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

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

3. 3 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

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. 5 Evidence Based Practice (EBP) EBP: professional practices supported by the “best research evidence” EBP: professional practices supported by the “best research evidence” 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 Meta-analysis of 571 studies “Cautious” approach “Cautious” approach Adult EB programs cut recidivism 10- 20% Adult EB programs cut recidivism 10- 20% EB programs have benefit/cost ratio of 2.5:1 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%. Moderate increase in EBP would avoid 2 new prisons, save $2.1 billion, and reduce crime rate by 8%.

7. State of Maryland Proactive 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 8

9. EBS & Purposes of Sentencing 1. “Just Deserts:” penalty or punishment proportionate to the gravity of the offense & culpability of the offender; accountability 2. Public Safety Rehabilitation Rehabilitation Specific Deterrence Specific Deterrence Incapacitation/Control Incapacitation/Control General Deterrence General Deterrence 3. Restitution/Restoration 9 Risk Reduction & Management

10. 10 Three Basic Principles of EBP Risk Principle (Who) Risk Principle (Who) Needs Principle (What) Needs Principle (What) Treatment & Responsivity Principles (What Works & How) 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 Low Low Medium Medium Medium High High High- Extreme High Extreme High Recidivism rates absent treatment Likely recidivism with effective correctional Likely recidivism with effective correctional intervention intervention

13. Travis Co., Texas: Impact of Supervision by Risk Risk Level% Re-arrest% Change in Rate Pre-EBP 1/06- 6/06 N = 1287 Post-EBP 7/07-10/07 N = 614 Low 26% 6% -77% Medium 26% 13% -50% High 34% 31% -9% Overall 29% 24% -17%

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 1. 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

16. 16 Dynamic Risk Factors (Criminogenic Needs) Anti-social attitudes Anti-social attitudes Anti-social friends and peers Anti-social friends and peers Anti-social personality pattern Anti-social personality pattern Family/marital Family/marital Substance abuse Substance abuse Education Education Employment Employment Anti-social leisure activities Anti-social leisure activities

17. Anti-Social Personality Pattern Lack of self-control Lack of self-control Risk taking Risk taking Impulsive Impulsive Poor problem solving Poor problem solving Lack of empathy Lack of empathy Narcissistic Narcissistic Anger and hostility 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 1 st generation: subjective professional/clinical judgment 1 st generation: subjective professional/clinical 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: incorporate case planning features 4 th generation: incorporate case planning features

20. Actuarial Risk/Needs Assessment (RNA) The engine that drives evidence-based recidivism reduction strategies The engine that drives evidence-based recidivism reduction strategies Much more accurate in predicting recidivism Much more accurate in predicting recidivism Identifies dynamic risk factors Identifies dynamic risk factors Risk is dynamic; risk scores are static Risk is dynamic; risk scores are static Intended to inform not replace professional judgment Intended to inform not replace professional judgment

21. 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 “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.”“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.” “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.” 22

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

24. Amenability to Probation Supervision Risk level (low & medium) Risk level (low & medium) High risk offenders may also be amenable to probation supervision 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 An amenability determination requires a qualitative assessment of whether the offender can be safely and effectively supervised in the community 24

25. Use of RNA Information in Setting Probation Conditions Level and length of probation supervision Level and length of probation supervision Nature and intensity of treatment conditions to address specific criminogenic needs (dynamic risk factors) 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 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 In the absence of reliable RNA, wherever possible, courts should defer to probation in setting terms and conditions 25

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 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. 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. 26

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 27

28. 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

29. Treatment Principle (What works) The most effective interventions in reducing recidivism among medium and high risk offenders: target offenders’ most critical risk factors, andtarget offenders’ most critical risk factors, and utilize cognitive behavioral strategiesutilize cognitive behavioral strategies

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

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

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

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

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

35. 35 What Doesn't Work? Non-Behavioral Strategies 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

36. What Doesn’t Work: Traditional Sanctions Alone 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 - Boot Camps Military models of discipline and physical fitness - Boot Camps Intensive supervision without treatment 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 Gender Literacy Literacy Intelligence Intelligence Mental Health Mental Health Motivation Motivation

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

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

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

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 Use open-ended questions Listen reflectively Listen reflectively Develop discrepancy/dissonance Develop discrepancy/dissonance Support self-efficacy Support self-efficacy Roll with resistance; deflection Roll with resistance; deflection Avoid argument, lecture, shaming, threats, or sympathizing Avoid argument, lecture, shaming, threats, or sympathizing

44. 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?

45. Components of an EB Violation Policy One size does not fit all violations One size does not fit all violations  Nature and severity of violation  Current risk level  Extent of prior compliance  Criminal history Reassessment of treatment plan Reassessment of treatment plan Incentives and positive reinforcement to promote future compliance Incentives and positive reinforcement to promote future compliance Graduated continuum of both sanctions and services Graduated continuum of both sanctions and services Swift, certain, and proportionate sanctions Swift, certain, and proportionate sanctions Administrative sanctioning policy that allows for flexibility by probation Administrative sanctioning policy that allows for flexibility by probation

46. 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.” “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

47. EBS for Drug Offenders Low Risk (Pro-Social)High Risk (Anti-Social) High Need (Substance Addiction) 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 (Substance abuse or misuse) 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

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