Why Sentencing Needs Profound Change; How Technology Can Help

Michael Marcus[1]

February 15, 2003




            Persistently archaic sentencing liturgy yields unacceptable recidivism and avoidable victimization.  Judges eschew social science and accountability for repeated crimes by those we sentence.  The public has responded by reducing judicial discretion.  The combined result forfeits public safety and consumes many resources better spent on programs that would produce crime reduction.

            Sentencing support technology aims sentencing at crime reduction. Sentencing support tools developed under Oregon law have already prompted noticeable changes in the direction of criminal justice.  These tools will increase public safety; justify the restoration of informed judicial discretion; and rationalize the deployment of crime prevention and corrections resources.


The liturgy:            The culture and practice of criminal sentencing is driven by a just deserts principle that dates at least from the Old Testament’s “eye for an eye.”[2]  The language of modern statutes embodies the notion that sentences should impose punishment that is as severe as the crime was wrong, offensive, or evil.[3]  Many provisions mention public safety not at all, or allude to it only by vague reference to rehabilitation or deterrence, both as a matter of faith rather than of science.  Although modern laws recite additional purposes for sentencing, none attempts to prioritize such utilitarian objectives as crime reduction and victim restitution with respect to punitive purposes.[4]

            In practice, just deserts typically dominates the participants’ discussions during sentencing proceedings.  Prosecutors stress the evil of the offender’s deed and the extent of his prior record, and commonly invite courts to “send a message,” presumably invoking general deterrence.[5]  Defense counsel mine the offender’s present or past oppression or deprivation for nuggets of sympathy. The judge will often hold forth on aggravation and mitigation.  And all are complicit in the notion that the judge ought to construct from this mix an “appropriate sentence.” 

            In recent times, to be sure, the criminal justice system has directed many offenders into programs supposedly intended to address the real or presumed bases of the criminal behavior in question.  We send drunk drivers to alcohol treatment providers, sex offenders to sex offender treatment, bullies and abusers to anger management classes, and drug offenders to substance abuse programs.  With the possible exception of the therapeutic courts that lie on the periphery of the criminal justice system,[6] we make no responsible effort to determine or to ensure that our use of these programs have any impact at all.  We use them out of a sense of symmetry rather than as an exercise in applied social science; we fit the crime rather than the offender.  We do not select programs based on what we know[7] about which programs work.  We do not ask programs whether their graduates return to criminal conduct.  Just as we assume that punishment inherently furthers the often articulated goal of rehabilitation, we are content to assume that we are reducing crime by sending thieves to “theft talk” or to jail.


The results:            It became apparent to me early in my career as a trial judge that the first offender is a rarity, the persistent offender the norm.[8]  A now discontinued Portland Police monthly report indicated how many people in jail for any given month had been also been in the same jail within the previous 12 months.  The last full month report – typical of those I’d followed for years – had these figures: of the 2,395 people jailed during July, 2000,[9] 1,246 had been jailed in Portland on some other occasion within the previous 12 months.  Twenty-two of the 32 jailed for burglary in July, 2000, had been jailed in Portland on some other occasion within the previous 12 months – as had 22 of the 23 jailed for robbery, 20 of the 26 jailed for theft in the first degree, 304 of the 372 jailed on drug charges, and 32 of the 39 jailed for vehicle theft.  A more recent Multnomah County project, made possible by our “DSS-Justice” data warehouse, revealed that “4% of our offenders accounted for 23% of [s]tandard  bookings between 1995 and 1999.”[10]

            National figures paint a similar picture. Bureau of Justice Statistics figures for jails in the United States reflect that “More than 7 of every 10 jail inmates had prior sentences to probation or incarceration,” and that “Of the 108,580 persons released from prisons in 11 States in 1983, an estimated 62.5% were rearrested for a felony or serious misdemeanor within 3 years, 46.8% were reconvicted, and 41.4% returned to prison or jail.”[11]  A more recent study released in June, 2002, reported: “Sixty-seven percent of former inmates released from state prisons in 1994 committed at least one serious new crime within the following three years,” and “272,111 offenders discharged in 1994 had accumulated 4.1 million arrest charges before their most recent imprisonment and another 744,000 charges within 3 years of release.”[12]  From what I have been able to determine, figures are similar in most Western countries.[13]


