Testimony from:
Christi Smith, Senior Fellow, Criminal Justice and Civil Liberties, R Street Institute

REGARDING SB 4, “An Act to Amend Title 11, Title 13 and Title 29 of the Delaware Code Relating to the Criminal Justice System, Including Probation.”

June 28, 2023

Delaware Senate Corrections and Public Safety Committee

Chairwoman Pinkney and members of the committee,

Thank you for your time today. My name is Christi Smith, and I am a senior fellow in the criminal justice and civil liberties program at the R Street Institute. I am also a former adult probation and parole officer and a current member of the Bucks County (Pennsylvania) Reentry Coalition’s executive committee.

R Street is a nonprofit, nonpartisan public policy research organization. Our mission is to engage in policy research and outreach to promote free markets and limited, effective government in many areas, including criminal justice reform and civil liberty issues. This is why we find Senate Bill 4 noteworthy. While we support the spirit, intent, and many provisions in SB 4, we believe the measure requires some adjustments—particularly to Sections 4 and 5, related to supervision and probation—to achieve the appropriate balance between public safety and enhancing opportunities for individuals to successfully complete their term of supervision. 

The proposed legislation would significantly reduce jail and community supervision populations and save taxpayer dollars.[1] Many of the amendments also bring Delaware’s supervision policies and practices in line with evidence-based practices.[2] The bill includes the tailoring of supervision conditions to the individual in lieu of the onerous general conditions of supervision currently in place. Allowing officers to check in with low-risk individuals via audiovisual or audio-only devices reduces employment barriers and allows officers to prioritize face-to-face meetings with higher-risk individuals. Current research bolsters incentivizing compliance with earned credits and limiting the use of incarceration for pending violation proceedings and technical violations.[3] The inclusion of data collection provides the requisite feedback loop needed to assess the legislation’s impact. This insight is critically important to the consideration of current and future policy and practice changes.

The notion that smarter supervision strategies can enhance public safety and reduce recidivism is not new. Explosive growth in carceral and community supervision populations, coupled with a stagnantly high rate of recidivism, prompted the American Probation and Parole Association (APPA) to recommend comprehensive strategies to promote compliance and effectively address alleged violations of supervision more than a decade ago.[4] But caseloads continue to soar, as jurisdictions have been slow to adopt research supported changes that enhance the efficacy of supervision..[5] Many individuals continue to cycle through the system.[6] Technical violations of probation and parole have long been acknowledged as drivers of mass incarceration.[7] Additionally, given the detrimental impact of even a short jail stay, individuals are released even less equipped to comply with the conditions of supervision—some of which are unrelated to the person, their crime or what they need to do to return to law-abiding behavior.[8]

Ensuring that individuals on community supervision have the resources to comply with the terms of their sentence can enhance their chances of success, improve public safety and negate the perception that probation is a trap.[9] The proposed bill has addressed much of this; however, provisions in Section 4 preclude officers from assessing the need for resources and detecting unlawful behavior by restricting their ability to conduct drug tests and impose sanctions for personal drug use. Eighty percent of Delaware’s incarcerated population experiences substance abuse issues, some of which might not be indicated by the crime committed.[10] Two common reasons for technical violations in Delaware include substance use and noncompliance with treatment.[11] Absent drug testing and community-based sanctions to encourage substance abuse evaluation or treatment, officers can neither provide the support needed by the client nor protect the community from the effects of unaddressed substance abuse.

According to the APPA, some of the core services of parole designed to protect the public include investigation, immediate response to violations and treatment services.[12] Unfortunately, under the current phrasing of the bill, officers are unable to fulfill these responsibilities since drug tests are frequently used as an investigative tool to determine the need for substance use evaluation or treatment. They are also unable to provide an immediate response or treatment services without the availability of community-based sanctions.

Further, provisions found in Section 4 of the bill support continued illegal activity. The only condition that the APPA recommends be universally applied to all probationers is that they should lead a law-abiding life during the term of supervision.[13] The sanctioning of personal drug use by the proposed bill language directly opposes this minimum expectation of compliance and runs contrary to the primary purposes of community supervision—which are to rehabilitate and reduce the likelihood of future criminal behavior.[14]

While probation term limits are a suggested evidence-based strategy, the proposed reduction from two years to one for violent felonies in Section 5 is problematic. There is no national standard establishing the appropriate length of probation for a given crime, but the term should be long enough to “provide accountability proportional to the underlying criminal offense, connect people to needed treatment and services and enabling individuals to complete programs such as cognitive behavioral therapy and counseling that have been shown to reduce the risk of re-offending.”[15]

Reducing a probation term to one year, coupled with earned compliance credits, permits a person convicted of a violent, serious offense to serve a mere six months on probation. This leniency conveys to individuals and their victims that the offense is not as serious as facts would otherwise indicate. The lack of accountability and proportionality to the crime does not deter future criminal behavior, nor does it promote the fairness and efficiency of the judicial process for victims, witnesses or community members.[16]

