U.S. Department of JusticeNational Institute of Correction

U.S. Department of Justice
National Institute of Corrections
D
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CIVIL LIABILITIES
and Other Legal Issues for Probation/Parole Officers and
Supervisors
4th Edition
320 First Street, NW
Washington, DC 20534
Morris L. Thigpen
Director
Thomas J. Beauclair
Deputy Director
George Keiser
Chief, Community Corrections Division
Dorothy Faust
Project Manager
www.nicic.gov

Civil liabilities
and Other Legal Issues for Probation/Parole Officers and
Supervisors
4th Edition
Phillip Lyons
Todd Jermstad
NIC Accession No. 027037
March 2013
This document was developed under cooperative agreement
number 08C77G7U3 from the National Institute of
Corrections, U.S. Department of Justice. Points of view or
opinions in this document are those of the authors and
do not necessarily represent the official opinion or policies of
the U.S. Department of Justice.
Contents
Chapter 1. An Overview of State and Federal Legal Liabilities
..................................... 1
Chapter 2. Civil Liability Under State Law: State Tort Cases
..................................... 13
Chapter 3. Civil Liability Under Federal Law: § 1983 Cases
...................................... 27

Chapter 4. Legal Representation, Attorneys’ Fees, and
Indemnification .................... 39
Chapter 5. Presentence and Preparole Investigations and Reports
........................... 55
Chapter 6. Supervision
...........................................................................................
81
Chapter 7. Conditions, Modifications, and Changes in Status
................................. 113
Chapter 8. Revocation
..........................................................................................
155
Chapter 9. Emerging Trends Concerning Liability of Probation
and Parole
Officers for Supervision
........................................................................ 185
Chapter 10. Vicarious Liability
.............................................................................. 203
Chapter 11. Direct Liability for Supervisors
............................................................ 215
Chapter 12. Agency Liability for Acts of Supervisors
.............................................. 239
Chapter 13. The Nature of Inmates’ Rights
............................................................ 247
Chapter 14. Inmates’ Rights at Parole Release Hearings

....................................... 257
Chapter 15. Liability of Parole Officials for Crimes Committed
by
Released Offenders
............................................................................ 275
Chapter 16. Immunity for Parole Board Officials
..................................................... 285
Chapter 17. Questions, Specific Concerns, and General Advice
.............................. 291
iii
CHAPTER 1
AN OVERVIEW OF STATE AND
FEDERAL LEGAL LIABILITIES
INTRODUCTION
I. UNDER STATE LAW
A. Civil Liability Under State Tort Law
1. State Tort Law
2. State Civil Rights Laws
B. Criminal Liability Under State Law
1. State Penal Code Provisions Aimed Specifically at Public
Officers
2. Regular Penal Code Provisions Punishing Criminal Acts

II. UNDER FEDERAL LAW
A. Civil Liabilities
1. Title 42 of the U.S. Code, § 1983—Civil Action for
Deprivation of Rights
2. Title 42 of the U.S. Code, § 1985—Conspiracy to Interfere
With Civil Rights
3. Title 42 of the U.S. Code, § 1981—Equal Rights Under the
Law
B. Criminal Liabilities
1. Title 18 of the U.S. Code, § 242—Deprivation of Rights
Under Color of Law
2. Title 18 of the U.S. Code, § 241—Conspiracy Against
Rights
3. Title 18 of the U.S. Code, § 245—Federally Protected
Activities
III. MAY AN OFFICER BE HELD LIABLE UNDER ALL OF
THE ABOVE LAWS? YES.
IV. DIFFERENT RESULTS IF HELD LIABLE
V. POSSIBLE DEFENDANTS IN CIVIL LIABILITY CASES
A. Government Agency as Defendant
B. Individual Officers as Defendants
1. State Officers
2. Officers of Local Agencies
VI. KINDS OF DAMAGES AWARDED IN CIVIL LIABILITY
CASES
A. Actual or Compensatory Damages
B. Nominal Damages

C. Punitive or Exemplary Damages
SUMMARY
NOTES
1
An Overview of State and Federal Legal Liabilities
CHAPTER 1
3
INTRODUCTION
The array of legal liabilities to which probation/parole officers
may be exposed are many and varied.
They include state and federal laws of both civil and criminal
varieties. An overview of these liabilities
is depicted in Table 1–1.
Note that in addition to these statutory sources of liability, the
officer may be subject to administrative
disciplinary procedures within the agency that can result in
transfer, suspension, demotion, dismiss-
al, or other forms of sanction. Disciplinary procedures are
defined by state law or agency policy.
The above legal liabilities apply to all public officers and not
just to probation/parole officers. Police of-
ficers, jailers, prison officials, juvenile officers, and just about
any officer in the criminal justice system

may be held liable for any or all of the above provisions based
on a single act. For example, assume
that a parole officer unjustifiably uses excessive force on a
parolee. Conceivably, he or she may be
liable under all of the above provisions. He or she may be liable
for conspiracy if he or she acted
with another to deprive the parolee of his civil rights, as well as
for the act itself, which constitutes
the deprivation. The same parole officer may be prosecuted
criminally and civilly under federal law
and then be held criminally and civilly liable under state law for
the same act. The double jeopardy
defense cannot exempt him or her from multiple liabilities
because double jeopardy applies only in
criminal (not civil) cases, and only when two criminal
prosecutions are made for the same offense by
the same jurisdiction. Criminal prosecution under state and then
under federal law for the same act is
possible and occurs with some frequency. If this occurs, it often
indicates that the second prosecuting
authority believes that justice was not served in the first
prosecution.
All of the above types of liability are discussed briefly in this
chapter. As indicated, liability can be
classified according to federal or state law.
Table 1–1. Classification of Legal Liabilities Under State and
Federal Law
State Law Federal Law
Ci
vi
l

Li
ab
ili
tie
s 1. State tort law 1. Title 42 of the U.S. Code, § 1983—Civil
Action for Deprivation of Rights
2. State civil rights laws 2. Title 42 of the U.S. Code, § 1985—
Conspiracy to Interfere With Civil Rights
Law
Cr
im
in
al
Li
ab
ili
tie
s 1. State penal code provisions aimed specifically at public
officers 1. Title 18 of the U.S. Code, § 242—Deprivation of
Rights Under Color of Law
2. Regular penal code provisions punishing criminal acts 2.
Title 18 of the U.S. Code, § 241—Conspiracy Against Rights
3. Title 18 of the U.S. Code, § 245—Federally Protected

Activities
Civil Liabilities and Other Legal Issues for Probation/Parole
Officers and Supervisors, 4th Edition
CHAPTER 1
4
I. UNDER STATE LAW
There are two basic types of liability under state law: civil and
criminal.
A. Civil Liability Under State Tort Law
1. State Tort Law
This type of liability is more fully discussed in Chapter 2 (State
Tort Cases). For purposes of this
overview, the following information should suffice.
A tort is defined as “A civil wrong, other than breach of
contract, for which a remedy may be obtained,
usually in the form of damages; a breach of a duty that the law
imposes on persons who stand in
a particular relation to one another.”1 Torts may involve a
wrongdoing against a person, such as
assault, battery, false arrest, false imprisonment, invasion of
privacy, libel, slander, wrongful death,
and malicious prosecution; or against property, such as arson,
conversion, or trespass. A tort may be
intentional (acts based on the intent of the actor to cause a
certain event or harm) or caused by neg-
ligence. Probation/parole officers may therefore be held liable

for a tortious act that causes damage
to the person or property of another. Note that § 1983 actions,
federal cases, are sometimes referred
to as “tort cases,” but the reference is to federal rather than
state torts.
2. State Civil Rights Laws
Many states have passed civil rights laws of their own, either
replicating the various federal laws
that have been enacted or devising new categories of protected
rights. For example, the Federal
Civil Rights Act of 1964 prohibits discrimination on the basis
of race, religion, color, national origin,
sex, and pregnancy. These laws are enforceable by the federal
government, but they may also be
enforceable by the state if they have also been enacted as state
statutes. The penalty or punishment
imposed through such state statutes, therefore, is at the state
level.
B. Criminal Liability Under State Law
1. State Penal Code Provisions Aimed Specifically at Public
Officers
State criminal liability can come under a provision of the state
penal code specifically designed for
public officers. For example, § 39.03 of the Texas Penal Code
contains a provision on “Official Op-
pression” that states that a public servant acting under color of
his office or employment commits an
offense if he:
a. Intentionally subjects another to mistreatment or to arrest,
detention, search, seizure, disposses-

sion, assessment, or lien that he knows is unlawful; b.
intentionally denies or impedes another
in the exercise or enjoyment of any right, privilege, power, or
immunity, knowing his conduct is
unlawful; or c. intentionally subjects another to sexual
harassment.2
A questionnaire sent to state attorneys general and
probation/parole agency legal counsel asked if
their states had statutes providing for criminal liability for
probation, parole, and public officers in gen-
eral. The results show that only a few states have statutes
pertaining to liability for probation/parole
officers specifically, 8 percent in both cases, but 84 percent of
the states have statutes concerning
the criminal liability of public officers in general.
2. Regular Penal Code Provisions Punishing Criminal Acts
In addition to specific provisions aimed only at public officials,
probation/parole officers may also be
liable like any other person under the provisions of the state
criminal laws. The state criminal codes,
for example, impose criminal liability on anyone who commits
murder, manslaughter, assault, and so
forth as against any other person.
CHAPTER 1
5
II. UNDER FEDERAL LAW

