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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3

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%.

State of MarylandProactive Community

Supervision

% o

f O

ffen

der

s

New Arrests Revocations

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

Series10

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.”

•

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

Behavioral Strategies Also Involve

Role models

Demonstration Role play Feedback Skill practice

Behavioral v. Non-Behavioral

% R

edu

ced

Rec

idiv

ism

K=297

K=77

Sometimes Aware

Behavior Visible

Thoughts Feelings

Cognitive Structure(Beliefs and Attitudes)

Beneath the Surface

28-50% reduction in recidivism compared to traditional probation

T4C: Recidivism Rates

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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.

Responsivity Factors:Offender Characteristics

Gender Literacy Intelligence Mental Health Motivation

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

Evidence-Based Sentencing to Reduce

Recidivism & Hold Offenders Accountable

Louisiana Judicial ConferenceThe Bluffs

October 18-20, 2012

Judge Roger K. Warren (Ret.)