Evidence-Based Sentencing to Reduce
Recidivism & Hold Offenders Accountable
Louisiana Judicial ConferenceThe Bluffs
October 18-20, 2012
Judge Roger K. Warren (Ret.)
“What is done [today] in corrections would be grounds for malpractice in medicine.”
(2002) Latessa, Cullen, and Gendreau, “Beyond Correctional Quackery…”
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Top concerns of state trial judges
in felony cases:
1. High rates of recidivism2. Ineffectiveness of traditional
probation supervision in reducing recidivism
3. Absence of effective community corrections programs
4. Restrictions on judicial discretion
Top two reform objectives: Reduce recidivism through
expanded use of evidence-based practices, programs that work, and offender risk and needs assessment tools
Promote the development, funding, and utilization of community-based alternatives to incarceration for appropriate offenders
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Evidence Based Practice (EBP)
EBP: professional practices supported by the “best research evidence”
Best research evidence:– Well-matched control groups– Consistent results across multiple
studies– Systematic analysis (meta-analysis)
Washington State Institute for Public Policy
Meta-analysis of 571 studies “Cautious” approach Adult EB programs cut recidivism
10-20% EB programs have benefit/cost
ratio of 2.5:1 Moderate increase in EBP would
avoid 2 new prisons, save $2.1 billion, and reduce crime rate by 8%.
Evidence-Based Sentencing
(EBS)
The application of Principles of EBP
to the sentencing process for the
purpose of reducing recidivism and
holding offenders accountable 8
EBS & Purposes of Sentencing
1. “Just Deserts:” penalty or punishment proportionate to the gravity of the offense & culpability of the offender; accountability
2. Public SafetyRehabilitationSpecific DeterrenceIncapacitation/ControlGeneral Deterrence
3. Restitution/Restoration 9
Risk Reduction & Management
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Three Basic Principles of EBP
Risk Principle (Who) Needs Principle (What) Treatment & Responsivity
Principles (What Works & How)
Risk Principle(Who)
The level of supervision or services should be matched to the risk level of the offender: i.e., more intensive supervision and services should be reserved for higher risk offenders.
Potential Impact on Recidivism
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10
20
30
40
50
60
70
80
Low
Low
Medium
Medium
Mediu
m H
igh
High
High-
Extrem
e
High
Extrem
e
High
Recidivism rates absent treatment Likely recidivism with effective correctional intervention
Travis Co., Texas: Impact of Supervision by
RiskRisk Level
% Re-arrest % Change
in RatePre-EBP 1/06-6/06
N = 1287
Post-EBP7/07-10/07
N = 614
Low 26% 6% -77%Medium 26% 13% -50%High 34% 31% -9%Overall 29% 24% -17%
Needs Principle(What)
The targets for interventions should be those offender characteristics that have the most effect on the likelihood of re-offending.
Risk of Heart Attack1. Elevated LDL and low HDL levels 2. Smoking 3. Diabetes 4. Hypertension 5. Abdominal obesity 6. Psychosocial (i.e., stress or
depression) 7. Failure to eat fruits and vegetables
daily 8. Failure to exercise
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Dynamic Risk Factors (Criminogenic Needs)
Anti-social attitudes Anti-social friends and peers Anti-social personality pattern Family/marital Substance abuse Education Employment Anti-social leisure activities
Anti-Social Personality Pattern
Lack of self-control Risk taking Impulsive Poor problem
solving Lack of empathy Narcissistic Anger and hostility
Non-Risk Factors (not likely to affect future
crime)
Anxiety/stress Low self esteem Intelligence Health and physical
conditioning Mental health
Risk/Needs Assessment
1st generation: subjective professional/clinical judgment
2nd generation: actuarial, static risk factors
3rd generation: actuarial, dynamic risk factors
4th generation: incorporate case planning features
Actuarial Risk/Needs Assessment (RNA)
The engine that drives evidence-based recidivism reduction strategies
Much more accurate in predicting recidivism
Identifies dynamic risk factors Risk is dynamic; risk scores are
static Intended to inform not replace
professional judgment
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“Resolution 7 In Support of the Guiding Principles on Using Risk and Needs Assessment Information in the Sentencing Process”
The Conference of Chief Justices • “endorses the guiding principles
described in the National Working Group’s report” and • “encourages state and local
courts ... to work with their justice system partners to incorporate risk and needs assessment information into the sentencing process.”
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Malenchik v. State of Indiana
(928 N.E.2d 564 (2010)) “Evidence-based assessment
instruments can be significant sources of valuable information for judicial consideration in deciding whether to suspend all or part of a sentence, how to design a probation program for the offender, whether to assign an offender to alternative treatment facilities or programs, and other such corollary sentencing matters.”
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Using RNA Information at Sentencing: 9 Guiding
Principles*# 1: For purpose of effectively
managing and reducing the risk of recidivism
# 2: To determine amenability for probation supervision
#3: To establish appropriate conditions of probation
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*NCSC, Using Offender Risk and Needs Assessment Information at Sentencing (2011), available at http://www.ncsconline.org/csi/analysis.html.
