In the course of promoting data-driven approaches to sentencing decisions,
I have encountered common questions. In all candor, I've responded to some
good questions without first determining that they have become frequent
-- on the assumption that if I encounter a good question, others may have
the same question without it coming to my attention. In any event,
I hope the following answers will help to explain the nature and benefits
of this technology as applied to criminal justice. For further information
or to offer comments, please
send
e-mail.
Q: What is "smart sentencing"?
Q: Can sentencing be "smart" without
technology?
Q: Do
you want computers to make sentencing decisions instead of judges?
Q:
Haven't recent ballot measures and statutes eliminated the role of discretion?
Q.
How can you be so disloyal to your colleagues by blaming them for crime?
Q: How does Blakely v. Washington
affect all this?
Q: What happened at the ALI annual meeting
in May, 2007?
Q:
Is it really a good idea to have judges try to predict which sentences
will work best to reduce criminal behavior?
Q: Are you
trying to replace probation officers?
Q: Isn't unrealistic
to expect lawyers who practice criminal law to handle data and research
about what works?
Q: Smart sentencing makes a
lot of sense; what are the arguments against it?
Q: Is this all an argument
not to use jail or prison?
Q: Aren't
you shifting responsibility from criminals to the courts when you blame
the courts (or criminal justice) for recidivism?
Q:
Are you saying retribution and general deterrence should be discarded as
objectives of sentencing?
Q: How
can you expect providers accurately to gather and report the data you need?
Q:
What makes you think this technology will serve public safety?
Q: What impact
do you expect to have on recidivism?
Q: Don't we already know what works?
Q: Why
can't we just exploit the research we already have?
Q: How
can you evaluate programs with limited access to their internal data?
Q: Are you
trying to replace research and researchers?
Q:
Does this sentencing support technology have any other benefits for criminal
justice?
Q: Why include
ethnicity in the offender profile?
Q: Is it fair to include
gender and other variables the offender cannot control in the profile?
Q: Is anyone else doing
this now?
Q: Have you determined that
your results are statistically significant?
Q: How
do you know outcomes don't reflect accurate predictions rather than cause
and effect?
Q: Doesn't
plea bargaining distort the data?
Q: Isn't
this just a fancy risk assessment tool?
Q:
Haven't the experts concluded that nothing really works?
Q:
How can you expect offenders to change until they're ready to accept change?
Q: What is that graphic you use
on so many pages?
Q: What is "Smart Sentencing?"
A: Some have asked what I mean
by "smart sentencing" and ask for examples. For my purposes, "smart
sentencing" is sentencing that rationally seeks to accomplish an objective
-- usually reducing the likelihood that an offender will commit future
crimes, but the concept can apply to any sentencing objective. Sentencing
rationally seeks an objective whenever it uses best efforts to access relevant
information about the sentencing choices available for an offender.
Sentencing support tools are but one source of helpful information.
Within limits, these tools tell us what has happened (in terms of subsequent
criminal behavior) to similar offenders, sentenced for similar crimes,
who received any of the dispositions available for the offender now being
sentenced. Of course, "similar" is hardly the same as identical,
and depending upon the size and nature of the cohort of offenders, the
precision with which we've identified truly similar offenders may vary
greatly. Even with an "identical" cohort based on the data available
to the tools, variables not recognized by the tools [because they are not
routinely collected and shared -- or even known to the system] may make
one offender more or less likely than another within the cohort to benefit
from a given disposition.
Here are two examples. Traditional sentencing might
simply take a low level theft offender with a record of low level thefts
and routinely impose a period of, say, 18 months bench probation, "theft
talk," and a fine of $150 plus fees and assessments. Smarter sentencing
would look at what similar offenders, of a similar criminal background,
age, and gender, did after receiving any of the available dispositions.
With no other information, and no reason to suspect some individual characteristic
that makes a difference, smarter sentencing would consider doing what seemed
to work best in the past on such offenders for such crimes. For some
cohorts, by the way, I've seen that anger management correlates substantially
better than traditional theft sentences with reduced recidivism, and for
such a cohort, I might well consider adding anger management (or substituting
it for a fine). If we had the resources to do a criminogenic assessment,
we might find a connection between substance abuse or a mental health issue
and the criminal behavior -- if so, smarter sentencing might involve addressing
the substance abuse and mental health issues with a dual diagnosis treatment.
On the other end of the spectrum, traditional sentencing
of a sex offender convicted of, say, six separate crimes, might include
120 months prison total, with most of the time running concurrently to
produce that 120 months -- because ten years seems "just" in light of the
crimes. [What is "just" is ultimately a tremendously fluid concept].
Smarter sentencing would look to a psychosexual evaluation to assess the
risk level and susceptibility of the offender to any available sex offender
treatment. In the case of a predatory pedophile, that process might
well suggest that the risk of recidivism is extremely high and the likely
impact of any treatment extremely low. Coupled with literature suggesting
that post-prison recidivism does not increase with the length of custody
for high-risk offenders [the opposite seems to be true with most low and
medium risk offenders], and literature suggesting that such sex crimes
do not taper off with advanced age (as do most crimes), smart sentencing
would seek the maximum consecutive prison sentence and probably arrive
in the vicinity of over 500 months in prison.
Sentencing support tools show that for some female
drug offenders, even those for whom prison is usually employed because
they have multiple prior offenses, parenting classes are apparently
more successful than custody for preventing new crimes. Looking at
and considering all of the information about what works on whom and making
our best efforts to do that which is most likely to work -- responsibly
in light of the nature and the extent of the risk to the public, both in
the short and in the long run -- may well call for parenting classes instead
of prison.
Smart sentencing is evidence-based, responsible,
and accountable; it employs our best efforts to accomplish what the public
expects us to accomplish: crime reduction. At the same time, it is
kinder both to the potential victims smart sentencing will prevent, and
to offenders who can be diverted from criminal careers -- who, without
smart sentencing, would be repeatedly cycled through the criminal justice
system and punished with no benefit to them or to the community their behavior
offends. return
to top of page
Q: Can sentencing be "smart" without
technology?
A: Yes. Sentencing support technology
is an important means by which to get useful information to the process,
but its ultimate purpose is to get the process to employ best efforts to
achieve public safety and any other relevant and legitimate purpose of
sentencing. The Oregon Judicial Department has recently revised our
Judges'
Criminal Law Bench Book (which is available on the Supreme Court Library's
web page) to include an expanded chapter on sentencing. The first
thirty pages or so of that chapter (starting on page 727) are devoted to
practical tips to assist in making informed and effective sentencing choices.
For example, if a probation officer or district attorney is urging imprisonment
to ensure that a repeat low-level offender finally gets drug treatment,
the tip is that we need to gather the information about the actual availability
to the offender in question of drug treatment in custody. Testing,
challenging, and questioning routine assumptions is smarter sentencing
than sentencing based on guesswork and empty assumptions. return
to top of page
Q: Do
you want computers to make sentencing decisions instead of judges?
A: No. The computer simply gives
the decision maker vastly improved access to important information - such
as how similar offenders have fared after being sent to or serving sanctions
or completing programs available for this offender. This helps the decision
maker make more informed decisions about how best to try to reduce this
offender's future criminal behavior, but it does not even address the other
components of sentencing. And even within the goal of reducing this offender's
criminal behavior, there is much left to advocacy, analysis, and individual
assessment.
Sentencing support tools do not purport to
display causation or to factor in such important variables as offender
risk and need. The tools' primary purpose is to raise the "what works?"
question by giving easy access to outcomes for similar offenders sentenced
for similar crimes -- to focus sentencing attention on outcomes.
They will have served their primary purpose when the routine discussion
becomes what is most likely to work and why, with the tools serving
only their secondary function: providing accurate data on outcomes correlated
with similar offenders and crimes -- so the participants can address why
that information is or is not predictive for the offender in question.
At a recent law class, a student asked what the
"end stage" of this effort would look like. Of course, the future
is impossible to predict, but I envision a criminal justice system that
approaches sentencing much as modern public health agencies approach disease
-- cognizant of the wide range of human behaviors, qualified by the limitations
of human bureaucracy and finite resources, but competently and rationally
addressing a persistent and changing challenge to the quality of life in
our communities with responsible use of available information and appropriate
techniques. return
to top of page
Q:
Haven't recent ballot measures and statutes eliminated the role of discretion?
A: No. By far the most numerous
cases in our system are less serious crimes which are not covered by mandatory
minimum sentences or even by the sentencing guidelines that apply to felonies.
The guidelines allow for departure to serve compelling and substantial
interests, but even for those cases subject to mandatory minimum sentences,
judges have tremendous discretion to impose greater sanctions than
those required. They frequently have discretion whether to impose consecutive
or concurrent sentences. And in the great majority of cases, judges have
wide discretion whether to impose incarceration or probation with conditions,
to structure conditions of probation and to recommend programs during incarceration,
and whether and when to revoke probation or to continue probation with
modified conditions. Without sentencing support technology,
all of these decisions are commonly based on ideology, philosophy, or faith;
they are almost never made based on (or even with access to) information
about how similar offenders have behaved after being subjected to similar
choices in the past. return
to top of page
Q: How does Blakely v. Washington affect
all this?
A: Not much. Blakely
v. Washington and its progeny have spawned expansive debate about
how to accommodate a right to jury trial attached to facts essential to
enhanced sentences. United
States v. Booker confirmed the fears of Professor Kevin Reitz and
other advocates of a guidelines centric rewrite of the Model Penal Code's
sentencing provisions: an easy fix is to deem guidelines merely "advisory."
While guidelines advocates and the other major players scramble to modify
sentencing forms to respond to Blakely, each segment of the sentencing
debate threatens its own objectives by pursuing a strategy that ignores
crime reduction - the major function of sentencing rightly sought by the
public. There are other easy fixes - including the simple provision for
a jury trial where required, as urged in Justice Stevens' opinion in Blakely.
Any response that merely continues the sway of guidelines that are blind
to public safety will only resume the tragic cycle of misdirected sentencing
decisions, avoidable victimizations, responding restrictions on sentencing
discretion and expanding demand for draconian sentencing. But any
fix will probably either restore or expand sentencing discretion -- even
without a fix, the only discretion lost is that to depart above a discretionary
range without first affording the defendant a right to a jury trial on
facts critical to sentence enhancements. So all of the argument for
using whatever discretion remains to achieve best efforts at crime reduction
survives Blakely.return
to top of page
Q.
How can you be so disloyal to your colleagues by blaming them for crime?
A: I should start by revealing that
I have enormous respect for my fellow judges. In my many years of
working with them (I was appointed to the bench full time in March, 1990,
and practiced before the same courts for 16 years before that -- and another
four in California), I have learned that performing quality, impartial,
and valuable work in our public function is the ambition of virtually all
judges I know. Many of my colleagues go the extra mile for public
purposes in addition to the requirements of the cases on which we sit.
