Plymouth County, calls it the “poison” of the system. Compounding the problem, she says, is that probationers are usually free in the meantime, and often go on to commit additional crimes, as did Rosado in Springfield, Rosario in Allston, and allegedly Jaynes in Cambridge.
What most infuriates those working to eradicate the practice is that it is, in fact, perfectly legal to hold a probation violation hearing on a new criminal charge before the trial on that charge. The Supreme Judicial Court made it clear in a 1995 ruling that probationers have a different legal status than other defendants–and probation violation proceedings require a different standard of evidence than criminal trials. All that is necessary to prove a probation violation is a “preponderance of the evidence,” which is a lesser burden than the criminal standard of proof “beyond a reasonable doubt.”
VII. The world of probationers may be ‘turned upside down’
It turns out that Juan Rosado eventually confessed to killing Denise Hubbard. In June 1996, in the middle of his trial for first-degree murder, Rosado a prosecutor’s offer and pleaded guilty to manslaughter, a less serious charge. He said he fired the gun above the crowd on the corner of Union and Orleans, not at them, and hadn’t meant to kill anybody. A Hampden County Superior Court judge sentenced him to 18 to 20 years at MCI-Cedar Junction, the state prison in Walpole, where he remains today. In the future, state officials say, it won’t take a fatal shooting to get a chronic probation violator off the street.
Officials say they are promoting a new way of doing business when it comes to probation violations. And some observers say this could be the most important change yet. Every probationer accused of a new criminal charge from now on must receive a violation notice and face the consequences in court. Most allegations of violating a so-called “technical” condition of probation also should result in a hearing, but probation officers will be free to decide when to bring those forward.
The Office of the Commissioner of Probation had no formal policy to this effect by February. But Chief Justice for Administration and Management John J. Irwin, Jr., who oversees the probation service as head of the state trial court system, said he expected O’Brien to come up with one “shortly.”
Irwin said that the state’s probation officers “for the most part…do an outstanding job.” But he added: “The probation service a long time ago should have insisted on [uniform policies for handling alleged violations]….It’s clear to me…there are certain cases, and regrettably high-profile cases, where a probation officer for one reason or another did not bring a [probation violation] case forward when they should have….That’s not acceptable.” The cases that “get away” are “too frequent,” he continued. “We should make sure those instances are very, very rare.”
Still more change is expected if the state’s highest court, the Supreme Judicial Court, approves new rules for probation violation proceedings in the Commonwealth’s 70 district courts. The impetus came in the fall of 1995 when District Court Chief Justice Samuel E. Zoll put together a judicial-probation task force on the subject. He appointed Springfield District Court Judge William W. Teahan, Jr. and Corbett, the deputy probation commissioner, to co-chair the group. Some outsiders say the mission gathered steam in the wake of recent criticism. But Teahan credits Zoll for sensing “before the real public clamor” that “the time was right.”
The impact of the new rules will be like “the world turned upside down” for probationers, Teahan says. “Suddenly they’ll see probation isn’t the dead letter office they thought it was.” And Corbett agrees they will make “a huge difference.” In addition to requiring that a probation violation hearing be scheduled for every new criminal charge, no matter how serious, they specifically prohibit “tracking.” All hearings must be held within 30 days; they can no longer be postponed until the conclusion of the new criminal case. Judges will not be forced to punish violations with jail time; they will retain discretion on what type of sanction is needed. Minor violations may require nothing more than a warning, Teahan says. But the simple practice of noting the violation in the probationer’s record is essential for effective probation, he adds.
Not everyone thinks the proposed rules are a good idea. In fact, many defense attorneys say they’re unfair. Public defender Andy Silverman says lawyers won’t have enough time to investigate charges against their clients and prepare for probation violation hearings. Silverman, deputy chief counsel in charge of the public defender division of the Committee for Public Counsel Services, says the rules also give judges “a real powerful hammer” to move cases on the new offense to a plea, which is not always in the defendant’s best interest. “It’s not consistent with protecting the due process rights of everybody,” Silverman says. “Speed is often not compatible with fairness and accuracy.”
The Supreme Judicial Court had not approved the rules by the beginning of April, but Irwin said he expects them to be accepted by September. The superior and juvenile court systems have started working on similar rules that he expects to be finished around the same time.
But Teahan says no one need await official word from the SJC. Most of the proposed rules simply reflect existing law. The reason they are so important is that, for the first time, they spell out in one place what is expected, he said. In fact, the district court system, the Boston Bar Association and other professional groups have held several recent training seminars to explain the rules, and many judges and probation officers have already started to follow them.
Springfield District Court–the same court that three years ago failed to bring Juan Rosado in for a probation violation hearing and had two probation officers convicted of taking bribes–now has a session reserved for probation violation hearings each day. Teahan is hearing the cases for now; other judges will share the work in the future. First Justice Robert Kumor, the Springfield court’s administrative head who set up the system, says it should help him monitor the effectiveness of the probation department. “The controls put in place are enabling us to manage better who is and who is not doing their job,” he says. The efforts also demonstrate that the judiciary is responsive, Kumor adds. “We’re a much more sensitive branch of government than people give us credit for.”
