Report Legislative Primer Series on Community Supervision: Tailoring Conditions of Supervision

On average, individuals under supervision must comply with 17 conditions and failure to comply can lead to incarceration. Statutes that lay out a number of conditions that every person on supervision must comply with can make successfully completing supervision less likely.

It may not make sense to require regular drug tests, for example, if people under supervision do not have a substance use disorder and their offense did not stem from substance use. Conditions like these can be financially burdensome and time-consuming.

Further, extra conditions do not support the goals of public safety and recidivism reduction. As stated in an article from The Pew Charitable Trusts’ public safety performance project, “[w]e know, for example, that supervision with a large number of conditions can interfere with an individual’s progress reintegrating into the community. Yet despite the growing body of evidence that supervision can be counterproductive, too many jurisdictions continue to emphasize surveillance and impose standard, one-size-fits-all rules rather than utilizing an integrated approach with treatment and conditions tailored to the individual.”

The National Institute of Corrections defines evidence-based practice (EBP) as “the objective, balanced, and responsible use of current research and the best available data to guide policy and practice decisions, such that outcomes for consumers are improved.” Programs are considered by the National Institute of Justice to be evidence-based when “their effectiveness has been demonstrated by causal evidence obtained through high quality outcome evaluations and that have been replicated and evaluated.”

According to the policy framework, the foundation of effective supervision is evidence-based decision-making. Many state statutes specifically require that programs and practices used in community supervision be evidence-based and one of the primary features of evidence-based decision-making is the allocation of resources according to risk. When resource allocation is based on risk, states are able to assign the appropriate level of supervision and provide suitable treatment and services for people under supervision. Science supports less supervision, services and treatment for people who are low-risk and low-need, which allows resources to be reallocated to those who require greater supervision and more services.

Mississippi defines evidence-based practices in statute as “supervision policies, procedures, and practices that scientific research demonstrates reduce recidivism” (Miss. Code § 47-7-2). Michigan’s statute similarly emphasizes the reduction of recidivism, defining EBP as “a progressive, organizational use of direct and current scientific evidence to guide and inform efficient and effective correctional services that have been shown to reduce recidivism” (Mich. Comp. Laws § 791.258a).

As stated in the policy framework, when the principles of evidence-based decision-making “guide supervision operations, outcomes improve.”

One evidence-based practice is to use risk and needs assessments in setting conditions of community supervision. Risk and needs assessment is a tool that can help evaluate the likelihood that an individual will commit another criminal offense. It also helps identify a person’s “criminogenic”―or specific―needs that, if addressed, are likely to reduce the probability of committing another offense.

According to a report from the Congressional Research Service, risk and needs assessments are typically based on answers in an interview with a person on supervision by a probation or parole officer “in order to collect data on behaviors and attitudes that research indicates are related to the risk of recidivism.”

Risk, need and responsivity are “derived from decades of research demonstrating that the best outcomes are achieved in the criminal justice system when 1) the intensity of criminal justice supervision is matched to participants’ risk for criminal recidivism or likelihood of failure in rehabilitation (criminogenic risk) and 2) interventions focus on the specific disorders or conditions that are responsible for participants’ crimes (criminogenic needs).”

Source: SAMHSA’s GAINS Center, 2018

Risk and needs assessment is one of the most common ways legislatures have provided direction to courts and agencies when imposing conditions. Some form of risk and needs assessment is required for setting supervision conditions in 27 states (see Fig. 1). Many state and local agencies use risk and needs assessments without statutory authorization. Requiring it in statute can ensure statewide and consistent use.

Connecticut law requires the development of a risk assessment strategy that will “1) utilize a risk assessment tool that accurately rates [a person’s] likelihood to recidivate upon release from custody, and 2) identify the support programs that will best position the [person] for successful reentry into the community.” The strategy must incorporate both static and dynamic factors, as well as be gender-responsive, recognizing the unique risks and needs of women on community supervision. (Conn. Gen. Stat. § 18-81Z)

Connecticut initially established two strategies pursuant to this law, the “reentry strategy” and the “assessment strategy.” In 2011, the state merged these two strategies into one, the Statewide Collaborative Offender Risk Evaluation System (SCORES). The system uses three assessment tools: the prison intake tool, the reentry tool/supplemental reentry tool, and the community supervision tool. The community supervision tool is used to assess the risk of reoffending and identify criminogenic needs to assist in supervision planning.