Many volunteer many hours to the administration of justice – writing articles
and presenting legal education courses for law students and lawyers, serving
on many committees devoted to improving the law itself or the processes
of the courts, and speaking to groups of citizens who want to know about
the courts and the law. Through such efforts, and in cooperation
with bar associations, legislative committees, and public and private agencies,
judges I know work to reduce child abuse and domestic violence, improve
the foster care and adoption systems, reduce barriers to people who cannot
afford attorneys to represent them in legal proceedings, help parties settle
existing cases without the emotional and fiscal expense of trial, support
recovery from addiction, assist victims impact panels in their attempts
to convince drunk drivers not to repeat their mistakes, and help women
offenders earn back custody of their children. A good number of judges
go
to great lengths to make treatment courts work, and to follow up with probationers
to improve their chances of leading productive lives. I am proud
to say that my colleagues voluntarily created a fund in response to our
recent budget crisis to alleviate the hardship of court staff whose mandatory
furlough days put them in financial crisis. For these and many similar
reasons, I consider myself fortunate indeed to be a part of such a group
of colleagues.
But it is in the nature of and human beings
and social processes that good people, pursuing normal routines with skill
and the best of intentions, sometimes persist in behaviors that tolerate
or even cause harm -- yet resist scrutiny, measurement, or change that
might imply that they are somehow responsible for outcomes they surely
never sought. It's easy to see this scenario in other times and places,
but often difficult for any profession to contemplate such notions in their
own time and place. This institutional denial explained the expulsion
of Ignaz Philipp Semmelweis
from Vienna because he learned that having his medical students wash their
hands between dissections and deliveries drastically reduced maternal mortality.
His hospital employer simply couldn’t accept the message that business
as usual had been killing patients. It was not that his colleagues
were not committed to the ideals of their medical calling, but that human
institutions have enormous capacity for denial.
More recently, the Institute
for Healthcare Improvement tackled the problem that was costing the
loss of hundreds of thousands of lives through mistakes in hospitals (at
a rate of 98,000 per year – plus millions of non fatal mistakes), and eventually
produced tremendous success in reducing such errors through procedural
changes. The present point is that neither the certainty of professionals
that they are well intended and competent, nor the outrage of their defenders
when others suggest that the status quo is killing people, protects those
who suffer unintended harm at their hands nor answers the need for change.
Mainstream sentencing is governed by plea
bargains that generate 90-95% of sentences with little or no judicial intervention.
Outside the treatment courts, we judges permit punishment for its own sake
to dominate the discussion, and we allow the enormously elastic goal of
proportional punishment alone to constitute adequate performance – largely
ignoring, but surely never measuring, crime reduction or any other social
objective.
Most offenders sentenced for most crimes offend
again, and most horrible crimes are committed by offenders repeatedly sentenced
in the past with no responsible effort to reduce the offender's criminal
behavior. Because we're not doing our best to focus sentencing on
crime reduction -- because we're giving punishment per se complete control
of the process without making any effort to ensure that even the legitimate
purposes of punishment are served -- we are tolerating tremendous unnecessary
brutality: avoidable victimizations smarter sentencing would have prevented,
and often draconian sentences imposed on some offenders with no hope of
serving any social purpose.
The tragedy is that good people with good
intentions can produce such results. The compounding tragedy is that
judges sometimes bristle at the very goal of "improvement" because of its
implications for current performance, and resist performance measures on
any number of grounds if the performance measures touch on our impact on
harm reduction. The final irony is that we often expect far more
insight and accountability from the offenders we sentence than we are willing
to adopt for ourselves.
Of course, changing the status quo requires
avoiding rather than confronting the denial. Those who want to change
things need to convince others of the urgency of the need for change, but
once there is a sufficient number of judges and others committed to change,
the trick is finding tactics that work without conveying criticism or blame,
but instead tap the enthusiasm for contributing to the public good that
motivates so many in our role
Unfortunately, there are a substantial
minority of judges who actually argue that crime reduction is not our job
-- but that's another story. return
to top of page
Q: What happened at the ALI annual meeting
in May, 2007?
A: The short answer is that the
motions were all defeated, a not unexpected outcome given the deference
that the process effectively gives to the reporter in projects, and the
cultural depth of acceptance of retribution regardless of function.
It is hard to untangle the process from the result. There was substantial
testimony from people unknown to me in favor of the first motion (to restrict
the role of retribution both by proportionality and by some plausible connection
to any social purpose served by punishment), but the discussion soon became
clouded by the reporter’s suggestion (whether or not intentional) that
my motion would add roles for retribution rather than limit them as compared
to his draft. I suspect that many who voted were at least confused
and at worst assumed that proportional severity serves only to limit utilitarian
functions in the reporter’s draft. Critically, that misses the point
of the debate. Under the draft, which is now set virtually in stone
by the vote at the annual meeting, a sentence may properly punish for its
own sake regardless of any pursuit of any purpose as long as the punishment
is “proportional” by just desert standards – meaning within the range of
presumptive sentences promulgated by a sentencing commission. The
point of the motion was to limit punishment per se to occasions on which
it plausibly serves to promote public values in the specifics articulated
in the motion:
The struggle for a more rational sentencing
structure and practice continues. There are provisions in the MPC
yet to be refined that have a role in this. And there are efforts
underway at the national level that intend to shift the culture of sentencing
away from ordered just deserts to evidence based practices.
The MPC draft will squander an opportunity to provide real leadership,
but may yet be of some assistance in the right direction.return
to top of page
Q:
Is it really a good idea to have judges try to predict which sentences
will work best to reduce criminal behavior?
A: In my quest, I have occasionally
encountered the view that judges have no business trying to adjust sentences
based on their impact on the offender's criminal behavior. I think
it fair to say that on all occasions, the majority of those who heard such
comments were as astonished as I was, but the view that sentencing is about
something other than reducing criminal behavior is actually consistent
with the almost universal behavior of participants in the sentencing process,
so this question merits a response. First, the data from Multnomah
County's sentencing support technology clearly shows (as does an enormous
quantity of criminological and correctional research) that different dispositions
have different correlations with future criminal conduct -- that some sentencing
decisions are in fact at least not preventing future victimizations by
those sentenced as well as other decisions. It is obviously foreseeable
that paying attention to what works on whom and what does not can make
a difference in the likelihood of future victimizations, and in most other
areas of the law, consciously ignoring a substantial risk of harm is equated
with recklessness and the potential for civil or criminal liability.
In other words, claiming that the public safety consequences of our decisions
are not are our responsibility is simply untenable; we produce those consequences
whether or not we cling to denial. And in any logical world, continuing
not to try to do a better job is obviously far more risky than making our
best effort to produce better outcomes.
Second, at least in Oregon, the 1996
amendment to Article I, Section 15 of the Oregon Constitution (quoted
in 1997 Oregon Judicial Conference #1), and
1997
HB 2229 have settled the issue: public safety is a goal of sentencing.
Third, those who argue against sentencing based
on prediction of future dangerousness tout the "false positives" such predictions
often produce or, from the other end of the spectrum of those suspicious
of data-based sentencing, the "false negative" represented by an offender
who is released on a prediction of safety which proves tragically erroneous.
This misses many points: arguing that sentencing should not even try to
focus on crime reduction avoids the measure of success -- it does not improve
success. Pretending we are sentencing for some other purpose than
public safety, or pretending that we are not attempting to predict future
dangerousness when we incarcerate for the longest terms those with the
worst crimes and the worst records, does not change the percentage of people
we put in jail for longer or shorter terms than necessary for public safety.
Following this path doesn't improve our rate of false positives or false
negatives based on public safety, it just justifies these errors by pretending
that the purpose isn't public safety to begin with. We should do
better at using sentences intelligently if we make the effort than if we
do not. And as long as the offender has been convicted of a crime
and the sentence is not otherwise disproportionately severe, that a violent
offender only has a one in three chance of assaulting, raping, or murdering
another victim hardly argues against his incapacitation. As to the
risk of "false negatives," it is inevitable throughout the process that
the length of terms of incarceration for most offenders [the vast, vast
majority] will be quite limited. Whether it is a pretrial release
decision, a decision whether to render sentences consecutive or concurrent,
whether to revoke a probation, or whether and under what circumstances
a correctional authority ought to allow an inmate some reduction in the
duration or nature of confinement, we surely are more likely to produce
more false negatives if we decide based on something other than
risk prediction; surely the path to public safety lies in making these
decisions as knowledgeably as we can. Insisting that offenders not
be released at all, that they be imprisoned in every case as long as the
law allows, and that there be no offenders whose term is somehow ameliorated
at the far end does not serve public safety as long as the reality includes
such releases, sentences, and ameliorations. And almost 80% of our cases
are misdemeanors, and very very few produce the maximum one year incarceration
-- our jails are typically "matrixing" people simply because we have no
where near enough beds to lock everyone up who has been sentenced for as
long as their sentence! As to felonies, our guidelines restrict actual
custody time for the majority of cases to even less than is theoretically
available for a misdemeanor; even by departure, the lower felonies cannot
even exceed a six month term. The vast majority of felons in
prison will return to their communities. It is only when we get to
the most serious crimes and criminal histories that significantly longer
that a year an a half to a few years is available for incarceration.
To see the Oregon guidelines, click
here.return
to top of page
Q: Isn't unrealistic
to expect lawyers who practice criminal law to handle data and research
about what works?
A: No. The underlying concern
is that lawyers, particularly criminal law practitioners, are accustomed
to a high volume, fast-paced, flow of cases and hearings and are ill-equipped
to master data or research about what works and to be useful to the court
in the style of practice to which they've become accustomed. There
are, of course, several responses:
Although express attention to what works is rare
indeed within the style of criminal justice to which we've become so unfortunately
accustomed, it is not completely missing. In the wide range of occasions
and approaches to sentencing, there are certainly those that now involve
a lawyer attempting to inject what we allegedly know about what works into
a hearing in an attempt to persuade the judge in favor of that lawyer's
goal. At the high volume end of the spectrum, a defense attorney may assert
that keeping the defendant employed will lower his risk of recidivism so
that any jail sentence ought to be brief or served on weekends; the prosecutor
may respond that the defendant's criminal history demonstrates that employment
hasn't kept this offender from offending, so that a long sentence will
at least keep him from offending while his is locked up. The judge might
explore whether the need for tight supervision and the general value of
continued employment militates in favor of work release. It is a
sad measure of how far we are from responsible pursuit of crime reduction
that increasing the frequency of even this level of debate would
be a profound improvement in sentencing culture, and likely productive
of improved sentencing outcomes. And encouraging attorneys by the
frequency of this discussion, and the interest it receives on the part
of the sentencing judge, gradually to increase their fluency in the data
and literature which improves the accuracy of either assertion as applied
to a given offender, crime, criminal history (and, for that matter, cluster
of criminogenic factors) does not require a sea change in skills, intelligence,
or preparation. For high volume cases, this would require no greater
effort or time on the part of practitioners and courts than the constant
infiltration of new information about laws affecting suppression motions,
appellate decisions and legislation affecting common crimes, and the loss,
modification, or addition of sentencing options -- including, by the way,
information about how long a given offender is likely to serve if sent
to a "jail" sentence. The nature of the beast is that all of us have
to stay up to date on a wide range of matters to retain minimal competence
at this task, and that gradually including and then upgrading competence
about what works best on which offenders under which circumstances would
hardly overtax the people or the system involved.
