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Evidence-Based Sentencing Evidence-Based Sentencing Practices Practices

Judge Roger K. Warren (Ret.)Judge Roger K. Warren (Ret.)rwarren@ncsc.orgrwarren@ncsc.org

American Judges Association American Judges Association Maui, HawaiiMaui, Hawaii

September 9, 2008September 9, 2008

22

Presentation Presentation ObjectivesObjectives

Understand the basic principles and Understand the basic principles and benefits of EBP benefits of EBP

Apply principles of EBP to achieve Apply principles of EBP to achieve more effective sentencing practicesmore effective sentencing practices– Obtain the necessary offender informationObtain the necessary offender information– Impose effective probation conditions Impose effective probation conditions – Support effective treatment programsSupport effective treatment programs– Promote offender behavioral changePromote offender behavioral change– Handle VOP’s effectivelyHandle VOP’s effectively

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True/False QuizTrue/False Quiz1. The seriousness of the committing offense1. The seriousness of the committing offenseis more important than the offender’sis more important than the offender’spersonal characteristics in predicting thepersonal characteristics in predicting thelikelihood of further crimes.likelihood of further crimes.

2. Jails and prisons are effective in changing2. Jails and prisons are effective in changingoffender behavior if the conditions are severeoffender behavior if the conditions are severeenough that offenders don’t want to return. enough that offenders don’t want to return.

3. The manner in which court proceedings are3. The manner in which court proceedings areconducted is not a significant factor affectingconducted is not a significant factor affectingoffender recidivism.offender recidivism.

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True/False Quiz (cont.)True/False Quiz (cont.)4.4. It is not important that an offender beIt is not important that an offender be““motivated” in order for treatment to bemotivated” in order for treatment to besuccessful. successful. 5. Probation and parole officers will be more5. Probation and parole officers will be moreeffective if they have lower caseloads.effective if they have lower caseloads.

6. Programs like “Scared Straight” and Boot6. Programs like “Scared Straight” and BootCamp are particularly effective for youthfulCamp are particularly effective for youthfuloffenders. offenders.

7. The extremely high risk offender needs7. The extremely high risk offender needsespecially intensive treatment. especially intensive treatment.

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True/False Quiz (cont.)True/False Quiz (cont.)8. It is better to invest in treatment of low8. It is better to invest in treatment of lowrisk offenders than high risk offendersrisk offenders than high risk offendersbecause their criminal tendencies are lessbecause their criminal tendencies are lesshardened. hardened.

9. Most offenders don’t handle stress well,9. Most offenders don’t handle stress well,so anxiety and stress reduction programsso anxiety and stress reduction programslike yoga and meditation are helpful inlike yoga and meditation are helpful inreducing recidivism.reducing recidivism.

10. Intensive probation and parole supervision10. Intensive probation and parole supervisiontends to reduce recidivism better than regulartends to reduce recidivism better than regularparole supervision.parole supervision.

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Setting the ContextSetting the Context

Why is EBP important?Why is EBP important? How does EBP fit into the overall How does EBP fit into the overall

sentencing scheme sentencing scheme Why at this time in our historyWhy at this time in our history How relevant is it to the current How relevant is it to the current

challenges facing the courtschallenges facing the courts How does it fit with How does it fit with

contemporary public attitudes contemporary public attitudes towards the courtstowards the courts

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Focus on Probation Focus on Probation CasesCases

Up to 80% of felony defendants Up to 80% of felony defendants are sentenced at local level are sentenced at local level

Nationally almost 60% have at Nationally almost 60% have at least one prior conviction least one prior conviction

43% fail to successfully 43% fail to successfully complete probationcomplete probation

75% of prison commitments are 75% of prison commitments are on non-violent offenseson non-violent offenses

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Purposes of SentencingPurposes of Sentencing““The general purposes of sentencing are: The general purposes of sentencing are: (i) to render sentences in all cases within (i) to render sentences in all cases within aarange of severity proportionate to the gravity ofrange of severity proportionate to the gravity ofoffenses; offenses; (ii)…to achieve offender (ii)…to achieve offender rehabilitation rehabilitation [[riskriskreductionreduction], ], general deterrencegeneral deterrence, , incapacitationincapacitation of ofdangerous offenders, [and] dangerous offenders, [and] restorationrestoration of crime of crimevictims and communities …, victims and communities …, provided these goalsprovided these goalsare pursued within the boundaries of are pursued within the boundaries of proportionalityproportionality…; …; (iii) to render sentences no more severe than (iii) to render sentences no more severe than

necessary to achieve the [above.]”necessary to achieve the [above.]”