A. Civil Liabilities
1. Title 42 of the U.S. Code, § 1983—Civil Action for
Deprivation of Rights
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in action at law,
suit in equity, or other proper proceeding for redress, except
that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable
exclusively to the District of Columbia shall
be considered to be a statute of the District of Columbia.3
This section is discussed separately in Chapter 3 because of the
overwhelming number of civil liabil-
ity cases filed under this section. Refer to that chapter for an
exhaustive discussion of liability under
federal law.
2. Title 42 of the U.S. Code, § 1985—Conspiracy to Interfere
With Civil Rights
Section 1985(3) provides a civil remedy against any two or
more persons who “conspire … for the
purpose of depriving … any person or class of persons of the

equal protection of the laws, or of
equal privileges and immunities under the laws….”4
Passed by Congress in 1861, this law provides for civil damages
to be awarded to any individual who
can show that two or more persons conspired to deprive her of
her civil rights. Note that a probation/
parole officer may therefore be held civilly liable not only for
actually depriving a person of her civil
rights (under § 1983), but also for conspiring to deprive that
person of his civil rights (under § 1985).
The two acts are separate and distinct and therefore may be
punished separately. Under this section,
it must be shown that the officers had a meeting of the minds
and actually agreed to commit the act,
although no exact statement of a common goal need be proven.
In most cases, the act is felonious
in its severity (as opposed to a misdemeanor) and is aimed at
depriving the plaintiff of her civil rights.
The plaintiff must also be able to prove that the defendants
purposely intended to deprive her of
equal protection of the law. This section, however, is seldom
used against public officers because the
act of conspiracy is often difficult to prove except through the
testimony of coconspirators. Moreover,
it is limited to situations in which the objective of the
conspiracy is invidious discrimination, which
is difficult to prove in court. It is difficult for a plaintiff to
establish in a trial that the probation/parole
officer’s action was discriminatory based on sex, race, or
national origin.
Law
All persons within the jurisdiction of the United States shall

have the same right in every State and
Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of
every kind, and to no other.
***
For purposes of this section, the term “make and enforce
contracts” includes the making, perfor-
mance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms
and conditions of the contractual relationship.
CHAPTER 1
6
***
The rights protected by this section are protected against
impairment by nongovernmental discrimi-
nation and impairment under color of State law.5
This section was passed in 1870, a year earlier than § 1983.
Originally, the plaintiff had to show that
he was discriminated against because of his race, thus limiting
the number of potential plaintiffs.

Section 1981 has been widely used in employment and housing
discrimination cases (under its con-
tracts and equal benefits provisions). However, the like
punishments provision should be of greater
significance for probation and parole authorities because
criminal justice system officials have been
held liable for violating its mandate.6
B. Criminal Liabilities
1. Title 18 of the U.S. Code, § 242— Deprivation of Rights
Under Color of Law
Whoever, under color of any law, statute, ordinance, regulation,
or custom, willfully subjects any
person of any State, Territory, Commonwealth, Possession, or
District to the deprivation of any rights,
privileges, or immunities secured or protected by the
Constitution or laws of the United States, or to
different punishments, pains, or penalties on account of such
person being an alien, or by reason of
his color, or race than are prescribed for the punishment of
citizens, shall be fined under this title or
imprisoned not more than one year, or both; and if bodily injury
results from the acts committed in
violation of this section or if such acts include the use,
attempted use, or threatened use of a danger-
ous weapon, explosives, or fire, shall be fined under this title or
imprisoned not more than ten years,
or both; and if death results from the acts committed in
violation of this section or if such acts include
kidnapping or an attempt to kidnap, aggravated sexual abuse, or
an attempt to commit aggravated
sexual abuse, or an attempt to kill, shall be fined under this
title, or imprisoned for any term of years

or for life, or both, or may be sentenced to death.7
This section provides for criminal action against any officer
who actually deprives another of his civil
rights. An essential element of this section requires the
government to show that the officer, acting
“under color of any law,” did actually commit an act that
amounted to the deprivation of one’s civil
rights. Essential elements of § 242 are the following: (a) the
defendant must have been acting under
color of law; (b) a deprivation of any right secured by the
United States Constitution or federal laws;
and (c) specific intent on the part of the defendant to deprive
the victim of rights.
2. Title 18 of the U.S. Code, § 241— Conspiracy Against Rights
If two or more persons conspire to injure, oppress, threaten, or
intimidate any person in any State,
Territory, Commonwealth, Possession, or District in the free
exercise or enjoyment of any right or
privilege secured to him by the Constitution or laws of the
United States, or because of his having
exercised the same; or
If two or more persons go in disguise on the highway, or on the
premises of another, with the intent
to prevent or hinder his free exercise or enjoyment of any right
or privilege so secured—They shall
be fined under this title or imprisoned not more than ten years,
or both; and if death results from the
acts committed in violation of this section or if such acts
include kidnapping or an attempt to kidnap,
aggravated sexual abuse or an attempt to commit aggravated
sexual abuse, or an attempt to kill,
they shall be fined under this title or imprisoned for any term of

years or for life, or both, or may be
sentenced to death.8
The courts have interpreted this section as requiring the
following: (1) the existence of a conspiracy
whose purpose is to injure, oppress, threaten, or intimidate; (2)
one or more of the intended victims
must be a United States citizen; and (3) the conspiracy must be
directed at the free exercise or
CHAPTER 1
7
enjoyment by such a citizen of any right or privilege under
federal laws or the United States
Constitution.
The main distinction between § 242 and § 241 is that § 242
punishes the act of depriving one of
rights, whereas § 241 punishes the conspiracy to so deprive one
of rights. Inasmuch as conspiracy,
by definition, requires at least two participants, § 241 cannot be
committed by a person acting alone.
Moreover, although § 242 requires the officer to be acting the
“color of any law,” there is no such
requirement under § 241; hence, a private person can commit a
§ 241 violation.
3. Title 18 of the U.S. Code, § 245— Federally Protected
Activities

This section applies to all individuals and, therefore, applies to
public officers who forcibly interfere
with such federally protected activities as:
■ Voting or running for an elective office.
■ Participating in government-administered programs.
■ Applying for or enjoying the benefits of federal employment.
■ Serving as juror in a federal court.
■ Participating in any program receiving federal financial
assistance.9
Violations of § 245 carry a fine or imprisonment of not more
than 1 year, or both. Should bodily
injury result from a violation, or if such acts include the use,
attempted use, or threatened use of
a dangerous weapon, explosive, or fire, the violator may be
fined or imprisoned not more than 10
years, or both. Should death result from the acts committed in
violation of this section, or if such acts
include kidnapping, attempt to kidnap, aggravated sexual abuse
or an attempt to commit aggravated
sexual abuse, or an attempt to kill, the violator may be fined
under this title or imprisoned for any
term of years or for life, or both, or may be sentenced to
death.10 This statute, passed in 1968, seeks
to punish all persons who forcibly interfere with federally
protected activities. Therefore, it applies to
probation/parole officers who act in their private capacity. The
first part of the law penalizes a variety
of acts as noted above. The act goes on to authorize punishment
for deprivations of such rights as
attending a public school or college; participating in state or

locally sponsored programs; serving
on a state jury; participating in interstate travel; or using
accommodations serving the public, such
as eating places, gas stations, and motels. Finally, the act
penalizes interference of persons who
encourage or give an opportunity for others to participate in or
enjoy the rights enumerated in the
statute. It is distinguished from sections 241 and 242 in that a
person acting singly and in a private
capacity can violate it. This law is seldom used at present.
III. MAY AN OFFICER BE HELD LIABLE UNDER ALL
OF THE ABOVE LAWS? YES.
The entire array of laws outlined above may apply to a
probation/parole officer based on a single act
if the required elements for liability are present. For example,
an act of an officer that leads to the
wrongful death of an offender may subject the officer to
liability under state and federal laws. Under
each, the officer may be held liable civilly, criminally.
Moreover, the officer can be punished by his
agency through administrative sanctions.
The defense of double jeopardy does not apply in these cases
because that defense is available
only if there are successive prosecutions for the same offense
by the same jurisdiction.11 Civil and
criminal penalties imposed by the same government may result
from a single act because “succes-
sive prosecution” means that both cases are criminal; hence, it
does not apply if one case is criminal

CHAPTER 1
8
and the other civil. Criminal prosecutions may also take place in
state court and federal court for the
same act. There is no double jeopardy because of the “same
jurisdiction” requirement for the de-
fense. State and federal prosecutions take place in different
jurisdictions; therefore, there is no double
jeopardy. There is also no double jeopardy protection if an
employee is dismissed from employment
or otherwise disciplined by her agency and then either
prosecuted, or held civilly liable, for the same
act. This is so because agency discipline, like a civil action, is
not a criminal proceeding.
The series of events involving the defendant police officers in
the infamous Rodney King case
provides an example of how double jeopardy protection applies
and, importantly, how it does not.
In that case, the officers were first suspended and then
dismissed from employment by the agency
(administrative liability). They were then tried for criminal acts
in state court, but were acquitted. After
acquittal, they were tried again for criminal acts in federal
court. Two of the four defendants were ac-
quitted in federal court, but the other two were convicted and
served time in a federal institution. The
officers raised the double jeopardy defense on appeal, but did
not prevail because they were tried by
two different jurisdictions. The officers were also held liable
for civil damages.
IV. DIFFERENT RESULTS IF HELD LIABLE

Civil liability results in payment of money by the defendant to
the plaintiff for damages caused. In
civil liability cases, therefore, the plaintiff seeks money. In §
1983 cases, the plaintiff may also seek
changes in agency policy or practice in addition to monetary
compensation. Sanctions imposed in
criminal cases include time in jail or prison, probation, fine,
restitution, or other sanctions authorized
by law and imposed by the judge. Administrative sanctions
include dismissal, demotion, transfer,
reprimand, warning, or other sanctions that are authorized by
agency policy or state law.
V. POSSIBLE DEFENDANTS IN CIVIL
LIABILITY CASES
Using the “deep pockets” approach (plaintiffs usually include as
defendants those who are best
positioned to satisfy a monetary judgment against them),
plaintiffs generally include as defendants
anybody who might possibly have anything to do with a case.
This might include the probation/parole
officer, the supervisors, and the governmental agency that is the
employer of the alleged offending
officer. The assumption is that probation/parole officers have
shallow pockets, whereas supervisors
and agencies have deep pockets. Resolving the question of who
is responsible for what amounts is
usually determined by state law (See Chapter 4 on
Indemnification).
A. Government Agency as Defendant
In lawsuits against the agency, immunity usually attaches if the
defendant is a state agency. This is
because states (and the federal government) enjoy sovereign
immunity, a doctrine stemming from

the common law concept that “the King can do no wrong,”
hence cannot be sued or held liable.
Sovereign immunity, however, may be waived through law or
judicial decision, and many jurisdictions
have waived it. Congress, for example, has waived most of the
federal government’s sovereign immu-
nity. Where sovereign immunity does exist in a state, the
question arises as to whether the particular
function involved was governmental (for which there is
immunity) or proprietary (for which there is no
immunity). This is a complex area of law and decisions vary
from state to state.
The rule concerning local governments is different. Local
governments are subject to liability under
the United States Supreme Court’s decision in Monell v.
Department of Social Services.12 In the
1978 Monell decision, the Court stripped local agencies of the
sovereign immunity defense.
CHAPTER 1
9
Therefore, counties, judicial districts, municipalities, or other
political subdivisions may be sued and
held liable for what their employees do.
B. Individual Officers as Defendants
1. State Officers

