Convicted Offender Into The Community Criminology Essay

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The use of PROBATION and PAROLE is governed in part by competing philosophies, classicalism and positivism. In short, classicalists believe that offenders choose their actions and, therefore, in order to prevent (or deter) future criminal acts, such individuals should be punished. Conversely, positivists believe that individuals are forced into the choice of committing crime through no fault of their own and, therefore, the conditions and/or behaviours that caused the action should be remedied, ultimately resulting in rehabilitation of the offender.

Legislative acts and public sentiment further dictate the application of probation and parole. Therefore, universal and consistent definitions and applications of probation and parole are not available as the methods of punishment and governing philosophies have evolved and moved toward the twenty-first century.

While these factors contribute to a lack of consistency when dealing with probation and parole, the primary obstacle to detailing specific state protocols is that the practice of granting probation and/or parole at the state level is dependent on the discretionary powers of select individuals, such as the PROSECUTOR, the judicial authority, and the parole board, to name just a few. Information can be obtained regarding state-level agencies governing probation and parole from the American Probation and Parole Association or federal level parole practices from the U. S. Parole Commission.



Probation is a court-imposed SANCTION that "releases a convicted offender into the community under a conditional suspended sentence." This practice assumes that most offenders are not dangerous and will respond well to treatment. In fact, the average PROBATIONER is a first time and/or non-violent offender who, it is believed, will be best served by remaining in the community while serving out the sentence.

Probation system

The probation system is a method of institutional punishment that's based around giving people another chance instead of incarcerating them. Generally speaking, when a person is on probation, he is required to operate under a strict set of behavioural standards or risk a harsher punishment. When criminals are put on probation, it's usually based around a time limit of months or years, and people usually have to report to a specially-assigned officer who keeps track of their behaviour during the probationary period. Many people believe that probation systems have some advantages over incarceration, including less cost to the government and allowing less-deserving offenders to avoid a prison experience which might leave them mentally scarred or make them more likely to re-offend. Some people feel that the probation system is used too frequently, while others feel it isn't used often enough.

Many people on probation have to operate under certain restrictions. For example, the person may not be allowed to leave a certain state or district without special permission. Some people are also forced to undergo tests to see if they've been using controlled substances. Once people are in the probation system, if they're caught committing another crime, they will often face more severe consequences than other people, especially if the crime relates directly to their original offense.

Many different crimes may cause a person to be entered into the probation system, but it's usually reserved for less-severe offenses and people who haven't committed many crimes previously. For example, juvenile defendants can sometimes be more likely to receive probation than adults. Judges often take many different things into account when deciding whether or not to incarcerate or use the probation system, including things like the general attitude of the defendant, or whether the person is a parent.

The general concept of probation comes from an old practice in English courts of the medieval era of letting people buy back their freedom for a fee. This was part of an overall movement to reduce the harshness of punishments, giving people a chance to reform their behaviour. During those days, the death penalty was extremely common for many different crimes and the idea of leniency for criminals was much more revolutionary. Eventually, certain activists, including a man named John Augustus, started paying to have people released from jail if they seemed like good rehabilitation candidates, and this led to more modern probation systems that are administered by the state.


Historically, probation does not involve INCARCERATION, making it a front-end solution to address the overcrowding problem in U. S. prisons and jails. While the immediate goal of any probation program is rehabilitation reality, it is more a necessity than an instrument. As a result, other programs have been developed under the umbrella of community corrections that utilize elements of conditional release resulting in the expansion of probation-type programs.

Probation developed as a result of the efforts of philanthropist, John Augustus, to rehabilitate convicted offenders, although references to similar practices exist as early as 437-422 BC. It was favoured because it allowed judicial authorities a great deal of discretion when imposing sentences, thereby providing the opportunity to tailor sentences to a particular offender, in theory allowing for the greatest possibility of rehabilitation. While sentences of probation vary widely across and within jurisdictions, the maximum length of time that one can be under supervision is 5 years (60 months).

