Evidence-Based Sentencing to Reduce Recidivism & Hold Offenders Accountable

1. Evidence-Based Sentencing to Reduce Recidivism & Hold Offenders Accountable Judge Roger K. Warren (Ret.) Louisiana Judicial Conference The Bluffs October 18-20, 2012

2. “What is done [today] in corrections would be grounds for malpractice in medicine.” (2002) Latessa, Cullen, and Gendreau, “Beyond Correctional Quackery…”

3. 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

4. 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

5. 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)

6. 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%.

7. State of MarylandProactive Community Supervision % of Offenders New Arrests Revocations

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

9. EBS & Purposes of Sentencing • “Just Deserts:” penalty or punishment proportionate to the gravity of the offense & culpability of the offender; accountability • Public Safety • Rehabilitation • Specific Deterrence • Incapacitation/Control • General Deterrence • Restitution/Restoration

10. Three Basic Principles of EBP • Risk Principle (Who) • Needs Principle (What) • Treatment & Responsivity Principles (What Works & How)

11. 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.

12. Potential Impact on Recidivism Recidivism rates absent treatment Likely recidivism with effective correctional intervention ExtremeHigh LowMedium High-ExtremeHigh Medium MediumHigh Low High

13. Travis Co., Texas: Impact of Supervision by Risk

14. Needs Principle(What) The targets for interventions should be those offender characteristics that have the most effect on the likelihood of re-offending.

15. Risk of Heart Attack • Elevated LDL and low HDL levels • Smoking • Diabetes • Hypertension • Abdominal obesity • Psychosocial (i.e., stress or depression) • Failure to eat fruits and vegetables daily • Failure to exercise

16. 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 16

17. Anti-Social Personality Pattern • Lack of self-control • Risk taking • Impulsive • Poor problem solving • Lack of empathy • Narcissistic • Anger and hostility

18. Non-Risk Factors (not likely to affect future crime) • Anxiety/stress • Low self esteem • Intelligence • Health and physical conditioning • Mental health

19. 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

20. 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

21. “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.”

22. 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.”

23. 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 *NCSC, Using Offender Risk and Needs Assessment Information at Sentencing (2011), available at http://www.ncsconline.org/csi/analysis.html.

24. 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

25. 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

26. 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.

27. 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

28. Treatment Principle(What works) Resolution No. 12 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.”

29. 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

30. Behavioral Strategies:Behaviors Have Consequences Positive • Rewards/Positive Reinforcement • Incentives • 4:1 ratio Negative • Swift, certain, and proportionate (fair) sanctions • Severe sanctions not necessary

31. Behavioral Strategies Also Involve • Role models • Demonstration • Role play • Feedback • Skill practice

32. Behavioral v. Non-Behavioral % Reduced Recidivism K=77 K=297

33. Behavior Visible Thoughts Feelings Sometimes Aware Beneath the Surface Cognitive Structure (Beliefs and Attitudes)

34. T4C: Recidivism Rates 28-50% reduction in recidivism compared to traditional probation

35. 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

36. 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

37. The Responsivity Principle Both the intervention (treatment, supervision, or interaction), and personnel delivering the intervention, must be matched to certain characteristics of the individual offender.

38. Responsivity Factors:Offender Characteristics • Gender • Literacy • Intelligence • Mental Health • Motivation

39. Promoting Offender Motivation • Coerced Treatment • Extrinsic Intrinsic Motivation • Relationship & Engagement • Stages of Change • Procedural Fairness • Motivational Interviewing

40. Stagesof Change LASTING EXIT Relapse Maintenance Pre-Contemplation (Denial) Action ENTER HERE (Ready for change) EXIT? Contemplation (“Yes but...”) (Treatment)

41. Responses to Stages LASTING EXIT Relapse Maintenance Pre-Contemplation (Denial) Action ENTER HERE (Ready for change) EXIT? Contemplation (“Yes but...”) Avoid Demoralization (Treatment) Promote Self-Diagnosis Relapse Prevention Increase Ambivalence Practical Strategies

42. 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

43. 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

44. Exercise: A Framework for An EB Probation Violations Policy • Identify 5-6 key components of an EB approach? • E.g., how would this framework provide for an appropriate use of sanctions? • What administrative authority should probation have regarding sanctions & incentives?

45. 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. Low Risk (Pro-Social) High Risk (Anti-Social) • Low level supervision • Intensive supervision (DRUG CT) • Intensive S/A Tx • Intensive S/A, Cog, & other Tx High Need (Substance • Compliance is short- • term goal • Compliance is short-term goal Addiction) • Abstinence is long-term goal • Abstinence is long- • term goal • Emphasize positive reinforcement • Emphasize positive • reinforcement • Strict monitoring/control • conditions • Low level supervision • Intensive supervision • Intensive Cog & other Tx Low Need (Substance • Low level services • Compliance & abstinence are • short-term goals abuse or misuse) • Emphasize positive reinforce- • ment and sanctions (HOPE) • Most likely to respond • to sanctions • Strict monitoring/control • conditions EBS for Drug Offenders • Minimal level of incarceration

47. Evidence-Based Sentencing to Reduce Recidivism & Hold Offenders Accountable Judge Roger K. Warren (Ret.) Louisiana Judicial Conference The Bluffs October 18-20, 2012