As a practical matter, it is at least immediately
unrealistic to expect high volume criminal practice attorneys to carry
around notebooks (or the electronic equivalent) of studies, articles, and
literature reviews to cite to each other and to the court on routine sentencing
debates. But attorneys and courts are quite adept (often too much
so) at capturing, distilling, and exploiting relatively common notions
that are useful for the debate in the high volume cases. Literature
and study based notions are already there: full time employment or
school favors crime reduction for many offenders; domestic violence offenders'
potential lethality can be roughly guessed based on factors known to most
practitioners (especially, whether the victim is attempting to get away);
addicted offenders with heavy use patterns are unlikely to get anywhere
for our benefit or for theirs until and unless their addiction is addressed;
jail keeps people from committing crimes on the outside while they are
in the inside. These notions, though hardly a substitute for thorough
criminogenic assessment and risk prediction, are also far from useless.
Again, just increasing the occasions on which wielding them may affect
the result because of the court's focus will encourage the gradual improvement
in their wielder's knowledge and usefulness in informing an outcome productive
of public safety.
In Multnomah County, our sentencing support tools
generate data about what has or has not correlated with crime reduction
by an offender cohort similar to any offender considered for sentencing,
when sentenced for a similar crime. These tools are available to
judges and attorneys; using them has a relatively slight learning curve.
A moderately experienced user can come up with some useful information
for most offenders in under five minutes. I regularly generate charts
during most sentencing hearings; the ensuing discussion is what may take
a few minutes of additional time. We do not turn ten minute sentencing
hearings into half day proceedings; we may push some from ten to twenty
minutes if the issues are difficult. Lawyers seem to have no difficulty
analyzing and challenging the information and its relevance to the decision
at hand.
At the higher end of the spectrum, lawyers are already
expected to be able to handle psychological evaluations, criminogenic risk
assessment, and similar issues with competence in the death penalty and
dangerous offender (and sexually dangerous offender) contexts. This
is a function they take to just fine -- as do their brethren on the civil
side who come with a legal training and, typically, a liberal arts undergraduate
degree, to expert disputes of the highest sophistication involving virtually
every science and literature known to the wide world of malpractice, environmental,
product liability, and intellectual property litigation. The same
judge you may think unsuited for risk prediction in the criminal area may
well be sitting on and deciding cases on the civil side involving whether
there is enough basis in the literature to let a jury hear some expert
give an opinion about a medical procedure, the adequacy of error detection
mechanisms to cope with the products of incineration of Sarin chemical
agent, the adequacy of file encryption technology afforded under a contract
for computer security services, or the propriety of treating depression
with a particular mix of drugs and electro-convulsive therapy. Indeed,
the same judge may already be making risk prediction decisions based on
the literature of psychopathy in dangerous offender proceedings.
And the lawyers in all of these proceedings are expected to be competent
(and quite usually are).
By the way, it is among the greatest triumphs
of social evolution that court proceedings and the adversary process is
fully capable of taking the most renowned and published experts in a field,
pitting them against each other through examination and cross examination
by counsel, and testing their wisdom in this crucible to produce a more
reliable or at least a more practical application of their learning than
they would ever accomplish in the journals that otherwise quietly contain
their debate. This process is not without its faults, but as many
have said repeatedly, it is the best we've yet devised. It is also
fully capable of producing the best results from the debates among academics
and others about what works best to reduce crimes among which offenders.
To return more closely to the topic at hand, I think
it clear that we don't need notebooks full of journal copies before high
volume practitioners can be more often useful and informed about what works
best in the most common cases, and that lawyers and the system already
demonstrate their capacity for journals, studies, literature, and experts
on occasion at the other end of the spectrum represented by dangerous offender
and death penalty proceedings. That smart sentencing would encourage
more information into the process probably means that more of those involved
would indeed gradually have to learn more about what works as time goes
on. There is a lot of hot air and spouting that can be displaced
without any loss to anyone (except, perhaps, those who savor the tragic
comedy of claptrap followed by recidivism that smarter sentencing would
have avoided). And it would be no great disruption or imposition
to add to the culture of practitioners and judges, which now includes notebooks
and continuing education hours covering such topics as search and seizure
law, notebooks and continuing education hours on best sentencing practices.
(Judges and lawyers already have some opportunities for hours on best practices
and best advocacy techniques related to sentencing hearings)
Here, as in so many areas of objection, the
bottom line is that the system could well do a better job than it now does
without violating its paradigms, including those of personnel and training;
that we now so rarely attempt responsible smart sentencing that there is
much room for public safety improvement without significant increases (but
only minor redirections) of time and energy among practitioners and the
courts; and that even if and when it takes some real time and energy from
our participants both the reduction in avoidable victimizations and the
reduction in repetitive drains on recourses by recidivist offenders are
more than enough to justify those increases. return
to top of page
Q: Smart sentencing makes
a lot of sense; what are the arguments against it?
A: It's been surprisingly hard to ferret
out real arguments against the notion that we should do a more responsible
job of crime reduction when sentencing people by trying to focus on what
works on which offenders. Most of the contentions are either withheld,
or implied indirectly in the questions I have attempted to answer elsewhere
on this page. I have tried to elicit some direct answers from the
author of the proposed revisions to the Model Penal Code, Prof. Kevin Reitz.
His proposal represents a profound retreat from the present MPC sentencing
provision which emphasizes public safety, and I have published substantial
comments arguing that this is the wrong decision. Comments on
the Model Penal Code: Sentencing, Preliminary Draft No. 1, 30 American
Journal of Criminal Law 135 (2003) [University of Texas Law School], [Available
on WestLaw at 30 AMJCRL 135.] After a long telephone conference with
Prof. Reitz, I sent him a letter outlining what I understood to be our
agreements and our disagreements, and asking him for confirmation or explanation
as to where and why we disagree. A copy of that letter (sent in October,
2003), is here:
Prof. Reitz has never responded.
I have elicited some direct contentions
from various significant actors in the criminal justice field in Oregon.
Here's what I have learned so far:
From a principal author of Oregon’s
Sentencing Guidelines (and past Attorney General of Oregon):
1) There are other purposes of sentencing
besides preventing recidivism, including punishment.
A: Of course there are. But the
recidivism
statistics make it clear that we are doing an awful job of reducing
recidivism. We don’t have to reach agreement as to the relative importance
of punishment per se, restitution, or general deterrence to agree
that we aren’t doing much to attempt crime reduction, and that we should
be able to do a much better job if we made a responsible attempt. And smart
sentencing assesses incapacitation, specific deterrence, and “rehabilitation”
in looking for what works best on which offenders.
2) Wouldn’t focusing on what works
on which offenders result in disparate treatment, and wouldn’t that undermine
the benefit of the guidelines in avoiding unequal treatment?
A: First, Oregon law already
recognizes that differences in amenability to rehabilitation justifies
different responses to offenders. ORS 161.025(1)(a), derived from
the existing (1962) Model Penal Code, declares the purposes of the Criminal
Code as including "To prescribe penalties which are proportionate to the
seriousness of offenses and which permit recognition of differences in
rehabilitation possibilities among individual offenders." Equal treatment
means that people similarly situated should be similarly treated.
There is no reason doing more dependably what works on the offenders it
works on is inconsistent with similar treatment for similarly situated
offenders, unless of course one community has something that will prevent
recidivism by a given offender, when another community with an identical
offender lacks that sanction, treatment, or other disposition. I’d
argue that the availability of such a sanction, treatment, or other disposition
is a difference that makes the offenders not equally situated, so that
the disposition is not inconsistent with similar treatment of similarly
situated offenders. In any event, I have not yet encountered anyone
who would actually argue that we should deprive the public of the protection
of the sanction, treatment, or other disposition that works just because
we don’t have it in every community and can’t apply it to all offenders.
A: Second, the guidelines’ achievement
of equal treatment is far from ideal. We maintain the illusion of
equal treatment by refusing to acknowledge differences in offenders, criminal
histories, crimes, or available sanctions to insist that we are treating
equal offenders equally. Thus a one-time remorseful assault perpetrator
ends up with the same presumptive sentence range as someone who committed
an identical crime with the same criminal history – but is a psychopath.
And the economic categories that separate the crime seriousness ratings
for property crimes offend even just deserts – why should the theft of
a Rolls Royce whose owner rarely sees it in his stable of luxury cars be
punished more severely than the theft of a clunker that provides a single
parent her only means of transportation? Similarly, the guidelines
ignore the tremendous variety that can exist among equally rated
criminal histories (two prior person felonies by a psychopath who intended
the harm he caused will be treated exactly the same as two prior person
felonies by a remorseful bar brawler who barely lost self-defense arguments
because his response was more than reasonable). Of course, we can
attempt
to accommodate these variations with departures, but departures are exceptions
to the equal treatment invoked to defend the guidelines against improvement
for crime reduction.
A: Third, given our consistently poor
crime reduction performance, is it even clear that consistency is a good
thing?
From a prominent Oregon District Attorney:
1) Some fear that smart sentencing would
displace other purposes (such as punishment).
A. Again, to be smarter in sentencing we
don’t have to abandon all objectives other than crime reduction.
Let’s be direct here: Crime reduction is usually ignored, sometimes assumed
without any more support than mere ideology or guesswork, but almost never
responsibly pursued in sentencing. Whenever we do something instead
of smart sentencing we are reducing the chances that we will reduce or
prevent future criminal conduct by the offender. Our sentences will have
a public safety outcome regardless of whether we do our best to achieve
crime reduction; any argument to do something else amounts to an argument
not to do our best. To that extent, we are complicit in avoidable
victimizations.
2) Sentencing based on data and research would
interfere with the flow of plea bargains.
A. This has at least two components: administrative
efficiency and control of plea bargain outcomes. With respect to
administrative efficiency (how much time it takes to negotiate and dispose
of a case), revising some of the components of the process with smart sentencing
does not have to make things take longer. Just as most cases are routinized
around just deserts and resources, with a discount for witness difficulties
or a search and seizure vulnerable to a motion to suppress, we could make
a lot of progress more rigorously routinizing cases around crime reduction.
Moreover, doing a better job of avoiding future victimizations is worth
some additional time in processing cases. Finally, the biggest waste
of time and resources is the sentence that fails to divert an offender
from criminal behavior which again taxes the time and resources of the
criminal justice system. 304 of the 372 offenders jailed
for drugs in July 2000 in Portland were in the jail within the prior
year on some other occasion.
With respect to the issue of the prosecutor’s control
of plea bargaining outcomes – both with respect to the defense and to the
court’s role, inserting smart sentencing has no inherent impact on that
control. In other words, were the prosecutor to negotiate around
crime reduction based on data and research, the issues whether the judge
would avoid tinkering with the deal or the defense avoid ameliorating it
when in front of the judge vary not at all from the present situation.
That situation includes that the attorneys are free to employ a “contract
plea” to give the judge the limited choice of accepting and enforcing the
deal as is or rejecting the plea. That situation also includes that
some judges are far more reluctant to tinker with a non-contract plea than
others. Indeed, the more “what works” catches on with judges, the
more likely they are to tinker with a plea bargain that was made without
regard
to what works. In other words, if the parties present the judge with
a deal justified and described in terms of what is most likely to reduce
crime, a “smart sentencing” judge is more likely to leave it alone than
in the case of a deal with no such justification or explanation.
I avoid in this analysis any attempt to resolve the question whether and
to what extent judges should be potted plants when it comes to plea bargains.
