Probation Sponsorship:
The Role for a Court Referral Officer

(While serving as a Circuit Court Judge in the fifth Judicial Circuit of Alabama, I tried an innovative program to assist individuals successfully complete a period of probation.  This paper was written in a new attempt to reinvigorate the program in the late 1990’s.)

The purpose of this concept paper is to show that Court Referral Officers, as presently authorized by statute in Alabama, can play a strong supportive role in Probation Sponsorship, a plan that will be described in detail. The paper will describe the concept, and will propose a specific pilot project in which the concept can be tested. While the Court Referral program has apparently worked reasonably well in some contexts, it continues to receive mixed response from judges, especially at the Circuit Court level. Because of the volume of alcohol and drug related cases at the District and Municipal Court level, it is not difficult at that level to provide a meaningful description for the work of CRO’s. Yet at the Circuit Court level, the point from which the prisons are filled, it has been much more difficult to establish meaningful activities for CRO’s that address the voluminous problem of crime and punishment. We are filling the prisons with drug and alcohol offenders, and there is no viable program available to slow down the process.
The Sentencing Institute, with all good intentions, encourages judges to believe that more lenient sentencing, sentencing that will cost the state less, somehow addresses the problem. Leniency as such is not the answer. Only meaningful rehabilitation, meaningful moral formation that lessens the tendency toward crime can alleviate the problem. Leniency that is not backed by alternative programs that deter crime simply means that we are knuckling under to the onslaught of criminal behavior–including the behavior that is alcohol and drug related. Our aim should be to produce positive behavior that does not conflict with criminal law. That aim seems to have little to do with our present concepts of case management or prison management. However, Court Referral Officers, acting under the direct supervision of Circuit Court Judges, and assisting in the implementation of a plan of Probation Sponsorship can deal with the problem of crime, as opposed to the problem of managing courts and prisons.

While this paper proposes a new role for Court Referral Officers, it is a role that is entirely consistent with the letter, and even more consistent with the spirit of the legislation creating the position. By making the Court Referral Officer directly answerable to a Circuit Court Judge, the program receives the power of the court, not that of a weak central bureaucracy. The assistance of a Court Referral Officer will enable Judges to more meaningfully utilize available resources. Those resources include not only closer coordination with the Probation Officers and professionals in the treatment of drug and alcohol problems, but the vast volunteer resources available to specific defendants through civic organizations, churches and other community structures.
First I will describe Probation Sponsorship, then the Role of the Court Referral Officer, and Finally the theoretical basis of this entire approach.

Probation Sponsorship
The legal system has responded vigorously in recent years to the reality of an increasing rate of crime. Legislatures have also adopted “get tough” provisions, requiring mandatory jail terms for certain crimes and enhanced punishment–longer terms–for “habitual offenders.” The legal system is, indeed, tough on the criminal, despite public perceptions to the contrary. The public perception of luxurious accommodations for inmates is not factual. We have locked away offenders at an ever-increasing rate and for longer terms. Since the late 1960’s, the prison population has increased at an alarming rate, despite all “early release” schemes that have been put into effect. This result is ostensibly the desire of the public. Any judge who runs for office is subjected to extreme political pressure for any deviation from a “hard-line” approach. The result is a crisis of consider¬able proportions.

Describing the Need

Rand Corporation published a short book by Joan Peter¬silia in 1987 entitled Expanding Options for Criminal Sentencing,8 which describes the “crisis in corrections.” Although the information is dated, it gives a graphic indication of the alarming rate of growth in the prison population. That trend has not changed. Petersilia indicated that construction costs “range between $50,000 and $75,000 per cell” and that “it costs an average of $14,000 per year to incarcerate a prisoner in state or federal prison.” No doubt, those figures underestimate present costs. Taxpayers will not (and indeed probably cannot) continue to pay the ever-increasing tax burden caused by the accelerating costs of corrections. To con¬tinue to build more and bigger central prisons is not a viable option. The cost factor alone dictates that the problem must be contained in some other way.
The crisis evidences itself in the problem of over¬crowding of existing facilities. Overcrowding prisoners into less than adequate facilities is “cruel and unusual punishment” under the United States Constitution, according to the federal courts. The Rand study reports that “by the beginning of 1987, 37 states were under court order to upgrade all or a part of their correctional systems.” That number has continued to increase.
The corrections system in Alabama, with which my Court is directly involved, is deeply enmeshed in the problem just described. Over 13,000 inmates are in custody of the Department of Corrections at a cost of over $13,000 each per year. The cost increased from 5 percent of the State’s budget in 1972 to 17 percent in 1987. In 1974, the State spent $8,000,000 on corrections; by 1988 the cost exceeded $120,000,000. Clearly, we are on a collision course with a breakdown of the system. The only “solutions” proposed thus far are leniency and early release. Neither has worked.

