Locked in a liturgy of just deserts, sentencing theory and practice persistently perpetuate recidivism rates of sixty-five to seventy-five percent or higher, rates that include victimizations that any responsible approach to sentencing would prevent. ⁽²⁾ The mantra of "deterrence, retribution, and reformation" continues to separate judges from the teachings of social science, in part because reformation, like the other two, is an expression of faith rather than measured performance. Understandably frustrated by our profoundly dysfunctional performance, legislatures and voters have repeatedly reduced judges' discretion through sentencing guidelines and mandatory minimum sentences. In spite of the short-run benefit of longer incapacitation for serious offenders, these approaches are beginning to show signs of declining impact as many hardened offenders are being returned to their communities at the same rate as new offenders are leaving. Together, the continuing dysfunction of judicial sentencing practices and voter and legislative responses maintain an enormously expensive criminal justice and corrections sector that, because of its sectarian entrenchment, leaves only a pittance of public resources for social and correctional programs that are far more effective in reducing crime -- such as parenting intervention and education, and high school completion.

Decision support technology, when applied to sentencing support, holds the promise of profound transformation of the culture of criminal justice. Although sentencing support tools can easily be misdirected so as to compound our archaic embrace of sermon to the exclusion of science -- as when they emulate past judicial performance on the mistaken assumption that tradition equates with wisdom -- they can instead provide judges, advocates, and practitioners ready access to information that supports analysis of which dispositions are most likely to reduce criminal behavior by which offenders. Oregon has begun this journey by legislative and judicial declaration and by building and beginning to apply technology to sentences whose worth is determined by their public safety impact. Although in their infancy, these tools have already correlated with noticeable changes in the direction of criminal justice. If we continue to support and expand these tools, they will increase the public safety performance of sentencing judges and correctional providers (public and private); justify the restoration of judicial sentencing discretion; improve public policy decisions deploying social service, law enforcement, and corrections resources; allow critically important crime preventing social programs to compete fairly with criminal justice for public dollars; and alter the culture of criminal justice by allowing rationality its rightful role in the process.
 

We Must Confront Recidivism - I've been a trial judge for 12 years, with a wonderfully varied caseload that is probably around 65% criminal. The most startling aspect of the criminal work is the rarity of the "first offender" apart from drinking and driving defendants and prostitution "johns." Almost all other offenders have been here before, many repeatedly.

The statistics on recidivism take many forms. The view that most easily comes to mind is a now discontinued Portland Police monthly report showing which people in jail had been there before within the last year. The last full month report - typical of those I'd followed for years - had these figures: of the 2,395 people jailed during July, 2000, ⁽³⁾ 1,246 had been jailed in Portland on some other occasion within the previous 12 months. Twenty-two of the 32 jailed for Burglary in July, 2000, had been jailed in Portland on some other occasion within the previous 12 months - as had 22 of the 23 jailed for Robbery, 20 of the 26 jailed for Theft in the First Degree, 304 of the 372 jailed on drug charges, and 32 of the 39 jailed for vehicle theft.

The magnitude of recidivism is similarly apparent from other measures. Bureau of Justice Statistics for jails in the United States reflect that "More than 7 of every 10 jail inmates had prior sentences to probation or incarceration," and that "Of the 108,580 persons released from prisons in 11 States in 1983, an estimated 62.5% were rearrested for a felony or serious misdemeanor within 3 years, 46.8% were reconvicted, and 41.4% returned to prison or jail." ⁽⁴⁾A more recent report released in June, 2002, summarized its findings as follows: "Sixty-seven percent of former inmates released from state prisons in 1994 committed at least one serious new crime within the following three years." ⁽⁵⁾ From what I have been able to determine, figures are similar in most Western countries. ⁽⁶⁾

These figures reflect profound dysfunction in the criminal justice system, and that dysfunction has very real consequences. To the extent that a smarter approach to sentencing offenders the last time they were convicted would have prevented the next victimization, we are missing opportunities - and shirking our responsibility - to promote public safety. The status quo is cruel and irresponsible to the people whose victimization we should have prevented; it is also cruel and irresponsible to the offenders who suffered only punishment when reformation would have resulted from another available and wiser choice. Apart from the human consequences, this dysfunction has tremendous social costs reflected in law enforcement, criminal justice, and corrections budgets - costs that are exacerbated because graduates of our system so frequently come back to require new attention from us all.