Judges eschew social science and accountability: Academic institutions and corrections agency bookshelves are well stocked with reports and studies about what works and what does not work to reduce criminal behavior.  Generally, the current consensus among those who actually rely on empiricism for their conclusions seems to be this: smaller sanctions, shorter sentences, and minimal supervision correlate with reduced criminal behavior for low risk offenders as compared with more intensive responses to low risk offenders.  Treatment programs that identify and responsibly address multiple criminogenic factors work far better than treatment programs that do something other than address criminogenic factors, and substantially better than programs that only address one or two criminogenic factors.[14]

            Incapacitation works very well during the period of incapacitation.  Measured by impact on recidivism (after release), though, anything longer than six months is probably counterproductive.[15]  Shock incarceration, shock probation, scared straight, D.A.R.E., and boot camp programs do not work and may well do more harm than good.[16]

            Sex offenders and sex offender treatment have often been the subject of research and publication.  In general, we know that opportunistic intra-familial offenders are more susceptible to effective treatment than sexual offenders who seek out child victims with whom they have not previously been acquainted, or who commit violent crimes against strangers, and that treatment competently aimed at risk factors is significantly effective at reducing recidivism.[17]

            Although this vast body of data about what works on which offenders is potentially accessible to us, and could greatly improve our sentencing outcomes, sentencing judges and advocates overwhelmingly ignore it. Instead, we persist in the liturgy described above.[18]  Part of the explanation lies in the relatively rare references to public safety in the typically haphazard directions of legislatures as to what we are expected to accomplish with sentences.[19]  Part may lie in the relative inconvenience of having to invite expertise from other disciplines into the legal arena in which all of the participants may be jealous of their share of the control of expertise.  It may be that we judges probably come from functional homes and believe at some level that if punishment worked on us, it ought to work on the offenders we encounter in court. 

            But the most obvious factor is that a standard that measures a sentence against a generally held notion of what punishment is “appropriate,” perhaps with extra credit for the timbre of the sermon that accompanies the sentence, is far less threatening than holding the system accountable for its frequent public safety failures.  Particularly is this so when the participants have influence over only a fraction of the circumstances that combine to produce an outcome.[20]  But this limitation of our control does not distinguish any undertaking dependent upon human behavior for its success – marketing, investing, public health, or even warfare.  For those enterprises, external factors reward or compel some to undertake the challenge in pursuit of at least an articulated objective.  The problem with the criminal justice system may well be that it is not self-correcting.  Instead, our sentencing failures contribute in a real sense to our job security; our repeaters expand the demand for police, lawyers, judges, treatment agencies and prisons – particularly when more of our offenders return to than leave the criminal justice population.[21]

            In any event, giving judges a laundry list of objectives from which to select any purposes for sentencing, or simply telling them to come up with a sentence that is “appropriate” in deontological terms, results in no accountability whatever for public safety failures.  At the same time, and in part for the same reason, it increases the number of those failures.  Yet the overall thrust of the voice of academia and of sentencing commissions is to celebrate rather than to correct this misdirection.[22]


The public has responded by restricting judicial discretion: Initially motivated by concerns for disparity among sentences and allocation of prison resources, sentencing guidelines systems have emerged in several states and the federal government to limit sentencing discretion.  In general, guidelines prescribe a presumptive range for sentences far narrower than that otherwise available within the legal maximum sentence, substantially limit the bases on and extent to which a judge can sentence outside that range, and subject “departures” to appellate scrutiny previously unknown to most courts in the United States.[23]  While guidelines tended at first to slow prison population growth, legislative and popular ballot measures added mandatory minimum sentences, three-strikes laws, “gun minimums,” and determinate sentences to our sentencing laws,[24] and increased presumptive prison ranges for some guideline crimes,[25] with the purpose and effect of further limiting judicial discretion by requiring lengthy terms of incarceration in sentencing.

            Judges generally despair of this limitation on their traditional discretion.[26]  But the power of our claim to regain sentencing discretion is substantially weakened by our poor public safety results.  Without an empirical basis, our various whims, preconceptions, philosophies, ideologies, and perceptions are simply ineffective in directing sentences at crime reduction.[27]

            When subject to rigorous assessment, our present effectiveness is captured in these excerpts from a National Institute of Justice research project:[28]


The judges’ diverse selection purposes for sentencing individuals support the need for greater clarity and consistency in sentencing aims. The conflict between utilitarian and retributive perspectives was apparent in this study, despite a general preference on the part of judges for utilitarian crime control. Clarity could be increased if there were an internally consistent sentencing theory and if it were consistently applied. Despite their modest validity, the judges’ subjective risk judgments substantially influenced their sentencing choices. The use of more formal, empirically derived methods would enhance sentencing rationality when sentencing theory incorporates risk as a relevant and justifiable consideration.