(ALI, Model Penal Code on Sentencing, Tent. Draft No.1, Section 1.02(2)(a) (2007))(ALI, Model Penal Code on Sentencing, Tent. Draft No.1, Section 1.02(2)(a) (2007))

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State Sentencing State Sentencing Reform: The Recent Reform: The Recent

HistoryHistory

Pre-1975: the “Rehabilitative Ideal”Pre-1975: the “Rehabilitative Ideal”

1975-2005: Determinate Sentencing1975-2005: Determinate Sentencing– Rising violent crime rateRising violent crime rate– DisparitiesDisparities– ““Nothing works”Nothing works”

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Sentencing Reform: Sentencing Reform: The Recent History The Recent History

(cont.)(cont.) TodayToday

– Highest incarceration rates in the worldHighest incarceration rates in the world– High recidivism ratesHigh recidivism rates– High costsHigh costs– Great disparitiesGreat disparities– Diminishing benefit of incapacitationDiminishing benefit of incapacitation– Same violent crime rate as mid-70’s Same violent crime rate as mid-70’s – We know “what works”We know “what works”– Widespread corrections malpracticeWidespread corrections malpractice

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NCSC Survey of State NCSC Survey of State Chief Justices (2006)Chief Justices (2006)

Top concerns of state trial judges Top concerns of state trial judges in felony cases:in felony cases:

1.1. High rates of recidivismHigh rates of recidivism2.2. Ineffectiveness of traditional Ineffectiveness of traditional

probation supervision in reducing probation supervision in reducing recidivismrecidivism

3.3. Absence of effective community Absence of effective community corrections programs corrections programs

4.4. Restrictions on judicial discretion that Restrictions on judicial discretion that limit ability of judges to sentence limit ability of judges to sentence more fairly and effectivelymore fairly and effectively

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Public Opinion about Public Opinion about Sentencing:Sentencing:

2006 NCSC Survey2006 NCSC Survey Punishment and rehabilitation is not Punishment and rehabilitation is not

an either/or propositionan either/or proposition Supportive of treatment in lieu of Supportive of treatment in lieu of

incarceration for non-violent incarceration for non-violent offendersoffenders

Judges should play a major role in Judges should play a major role in sentencing reform sentencing reform

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Top Priority for Top Priority for Dealing with CrimeDealing with Crime

20%

19%

22%

36%

0% 10% 20% 30% 40% 50%

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

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Attitudes about Attitudes about RehabilitationRehabilitation

16%Little can be

done

5%Don't know79%

Many can turn their

lives around

Which statement best describes your ownWhich statement best describes your ownviews about efforts to rehabilitate offenders?views about efforts to rehabilitate offenders?

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Attitudes about Attitudes about PrisonsPrisons

Which would you most want your tax dollars Which would you most want your tax dollars spent on: 1) building more prisons, or 2) spent on: 1) building more prisons, or 2) funding programs that help offenders find jobs funding programs that help offenders find jobs or get treatment?or get treatment?

Funding for jobs & treatment76%

Building prisons19%

DK/Ref 6%

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Support for Alternative Support for Alternative Sentences in Non-Violent Sentences in Non-Violent

CasesCasesHow frequently should alternatives to prison be used in sentencing for non-

violent crimes?

51%Often

37%Sometimes

10%Hardly ever

Don't know2%

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Support for Alternative Support for Alternative Sentences in Non-Violent Sentences in Non-Violent

Cases (cont.)Cases (cont.)

Treatment for mentally ill offenders Treatment for mentally ill offenders (65%)(65%)

Mandatory education/job training (63%)Mandatory education/job training (63%) Treatment/counseling for offenders under Treatment/counseling for offenders under

25 (61%)25 (61%) Treatment/counseling for drug offenders Treatment/counseling for drug offenders

(56%)(56%)

Percent favoring use of alternatives to prisonPercent favoring use of alternatives to prison “ “often” for non-violent offenders:often” for non-violent offenders:

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Judges’ Role in Efforts Judges’ Role in Efforts to Improve Sentencingto Improve Sentencing

What role would you like to see judges What role would you like to see judges play in efforts to improve sentencing?play in efforts to improve sentencing?