But it is the human consequences, and the tragic experience of death or grievous injury at the hands of a recidivist offender, that has spurned voters and legislatures to respond to our public safety failures with sentencing guideline schemes, and more recently with three-strike and mandatory minimum sentence provisions, all designed to limit judicial discretion and to produce sentences that more effectively prevent recidivism. Although increased periods of incapacitation surely do reduce recidivism in the short run, at least some offenders make up for lost time when released. Now that enhanced sentences are beginning to reach their end, some communities have found the flow of inmates back from prison equaling that of offenders on their way to prison, and have experienced collateral problems and rebounding crime rates after declines variously attributed to harsher sentencing laws and periods of economic boom. ⁽⁷⁾ Whatever the efficacy of prisons - and they are surely needed to incapacitate the substantial portion of offenders who are dangerous and incorrigible - they have not solved the problem of recidivism and they come with tremendous social cost.

Our dismay at what we view as intrusion upon a judicial function, and the reality of the recidivism we fail to prevent would all be merely an unfortunate aspect of modern civilization were we making any responsible effort to do the best we can to reduce criminal behavior. Unfortunately, are making no such effort. Instead, we define our role and perform our functions as though public safety were not our responsibility. 

Confronted with the specter of recidivism - or perhaps in a persistent effort to avoid it - we in the criminal justice system have quite arguably done everything in our power to avoid taking any responsibility for the public safety outcomes of our sentencing decisions. We cling to a liturgy of just deserts: deterrence, retribution, aggravation, and mitigation. The newer litany in our jurisdiction is "personal responsibility" and "accountability ." ⁽⁸⁾ Although "reformation" has long been part of the incantation, and our state constitution now directs us to pursue public safety, our sentencing practice reveals that this is so far a matter of faith rather than of purpose. We do not actually make any substantial effort to accomplish or to measure reformation; rather we presume it much as Jeremy Bentham did in promoting the Panopticon. ⁽⁹⁾ Thus, although we commonly send drunk drivers to alcohol treatment, drug users to drug treatment, sex offenders to sex offender treatment, and thieves to theft talk, we do this out of an apparent concern with symmetry rather than as part of any activity remotely resembling social science. We may demand prompt paperwork from the providers who populate this growth industry, but we never ask whether their graduates reoffend.

Of course there are signs to the contrary, and they are to be encouraged and applauded. Drug courts, special drunk driver courts, and similar enterprises aimed at domestic violence and mental health issues are growing in many jurisdictions, and their public safety value is substantial. But the mainstream of sentencing is still the secular equivalent of sermon, with outcomes assessed by the timber of the judicial voice and the ethereal standard of whether punishment "fits the crime."

Any who doubt this are encouraged to monitor plea negotiations and sentencing hearings. My experience, and that of those I've queried, is that advocates virtually never negotiate or argue about what is most likely to reduce an offender's future criminal behavior. ⁽¹⁰⁾ Prosecutors tend to argue what the offender "deserves" based on the evil of the act or the consequences; defenders plead for sympathy and talk of turning over a new leaf (apparently the secular equivalent of declaring submission to the appropriate deity). A common irony is that the just deserts argument turns attributes probably likely to favor incapacitation when viewed from the perspective of public safety into pleas for "leniency": a childhood of abuse and neglect, current unemployment, addiction. Likewise, those who write pre-sentence recommendations and probation violation reports speak in terms of what the offender "deserves," or whether a probationer has "forfeited" the "privilege" of supervision.