From an activist crime victim: Research
and data are overwhelmingly flawed.
A: Yes, much research is flawed, and few
data are completely “clean” of errors. But here’s the thing: we must
always keep the choices in mind – do we endeavor to improve, select, and
analyze the data and research, or do we choose to rely instead upon the
status quo of unformed, essentially a priori debates about what an “appropriate
sentence” should be – mixing aggravation, mitigation, and anything else
that comes to mind? The irony here is that in the face of imperfect
data and research we abandon all attempts at accuracy or evidence-based
decisions, and support the opposite.
If we could achieve candor, we’d see that much of
this argument is really based on a bias for or against punishment, for
or against prison. Just as the incarcerationists bemoan “false positives”
of “preventive detention” (their disparaging name for incapacitation based
on risk assessments) to argue against using jail or prison for crime reduction,
others who criticize data and research for its imperfections ultimately
fear that it will reduce the use of incarceration because they are persuaded
that jail or prison is either deserved or will best produce public safety.
Even beyond the possibility that retribution and crime reduction can be
at odds in crafting a sentence, the problem with this is that the choice
between prison and alternatives, or among terms of jail or imprisonment,
in fact has different public safety outcomes depending on the offenders
(and, often, the conditions of incarceration). Always insisting that
jail or prison is the answer, particularly as to crimes for which only
relatively short periods of incarceration are available, is just as dangerous
as any other faith-based approach to sentencing. We will make more
wrong decisions without good information than with it; we can as easily
cause avoidable victimizations in the long run by choosing jail as by choosing
probation – again, at least at the level of crimes for which jail or prison
terms are relatively short.
To test the notion that faith for or against incarceration
is the real agenda of many who resist smart sentencing based on the imperfection
of research, see how the rigor with which they assail research with which
they disagree compares with the rigor with which they’ve scrutinized any
research or data that supports their favored disposition.
This is not to say that we should be sloppy – far from
it. We must be rigorous in seeking best efforts at crime reduction.
A good way to do that is to make the issue of what works a subject of competent,
informed, and vigorous advocacy in sentencing and probation hearings.
From an academic turned appellate public
defender: I don’t see how the guidelines could be adjusted
to incorporate crime reduction.
A: It’s always amazing to me how powerfully
habits and culture limit our ability to see the obvious. Of course,
it would be a formidable undertaking to structure a set of guidelines that
incorporates all we know and can learn about criminogenic and risk
factors, and all the other variables that might be part of a calculus that
made the presumptive sentence more likely to be predictive of public safety
than under the present guidelines. But we’re capable of formidable
undertakings when the motivation is sufficient. Nanotechnology, molecular
biology, computer science, and modern medicine all regularly employ concepts
far harder to grasp than the two-dimensional sentencing guideline grid.
But we don’t have to undertake a perfect product to make tremendous improvement
in the existing approach, and individualization will always at least potentially
improve any specific sentencing. For starters, we could use any of
the standard violence prediction instruments to make a longer period of
incarceration than currently prescribed by the guidelines presumptive for
violent offenders with a high score. (For a comparison of several approaches
to violence and risk prediction, check this
link). And one state, Virginia, has actually incorporated risk assessment
into its sentencing guidelines after careful and responsible study. See
Brian J. Strom, Matthew Kleiman, Fred Cheesman, II, Randall M. Hansen,
Neal B. Kauder, Offender Risk Assessment in Virginia - A Three-Stage
Evaluation: Process of Sentencing Reform, Empirical Study of Diversion
and Recidivism, Benefit-Cost Analysis (The National Center for State
Courts and the Virginia Criminal Sentencing Commission 2002), available
at http://www.vcsc.state.va.us/risk_off_rpt.pdf.
Critics from the anti-incarceration side will
again invoke false positives, and from the pro-incarceration side we will
hear of offenders whose sentences weren’t enhanced who recidivated in a
horrible way. But the real test is whether we do a better job of
crime reduction with or without this dimension. How many victimizations
are occurring now because we don’t do our best at crime reduction?
As to false positives, we are already working within the realm of incarceration
not disproportionate for the offense already committed; assessing risk
rather than demanding certainty in choosing where within that range to
place a given offender is entirely appropriate. [For dangerous offender
schemes that provide a longer period of incarceration than the maximum
otherwise available for the latest felony, I agree with the critics that
rigor is required (and now imposed by Apprendi v. New Jersey, 530
U.S. 466 (2000)), but I cannot agree that we should not consider longer
sentences for such offenders, that we cannot impose such sentences unless
we can achieve risk prediction with certainty, or that it is somehow better
to reject data and research than to attempt to make our best use of it
with knowledge of its limitations.] Guidelines proponents do not
avoid false positives by rejecting risk assessment -- they compound and
rename them.
From another Oregon trial judge:
Won’t inviting argument and evidence about what works best require lengthy
court hearings and testimony?
A: Replacing some of the components
of the process with smart sentencing does not have to make things take
longer. It doesn’t necessarily take longer to argue what changes
will or won’t reduce an offender’s criminal behavior and what dispositions
are most likely to help [ranging from incapacitation to treatment] than
it now takes to argue aggravation and mitigation, heinousness of the defendant's
behavior and depravity of his childhood. Moreover, even when we chose
to hear from experts through testimony, doing a better job of avoiding
future victimizations is well worth some additional time in processing
cases. Finally, the biggest waste of time and resources is the sentence
that fails to divert an offender from criminal behavior which again taxes
the time and resources of the criminal justice system. 302 of the 374 offenders
jailed for drugs in July 2000 in Portland were in the jail within the prior
year on some other occasion.
For all of the above: None of these arguments
change some basic facts. First, every sentencing decision has a public
safety outcome. Second, although it is less threatening to avoid
accepting responsibility for those outcomes than to pursue “just punishment,”
“equal treatment,” or an outcome whose propriety is based on its proponent’s
ideology, anything other than responsible pursuit of crime reduction inevitably
causes harm that could be avoided. And, whether or not we like it
or accept it, we are responsible for the outcomes of our decisions. return
to top of page
Q: Are you
trying to replace probation officers?
A: No. This technology is designed
to be available to probation officers, correction counselors, pretrial
release workers, and all others in the correctional system who make decisions
for offenders in the system. Judges continue to exercise major control
at the beginning of the correctional phase of a sentence - whether to imprison
or to supervise in the community is a decision which in most cases is up
to the judge to make. And it is the judge who weighs the safety risks which
militate for and against incapacitation or community supervision, as well
as the additional components of sentencing. Sentencing support technology
does nothing to shift the distribution of correctional responsibility between
judicial and correctional officers, but offers both enormously improved
information which they need to do their jobs more effectively.
An extremely positive recent development is
that the Multnomah County probation department (Department of Community
Justice) and the judges who regularly handle criminal cases have embarked
on a project to transform the role of the probation officer in probation
violation reports and hearings. Instead of coming to court looking
for vindication or disappointment in the threat of punishment to motivate
a probationer, probation officers would become the advocate for "what works"
in the courtroom, writing reports and arguing for outcomes based on expertise
about existing alternatives and sanctions, the offender in question, and
the literature of what works. Sentencing support tools are expected
to be part of this effort [probation officers who write presentence reports
are being trained on the tools first]. return
to top of page
Q: Is this all an argument
not to use jail or prison?
A: No. As I note elsewhere, we
have pretty good information that jail and prison (at least without unusually
good programming) do not generally reduce recidivism (and may even increase
it) after an offender is released, and the opponents of incarceration
often cite the literature to argue that community based treatment is almost
always the best disposition. But the only fair comparison is the
impact in terms of crime reduction from the time the sentence is imposed,
including
any period of incapacitation. After all, incapacitation is generally
the most effective thing we can do to reduce crime in the short run --
or as long as the incapacitation continues. The trick is to compare
(legally available) dispositions with and without jail or prison side by
side and examine which serves crime reduction best in the long run. Our
tools show that for some cohorts short or no incapacitation correlates
more highly with crime reduction, and for others longer jail or prison
sentences correlate more highly with crime reduction. For those who
fear that this approach inherently favors jail or prison, rest assured
that for most minor offenders, it does not -- even though jail or prison
presumably prevents recidivism while the offender is inside. Again,
to be responsible about public safety, we must insist at least that we
know what has worked best in the past without some bias for or against
jail or community based dispositions. return
to top
Q: Aren't
you shifting responsibility from criminals to the courts when you blame
the courts (or criminal justice) for recidivism?
A: Emphasizing the responsibility
of courts (or of criminal justice) is necessary because for so long we
have avoided taking responsibility for the public safety outcomes of sentencing
on the theory that because criminals are to blame for committing crime,
we can't be blamed for not reducing it. Taking responsibility for doing
a better job with sentencing in no way diminishes the responsibility of
criminals. There are all sorts of reasons people commit crimes: bad character,
bad choices, bad luck, bad childhoods, bad values -- select any or all
that best capture "criminals" for you. My point is that we do various things
to people who are criminals with bad character, choices, luck -- etc. --
and that some of the things we do to some of them "work" better than some
of the things we do to others of them. To the extent that we don't make
our best effort to do to each that which is most likely to prevent the
next crime, we are responsible and (if it helps) worthy of blame -- and
it doesn't reduce, explain, or mitigate our responsibility (or blame) that
the offender is also to blame. In short, without making a responsible effort
to prevent future victimizations, we are not performing our public responsibilities
as we should -- and that reality in no way diminishes the responsibility
of criminals for their crimes; that criminals are responsible for their
crimes in no way diminishes our responsibility to do that which is most
likely to prevent crimes in the future at their hands. My point isn't that
we shouldn't blame criminals for crimes; it is that blaming them does not
excuse our failures to prevent future crime with our sentencing. Our legacy
is to celebrate their blame to avoid our responsibility -- and that's just
wrong. return
to top of page
Q:
Are you saying retribution and general deterrence should be discarded as
objectives of sentencing?
A: What works to reduce crime is not the
only
purpose
of sentencing. But first and foremost, we should do a responsible
job of addressing which disposition (within those available) is most likely
to reduce criminal behavior. In assaultive or other dangerous crimes,
or even in compulsive property crimes, it may be that separation/incapacitation
is indeed the best result because we cannot sufficiently assure ourselves
or the public that non-incarcerative options will eliminate the risk. For
many minor crimes, at least with offenders with relatively few priors,
treatment, counseling, or other dispositions properly designed and delivered,
will be the best way to protect the public. Only after responsibly
addressing the crime reduction objective should we start going through
the other possible purposes of sentencing. When there are victims
whose recovery may depend upon the satisfaction of seeing punishment delivered,
and if the punishment necessary to accomplish their satisfaction is both
legally available and not disproportionate to the offense, it is certainly
appropriate to consider whether punishment is called for beyond (or even
instead of) what is most likely to work to reduce crime. In cases
in which what works is a close call, such a consideration may push the
balance in favor of a more punitive disposition than otherwise; in most
cases, what works will already satisfy all other present objectives of
punishment. In relatively extreme cases (such as a negligent homicide
perpetrated by an offender who needs little or no intervention to prevent
future crime, with victims' family members who have real needs for "justice"),
we may properly consider putting the needs of the victim ahead of the needs
of the community in overall crime reduction over the course of an offender's
potential career. And with some crimes, there are vulnerable victims
for whom punishment properly serves a therapeutic purpose -- such as sex
crimes against children who may feel responsible for the crime (but we
need to be careful here -- I try to get input from any treatment provider
to avoid compounding the victimization of a child who is suffering guilt
for causing the offender's punishment).