* * * *

[I]f considerations of general deterrence and deserved punishment are set aside, it must be concluded that confinement or increased length of incarceration served the crime control purpose of incapacitation but had little or no effect as a “treatment” with rehabilitative or specific deterrent effects.  .  . 

[T]here is little or no effect of sentences on crime control objectives — other than by incapacitation — as measured in this study.


            In other words, until and unless we improve the aim and effectiveness of sentencing, the public’s preference for overriding our discretion is often sound. 


Restricting discretion instead of improving it doubly harms public safety: One shortcoming of the movement towards increased incarceration through reduced judicial discretion is that incapacitation is only effective until the defendant is returned to the community.  There are other problems, of course: the broad brush of these measures sweeps into prison offenders whose incarceration is not only not necessary for public safety, but may increase the danger they represent to public safety once they are released.[29]  Moreover, there are unintended collateral consequences and enormous public expenditures that follow from our ongoing experiment with  “mass incarceration.”[30]

            Some argue that “get tough” sentencing laws have ultimately failed to reduce crime.[31]  There are also arguments to the contrary.[32]  There is no doubt that many offenders who are released after serving extended sentences under these laws return to their communities and victimize again.

            Because we use prison and the entire range of available sanctions with no clear guidance as to our objectives, and because we ignore research and data about what is most likely to work on which offenders (or which of them are most likely to need prolonged incapacitation to protect the public from their likely behavior), we select offenders for dispositions by means that are unrelated to and therefore largely unproductive of public safety.[33]  Our sentencing liturgy compounds the error by legitimizing the primacy of law enforcement, criminal justice, and corrections expenditures without practical accountability.  These budgets compete with unfair and mistaken deontological advantage against funding for social programs far more productive of crime reduction: high school completion, parenting education, and early childhood intervention.[34]


Sentencing support technology promises profound improvement:  In 1996, Oregon voters approved a measure referred by the legislature to amend the state constitution to proclaim:


Laws for the punishment of crime shall be founded on these principles: protection of society, personal responsibility, accountability for one's actions and reformation


                                                                                    Or. Const. Art. I, § 15


            The Oregon Legislature has broadly established reducing future criminal conduct as a loadstar of juvenile and adult corrections.[35]  It has charged the Oregon Department of Corrections with this function: 


(b) Provide central information and data services sufficient to:

(A) Allow tracking of offenders; and

(B) Permit analysis of correlations between sanctions, supervision, services and programs, and future criminal conduct


                                                                                    ORS 423.478


            The Oregon Judicial Department has adopted this policy: 


BE IT RESOLVED BY THE OREGON JUDICIAL CONFERENCE that in the course of considering the public safety component of criminal sentencing, juvenile delinquency dispositions, and adult and juvenile probation decisions, judges should consider and invite advocates to address the likely impact of the choices available to the judge in reducing future criminal conduct.


BE IT FURTHER RESOLVED that judges are encouraged to seek and obtain training, education and information to assist them in evaluating the effectiveness of available sanctions, programs, and sentencing options in reducing future criminal conduct.[36]


            Multnomah County, Oregon, has constructed a data warehouse[37] to pool data from multiple criminal justice agencies.  This “DSS-Justice” system[38] provides sentencing support tools to allow judges, attorneys, and others involved in sentencing arguments and decisions to view data showing, for each sentencing element used on such offenders for such crimes, what portion of offenders like the one before the court, sentenced for a crime like the one for which that offender is being sentenced, have been free of recidivism for similar crimes – or for any crime – after being receiving that element in a sentence.  Sentencing elements include programs, jail terms (with and without probation), prison, forms and conditions of probation, alternative sanctions, and even diversion.  All are compared against the same standard: how they correlate with future criminal behavior.