Amenability to Probation Supervision
Risk level (low & medium) High risk offenders may also be
amenable to probation supervision An amenability determination
requires a qualitative assessment of whether the offender can be safely and effectively supervised in the community
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Use of RNA Information in Setting Probation
Conditions Level and length of probation
supervision Nature and intensity of treatment
conditions to address specific criminogenic needs (dynamic risk factors)
Nature and intensity of control conditions to monitor, manage, or control the risk of recidivism
In the absence of reliable RNA, wherever possible, courts should defer to probation in setting terms and conditions
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Malenchik v. State of Indiana
(928 N.E.2d 564 (2010))
The court noted, however, that risk/needs tools were “never designed to assist in
establishing the just penalty” and ruled specifically that risk assessment scores cannot serve as aggravating or mitigating circumstances in determining the appropriate length of a prison sentence.
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Using RNA Information at Sentencing: Other Principles
# 4: The importance of educating counsel and other stakeholders
# 5: Encouraging use of RNA information by counsel and discouraging plea negotiations (especially of probation conditions) in the absence of RNA information
# 8: Determining the format & content of assessment/pre-sentence investigation reports
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Treatment Principle(What works)
Judges should “educate themselves about the effectiveness of community based corrections programs in their jurisdictions,” and “advocate and … make use of those programs shown to be effective in reducing recidivism.”
Resolution No. 12
Treatment Principle(What works)
The most effective interventions in reducing recidivism among medium and high risk offenders:• target offenders’ most critical risk
factors, and• utilize cognitive behavioral strategies
Behavioral Strategies:Behaviors Have Consequences
Positive Rewards/
Positive Reinforcement
Incentives 4:1 ratio
Negative Swift, certain,
and proportionate (fair) sanctions
Severe sanctions not necessary
Sometimes Aware
Behavior Visible
Thoughts Feelings
Cognitive Structure(Beliefs and Attitudes)
Beneath the Surface
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What Doesn't Work?Non-Behavioral
Strategies Shaming programs Drug education programs Drug prevention classes focused on fear or
emotional appeal Non skill-based education programs Non-action oriented group counseling Bibliotherapy Freudian approaches Talking cures Vague, unstructured rehabilitation
programs Self-esteem programs
What Doesn’t Work: Traditional Sanctions Alone
Punishment, sanctions, or incarceration
Specific deterrence, or fear-based programs, e.g., Scared Straight
Physical challenge programs Military models of discipline
and physical fitness - Boot Camps
Intensive supervision without treatment
The Responsivity Principle
Both the intervention (treatment,
supervision, or interaction), and
personnel delivering theintervention, must be
matched to certain characteristics of the individual offender.
Promoting Offender Motivation
Coerced TreatmentExtrinsic Intrinsic MotivationRelationship & EngagementStages of ChangeProcedural FairnessMotivational Interviewing
Stages of Change
(Ready forchange)
ENTER
HEREEXIT?
Relapse
Maintenance
Pre-Contemplation
(Denial)
Contemplation
(“Yes but...”)
Action
LASTING EXIT
(Treatment)
Responses to Stages
(Ready forchange)
ENTER
HEREEXIT?
RelapseMaintenance
Pre-Contemplation(Denial)
Contemplation
(“Yes but...”)
Action
LASTING EXIT
(Treatment)Promote Self-Diagnosis
Increase AmbivalencePractical Strategies
Relapse Prevention
Avoid Demoralization
Procedural Fairness
Research shows that there is improved
compliance and motivation when the
offender views the court process as
“fair”:– Views bench as impartial– Has an opportunity to participate– Is treated with respect– Trusts the motives of the decision
maker
Motivational Interviewing
Use open-ended questions Listen reflectively Develop discrepancy/dissonance Support self-efficacy Roll with resistance; deflection Avoid argument, lecture,
shaming, threats, or sympathizing
Exercise: A Framework for An EB Probation Violations Policy
1. Identify 5-6 key components of an EB approach?
2. E.g., how would this framework provide for an appropriate use of sanctions?
3. What administrative authority should probation have regarding sanctions & incentives?
Revocation Proceedings
“Revocation is an appropriate response to a violation when a reassessment of the offender’s dynamic risk factors in light of the offender’s overall criminal history and record of probation compliance and non-compliance determines that the offender can no longer be safely and effectively supervised in the community.” 46
EBS for Drug OffendersLow Risk (Pro-Social) High Risk (Anti-Social)
High Need(SubstanceAddiction)
• Low level supervision
• Intensive S/A Tx
• Compliance is short- term goal • Abstinence is long- term goal• Emphasize positive reinforcement
• Intensive supervision (DRUG CT)
• Intensive S/A, Cog, & other Tx
• Compliance is short-term goal
• Abstinence is long-term goal
• Emphasize positive reinforcement
• Strict monitoring/control • conditions
Low Need(Substanceabuse ormisuse)
• Low level supervision
• Low level services
• Most likely to respond to sanctions
• Intensive supervision
• Intensive Cog & other Tx
• Compliance & abstinence are short-term goals
• Emphasize positive reinforce- ment and sanctions (HOPE)
• Strict monitoring/control conditions
• Minimal level of incarceration