Most of the suggested amendments to SB 4 are rooted in the current body of probation, parole and community supervision research and would substantially enhance community supervision practices in the State of Delaware. Shrinking and strengthening community supervision is critical to improving public safety, prioritizing resources for the most high-risk offenders and decreasing the overuse of violation proceedings and incarceration for minor issues of noncompliance.[17] When individuals are afforded the opportunity to succeed with the least restrictive conditions of supervision that are responsive to their risks and needs, they will no longer be trapped in a system that is designed for them to fail.[18]

However, the current language in Sections 4 and 5 will have a detrimental effect on the individuals on supervision, the officers who supervise them and the larger community. A more balanced approach— including the use of drug tests at the discretion of the officer, the pursuit of community-based resources when needed and the availability of non-carceral sanctions to encourage compliance—are recommended. Similarly, term limits for violent felonies should remain at two years. This is a reasonable amount of time, especially with the provision of compliance credits, to hold the individual accountable, assess the rehabilitative capacity of the individual, provide necessary programming and reduce the potential threat to public safety.

Thank you,

Christi Smith
Senior Fellow, Criminal Justice and Civil Liberties
R Street Institute
[email protected]

[1] Erica Marshall and Javonne Rich, “Delaware’s Broken Probation System: The Urgent Need to Reform in the First State,” American Civil Liberties Union of Delaware, August 2020. https://www.aclu-de.org/sites/default/files/probation_report_final.pdf.

[2] Pamela Casey et al., “An Evidence-Based Approach to Promoting & Enforcing Compliance with Conditions of Probation Supervision,” National Center for State Courts, March 2017. https://www.ncsc.org/__data/assets/pdf_file/0021/25293/ncsc-csi-brief-3-27-17.pdf.

[3] American Probation and Parole Association, “Effective Responses to Offender Behavior: Lessons Learned for Probation and Parole Supervision,” National Center for State Courts, Pew Charitable Trusts, 2013. http://www.appa-net.org/eWeb/docs/APPA/pubs/EROBLLPPS-Report.pdf.

[4] Ibid.

[5] Chris Fox et al., “A Rapid Evidence Assessment of the Impact of Probation Caseloads on Reducing Recidivism and Other Probation Outcomes,” Probation Journal 69:2 (June 2022), pp. 138-158. https://journals.sagepub.com/doi/epub/10.1177/02645505211025595.

[6] Kira Lerner, “The Revolving Door: Probation, Incarceration, and the Opportunity for Reform,” Arnold Ventures, Dec. 6, 2021. https://www.arnoldventures.org/stories/the-revolving-door-probation-incarceration-and-the-opportunity-for-reform.

[7] Human Rights Watch, “Revoked: How Probation and Parole Feed Mass Incarceration in the United States,” July 31, 2020. https://www.hrw.org/report/2020/07/31/revoked/how-probation-and-parole-feed-mass-incarceration-united-states.

[8] Ibid.

[9] Jennifer Miller, “The Endless Trap of American Parole,” The Washington Post, May 24, 2021. https://www.washingtonpost.com/magazine/2021/05/24/moral-outrage-american-parole.

[10]  Ibid; Marshall and Rich. https://www.peoplenotprobation.com/people-not-probation/about.

[11] Ibid.

[12] “Position Statement,” American Probation and Parole Association, January 2002. https://www.appa-net.org/eweb/Dynamicpage.aspx?&webcode=IB_PositionStatement&wps_key=8251643f-fb4f-4c73-ae85-67b87546e895.

[13] “Position Statement,” American Probation and Parole Association, January 1987, https://www.appa-net.org/eweb/Dynamicpage.aspx?&webcode=IB_PositionStatement&wps_key=24e1c1d8-c753-4710-8f89-6085c6191128.

[14] “Parole and Probation Law,” Justia Criminal Law Center, October 2022. https://www.justia.com/criminal/parole-and-probation/#:~:text=Probation%20and%20parole%20are%20privileges,will%20commit%20a%20new%20offense.

[15] Jake Horowitz, “States Can Shorten Probation and Protect Public Safety,” Pew Charitable Trusts, December 2020. https://www.pewtrusts.org/-/media/assets/2020/12/shorten_probation_and_public_safety_report.pdf.

[16] Marie Manikis, “The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions,” Osgoode Hall Law Journal 59:3 (2022), pp. 587-628. https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=3812&context=ohlj.

[17] Jake Horowitz, “Five Evidence-Based Policies Can Improve Community Supervision,” Pew Charitable Trusts, January 2022. https://www.pewtrusts.org/-/media/assets/2022/02/community_supervision.pdf.

[18] C. J. Ciaramella and Lauren Krisai, “The U.S. Probation System Has Become a Quagmire,” Reason, March 2023. https://reason.com/2023/01/26/the-u-s-probation-system-has-become-a-quagmire.