Evidence-Based Sentencing Practices

1. Evidence-Based Sentencing Practices Judge Roger K. Warren (Ret.) rwarren@ncsc.org American Judges Association Maui, Hawaii September 9, 2008

2. Presentation Objectives • Understand the basic principles and benefits of EBP • Apply principles of EBP to achieve more effective sentencing practices • Obtain the necessary offender information • Impose effective probation conditions • Support effective treatment programs • Promote offender behavioral change • Handle VOP’s effectively

3. True/False Quiz 1. The seriousness of the committing offense is more important than the offender’s personal characteristics in predicting the likelihood of further crimes. 2. Jails and prisons are effective in changing offender behavior if the conditions are severe enough that offenders don’t want to return. 3. The manner in which court proceedings are conducted is not a significant factor affecting offender recidivism.

4. True/False Quiz (cont.) 4.It is not important that an offender be “motivated” in order for treatment to be successful. 5. Probation and parole officers will be more effective if they have lower caseloads. 6. Programs like “Scared Straight” and Boot Camp are particularly effective for youthful offenders. 7. The extremely high risk offender needs especially intensive treatment.

5. True/False Quiz (cont.) 8. It is better to invest in treatment of low risk offenders than high risk offenders because their criminal tendencies are less hardened. 9. Most offenders don’t handle stress well, so anxiety and stress reduction programs like yoga and meditation are helpful in reducing recidivism. 10. Intensive probation and parole supervision tends to reduce recidivism better than regular parole supervision.

6. Setting the Context • Why is EBP important? • How does EBP fit into the overall sentencing scheme • Why at this time in our history • How relevant is it to the current challenges facing the courts • How does it fit with contemporary public attitudes towards the courts

7. Focus on Probation Cases • Up to 80% of felony defendants are sentenced at local level • Nationally almost 60% have at least one prior conviction • 43% fail to successfully complete probation • 75% of prison commitments are on non-violent offenses

8. Purposes of Sentencing “The general purposes of sentencing are: (i) to render sentences in all cases within a range of severity proportionate to the gravity of offenses; (ii)…to achieve offender rehabilitation [risk reduction], general deterrence, incapacitation of dangerous offenders, [and] restoration of crime victims and communities …, provided these goals are pursued within the boundaries of proportionality…; (iii) to render sentences no more severe than necessary to achieve the [above.]” (ALI, Model Penal Code on Sentencing, Tent. Draft No.1, Section 1.02(2)(a) (2007))

9. State Sentencing Reform: The Recent History • Pre-1975: the “Rehabilitative Ideal” • 1975-2005: Determinate Sentencing • Rising violent crime rate • Disparities • “Nothing works”

10. Sentencing Reform: The Recent History (cont.) • Today • Highest incarceration rates in the world • High recidivism rates • High costs • Great disparities • Diminishing benefit of incapacitation • Same violent crime rate as mid-70’s • We know “what works” • Widespread corrections malpractice

11. NCSC Survey of State Chief Justices (2006) Top concerns of state trial judges in felony cases: • High rates of recidivism • Ineffectiveness of traditional probation supervision in reducing recidivism • Absence of effective community corrections programs • Restrictions on judicial discretion that limit ability of judges to sentence more fairly and effectively

12. Public Opinion about Sentencing:2006 NCSC Survey • Punishment and rehabilitation is not an either/or proposition • Supportive of treatment in lieu of incarceration for non-violent offenders • Judges should play a major role in sentencing reform

13. Top Priority for Dealing with Crime PREVENTION, like youth education programs REHABILITATION, like job training/education for offenders PUNISHMENT, like longer sentences and more prisons ENFORCEMENT, like more police on the streets

14. Attitudes about Rehabilitation Which statement best describes your own views about efforts to rehabilitate offenders?

15. Attitudes about Prisons Which would you most want your tax dollars spent on: 1) building more prisons, or 2) funding programs that help offenders find jobs or get treatment? Building prisons 19% Funding for jobs & treatment 76% DK/Ref 6%

16. Support for Alternative Sentences in Non-Violent Cases

17. Support for Alternative Sentences in Non-Violent Cases (cont.) • Treatment for mentally ill offenders (65%) • Mandatory education/job training (63%) • Treatment/counseling for offenders under 25 (61%) • Treatment/counseling for drug offenders (56%) Percent favoring use of alternatives to prison “often” for non-violent offenders:

18. Judges’ Role in Efforts to Improve Sentencing What role would you like to see judges play in efforts to improve sentencing? Big, not leading, role 47% No role 9% Small role 22% Leading role 19%

19. Evidence Based Practice (EBP) • Professional practices supported by the “best research evidence” • Best research evidence: • Rigorous evaluation • Multiple studies • Systematic review (meta-analysis)