            The purpose and effect of these tools is not to dictate a sentence, nor to displace discretion, or even to preclude consideration of other sentencing objectives, but to inform and to encourage analysis about what disposition is most likely to reduce crime in the future by the offender before the court.[39]  Users produce the first display by entering a case number and selecting a charge for sentencing.  Thereafter, they can alter any of the variables (the charge or charge category for which sentences are compared, the criminal history and demographics of the offenders whose sentences are compared, and the flavor of recidivism by which outcomes are calculated) and promptly generate a new display based on those variables.[40]

            These tools are in their infancy.  We expect to include additional data sources, to add the ability to analyze clusters of sentence elements, and to evolve versions for the use of pre-trial release and post-conviction probation officers.  But even in their present form, these tools represent a profound improvement in the availability of information relevant to responsible sentencing analysis.

            That Multnomah County’s tools are unique is a testament not to the difficulty or futility of providing such tools to judges, but to the pervasive misdirection of criminal justice.  They are slowly gaining a presence in the routine of the criminal justice process.  All Multnomah County judges may have access to the tools in their courtrooms; the major indigent defense firm and the prosecutors office have access in-house.  A dedicated computer “kiosk” in our courthouse is available to all attorneys who wish to access these tools.  Attorneys are beginning to bring printouts of bar charts from the program to plea negotiations, settlement conferences, and sentencing arguments.  They have begun to change the focus of sentencing towards public safety.  Some evidence of the effect of this effort is a change Multnomah County judges recently made to the form of order for pre-sentence investigations:[41] we have added this box to the top of the list of subjects to be addressed in the report: 


G             Analysis of what is most likely to reduce this offender’s future criminal behavior and why, including the availability of any relevant programs in or out of custody


            The first object of this effort is to improve the public safety outcomes of our sentencing decisions, and of the far more numerous plea negotiations that are premised on the parties’ prediction of sentencing decisions.  We hope to focus the attention of all participants on public safety – advocates and judges, as well as pretrial release officers, presentence report writers, and probation officers who supervise offenders and make recommendations on the occasion of probation revocation hearings.[42]  We hope and expect that the progress we make in this direction will begin to bridge the gulf between those who practice criminal justice and those who study it – so that experts in corrections and criminology are invited by advocates and policy makers into the process to help us achieve best practices, and to exploit and to improve our sentencing support tools.

            This is no small undertaking, given the degree to which just deserts permeates the culture of criminal justice.  But by focusing remaining judicial sentencing discretion on public safety and by providing participants data to as to what seems to have worked or not on which offenders, we may by our results earn back the discretion lost to mandatory minimum sentence legislation and other popular adjustments in recent years.

            To the extent that criminal justice actually serves the function of reinforcing social values through its ceremony,[43] this effort should also help to make “what works” count for more in public debate and policy making as to the deployment of criminal law and corrections, and as to the funding of crime prevention efforts intended to divert potential offenders before they enter the criminal justice system.

            At the very least, we hope to do a better job of crime reduction than we now do by accident.


      [1]     A trial judge in Oregon since 1990, past chair (and present member) of the Oregon Judicial Conference Criminal Law Committee and present chair of the OJD Technology in the Courts Committee, and author of 1997 Or Laws Ch 433 (ch433.htm).  The web site promoting the exploitation of technology to focus sentencing on public safety outcomes, and collecting presentations and articles produced in that effort is at  http://www.smartsentencing.com.

      [2]     Lex talionis, or the principle of equivalency, finds expression in Exodus 21:23.  Although “eye for an eye” in modern terms is the slogan of severe punishment, in its origins it implied moderation, and was intended to condemn excessive retaliation or retribution for injuries or wrongs.  A similar concept runs through the Code of Hammurabi (c. 2500 B.C.)  See, e.g., Wilson v. Seiter: An Unsatisfying Attempt at Resolving the Imbroglio of Eighth Amendment Prisoners’ Rights Standards, 1992 Utah L.Rev. 565, 567.

      [3]     For example, federal law in the United States provides that a sentence should “reflect the seriousness . . .  and . . . provide just punishment for the offense.”  18 USC § 3553(a)(2)(A).  The currently circulating draft of the American Law Institute’s revision to the  Model Penal Code begins its articulation of the purposes of sentencing as “in all cases, to render punishment within a range of severity sufficient to reflect the gravity of offenses and the blameworthiness of offenders . . .”   Kevin R. Reitz, Reporter, Model Penal Code: Sentencing, Plan for Revision §1.02(2)(a) (January 2002).   Oregon law directs that one purpose of the criminal law is to  “prescribe penalties which are proportionate to the seriousness of offenses” ORS 161.025(1)(f).  The Canadian Criminal Code calls for “just sanctions.”   Canadian Criminal Code (R.S. 1985, c. C-46 ), §718. 