Some victims who come to court to be heard at sentencing
end up endorsing "preventing another victimization" as the highest priority,
though many are simply (and understandably) angry and hurt. It is
also worth noting that restitution, restorative justice, and compensatory
fines may be the best way to serve both the victim and the social need
for doing that which most likely prevents future criminal behavior by the
offender. But again, I don't deny that there are occasional (and
relatively rare) cases in which serving the victim's needs (or the needs
of the family of a deceased victim) may properly call for something more
punitive than that which is most likely to work.
Personally, I don't think the traditional interests
in what some western jurisdictions constructively call "denunciation" and
what we include within "retribution" -- or the largely preposterous argument
for general deterrence -- should ever justify doing something substantially
less likely to work when there is no specific victim (or victim's surviving
family) needing a punitive result. I understand that others will
disagree with me here. But this disagreement is trivial; my point
does not require consensus on this issue. My point comes down to
this:
We must stop enabling the notion that sentencing
is all about just deserts and "appropriate punishment" in the sense of
moral equivalency. To the extent that we have a ceremonial role (which
is presupposed, by the way, by the arguments for denunciation and general
deterrence), we judges must stop promoting what doesn't work by
ignoring what does. We should instead use our ceremonial leadership
and role to direct the sentencing process overwhelmingly toward what works,
but need not abandon the other purposes of punishment to be addressed in
the typical case with the same disposition, and in the rare case by rejecting
the result that would pertain if we only sought what works to reduce crime. return
to top of page
Q:
How can you expect providers accurately to gather and report the data you
need?
A: We are not asking providers to gather
new information, and we are not relying on their information about their
effectiveness. DSS relies on existing (and growing) operational data. What's
new is not so much the information we collect but the ability to access
and compare the information we already have even though it is spread across
multiple databases. Providers used by the criminal justice system already
report failures; courts already keep track of pending and closed charges
and convictions, and record sentences and conditions imposed and probation
violation charges and results; law enforcement already records police contacts
and charges; and many of these and other databases record criminal histories
and offender characteristics. Because we can link offenders in these information
pools with data about what sanctions they have been subjected to (and failed
or completed) and what new charges and convictions and police contacts
they have generated after completion, we are already in a position to compare
programs' and sanctions' graduates performance for definable categories
of the population. As we gather more and more categories of information,
such as how offenders performed within jail, prison, or programs (in or
out of custody) we will continue to improve our ability to exploit this
information to make more accurate predictions about what is most likely
to reduce a given offender's risk to the community in both the immediate
and long-term future. But as soon as the technology is available,
existing data will enable us to make far more informed decisions than we
now make, and should help us do a far better job of diverting offenders
from criminal careers. return
to top of page
Q:
What makes you think this technology will serve public safety?
A: Sentencing decisions are presently
made with virtually no information about how offenders behave after
being sanctioned, counseled, or treated by the various dispositions available
to us. Most sentencing decisions are based on whim, rumor, folklore, and
public relations, with a strong dose of myth. Although the better correctional
agencies do their best to study the research which is overflowing from
the shelves of academia, even they do not generally have access to actual
performance data concerning the programs and sanctions they have to chose
from. I submit that we cannot possibly be doing as well by accident as
we would with far better information about what seems to work best on which
offenders. Advantages are many: we can send offenders likely to benefit
from a program (in terms of reduced criminal behavior) to the right program
instead of clogging programs with offenders they can't affect; we can stop
using programs that don't work on anyone; we can make wiser decisions about
investing public dollars in correctional programs; we can do a better job
of using incapacitative solutions (typically jail and prison) on the offenders
who we can't expect to improve; and we can give programs information about
their performance so they can improve their product, their "client" selection,
and the basis of their competition with other programs for public dollars. return
to top of page
Q: What
impact do you expect to have on recidivism?
A: In the foreseeable future,
we can expect that a substantial percentage of the correctional population
will continue in its criminal behavior interrupted only to the extent to
which we incapacitate offenders and they show signs of aging. Some other
substantial proportion of that population, however, is certainly susceptible
to more improvement than we now make by accident. Once we understand that
our approach to crime must transcend the focus on individual cases and
appreciate that we are managing criminal careers, we can recognize
that the attainable goal is to increase our success in diverting offenders
from those careers. With few exceptions, the vast majority of crimes are
committed by repeaters. Diverting an offender from a criminal career has
a multiplier effect on crime reduction; diverting an offender from crime
spares many people from future victimization and has long range economic
benefits as well. An analogy is health care - where we are learning that
wise management of early intervention has long-run benefits for the costs
of medical care throughout the patient's life. The health industry is rapidly
consuming DSS software for precisely this reason. return
to top of page
Q: Don't we already know what works?
A: Yes and no. There's an enormous
volume of wisdom in research about what does and doesn't work. And
there is some common sense. In general, researchers tell us that
measured
by reduced subsequent criminal behavior, incarceration, scare
tactics, regimentation, and punishment ("scared straight," boot camps,
and the like) don't "work;" that "shock" probation and parole do not "work."
E.g.,
Oregon
Department of Corrections, "What
Doesn't Work to Change Behavior"; U.S.
Department of Justice, Office of Justice Programs, National Institute of
Justice "Research in Brief" (July 1998).
What does work includes treatment programs that identify and address multiple
criminogenic factors with a methodology that is in fact (as opposed to
merely labeled) cognitive and behavioral. E.g., National
Mental Health Association, Treatment Works for Youth in the Criminal Justice
System; U.S. Department of Justice, Office of Juvenile Justice and
Delinquency Prevention Programs, Corrections
Rehabilitation and Treatment; 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). Common sense may not be the best
guide on these matters, but it is persuasive (and not contradicted by literature)
on this point: offenders usually cannot commit crimes on the outside while
they are incarcerated. Literature seems persuasive on these refinements:
if the object of jail is to change behavior, short sentences, even for
repeated violations, work better than longer ones. And if the object
of incarceration is incapacitation, common sense is unrefuted: the longer
the offender is incarcerated, the longer the offender is incapacitated.
But if the offender is going to be released, the offender's inclination
to reoffend is as likely as not to be enhanced by long incarceration
unless incarceration includes effective treatment with community follow-up.
E.g,
The
Effects of Punishment on Recidivism, 7 Research Summary No. 3 (May
2002), Office of the Solicitor General of Canada, (citing 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). Another
settled principle: on many levels, it is overwhelmingly wiser to expend
correctional resources on "high risk" offenders than on "low risk" offenders,
with "risk" being measured by likelihood to recidivate (regardless of the
nature of the criminal conduct). Where among high risk offenders to focus
limited resources may reasonably depend on the nature of the risk: it makes
sense to give higher priority to preventing violent crimes than to preventing
property crimes.
There are a least three reasons why
knowing these things is not enough. First, we currently run sentencing
hearings as though we either don't know these things or don't want to know:
sentencing hearings are not about what works. A major reason for the sentencing
support tools is to help direct sentencing hearings (and all that precedes
and follows them) to the issue of how best to reduce recidivism.
Second, most of what we "know" is highly generalized. Most of the
studies are about what "works" on offenders in general instead of what
"works" on which offenders; they give us average outcomes. Some research
does indeed distinguish among risk levels and some focuses on specific
categories of crime; when the question is addressed, it is obvious that
some things work better on some offenders than on others -- an obvious
conclusion for educators who well know that different people learn differently.
Sentencing is and should be the occasion on which to apply what we know
in general to what we know about an offender, and to do our best to choose
(within applicable limits) that which is most likely to work on the particular
offender before us. Third, there is and has been a steady process
of research and learning within corrections for years. Yet when probation
officers come to court, they -- like everyone else -- rarely address what
"works." Even if the officer in question is committed to using best
practices, he or she may expect that judges don't welcome an analysis based
on what works -- presiding, as we do, in what gives all appearances of
a temple of just deserts. Our challenge is to support and encourage
best practices by the probation officers to whom we delegate so many decisions
about how to treat offenders, and to encourage them to give us their best
wisdom in the courtroom when we hear probation violations (or, in their
equivalent in some jurisdictions, conditional sentence violations) or read
their sentencing recommendations when we are fortunate enough to have a
presentence investigation report at sentencing. return
to top of page
Q:
Why can't we just exploit the research we already have?
A: I'm not sure why, but I'm
sure we don't. At the 2002 international Sentencing
and Society Conference in Glasgow, Scotland, it was obvious that
disciplines having to do with assessing correctional program effectiveness
are entirely ignored by those that purport to study sentencing practices.
In brief, the response to popular anger at recidivism, conference participants
heard analyses of how "populist punitiveness" is improperly measured by
flawed polling practices, exploited by politicians, and inflamed by the
media -- but no presenter mentioned that there might be a basis for popular
dissatisfaction with our public safety performance. No input was
received or apparently expected from criminologists or corrections expects.
Participants received copies of the latest Annual Report of the British
Sentencing Advisory Panel, whose non-binding input is prerequisite to the
promulgation of sentencing guideline judgments by the Court of Appeal under
the Crime and Disorder Act of 1998. Incredibly, although the Act
expressly contemplates consideration of factors including "the cost of
different sentences and their relative effectiveness in preventing re-offending,"
the Panel apparently never considered using its resources to gather evidence
on which sentences might best prevent recidivism, and instead spent its
expert energy on public opinion polls. Those skeptical of this assessment
of the abyss between centers of sentencing "research" and centers of criminological
and correctional research are invited to read the abstracts
of papers presented at Glasgow; apart from the presentation reporting
on the project subject of this web site, only one paper suggested
that it might make sense to try to rationalize sentencing around a new
objective: public safety.
My experience at the 40th annual conference of the Academy
of Criminal Justice Sciences in March, 2003, reinforces my impression that
academia is unlikely to address how public safety outcomes of sentencing
might be improved. Just as the judicial sentencing process makes
no effort to benefit from what academia has learned about what works, academia
makes no effort to influence the effectiveness of judicial sentencing behavior.
I left with the image of a remora suckerfish attached to a shark; it has
no interest in where the shark is going or why, but can provide a great
picture of a very small portion of the shark. I suppose it would
be happy to share its experience with other suckerfish, but would not show
up at a conference about how to influence the shark's behavior for the
benefit of the underwater community.
Only once in my experience
since taking the bench in 1990 has anyone involved in a sentencing argument
invoked any study or data to attempt to convince me that one or another
sentencing choice is most likely to reduce an offender's criminal behavior.
Academia and the courts rarely talk, in part because so much of the data
is specific to the study of some other program under some other circumstances,
and in part because academia applauds studies and publication more loudly
than social improvement. Academia shuns "activism" for analysis; courts
shun responsibility for the outcome of sentencing choices. When courts
realize their responsibility for outcomes, I hope academia will start to
talk to us, and that we will start to pay attention. Meanwhile, the
many studies which do exist have a tremendous capacity to be ignored by
policy makers as well as by practitioners.