Although state agencies are generally exempt from liability for
their governmental activities unless
sovereign immunity is waived, immunity ordinarily is
unavailable to individual state officers who are
sued. Therefore, members of state probation/parole boards may
be sued as individuals. The fact that
a state provides counsel, or indemnifies the officer if held
liable, does not mean that the state has
consented to be sued. It simply means that, if held liable, the
officer pays the damages and the state
indemnifies or reimburses him. All officers, state or local, may
therefore be sued in their individual
capacity under § 1983.
2. Officers of Local Agencies
Officers of counties, judicial districts, municipalities, or other
political subdivisions may be sued in
their official or individual capacities. As in the case of state
officers, however, plaintiffs will likely sue
officers in their official capacities so they can include their
supervisors and agencies as defendants.
VI. KINDS OF DAMAGES AWARDED IN CIVIL
LIABILITY CASES
In general, three kinds of damages may be awarded in civil
liability cases, particularly to those who
file under state tort law:
A. Actual or Compensatory Damages
These damages reduce to monetary terms all actual injuries
shown by the plaintiff. Consequential
damages, such as medical bills and lost wages, are termed
“special damages” and are included in
the category of compensatory damages.

B. Nominal Damages
These are an acknowledgment by the court that the plaintiff
proved his cause of action, usually in the
amount of $1. When the plaintiff was wronged but suffered no
actual injury, nominal damages would
be appropriate.
In one case, Brooker v. N.Y., for example, a plaintiff who was
arrested by state police officers, was
grabbed by the neck and pulled out of a tavern. In a claim
alleging assault and battery, the court
awarded $1 in nominal damages, finding that the plaintiff
suffered “no injury” from the use of force
and made “embarrassingly phony” moans of pain only when
someone started to videotape the
events.13 Courts, have held that a nominal damage award must
be entered where a constitutional
violation has been found, even if no actual damages resulted.14
Where nominal damages vindicate the plaintiff as wronged, the
door to punitive damages is opened,
with or without a compensatory damage award. Nominal
damages also lay the basis for awarding
1983 attorney fees in that they identify the prevailing party.
These fees are not automatic in cases
involving nominal damages, however; the Supreme Court has
held that courts must …
Office of Justice Programs
Bureau of Justice Statistics

BJS
Special Report
April 2014 ncj 244205
Recidivism of Prisoners Released in 30 States
in 2005: Patterns from 2005 to 2010
Matthew R. Durose, Alexia D. Cooper, Ph.D., and Howard N.
Snyder, Ph.D., BJS Statisticians
Overall, 67.8% of the 404,638 state prisoners released in 2005
in 30 states were arrested within 3 years of release,
and 76.6% were arrested within 5 years of
release (figure 1). Among prisoners released in
2005 in 23 states with available data on inmates
returned to prison, 49.7% had either a parole
or probation violation or an arrest for a new
offense within 3 years that led to imprisonment,
and 55.1% had a parole or probation violation
or an arrest that led to imprisonment within
5 years.
While prior Bureau of Justice Statistics (BJS)
prisoner recidivism reports tracked inmates
for 3 years following release, this report used
a 5-year follow-up period. The longer window
provides supplementary information for
policymakers and practitioners on the officially
recognized criminal behavior of released
prisoners. While 20.5% of released prisoners
not arrested within 2 years of release were
arrested in the third year, the percentage fell to
13.3% among those who had not been arrested
within 4 years. The longer recidivism period
also provides a more complete assessment of

the number and types of crimes committed
by released persons in the years following
their release.
HIGHLIGHTS
Among state prisoners released in 30 states in 2005—
� About two-thirds (67.8%) of released prisoners were
arrested for a new crime within 3 years, and three-quarters
(76.6%) were arrested within 5 years.
� Within 5 years of release, 82.1% of property offenders
were arrested for a new crime, compared to 76.9% of drug
offenders, 73.6% of public order offenders, and 71.3% of
violent offenders.
� More than a third (36.8%) of all prisoners who were arrested
within 5 years of release were arrested within the first
6 months after release, with more than half (56.7%) arrested
by the end of the first year.
� Two in five (42.3%) released prisoners were either not
arrested or arrested once in the 5 years after their release.
� A sixth (16.1%) of released prisoners were responsible for
almost half (48.4%) of the nearly 1.2 million arrests that
occurred in the 5-year follow-up period.
� An estimated 10.9% of released prisoners were arrested in
a state other than the one that released them during the
5-year follow-up period.
� Within 5 years of release, 84.1% of inmates who were age 24
or younger at release were arrested, compared to 78.6% of
inmates ages 25 to 39 and 69.2% of those age 40 or older.

0
20
40
60
80
100
Return to prisonb
Convictionc
Arresta
60544842363024181260
Percent who recidivated
Time from release to �rst arrest (in months)
Figure 1
Recidivism of prisoners released in 30 states in 2005, by time
from
release to first arrest that led to recidivating event
Note: Prisoners were tracked for 5 years following release in 30
states. Some states were excluded
from the specific measures of recidivism. See Methodology.
aBased on time from release to first arrest among inmates
released in 30 states.
bBased on time from release to first arrest that led to a prison
sentence or first prison admission

for a technical violation without a new sentence among inmates
released in 23 states.
cBased on time from release to first arrest that led to a
conviction among inmates released in 29
states.
Source: Bureau of Justice Statistics, Recidivism of State
Prisoners Released in 2005 data collection.
2Recidivism of PRisoneRs Released in 30 states in 2005:
PatteRns fRom 2005 to 2010 | aPRil 2014
Factors contributing to differences with prior BJS studies
Policymakers, practitioners, researchers, and the general
public may be interested in understanding how the 2005
prisoner recidivism rates in this report compare with those in
the previous BJS recidivism study that measured prisoners
released in 1994. While both the 1994 and 2005 studies were
based on systematic samples of persons released from state
prisons, direct comparisons between the published recidivism
statistics should not be made.
Adjustments for some differences in the 1994
and 2005 prison populations are possible
One reason for not directly comparing the 1994 and 2005
recidivism estimates relates to differences in the attributes
of the prisoners included in the two samples. The number of
states contributing released prisoners to the study increased
from 15 in 1994 to 30 in 2005. To control for this difference,
BJS conducted analyses that limited the comparison to the
post-release arrest rates among the inmates released in the
12 states (California, Florida, Maryland, Michigan, Minnesota,
New Jersey, New York, North Carolina, Ohio, Oregon, Texas,
and Virginia) that participated in both studies. Among the

inmates released in these 12 states, an estimated 66.9% of
the 249,657 inmates released in 1994 were arrested for a
new crime within 3 years, compared to an estimated 69.3%
of the 286,829 inmates released in 2005—a 2.4 percentage
point difference.
Another difference between the two studies involved the
demographic and offending characteristics of prisoners
released from the state prisons, attributes known to be related
to recidivism. For example, the proportion of inmates who
were age 40 or older at release increased from 17.2% in the
1994 sample to 32.1% in the 2005 sample. In addition, the
proportion who were in prison for a violent offense increased
from 22.4% in the 1994 sample to 27.4% in the 2005 sample
(table 1).
Table 1
Characteristics of prisoners released in 12 states in 1994
and 2005
Characteristic 1994 2005
All released prisoners 100% 100%
Sex
Male 91.2% 89.9%
Female 8.8 10.1
Race/Hispanic origin
Whitea 32.2% 35.4%
Black/African Americana 46.2 40.5
Hispanic/Latino 20.9 22.4
Othera,b 0.7 1.8
Age at release
24 or younger 20.6% 16.9%
25–29 22.7 18.9

30–34 23.0 16.0
35–39 16.6 16.1
40 or older 17.2 32.1
Most serious commitment offense
Violent 22.4% 27.4%
Property 33.2 29.1
Drug 33.0 31.4
Public orderc 11.4 12.1
Number of released prisoners 249,657 286,829
Note: Estimates based on a sample of 29,387 prisoners released
in 1994 and a
sample of 34,649 prisoners released in 2005 in the 12 states that
participated
in both studies (California, Florida, Maryland, Michigan,
Minnesota, New
Jersey, New York, North Carolina, Ohio, Oregon, Texas, and
Virginia). Data on
the sex of prisoners released in 1994 were known for 100% of
cases, race and
Hispanic origin for 99.9%, and age at release for nearly 100%.
Data on the
sex of prisoners released in 2005 were known for 100% of
cases, race and
Hispanic origin for 99.8%, and age at release for 100%. See
appendix table 1
for standard errors.
aExcludes persons of Hispanic or Latino origin.
bIncludes persons identified as American Indian or Alaska
Native; Asian,
Native Hawaiian, or other Pacific Islander; and persons of other
races.
cIncludes cases in which the prisoner’s most serious offense
was unspecified.

