Professor Ron Wright quoted in Wall Street Journal on the growing “DA Supervision” debate
Research | Comments Off
The Wall Street Journal
January 20, 2012
As district attorneys nationwide try to cope with shrinking state budgets, Oklahoma prosecutors have seized on a novel—and increasingly controversial—money raiser: running their own probation programs.
The state allows prosecutors to recommend that instead of going to jail or prison, offenders receive special supervision by district attorneys’ offices, which collect a $40 monthly fee from offenders. These programs, which have soared to 38,000 participants from 16,000 in 2008, are now larger than the state prison system’s traditional probation program, which often involves drug testing and mandatory counseling and covers 21,000 offenders.
But as the program known as “DA supervision” mushrooms, critics are asking whether prosecutors provide enough oversight to justify the fees, which totaled almost $14 million last year. There are few statewide standards governing who is eligible for such programs or how closely they should be monitored.
Some district-attorney programs “don’t provide any supervision that I’m aware of, and I mean any,” said Allen Smallwood, a former president of the Oklahoma Bar Association, who estimated that more than 200 of his clients have been placed under DA supervision.
Prosecutors say the program adds to public safety by covering people who might otherwise not be supervised at all, and by allowing district attorneys to maintain staffing in the face of a 23% decrease in state funding over the last three years.
But they recognize they need to “overcome the perception that this program is just about collecting money,” said Emily Redman, a prosecutor in Bryan County, Okla., who is chairwoman of the Oklahoma District Attorneys Council. The council plans to recommend a minimum level of supervision soon, she said.
While the Oklahoma program appears to be unique, budget woes have forced prosecutors nationwide to raise funds from offenders by, for example, seizing assets that are connected to crimes, said Scott Burns, executive director of the National District Attorneys Association.
Ronald Wright, a professor at Wake Forest University School of Law in North Carolina, called the Oklahoma program troubling. “It gives prosecutors an economic reason to increase the length of time for people to be on DA supervision,” he said.
There have been no high-profile cases in which people under DA supervision have committed violent crimes, defense lawyers said, and there are no data for the rate at which people commit crimes while in the program versus regular probation.
But a report requested by state officials and released last week found district attorneys’ offices don’t comprehensively assess new probationers to determine their risks and needs.
“The majority of DA’s offices do not have the resources to ensure the same levels of supervision as those provided by a probation officer working for” Oklahoma’s prison system, according to the report by the Council of State Governments Justice Center, a nonprofit organization that advises states on public-safety issues. DA supervision “may be inadequate for high- or moderate-risk offenders,” the report concluded.
Much of the growth in the programs has come from felons: There are about 10,500 under DA supervision, a number that has almost tripled since 2008. Defense lawyers said prosecutors too often supervise relatively serious drug offenders, including those caught using and manufacturing methamphetamine.
While judges have the authority to reject DA supervision, they rarely do so if prosecutors and defense lawyers agree to that form of probation. Tracy Schumacher, a trial judge in Cleveland County, Okla., is an exception, routinely rejecting DA supervision for drug offenders, as she believes it is often too lax. Greg Mashburn, the district attorney in Cleveland County, said Judge Schumacher recently told him she believes some drug offenders need closer supervision, like that provided by the prison system.
His office has supervised a growing number of drug offenders in recent years, but he agrees DA supervision is more suited to “low level felons who don’t have a lot of treatment needs.”
The Oklahoma legislature established the program in 2003 as a way to generate extra revenue for prosecutors. The state’s prison department also supervises probationers, typically higher-risk offenders, and likewise charges a $40 monthly fee.
Tim Harris, the district attorney in Tulsa County, said he was slow to implement the program because he was worried that some could raise conflict concerns. But budgetary pressures prompted him to launch the program in 2008, he said.
The Tulsa County office was supervising 1,042 felons by the end of 2010, up from 46 in 2008. Last year it supervised about 4,700 offenders, earning about $1.1 million in fees that offset a $1.2 million drop in state funding, Mr. Harris said his office supervises mostly lower-level, nonviolent offenders and monitors them closely. “This is not a program where I just take the money and run,” he said.