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

2 Presentation Objectives Understand the basic principles and benefits of EBP Understand the basic principles and benefits of EBP Apply principles of EBP to achieve more effective sentencing practices 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 VOPs effectively

3 True/False Quiz 1. The seriousness of the committing offense is more important than the offenders 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 dont 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 dont 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? Why is EBP important? How does EBP fit into the overall sentencing scheme How does EBP fit into the overall sentencing scheme Why at this time in our history Why at this time in our history How relevant is it to the current challenges facing the courts How relevant is it to the current challenges facing the courts How does it fit with contemporary public attitudes towards 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 Up to 80% of felony defendants are sentenced at local level Nationally almost 60% have at least one prior conviction Nationally almost 60% have at least one prior conviction 43% fail to successfully complete probation 43% fail to successfully complete probation 75% of prison commitments are on non-violent offenses 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 (i) to render sentences in all cases within a range of severity proportionate to the gravity of offenses; (ii)…to achieve offender rehabilitation [risk (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.] (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 Pre-1975: the Rehabilitative Ideal : Determinate Sentencing : Determinate Sentencing –Rising violent crime rate –Disparities –Nothing works

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

11 NCSC Survey of State Chief Justices (2006) Top concerns of state trial judges in felony cases: 1.High rates of recidivism 2.Ineffectiveness of traditional probation supervision in reducing recidivism 3.Absence of effective community corrections programs 4.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 Punishment and rehabilitation is not an either/or proposition Supportive of treatment in lieu of incarceration for non-violent offenders Supportive of treatment in lieu of incarceration for non-violent offenders Judges should play a major role in sentencing reform 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? 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? Funding for jobs & treatment 76% Building prisons 19% 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%) Treatment for mentally ill offenders (65%) Mandatory education/job training (63%) Mandatory education/job training (63%) Treatment/counseling for offenders under 25 (61%) Treatment/counseling for offenders under 25 (61%) Treatment/counseling for drug offenders (56%) Treatment/counseling for drug offenders (56%) Percent favoring use of alternatives to prison often for non-violent offenders: 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? Small role 22% Leading role 19% Big, not leading, role 47% No role 9%

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

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

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

22 Potential Impact on Recidivism

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

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

25 Non Criminogenic Needs Anxiety/stress Anxiety/stress Low self esteem Low self esteem Intelligence Intelligence Health needs Health needs Physical conditioning 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 Doesnt Work) Revised 2002 Invited Submission to the International Community Corrections Association Monograph Series Project

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

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

29 What Doesnt Work Punishment, sanctions, or incarceration Punishment, sanctions, or incarceration Specific deterrence, or fear-based programs (e.g. Scared Straight) Specific deterrence, or fear-based programs (e.g. Scared Straight) Physical challenge programs Physical challenge programs Military models of discipline and physical fitness (e.g. Boot Camps) Military models of discipline and physical fitness (e.g. Boot Camps) Intensive supervision without treatment Intensive supervision without treatment

30 Non-Behavioral Approaches Shaming programs Shaming programs Drug education programs Drug education programs Drug prevention classes focused on fear or emotional appeal Drug prevention classes focused on fear or emotional appeal Non skill-based education programs Non skill-based education programs Non-action oriented group counseling Non-action oriented group counseling Bibliotherapy Bibliotherapy Freudian approaches Freudian approaches Talking cures Talking cures Vague, unstructured rehabilitation programs Vague, unstructured rehabilitation programs Self-esteem programs Self-esteem programs

31 Meta-analysis Summary

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

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

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

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

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

37 Washington Public Policy Institute Studies Meta-analysis of 571 studies Meta-analysis of 571 studies Cautious approach Cautious approach Adult EB programs reduce recidivism 10-20% Adult EB programs reduce recidivism 10-20% EB programs have benefit cost ratio of about 2.5:1 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%. 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 1. Avoid significant intervention with low risk offenders. 2. Target moderate to high risk offenders. 3. Target criminogenic needs in setting conditions of probation, and programs. 4. 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 offenders 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 offenders 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 offenders treatment.

41 Summary: Effective EB Sentencing Practices 11. Treatment must be individually determined because treatment must be matched to the offenders 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.) American Judges Association Maui, Hawaii September 9, 2008