Prisoners Released in
1994 and 2005 data collections.
Continued on next page.
BJS standardized the demographic (i.e., sex, race, Hispanic
origin, and age) and commitment offense distribution of the
2005 cohort to the distribution of the 1994 cohort to control
for the effects these factors had on the overall recidivism
estimates. (See Methodology for more information.) These
calculations produced the 3-year arrest rate of prisoners
released in 2005 that would have been observed if the 2005
release cohort had the characteristics of the 1994 cohort. After
adjusting for these compositional differences, the estimated
percentage of the 2005 released prisoners who were arrested
within 3 years rose to 71.6%, a recidivism rate 4.7% greater
than the 1994 estimate (66.9%) (table 2). However, these
analyses only partially address the differences between the
1994 and 2005 studies.
Additional death records on released prisoners
leads to increases in recidivism rates
A critical difference between the 1994 and 2005 studies was
the use of the Social Security Administration’s public Death
Master File (DMF) in the 2005 study to identify individuals
who died during the follow-up period. (See Methodology for
more information.) These individuals should be removed from
the analysis because they artificially reduce the calculated
recidivism rates. The 1994 study limited the identification of
released prisoners who died to those who had an indication

of death on their criminal history record (i.e., rap sheet). The
2005 study supplemented the death information obtained
from the FBI’s Interstate Identification Index (III) with the
DMF data. Based on both sources of information, 1,595 of the
70,878 inmates sampled for the 2005 study had died during
the 5-year follow-up period. Less than 10% of those deaths
were captured in the fingerprint verified death information
that criminal justice agencies submitted to the FBI’s III system.
If the DMF data had not been used in the 2005 study and
the rap sheets of these individuals had been included in the
analyses, the estimated 5-year recidivism rate would have
been about one-half of one percent lower.
Effec ts of the criminal histor y record
improvements on recidivism research are
difficult to quantify
Direct comparisons between the published recidivism rates
from the 1994 and the new 2005 study are also difficult due
to the completeness of the criminal history records available
to BJS at the time of the data collections. Both studies were
based on fingerprint-verified automated rap sheets stored in
the FBI and the state repositories. While both studies relied
on records within the FBI’s III system for information on the
arrests and prosecutions that occurred outside of the states that
released the inmates, the 2005 study used new data collection
capabilities to directly access the criminal history record
systems
of all 50 states and obtain more comprehensive out-of-state
information than what was available for the 1994 study. (See
Methodology for more information.) In addition, BJS was
unable
to obtain any out-of-state criminal history information on
the prisoners released in one state in the 1994 study due to a
nondisclosure agreement.

Table 2
Population-adjusted percent of prisoners arrested for a
new crime within 3 years following release in 12 states in
1994 and 2005, by demographic characteristics and most
serious commitment offense
Characteristic 1994 2005a
All released prisoners 66.9% 71.6%**
Sex
Male 67.8% 72.5%**
Female 57.2 62.9**
Whiteb 61.7% 68.8%**
Black/African Americanb 71.9 74.0**
Hispanic/Latino 64.6 70.7**
Otherb ,c 53.6 72.6**
Age at release
24 or younger 74.7% 78.2%**
25–29 69.8 73.4**
30–34 68.3 70.3
35–39 66.3 71.8**
40 or older 52.4 62.9**
Violent 60.9% 65.6%**
Property 73.2 77.6**
Drug 66.3 71.4**
Public orderd 62.2 66.9**
in 1994 and a

participated
in both studies. See appendix table 2 for standard errors.
**Difference between the estimate on the 1994 cohort and the
estimate on
the standardized 2005 cohort was statistically significant at or
above the 95%
confidence interval.
aEstimates of inmates released in 2005 have been standardized
to the
distribution of inmates released in 1994 by sex, race, Hispanic
origin, age at
release, and most serious commitment offense. The unadjusted
estimate for
the 2005 cohort was 69.3%.
bExcludes persons of Hispanic or Latino origin.
cIncludes persons identified as American Indian or Alaska
Native; Asian,
races.
dIncludes cases in which the prisoner’s most serious offense
was unspecified.
(continued)

The improved reporting of arrests and prosecutions
maintained by the FBI and state repositories in the decade
between the two studies also resulted in more complete
documentation of the official criminal records of prisoners
released in 2005. The quality of rap sheets has improved since
the mid-1990s due to efforts funded by individual states and
by BJS’s National Criminal History Improvement Program
(NCHIP), which awarded more than $500 million over this
period to states for criminal history record improvements. As a
result, many existing paper arrest records were automated and
stored within a computerized criminal history system. Also,
the growth in the use of automated fingerprint technology
(e.g., livescan) reduced the proportion of illegible fingerprint
images delivered to the repositories, resulting in more arrests
and court adjudications being recorded on the rap sheets.
In addition, while local law enforcement agencies historically
limited their criminal history repository submissions to arrests
for felonies and serious misdemeanors, the reporting of less
serious misdemeanors or minor infractions expanded during
this time, although it is unknown whether this increase is due
to changes in reporting practices or changes in the criminal
behaviors of the released prisoners. In general, violent crimes
are considered to be more serious than public order offenses.
Among the prisoners who were arrested for a new crime
within 3 years, public order offenses made up 36.0% of the
first post-release arrests for the 2005 cohort, compared to
22.9% of the first post-release arrests for the 1994 cohort
(table 3). Violent offenses accounted for 14.8% of the first
post-release arrests for the 2005 cohort, compared to 18.8% of
the first post-release arrests for the 1994 cohort.*
Table 3
First arrest charge of prisoners arrested for a new crime
within 3 years following release in 11 states in 1994

and 2005
Most serious arrest charge 1994 2005
All released prisoners 100% 100%
Violent 18.8% 14.8%
Property 28.8 23.6
Drug 29.5 25.6
Public order* 22.9 36.0
Estimated number of prisoners with a
post-release arrest 161,000 191,000
in 1994 and a
participated
in both studies and included charge descriptions in their arrest
records.
Number of arrests was rounded to the nearest 1,000. First arrest
may include
multiple charges; the most serious charge is reported in this
table. See
appendix table 3 for standard errors.
*Includes cases in which the prisoner’s most serious offense
was unspecified.
(continued)
*These estimates were based on prisoners released in the 11
states
in both studies that included charge descriptions in their
criminal
history records.

As a result of the improvements to the nation’s criminal history
records, the rap sheets of prisoners released in 2005 likely
captured more complete offending histories than the rap
sheets used in the 1994 study. These improvements would
have resulted in higher observed recidivism rates in 2005
than in 1994, even if the two samples had the same true
recidivism rates.
BJS conducted a test of this assumption by comparing the
recidivism rates of the 1994 and 2005 samples using only new
arrests for a violent offense. The logic behind this test was
that, while the rap sheets for the 2005 cohort may contain
more arrests overall and more arrests for minor offenses,
arrests for violent offenses should be well represented in both
sets of rap sheets. Using this more serious indictor of criminal
behavior and controlling for cohort differences in offender
demographics and most serious commitment offense, the
percentage of released prisoners who were arrested for a
violent crime within 3 years following release did not differ
significantly between the 1994 (21.3%) and 2005 (21.8%)
cohorts (table 4).
The stability in the 1994 and 2005 recidivism rates when
recidivism is measured as a new arrest for a violent crime and
the difference observed when recidivism is measured as a
new offense for any offense raises questions about the overall
consistency of rap sheet content between the 1994 and 2005
studies. More research is required to better understand the

effects of rap sheet improvements on observed recidivism
rates. However, given the limited empirical data currently
available on the state-level changes in rap sheet content since
the mid-1990s, the effects of rap sheet improvements on the
observed recidivism rates cannot be quantified, and statistical
adjustments for their effects cannot be made. Therefore, it
is not advisable to compare the 2005 recidivism rates in this
report with those found in earlier BJS reports until we have a
deeper understanding of the changes in rap sheet content.
Table 4
Population-adjusted percent of prisoners arrested
for a violent crime within 3 years following release
in 11 states in 1994 and 2005, by demographic
characteristics and most serious commitment offense
Characteristic 1994 2005a
All released prisoners 21.3% 21.8%
Sex
Male 22.4% 22.7%
Female 10.2 13.1**
Whiteb 16.4% 19.3%**
Black/African Americanb 26.2 25.3
Hispanic/Latino 18.7 18.5
Otherb,c 19.0 18.5
Age at release
24 or younger 28.9% 28.6%
25–29 23.9 24.8
30–34 21.2 20.1
35–39 17.3 19.5
40 or older 12.7 14.3

Violent 27.0% 24.8%**
Property 21.4 22.2
Drug 18.4 19.5
Public orderd 17.9 21.4**
in 1994
and a sample of 32,155 prisoners released in 2005 in the 11
states that
participated in both studies and included charge descriptions in
their
arrest records. See appendix table 4 for standard errors.
**Difference between the estimate on the 1994 cohort and the
estimate
on the standardized 2005 cohort was statistically significant at
or above
the 95% confidence interval.
aEstimates of inmates released in 2005 have been standardized
to the
distribution of inmates released in 1994 by sex, race, Hispanic
origin, age at
release, and most serious commitment offense. The unadjusted
estimate
for the 2005 cohort was 20.1%.
bExcludes persons of Hispanic or Latino origin.
cIncludes persons identified as American Indian or Alaska
Native; Asian,
races.
dIncludes cases in which the prisoner’s most serious offense
was unspecified.
Prisoners Released
in 1994 and 2005 data collections.