Another aspect of sentencing negotiations and arguments that evidences our avoidance of responsibility for outcomes is the complete absence of references to the abundant literature about correctional approaches and their efficacy. The same courts that are perfectly comfortable with sophisticated debate between well-paid experts in products liability and professional malpractice cases seem quite content to ignore academia entirely when it comes to sentencing. As a result, the criminal justice system and academia function in unconnected spheres, with neither benefitting from the other. We in criminal justice lose the benefit of a great deal of good research, and academia loses the benefit of real application of theory to restrain the generation of a significant amount of useless research. ⁽¹¹⁾

The persistent tragic spiral is one of burgeoning expense for law enforcement and correctional resources deployed so as to generate graduates far more likely than not to reoffend, contributing once again to the expense of criminal justice, law enforcement and correctional resources. The malignancy of this process is magnified by its capacity to displace funding for social services that do work to reduce crime. The research we largely ignore in the courts is replete with support for the efficacy of such programs as high school completion, parenting education, and early intervention, ⁽¹²⁾ yet these expenses most always scramble for the dregs of public dollars after the mandatory and enormous tithes for law enforcement and criminal justice - which have not had to compete on the basis of efficacy with social programs because law enforcement and criminal justice are essentially questions of faith.

The criminal justice community can no longer take refuge in the antiquated notion that ours is essentially a role in a morality play and that others are alone accountable for repeated crimes at the hands of those who come through our courts. Although social realities and responses outside the criminal justice system play a far greater role in the generation or prevention of crime, we see the repeaters repeatedly; our failures and our successes have a multiplier effect. We manage developing criminal careers - usually inadvertently and ineffectively. Failing to divert an offender from a criminal career usually results in multiple crimes and victimizations; succeeding avoids multiple crimes and victimizations. Our constituency has sent us many messages that our performance is unacceptable - so far, primarily in the form of the sentencing guidelines and overlapping mandatory minimum sentencing provisions that increasingly bridle our discretion, or popular or legislative assaults on aspects of the criminal justice system perceived to impede convictions. ⁽¹³⁾ And our failure to confront our public safety obligations has also undoubtedly contributed to the erosion of respect for the judiciary in more subtle ways, such as increasing suggestions for legislative control of judicial selection and politicalization of judicial election campaigns. ⁽¹⁴⁾
 

The Beginning of a New Approach Starting in 1996, Oregon has proclaimed a new mission and direction for criminal law, and has begun to enlist modern technology in that mission. A 1996 citizens' ballot measure rewrote the relevant state constitutional provision to insert public safety into a list of criminal justice purposes: "protection of society, personal responsibility, accountability for one's actions and reformation." ⁽¹⁵⁾ In 1997, the Oregon Legislature passed a bill that made the requisite changes in a number of laws:

• to make reduced criminal behavior the dominant measure of performance of criminal justice agencies (and their private partners) for juvenile and adult offenders;
• to require that agencies share data (including juvenile and adult data) to facilitate assessment of the impact of correctional efforts on future criminal behavior; and
• to require that criminal justice agencies use the data to see correlations between correctional responses and reduced criminal behavior. ⁽¹⁶⁾ 

In Multnomah County, Oregon, we have constructed a data warehouse and have developed the tools with which to give all involved in sentencing decisions rapid access to information about what works on which offenders. At the state level, the Oregon Judicial Department Information Technology Division has begun the work of creating similar tools for state-wide use. ⁽¹⁸⁾

Data warehouse technology is the current state of the art for analysis of information from multiple sources. Its critical attributes are these:

• It "extracts" operational data from existing databases fed by criminal justice activities. It does not require separate data collection or entry. Multnomah County's data warehouse now gathers data from courts, local law enforcement, prosecutors, and jails, and will soon include prisons and state-wide law enforcement. Eventually we will include alcohol and drug treatment and other public and private program providers among our data sources.
• It "transforms" that data so it all speaks the same language, without requiring that we first unify and standardize the platforms and hardware with which the various criminal justice agencies meet their information services needs.
• It "transfers" the data to a central repository ("warehouse") where it assembles the data in a structure whose "architecture" is designed for efficient responses to the queries anticipated from the target users - in our case, judges, attorneys, probation officers, pretrial release workers, probation and parole officers, and corrections counselors.
• Finally, our project provides users with query tools that facilitate the analyses users need.

By selecting any of three tabs, users can modify any of many variables and recalculate outcomes, receiving a new bar chart in seconds. For example, users might want to compare only those like the offender who were sentenced for an identical charge instead of a merely "similar" charge. The tools permit setting the sentencing charge variable by statute, by category, ⁽²¹⁾ by statutory division, or by including sentencing for any crime. The tab that reveals the offender profile variables shows the selection that reflects the offender's criminal history, ⁽²²⁾ age, gender, and ethnicity. ⁽²³⁾ Users can modify any or all of these variables and recalculate.

