By David A. Tapp
In 2012, Kentucky's General Assembly enacted sweeping legislation which substantially altered Kentucky's existing controlled substances statutes and changed some sentencing policies.
The governor and the General Assembly emphasized the importance of decreasing Kentucky's prison population by shifting to a probation-oriented strategy. The legislature authorized a trial effort utilizing graduated sanctions as part of probation supervision.
Kentucky's Supervision Motivation Accountability Responsibility and Treatment (SMART) program, administered by the Administrative Office of the Courts in cooperation with the Department of Corrections, is similar to Hawaii's successful HOPE program. It requires probation violations to be dealt with swiftly, certainly, consistently and proportionately.
That has certainly not been the model in Kentucky. Many defendants are rarely, if ever, drug tested and infrequently have face-to-face contact with their probation officers. Violations often go unreported to the courts for unsatisactory periods.
Potential SMART defendants are referred by prosecutors, defense counsel, probation officers and the court itself. It is limited to high-risk, high-need defendants. A validated risk assessment tool and the defendant's pre-sentencing conduct while on bond are used to determine risk level. Also, courts may transfer regular probationers into SMART instead of revoking their probation.
Participants face frequent and unscheduled reporting and drug testing. They must verify they are meeting their probation requirements — such as pursuing education, seeking employment, working, or attending drug treatment — and submit to a drug test.
Sanctions occur immediately and for every violation. In contrast to regular probation, most SMART participants with the advice of counsel, acknowledge the violation and accept time served or a contempt sentence. They then resume supervision.
Preliminary data show that SMART is working.
Morehead State University professor Lisa Shannon evaluated SMART after its first official year. Participants tested positive for drugs at a much lower rate than regular probationers (1.6 percent compared to 29 percent). This result held, despite SMART participants being tested more frequently.
Further, participants committed probation violations less frequently than their regular probation counterparts (21.2 percent versus 29.7 percent). Similarly, regular probationers were over three times as 1ikely as SMART participants to he arrested for new offenses (33 percent versus 106 percent). All of the above is true even though SMART participants are higher risk.
Since SMART relies on swift, certain and sure consequences for violations, participants were incarcerated for probation violations at a higher rate than regular probationers (15.1 percent versus 9.3 percent). But participants spent less time in jail (32.5 days versus 118.1 days). This reflects SMART's emphasis on swift and graduated sanctions. It also translates into dollars saved by state corrections and county jails.
At least 19 states have adopted some form of the HOPE/SMART model because it works and because there is a need to develop a better supervision strategy for high-risk, high-need probationers.
Members of the General Assembly familiar with this preliminary data are encouraged. SMART judges are also encouraged. Perhaps, if year two research is favorable, there may be HOPE for Kentucky's most challenging probationers.