      [4]     Thus 18 USC § 3553(a)(2) recites that a sentencing judge “shall consider:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed -

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . . .”

And ORS 161.025(1) provides that the purposes of the criminal code are:

“(a) To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the correction and rehabilitation of those convicted, and their confinement when required in the interests of public protection.

(b) To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.

(c) To give fair warning of the nature of the conduct declared to constitute an offense and of the sentences authorized upon conviction.

(d) To define the act or omission and the accompanying mental state that constitute each offense and limit the condemnation of conduct as criminal when it is without fault.

(e) To differentiate on reasonable grounds between serious and minor offenses.

(f) To prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.

(g) To safeguard offenders against excessive, disproportionate or arbitrary punishment.”

Canadian law (R.S. 1985, c. C-46 , §718) similarly prescribes that “just sanctions have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.”

      [5]     This plea invokes images of the giant antenna at Arecibo, silently engaged in the search for extraterrestrial intelligence – and of a silverback gorilla beating his chest to convince his observers of his importance.  Although “send a message” is usually taken at face value, it may invoke notions of general deterrence or of denunciation – the social ceremony of condemnation intended, presumably, to reassert the social values offended by the crime.  General deterrence draws academic support (as opposed to the anecdotal support treasured by law enforcement and “tough on crime” activists) almost entirely from articles that construct models of fascinating sophistication that are premised on rather than supportive of an actual connection between the punishment of some offenders and the criminal conduct of others.

      General deterrence through sentencing offenders does not work at all in most realms, although there are pockets of human activity that are indeed responsive to major changes in the existence (and likely imposition) of sanctions: illegal parking and corporate crime.  The former lacks the passion (or at least lack of impulse control) that drives most crime; the latter is typically subject to logical and long range planning.  The bulk of criminal behavior involves drives and defects for which abstract thinking (even if present) is no match – and the prospect of getting caught is as abstract as the notion of mortality.  Our local experience with suspending prosecutions for shoplifting – which had no apparent impact on shoplifting rates – probably means that potential shoplifters are deterred, if at all, only by the prospect of being apprehended by store detectives and arrested – not by any notion that a prosecution and punishment may follow.   The importance of doing to offenders what is most likely to divert them from criminal careers is entirely independent of whether general deterrence has greater significance than this paragraph suggests.

      [6]     The therapeutic justice movement embraces the drug courts, mental health courts, domestic violence courts, and intensive supervision courts that turn the courtroom into a ceremony for promotion of successful treatment.  The judge is often cast in the role of chief counselor, and the courtroom into something of a twelve step meeting room.  The results are generally far better than those flowing from the traditional criminal justice process.  The judges who preside in these courts generally sincerely and effectively adopt and pursue behavior modification and crime reduction as their goals.  Unfortunately, the system has generated these projects not because of a new commitment to public safety but as a convenient way of responding to crowded dockets by unloading the numerous cases that seem less important to the de facto mission of criminal justice: yielding the terrible swift sword of denunciation and punishment.  We have not sufficiently assessed the actual impact of these therapeutic courts on the behavior of offenders.  A federally funded research project is focusing on our local intensive supervision program for repeat drunk drivers.  Instead of comparing the recidivism of its graduates with similar offenders sentenced traditionally, however, the researchers are spending substantial resources to find out how much difference there is between those that are required to sell their cars and those who are not.  At least the therapeutic courts attempt a public safety improvement; we have overwhelmingly failed to direct the mainstream of the criminal justice process toward that end.

      [7]     Page 5, infra.

      [8]     Exceptions are the first offender drunk drivers and customers of prostitutes.

      [9]     Portland Police Bureau Data Processing, August 25, 2000.  The Portland Bureau of Police stopped producing these statistics in mid-2000; I am still waiting for their successor.  An extract of the statistics is available at http://www.smartsentencing.com.