Another piece of this is
that academia does not hold the respect of most line workers in correction
or criminal law -- including the great majority of prosecutors, most probation
officers, many judges, and even a good portion of defense attorneys.
The problem is that the major thrust of the literature focuses on the ineffectiveness
of incarceration and punishment to improve behavior after release. Because
most "incarcerationists" tend to ignore the impact of incapacitation upon
the criminal behavior of offenders during incarceration,
they perplex
all who know that locking up some persistent offenders is the obvious choice
among the available options. While "incarcerationists" celebrate
the lack of correlation between mass incarceration and reduced crime rates,
the "incarcerationists" tout the math: locking up persistent and prolific
offenders prevents the multiple crimes they would otherwise commit.
In their turn, the few proponents of incarceration in academia largely
ignore the criminogenic effects of most punishment, and refuse to assess
the overall impact of punishment over an offender's lifetime. Our
answer to all of this is to insist that we compare incarceration and other
responses side by side and by the same measure -- exploiting our ability
through these sentencing support tools to see which really best correlates
with crime reduction over a given period of time for a given offender.
Our data certainly shows that while both sides of this debate are right
in the abstract, public safety is best served by incarceration for some
but not for other offenders. Enlisting the involvement of researchers
and academia would also profoundly benefit academia.
return
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Q:
How can you evaluate programs with limited access to their internal data?
A: Although meaningful program
evaluation may someday be part of sentencing support technology, it is
not an early benefit. We will start with information that essentially
shows whether an offender was sent to a program or to jail, whether he
or she "completed" the jail or the program assigned, and whether and how
the offender re-entered the criminal justice system. We can classify
"like" offenders based on their available data (criminal histories, age,
gender, any recorded risk assessments, etc.), then compare how "similar"
offenders have performed after having been sent to or having completed
the sanction in question. Without a much closer look at the details
involved, the "programs" are black boxes -- we can look at their outputs
and their inputs, but have precious little data about what goes on inside.
(A recent exception is growing with the Department of Corrections so that
judges, probation officers, correctional personnel, and the sentencing
support technology itself will soon have access to tremendous detail about
offenders' needs assessments and program performance, in custody and on
supervised probation). While judges and others making decisions about offenders
certainly should know how "like" offenders perform after being sent to
these sanctions, that information is not at all the same as program evaluation.
Many pieces of the puzzle need to be added: for example, was the program
getting the offenders it was suited to; did other factors in the circumstances
of the offenders' lives enhance or undermine the program's efforts; did
other circumstances in the offenders' lives reduce or increase their criminal
behavior notwithstanding the program? But good sentencing support
technology will identify disparities in outcomes which should help isolate
issues for responsible evaluation, and it will have the beneficial effect
of emphasizing future criminal conduct as the ultimate test of program
performance, at least from the perspective of public safety. return
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Q: Are
you trying to replace research and researchers?
A: No. This technology will greatly
benefit from and will greatly benefit research. The critical factor is
to make "what works" regularly addressed and considered (as is the case,
for example, with child support guidelines, sentencing guidelines, and
any other structure which helps a practitioner predict or a decision maker
to reach a result). Once that happens, advocates, practitioners, and providers
will create great demand for research to challenge apparent correlations,
to learn from them (why one program's 35 year old thieves stop stealing
while another's do not, for example), and how to extrapolate and replicate
that which makes one program work to another program. And the technology
makes data far more accessible for a wide range of traditional (and even
for useful) research projects. In Multnomah County, we've recently
encountered three separate national criminal justice assessment projects
(evaluating victim-offender mediation, evaluating pretrial release, and
evaluating an intensive driving under the influence of intoxicants program);
all
of the researchers involved were immediately impressed with the potential
of sentencing support tools to make their work easier. return
to top of page
Q:
Does this sentencing support technology have any other benefits for criminal
justice?
A: My focus is making more informed
sentencing decisions. Closely related functions are similarly improved:
supervision decisions by correctional officers (in and out of custody,
on probation and on post-prison supervision), and release decisions by
pretrial release workers. The same tools of course help corrections, judicial,
and policy making officials determine which programs and sanctions to enhance,
modify, replicate or discard. They also support analysis of such resource
allocation issues as law enforcement deployment. Just linking information
systems and improving accessibility to the data we already collect can
have enormous benefits just for improving operational functions. For example,
PPDS collects and maintains information about addresses which are subject
of neighborhood "drug house activity" complaints. With ready access, probation
officers could routinely be alerted whenever an address linked to an offender
is also identified as subject to such complaints. Another example: allowing
police ready access to NCIC out of state conviction records for persons
identified with residences about to be entered under an arrest or search
warrant. With expansion, the tool can also help us more intelligently to
address such questions as which law enforcement strategies appear
most effectively to reduce the incidence of, say, domestic relations calls
or street drug activity or fatal alcohol related accidents.
Another area entirely is the status of criminal
justice in our society. I submit that our failures to accept responsibility
for recidivism -- or at least responsibly to seek to reduce it -- have
steadily eroded public respect for the courts. This is evidenced
by the wide-spread emergence of sentencing guidelines, ballot measures,
three strikes laws, and mandatory sentencing provisions, all of which imply
that we judges can't be trusted with much or any discretion. While
most of my colleagues seem to think the erosion of our sentencing discretion
is simply evidence of lack of social wisdom, I'm not so sure. The
case can be made that we don't deserve the discretion we've lost since
we have done such an abysmal job of recognizing our responsibility to reduce
criminal behavior by making well informed sentencing decisions. In
any event, I expect that a major long-run benefit of sentencing support
technology is to earn back the discretion we've lost, and that well informed
discretion, properly directed, will better serve public safety than either
the uninformed and misdirected discretion of the past or the blanket and
sometimes draconian measures that have begun to displace it.
Finally, the "analytics" of sentencing support
tools also have potential application to juvenile delinquency, dependency,
and family law dispositions, and the planning documents for Oregon's "eCourt"
technology update contemplate precisely that breadth of application. return
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Q: Why
include ethnicity in the offender profile?
A: The short answer is
that we have yet to learn which differences among offenders correlate with
susceptibility (or not) to reduced criminal behavior after an offender
is subjected to an available sanction, program, or other disposition.
The more variables we are able to employ, the more we have the potential
to learn.
But this question is usually posed by people wary
of "racial profiling" and other invidious discriminations based upon minority
status. The more compelling answers to this question, then, are these:
First, a good number of programs are designed to
address the needs of particular ethnic groups within the criminal justice
system -- African American youth at risk of (or already involved in) gang
violence; Hispanic offenders who need Spanish speaking program providers;
Native American drug and alcohol providers who attempt to address and employ
cultural aspects unique to these offenders, and so on. In order to
assess how well these programs perform in reducing recidivism, we must
be able to compare their graduates with the appropriate ethnicity variable;
it would do all a disservice to blind ourselves to this aspect of our data.
Variations among offenders that affect their likelihood of benefiting from
a given form of intervention is called "responsivity" by treatment experts,
and in an optimum world, our ideal response to offenders should be based
on our knowledge of their risk, need, and responsivity. See James
Bonta & D.A. Andrews, Risk-Need-Responsivity Model For Offender
Assessment And Rehabilitation (Canada 2007), available at
http://www.publicsafety.gc.ca/res/cor/rep/risk_need_200706-eng.aspx.
Second, many of us in the criminal justice system
are convinced that racial profiling (and I would add profiling based on
apparent economic and social class, but it's hard to find data to support
this as an element in any profile) has substantially distorted the representation
of minorities in the criminal justice population. Statistics from
every major study show that police are far more likely to stop certain
minorities than others, and that although there is no justification in
the "hit rate" [the percentage of stops yielding evidence of a crime is
not
greater for the targeted minorities than for the general population], the
result is overrepresentation of those minorities in the system. This
means that a minority person is often likely to have a more substantial
criminal record even though his or her actual involvement in criminal behavior
is equivalent to a non-minority with a smaller (or no) record. In
order to compare outcomes fairly, we need the ability to include this variable.
If the disparities do not exist, or if they have no impact on likely success
for a given offender, this should be readily apparent. And
it is always a simple matter to uncheck the box (or check all boxes) and
to "recalculate" to see what difference this variable seems to make.
Finally, not all concern with our ability to see
distinctions based on ethnicity are benign. It is a sad fact of modern
policy debate that some voices insist on "color blindness" to hide rather
than to combat discrimination against minorities. It is only by virtue
of our tools' ability to discern cohorts based on ethnicity was I able
to report to the Oregon Commission on Black Affairs at a recent (10/31/09)
meeting that, for example, while for "white" offenders prison is the 13th
most frequently imposed disposition in our county, while for "African American"
offenders, prison is the third most frequently imposed disposition.return
to top of page
Q: Is it fair to
include gender and other variables the offender cannot control in the profile?
A: Yes. Some argue that immutable factors
such as gender cannot fairly be part of a risk assessment instrument; they
would presumably have the same criticism of our tools. Users can
eliminate such variables when using our sentencing support tools, but should
not do so unless they must to obtain enough data to yield displays.
Criticism of cognizance of factors such as gender may make sense in a world
of just deserts, but it surely does not serve fairness in a system focused
on public safety. Ignoring the variable is as likely to result in
a sanction that is unnecessarily severe as one that is fortuitously lenient
as compared with one that best serves public safety. We would unfairly
ignore or underrate programs that are uniquely valuable for one gender
or age group. There is nothing fair about blinding ourselves to sentences
that best serve public safety and offenders. That kind of blindness
is unfair to the victims whose crimes would be avoided without it.
If immutable factors such as gender in fact help determine what is most
likely to prevent avoidable victimizations, it is no more "fair" to ignore
them than it would be to ignore psychopathy in some violent offenders.
Besides, were this criticism to succeed, it would merely perpetuate uninformed
sentencing practices that are inherently susceptible to the personal history,
philosophy, preconceptions, and proclivities of the sentencer – i.e., to
unfairness, including class, gender, and racial bias – and that apparently
perpetuate otherwise avoidable victimizations. return
to top of page
Q: Is anyone else doing
this now?
A: Not in sentencing. Probation
managers in the District of Columbia ("SMART-STAT")
use a data warehouse "to evaluate which treatment and intervention methods
work best for specific offenders" to reduce recidivism. But as far
as I can tell (by tracking down all the rumors I've encountered so far),
no jurisdiction is actually using this technology to support sentencing
decisions that are more likely to reduce recidivism. Some systems
exist to routinize parts of the process of gathering information thought
important to sentencing. For example, a program called "ASSYST" helps
practitioners through the meticulous mysteries of the federal sentencing
guideline calculus, and a program called "Judge's Apprentice" automates
retrieval and weighing of "aggravating" and "mitigating" factors for sentencing
rape and robbery offenders in Israel. See HaCohen-Kerner Y. and Schild
U.J., "The Judge's Apprentice"; 5 The New Review of Applied
Expert Systems191-202, (2001). But such systems do not attempt further
the objective of crafting a sentence most likely to succeed at crime reduction.
The Midtown Manhattan Community Court project is
sometimes mentioned as an example of decision support technology
applied to sentencing. The Court's website once predicted the benefits
sentencing support would bring when it was on their "to do" list:
"A new version of the Judge's Desktop will include analytic software that
analyzes success rates for alternative sanctions for different kinds of
defendants, and displays predictions for the judge." Unfortunately,
this item was never accomplished, and the list disappeared from the web.