Small role22% Leading role

19%

Big, not leading, role47%

No role9%

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Evidence Based Evidence Based Practice (EBP)Practice (EBP)

Professional practices supported Professional practices supported by the “best research evidence”by the “best research evidence”

Best research evidence:Best research evidence:– Rigorous evaluationRigorous evaluation– Multiple studiesMultiple studies– Systematic review (meta-analysis)Systematic review (meta-analysis)

2020

Principles of EBPPrinciples of EBP

Risk Principle (Who)Risk Principle (Who) Needs Principle (What)Needs Principle (What) Treatment & Responsivity Treatment & Responsivity

Principles (How & how much)Principles (How & how much)

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Risk PrincipleRisk Principle(Who)(Who)

Do Do notnot target low risk offenders target low risk offenders Do Do notnot target extremely high risk target extremely high risk

offendersoffenders DoDo target medium to high risk offenders target medium to high risk offenders

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Potential Impact on Potential Impact on RecidivismRecidivism

0

10

20

30

40

50

60

70

80

Low LowMedium

Medium MediumHigh

High High-Extreme

High

ExtremeHigh

Recidivism Rate inrelation to R/Ascores

Likely recidivismrate with mosteffectivecorrectionalintervention

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Needs PrincipleNeeds Principle(What)(What)

Target criminogenic needsTarget criminogenic needs Do Do notnot target non- target non-

criminogenic needscriminogenic needs

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Criminogenic NeedsCriminogenic Needs

Anti-social attitudesAnti-social attitudes Anti-social friends and peersAnti-social friends and peers Anti-social personality factorsAnti-social personality factors Family and/or marital factorsFamily and/or marital factors Substance abuseSubstance abuse Education and employment Education and employment Anti-social activities Anti-social activities

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Non Criminogenic Non Criminogenic NeedsNeeds

Anxiety/stressAnxiety/stress Low self esteemLow self esteem IntelligenceIntelligence Health needsHealth needs Physical conditioningPhysical conditioning

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Targeting Criminogenic NeedTargeting Criminogenic Need

0.32

-0.01

-0.05

0

0.05

0.1

0.15

0.2

0.25

0.3

0.35

Target 1-3 non-criminogenic needs

Target 4-6criminogenic needs

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

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Risk/Needs Risk/Needs AssessmentAssessment

11stst generation: subjective generation: subjective professional judgmentprofessional judgment

22ndnd generation: actuarial, static generation: actuarial, static risk factorsrisk factors

33rdrd generation: actuarial, generation: actuarial, dynamic risk factorsdynamic risk factors

44thth generation: recommend generation: recommend interventionsinterventions

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Treatment Principle: Treatment Principle: (How & how much)(How & how much)

Social Learning TheorySocial Learning Theory– Sanctions and rewardsSanctions and rewards– Modeling/demonstrationModeling/demonstration– Skills practiceSkills practice

Cognitive-behavioral ProgramsCognitive-behavioral Programs

What worksWhat works

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What Doesn’t WorkWhat Doesn’t Work

Punishment, sanctions, or Punishment, sanctions, or incarcerationincarceration

Specific deterrence, or fear-based Specific deterrence, or fear-based programs (e.g. Scared Straight)programs (e.g. Scared Straight)

Physical challenge programsPhysical challenge programs Military models of discipline and Military models of discipline and

physical fitness (e.g. Boot Camps)physical fitness (e.g. Boot Camps) Intensive supervision without Intensive supervision without

treatmenttreatment

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Non-Behavioral Non-Behavioral ApproachesApproaches

Shaming programs Shaming programs Drug education programsDrug education programs Drug prevention classes focused on fear or Drug prevention classes focused on fear or

emotional appealemotional appeal Non skill-based education programsNon skill-based education programs Non-action oriented group counselingNon-action oriented group counseling BibliotherapyBibliotherapy Freudian approachesFreudian approaches Talking curesTalking cures Vague, unstructured rehabilitation Vague, unstructured rehabilitation

programsprograms Self-esteem programsSelf-esteem programs

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Meta-analysis Meta-analysis SummarySummary

-10

-5

0

5

10

15

20

25

30

Sanc-tions

InappTx

LowRisk

Non-crim

Non-behav

Non-spec Tx

Appr-Tx

Recidivism Reduction

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Treatment Principle: Treatment Principle: what works?what works?

Social Learning TheorySocial Learning Theory– Sanctions and rewardsSanctions and rewards– Modeling/demonstrationModeling/demonstration– Skills practiceSkills practice

Cognitive-behavioral ProgramsCognitive-behavioral Programs Chronic-care ModelChronic-care Model Responsivity PrincipleResponsivity Principle

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Stages of ChangeStages of Change

(Ready for(Ready forchange)change)

ENTERHERE

TEMPORARYEXIT

Relapse(Skills to maintain(Skills to maintain

support support with relapse)with relapse)

Maintenance(Doing well(Doing well

with supportwith support)

Pre-Contemplation

(Denial)(Denial)

Contemplation(“Yes, but...”)(“Yes, but...”)

Action

PERMANENT EXIT

BY: Prochaska & Diclemente33

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Treatment Principle: Treatment Principle: what works?what works?

