Budgets influencing probations, Idaho judges say

Judges say the rider program and prisons' zero-growth goal hamper IDOC employees and call for scrutiny.

dpopkey@idahostatesman.comMay 12, 2013 


    The Idaho Legislature established the retained jurisdiction or rider option for the courts in 1972.

    The law gives judges discretion to sentence offenders to a short-term program instead of serving a full prison sentence.

    Riders were originally 120 days. Facing booming prison growth, lawmakers expanded the program in 2010, creating what the Department of Correction calls the "Trio of Options," including a yearlong program. The average sentence in Idaho is two years and eight months.

    There are two versions of the etymology of the rider nickname. One holds that the sentencing option was an amendment to another bill, a "rider" in legislative parlance. The second says that because the program was based in the North Central Idaho town of Cottonwood and inmate stays were short and the bus rides from southern Idaho long, they were called riders for all the time they spent on the bus.

    - The traditional rider is 120 to 180 days. It is offered at the North Idaho Correctional Institution in Cottonwood, South Idaho State Correctional Institution near Boise, South Boise Women's Correctional Center and Pocatello Women's Correctional Center. About 21 percent of riders are in the traditional program.

    In 2012, 120 inmates were in the Sex Offender Assessment Group as a specialized aspect of the traditional rider at NICI, accounting for 6 percent of riders.

    - The Correctional Alternative Placement Program was started in 2010 and offers 90-day treatment for substance abuse and cognitive issues. CAPP has 432 beds for men south of Boise and is operated by Management and Training Corp. under a contract with the state. The program is offered for women at the South Boise facility. About 47 percent of all riders are in CAPP.

    - Therapeutic Community began in 2010 for inmates with more serious substance abuse and "criminal orientation" issues. The program lasts nine to 12 months and operates at NICI for men and South Boise for women. About 22 percent of riders are in TC.

    - About 4 percent of riders have physical or mental health issues that require special attention. Men are housed at the South Idaho State Correction Center, women at Pocatello.

    Every inmate entering the system is assigned a road map for treatment and programming, including anger management, problem solving, cognitive behavior treatment, substance abuse and relapse prevention.


    Number of inmates released to probation after completing 'rider' programs, and percentage of offenders released within admission year, by calendar year

    2003 1,071 91%

    2004 1,615 91%

    2005 1,683 89%

    2006 1,539 87%

    2007 1,677 87%

    2008 1,463 87%

    2009 1,524 88%

    2010 2,002 90%

    2011 1,990 86%

    2012 1,959 89%

    Source: Idaho Department of Correction


    First District Judge John Mitchell applauds 4th District Judge Mike Wetherell for raising the issue of flawed probation recommendations. But Mitchell, the Coeur d'Alene-based administrative judge for North Idaho, said he hasn't seen such problems recently in his courtroom.

    "In years past, some days I'd get a guy who got in a fight, a cardinal rule violation, and they'd recommend probation," Mitchell said. "And the same week get one where the guy looked at somebody wrong and got a recommendation for (prison). They used to be, at times, inconsistent."

    But Mitchell cites another budget-related problem: withholding or modifying medications prescribed to those in the rider program.

    Mitchell, like Wetherell, has been a judge since 2002. He said Correction Director Brent Reinke does a good job, as does Shane Evans, chief of Education, Treatment and Re-entry. But the state's flat-fee contract with health care provider Corizon gives the contractor an incentive to use cheaper drugs.

    "It is seldom where the person comes back to me without some adjustment to the medications," Mitchell said. "Sometimes those adjustments seem to improve their mental health symptoms, sometimes there is no change, and sometimes there is profound worsening of their mental health symptoms. This is a significant problem when you consider that nearly half of our prisoners, probationers, have a mental health issue."

    Mitchell cited a recent case where an inmate's medications were altered. He did poorly during his rider and the department recommended returning him to prison.

    "He looked like he'd been beat down," Mitchell said. "He was so tired and couldn't talk."

    The inmate didn't get his prescribed monthly dose of the expensive injectable Invega, Mitchell said. And, in place of the less pricey tablet form of Invega, he got Haldol. "They gave a drug from the 1950s that causes Parkinson's-like symptoms."

    To counter the side effects, the inmate received Cogentin, which has its own side effect: auditory hallucinations.

    "This is a guy I sent down with schizophrenia who has nothing but auditory hallucinations," Mitchell said. "You've taken him off all the medicines that worked for him. And then they recommend (prison) because he didn't program very well. Well, he couldn't retain anything."