      [10]    The Booking Frequency Pilot Project In Multnomah County, Oregon: A Focus On Process And Frequencies, at i (The Multnomah County Sheriff’s Office, Dan Noelle, Sheriff, In collaboration with the Multnomah County Department of Community and Family Services, Department of Community Justice, Health Department, and Corrections Health Division (January 2002)).  “DSS-Justice” is a data-warehouse based criminal justice tool which also supports the sentencing support tools discussed later in this paper. See pp.10-11, supra. http://www.co.multnomah.or.us/dss/info/initiatives/DSSProjectOverview.shtml; http://www.lpscc.org/dss_justice.htm; http://www.lpscc.org/docs/evaluation_capacity.pdf; SentSuptTools.htm.

      [11]    Bureau of Justice Statistics Criminal Offenders Statistics, http://www.ojp.usdoj.gov/bjs/crimoff.htm.

      [12]    Bureau of Justice Statistics Criminal Offenders Statistics, http://www.ojp.usdoj.gov/bjs/abstract/rpr94.htm.

      [13]    Previous incarceration rates are equivalent in Australia.  “More than 60% of offenders in prison at the time of the 1994 Census had been imprisoned at some time previously” with a high of 78% for “break and enter” offenders. http://www.abs.gov.au/Ausstats/ABS@.nsf/94713ad445ff1425ca25682000192af2/a47fa7f4931f2bf3ca2569bb00164f7e!OpenDocument   New South Wales has adopted technology which is similar to ours in appearance, but quite different in function: rather than inform and encourage judges to do that which is most likely to prevent recidivism by the offender in question, these tools – and similar ones developed in Scotland – encourage judges to do what other judges have most commonly done in similar cases with similar offenders.  See http://www.judcom.nsw.gov.au/dublin.htm.  A recent English study found that of nearly 10,000 prisoners, 84% had prior convictions. http://www.crimereduction.gov.uk/drugsalcohol25.htm. The report is summarized on the “Crime Reduction” website, which is described as follows: “The website was developed by the Home Office in partnership with the Association of Chief Police Officers (ACPO), the Local Government Association, Crime Concern and NACRO. It is managed on behalf of the UK crime reduction community by the Home Office Crime Reduction College.”  http://www.crimereduction.gov.uk/help/index.htm.  The full report is at http://www.drugs.gov.uk/ReportsandPublications/Publications/arms.pdf.    The National Crime Prevention Centre of the Department of Justice of Canada reports “approximately 75% to 80% of incarcerated adults were persistent offenders in their youth.”  http://www.crime-prevention.org/english/publications/children/profil.html#history  A 1996 study for the Canadian Solicitor General concluded that the overall recidivism of imprisoned child molesters was 61% as compared with 83.2% for other prisoners. Hanson, R. K., Scott, H., & Steffy, R. A. (1995),  A comparison of child molesters and nonsexual criminals: Risk predictors and long-term recidivism,  Journal of Research in Crime and Delinquency, 32(3), 325-337.

      [14]    See generally, Treatment Works For Youth In The Juvenile Justice System, National Mental Health Association, and sources cited  (http://www.nmha.org/children/justjuv/treatment.cfm); Mark Gornik, Moving from Correctional Program to Correctional Strategy: Using Proven Practices to Change Criminal Behavior, U.S. Department of Justice, National Institute of Corrections, and sources cited (http://www.nicic.org/pubs/2001/017624.pdf).   Gornik’s meta-analysis of 154 studies found a 30% impact on recidivism for the 54 that assessed responsibly targeted and delivered treatment strategies.  I hasten to add that I am no fan of meta-analysis to the extent that it derives numerical quantities from what is in essence a literature review, but this is a useful literature review.

      [15]    See, e.g., Smith, P., Goggin, C., & Gendreau, P. (2002), the Effects of Prison Sentences and Intermediate Sanctions on Recidivism: General Effects and Individual Differences (User Report 2002-01) Ottawa: Solicitor General Canada, (http://www.sgc.gc.ca/publications/corrections/200201_Gendreau_e.pdf), cited in The Effects of Punishment on Recidivism, 7 Research Summary No. 3 (May 2002), Office of the Solicitor General of Canada, (http://www.sgc.gc.ca/publications/corrections/pdf/200205_e.pdf).  See generally, Lawrence W. Sherman, Denise C. Gottfredson, Doris L. MacKenzie, John Eck, Peter Reuter, and Shawn D. Bushway, Preventing Crime: What Works, What Doesn’t, What’s Promising, Research in Brief, National Institute of Justice, July, 1998, and sources cited (http://www.ncjrs.org/pdffiles/171676.pdf); Community Corrections: What Programs Work?, Oregon Department of Corrections, and sources cited (http://www.doc.state.or.us/community_corrections/whatiscc/whatwork.shtml).

