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Investigating the Assignment of Probation Conditions: Heterogeneity and the Role of Race and Ethnicity

Abstract

Objectives

Explore the typical “packages” of probation conditions and assess general and interactive racial and ethnic disparities in assignment to these “packages”.

Methods

Latent class analysis (LCA) is applied as an exploratory modeling technique to uncover the nature of heterogeneity in probation conditions using novel and detailed data for over 2100 adults convicted of a felony in two urban counties. Class enumeration procedures use the Bayesian Information Criterion and correct for potential violations of conditional independence assumption. Model verification is assessed using mean posterior probabilities, confidence intervals for class differentiability, split sample checks and multiple iterations with random starting points. The influence of race and ethnicity, along with other legal and extralegal factors on assignment of probation condition “packages” identified is estimated using multinomial regression.

Results

Meaningful and discrete classes that ranged in their likely combinations, type, and number of conditions are identified by LCA with high assignment accuracy. Results from regression models suggest race and ethnicity play a role in assignment of probation conditions. Young black offenders and black drug offenders are particularly more likely to receive a wider range of and more restrictive conditions.

Conclusions

LCA has the potential of classifying the multiple components of probation sentences without masking the heterogeneous nature of the conditions and imposing classification systems. Heterogeneity in the assignment of probation conditions represents a source of racial and ethnic sentencing disparities.

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Fig. 1
Fig. 2

Notes

  1. 1.

    The Minnesota Sentencing Commission states that incarceration sentences should be neutral with respect to the race, gender, and social or economic status (e.g. employment, educational attainment, living situation, and marital status) of convicted felons. All common offenses are given a ranking between 1 and 11 of severity level. The criminal history calculation includes all felony offenses from the last 15 years, ranging from 0.5 to 2 points depending on their severity, all gross misdemeanors from the last 10 years (typically 0.25 points), and felony juvenile adjudications (maximum of 1 point unless the presumptive sentence was prison). Offenders receive an additional point if they are under custody at the time of the current offense. Each cell in the grid provides the presumptive sentence length in months, and the range within which a judge may sentence without the sentence being considered a departure. The cells in the bottom left corner of the grid, including severity levels I and II for criminal history scores 0–5, severity levels III and IV for criminal history scores 0–3, and severity levels V- VII for criminal history scores 0–2, are given a presumptive stayed sentence.

  2. 2.

    While a jail sentence may be imposed, it is not always executed and may be replaced with a community sanction.

  3. 3.

    The description of Minn. Stat. Ann. §609.135 applies both to current practices and to 2009 when the sample in the present study was collected. In 2009 Subd. 8 was repealed which stated that a defendant’s obligation to pay court-ordered fines and fees will survive for six years from the date of expiration of the stayed sentence. Since then, the only update to the statute has been an introduction of a pilot project in 2014 which changed the standards for ordering offenders charged with domestic abuse to use an electronic monitoring device and indicated that violations of location restrictions in situations where the victim and the defendant are both mobile does not automatically constitute a violation of conditions. For 2009 felony offenders, electronic monitoring was explicitly specified as a condition of probation in only a handful of cases, and was more commonly given as an alternative for those eligible to avoid part or all of their jail terms.

  4. 4.

    When the statutory maximum is less than four years, judges may exceed the statutory maximum and give probation sentences of up to four years.

  5. 5.

    Only 16 offenders in the sample (0.007%) received unsupervised probation.

  6. 6.

    Offenses without a severity level ranking, usually because they are rare or new, are not included in analysis. 107 total criminal sexual conduct cases (55 sentenced to probation) were coded but not included in the sample. Criminal sexual conduct is treated differently by the guidelines, as these cases have their own separate sentencing grid, severity classification system, and different eligibility for terms of probation. Felony DWI cases were also excluded since they have certain sentencing requirements and severity level 7 is reserved solely for this offense.

  7. 7.

    Minnesota’s sentencing guidelines are intimately tied to its correctional population (Robina Institute of Criminal Law and Criminal Justice 2017). Minnesota has one of the lowest prison population rates, but ranks one of the highest in probation (Kaeble and Bonczar 2017).

  8. 8.

    There may have been clerical errors that cause omissions of conditions of probation in the court documents or changes that were not updated in the system. However, it seems unlikely that these types of errors would result in systematic differences that would bias the results in a significant way.

  9. 9.

    Information is not available on Minnesota Trial Court Public Access website or otherwise on the specific court clerk writing each court document.

  10. 10.