    Instead of sending the man, a drug addict, to prison, Mitchell ordered him to serve another rider. But first, he wanted him properly medicated. Not only are state taxpayers paying for back-to-back riders, but the bill from Kootenai Behavioral Health to the county-state indigent fund could reach $15,000.

    "How many more different ways can we lose on this?" asked Mitchell.

    Director Reinke acknowledged the issue saying, "It's contract-driven. We will have to work through that with Judge Mitchell because we haven't had that problem for quite awhile."

    Reinke said the medical contract will be re-bid this fall. Will the protocol for generics and other cheaper medications be raised? "It's something we need to look at," Reinke said.


    Dan has spent one night in jail. In college, he was hitchhiking in Scotland and discovered the lone hostel in a small town closed for the season. The only open bed was in the hoosegow, where the jailer said he was welcome on one condition: "We got to lock you up."

The Idaho Department of Correction's Naomi Laurino told 4th District Judge Mike Wetherell last month that she felt pressure to recommend probation for a sex offender to keep down the prison population.

Laurino paused for eight seconds before answering a question put by Ada County Deputy Prosecutor Jean Fisher.

"It means that we're out of space in the prison and they want us to be very judicious in who we recommend" to return there, Laurino said.

Laurino works exclusively with sex offenders at the North Idaho Correctional Institution in Cottonwood. Most of those offenders are released from prison and sentenced to probation after completing a four- to six-month "rider" program at NICI, which includes counseling and group therapy. She noted that the proportion of those released from prison to probation after completing the Sex Offender Assessment Group has increased.

According to the department, 76 percent of sex offenders received probation after completing riders in 2012, up from 62 percent in 2011. The overall probation rate for all offenders completing riders also was up, from 86 percent in 2011 to 89 percent in 2012.

The 2011 probation rates were abnormally low because of a flood of new enrollees as rider programs expanded in late 2010, said Cathy McCabe, research analyst supervisor for IDOC. The 2012 sex offender probation rate was 75 percent and 76 percent in 2009 and 2010, respectively. The overall rate has averaged 87 percent over the past decade.

The release rates trail an increase in overall prison population, which jumped 6.8 percent in the fiscal year ending in June 2012, an alarming spike that followed four years of slow growth. Idaho had the highest incarceration rate among its six neighboring states in 2010, ranking No. 12 in the U.S.

In 2007, a state-commissioned study reported that if Idaho didn't slow an annual inmate growth rate of 6.6 percent, it would need 5,560 new beds by 2017, at a cost of $1 billion.

That prompted newly elected Gov. Butch Otter to order Correction Director Brent Reinke to find alternatives. Boosting rider programs was part of that strategy, and admissions rose 33 percent between 2009 and 2012. Riders now represent 14 percent of a prison population of 8,100.


Policymakers were troubled because other programs suffered as the IDOC budget rose 49 percent over the past decade, to $191 million in fiscal year 2013. That exceeded the decade's growth in spending on education (42 percent), natural resources (31 percent) and economic development (30 percent).

But Reinke said he and his managers have not put the screws on employees to get liberal in recommending probation to comply with his "Zero Growth Initiative." Rather, Reinke said, Laurino appears to have misunderstood. "You can take that term out of context and that's, unfortunately, what's happened here."

The goal is to balance sentencing alternatives with public safety, with public safety coming first, he said. "I'd be lying to you to tell you that budget doesn't affect everything we do. But it doesn't affect the decision of those individual staff members. We try to protect them from that as much as we can. But they all know where we are as far as our facilities - we want to maximize the beds."

After hearing Laurino's testimony April 3, Judge Wetherell blasted the department for urging probation "with weasel words."

Wetherell said he didn't blame the department for "attempting to maintain its budget in hard budgetary times," but was outraged at what he called a "system in which pressure is placed upon employees whose obligation under the statutes is to 'assist the courts in sentencing.'"

Added Wetherell: "It is their obligation to say we would like to recommend incarceration in this case, but budgetary constraints prohibit us from doing so. That's called honesty."


Two weeks after Wetherell sent the sex offender back to prison, 4th District Judge Cheri Copsey rejected a probation recommendation after a rider served by a man convicted of aggravated assault and unlawful possession of a weapon by a felon. Copsey then issued a judicial notice citing Wetherell's case as revelatory and attached the 82-page transcript of his two-hour hearing.