A more recent version, based on the Midtown Manhattan
model, is Brooklyn, New York's, Red Hook Community Justice Center.
The Center wonderfully exploits technology to provide judges with good
information about the offender and about treatment and program resources,
but it makes no progress whatever toward comparing outcomes based on recidivism
for like offenders. For a good recent article on the Red Hook project
by Claire Barliant in the New York Law Journal, click here.
[return with your browser's "Back" button].
Another rumor arises from the Colorado's Integrated
Criminal Justice Information System (CICJIS) which again addresses operational
needs and promises the benefits of linkage without offering the analytical
tools characteristic of DSS: "The CICJIS network and middleware will
link existing databases/platforms among the departments and agencies giving
users the appearance of querying one database, when in reality they are
querying five. The network features will be transparent to the user. The
CICJIS network will handle real time event driven data transfers, data
extracts, and queries between systems. CICJIS allows the data to be entered
only once by the originating agency and to be automatically updated in
the other relevant systems." This benefit would be available with DSS;
the critical added part is the ability to subject the data to the sort
of analysis which compares, for example, programs by graduate performance
by criminal activity for selected subsets of their graduate population.
CICJIS is a data integration project in progress; it makes no attempt to
link sentencing decisions to outcome-based data, though it could support
such an application.
Sentencing systems in New South Wales and Western
Australia provide judges with a great deal of information about how similar
offenders are sentenced under similar circumstances, and also provide useful
information about both the offender and sentencing literature and trends,
as well as sentencing laws and appellate decisions. The New
South Wales Sentencing Information System,
and a more recent Sentencing
Information System developed in Scotland in 1996, strive to assist
judges to do what most judges have done before with defendants convicted
of similar charges with similar criminal histories. An Israeli version
(apparently now defunct) gave the user the ability to screen for one of
several judicial sentencing philosophies, and then to see what judges with
that philosophy would have done. The
goal is consistency. This approach, too, critically lacks any
component that would enable a user to see how sentences have worked
--
they do not include statistics on which sentences have and have not correlated
with new criminal activity by which offenders. Similar approaches,
with similar limitations, exist in British Columbia and some provinces
in the Netherlands. With respect, the notion that we can learn something
by averaging or emulating the sentences historically imposed by judges
presupposes that the judges are sentencing based on useful information
(and that they know how to use it). That a sentence is most likely
to work hardly follows from its popularity -- particularly in a world in
which recidivism is our most common crime. For a critique of the
New South Wales system, click here.
Technicians in Scotland have built computer models
designed to emulate judicial "analysis" to produce the same sort of sentences
from any given set of circumstances that a typical judge would produce.
Another is proposed for the Victorian Lower Court Criminal Jurisdiction
in Australia. Although some in the process have suggested a performance-based
approach such as that we are employing in Multnomah County and, soon, in
Oregon state-wide, Scotland has not yet attempted to move beyond regularizing
what judges have always done. Accordingly, the Scottish approach
suffers from the same fundamental shortcoming that the New South Wales
technology exhibits: to the extent that sentencing has historically fallen
far short of its potential to reduce recidivism, these applications simply
automate the status quo and offer no improvement in public safety.
More sophisticated modeling approaches (such as that proposed for Victorian
criminal courts in Australia) have the advantage of assembling knowledge
from experts and users about the various other ingredients in sentencing,
and purport to automate and regularize the consideration of such factors
in aggravation and mitigation of punishment. But they, too, make
no attempt whatever to improve users' ability to achieve crime reduction
or to provide data about the public safety performance of choices available
to the sentencing authority.
Perhaps the newest innovation is that of the Missouri
Sentencing Advisory commission (http://www.mosac.mo.gov/directors_corner.htm),
which in June of 2005 launched a web-based automated "Recommended
Sentencing Application." The application generates a recommendation
based on crime seriousness, offender criminal history, some factors in
aggravation or mitigation, and available resources. The program amounts
to an automated advisory sentencing guidelines system which, like Virginia's
(Richard P. Kern, Meredith Farrar-Owens, Sentencing Guidelines with
Integrated Offender Risk Assessment, 16 Fed. Sent. Rptr. 165 (2004);
see http://www.vcsc.state.va.us/risk_off_rpt.pdf
), incorporates risk assessment into the process (http://168.166.76.135/RSWeb/JSP/RSAINFO40.html).
These are valuable steps in the right direction, but Missouri's system
is hobbled by the circumstance that it makes no efforts to steer judges
towards dispositions based on their likely recidivism-reduction value;
instead, like the New South Wales and UK versions, they report what other
judges have most commonly done in similar situations -- which, unfortunately,
emulates the mistakes of sentencing made without information about outcomes
and without clear direction at crime reduction. return
to top of page
Q: Have you determined
that your results are statistically significant?
A: We have frequently discussed
our approach with statisticians and less frequently with mathematicians.
"Statistical significance" is a concept that relates to the reliability
of sampling -- where we attempt to predict totals based on examination
of a relatively small portion of a universe of data. The formulae
that express the level of confidence with which our results for the sample
will hold true for the whole yield a number which researchers and statisticians
invoke when they say that a result is or is not "statistically significant."
Although this process holds the appearance of precision because it is derived
from equations and expressed numerically, it actually represents routinized
convention. In any event, our tools run against all available
data, and hence do not call for any expression of the reliability with
which a sample reflects the whole. That is not to say that there
are no issues as to the "purity" of the data and the extent of error introduced
by defects in linking records or data entry in the source data sets, but
the error rate related to that set of issues is different from what is
normally invoked by the concept of statistical significance. The
relevant issue is not statistical significance, but the extent to which
correlations displayed represent causation (i.e., that different recidivism
rates reflect different levels of effectiveness in the sentences received
by different offenders) or merely description (i.e., that something other
than disparate efficacy is responsible -- such as variables other than
those exploited by the tools, or the ability of judges to predict or not
success when selecting a disposition). See the next answer.
The results of sentencing support tools are
not presented as reflecting causation. The tools are not intended
to yield a sentence with mathematical precision, or to displace discretion
or analysis or advocacy. Rather, they are intended to encourage and
inform the discussion and analysis by giving participants good information
about outcomes for similar sentences imposed on similar offenders for similar
crimes in the past. They amount to an ongoing study from which users
can pull data relevant to their sentencing. It is up to all to make
the best use of the information; the highest objective of the tools is
to focus the sentencing process on crime reduction. return
to top of page
Q:
How do you know outcomes don't reflect accurate predictions rather than
cause and effect?
A: When we look at a cohort that shows
that short jail sentences or bench probation correlate with reduced recidivism
better than longer jail or formal probation, what we may be seeing
is that there was something about the higher risk offenders -- not captured
in the limited variables now accessible to sentencing support tools --
that led the sentencing judge or the prosecutor to conclude, or the defense
attorney to concede, that the offender was more likely to reoffend than
others. So it certainly may be that heavier sanctions for some cohorts
show worse outcomes because the process somehow correctly identified offenders
at higher risk to sentence more severely. The short answer is that
we cannot be sure the tools show us causation rather than reflecting differences.
But the tools do our best to compare offenders who are alike in terms of
age, gender, ethnicity (optionally), and six flavors of criminal history,
and
who have been sentenced for similar crimes. The closer the cohort
and crime of sentencing match the offender, the more likely the results
will be predictive of outcome rather than reflective of differences not
captured by the variables. In practice, users must often widen the
default variables to gather enough data to provide any useful information,
but we also encourage them to narrow the variables whenever there is sufficient
data to permit choosing a cohort even more like the offender than the defaults
generated by the tools. Read the user
manual for more information. For example, here's what the user
manual says:
These tools are designed to give as useful a glimpse as possible
at aggregate data.
They do not dependably display causal relationships. Although the point
is to do our best
to point sentencing arguments and decisions toward public safety, the
tools display
correlations only. It is up to advocates and judges to evaluate when
and to what extent
these correlations merely reflect descriptions or actually help make
responsible
predictions of what sentence is most likely to work.
Although these tools profoundly improve our ability to compare sentences
and outcomes
for categories of defendants, they surely do not reach all of the variables
that may affect
the outcome of a given sentence in a given case. It is up to advocates
and judges to
examine and consider whether and to what extent specific circumstances
affect how well
the tools can help us select the best sentence for the offender before
the court.
Some have argued that we should never use any data or
research that does not fit some ideal protocol, typically involving random
assignment to a study and to a control group. They will argue - correctly
- that "studies" that merely recite the percentage of a program's graduates
who avoid recidivism are useless, and "evidence-based practices" has suffered
some earned discredit to the extent that it embraces such nonsense.
Mere information about the recidivism of those who graduate means nothing
unless we also know what percentage of a program's participants graduate
and
how the risk and need variables of those whose recidivism is measured compares
with the recidivism of offenders with comparable risk and need characteristics.
A related valid criticism of some programs is that they select offenders
who are unlikely to recidivate regardless of what we do, then claim success
at their performance. Although it is certainly critical that users
keep in mind the limitations of any data, research or information that
may be offered in a sentencing analysis, there are four profound flaws
in the argument that we should look at the ideal or at nothing.
First, even the best study will not tell us whether
a given disposition will work best on a specific offender before the court.
The best studies establish, at most, that a disposition has some statistically
significant crime reduction impact for some of the offenders who received
the disposition as compared with offenders who did not. What we don’t
know without more is whether there are differences among those within
the study group that may account for the division between those who did
and those who did not avoid future criminal conduct – and, of course, whether
the defendant before the court has those factors in common with either
group. For this purpose, a retroactive cohort analysis [which attempts
to find similar groups within offenders who were and were not referred
to the disposition, based on the characteristics and variables that can
be used to define cohorts] may actually give us a better idea whether a
disposition will work on a specific offender than an “ideal” study that
merely tells us that a disposition in general works on some offenders.
Sentencing support tools employ such a cohort analysis. How precise
the cohort definition is depends on the amount of data available for a
given query, but the refinement may well exceed that of even the best of
studies which focus only on whether a given program or sanctions works
or not in general.
Second, sentencing is not an activity we are assessing
to determine whether we should undertake it. Rather, we now impose
sentences every day, and choose to use or not to use a wide variety of
dispositions every day, based on little or – more often – no information
about which works best on anyone, let alone on the offender before the
court. Resisting all but perfect information is insisting that we
continue to sentence based on little or no information, which has led to
enormous recidivism and victimizations which should be avoidable by improving
the information available to the sentencing process. No study, data
or research, ideal or otherwise, supports the notion that we are more likely
to reduce an offender’s future criminal conduct with little or no information
at sentencing than by making our best efforts to get the best information
we can, and to analyze it correctly. In short, refusing any but perfect
information almost certainly results in increased victimizations.
Ideal studies are rarely attainable, for reasons of resource, ethics, and
law. We should be rigorous in vetting research for its reliability,
but it is nonsense to reject good studies because they employ protocols
short of the random assignment, double-blind, prospective protocol. Perfect
is the enemy of good.
Third, the proponents of perfection rarely apply
their own criteria to their favorite conclusions about sentencing.