Finally, users can alter the flavor of recidivism that determines "success." Our tools include the ability to adjust outcome measures because the whole purpose of this effort is to do a better job of reducing criminal behavior. When I am sentencing an offender for a theft crime, the program by default measures recidivism by a conviction for a property crime within three years of the sentencings that it is comparing. But, if I were sentencing an offender for a property crime whose greatest threat is violence, I might very well want to look at violent recidivism by people so sentenced. For responsible pursuit of public safety, we need to be able to look at various recidivism measures. Flexible recidivism measures also allow us to identify opportunities we would not notice were we focused only on the crime of conviction. We may notice that of the choices available for a particular property crime offender, none vary significantly in their correlation with reduced property crime recidivism, but one or two show marked reduction in drug or driving under the influence crimes. ⁽²⁴⁾

Similar considerations support our need to vary the length of time during which we consider recidivism, and this program allows us to choose six months, three years, five years or "all available time" as the period during which a new crime counts as a performance measure. ⁽²⁵⁾ We can also look for arrests. All of these choices have implications, and all can be debated. For example, the longer period we use, the more likely it is that circumstances other than our sentencing choice have intervened to produce the result; the shorter period we use, the less likely it is that we are capturing the long-run public safety implications of our choices.

Particularly with crimes such as those representing domestic violence, it may be important to recognize arrests because the inability to prosecute many of these crimes due to victim unavailability may well mask our successes and our failures. In any event, our tools allow the parties and the court to consider the arguments, make the changes, and recalculate during (and in preparation for) a hearing so we can observe and consider the correlations.

We can also change the profile. We may learn that the offender's age or criminal history as reflected in the available data is incorrect. By clicking or unclicking the appropriate boxes, we can recalculate and see what difference the corrections (or changed assumptions) make in the correlations between choices available and future criminal behavior by offenders meeting our adjusted profile. 

We can also use the tools to explore concerns beyond actual convictions. For example, I recently sentenced a young woman who had as her first encounter with the criminal justice system a series of property crimes committed when former friends made the terrible mistake of selecting her as a house sitter, whereupon she sold their valuables, exhausted their credit cards, and very nearly ruined their lives. During sentencing, our tools showed that female offenders of her age who were otherwise "similar" in having no prior record had a very bright prognosis. When the pre-sentence investigation came back, it became clear that something else was at work: the defendant had allowed her friends to move in and they all consumed enormous quantities of illegal drugs. The defendant had no prior drug convictions, but she had a severe drug addiction. I decided to run the calculations again with a "minimal" drug crime record assumption just to see what difference that might make, and found the prognosis tremendously worsened and diverse in correlation with the various sentencing options. I believe the experiment helped me make a better choice - better in the sense that it affords a greater likelihood for success - than I would have made without these tools, or even with these tools but without their flexibility. ⁽²⁶⁾

The promises of this approach are many.

• We should do a significantly better job of diverting offenders from criminal careers than we now do by accident and without access to the information these tools give us;
• We should make significantly more efficient use of correctional resources, in and out of custody; we should stop funding programs that work on no one, stop sending programs people they can't improve so they have room for those they can, and start doing a better job of identifying offenders who need to be incapacitated;
• We should invite programs to compete based on their ability to reduce criminal behavior; by understanding that it is what works on which offenders that counts, we should remove the incentive for programs to "cream" by taking only those whose prospects of recidivism are already low;
• We (and our criminal justice partners) should make more informed and more effective release and supervision decisions, and have a much better idea which probations to revoke and which to continue;
• We should earn back a good deal of public confidence for the courts and the criminal justice system;
• We should overcome the traditional gulf between academia and the courts, so that academia will benefit us (by helping us to refine our sentencing support tools, serving as a used and useful source of best practices, and responding to an entirely new demand for support for arguments about what works) and we will benefit academia (by providing real-world applications so critical to the avoidance of projects that have no value outside academia, and by linking academia to public safety funding channels);
• We should gradually but profoundly change the nature of the discussion in courtrooms and in public and policy-making debate by giving "what works" a full voice, including public policy decisions about how to deploy and not to deploy criminal justice weapons to address social problems. Perhaps we may even be wise enough to re-examine the drug war without fear of thinly veiled cries of blasphemy;
• To the extent that we can make "what works" matter, we should improve the ability of social service programs that are much better than we are at reducing crime (such as home visits for new parents, high school completion, parenting education) to compete with law enforcement and other criminal justice agencies for tax dollars.