(continued)
Criminal history and prison records were used to
document recidivism patterns
This study estimates the recidivism patterns of 404,638
persons released in 2005 from state prisons in 30 states. In
2005, these states held 76% of the U.S. population and were
responsible for 77% of the prisoners released from U.S.
prisons (not shown). A representative sample of inmates
released in 2005 was developed for each of the 30 states
using data reported by state departments of corrections to
BJS’s National Corrections Reporting Program (NCRP),
yielding a final sample of 68,597 persons. (For a complete
description of the sampling and weighting procedures, see
Methodology.) Using information contained in state and
federal criminal history records (i.e., rap sheets) and the
records of state departments of corrections, this report
details the arrest, adjudication, conviction, and incarceration
experiences of these former inmates within and outside of
the state that released them for a 5-year period following
their release from prison.
This research has attempted to minimize the effect on
recidivism statistics posed by state variations in criminal
history reporting policies, coding practices, and coverage.
The analysis excluded arrest events in the rap sheets that
were not commonly recorded by all states (e.g., arrests for
many types of traffic offenses). The analysis also excluded

sections of the rap sheets that recorded the issuance of a
warrant as an arrest event when no arrest actually occurred.
Some variations in the content of rap sheets remained and
cannot be remediated, such as the nature of the charging
decision. For example, when an inmate on parole is arrested
for committing a burglary, some local law enforcement
agencies coded the arrest offense as a parole violation, some
coded it as a burglary, and others coded both the burglary
and the parole violation. Given that this is often a local
coding decision, it is difficult to discern from the contents
of the rap sheets which charging approach was employed at
each arrest.
Along with these coding variations, it is commonly
assumed that the information derived from criminal history
repositories understates the criminal histories of offenders,
especially information on actions that occurred over 20 years
ago. While it cannot be quantified at this time, the common
perception is that, through targeted funding and the efforts
of criminal justice practitioners across the country, the
quality and completeness of rap sheets has improved so that
they provide better assessments of recidivism patterns.
Among the 404,638 prisoners released in 30 states in
2005, 31.8% were in prison for a drug offense, 29.8% for a
property offense, 25.7% for a violent offense, and 12.7% for
a public order offense (table 5). Nearly 9 in 10 (89.3%) of
released prisoners were male. More than a third (36.9%)
of these persons were under age 30 at release, and about
a third (31.5%) were age 40 or older. The proportions
of non-Hispanic black (40.1%) and non-Hispanic white
(39.9%) prisoners were similar. An estimated 25.7% of the
released prisoners had 4 or fewer prior arrests, while 43.2%
had 10 or more. Half of the released prisoners had 3 or more
prior convictions.

Table 5
Characteristics of prisoners released in 30 states in 2005
Characteristic Percent
All released prisoners 100%
Sex
Male 89.3%
Female 10.7
Whitea 39.9%
Black/African Americana 40.1
Hispanic/Latino 17.7
Othera,b 2.4
Age at release
24 or younger 17.6%
25–29 19.3
30–34 15.9
35–39 15.7
40 or older 31.5
Violent 25.7%
Property 29.8
Drug 31.8
Public orderc 12.7
Number of prior arrests per released prisonerd
2 or fewer 11.5%
3–4 14.2
5–9 31.1
10 or more 43.2
Mean number 10.6

Median number 7.8
Number of prior convictions per released prisonerd
Mean number 4.9
Median number 3.1
Number of released prisoners 404,638
Note: Data on the prisoner’s sex were known for 100% of cases,
race and Hispanic
origin for nearly 100%, and age at release for 100%. See
appendix table 5 for
standard errors.
aExcludes persons of Hispanic or Latino origin.
bIncludes persons identified as American Indian or Alaska
Native; Asian, Native
Hawaiian, or other Pacific Islander; and persons of other races.
cIncludes 0.8% of cases in which the prisoner’s most serious
offense was
unspecified.
dIncludes arrest and conviction that resulted in the
imprisonment.
Prisoners Released in 2005
data collection.
1 in 10 state prisoners had an out-of-state arrest
within 5 years of release
An estimated 24.7% of the released prisoners had a prior
arrest in a state other than the one that released them

(table 6). About 1 in 10 (10.9%) released prisoners were
arrested at least once outside the state that released them
during the 5-year follow-up period. These statistics show
the limitations of recidivism studies that only have access to
in-state criminal history information.
3 in 4 state prisoners were arrested within 5 years of
release
Within 1 year after their release from state prison, 43.4%
of prisoners had been arrested either in or outside of the
state that released them. This percentage grew each year,
increasing to 59.5% by the end of the second year, 67.8% by
the end of the third year, and 76.6% by the end of the 5-year
follow-up period.
Another way to view these recidivism statistics is to consider
how quickly those who recidivated actually did so. More
than a third (36.8%) of all released prisoners who were
arrested within 5 years of release were arrested within the
first 6 months, with more than half (56.7%) arrested by the
end of the first year (not shown).
The longer released prisoners went without being arrested,
the less likely they were to be arrested within the 5-year
period. For example, compared to the arrest rate of 43.4%
in the first year after release, 28.5% of persons not arrested
in the first year were arrested for the first time in the second
year following their release from prison (figure 2). Similarly,
for those not arrested by the end of the second year, 20.5%
were arrested by the end of the third year, with the arrest rate
falling to 16.1% in the fourth year. Finally, 13.3% of released
prisoners who went 4 years without an arrest were arrested
in the fifth year.
The 404,638 persons released in 2005 were arrested an

estimated 1,173,000 times in the 5 years after release (table 7).
While some of them had a large number of arrests in the follow-
up period (maximum of 81), most did not. Among all released
prisoners, the average number of arrests in the 5-year period
was 2.9, while the median number of arrests was 1.5. About
2 in 5 (42.3%) of all releasees were arrested no more than once
in the 5-year period, and more than half (57.6%) had fewer
than 3 arrests in the 5 years following their release. Despite
this, among released prisoners who were arrested at least once
Table 6
Out-of-state arrests of prisoners released in 30 states in 2005
Out-of-state arrests Percent
Prior to release
1 or more 24.7%
1–4 17.5
5–9 4.3
10 or more 2.9
Post-release
1 or more 10.9%
1–4 9.6
5–9 1.1
10 or more 0.2
Note: Prisoners were tracked for 5 years following release.
Arrested out-of-state
includes arrests that occurred in states other than the one that
released the
prisoner in 2005. See appendix table 6 for standard errors.
data collection.

Table 7
Post-release arrests of prisoners released in 30 states in 2005
Post-release arrests Percent
All released prisoners 100%
None 23.4
1 18.9
2 15.3
3 11.5
4 8.5
5 6.4
6 or more 16.1
Estimated number of post-release arrests 1,173,000
Mean number per released prisoner 2.9
Median number per released prisoner 1.5
Number of released prisoners 404,638
Note: Prisoners were tracked for 5 years following release.
Number of post-release
arrests was rounded to the nearest 1,000. See appendix table 8
for standard errors.
data collection. Source: Bureau of Justice Statistics, Recidivism
of State Prisoners
Released in 2005 data collection.
Figure 2
Percent of prisoners arrested during the year who had not
been arrested since release in 30 states in 2005
Note: The denominators for the annual rates were 404,638 for
year 1; 229,035
for year 2; 163,679 for year 3; 130,128 for year 4; and 109,186
for year 5. The

numerators include persons arrested in the year who had not
been arrested since
release. See appendix table 7 for standard errors.
data collection.
0
10
20
30
40
50
Year 5Year 4Year 3Year 2Year 1
Percent arrested
28.5
20.5
16.1
13.3
43.4
Year after release

during the 5-year follow-up period, three-quarters (75.4%) were
arrested again during the 5-year period (not shown). About a
sixth (16.1%) of released prisoners were responsible for about
half (48.4%) of the 1,173,000 arrests of released prisoners that
occurred in the 5-year follow-up period.
Prisoners released after serving time for a property
offense were the most likely to be arrested
Within 5 years of release, 82.1% of prisoners who had been
committed for a property offense had been arrested for a
new offense, followed by 76.9% of those committed for a
drug offense (figure 3 and table 8). Offenders sentenced for
a violent (71.3%) or public order offense (73.6%) were the
least likely to be arrested after …
National Institute of Justice
JUN
E 2014
N AT I O N A L I N S T I T U T E O F J U S T I C E
RESEARCH
IN BRIEF

Cost-Benefit
Analysis
A GUIDE FOR
DRUG COURTS AND
OTHER CRIMINAL
JUSTICE PROGRAMS
BY P. MITCHELL DOWNEY
AND JOHN K. ROMAN
810 Seventh St. N.W.
Washington, DC 20531
Eric H. Holder, Jr.
Attorney General
Karol V. Mason
Assistant Attorney General
Greg Ridgeway
Acting Director, National Institute of Justice
This and other publications and products
of the National Institute of Justice can be
found at:
National Institute of Justice
http://www.nij.gov

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RESEARCH
N AT I O N A L I N S T I T U T E O F J U S T I C E
JUN
E 2014
IN BRIEF
Cost-Benefit
Analysis
A GUIDE FOR DRUG COURTS AND
OTHER CRIMINAL JUSTICE PROGRAMS
BY P. MITCHELL DOWNEY AND JOHN K. ROMAN
Findings and conclusions of the research reported here are those
of the
authors and do not necessarily reflect the official position or
policies of the
U.S. Department of Justice.
NCJ 246769
RESE ARCH IN BRIEF 3
National Institute of Justice | NIJ.gov

Cost-Benefit
Analysis
A GUIDE FOR DRUG COURTS AND
OTHER CRIMINAL JUSTICE PROGRAMS
BY P. MITCHELL DOWNEY AND JOHN K. ROMAN
P
olicymakers and practitioners face difficult decisions when they
allocate resources. As resource constraints have tightened,
the role of researchers in informing evidence-based and cost-
effective decisions about the use of funds, labor, materials and
equipment — and even the skills of workers — has increased.
We believe
research that can inform decisions about resource allocation
will be a central
focus of criminal justice research in the years to come, with
cost-benefit
analysis (CBA) among the key tools. This report about the use
of CBA is
aimed at not only researchers but also practitioners and
policymakers who
use research to make choices about how to use limited
resources. Although
we include NIJ’s Multi-site Adult Drug Court Evaluation
(MADCE) as an
example of CBA in practice, this report is not just about using
CBA in
drug courts.
Our intent is to help researchers, state agencies, policymakers,
program
managers and other criminal justice stakeholders understand:

• What CBA is and in which contexts it is appropriate.
4 Cost-Benefit Analysis: A Guide for Drug Courts and Other
Criminal Justice Programs
•
Which kinds of information can — and should — be collected to
facilitate
a CBA.
• What the results of a CBA mean.
This report is divided into three sections. In the first section,
“The Basics of
Cost-Benefit Analysis,” we describe the foundations of CBA:
the motivation
for performing a CBA, what CBA can (and cannot) tell us, and
the general
principles used in conducting CBA in terms of the conceptual
basis and an
applied framework. In the second section, “Cost-Benefit
Analysis in Action:
NIJ’s MADCE,” we apply the framework and illustrate the
necessary steps
using NIJ’s MADCE as a case study. In the third section, “NIJ’s
MADCE
Results,” we present the findings from NIJ’s MADCE and
demonstrate how
the results provide new and useful information that would not
have been

available without conducting such an analysis.
Report Highlights
In this report, we address several key cost-benefit analysis
(CBA)
concepts, including:
• The difference between what cost-benefit researchers believe
they
are producing and what policymakers often believe they are
receiving.
Researchers believe they are estimating societal benefits,
whereas
policymakers believe they are receiving estimated fiscal
benefits; this
confusion has important policy implications (see “Cost-benefit
analysis:
What and why” on page 5).
• A variety of data sources and analytical approaches that have
wide
applicability throughout criminal justice CBA (see “Site-
specific prices”
on page 16 and “National prices” on page 17).
• Practical considerations for conducting a CBA and a look at
information
often missing from technical reports, which tend to focus more
on
principles and theoretical foundations (see sidebar, “Practical
Considerations of Conducting a Cost-Benefit Analysis,” on page
20).

