Use swift, certain, and proportionate sanctions
Research demonstrates that offenders are more responsive to sanctions that are swift, certain, and proportionate rather than those that are delayed, inconsistently applied, and severe. In order to effectively change behavior, consequences for violations must be communicated in advance to create a clear deterrent for non-compliant behavior; responses to violations must occur as soon as the violation is identified so the individual can link the sanction to the behavior; all violations must receive a response, even if that response is an informal conversation with the individual, rather than waiting for the violations to pile up to address the behavior; and the response must be proportionate to the behavior.
Many states incorporate these principles by requiring parole and probation agencies to use administrative sanctions in the community to proactively change behavior. These include establishing time limits on how long a person can be incarcerated for a technical violation, allowing short-term jail sentences for certain conduct, and requiring an individual be seen for a revocation hearing in a timely manner.
In Nevada, NPP has begun to implement swift, certain, and proportionate sanctions through the use of graduated sanctions. While NPP has developed a graduated sanctions matrix, officers’ use of the matrix is inconsistent across the state and individuals are being revoked for a wide range of conduct depending on their location.
Additionally, if an individual violates the conditions of their supervision, they may be revoked to serve their full sentence of the underlying offense. This is true for both technical violations, new charges, and absconding behavior. The same response for such a diverse range of conduct does not effectively change offenders’ behaviors and make communities safer.
Incorporate rewards and incentives Research shows that encouraging positive behavior change through the use of incentives and rewards can have an even greater effect on motivating and sustaining change than using sanctions alone. Research finds that to effectively change behavior, rewards and incentives for prosocial behavior should be utilized four to five times more often than sanctions. At least 15 states have implemented earned discharge policies over the past decade that allow offenders to earn time off their supervision term for good conduct, resulting in reduced caseloads while encouraging positive behavior.
In Nevada, prosocial behavior is incentivized through the use of earned credits. Probationers can earn credits for participation in treatment or educational programs. However, parolees are not eligible for these types of credits. Parolees receive credits only for payments of restitution and supervision fees. Additionally, the way that parolees receive credits does not function as an incentive. Parolees receive credits in advance of earning them on the assumption that the individual will comply with restitution and supervision fees. If the person is not in compliance with those conditions then credits are forfeited. This is in contrast to probationers who receive credit once they are in compliance with restitution, supervision fees, and now treatment or educational programs.
Lastly, early termination from supervision is an option only for probationers, but the decision is left entirely to the discretion of the supervising officer as there is not a formalized process in administrative regulations or in statute in Nevada.
Recommendation 17: Expand the use of swift, certain, and proportional sanctions
The ACAJ found that revocations of community supervision are one of the main drivers of the growth of the prison population. Thirty-nine percent of individuals admitted to prison in 2017 were sent to prison for violations of community supervision. From 2008 to 2017, the number of parole violators admitted to prison increased 43 percent and probation revocations admitted to prison increased 15 percent. Further review found that 34 percent of admissions to prison from community supervision were for technical violations, rather than for absconding or a new felony or misdemeanor charge.
Research on behavior change has found that responding to violations with immediacy, certainty, and proportionality interrupts negative behavior more effectively than delayed, random, and severe sanctions. In 2018, NPP began to implement graduated sanctions to respond to technical violations of community supervision. Several of the recommendation below reflect changes NPP has already begun incorporating into their supervision practices. However, opportunities exist to ensure Nevada’s use of swift, certain, and proportional sanctions continues.
The ACAJ recommends:
a. Requiring NPP to use graduated sanctions when responding to technical violations.
b. Defining a “technical violation” as any alleged violation of supervision that is not a new felony offense, gross misdemeanor offense, or absconding, as NPP currently defines it.
c. Defining “absconding” as non-reporting or no communication with NPP for a continuous period of at least 60 days, as NPP currently defines it.
d. Focusing conditions of supervision on behavior most closely tied to public safety by removing consumption of any alcoholic beverages from the standard conditions list.
e. Prohibiting the following conditions from being the sole grounds for revocation (multiple violations of such conditions may be used):
i. Consumption of any alcoholic beverages
ii. Positive results from a drug or alcohol test
iii. Failure to follow any directives of the supervisor related to mental health or substance abuse evaluations or participation in a treatment program
iv. Failure to seek and maintain employment
v. Association with an individual who has committed a felony offense
vi. Failure to pay fines and fees
vii. Failure to report changes in residence
Recommendation 18: Limit the period of incarceration resulting from a revocation for technical violations
In 2017, probation violators who were released from prison had served an average of almost 20 months in custody as a result of the revocation, up seven percent from 2012. Parole violators released from prison in 2017 served an average of 9.8 months, up 92 percent since 2012.
Additionally, the ACAJ found that 34 percent of community supervision returns to prison were sent to prison for technical violations of supervision in 2017. The median time spent in custody awaiting a probation revocation in Washoe County was 2.3 months after filing a violation report.
Approximately 27 percent of probationers who were eventually revoked in Washoe County had to wait more than six months from the filing of a violation report, including approximately 11 percent who waited over a year.
The ACAJ recommends:
a. Restricting the period of incarceration resulting from a technical violation of probation or parole rather than revocation to prison for the remainder of an offender’s sentence, as follows:
Revocation Number Limited Time Period of Incarceration
1st Technical Revocation Up to 30 days
2nd Technical Revocation Up to 60 days
3rd Technical Revocation Up to 90 days
4th and Subsequent Technical Revocation Up to remainder of sentence
b. Limiting the number of days a probationer can be held in custody awaiting resolution of a revocation due to a technical violation to 15 days following arrest