The functions of probation are difficult to state definitively. It is known that at its inception, John Augustus' goal was behavioural reform. This reflects the sentencing goal of rehabilitation. Fundamentally, it is believed that by allowing the offender to remain in the community, the system is providing a second chance. Further, support and guidance from probation officers may achieve the aim of guiding the offender towards a law-abiding existence.

Given that probation is no longer limited to first-time, non-violent offenders who pose minimal risk to the community, the reality is significantly different. Coupled with low confidence in the effectiveness of rehabilitative success and a burgeoning offender population, actual practices tend to be dictated by conflicting goals on both an individual and administrative level. In an aggressive bid to prevent jail or prison overcrowding several alternatives to incarceration have developed. Some such programs enable offenders traditionally incarcerated to be released into the community, thereby forcing a shift in focus from rehabilitation to control and supervision.

Intensive Supervised Probation (ISP)

ISP is a form of release into the community that emphasizes close monitoring of convicted offenders and imposes rigorous conditions on that release, such as the following:

Multiple weekly contacts w/officer

Random and unannounced drug testing

Stringent enforcement of conditions, i.e.,: maintaining employment

Required participation in treatment, education programs, etc.

Individuals on ISP are those who most likely should NOT be in the community. The restrictions placed on them are often excessive and the level of direct, face-to-face contact required is believed to significantly deter, or at least interfere, with any ongoing criminal activity.

Shock Probation and Split Sentencing

Shock probation/split sentencing is a sentence for a term of years, but after 30, 60, or 90 days, the offender is removed from jail or prison.

While these terms are used interchangeably, they are actually two different activities. In shock probation, the offender is originally sentenced to jail, then brought before the judge after 30, 60, or 90 days and re-sentenced to probation (Ohio scheme). In split sentencing, probation is part of the original sentence requiring no additional appearance before the judge (California scheme). Nonetheless, the terms refer to the same outcome me jail, some community.


Since probation is a conditional release, it can be revoked, or taken away, if the conditions governing release are not met (technical violation) or if a new crime is committed during the probationary period (new offense).

Probation revocation is initiated by the probation officer's belief that a violation warranting revocation has occurred. As a result of the 1973 case Gagnon v. Scarpelli (411 U.S. 778), the Supreme Court decided that where "liberty interests" are involved, probationers are entitled to retain certain due process rights. Such rights include: (1) written notification of the alleged violations; (2) preliminary (or PROBABLE CAUSE) HEARING at which a judicial authority will determine whether sufficient probable cause exists to pursue the case; and (3) if warranted, a revocation hearing.

If a revocation hearing is scheduled, probationers have the right to TESTIFY in their own behalf, may present witnesses, and may have an attorney present. While the Gagnon court was vague regarding the right to court appointed COUNSEL at a revocation hearing, most jurisdictions do provide the right to appointed counsel.

The standard of proof required at a revocation hearing is a "preponderance of the evidence", lower than that required at a criminal trial. Possible outcomes include return to supervision, reprimand with restoration to supervision, or revocation with IMPRISONMENT.

Standard Terms of probation

Terms of probation typically differ from jurisdiction to jurisdiction. There are, however, some standard terms of probation that various jurisdictions often share. For example, a person who is on probation is typically required to follow all laws and avoid committing crimes for the duration of the probationary period. In addition, a person is typically required to report to a probation officer when he's on probation, though the manner of reporting may vary. Usually, a person on probation is not permitted to leave the jurisdiction without his probation officer's permission, and he is typically prohibited from possessing a firearm during the probationary period.

In most places, standard terms of probation require a person on probation to maintain contact with his assigned probation officer. When probation has been granted in the case of a serious crime, the probationer, which is a person on probation, is typically required to meet with a probation officer regularly and in person. Often, however, a person who has been granted probation after a minor crime will be allowed to maintain communication with a probation officer via the phone or mail. Alternatively, he may be required to meet with his probation officer in person but less frequently.

Terms of probation typically require a probationer to stay out of trouble with the law as well. Not only is a probationer supposed to avoid any subsequent convictions, but he is also required to avoid arrest. Additionally, he is usually prohibited from possessing or carrying any type of firearm. This restriction holds true without regard to whether or not the probationer has a license to carry the weapon.