Social Learning TheorySocial Learning Theory– Sanctions and rewardsSanctions and rewards– Modeling/demonstrationModeling/demonstration– Skills practiceSkills practice

Cognitive-behavioral ProgramsCognitive-behavioral Programs Chronic-care ModelChronic-care Model Responsivity PrincipleResponsivity Principle MotivationMotivation

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Motivation Motivation EnhancementEnhancementMotivational Motivational InterviewingInterviewing

Avoid argument, lecture, shaming Avoid argument, lecture, shaming Listen empatheticallyListen empathetically Develop discrepancy/dissonanceDevelop discrepancy/dissonance Support self-efficacySupport self-efficacy Roll with resistanceRoll with resistance

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Benefits of EBPBenefits of EBP

Reduce recidivism & crime victimization Reduce recidivism & crime victimization Reduce corrections costsReduce corrections costs Reduce crime ratesReduce crime rates Reduce public, family, & economic costs Reduce public, family, & economic costs

associated with crimeassociated with crime Smarter, more positive approach to Smarter, more positive approach to

public safetypublic safety

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Washington Public Washington Public Policy Institute StudiesPolicy Institute Studies Meta-analysis of 571 studiesMeta-analysis of 571 studies ““Cautious” approachCautious” approach Adult EB programs reduce Adult EB programs reduce

recidivism 10-20%recidivism 10-20% EB programs have benefit cost ratio EB programs have benefit cost ratio

of about 2.5:1 of about 2.5:1 Moderate increase in EBP would Moderate increase in EBP would

avoid 2 new prisons, save $2.1 avoid 2 new prisons, save $2.1 billion, and reduce crime rate by billion, and reduce crime rate by 8%.8%.

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Summary: Effective Summary: Effective EB Sentencing Practices EB Sentencing Practices

1.1. Avoid significant intervention with low Avoid significant intervention with low risk offenders.risk offenders.

2.2. Target moderate to high risk offenders.Target moderate to high risk offenders.

3.3. Target criminogenic needs in setting Target criminogenic needs in setting conditions of probation, and programs.conditions of probation, and programs.

4.4. Assess offender risk factors through use Assess offender risk factors through use of actuarial risk/needs assessment tool of actuarial risk/needs assessment tool and professional judgment.and professional judgment.

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Summary: Effective Summary: Effective EB Sentencing Practices EB Sentencing Practices

5. Imposing additional conditions of probation5. Imposing additional conditions of probationbeyond those directly related to an offender’sbeyond those directly related to an offender’srisks/needs only distracts and impedes therisks/needs only distracts and impedes theoffender and probation.offender and probation.6. Appropriate response to a VOP depends on6. Appropriate response to a VOP depends onthe severity of the violation, extent of priorthe severity of the violation, extent of priorcompliance, and the offender’s level of risk. compliance, and the offender’s level of risk. 7. Use cognitive behavioral programs rooted 7. Use cognitive behavioral programs rooted

ininsocial learning theory. They are the mostsocial learning theory. They are the mosteffective at reducing recidivism.effective at reducing recidivism.

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Summary: Effective Summary: Effective EB Sentencing Practices EB Sentencing Practices

8. Offenders will tend to behave in ways that8. Offenders will tend to behave in ways that

result in the most rewards and fewest result in the most rewards and fewest

punishments. punishments.

9. Rewards are more effective than sanctions.9. Rewards are more effective than sanctions.

Use both positive and negative reinforcement. Use both positive and negative reinforcement.

Respond to violations promptly and surely. Respond to violations promptly and surely.

10. To the extent possible, involve the family10. To the extent possible, involve the family

and community in the offender’s treatment.and community in the offender’s treatment.

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Summary: Effective Summary: Effective EB Sentencing Practices EB Sentencing Practices

11. Treatment must be individually determined11. Treatment must be individually determinedbecause treatment must be matched to thebecause treatment must be matched to theoffender’s personal characteristics.offender’s personal characteristics.

12. You can be an agent of positive change. Be12. You can be an agent of positive change. Beaware of the stages of change. Use motivational aware of the stages of change. Use motivational interviewing techniques (reflective listening, interviewing techniques (reflective listening, pointing out offender inconsistencies, reinforcingpointing out offender inconsistencies, reinforcingpositive behaviors, etc.). Avoid threatening, positive behaviors, etc.). Avoid threatening, lecturing, arguing, shaming, sympathizing. Yourlecturing, arguing, shaming, sympathizing. Youractions are as important as your words.actions are as important as your words.

4242

Summary: Effective Summary: Effective EB Sentencing Practices EB Sentencing Practices

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

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Evidence-Based Sentencing Evidence-Based Sentencing Practices Practices

Judge Roger K. Warren (Ret.)Judge Roger K. Warren (Ret.)rwarren@ncsc.orgrwarren@ncsc.org

American Judges Association American Judges Association Maui, HawaiiMaui, Hawaii

September 9, 2008September 9, 2008