Despite his optimism, however, Teahan acknowledges it’s far too early to know what the results will be. “This is really in embryonic stage,” he says. “It would be hard to evaluate right now.”
VIII. A far-reaching proposal looms
Clearly, change is afoot, and many would say a great deal already has been accomplished. But in the background, the controversial proposal to remove the probation system from the courts still looms. Some say that kind of state-led, “shake it all up” approach will be the only way to bring meaningful, and sustainable, improvements to the Massachusetts probation service. Their solution addresses the possibility that in a decentralized system such as this one, change otherwise may come only to selected, “progressive” pockets. Even if better practices come to East Boston, what’s to guarantee they are used in East Bridgewater, West Springfield, and North Adams?
More than a year after filing the bill with then-Gov. Weld, Acting Gov. Paul Cellucci remains convinced that the executive branch would do a better job of supervising probationers and handling violations. Their now-languishing legislation would transfer the probation service to a newly created Department of Community Corrections, which also would oversee prisons and parole–all under the supervision of the Executive Office of Public Safety. Some probation officers would continue working for the courts to handle administrative duties, but many would be transferred to the new executive branch agency to focus on field supervision. Probation violation hearings would be conducted by new administrative hearing officers, rather than judges. Preliminary hearings, to determine whether there’s probable cause to proceed, would be held within three days of an allegation. A new administrative Board of Probation and Parole, much like the current parole board, would hold the final hearings and decide on sanctions.
“The way the system is structured now it’s putting the public at risk,” says Jose Juves, spokesman for Cellucci. “It’s something that’s eating away slowly on a day by day, week by week, monthly basis, where crimes are occurring that could and should have been avoided. We have the means to stop these murders and these rapes and we have an obligation to stop them.”
Cellucci’s most outspoken supporter on the subject is Secretary of Public Safety Kathleen O’Toole. She says people have to step back from the political turf battles that have characterized the issue in the past and consider what would be the best way to manage the behavior of 60,000 convicted offenders. The courts, which are already overburdened, and whose main job is to be neutral arbiters of justice? No, she says. Supervising probationers should really be a criminal justice and corrections function, managed with the prisons and parole. “People have gotten very emotional about this,” O’Toole says. “It is certainly not my intention to empire build. We’ve got enough to keep us busy.” But, she contends, “This makes good, sound sense.”
Thirty other states have probation in the executive branch of government, most aligned with parole, according to Rick Faulkner of the National Institute of Corrections. And making the move is not a new idea in Massachusetts. It was proposed at least three times before, though with somewhat different details–in 1987 and 1991 studies critical of the system, and by Attorney General Scott Harshbarger a few months before Weld and Cellucci filed their bill. John Larivee of the Crime and Justice Foundation, which wrote the 1991 study, says the lack of centralization of probation services has been a major problem. That’s why “you hear examples of good probation practices…but those examples don’t move well from one court to the next,” he says. And Michael Forcier of BOTEC says there is much better coordination of services in states that have probation and parole overseen by the same people.
Part of the opposition appears to stem from the extra powers Weld and Cellucci wanted to give probation officers, especially the power to arrest and detain a probationer without going to a judge, and the power to carry a gun. In a comment that has been repeated and villified many times since, Weld summarized his desired approach at a press conference held to announce the filing of the bill last year: “What we really need is for every probation officer to have a drill sergeant, eyeball-to-eyeball mentality. One false step, one infraction, and you’re back in jail. And I’ll be watching.”
Chief Justice Irwin says–and many agree–that probation officers are not intended to be purely the punitive officers Weld envisioned. But why else are most judges so vehemently opposed to the idea? Judge Kumor, the administrative head of the Springfield District Court, says it’s simply unnecessary–the judiciary is doing a good job and has been responsive to people’s concerns. Some go so far as to claim it’s unconstitutional, because it clouds the separation of powers between the judiciary and the executive branch. But the biggest problem, according to Irwin, is what he says would be a lack of accountability by the probation officer to the judge if probation officers were hired by an executive agency. “I wouldn’t feel very comfortable with the reports I was getting from another branch of government,” he said.
For now at least, that sort of major overhaul is dead, suffering the same fate as the previous attempts, according to the chairmen of the Legislature’s Judiciary Committee, Rep. John Rogers, D-Norwood, and Sen. William Keating, D-Sharon. Both say they’re pleased with the progress to date. “To be extremely effective, we have a long way to go. But I feel we’re headed in the right direction,” Rogers says.
Other critics of the system, such as Harshbarger, still believe transfering probation to the executive branch is the right thing to do. But given the reality of the Legislature’s opposition, he is pushing for other changes in the interim. Suffolk District Attorney Ralph Martin, who was a big supporter of the bill, also still thinks the move makes sense, but notes that the new probation commissioner ought to be given a chance.But Martin adds: “I think it will be ripe for discussion again.”
Meanwhile, it’s fair to say the Massachusetts probation system is on its own kind of probation–struggling with ingrained habits and full of resolve to change its ways.