Often, the terms of probation a probationer faces also cover where he may go and with whom he may socialize. For example, he may be restricted to travel only within his jurisdiction and need the approval of a probation officer to leave the area. He may also be required to avoid contact with anyone who has a criminal record as well as people who are actively engaging in or planning criminal acts.

During the probation period, a person is usually expected to demonstrate that he can be law abiding and productive. For this reason, he may be required to maintain a job. He may also have to participate in community service activities or take anger management classes. Standard terms of probation often require a probationer to submit to drug tests as well, especially if his crime was drug related or committed under the influence of drugs.

Law of probation in India

Section S.562 of the Code if Criminal Procedure 1898, was the earliest provision to have dealt with probation. After amendment in 1974 it stands as S.360 of The Code of Criminal Procedure, 1974. It reads as follows:- When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour.

S.361 makes it mandatory for the judge to declare the reasons for not awarding the benefit of probation. The object of probation has been laid down in the judgment of Justice Howell in re B. Titus : S. 562 is intended to be used to prevent young persons from being committed to jail, where they may associate with hardened criminals, who may lead them further along the path of crime, and to help even men of mature years who for the first time may have committed crimes through ignorance or inadvertence or the bad influence of others and who, but for such lapses, might be expected to make good citizens. In such cases, a term of imprisonment may have the very opposite effect to that for which it was intended. Such persons would be sufficiently punished by the shame of having committed a crime and by the mental agony and disgrace that a trial in a criminal court would involve.

In 1958 the Legislature enacted the Probation of Offenders Act, which lays down for probation officers to be appointed who would be responsible to give a pre-sentence report to the magistrate and also supervise the accused during the period of his probation. Both the Act and S.360 of the Code exclude the application of the Code where the Act is applied. The Code also gives way to state legislation wherever they have been enacted.

Section 4 of the act provides for Probation

S.4 Power of Court to release certain offenders on probation of good conduct 

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour.

S. 6 of the same Act lays special onus on the judge to give reasons as to why probation is not awarded for a person below 21 years of age. The Court is also to call for a report from the probation officer before deciding to not grant probation.

The provision under the Code and the Act are similar, as they share a common intent, that, punishment ought not to be merely the prevention of offences but also the reformation of the offender. Punishment would indeed be a greater evil if its effect in a given case is likely to result in hardening the offender into repetition of the crime with the possibility of irreparable injury to the complainant instead of improving the offender.

Yet there are a few differences, which have been enumerated below. S.4 of Probation of Offenders Act S.360 of The Cr.P.C Any person may be released on probation, if he has not committed an offence punishable with death or imprisonment for life.(No distinction is made on ground of sex or age) Any person not under 21 years of age, if convicted of an offence punishable with imprisonment for not more than 7 years or when any person under 21 years of age or any woman is convicted of an offence not punishable with death or imprisonment for life may be released on probation. It is not necessary that the person must be a first offender. This section applies only when no previous conviction is proved against the offender.

Any magistrate may pass an order under this section. Magistrate of the third class or of the second class not specifically empowered by the state government had to submit the proceeding to Magistrates of the first class or Sub-Divisional magistrates. Supervision order may be passed directing that the offender shall remain under the supervision of a Probation Officer. No such provision.

Besides these two enactments, the Juvenile Justice (Care and Protection of Children) Act, 2000 also provides for the release of children who have committed offences to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, or any fit institution as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years.



Parole is the "conditional early release from prison or jail, under supervision, after a portion of the sentence has been served." This practice assumes that the offender successfully demonstrated conformity to the rules and regulations of the prison environment and shows an ability to conform to society's norms and laws.


The word, parole, derives from the French "parol" meaning "word of honour" and references prisoners of war promising not to take up arms in current conflict if released. How that concept came to apply to the early release of convicted, often violent, offenders is less clear. The first documented official use of early release from prison in the United States is credited to Samuel G. Howe in Boston (1847), but prior to that, other programs using pardons achieved basically the same outcome. In fact, as late as 1938, parole was simply a conditional PARDON in many states.

