Strategies for Successful Sentencing Reform

1. Strategies for Successful Sentencing Reform Presentation to S.C. Sentencing Reform Commission by S.C. Public Defenders Chris Scalzo, Charles Grose & Ashley Pennington March 5, 2009

2. This Presentation Will: • Recommend How to Develop a Strategy for Successful Sentencing Reform • Recommend Alternatives to Incarceration • Suggest Reforms for the Prison System

3. Developing a Successful Strategy • Define Success • Develop Objectives • Develop Principles • Adopt a Strategy

4. First-Things-First: Define Success Not Knowing Where You’re Going is a Recipe for Getting Lost.

5. How Should We Define Success? As Sentencing That • protects public safety • makes efficient use of tax dollars • reduces recidivism • provides effective sentencing options for fair punishment

6. Make This a Shared Definition Everyone Should Use the Same Definition • DOC • Probation • Court • Solicitor • Defense Attorney • All Stakeholders

7. Develop Objectives for Success Our Objectives Should Be • Greater Public Safety • Reduced Recidivism • More Efficient Use of Tax Dollars • Improved Sentencing Options

8. Greater Public Safety No Clearer First Principle for CJS • Protect Public At-Large • Protect Victims

9. Reduce Recidivism Higher Rates Mean • Greater Threat to Public Safety • More Demand on Public Resources • Less Effective CJS Recidivism = Internal Barometer of CJS

10. More Efficient Use of Tax Dollars We Can Make Smart Choices About Money We Should Make Smart Choices About Money Tax Dollars Are Not Unlimited!

11. Put More Tools In Sentencing Toolbox Sentencing Options are Tools • If Used Properly—Tools Can Increase Our Effectiveness • If an Available Tool Is Not In the Toolbox—Effectiveness Suffers

12. Evaluating Sentencing Tools If a Tool No Longer Works —Remove It from Toolbox —And Get a Tool that Works! If a Tool is Outdated —Replace it With a New or Improved Tool —Stop Using Outdated Tools! If a New Task Demands a New Tool—Get One!

13. Adopt Principles for Meeting Objectives These Principles Are: • Incarcerate Those Who Need to be Incarcerated—But Only Those Who Need to Be Incarcerated

14. Adopt Principles for Meeting Objectives These Principles Are: • Identify What Reduces Recidivism—and What Does Not

15. Adopt Principles for Meeting Objectives These Principles Are: • Evaluate Sentencing Options Based on What Provides Best Outcome

16. Adopt Principles for Meeting Objectives These Principles Are: • Make Evidence-Based Decisions

17. Incarcerate Only People Who Need Incarceration People Who are a Physical Threat to Others —Need to Be Incarcerated People Who Choose Not to Conform Behavior —Need to Be Incarcerated

18. Don’t Incarcerate the Wrong People Doing So Does Not • Increase Public Safety • Reduce Recidivism • Increase Efficient Use of Tax Dollars

19. Identify What Reduces Recidivism Ask the Right Question: “What will reduce recidivism and what will not?”

20. It’s the Only Rational Thing to Do If We Want to Reduce Recidivism • We Have to Educate Ourselves on What In Fact Reduces Recidivism • We Cannot Continue to Do Things That Do Not Reduce Recidivism • There Are Tools and Research Available to Help

21. Is Intuition Enough? “Create Longer Sentences—That Will Reduce Crime For Sure.” “Yeah, Create Mandatory Minimums That Will Reduce Crime, Too.” This Approach Makes Intuitive Sense • People Will Stop Committing Crimes Once They Find Out How Much Time They’ll Spend in Prison

22. Intuition Over Validation The Problem Is People Who Commit Crimes Don’t Share Our Intuitions! The Bigger Problem… No Effort Was Made Before Implementation to Validate the Intuition With Data

23. Results Federal Sentencing Guidelines Put In Place in 1980s • Based On The Intuition That Longer, Harsher Sentences Will Deter Crime • State & Federal Prison Populations Have Increased Six-Fold Since the 1970s

24. Truth In Sentencing in SC TIS Developed From an Intuition, Too • Should Do The Time One Was Ordered To Do • Stiffer Penalties Deter Crime and Reduce Recidivism These Intuitions Were Not Validated, Either

25. Result for SC SCDC Population Grew Twenty-fold • 1997 TIS Population = 540 • 2008 TIS Population = 10, 328 SCDC: Overall 3-year Recidivism Rate Increased • FY1997 it was 28% • FY2003 it was 32%

26. Focus On What Produces the Best Outcome Ask the Right Question: “Does this sentencing option meet our objectives or is it counterproductive?”