The Basics of Cost-Benefit Analysis
Cost-benefit analysis: What and why. Why conduct a CBA?
Unlike
other types of analysis, CBA offers a comprehensive framework
for
combining a range of impacts. Consider a law that bans smoking
in
restaurants. Such a law has several positive effects (called
benefits),
including improved health of restaurant staff and diners as well
as a more
pleasant atmosphere for nonsmokers. The same law, however,
also has
some negative impacts (called costs), such as inconveniencing
smokers
and the added expense to restaurant owners to enforce and
publicize the
new law. Note that these impacts are not all financial. Although
money is
a useful metric for combining diverse outcomes, the key
contribution of
CBA is providing a framework on which to combine diverse
impacts.
CBA is usually subject to two key criticisms. First, some people
argue that
CBA values things that cannot be valued, such as pain and
suffering from
violent victimization or loss of life. A common response to this
criticism
is to ask, “Would you support a program that spent $1 trillion to

prevent
a single homicide?” If you would not support such a program,
then you
are implicitly conducting a CBA and designating the value of a
human life.
In the same way, CBA seeks to balance the use of resources to
solve a
variety of problems, but to do so using evidence carefully,
consistently and
transparently.
The second criticism involves the way in which things are
valued. For
instance, CBA theory uses wages and earnings to approximate
the value
of someone’s time and his or her productivity (see sidebar,
“Considerations
in Valuing Time”). Suppose a probation officer makes $25 per
hour and a
program saves him or her one hour. Standard CBA counts that
one hour
saved as a $25 benefit of the program. Many people find this
approach
inappropriate. The program may save one hour of “probation
officer time,”
but this savings doesn’t reduce agency costs. This issue
highlights the
importance of understanding CBA’s goals: CBA does not seek
to estimate
fiscal savings but, rather, seeks to estimate social value. If that
same
probation officer spends his or her time doing another
productive activity,
as is assumed in CBA and economic theory, then this is a
productivity
gain and a benefit of the program. Still, it is reasonable (in our

view) to
criticize this assumption. This criticism, however, doesn’t reject
CBA in
its entirety — rather, it is an argument about how CBA is
conducted. A
good CBA makes its assumptions transparent and identifies how
these
assumptions affect the results.
These arguments are not the only criticisms of CBA. Analysts
often
debate what discount rate to use, the validity of willingness-to-
pay in the
presence of inequality, and the difficulty in valuing equity and
justice. In this
report, we focus on the two criticisms initially described,
because they are
commonly heard and can be addressed through the practice of
CBA.
CBA is inherently comparative; it is particularly useful for
comparing two
programs or alternatives that may have different types of
impacts. When
a program’s net benefits are compared with zero (i.e., deemed
“cost
beneficial” or “not cost beneficial”), the net benefits are
implicitly being
compared with business as usual (i.e., what is usually done
without the

policy change).
CONSIDERATIONS IN VALUING TIME
A critical element of cost-benefit analysis (CBA) is valuing the
time spent by workers. A
program might increase a probationer’s time spent with a
probation officer, reducing the
amount of time that the officer has to fulfill other
responsibilities. It is possible that neither
of these outcomes will have an impact on an agency’s spending,
but if the time could have
been spent productively on other activities, then both outcomes
have implications for available
resources. In other words, without the program, the officer may
have conducted additional
patrols, thereby contributing to society. Spending time on
additional patrols and community-
based approaches to crime prevention contributes to the larger
community. Without
the program in place, the probation officer may instead spend
time on enhanced client
interactions that are designed to reduce violence and
revocations. CBA draws upon a long
tradition in economic theory and assumes that an individual’s
wage is equal to the marginal
value contributed to society by his or her time. This assumption
is an uncomfortable one for
many people, including the authors of this report. However, this
approach remains standard
practice in the literature, and this report repeatedly uses wages
to measure productivity and
the social value of time.

What Cost-Benefit Analysis Can and Cannot Do
Cost-benefit analysis (CBA) can:
• Tell us the impact of a program on a wide range of outcomes.
• Offer guidance on how to balance these diverse impacts.
• Tell us how the program draws from (or contributes to) the
pool of
available resources.
CBA cannot:
• Provide the end-all, be-all, irrefutable, definitive answer to all
policy
questions.
• Do anything without a strong impact analysis.
• Tell us how much money an agency or jurisdiction will save
by
implementing a particular program.
CBA is useful because it combines different types of
information into a
single metric, allowing for comparisons that could not otherwise
be made.
CBA provides guidance on how to balance these different types
of impacts.
CBA also tells decision-makers how the program draws from or
adds to

resources (not just funding) that are available for other
programs and offers
guidance on what it would take to replenish those resources.
CBA, however, is not a magic bullet that can answer all policy
questions.
For one thing, without a strong impact evaluation, a CBA is
meaningless;
that is, to estimate (and value) the impact of a program on
resources,
we need to be able to convincingly estimate what effect the
program
had (i.e., compare outcomes when the program is present with
outcomes
when the program is absent). To do so requires implementing a
strong
research design (including, but not limited to, random
assignment) and
collecting enough data for both the treatment and comparison
groups to
determine what would have happened in the absence of the
program.
Because CBA is inherently comparative, data about program
participants
alone is not enough. Second, although CBA theory provides a
framework
for valuing any impact, as a matter of practice, impacts often
simply can’t
be valued (see “Cost-Benefit Analysis in Action: NIJ’s
MADCE” on page 11).

Finally, CBA does not tell us how much money an agency or
jurisdiction
can expect to save from a particular program. This is not the
purpose of
a CBA, and the methods are not designed to answer this
question. CBA,
as described below, is about social well-being and resources,
not about
fiscal impacts. This is an important point that is often
overlooked and must
be considered. Within this report, we emphasize the discrepancy
between
what cost-benefit researchers think they are producing (i.e.,
estimates of
societal well-being) and what policy stakeholders think they are
receiving
(i.e., advice about fiscal savings).
The steps of a cost-benefit analysis. CBA can be thought of as
progressing through four steps:
1.
Choose the population.
2. Select potential impacts.
3. Consider how the program might change well-being.
4. Determine how society values these changes.

It is important to keep in mind that the final goal of a CBA is to
estimate
the social benefit (or cost) of a program. In the following
paragraphs, we
describe the conceptual steps and then offer an applied
framework. Finally,
we show how these steps work in practice through NIJ’s
MADCE.
1. Choose the population. The first step of a CBA is to
determine the
population you are interested in (called the “standing” of the
study). In
brief, the study’s standing is the group whose well-being is
changed by a
new policy or practice. Stated another way, the standing is the
population
whose costs and benefits are counted. A study’s standing might
be all
of society, all of society excluding the program participants, or
all tax-
paying citizens. Choosing which group has standing is a value-
based
decision that depends on the nature of the program, the analysis,
and the
decision-makers or stakeholders. For example, a CBA of a
mandatory job
training program for recipients of government assistance
generally includes
program participants in its standing, whereas a CBA of
sentencing policy
generally does not include prisoners in its standing (although it
could). In
practice, the selection of the standing in the aforementioned
examples

means that one cost of the job training program would be the
value of the
time that clients give up to participate in training (economists
call this the
“opportunity cost” of participants’ time), whereas a sentencing
CBA would
not include the opportunity cost of the prisoners’ time.
2. Select potential impacts. Select the potential impacts to
include in
the analysis. First, consider what might have changed as a result
of the
program. In a criminal justice context, potential impacts often
mean
changes in behavior (e.g., employment, criminal offenses) or
resources
used (e.g., police time, jail beds, court hearings). Think about
what effects
the program may have had, identify the impacts you can
plausibly measure,
and estimate the size of the changes that the program caused (if
any). This
step is the reason that a CBA relies on a strong impact
evaluation. Without
an impact evaluation, estimating the program’s effects is
impossible, and,
thus, there are no effects to value. Economists sometimes say
that an
evaluation is “well identified” if it convincingly isolates the
causal impacts

of the program.
3. Consider how the program might change well-being. Consider
how
the program’s effects might have changed the well-being (either
positively
or negatively) of someone in the standing. For instance, a
program that
increases meetings with a probation officer might decrease the
time
that the officer has to work with other clients. A program that
improves
participants’ educational outcomes might lead participants to
make
greater contributions to society through employment.
Regardless,
this step translates the program’s impacts into social well-
being.i
iEconomists usually call this “social welfare” or just “welfare.”
To avoid confusion with the
unrelated government assistance programs, we often say “well-
being” instead, even though
researchers more commonly use the term “welfare.”
4. Determine how society values these changes. Find
information
either from within or outside of the evaluation to determine how
society
values these changes. For instance, ask, “How much does
society value
a probation officer’s time?” Or, “How much does society value
more and
better education?” Keep in mind that the answers to these
questions have
nothing to do with the analysts’ beliefs about how much these