      [16]    See sources cited note 15, infra.

      [17]    See generally, Recidivism of Sex Offenders, Center for Sex Offender Management (Office of Justice Programs, U.S. Department of Justice) (May 2001), and sources cited (http://www.csom.org/pubs/recidsexof.html); The Effectiveness of Treatment for Sexual Offenders, 7 Research Summary No. 4 (July 2002), Office of the Solicitor General of Canada, and sources cited (http://www.sgc.gc.ca/publications/corrections/200207_e.asp).

      [18]    Pages 1-3, supra.

      [19]    See, e.g., notes 3 and 4, supra.

      [20]    It is also true that offenders are not always in control of all the circumstances that contribute to their success or failure; we are much better at holding them accountable than at accepting accountability for our decisions.

      [21]    I am not suggesting that we consciously pursue failure for selfish purposes, but only that there is no inherent correction for our misdirection.

      [22]    Marcus, Thoughts on Stathclyde (2002), Thoughts_on_Strathclyde.htm.

      [23]    See, e.g., Chaiken, J. M., Crunching the numbers: Crime and incarceration at the end of the millennium, 242 National Institute of Justice Journal 10-17 (2002); Frase, R. S., State sentencing guidelines: Still going strong. 78 Judicature 173-179 (1995);  Marvell, T. B., Sentencing guidelines and prison population growth, 85 Journal of Criminal Law and Criminology, 101-115 (1995).  See generally, Beck, A. J., & Karberg, J. C., Prison and jail inmates at midyear 2000, U.S. Government Printing Office, Washington, D.C (2001).  In United Kingdom courts, sentences are generally appealable for excessive leniency or severity.  See the Criminal Justice Act 1988 (UK).  Similarly, under the Criminal Code of Canada, both sides have the same right to appeal a sentence, and the appellate court is authorized to impose any sentence allowable by law.  Criminal Code of Canada, §§ 675(1)(b), 676(1)(d), 687,  Indeed, the courts in many commonwealth countries issue sentencing guidelines, not legislatures.  The English Parliament created an advisory panel to give guidance to the appellate courts in this process. §§ 80 & 81, Crime and Disorder Act 1998. For a critique of the panel’s approach, see Marcus, Thoughts on Stathclyde, pp 6-8, note 22, supra.

      [24]    E.g., Michael Tony, Sentencing Matters, (Oxford University Press, New York, 1995).

      [25]  See, e.g., ORS 137.717; 1993 Or Laws Ch 692.

      [26]    E.g., Smith, Alexander, and Polack, Harriet, Curtailing the Sentencing Power of Trial Judges: The Unintended Consequences, Court Review p. 6 (Williamsburg, VA: American Judges Association, Summer 1999).

      [27]    See text accompanying pages 1-3, supra.

      [28]    Don M. Gottfredson, Effects of Judges’ Sentencing Decisions on Criminal Careers, Research in Brief, (National Institute of Justice November 1999), http://www.ncjrs.org/pdffiles1/nij/178889.pdf.

      [29]    See authorities cited note 15, supra.

      [30]    Marc Mauer and Meda Chesney-Lind, editors., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (The New Press 2002)

      [31]    “Though it is still too early to make a final judgment, RAND found that three strikes and truth-in-sentencing laws have had little significant impact on crime and arrest rates. According to the Uniform Crime Reports, states with neither a three strikes nor a truth-in-sentencing law had the lowest rates of index crimes, whereas index crime rates were highest in states with both types of get-tough laws.” Susan Turner, Impact of Truth-in-Sentencing and Three Strikes Legislation on Crim, RAND Corporation Criminal Justice Program, Justice Research & Statistics Association, Crime and Justice Atlas 2000 p. 10 (Washington, DC: US Dept. of Justice, June 2000).

      [32]    E.g., John J. DiIulio, Jr., Three Strikes Was the Right Call,  Instant Replay, The American Prospect, http://www.prospect.org/print/V5/18/diiulio-j.html.