Alexander Maconochie (England) ran the Norfolk Island prison. During his tenure, he instituted a system whereby inmates would be punished for the past and trained for the future. He believed that inmates could be rehabilitated so he implemented an open-ended sentencing structure where inmates had to "earn" their release by passing through three stages, each stage increased their liberty and responsibilities. Inmates had an open time frame in which to earn the next level. Compliance advanced them; infractions resulted in a return to the previous stage, thereby lengthening the sentence. The open-ended sentences (today known as indeterminate sentencing) allowed the administration to ensure that when finally released, an offender's behaviour had been successfully reformed. Eventually, Maconochie was removed from his position under criticism that his program "coddled" criminals.

At about the same time, Sir Walter Crofton was developing a similar program in Ireland using "tickets of leave". The "Irish System" as it came to be known, employed a similar practice of allowing inmates to earn credits towards early release. However, once the "ticket of leave" was achieved, release from CUSTODY was conditional. The releases were supervised in the community by either law enforcement or civilian personnel who were required to secure employment and to conduct home visits. These "supervisors" represented the forerunner to today's parole officer.

In the United States, Zebulon Brockaway (Superintendent) employed elements from both the Irish and Great Britain models in managing the Elmira Reformatory during the 1870s. Brockaway is credited with the passage of the first indeterminate sentencing law in the United States as well as introducing the first good time system to reduce inmates' sentences. However, releasing the offenders was only part of the problem and initially, the greatest challenge was providing adequate supervision once release had been granted.

By 1913, it was clear some independent body was required to supervise inmates in the community and by 1930, Congress formally established a United States Board of Parole. It appeared, at least for awhile; that initiatives and programs were developing that could make parole a viable and useful tool of the criminal justice system. But unfortunate timing contributed ultimately to its downfall.

In 1929, the Great Depression hit the United States. An immediate result was a sharp increase in prison populations. However, the high cost of maintaining prisons as well as a lack of available personnel to staff them made new construction prohibitive and contributed to the popularity of parole. While alleviation of the overcrowding problem is often cited as a secondary (or latent) goal, the reality is that as a back-end solution, parole is vital to the maintenance of the correctional system.

With the onset of the twentieth century, philosophers began to examine the social and psychological aspects of criminal behaviour. This heralded a shift from classicalist thinking towards positivism. Under positivism, actions are believed to be caused by forces beyond one's control (such forces could be psychological, biological, or sociological in origin). Therefore, parolees were now viewed as "sick" and the parole department was charged with the responsibility of "fixing" them.

Positivism is consistent with a less punitive approach to sentencing and generally involves an indeterminate sentencing structure allowing for the possibility of early release if the offender demonstrates that they have been successfully rehabilitated. As such, it fit well with the Elmira system and the timing afforded officials the opportunity to use parole as a means to relieve the overcrowded conditions that had developed during the depression.

The fact that parole involves some incarceration suggests that the average parolee has committed a more serious crime than the average probationer and, hence, poses a greater risk to the community. Therefore, primary goals of parole must include crime deterrence and offender control. And given that most offenders will eventually return to the community, a rival goal is reintegration, or the facilitation of an offender's transition from incarceration to freedom.

Unfortunately, it appeared during the 1980s that parole was failing. Street crime rates during this period skyrocketed and in many cases, the crimes were perpetrated by individuals who were released into the community prior to the official expiration of their sentence. This reality led to the development of penal philosophies espousing "tough on crime" approaches and demanding "truth in sentencing". Such philosophies warned criminals, "do the crime, do the time" and resulted in radical changes to sentencing practices across the country that indicated a return to a more punitive sentencing structure.


Since parole is a conditional release, it can be revoked or taken away, if the conditions governing release are not met (technical violation) or if a new crime is committed during the probationary period (new offense). In this manner, it is similar to probation; however, it differs in that probation is governed by judicial decisions whereas parole is governed by administrative procedures. As a result of the administrative nature of parole, the revocation process is so varied among the jurisdictions.