On the state level, we've concluded a "requirements" session with judges from around the state and a Judicial Department software engineer to begin the process of building similar tools for all Oregon judges.
 

The future of sentencing support: We have a long way to go. Sentencing support tools are roughly where aviation was at the Wright Brothers' first flights at Kitty Hawk. In the immediate future, we need to expand the automation and the quality of operational data collection at many levels of juvenile and adult criminal justice, law enforcement, and corrections. It turns out that actually using the data adds tremendously to quality control. We need to enhance sentencing support tools to allow us to analyze clusters of sentencing options commonly employed instead of merely individual sentencing components. We need to give users choices in including or excluding certain recorded behaviors other than arrests or convictions, such as police contacts generating "family beef" codes. We need to expand the range of included operational database sources for the data warehouse - such as motor vehicle records, alcohol and drug treatment records, ⁽²⁷⁾ and juvenile records. ⁽²⁸⁾ We need to add a host of attributes to offender profiles, such as mental health status, vocational background, substance abuse involvement, educational level, and perhaps even personality test and risk scores from prison assessments. ⁽²⁹⁾ We need to enhance the tools to allow more informed pre-trial release, probation supervision, and probation revocation decisions.

We also need to exploit the power of automated analysis. Eventually, the software should be "smart" enough to scour the variables so as to alert us to opportunities of which we should be aware. For example, as things now stand, it's up to users to decide whether to look at sex offense recidivism when dealing with a property crime offender; a smarter system would look without us and alert us if any notable peaks or valleys show up with respect to any of the dispositions we are considering with a property crime perspective.

Even all of this is just scratching the surface. As other related technology matures, we should have integrated computer-based resources to include such factors as the geographical location of possible treatment (or incarceration) providers to improve the sentencing (or supervision) choice - for example, it may be that the offender's chances of completing a beneficial program are improved if we select a provider near his residence, even though one across town has a higher percentage of successful graduates; we may want to consider which prison facility has both the services appropriate for an inmate and an absence of fellow gang associates.

We have a long, long way to go, but we have taken the first steps out of centuries of darkness. Public safety will surely benefit, and we have every reason to expect that we can leave a legacy of brutally dysfunctional ignorance in the past where it surely belongs.

For further information, consult http://www.smartsentencing.com.

1. This is a much-revised version of an earlier paper submitted for publication to the International Journal of Law and Information Technology.

2. I surely do not suggest that smarter sentencing can prevent all recidivism by all offenders. I insist, however, that victimizations at the hands of repeat offenders now include a substantial number that smarter sentencing would have prevented. In essence, we must be able to do a better job with responsible effort than we now do essentially by accident.

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

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

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

6. Previous incarceration rates are equivalent in Australia. "More than 60% of offenders in prison at the time of the 1994 Census had been imprisoned at some time previously" with a high of 78% for "break and enter" offenders. http://www.abs.gov.au/Ausstats/ABS@.nsf/94713ad445ff1425ca25682000192af2/a47fa7f4931f2bf3ca2569bb00164f7e!OpenDocument New South Wales has adopted technology which is similar to ours in appearance, but quite different in function: rather than inform and encourage judges to do that which is most likely to prevent recidivism by the offender in question, these tools - and similar ones developed in Scotland - encourage judges to do what other judges have most commonly done in similar cases with similar offenders. See http://www.judcom.nsw.gov.au/dublin.htm. Consistency is overrated in such endeavors. For one thing, it is largely accomplished by adamant refusal to acknowledge differences so that we can claim that we are treating like offenders alike. For another, we keep running into absurd outcomes - for example, when the presumptive sentence under guidelines depends on the dollar value of damage caused by an arson - when that value was suppressed by the accident that the homeowner was a firefighter. And we seem ready to abandon common notions of right and wrong to pretend we've achieved equal treatment - as when we punish more severely the car thief who takes a valued toy from a stable of collector cars than the one who steals the sole means of transportation from a single mother struggling to get by. Finally, the outcome of such efforts continues to be overwhelming failure as measured by recidivism. If we generally do more harm than good, consistency in our pursuit is hardly a virtue.