Reliance is placed by the public in a central system: state penitentiaries administered at the state level. The public is disillusioned when early release programs make a mockery of the trial and imposition of sentences. The economic and legal necessity for such early releases does little to overcome the imagery of total ineffective¬ness. Our collective representation of punishment equates punishment with prison incarceration. The persons released frequently are repeat offenders after their release, and the impression exists that there is simply no remedy for prop¬erty crimes committed by “non-violent” offenders. Lack of confidence in the system is visited upon law enforcement agencies and the judicial system itself, as well as the Department of Corrections and the Board of Pardons and Paroles. After all, we are all dealing in the same commod¬ity: law. The question is rapidly becoming one of main¬taining authenticity and credibility in these matters.
The Rand report goes on to catalogue and discuss alternatives to incarceration, such as inten¬sive-supervision probation, intermediate sanctions, elec-tronic monitoring devices, community service, boot-camp, quarter-house/halfway-house faci¬lities, and others. All these are good suggestions and are due to receive prompt attention by the legislature and courts to help alleviate the problem which the Rand report aptly dubbed the “crisis in corrections.”

A New Approach
Probation Sponsorship is a proposal to improve the effectiveness of probation as an alternative to incarceration. It is a proposal that I have experimented with in the past, and with the help of a Court Referral Officer, I hope to rejuvenate. The program appeared to work, but the details of managing the entire program were eventually to great for me. Perhaps with the help of a CRO, statistical data can be gathered over a period of time to determine the success of the program. The principal attraction of the program is that it should save taxpayers dollars rather than costing more. The principal ingredients for success will be effort, organization and know-how, rather than money. First, I will describe the plan, which I call the “Probation Sponsorship Program,” and then I will present the theoretical justification for the plan.

Perhaps the greatest weakness of traditional probation programs and the other alternatives mentioned above is the fact that the approach is not systematic. Success depends on one person: the probation officer. The Probation Officer’s primary task is to work directly with the probationer, rather than to marshal community resources. And, although the probation officer theoretically works under the joint supervision of the judge and the board of pardons and Parole, the presence of the bureaucracy dilutes the appearance of authority of the Probation Officer. The bureaucratic goals of the Board are not the same as the image of a probation officer who works for the judge. The day to day activities of the probation officer are controlled much more by the bureaucracy than by the court. The goals of probation itself are not clearly defined, and the forces that will bring about the goals are even more vague. The Probation Sponsorship attempts to place the available alternatives into a comprehensive system that will marshall the natural forces that exist in society to address the problem. Let me explain.
Probation sponsorship begins with:
 (1) a traditional order of probation, including probation after a split sentence, and including probation after boot camp.
But a significant new condition of probation is added:
 (2) the probationer and his or her attorney must recruit three or more probation sponsors from his of her community who will agree in writing to sponsor the probationer.
And the court stays involved by:
 (3) reviewing the performance of the probationers, in a formal court session.
This Court review is in addition to the:
 (4) regular reviews by the probation officer.
These measures, in turn, provide the vehicle for:
 (5) substantial community involvement, including prospective employers, rehabilitation agencies, counseling services, churches and civic organizations, local and municipal governments, etc.

Analysis of the Approach

A mere outline of the Probation Sponsorship Program is not a sufficient description, of course. But it helps to have the big picture in mind before going into detailed discussion of each element. Now, let’s look at each element in detail.
(1) The Probation Order. Like traditional probation, the Probation Sponsorship Program begins with the order granting probation. But in the Probation Sponsorship Program, the order provides the vehicle to utilize many of the existing alternatives: drug or alcohol treatment, community service, counseling, restitution, victims’ compensation, payment of a fine, restrictions on activities, requirement of employment, etc. The list is limited only by the limits of imagination of the judge, defense lawyer, probation officer, prosecutor and other persons having an interest in the matter. The probation order also defines the relationship between the probationer and his or her sponsors. The sponsors are recruited by the prospective probationer. A well-written probation order is the foundation of Probation Sponsorship. It is the authenticating document which gives validity to the whole process. The signature of the judge makes the conditions of probation compulsory. The period of probation is set by the judge within the parameters established by law, and can be a part of a split sentence, including a tour of duty in boot camp.