20. Principles of EBP • Risk Principle (Who) • Needs Principle (What) • Treatment & Responsivity Principles (How & how much)

21. Risk Principle(Who) • Do not target low risk offenders • Do not target extremely high risk offenders • Do target medium to high risk offenders

22. Potential Impact on Recidivism

23. Needs Principle(What) • Target criminogenic needs • Do not target non-criminogenic needs

24. Criminogenic Needs • Anti-social attitudes • Anti-social friends and peers • Anti-social personality factors • Family and/or marital factors • Substance abuse • Education and employment • Anti-social activities

25. Non Criminogenic Needs • Anxiety/stress • Low self esteem • Intelligence • Health needs • Physical conditioning

26. Targeting Criminogenic Need Reduction in Recidivism Increase in Recidivism Source:Gendreau P., French S.A., and A. Taylor (2002). What Works (What Doesn’t Work) Revised 2002 Invited Submission to the International Community Corrections Association Monograph Series Project

27. Risk/Needs Assessment • 1st generation: subjective professional judgment • 2nd generation: actuarial, static risk factors • 3rd generation: actuarial, dynamic risk factors • 4th generation: recommend interventions

28. Treatment Principle: (How & how much) • Social Learning Theory • Sanctions and rewards • Modeling/demonstration • Skills practice • Cognitive-behavioral Programs What works

29. Punishment, sanctions, or incarceration Specific deterrence, or fear-based programs (e.g. Scared Straight) Physical challenge programs Military models of discipline and physical fitness (e.g. Boot Camps) Intensive supervision without treatment What Doesn’t Work

30. Non-Behavioral Approaches • 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

31. Meta-analysis Summary

32. Treatment Principle: what works? • Social Learning Theory • Sanctions and rewards • Modeling/demonstration • Skills practice • Cognitive-behavioral Programs • Chronic-care Model • Responsivity Principle

33. Stages of Change PERMANENT EXIT Relapse (Skills to maintain support with relapse) Maintenance (Doing well with support) Pre-Contemplation (Denial) Action ENTER HERE (Ready for change) Contemplation (“Yes, but...”) TEMPORARY EXIT BY: Prochaska & Diclemente 33

34. Treatment Principle: what works? • Social Learning Theory • Sanctions and rewards • Modeling/demonstration • Skills practice • Cognitive-behavioral Programs • Chronic-care Model • Responsivity Principle • Motivation

35. Motivation EnhancementMotivational Interviewing • Avoid argument, lecture, shaming • Listen empathetically • Develop discrepancy/dissonance • Support self-efficacy • Roll with resistance

36. Benefits of EBP • Reduce recidivism & crime victimization • Reduce corrections costs • Reduce crime rates • Reduce public, family, & economic costs associated with crime • Smarter, more positive approach to public safety

37. Washington Public Policy Institute Studies • Meta-analysis of 571 studies • “Cautious” approach • Adult EB programs reduce recidivism 10-20% • EB programs have benefit cost ratio of about 2.5:1 • Moderate increase in EBP would avoid 2 new prisons, save $2.1 billion, and reduce crime rate by 8%.

38. Summary: Effective EB Sentencing Practices Avoid significant intervention with low risk offenders. Target moderate to high risk offenders. Target criminogenic needs in setting conditions of probation, and programs. Assess offender risk factors through use of actuarial risk/needs assessment tool and professional judgment.

39. Summary: Effective EB Sentencing Practices 5. Imposing additional conditions of probation beyond those directly related to an offender’s risks/needs only distracts and impedes the offender and probation. 6. Appropriate response to a VOP depends on the severity of the violation, extent of prior compliance, and the offender’s level of risk. 7. Use cognitive behavioral programs rooted in social learning theory. They are the most effective at reducing recidivism.

40. Summary: Effective EB Sentencing Practices 8. Offenders will tend to behave in ways that result in the most rewards and fewest punishments. 9. Rewards are more effective than sanctions. Use both positive and negative reinforcement. Respond to violations promptly and surely. 10. To the extent possible, involve the family and community in the offender’s treatment.

41. Summary: Effective EB Sentencing Practices 11. Treatment must be individually determined because treatment must be matched to the offender’s personal characteristics. 12. You can be an agent of positive change. Be aware of the stages of change. Use motivational interviewing techniques (reflective listening, pointing out offender inconsistencies, reinforcing positive behaviors, etc.). Avoid threatening, lecturing, arguing, shaming, sympathizing. Your actions are as important as your words.

42. Summary: Effective EB Sentencing Practices 13. To achieve multiple sentencing objectives (e.g., risk reduction, punishment, and behavioral control), treatment provisions must be successfully integrated with other provisions of the sentence.

43. Evidence-Based Sentencing Practices Judge Roger K. Warren (Ret.) rwarren@ncsc.org American Judges Association Maui, Hawaii September 9, 2008 43