7. See, e.g., Gainsborough, Jenni and Mauer, Marc, Diminishing Returns: Crime and Incarceration in the 1990s, The Sentencing Project (2000), http://www.sentencingproject.org/policy/pub9039.pdf; Petersilia, Joan, When Prisoners Return to the Community: Political, Economic, and Social Consequences, Sentencing and Corrections No. 9, US Department of Justice, Office of Justice Programs (November 2000), http://www.ncjrs.org/pdffiles1/nij/184253.pdf; Schiraldi, Vincent, Prisons are no Cure for Crime, Center on Juvenile and Criminal Justice, Justice Policy Institute (2000), http://www.cjcj.org/jpi/ridder091400.html.

8. Article I, Section 15, of the Constitution of the State of Oregon. I hasten to add that it is not my purpose here to argue general deterrence or to debate the proper role of retribution in sentencing. My views on these subjects are entirely independent of the merits of my argument that we can and must exploit technology to do a better job of diverting offenders from crime with our sentences to the extent that the legal range of our discretion and the impact of sentencing considerations other than public safety leave us room for decision making - which they almost always certainly do. By way of disclosure, I doubt the efficacy of general deterrence outside business crimes and parking violations and, perhaps, for offenders subject to embarrassment - such as some drunk drivers and prostitution "johns." I believe concepts of retribution have a proper role in limiting punishment by establishing what would be "excessive" under a given set of circumstances, and in supporting punitive measures designed to serve therapeutic purposes for victims - particularly with child victims of sex abuse who need help in understanding that they were without fault.

9. Jeremy Bentham's "Panopticon" was the precursor of the modern prison. He argued that offenders would pursue penitence in their isolation in cells, and emerge better citizens. Hence the phrase "penitentiary." See Bentham, The Rationale of Punishment (1830), available on-line at http://www.la.utexas.edu/labyrinth/rp/. Bentham's discussion of penitence is no less unempirical than our modern approach to sentencing:

Let us here stop to examine three auxiliary punishments, that under special circumstances, and for a limited time only, may be usefully made to accompany afflictive imprisonment. These auxiliaries are solitude, darkness, and hard diet. Their distinguishing merit consists in their subserviency to reformation. 

That the three hardships, thus named, have a peculiar tendency to dispose an offender to penitence, seems to be the general persuasion of mankind. 

http://www.la.utexas.edu/labyrinth/rp/rp.b02.c06.html

11. In recent decades, the social sciences as applied to criminal justice have been showing signs of needing something useful to do. For example, rather than coming to grips with the useful limitations of deterrence, many articles presume deterrence and populate academic shelves with proposed models for analyzing deterrence. See, e.g., Nagin, Daniel S. (Carnegie Mellon University Heinz School of Public Policy) and Pogarsky, Greg (SUNY Albany School of Criminal Justice), Integrating Celerity, Impulsivity, and Extralegal Sanction Threats into a Model of General Deterrence: Theory and Evidence (January 15, 2000), http://www.ssc.wisc.edu/econ/Durlauf/networkweb1/London/Criminology1-15-01.pdf;Susumu Imai and Kala Krishna, Employment, Dynamic Deterrence and Crime, National Bureau of Economic Research Working Paper No.w8281, May 2001, http://papers.nber.org/papers/W8281. Even stronger evidence of academia's untapped capacity for useful work is provided by the popular "meta analysis" whereby the demand to publish can be satisfied by purporting scientifically to extract meaning from large numbers of studies conducted by others - without any bothersome collection of new data. See, e.g., Petrosino, A. and Turpin-Petrosino, C., "Scared Straight" and other prison tour programs for preventing juvenile delinquency [protocol]; The Cochrane Library, Issue 4, 2000, http://campbell.gse.upenn.edu/papers/c2_sample_protocol.pdf.