27. Example of Counterproductive Option Conviction for Drug Offense = Loss of DL Decreases Ability to Comply with Probation • Virtually Eliminates Transportation • Leaves Near Inability to Report • Huge Hurdle to Employment • Hobson’s Choice: Comply or DUS

28. Make Evidence-Based Decisions Before Using a Sentencing Option Analyze It • Will it produce the results we want? • Will it further our objectives? Answer the Questions With Evidence • The Statistical Tools Are Available • The Data Is Available • The Experts Are Available

29. Decision-Making in Courtroom What Sentencing Options … • Should Prosecutor Make Available? • Defense Attorney Advocate For? • Judge Order? Answering Requires Informed Decision Making

30. Maximize Skills of Judicial System Lawyers & Judges are Not Trained … • Social Workers • Criminologists • Psychologists • Penologists We Are Well Trained to Use Evidence, Though

31. Adopt a Strategy for Implementing & Improving Reform • identify all the agencies that should be involved in the criminal justice system, • establish clearly defined missions for those agencies, • incorporate those agencies into the sentencing reform process, • establish benchmarks to measure progress, • make decisions based on evidence, and • declare that sentencing reform should take place as an on-going endeavor.

32. The Sentencing Reform Commission should be made permanent.

33. The Commission Should Promote effective communication between the agencies in the criminal justice system • Access to information • Collaboration between agencies to propose solutions for individual offenders • Joint training

34. The Commission Should • Create an environment where Judges can make evidence based decisions about sentencing Promote individual responsibility of offenders and ensure the protection of victims’ rights

35. Look at the data… • Look at existing numbers • Track outcomes: recidivism (minor and major) • Track to see what is working and what is not working

36. Alternatives to Incarceration

37. Alternatives to Incarceration • Diversion Programs • Treatment Courts • Probation • Work Release

38. Diversion Programs • Pre-trial Intervention (PTI) works • Promotes individual responsibility • Restitution to victims • Non-conviction protects jobs • Conserves court time • Increase availability of PTI • Allow PTI for General Sessions even if the person has been through PTI in Magistrate or Municipal Court

39. Diversion Programs • Restitution in consideration for dismissal • Minor property offenses • If the incident is more “civil” than criminal • Non-violent disputes between family members of friends • Advantages • Promotes individual responsibility • Restitution to victims • Non-conviction protects jobs • Conserves court time

40. Treatment Courts • Drug Courts, Mental Health Courts, CDV Courts • The success of treatment courts comes from cooperation between agencies to provide current, accurate and complete information to the Judge • The Commission should increase the availability and expand the access to treatment courts • Advantages • Individual responsibility • Treats the underlying problem • Avoids incarceration • Reduces recidivism

41. Probation • The Probation Agent should be the Court’s method for monitoring compliance with the Court’s sentence. • The Commission should stress Probation’s mission includes rehabilitation.

42. Restore Probation Resources • Restitution Centers • Non-incarceration, structured, residential settings where offenders live, work, and pay restitution and court costs. • Community Control Center • Non-incarceration, structured, residential program that provided intensive, in-patient drug and alcohol treatment

43. Other Agencies • Department of Mental Health (DMH) • Alcohol and drug treatment • Mental health counseling • Provides treatment during pre-trial detention • Vocational Rehabilitation • GED programs • Vocational training • Employment Security Commission

44. New Probation Violation Procedures • The probation agent should prepare a detailed report for the court • Background information on the offender • Reports from other agencies identifying issues unique to that individual and making recommendations • Propose solutions to the Court • Consider non-incarceration alternatives • Detail why non-incarceration alternatives are not appropriate and make specific recommendations for services during incarceration

45. Study Collateral Consequences of Conviction • Driver’s license suspension – Drug conviction? • Look for a job • Getting to and from work • Provisional licenses can be inadequate • Driving on the job • Support families • Create a “first time offender” status • conviction can be expunged after completing the sentence

46. Work Release • Sometimes short (6-12 mo) periods of incarceration are appropriate in lieu of SCDC, often times in connection with probation. • State and Counties should increase the availability of work release • Not available in all counties • Standardize around the state

47. Work Release • Advantages • People stay in the community and keep jobs • Promotes individual responsibility • Consequences for criminal conduct • People can still support families • Inmates contribute to cost of WR • Can tie in needed rehab at night and offer mentoring

48. Prison Reform

49. Prison Reform Mandatory minimum sentences, no parole sentences, and lengthy sentences (particularly in drug cases) do not reduce recidivism and increase the size of the prison population.

50. Prison Reform • Abolish mandatory minimum sentences • Abolish no parole (85% sentences) • Reduce lengthy, mandatory sentences in drug cases