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A Killer Goes Free Part 3: Shock probation has allowed thousands to avoid prison

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A 5-year study shows that more than 10,000 prisoners -- most of them felons -- have been released under shock probation.

By Lisa King

Since 2006, the state of Kentucky has used shock probation, the program that last year allowed for the release of admitted killer Tonya Nicole Brown from state prison, to send 10,006 convicted criminals back into public life.

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Brown admitted to delivering a baby in 2008 and leaving it in a trash bag in the restroom at a restaurant in Shelbyville, and, facing murder charges, she agreed to serve 15 years in prison on reduced charges of second-degree manslaughter.

She was freed by Senior Judge Steven Mershon after serving 15 months and 14 days, benefiting from this unusual, decades-old program that grants judges wide latitude in dealing with first-time offenders.

A study of state records acquired by The Sentinel-Newsshows that Brown’s release is far from a rare occurrence and that many who have been released on the same terms as she frequently find themselves back before a judge for new or related offenses.

The study also shows that Mershon likely would have no idea what happens to Brown because the Administrative Office of the Courts does not track the fate of those inmates that its judges release on shock probation.

But records kept by the Department of Corrections and not shared with AOC show that about one in three offenders in Kentucky who are granted shock probation find themselves back in court.

The Sentinel-News’ analysis of the separate sets of statistics from the AOC and DOC revealed that:

8,315 of the 10,006 inmates released on shock probation from 2006 to 2010 had been convicted of a felony.

35 percent of the felons who requested shock probation throughout the state – 8,315 out of 23,736 – were granted it.

43 of those felons were from Shelby County.

There were 31 homicide-related requests statewide in 2010, and 10 were approved, including Tonya Nicole Brown.

Shelby County saw 457 requests in the 5-year period – 147 of them for felonies – with 65 percent of misdemeanors granted and 40 percent of felonies.

65 percent of those given shock probation were men, and record-keepers couldn’t determine the gender of 16 percent.

None of these statistics were shared between the two agencies, and there is a discrepancy in figures supplied by the AOC and the DOC. The DOC reported 1,786 cases of shock probation granted in 2008, and the AOC said 2,231.

Of the 1,785 cases recorded by the DOC in 2008, a third of those released (595) were back in court within 24 months.

Kentucky is one of seven states that employ shock probation, which is designed to keep previously law-abiding citizens who have committed only one crime that landed them in jail or prison from becoming hardened criminals.

That’s why they must spend at least 30 days, but not more than 180, behind bars after sentencing, which is estimated to be a sufficient time to let them experience the trauma of incarceration without suffering its long-term ill effects.

The theory is that the experience of being in jail for the first time in their lives will have been such a shock to them that it is unlikely they would commit a crime again.

But judges who grant that freedom to inmates most likely never will know whether or not they made good decisions.

Statistical gaps

Although data on shock probation is compiled by the AOC, Analyst Tammy Collins said that information does not include data on success and failure rates because that would be too difficult to keep track of. “We don’t keep statistics on that,” she said when asked why.

Rather, statistics on rates of recidivism – a term describing convicted criminals who return to a life of crime – are compiled by the DOC.

Todd Henson, public information officer for the DOC, explained that the reason for the discrepancy between how the agencies maintain records is based on their systems for counting the cases.

 “If somebody has more than one felony charge, they [AOC] will count them separately, whereas we just count the number of people,” he said

But that would not be readily recognized because the DOC’s records are not shared or cross indexed with the information kept with the AOC’s to form a thorough database and offer a complete picture to all involved about how well the program works, and the reason apparently is governmental alignment.

“The Department of Corrections, which operates under the Executive Branch, operates its own database, and the Administrative Office of the Courts, which operates under the Judicial Branch, operates its own database as well,” Collins said. “At this time, these two agencies do not share data.”

There’s also lag time in the DOC. Henson said the reason DOC’s records are updated only through 2008 is because corrections researchers have to wait for two years to see whether those who have been granted shock will re-offend.

“These are the latest statistics we have available for the year ending December 2010,” he said. “Since we have to wait twenty-four months to see if an inmate re-offends, we can only use those offenders that were shock probated in 2008, then wait to the end of 2010 to see if they have re-offended.”

Figures for 2009 would be out by the end of this year.

Henson said that about 30 percent of those who re-offend go back to jail on a “technical violation,” and about 3 percent were charged with “new commitments” – which means a new charge.

Technical violations are violations other than felony-related offenses, and that people usually face them when they do things to violate the conditions of their parole, such as staying out past curfew, not reporting to a parole officer, absconding, drug or alcohol use, or associating with convicted felons, to name a few.

“Once they are convicted of a new felony, then they come into the custody of the Department of Corrections, and that is our new commitment date,” Henson said.

If you track the 3-year trends from DOC, you find that 2006 cases generated the largest number of inmates who were charged with new felonies (3.4 percent) but that the trend averages around 3 percent for all three years.

Further, in cases such as Brown’s, there would be no data to track her as a felon from Shelby County, because, Henson said, records on recidivism are not kept on individual counties. He cited problems with movement to different addresses as being difficult for tracking.