In large part, however, most minor infractions are dealt with by the parole officer and may not necessitate involvement of the parole board. Some jurisdictions empower the parole officer to immediately take a parolee into custody for 24 (New York) to 48 hours (Pennsylvania) for purposes of obtaining an ARREST WARRANT. This practice is typically employed when the offender represents an immediate threat to public safety.

With respect to the legal protections afforded to parolees, the first case to explore this issue was Morrissey v. Brewer (1972). The Morrissey case explored the extension of due process rights of (1) written notice to parolee prior to general revocation proceeding; (2) identification of the violations being presented and any EVIDENCE being used to prove that the violation took place; (3) the right of the parolee to confront and cross-examine accusers (subject to exceptions) and (4) a written explanation for the decisions regarding the revocation of the parole and what evidence was employed in making that decision. Perhaps the greatest contribution of the Morrissey case was the creation of a two-stage process wherein first, probable cause that violations had occurred had to exist in order to go to the second stage, which was the actual revocation hearing.

Interestingly, the Supreme Court did not choose to create a bright line rule for the right to court-appointed counsel at a revocation hearing. For the most part, however, most jurisdictions have followed the decision in Mempa v. Rhay (1967). While this case specifically dealt with the rights of probationers, it has been applied recently to parolees as well. Basically, the Supreme Court wrote that "any indigent is entitled at every stage of a criminal proceeding to be represented by court-appointed counsel, where substantial rights of a criminal ACCUSED may be affected." In sum, the Supreme Court considered the liberty interests of the probationers and decided that a probation revocation hearing constituted a "critical stage" which dictated adherence to due process protections. This rationale has consistently been extended to include parole revocation hearings as well.


As of 2001, 15 states (Arizona, California, Delaware, Illinois, Indiana, Kansas, Maine, Minnesota, Mississippi, Ohio, Oregon, New Mexico, North Carolina, Virginia and Washington) and the Federal government have eliminated parole programs in lieu of a determinate model of sentencing reflective of a more retributive approach to punishment. (New York Gov. George Pataki proposed making New York the sixteenth state)

Such an action may seem warranted given the apparent inability of the system to guarantee the protection of the citizens the end result is predictable. Overcrowding still represents the greatest challenge to the correctional industry. In fact, three states (Connecticut, Colorado, and Florida) reinstituted the parole boards after eliminating them due to the unforeseen overcrowding problems. The reality is that removal of parole ultimately leads simply to a shift in power from parole boards to prosecutors, in that the option most often exercised in states without parole is probation (see above).


There are several differences between parole and probation. Most of the misunderstanding regarding the words is that probation officers may also be called parole officers. Essentially the job is the same. The correct term is usually probation officer, even though most people on parole may not exactly be on probation.

Probation is part of a sentence for committing a crime. Essentially, a judge decides how much time a person must serve in jail, guided by the laws of the state, and how much time after incarceration is spent on probation. Sometimes a judge will only sentence a person convicted of a minor crime to one to several years of probation.

While on probation, a condition of the sentence may be to have weekly or monthly meetings with a probation officer. Other conditions might be applied; a person might not be able to drive, for example, or might have a curfew. He or she must also not commit further crimes while on probation, or it may be violated. This empowers the courts to send the person to jail to serve the length of the original sentence, and to serve any additional time for new crimes.

Parole, on the other hand, is granted to people who are in jail. With many crimes, sentencing has a maximum amount of years imposed. These years in jail, however, can be shortened if the person convicted of a crime behaves well in prison. After a time, a person in prison "comes up" for parole.

The decision to grant a person parole is made by a parole board. If the person has done well in prison, and early release is not contested, the board can shorten prison time. There is great motivation to release nonviolent offenders, since many jails are overcrowded.

When a person receives parole, he or she is often bound by many conditions. For example, committing a crime violates the terms of parole and can result in a return to prison. Even failing to regularly meet with a parole officer, (also called a probation officer), or leaving the jurisdiction without appropriate application and notice can be seen as violating parole. A violation means going back to prison to serve out the rest of one's sentence.