Take either side of the incarcerationist vs anti-incarcerationist divide,
find those who insist the other side’s information is flawed, and you will
easily find propositions each embraces notwithstanding the absence of supporting
studies conducted with the ideal protocol. For example, at a recent hearing
in the Oregon Legislature, persistent critics of "evidence-based sentencing"
promoted a presentation about Hawaii's "HOPE Court" because a "random assignment"
study found that court effective in reducing missed probation appointments
and positive urinalysis tests. The HOPE Court is a good one,
and appropriate for high risk, high need offenders. But its appeal
to the promoters lies in its support in the works of an academic who would
apparently discard all research that does not meet the "gold standard,"
profoundly satisfying these folks' suspicion of all "evidence based practices"
proponents. In fact, the two academics who discussed their findings
offered many, many propositions as established that rested on far less
stable propositions than the reduction in positive UAs and missed probation
appointments: "small fish become large fish" (some do, some do not,
and we can predict with fair reliability which are which based on risk
and need assessments); the HOPE approach is the best for a wide range of
offenders (HOPE actually works best on high risk/high need offenders, but
punishing offenders whose addiction amounts to brain damage should proceed
very differently than punishing offenders who are voluntary substance abusers;
HOPE Court's protocol is counterproductive for numerous low risk/low need
offenders); the HOPE Court serves public safety (the only detected impact
was on reduced positive UAs and missed appointments; that this translates
into reduced crime may well be so, but it is not the product of a randomized
study), and so on. The promoters introduced themselves by
claiming that their changes to Oregon law prevented many thousands of crimes.
This may also be so, but the proof surely doesn't come from a randomized
"ideal" study. As I noted to the legislators present, every decision
they make, and every decision I or juries in my courtroom make, is based
not on anything approaching the "gold standard" of random assignment, double-blind,
prospective studies -- we are required to make decisions based on
the best evidence we can assemble for the purpose, particularly where,
as in mainstream sentencing, the status quo is woefully (and brutally)
dysfunctional. In short, although we certainly must be cautious and
analytical when examining data and research for useful information, it
is at least as important to recognize when critiques mask an underlying
bias instead of encouraging useful improvement.
Fourth, measuring what doesn't matter is not
more useful simply because the protocol of measurement is ideal.
Unless we measure what matters - ultimately, harm reduction including crime
reduction - we are being irresponsible. A properly designed and implemented
study a notch or two below the "gold standard" about what works to reduce
criminal behavior is far, far more significant than the best possible study
about how to accomplish a high program completion rate regardless of whether
the program does anything at all to serve harm reduction.
More importantly, the sentencing support tools
are not intended to replace sentencing decisions with mindless generalizations,
but to focus the process, the analysis, and the arguments on what is most
likely to work. The system that has relied on assessments to decide
what is "appropriate" has produced outrageously
poor results and has rarely even attempted to serve public safety.
Surely we can do better accessing data capturing what has happened to similar
offenders and expressly addressing crime reduction as the objective of
sentencing. And, regardless of any other limitations of these tools
or the data available, they do give us valid and important information
never before available: what happened to offenders similar to the one before
the court (in the respects determined by the variables set by the program
or the user) when sentenced for similar crimes (in the respects determined
by the variables set by the program or the user), as measured by the flavor
of recidivism chosen by the program or the user. return
to top of page
Q:
Doesn't plea bargaining distort the data?
A: It's actually more likely
to be the other way around - that trial results "distort" the data,
as plea bargains account for the great majority of convictions. There
are countless individual variations whether or not we limit our criminal
history data to trial results. Even if we only draw data from trial
results, we still do not distinguish, for example, accomplice or accessory
liability from principal liability. The same is true of "culpability"
facts which do not rise to a successful defense (duress or mutual combat
or hungry children or addiction), and a case can be made for the notion
that plea bargaining is better than verdicts at sorting these out.
At this point, there's no reason to assume that the variations in how a
given fact scenario translates into a criminal history element skews the
history differently in one slice of offenders than in another -- the range
of variations is presumably largely the same for all. Of course,
we have much to learn, and we may discover distortions and respond to them
with our analysis. Meanwhile, the simple fact that we would have to discard
roughly 90 to 95 percent of the data to exclude plea bargained convictions
is more than enough reason to include all convictions.
We are nowhere near (and may well never attain)
perfection in capturing any offender's profile or in assembling "like"
offenders for comparison. Wholly beyond the limited meaning of the
data we do have [and we even might find some distinction worth isolating
between convictions by plea and those by trial, for example], there is
the tremendous range of probably important data we do not yet include:
mental health status, present addiction if any, prior treatment history,
personality assessment, and so forth. We hope to improve in all these
areas.
But the point is that even with these major limitations,
we should be able to do a far better job than we now do of analyzing and
deciding the public safety implications of our sentencing choices if we
have the access to what seems to correlate with success for roughly similar
offenders convicted of roughly similar crimes and sentenced in the past.
We need to see the correlations, then consider individual circumstances
that might vary the predictive value of the correlations in the case before
us, but most important of all we need to have this discussion in sentencing
decisions and in plea negotiations.
In any event, we generally work now with no data
whatever, and we generally never have the "what works" discussion.
That there are variations in how plea negotiations and trials translate
behaviors into convictions is no reason to opt for continuing on our present
path. Besides, it is our responsibility to encourage plea bargaining
to incorporate intelligent discussion about what is most likely to work. return
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Q:
Isn't this just a fancy risk assessment tool?
A: Risk assessment does not assess
recidivism, it predicts it; it amounts to either a device to identify offender
characteristics correlated with failure or to identify offenders likely
to reoffend. A “higher risk score” may detect that an offender is
less amenable to treatment.
A “risk score” cannot by itself determine
whether an offender is appropriate for a given sanction or treatment provider.
We may find that some programs are more appropriate than others for offenders
of a given risk, and a valid risk assessment may be critical in accurate
measures of a program's impact on criminal behavior: in fairly comparing
programs’ graduates’ performance, it is necessary to compare results of
graduates with comparable risk scores. It may be that experience
will teach that matriculation from a given program lowers the risk of recidivism,
but we would not have used the risk score going in as a “baseline,” we
would have learned that the program reduces risk by accurately analyzing
data about that program's graduates and deducing the risk impact.
Several existing risk instruments do a surprisingly
good job of predicting violence, recidivism, or other negative outcome.
They work on a distinct plane, however, from offender profiling, and typically
include such variables as substance abuse, age, gender, family composition,
employment history, criminal history. But in reducing the offender
to the single variable of a risk score, such assessments lose the flexibility
of dynamic analysis: for a specific species of criminal behavior, how does
an offender cohort, composed of all of the data captured in the risk assessment
plus the specific contour of criminal history and whatever other variables
are relevant but not captured by the risk assessment instrument, fare after
which responses.
For example, we may have offenders of a given
risk score who differ in other respects that correlate with different likelihoods
of success for different sentencing dispositions for the same criminal
behavior. We can have two defendants of identical risk scores facing
sentencing for Theft II. They can differ in age, ethnicity, gender,
drug of choice, species of criminal behavior (one might get to a level
5, or whatever, by committing two DUIIs, a PCS, and a domestic assault,
while the other has a string of UUMVs), and they might be susceptible to
improvement (at least in terms of correlation) in response to very different
assignments to custodial or noncustodial programs.
So risk score will always be no more than
one component of an analysis. return
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Q:
Haven't the experts concluded that nothing really works?
A: Early in the 1970s, academics came up
with the conclusion that nothing really works to modify criminal behavior.
This position was enormously convenient to some budgetary and philosophical
agendas, and it took hold. But by the end of the 1970s, even the
principal author of this "nothing works" movement began to recant, and
the enormous bulk of subsequent literature compels the conclusion that
the proposition that "nothing works" was simply wrong at the time and has
been completely discredited. Though there are certainly some offenders
on whom nothing works, there are also far more on whom some responses,
including correctional responses, have demonstrated potential for reducing
their criminal behavior. See, e.g., Harland, A. T. (ed), Choosing
Correctional Options That Work: Defining the Demand and Evaluating the
Supply, Thousand Oaks, Cal: Sage Publications (1996); McGuire, J. (ed),
What Works: Reducing Re-offending: Guidelines from Research and Practice.
Chichester: John Wiley & Sons (1995) ; Palmer, T., The Re-Emergence
of Correctional Intervention. Newbury Park, Cal: Sage Publications (1992);
Sherman, L., Gottfredson, D., McKenzie, D., Eck, J., Reuter, P. and Bushway,
S., Preventing Crime: What Works, What Doesn’t, What’s Promising. Washington,
DC: Office of Justice Programs (1997). See also McGuire, James,
What
Works in Reducing Criminality (2000), http://www.aic.gov.au/conferences/criminality/mcguire.pdf. return
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Q:
How can you expect offenders to change until they're ready to accept change:
A: "You can't do any good until the offender
is ready to change his life" is a fairly common litany. In practice, it
is a complete abdication of responsibility for outcomes. The vast
majority of offenders are not "ready to change" in this sense, and the
rest of the criminal justice community (probation and corrections officials)
are keenly aware of the need for "stage
of change analysis" -- which identifies and responds appropriately
to the relevant level of an offender's awareness that there is a "problem"
from none (denial or "precontemplation") through "contemplation," "preparation,"
"action," and "maintenance." Although it is certainly true that a
sincere recognition of the need for change is a hopeful sign, it doesn't
follow that nothing will work until the offender demonstrates this level
of self-awareness or -- more importantly -- that we are not responsible
for outcomes with offenders who don't seem "ready to accept their need
for change." Most offenders we sentence don't recognize their need
for change; our public safety depends upon making the best choices
(within those available) to improve their chances of avoiding further crime.
Besides, if there are offenders who have at some point recognized their
need for change, surely some of them did so after being sentenced a few
times. Even considering what sentence might hasten an offender's
arrival at this point is an improvement over abdicating responsibility
for outcomes for all who are not yet "ready." return
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Q: What is that graphic
you use on so many pages?
<- click on image for another view
A: The graphic is Jeremy Bentham's "Panopticon,"
a design for the modern prison, and dates from the late18th
century. Bentham's notion was that this architecture would help reform
prisoners through solitude. Bentham wrote "that in regard to persons of
the description of those to whom punishments of the nature in question
are destined, solitude is in its nature subservient to the purpose of reformation,
seems to be as little disputed, as its tendency to operate in addition
to the mass of sufferance." Bozovic, Miran, ed., Jeremy Bentham: The
Panopticon Writings (© London: Verso, 1995),
Letter VIII. Although the notion that the solitude of prisons
would produce penitence and good citizenship has long been discredited,
Bentham's design for what became the modern prison (considered a great
reform, championed
by Quakers, and first
built in Philadelphia) has quietly but relentlessly fulfilled a purpose
originally explicit but now quite covert: "the great load of trouble and
disgust which it takes off the shoulders of those occasional inspectors
of a higher order, such as judges and other magistrates, who, called down
to this irksome task from the superior ranks of life, cannot but feel a
proportional repugnance to the discharge of it." The Panopticon Writings,
supra (Letter
VI). The modern prison was the last great leap forward in correctional
policy; data-based sentencing responsibly aimed at crime reduction should
be its next. return
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