While Pennsylvania does not mandate it, state statute allows the use of a risk assessment instrument to determine “the use of restrictive conditions and duration of supervision” (42 Pa. Cons. Stat. § 2154.7). This instrument is defined as an empirically based worksheet using factors that are relevant in predicting recidivism. State law also requires that responses to parole violations be in accordance with evidence-based practices, including:

• Consideration of whether the person on supervision poses a risk of safety to the community or himself.
• The board’s capacity to deliver programs that address criminal behavior and related crime-producing factors.
• Use of community-based sanctioning alternatives to incarceration.
• Use of a graduated violation sanctioning process.
• Recommitment to a state correctional institution, contracted county jail, community corrections center or community corrections facility. (61 Pa. Cons. Stat. § 6138).

Pennsylvania further specifies in statute that counties supervising more people with higher risk and needs scores must receive greater consideration for grants from the state (71 Pa. Cons. Stat. § 1190.26a).

In addition to risks and needs, there is increasing attention on responsivity. Responsivity is defined by the Washington State Institute for Public Policy (WSIPP) as “the concept that interventions must be aligned with [a person’s] motivation and abilities.” Washington state passed legislation in 2009 requiring the state department of corrections to use a risk assessment recommended by WSIPP because it has “the highest degree of predictive accuracy for assessing an offender’s risk of re-offense.” In 2013, the state corrections department requested information on assessments that incorporate responsivity and subsequently transitioned to the use of risk-need-responsivity assessments. These assessments assist supervision officers in providing “amounts of services in accordance with the individual’s risk for re-offense (risk principle), provide types of services based on the individual’s unique assessed needs (need principle), and determine a treatment method that is appropriate for the individual based on individual abilities and motivation levels (responsivity principle).”

A number of provisions are put into law to ensure fidelity of risk and needs assessment tools. The quality control measures include validation and revalidation of assessments, training on the use of the instruments, and flexibility in policy to allow for new and emerging research.

Validation of assessments is a process that ensures the specific instrument being used is appropriate for the people for whom it is being used. Revalidation ensures the continued accuracy of these tools. Most statutes require a validated risk assessment be used while few address the revalidation of the tool. At least nine states require in statute that reviews of risk and needs assessments occur on an annual or recurring basis. Fig. 2 shows the various timeframes for revalidation that have been enacted into law.

A risk assessment tool is only useful if the person administering the tool knows how to use it. For this reason, it is important for the officers administering the assessments to be trained in their use. The statutory provisions vary, but many of the states that use these assessments, whether mandated or not, require staff to be trained on their use.

States that require training include Alabama, Colorado, Connecticut, Delaware, Idaho, Maryland, Mississippi, Missouri, Montana, Nebraska, Ohio, Rhode Island, South Carolina and West Virginia. In states such as Delaware and South Carolina, the training is conducted annually. Training is semiannual in Colorado, and Montana requires initial training on risk assessment and evidence-based practices as well as regular training.

South Carolina also requires parole board members to complete comprehensive training within 90 days of their appointment. Training includes using evidence-based practices to determine the “risk, needs and motivations to change” for people on supervision. Parole board members must also complete eight hours of annual training that includes a “review and analysis of the effectiveness of the assessment tool used by the parole agents” (S.C. Code § 21-24-10).

In Nebraska, chief parole officers must be trained to become trainers, ensuring “long-term and self-sufficient training capacity in the state” (Neb. Rev. Stat. § 83-1,100.02). Similarly, Rhode Island requires that some probation and parole officers become trainers in order to ensure the sustainability of the state’s training requirements.

Some state laws require that risk assessments be used while providing flexibility for the supervision agency to implement the tool as it sees fit. This flexibility is important for managing costs, ensuring safety, and allowing agencies to make adjustments and changes based on the latest research. By limiting how prescriptive the statute is, lawmakers provide agencies the ability to ensure that risk assessments are used appropriately and successfully.

Idaho requires the board of correction to create rules ensuring the use of risk assessments in setting conditions for parole supervision (Idaho Code § 20-224). The corrections department in Missouri must adopt a policy for administering risk and needs assessment tools to guide case management practices and supervision level (Mo. Rev. Stat. § 217.361). New Jersey law requires the use of a risk assessment to determine the level of supervision for parolees (N.J. Rev. Stat. § 30:4-123.52).

By employing evidence-based practices, such as setting conditions based on risk assessments, states can promote the success of people under community supervision. Excessive conditions can lead to failure on probation and parole. Instead, as discussed in the policy framework, conditions “should be limited and used only to address an individual’s needs, foster behavior change and support positive outcomes.” States can ensure that laws align with the research to hold individuals accountable, promote justice, reduce recidivism and ensure public safety.

This report was prepared with support from Arnold Ventures.