12. The field is filled with studies; a good list is at the U.S. Office of Juvenile Justice and Delinquency Prevention's site on this page: http://ojjdp.ncjrs.org/pubs/delinq.html.

13. Oregon has sentencing guidelines and mandatory minimum sentencing provisions now typical of the U.S. criminal justice system (see, e.g., State v. Ferman-Velasco, 333 Or 422, 41 P3d 404 (2002), and authorities cited [http://159.121.112.45/S46172.htm]), and has experienced substantial procedural modifications as a result of victims' rights ballot measures and legislative responses (see, e.g.,State v. Compton, 333 Or 274, 286 n.7; 39 P.3d 833, 841 n.7 (2002) [http://159.121.112.45/S45905.htm]).

14. Although judges are appointed for life in the federal court system in the U.S., some form of election - and the form varies widely - is typical in state court systems. How much such elections should or should not resemble partisan elections is a hot topic in recent years. See, e.g., National Center for State Courts, The Joyce Foundation, and Open Society Institute, Summit on Improving Judicial Selection, Chicago, Illinois (December 8-9, 2000), http://www.ncsc.dni.us/SummitCalltoAction.htm.

15. Article I, Section 15, of the Constitution of the State of Oregon. http://landru.leg.state.or.us/orcons/orcons.html.

Unfortunately, this ballot measure also removed language denigrating "vindictive justice."

16. 1997 Oregon Laws, Chapter 433 [1997 House Bill 2229]. ch433.htm.

17. 1997 Oregon Judicial Conference Resolution #1. JCRESNO1.htm.

18. This effort is about three years behind Multnomah County's work, which serves as something of a pilot. Initially, the state tools will be limited to court data, but the plan is to exploit the data hoped to be available by way of a "Public Safety Data Warehouse" or similar project, construction by the Department of Oregon State Police. See http://pmo.das.state.or.us/psdw/.

19. Http://www.smartsentencing.com.

20. A case number identifies an individual in our system, as well as a case - multiple defendants in the same case each have a distinct case number.

21. For example, by default, when the charge selected at the outset is "Theft in the Second Degree," the cohort includes offenders like the offender who were sentenced for any "property crime."

22. We parse criminal history into five levels of severity (none to severe) in each of six "flavors" of criminal behavior: property crime, violent crime, sex crime, drug crime, DUII and major traffic, and domestic violence. The data rules governing these assignments have been adopted by a focus group of users including a prosecutor, a defense attorney and myself. The biggest constraint is the data available to the tools.

23. Although users can freely eliminate ethnicity from the operative variables, the inclusion of this variable serves at least two important purposes. First, some minorities suffer exaggerated incarceration and conviction rates, so criminal histories are not fairly (or accurately) comparable without this variable. Second, this variable allows us to assess the many programs that target minority offenders.

24. For example, I have found some types of property offenders for whom anger counseling has a remarkable correlation with reduced criminal behaviors; parenting education seems to correlate highly with reduced recidivism for many female drug offenders.

25. In future iterations, we should recognize frequency and severity of recidivism. Diverting a violent offender into property crime may be a better result than we achieve now.

26. The victims attended the sentencing hearing, which Oregon law encourages, and they fully supported the analytical approach encouraged by the sentencing support tools.

27. Yes, we've considered the confidentiality issues so heavily laden with federal law and regulation. Our discussions with the Oregon Attorney General and the Director of the Oregon Department of Alcohol and Drug Abuse Programs have led to a consensus that aggregate data can be exploited for analytical purposes without legislative or regulatory change.

28. 1997 Oregon Laws, Chapter 433, §8(4) [1997 House Bill 2229], supra note 13, amending ORS 420A.012, mandates sharing juvenile and adult data to help us see what happens to juveniles after we deal with them in delinquency (and dependency) hearings when they become eligible by age to show up in adult criminal justice data.

29. As a member of the Oregon Department of Corrections' "Inmate Incarceration and Transition Plan Design Team," I've offered input to such assessment design precisely to improve our ability to profile offenders so as to improve our dispositions in court, in prisons, and on probation.