Being on parole is quite similar to being on probation. The person expects a greater degree of supervision and is bound by the parole board or the court to behave in an exemplary fashion. Conditions of both must be met or one may end up in jail. Because of these similarities, the terms are often confused.


Probation and parole are intended to keep people out of prison, but poor administration means they just keep refilling it

The 2.3 million or so Americans currently doing time in prison have been getting a lot of attention of late, mostly because there are far too many of them and they are costing far too much. Far less attention has been paid to the additional 5 million Americans on parole, probation or some other form of correctional supervision. This is unfortunate as this latter group's numbers have been increasing at a much faster rate and, as it turns out, have been helping to swell, rather than shrink, the very prison population they are supposed to reduce.

Parole and probation are intended as alternatives to incarceration for eligible offenders not deemed a threat to public safety, with parole being granted at the end of a stint in prison and probation generally in lieu of one. But because the system, (or, more accurately, lack of a system) is overburdened, underfunded and haphazardly managed, it frequently functions just as well as a feeder system, ensuring prison beds do not stay empty for long. In fact, parole violators accounted for over a third of all prison admissions in 2005 and "half the US jail population is the consequence of failure of community supervision."

This is an unfortunate state of affairs at a time when no one (and no state budget, certainly) has money to be wasting. The average daily cost of supervising a probationer in the fiscal year 2008 was $3.42, while the average daily cost of keeping an inmate in prison is $78.95. Obviously, if the offender is not a danger, it makes more sense to get him (it nearly always is "him") back on his feet and as far away from the dependency model that is prison as soon as possible.

Even the so-called "tough on crime" contingent is starting to see that rehabilitation is a more viable alternative, fiscally at least, than prolonged incarceration. Yet, in all but a few jurisdictions, little or nothing is done to help keep probationers on the straight and narrow, or to help former prisoners reintegrate. In some ways, the system seems guaranteed to fail both them and itself.

There are two ways parolees and probationers end up in prison: committing a new crime or committing a technical violation of their probation terms. Exact numbers are hard to come by, but analysts estimate that only about half of violations are the result of a new crime. Ideally, both scenarios can be avoided; the former by establishing adequate support systems to help offenders get jobs and get off drugs; the latter by exercising some common sense regarding what constitutes a violation.

Offenders who fail to show up at their meetings because they cannot pay the probation should not be sent to prison. Neither should drug-addicted offenders who cannot participate in the required treatment program because it is not available in their area; nor unskilled and uneducated offenders who can't find gainful employment; nor indigent offenders who are unable to establish a stable residence and support any dependents; nor illiterate offenders who cannot fill out the right forms. Yet, these kinds of "violations" are often enough to put people in prison or get them sent back to prison, as this story told by an ex-offender illustrates.

"When I was in the halfway house, a very nice man, James, living there was working at the Sacramento Bee as a janitor. James' wages supported his wife and children and he was well on his way to a successful re-entry. Because he had great difficulty with writing and arithmetic, he was late in turning in his reports to his probation officer three months in a row. One morning when he was at work, James was thrown over a desk, handcuffed, and dragged off to prison, costing him his job and leaving his family without his pay check.

"James had not committed a new crime: he hadn't complied with the paperwork requirements of his parole. The decision to send him back to prison was a waste of taxpayers' money, and a tragedy for James and his family."

On the flip side, many offenders can, and do, get away with multiple violations without sanction, which encourages more bad behaviour until the transgressions reach a tipping point and they get in front of the wrong judge in the wrong mood, which locks them up for 20 years. It was this inconsistency that led Judge Steven Alum to set up Hawaii's Opportunity Probation with Enforcement program (Hope), which has proven to be a highly effective means of reducing recidivism and getting offenders off drugs. Success relies on the concept of swift and certain punishment, or "flash incarceration", so that a violation will result in a few days in prison (or a weekend in prison, if you have a job), but will spare the offender years or even decades of prolonged and counterproductive confinement.

So far, however, other states have been reluctant to adopt Hope's model, even though it has succeeded in doing exactly probation is supposed to do: keep more people out of prison.