      [33]    Notes 8-13, supra, and accompanying text.

      [34]    See, e.g.., Reynolds AJ, Temple JA, Robertson DL, & Mann EA, Long-term effects of an early childhood intervention on educational achievement and juvenile arrest, 285 JAMA 2339-2346 (2001); Professor Ross Homel, Griffith University, Developmental Crime Prevention Consortium, Early Intervention and Developmental Approaches to Crime Prevention, South Australia Attorney General’s Department (1999), http://www.cpu.sa.gov.au/nacs_eidacp.htm; California (USA) Youth Authority, Delinquency Prevention Resources, http://www.cya.ca.gov/juvenile/delinquencyprevention.html; Department of Justice, Canada, Alberta Crime Prevention Initiatives,  http://canada.justice.gc.ca/en/news/nr/2001/doc_27924.html; National Crime Prevention Council, Small Cities and Rural Crime Prevention, http://www.ncpc.org/5part5dc.htm;  Research on Parenting Education Programs and Their Effectiveness: A Bibliography, http://www.whitehousedrugpolicy.gov/publications/prevent/parenting/r_bib.html; National Crime Prevention Centre (Canada), Health, social and educational services - determinants of health (2001), http://www.crime-prevention.org/english/publications/children/health/health_e.html.  An Oregon Colleague, Judge Pamela Abernethy, has launched a program (“Project Bond”) that wonderfully combines both sectors: parents of very young children who appear as criminal defendants are given sentencing incentives to agree to injecting social services into their parenting.

      [35]    1997 Or Laws Ch 433 (ch433.htm).

      [36]    1997 Oregon Judicial Department Resolution #1, JCRESNO1.htm.

      [37]    Data warehouse technology allows users to query data from multiple sources – even if the data is originally stored on diverse hardware using diverse software.  The useful data is extracted from each source, transferred to the central “warehouse,” and transformed so as to be mutually intelligible.  This strategy allows users to perform analysis that would otherwise require manual searches, and overcomes the diversity of platforms that has otherwise frustrated so many attempts at integration of criminal justice data.  The data in the warehouse is regularly refreshed – nightly, in Multnomah County.

      [38]    “DSS” is the abbreviation for “decision support system,” used to refer to any of a broad category of information technologies employed to assist decision making.  The Multnomah County system also provides useful data analysis for many criminal justice purposes in addition to sentencing support.

      [39]    For further information on the design, purpose, technical aspects, and development of these tools, consult http://www.smartsentencing.com.

      [40]    A user manual is accessible from the Multnomah County Courts homepage under the “Sentencing Support Tools” link: http://www.ojd.state.or.us/MUL/home.nsf/.

      [41]      Multnomah County Court ORDER FOR PRESENTENCE INVESTIGATION, form 23-45 (01/02).

      [42]    The change here is particularly profound.  Probation officers used to a punishment model will argue that probation should be revoked to “vindicate the authority of the court” or of the probation officer, or because “the offender has forfeited the privilege of probation.”  A new approach has begun to take root.  Probation officers are becoming used to being asked to address how the judge’s choices are likely to affect future criminal behavior.  Given the duration of incapacitation available by way of revocation, the offender’s criminogenic factors, and the availability or not of programs in or out of custody that might reduce the risk of recidivism, how are we most responsibly to seek public safety?  Probation may look like a privilege to the offender otherwise facing prison, but we use it properly to reduce crime.

      [43]    General deterrence presupposes such an impact, but some argue that the social function of criminal justice is even broader: “[T]he criminal law serves by its solemn procedures as a teacher of minimal standards of morality and behaviour; as an agency for the expression of public indignation and condemnation; and as a force operating to produce cohesion within society.”  J. V. Barry, The Courts and Criminal Punishment pp. 14-15 (New Zealand 1969), quoted in Discussion Paper 33 (1996) - Sentencing, the Rationale of Punishment ¶ 3.2, New South Wales Law Reform Commission, http://www.lawlink.nsw.gov.au/lrc.nsf/pages/DP33CHP3. This is consistent with the Commission’s endorsement of “denunciation” as a purpose of punishment, an objective also expressly listed in the Canadian Criminal Code, R.S. 1985, c. C-46, §718(a).