(2) Probation Sponsors. The requirement of sponsors is the most significant idea in the plan. A copy of the Probationer Sponsorship Contract is attached. The idea is to recruit these significant volunteers at the critical time when the defendant’s fate is hanging in the balance. The volunteers will be persons who genuinely care for the defendant. They should be persons from his or her own community. Not more than one family member should be included. There should be no educational or social chasm between the defendant and his sponsors. The sponsors’ assignment is to make probation work. They do so by being a friend and advisor and staying in touch with the probationer. The sponsors encourage the probationer in his job, community service, financial obligations, required counseling and reporting. The sponsors attend the quarterly court sessions with the defendant. The sponsors agree to meet occasionally to learn how to do a better job as sponsors.

Let’s face it. The formation of morals occurs in the microcosm. Sigmund Freud taught us that conscience is formed by the introjection of the commands of the parents. Jean Piaget added the rational component of mutual cooperation with the peer group. Lawrence Kohlberg has developed the stages of moral development even further. But one thing is clear: Moral formation involves the sharing of the values of significant other people–people esteemed by the person involved. Our present system of central penitentiaries separates the defendant from the natural sources of moral formation: His family, neighbors, and community. Of course, separation from a bad milieu may be a good idea. But what kind of milieu is the central penitentiary? What dynamics of moral formation exist there?
The requirements (and selection) of probation sponsors recreates and gives emphasis to the natural sources of moral formation. It enforces wholesome role models and establishes a more desirable peer group. It provides the affective roles along with the authority roles. The judge and probation officer are freed to occupy the role of authority figures. The sponsors constitute the support group for the probationers. The probability of the probationer experiencing approval for successful efforts is increased.
(3) Continued Court Involvement. In order for the plan to work, the court must stay involved for a number of reasons. First, the certainty that the probationer will come back before the judge, and the uncertainty of what will happen at that time, are important motivational forces. Drug screens, with no pre-announced consequences for failure, can have a strong effect. More importantly, the judge can give appropriate recognition for a job well done. Rites of passage are important, and probationers need approval if they are successful. Early termination of probation for a model probationer, in open court, evoked tears of joy and pride in one session in my court. This evokes the kind of collective psychology that can produce mora l formation.

The quarterly meetings are an opportunity for a public review of the probationers’ performance. The opportunity for review of practical matters such as payment of court costs, fines and restitution, and review of community services, makes those things much more important to the probationer. Even after it became necessary that I discontinue many parts of this program in my earlier efforts, I have continued to use personal, in court, review of probationers with very good effect.
Gathering the group, with sponsors included, can have a beneficial effect. After all, we have weighted the group with “good guys” by having the sponsors attend. Formality and a compelling sense of reality about the whole thing, coupled with recognition for good performance and disappointment for poor performance, are key elements in group dynamics.
The increase in the amount of contact between the defendant and system with the opportunity for both positive and negative reinforcement should bring about a high degree of compliance. This should be coupled with a more imaginative, flexible approach to dealing with infractions of probation. Minor violations can be dealt with by very short periods of incarceration in the county jail, the addition of community service, and other similar measures. Over a period of time, it will become clear which defendants are totally lacking in the capacity to cope with society. Their probation should be revoked, and they should be dealt with appropriately by the Department of Corrections itself.
(4) Regular reports to Probation Officers. Of course, a key person in all of this is the probation officer. The regular visits with the probationer will enable the probation officer to spot potential problems, some of which may need to be dealt with in the formal court reporting session. The reality of the requirement of appearance before the judge by the probationer should make the probation officer’s job easier. The availability of cooperative sponsors who can be contacted in the event of default should also prove helpful.

(5) Community involvement. The final, and in some ways the most critical, component of the plan is the mobilization of community resources. The ways in which the communities, and various institutions within the community, can become involved are endless. My purpose, therefore, is to fire the imagination rather that to catalogue all the possibilities. The quarterly sessions can bring together a host of opportunities: Prospective employers and employment agencies, counselors and drug and alcohol rehabilitation services from the community, churches and civic organizations, local governments and charities interested in community service. The list goes on and on and must be tailored to the particular community. This is the point at which my earlier efforts were most notably unsuccessful. Although there was much interest in the program, and many were willing to help, even with the help of a very capable assistant, I could not personally handle all the details. This is the place where the Court Referral Officer fits, and I will now discuss the important role that the Court Referral Officer can play in the implementation of Probation Sponsorship.