issues
should be valued; rather, the analyst must use existing data to
estimate,
based on observed behavior, how society does in fact value
these changes.
Steps 3 and 4 could be considered the key contributions to —
and the key
challenges of — conducting a CBA.
Implementing the conceptual framework. To implement the
conceptual framework, we must “ground” our thinking: First,
we think of
each cost (or benefit) as a price multiplied by a quantity.
Because a cost is
simply a negative benefit, we tend to use the terms “costs” and
“benefits”
interchangeably. Using the terms interchangeably allows us to
illustrate
that both costs and benefits measure how the program affected
social
well-being (either positively or negatively) and that costs and
benefits
are not fundamentally different concepts.
The quantities used in CBA are the main project inputs (e.g.,
hours of
training) and the outcomes of interest (e.g., number of arrests,

number of
treatment episodes, hours of employment). These quantities are
drawn
from the impact analysis, which must include comparable
information for
the comparison group. The prices are the way that well-being is
affected
(e.g., resources used per arrest/treatment episode, social value
contributed
by employment). This information is drawn from surveys,
observations,
prior research and a variety of other sources of information. We
discuss
some examples in the next section.
After deciding which impacts to include, the researchers
determine the
measure (quantity) and value (price) of the impacts and then
multiply the
quantity (e.g., number of additional drug treatment episodes) by
the price
(e.g., cost of a drug treatment episode) to get the cost (e.g.,
additional
drug treatment episodes). The researchers then can add together
a range
of different costs and benefits to create a measure of “net
benefits.” Net
benefits refers to the benefits minus the costs. For instance, if a
program
costs $50 per participant but yields $150 in social welfare per
participant,
on average, then we say the program yields $100 in net benefits
(per
participant). The resulting net benefits yield an estimate of how
participants
improved or harmed society, combining an array of different

types of
impacts.
The key question is whether the net benefits to society are
greater for the
treatment group (i.e., program participants) than for the
comparison group.
If so, this finding suggests that the program improved societal
well-being,
either by reducing the harm that participants would have done
to society
without the program (i.e., decreasing costs) or by increasing the
value of
participants’ societal contributions (i.e., increasing benefits).
Because the
researchers estimated the quantities using rigorous methods (as
developed
in the impact analysis), we have some confidence that the
program itself
caused the difference.
Cost-Benefit Analysis in Action: NIJ’s MADCE
In this section, we illustrate the general principles previously
described
with a practical example, relying on the CBA component of
NIJ’s MADCE.
We discuss the evaluation of the MADCE only briefly. For more
information
about NIJ’s MADCE, readers may access NIJ’s website, which

includes
links to a number of related publications (search NIJ.gov,
keyword:
MADCE).
In fiscal year 2003, NIJ awarded a grant to the Urban Institute
for a
multisite process, impact and cost evaluation of adult drug
courts in
partnership with the Center for Court Innovation and RTI
International. The
study included 23 drug courts in eight states, with the
comparison group
drawn from six comparison groups where drug court access was
limited.
Overall, 1,787 individuals participated in the study, with about
two-thirds
of them in the treatment group. Study participants were
interviewed at the
time they enrolled in drug court (or would have enrolled for the
comparison
group) and then were interviewed again both six months and 18
months
later. At the 18-month interview, the study participants also
received a
drug test. Finally, at 24 months, the researchers collected
official records
describing participants’ contact with the criminal justice
system. The
researchers also collected cost data from interviews, document
review
and direct observation of court practices. They analyzed the
data using
statistical procedures that accounted for differences between
people
based on a large list of personal characteristics and site-specific

effects,
thereby effectively isolating the impact of drug court
participation on each
individual’s outcomes.
http://www.nij.gov/Pages/welcome.aspx
Figure 1. NIJ’s Multi-site Adult Drug Court Evaluation
Conceptual Framework
The conceptual framework for the MADCE shows how
resources (called “inputs”) are invested to create activities
designed to produce program outputs. The framework proposes
that program activities will result collectively in
immediate or short-term outcomes for the participants. These
immediate and short-term outcomes typically are
measured while the participants are still in the program and
include changes in perception and behavior, such as
drug use and participation in treatment. Program participation
also is expected to result in long-term outcomes,
such as changes in drug use, criminal behavior and other
functions. The framework controls for characteristics of
the target population relating to drug use, criminality and other
risk factors. The framework also recognizes external
conditions beyond the program’s control. These conditions
relate to the general community, legal and penal codes,
and the criminal court. NIJ’s MADCE tested the impact of
court-mandated treatment in a drug court context. The
MADCE comparison groups are not “controls” that receive no
treatment; some of the probationers receive court-

ordered drug treatment, and other probationers use treatment
alternatives for safe communities models.
Drug Court
Context
Community Setting
•
Demographics
• Urbanicity
• Drug arrest rate
• Poverty/economics
Drug Laws
•
Mandatory sentences
• Drug law severity
Court Characteristics
•
Court size
• Court resources
Target Population
Severity
Drug Use
•

Addiction severity
• Drugs of abuse
• Drug use history
Criminality
•
Felony/misdemeanor
charge
• Recidivism risk — prior
arrests/convictions
• Opportunity to offend
(street days)
Other Risk Factors
•
Health problems
• Mental health problems
• Employment problems
• Housing instability
• Family conflict
• Family support
• Close ties to drug users
• Close ties to lawbreakers
Demographics
•

Age, gender, race
• Marital status, children
• Education, income
Drug Court
Practices
Use of Legal Pressure
• Severity of consequences
for failure
Individual Court
Experiences
•
I
Drug court participation
• Drug testing requirements,
practices
• Sanctions rules, practices
• Supervision requirements/
practices
• Prosecution involvement
• nteractions with judge and
supervising officers
• Court appearances

Drug Court Practices
•
Leverage
• Program intensity
• Predictability
• Rehabilitation focus
• Timeliness of intervention
• Admission requirements
• Completion requirements
Drug Treatment
•
Treatment history
• Days of treatment by type
• Treatment requirements
• Support services by type
— offered and used
Offender
Perceptions
Perceived Legal Pressure
• Severity and likelihood of

termination and alternative
sentence
Motivations
• Readiness to change stage
Understanding of Rules
•
Received expected
sanctions and rewards
• Understood expected
behavior
Perceived Risk of
Sanctions and Rewards
•
General deterrence
• Certainty/severity of
sanctions
• Certainty and value of
rewards
Perceptions of Court
Fairness
•
Procedural justice

• Distributive justice
• Personal involvement of
judge and supervising
officer
In-Program
Behavior
Compliance With
Drug Intervention
•
Likelihood of entry
• Number and type of drug
test violations
• Percentage of treatment
days attended
• Treatment duration and
retention
• Treatment graduation and
termination
Compliance with
Supervision
•

Court FTAs — percentage
of scheduled
• Case management
FTAs — percentage of
scheduled
• Violations of supervision
requirements
• Drug court graduation
Post-Program
Outcomes
Reduced Drug Use
•
Any, type, and frequency
of self-reported use
post-program
• Results of saliva test
Reduced Recidivism
•
Any, type, and frequency
of self-reported offending

post-program
• Any, type, and number
of arrests/convictions
post-program
• Decrease in post-
intervention incarceration
Improved Functioning
•
Reduction in health and
mental health problems
• Increase in likelihood and
days of employment
• Gains in economic
self-sufficiency
• Reductions in family
problems
Post-Program Use
of Services
•
Type and amount of drug
treatment/aftercare
• Type and amount of other

support services
Defining impacts and estimating quantities. As discussed
earlier,
we began our analysis by identifying our population of interest
(standing). In principle, the standing could include the program
participants
themselves. Based on prior research, however, we expected drug
court to
lead to a variety of quality-of-life improvements, such as less
severe drug
addiction or improved self-esteem. Estimating an individual’s
personal
value from these benefits seemed difficult or impossible. To
simplify the
analysis, we excluded participants from our standing and valued
only
drug court’s impacts on broader society. Note that societal
benefits
indirectly caused by reduced addiction (such as reduced
criminal activity)
or improved self-esteem (such as social benefits of employment)
would
still be valued. We simply excluded the direct benefits, which
only the
participants experienced.
Next, we sought to define the impacts to be considered. We
asked the

following questions: “Did the program participants come into
contact with
or directly affect society in some way? Did the program affect
someone in
a way that would not have otherwise happened? Did this impact
require the
use of some resources? Could this effect plausibly be valued?”
Through
these questions, we developed a list of potentially measurable
drug court
impacts (see Table 1, Outcomes Measured by NIJ’s Multi-site
Adult Drug
Court Evaluation). Certainly, other impacts may exist,ii but we
believe this
list strikes a balance between comprehensiveness and
feasibility.
Based on the impact evaluation designed as part of NIJ’s larger
MADCE
effort, we then sought to estimate the size of these impacts
(“finding
the quantities”). This step was straightforward, because a
rigorous
research design already had been developed and implemented
for the
impact analysis. We used two types of information: (a) the three
in-depth
interviews and (b) administrative records from state
departments of
corrections, the FBI and state data repositories. We estimated
the impacts
of drug court on arrests, incarcerations and criminal activity
based on
iiFor instance, the interviewer also asked about needle use,
which could have allowed us

to estimate the impact of drug court on HIV/AIDS risk.
However, after initially investigating
this approach, we determined that making this additional
calculation was unnecessarily
complicated to estimate, and, therefore, we excluded it.
Table 1. Outcomes Measured by NIJ’s Multi-site
Adult Drug Court Evaluation
Category Subcategory Examples
Social
productivity
Employment Earnings
Education Schooling
Services and
support given
Child support payments, community
service
Monitoring
Probation officer time, drug tests,
electronic monitor
Police Arrests

Criminal
justice
system
Courts Hearings
Brennan Center for Justice at New York University School of
Law
t h e h i dde n co s ts
of f lor i da’ s
c r i m i n a l j u s t ic e f e e s
Rebekah Diller
about the brennan center
The Brennan Center for Justice at New York University School
of Law is a non-partisan public policy and law
institute that focuses on fundamental issues of democracy and
jus tice. Our work ranges from voting rights
to campaign finance reform, from racial justice in criminal law
to presidential power in the fight against
terrorism. A singular institution – part think tank, part public
interest law firm, part advocacy group – the
Brennan Center combines scholarship, legislative and legal
advocacy, and communications to win meaning-
ful, mea sureable change in the public sector.
about the brennan center’s access to justice project

