Oregon State Bar Bulletin, August/September 1999
Portland's April, 1999, statistics were typical: of 16 people put in jail for burglary, 14 had been in jail in Portland sometime in 1998. The same was true for all three jailed in April for robbery, three of the four jailed for assault, nine of the 10 for first degree theft, and 33 of the 38 for car theft. However we measure them, our 65-75 percent recidivism rates highlight a profound failure of the criminal justice system. This dismal public safety performance explains the continued popularity of ballot measures mandating lengthy incarceration for many crimes. [click here for a more recent example; return with the "back" function]
There is good reason to hope that we will soon do a much more effective job of exercising sentencing discretion - and making sentencing policy - measured by our ability to reduce victimization by reducing the criminal behavior of offenders who come through our system. Every dollar spent for high school completion and parenting education may buy more public safety than anything the criminal justice system can do, but the offenders who cycle repeatedly through our courts account for the bulk of our crime problem; we cannot continue to tolerate our persistent ineffectiveness in diverting them from criminal behavior.
Criminal justice is not held accountable for its public safety record because we persist in an ancient morality play. Sentencing is more a secular substitute for religious ceremony than a mechanism for the rational pursuit of social goals. We decree punishments as if we were ringing a temple bell - with no assessment of the outcome apart from the sound. Prosecutors argue for "sending a message" or "deterring" the offender or others with a morally "appropriate" sentence; defenders ask for sympathy based on poverty, ignorance, "bad influences," childhood hardship, or the turning of a "new leaf." None of this in practice has anything to do with what works; it is a litany supported by ideology and philosophy, not responsibly analyzed data. If we impose a "just" sentence, we are not held responsible for the offender's next crime, just as no one blames religion for mortality.
But meaningful justice requires in most cases that we do our best to prevent future crimes at the hands of the offender. Recent ballot measures notwithstanding, the great bulk of sentencing and probation revocation decisions involve enormous discretion as to disposition. "What works?" is almost never addressed; when it is, we have no information about how similar offenders have performed after being subjected to any of the available dispositions.
Change has begun. In 1996, voters amended the Oregon Constitution to bring "protection of society" within the constitutionally prescribed purposes of sentencing. In 1997, the Oregon Judicial Conference resolved "that in the course of considering the public safety component of criminal sentencing . . . judges should consider and invite advocates to address the likely impact of the choices available to the judge in reducing future criminal conduct." And the Oregon Legislature adopted House Bill 2229 (1997 Or Laws, ch 433) to enlist information technology in this effort, and to direct the Department of Corrections to "Provide central information and data services sufficient to . . . permit analysis of correlations between sanctions, supervision, services and programs, and future criminal conduct." In 1999, a governor's working group recommended, the Governor approved, and a federal source has funded the creation of state-wide "Public Safety Data Warehouse." Also, Multnomah County's Local Public Safety Coordinating Council is overseeing the construction of a county data warehouse and query tools, in large part to provide sentencing support. These tools should reach Multnomah County courtrooms during 1999. The Oregon Judicial Department should be able to start delivering similar tools to courtrooms throughout the state sometime in 2000.
Sentencing support technology exploits the vast data generated by criminal justice, corrections and law enforcement to display to judges and advocates how offenders similar to the one before the court have fared after being sent to any of the available dispositions. Users will be able to modify offender profiles and "flavors" of recidivism in order to explore the best public safety choices available for each offender. With these tools, we will do a far better job of being "tough on crime" by reducing criminal behavior. We will increase public safety, reduce the frequency of victimization, and spend our crime and corrections dollars far more efficiently. Researchers can focus on why one sanction seems to work better on some offenders than on others. And, when what works is routinely an issue in sentencing hearings, public debate and policy makers will benefit from an increase in reasoned consideration of how best to respond to crime. We may even drag criminal justice into the 20th Century before it's over.
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