“The problem with focusing on one particular county is that if someone is convicted in Shelby County and receives shock probation, they may not have remained in Shelby County after their release,” Henson said. “Conversely, if someone in another county received shock probation, there is the possibility that they could have relocated in Shelby County.”

He said he could not find out if anyone from Shelby County had gone elsewhere and re-offended, but he did say that from 2005 through 2007, no offenders in the Shelby County court system were charged with re-offending on a previous charge for which they had been granted shock probation.

Demographic issues

Terry Cox, a professor with a doctorate in criminal justice who has taught classes on violent crime at Eastern Kentucky University for 32 years, said that data speaks volumes about the way that society in general, and the criminal element in particular, is reacting to the economy.

“First of all, I want to say that I absolutely think shock probation is a good tool; it works very well a good majority of the time,” Cox said. “However, it works better for certain types of offenders than for others.

“For example, if you look at this data, you will see that, in general, although the percentage of people going back in on things like parole violations is decreasing slightly, it is remaining fairly constant. And those committing new crimes [while they are out on shock probation] is fluctuating, and several factors play into that.

“First, when the economy plunges, drug-related crimes go up, because that is a way to acquire income. Secondly, if someone has been incarcerated, then they’ve had an income disruption. That’s another factor.

“This would become more apparent if you could dissect the data and look at it on a case-by-case basis; you could then see the relationship between types of crimes and recidivism rates and how things like demographics plays a role in that.”

In figures for 2010, only one county in Kentucky among those whose 2010 census population was between 40,000 and 50,000 had fewer applicants for shock probation than Shelby with 12: Scott County with none.

Henderson County, for instance, had 149 applicants and 113 approvals, and Barren County had 86 and 51 granted. Both counties are only slightly larger than Shelby.

This data, Cox said, would shed light on the matter if the cases were to be examined individually – a time-consuming task no one has undertaken – and correlated with crime trends in corresponding areas.

But despite the facts that of so many criminals being released and such a large percentage that returned to crime, the consensus among judges, prosecutors and law enforcement officers appears more positive than negative.

Types of offenses matter

Judges who serve both district and circuit courts in Shelby County say that although they turn down more requests for shock than they grant, they believe the practice is beneficial overall.

District Judge Donna Dutton said she doesn’t have many cases come before her in which offenders ask for shock probation, and when they do, she said she is very selective about saying yes.

 “The whole idea of shock probation is the whole experience of going to jail for the first time shocks people so much they never want to go back,” she said. “So when someone asks me for shock, I really scrutinize their criminal history, and if it’s lengthy, then I’m not going to grant it.

“But if they have only traffic offenses, or something that happened when they were very young, I probably would.  But on the rare occasions that I grant it, I put them back on probation, and I tell them if I see them  again, the option is off the table. It’s a one-time chance. They’re not going to get it again.”

Dutton said that generally, she doesn’t see people back in the courtroom that have been granted shock. “When it’s properly used, it’s an excellent option,” she said.  “I really believe in shock probation when it’s properly applied.”

Mershon, the judge who released Brown, said that although he can’t speak for how other judges make decisions concerning shock, he thinks most share his views on it, an opinion he had previously shared with The Sentinel-News.

“It’s always been my philosophy – and I don’t think I’ve ever made an exception to this – I tell people, if you were granted shock probation in the past, it’s not appropriate to grant it to you again,” he said.  “Because they’re only supposed to get the benefit of that statute one time.”

Mershon also said he thinks that the majority of people granted shock probation take advantage of that opportunity to stay out of jail.

Prosecutors vary

Shelby County Attorney Hart Megibben doesn’t deal much with shock cases in his current job, but he did when he was assistant commonwealth attorney from 1994 to 1998  for Shelby, Anderson and Spencer counties.

He said that in his experience in that capacity, in dealing with felony shock probation cases, some did eventually re-offend, but not the vast majority.

“It’s kind of hard to lump them all together, because some are willing to try to change, and there are some people you could shock with a cattle prod and they would never change their ways,” he said. “I can’t really say how many of them did, because the ones who were successful and did not re-offend don’t stand out in my mind as much as the ones who did.

“But the program is geared toward those who are just starting down that path, and generally, I have found that folks who are willing to try to change their  ways and live law-abiding lives, they are amenable to that.” 

Shelbyville Police Detective Jesse Paulley says that though shock probation does work sometimes, he can never predict who is going to be successful and who isn’t. 

“I do think it has merit,” he said. “But it just depends on the individual. It’s totally up to them [the offenders], and some people take advantage of getting a second chance, and some don’t.” 

Commonwealth Attorney Laura Donnell, who negotiated the plea deal for Brown and then protested her release in a brief letter to Mershon, said she stands behind the concept of shock probation: 

“The goal that we have as prosecutors is that we want people to learn from that lesson and become good citizens of the community.”

Only the next few years will tell us if Tonya Nicole Brown will become a “good citizen.” Her case will show up on the DOC’s records in two years, and her probation will end in 2015.

By that time, shock probation will have been employed in Kentucky for more than 40 years.

Steven Mershon will have retired as a senior judge.

And the baby Brown left behind in the trash would have turned 7 years old.