The Access to Justice Project at the Brennan Center for Justice
at NYU School of Law is one of the few na-
tional initiatives dedicated to helping ensure that low-income
individuals, families and communities are able
to secure effective access to the courts and other public
institutions. The Center advances public education,
research, counseling, and litigation initiatives, and partners with
a broad range of allies – including civil legal
aid lawyers (both in government-funded and privately-funded
programs), criminal defense attorneys (both
public defenders and private attorneys), policymakers, low-
income individuals, the media and opinion elites.
The Center works to promote policies that protect those who are
vulnerable, whether the problem is eviction;
predatory lending; government bureaucracy (including, in some
instances, the courts themselves); employers
who deny wages; abusive spouses in custody disputes or in
domestic violence matters; or other problems that
people seek to resolve in reliance on the rule of law.
© 2010. This paper is covered by the Creative Commons
“Attribution-No Derivs-NonCommercial” license
(see http://creativecommons.org). It may be reproduced in its
entirety as long as the Brennan Center for
Justice is credited, a link to the Center’s web page is provided,
and no change is imposed. The paper may
not be reproduced in part or altered in form, or if a fee is
charged, without the Center’s permission. Please
let the Brennan Center for Justice know if you reprint.
about the author
Rebekah Diller is Deputy Director of the Justice Program at the

Brennan Center for Justice at NYU School
of Law. Ms. Diller coordinates litigation, policy research and
advocacy to improve access to justice for low-
income people and leads the Center’s work on legal financial
obligations. Previously, she served as a staff
attorney and then director of the New York Civil Liberties
Union’s Reproductive Rights Project and as an
attorney representing low-income clients in housing and
government benefits cases at Legal Services for the
Elderly in Queens and Housing Works, Inc. She received her
J.D., with high honors, from New York Uni-
versity School of Law, and her B.A., cum laude, from Rutgers
College.
acknowledgments
Many individuals helped to prepare this report. David Udell
helped conceptualize the report and provided
substantial editing assistance. Elizabeth Cate, Tracy Chin,
Scott Hechinger and Kennon Scott, all students in
the Brennan Center Public Policy Advocacy Clinic at NYU
School of Law, as well as former Brennan Center
intern Ian Vandewalker, played critical research roles. Mitali
Nagrecha and Emily Savner also provided sub-
stantial research and editing assistance. Sidney Rosdeitcher
provided extremely helpful input. Additional
research assistance was provided by Mary Catherine Hendrix,
Jessica Karp, and Cassandra Snyder.
This report could not have been completed without the
assistance of Sandy D’Alemberte and Patsy Palmer of
D’Alemberte & Palmer, PLLC, who serve as the Brennan
Center’s pro bono counsel on the project, Steckley
Lee, of Florida Institutional Legal Services, Nancy Daniels,
Public Defender, Second Judicial Circuit, John
Tomasino of the Second Judicial Circuit Public Defender office,

and the many Florida Department of Cor-
rections officials, court personnel, re-entry advocates, public
defenders, and persons re-entering society who
provided information. We are also grateful to O’Melveny &
Myers LLP, which provided pro bono research as-
sistance. Participants at two convenings hosted by the Florida
Bar Foundation also provided critical insight and
feedback. Vicki Lopez Lukis, Vice-Chair of the Florida
Department of Corrections’ Reentry Advisory Council
and former Chair of Governor Bush’s Ex-Offender Task Force,
provided strategic guidance and help.
This report was supported by a grant from the Florida Bar
Foundation. The statements made and views
expressed in this report are the sole responsibility of the
Brennan Center.
taBle of contents
EXECUTIVE SUMMARY 1
I. INTRODUCTION 4
II. GROWING USE OF LEGAL FINANCIAL OBLIGATIONS
5
A. Florida Law Produces a Confusing and Broad Range of
LFOs 6
B. Florida Has Eliminated Exemptions Traditionally Granted
to Those Who Cannot Afford to Pay 7
C. LFOs Sometimes Subsidize Other Government Functions,
Including General Revenue 8
D. Increasing Pressure on Courts to Raise Funds 9
III. LFOs STRAIN INDIVIDUALS’ LIMITED BUDGETS 10

IV. COLLECTION OF LFOS 13
A. Collections by Court System 13
1. Payment Plans 14
2. Collections Courts and Arrests for Failure to Pay or
Appear 15
3. Other Ways in Which Failure to Pay LFOs Can Result in
Jail Time 20
4. Overuse of Driver’s License Suspensions Hinders Ability
to Repay Debts 20
5. Private Collections Agencies Add Up To 40 Percent
Surcharge on Debt 21
6. Additional Collection Mechanisms 22
B. Department of Corrections Collections 23
V. RECOMMENDATIONS 25
APPENDIX: LFOs ESTABLISHED BY FLORIDA LAW 27
ENDNOTES 34
Brennan Center for Justice | 1
EXECUTIVE SUMMARY
Increasingly, states are turning to so-called “user fees” and
surcharges to underwrite criminal justice costs and
close budget gaps. In this report, we focus on Florida, a state
that relies so heavily on fees to fund its courts
that observers have coined a term for it – “cash register
justice.” Since 1996, Florida added more than 20 new
categories of financial obligations for criminal defendants and,
at the same time, eliminated most exemptions
for those who cannot pay. The fee increases have not been

accompanied by any evident consideration of
their hidden costs: the cumulative impacts on those required to
pay, the ways in which the debt can lead to
new offenses, and the costs to counties, clerks and courts of
collection mechanisms that fail to exempt those
unable to pay.
This report examines the impact of the Florida Legislature’s
decision to levy more user fees on persons ac-
cused and convicted of crimes, without providing exemptions
for the indigent. Its conclusions are troubling.
Florida relies heavily on fees to underwrite its criminal justice
system and, at times, uses monies generated
by fees to subsidize general revenue. In many cases, the debts
are uncollectible; performance standards for
court clerks, for example, expect that only 9 percent of fees
levied in felony cases will be collected. Yet, ag-
gressive collection practices result in a range of collateral
consequences. Missed payments produce more fees.
Unpaid costs prompt the suspension of driving privileges (and,
relatedly, the ability to get to work).
Moreover, collection practices are not uniform across the state.
Court clerks have most of the responsibility.
In some judicial circuits, the courts themselves take a more
active role. At their worst, collection practices
can lead to a new variation of “debtors’ prison” when
individuals are arrested and incarcerated for failing to
appear in court to explain missed payments.
As most prisons and jails are at capacity, and unemployment
and economic hardship are widespread, it is
time to consider whether heaping more debt on those unable to
afford it is a sensible approach to financing
essential state functions.

key findings
Florida increasingly relies on fees to finance core government
functions. 1. The Legislature has added
more than 20 new categories of legal financial obligations
(“LFOs”) to the criminal justice process since
1996. The state has acted without considering the effects of the
new LFOs and without examining whether
cumulative debt promotes recidivism or otherwise hinders
reentry into society for those convicted of crimes.
The Legislature has eliminated exemptions for the indigent, thus
demanding revenue from a popula-2.
tion unable to afford payment. Florida ignores inability to pay
when imposing LFOs, considers inability
to pay, in theory, when collecting LFOs, but bypasses the
requirement in practice. For example, Florida law
permits the indigent to pay off debt through community service,
but most courts have no such programs.
Despite rising pressure to collect fees, little attention is paid to
the costs of collection. 3. As courts
become more reliant on fee revenue, clerks’ offices are,
increasingly, under pressure to step up the collec-
tions process. Yet, state performance standards only look at
one side of the ledger – the revenue raised –
2 | Brennan Center for Justice
and fail to assess the costs and consequences of collection
efforts. Some counties also incur hidden costs
in budgets for sheriffs, local jails, and clerk operations.
The current fee system creates a self-perpetuating cycle of debt

for persons re-entering society 4.
after incarceration. Fee amounts are often unpayable on limited
budgets. Missed payments prompt
additional fees and create a mounting debt cycle.
Collection practices in some counties create a new form of
debtors’ prison. 5. In some counties,
courts arrest individuals who miss court dates scheduled to
discuss LFO debt, disrupting lives and
employment. This practice resulted in more than 800 arrests
and more than 20,000 hours of jail time
in Leon County alone in one year. The arrests and nights spent
in already overcrowded local jails cost
the public money.
Florida routinely suspends driver’s licenses for failure to make
payments, 6. a practice that sets the
debtor up for a vicious cycle of “driving with a suspended
license” convictions.
Florida allows private debt collection firms to add up to a 40
percent surcharge on unpaid court 7.
debt. Recent legislation requires courts to refer outstanding
debt to collection agencies, which can
add up to a 40 percent surcharge on existing debt.
recommendations
In light of these findings the Brennan Center makes the
following recommendations for immediate and
longer-term steps for Florida officials to address the hidden
costs of fee collection.
Immediate steps:
The Legislature should exempt indigent defendants from

LFOs.1. An exemption system based on a
rational determination of ability to pay would free officials
from the burden of pursing non-existent
revenue and would relieve financial pressure on previously
incarcerated individuals who are attempting
to re-enter society. In light of the fact that performance
standards expect only a 9 percent collection
rate for felonies, an indigency exemption in felony cases would
result in little lost revenue.
Payment plans should be tailored to an individual’s ability to
pay, as state law already requires.2.
At minimum, the courts should follow the state law that
presumes a person is unable to pay more
than 2 percent of average monthly income when setting payment
plans. Similarly, the Department
of Corrections should sync monthly payments to income and
should fully exempt the indigent from
monthly probation supervision fees, consistent with existing
state law.
Florida’s Supreme Court should adopt court rules to end the
new debtors’ prison. 3. In the absence
of a prior finding that an individual can pay fees, courts should
not authorize incarceration for failure
to appear at LFO debt hearings. This would be consistent with
the rules that apply to those who
have failed to pay child support. The Court should also adopt
rules to ensure that incarceration for
contempt does not occur as a result of inability to pay.
Brennan Center for Justice | 3
Counties can save money by eliminating debt-related arrests for

U.S. Department of JusticeNational Institute of Correction

U.S. Department of JusticeNational Institute of Correction

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