    Hispanic offenders were not evaluated for the interaction effect of being young and Hispanic or a Hispanic drug offender given power issues. Only 39 offenders in the sample were Hispanic and between the ages of 18–21, and 31 were Hispanic drug offenders.

  11. 11.

    Levels 10 and 11 are for murder offenses which are not included in the sample.

  12. 12.

    The number of years sentenced to probation is missing for 17 observations (less than 0.008% of the sample) and were omitted from related analyses. No other variables are missing in the data.

  13. 13.

    The two percent without explicit basic probation conditions are likely a result of clerical error in the court documents. It seems unlikely that these types of errors would result in systematic differences that would bias the results in a significant way.

  14. 14.

    Drug-involved offenders account for a much larger percentage of the criminal justice population than those convicted of a drug crime (Belenko et al. 2013; Office of National Drug Control Policy 2014). The presentence report is likely to provide information to judges on the offender’s involvement with drugs and alcohol, regardless of their convicted crime.

  15. 15.

    The entropy scores are a summary measure of how good classification is, ranging from 0 to 1. The closer the values are to 1, the better the classification certainty. More indicators are generally associated with higher classification certainty. Therefore a lower entropy score associated with a higher number of indicators suggests problems with the model, as is the case when the drug and alcohol conditions are used as two separate indicators.

  16. 16.

    Although they had a relatively low correlation (0.166), the model was also estimated by combining the employment and school related indicators, as these conditions may potentially tap into the same construct and not necessarily provide additional information as two separate indicators. However, the BIC still clearly identified a five group model as the best fit and indicating that, unlike the drug and alcohol related conditions, maintaining employment and participating in employment counseling tap into separate types of conditions and they do not generate extraneous classes. Given this and their relatively low correlation they were left in the model as separate indicators, unlikely to violate the conditional independence assumption.

  17. 17.

    Jail confinement is separate from the probation “package” itself since it constitutes a separate element of the overall sentence. The classes are representative of the combinations of types of probation conditions assigned, but the overall sentence may include other elements which may change its harshness. Jail sentences may be imposed, but not necessarily executed and the lengths of confinement may not reflect actual time served.

  18. 18.

    The classes did not substantially differ in their likelihood of having a prison sentence length pronounced at sentencing, with similar distributions as the full sample (0.588). Limited-Low Financial: 0.588, Limited-Restorative: 0.560, Multiple-Treatment: 0.667, Multiple-Restrictive: 0.586, Multiple-Mixed: 0.582.

  19. 19.

    Unlike the overall number of conditions which may not operate in an additive manner to imply harshness, additional types of conditions are more likely to intrude on multiple domains of an offender’s life.

  20. 20.

    Appendix 2 provides descriptive statistics for all the classes.

  21. 21.

    The table is not completed for visual simplicity. All coefficients that are not shown in the text are available upon request.

  22. 22.

    Drug offenders were most likely to fall into the Limited-Low Financial “package” and the Multiple- Mixed “package”. Supplemental analyses (available upon request) suggest that the severity of the offense and the county sentenced explain assignment into one of these “packages” over the other.

  23. 23.

    In Minnesota, when probationers violate any condition of probation the probation revocation process may be initiated up to six months after the end of the probation period (Mitchell and Reitz 2014). Probation terms may also be extended up to two years for failing to pay restitution at least 60 days before the term of probation expires, or for those deemed likely not to pay by that time (Minn. Stat. Ann. §609.135). It can be extended up to three years if the probationer has not completed any of the court-ordered treatments at least 60 days before the term of probation expires or is likely not to complete treatment by that time (Minn. Stat. Ann. §609.135). Of offenders sentenced to probation in 2009 in Minnesota, 16% had their probation revoked within five years (Minnesota Sentencing Guidelines Commission, 2016). Ramsey County has a relatively high revocation rate especially for technical violations of probation, demonstrating the potential impact that the assigned packages of probation conditions from which violations may happen can have (Ruhland and Alper 2016).

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Appendices

Appendix 1

See Table 8.

Table 8 Frequency of conviction offenses

Appendix 2

See Table 9.

Table 9 Descriptive statistics by class

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Kimchi, A. Investigating the Assignment of Probation Conditions: Heterogeneity and the Role of Race and Ethnicity. J Quant Criminol 35, 715–745 (2019). https://doi.org/10.1007/s10940-018-9400-2

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Keywords

  • Probation conditions
  • Latent class analysis
  • Sentencing packages
  • Disparities
  • Race/ethnicity