Copsey said the transcript supports her finding that IDOC's "recommendations for probation following a retained jurisdiction also lack credibility."

(Riders also are known as "retained jurisdiction," because a judge maintains control of the offender on probation rather than "relinquishing" him or her to IDOC to serve their prison sentence.)

Chief of Prisons Kevin Kempf said the department values a strong relationship with Idaho's 42 district judges and that employees aren't being pressured to go easy on offenders to save money.

"Not only politically, but within the fibers of us, we would be crazy, absolutely crazy, to make policy decisions that would affect public safety because of beds being filled," Kempf said. "It would be absolutely asinine."

But Wetherell, a former Idaho Democratic Party chairman whose parents were both state senators, is engaging the Legislature.

"I believe the problem could in the future, if it has not already, create serious public safety concerns," Wetherell wrote in a May 3 letter to Reinke, Senate Judiciary Committee Chairwoman Patti Anne Lodge, R-Huston, and House Judiciary Committee Chairman Rich Wills, R-Glenns Ferry.

Wetherell attached the sentencing transcript and wrote, "If these reports begin to be perceived as little more than a way to control the prison population, then the entire system will suffer."

Wills said complaints by Wetherell and Copsey are the first he's heard, but after reviewing the transcript, he said the issue needs attention.

Patti Tobias, administrative director of the Idaho courts, said the matter will be on the June agenda of the Felony Sentencing Committee, which includes judges from all seven judicial districts.


The spotlight on the rider program was sparked by IDOC's recommendation that Steven C. Shepherd, 38, be granted probation after spending four months at Cottonwood. Shepherd, of Nampa, was convicted of felony sexual battery on a minor in 2003. The victim was a 16-year-old girl whom he supervised in a restaurant job. Shepherd was 28 when he committed the offense.

He served 261 days in jail before Wetherell sentenced him to 10 years in prison. Wetherell allowed Shepherd to avoid prison, however, if he successfully completed 10 years probation.

Shepherd was returned to jail temporarily after a probation officer found pornography on Shepherd's thumb drive in May 2012. Earlier, he had a collection of pornographic videos. Then, in December, Shepherd admitted accessing porn on the Internet. Wetherell found Shepherd had violated his probation by viewing and possessing pornography, and lying to his probation officer. Shepherd also failed to attend sex offender treatment, obtain permission to change his residence and maintain or actively seek a job, Wetherell found.

Shepherd was sentenced to the 400-bed prison in Cottonwood.

Laurino, a drug and alcohol rehabilitation specialist, holds a master's degree. She told Wetherell Shepherd was agitated, argumentative, defensive and didn't accept feedback. He blamed his probation officer and others for his problems, taking the "victim's stance."

Despite her recommendation for probation, Laurino acknowledged Shepherd had made only "minor improvement" and flatly said she didn't think he would be successful on probation. "I think he will continue to have the same problems," she testified.

Another NICI employee told Wetherell his superiors wouldn't allow him to recommend Shepherd for a more intensive nine-month program in prison, even though he thought it would be better for Shepherd. "I have recommended it before and I was told I can't do that," said Bryan Gimmeson, a clinician at NICI, who also has a master's degree.

Gimmeson also paused at length before answering why he suggested probation. Finally, he said Shepherd met the minimum requirements, attending group therapy and that "my red flags" were "something that a treatment provider would address" in the community, rather than have Shepherd "go to prison and possibly just become a better criminal."

Gimmeson said Shepherd's "sex drive, use of sex as a coping skill, deviant sexual behavior, general social rejection" and other factors contributed to his being scored as a "low-moderate" risk to reoffend. Shepherd's likelihood of reoffending in five years in the community is 6 percent, according to an assessment test, Gimmeson said.


NICI Warden Lynn Guyer said he's "not exactly sure why" his employees testified as they had, but that, "there is no pressure to (recommend) probation over relinquishment" back to prison.

Reinke said he plans to meet next week with Laurino and Gimmeson while on his seasonal visit.

"We want to be supportive of what they do. This is not about coming down on them. I'm concerned about what they are feeling and what their perceptions are because if they're feeling that, other staff may be (as well) and we've got to deal with that," Reinke said.

Gimmeson told the Statesman he feels "great responsibility" and tells inmates a probation recommendation means "you would be safe as my neighbor, because you're going to be out and be somebody's neighbor."

Dan Popkey: 377-6438

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