Sentencing Support Project
Sentencing support technology is now available to
Multnomah County Judges in a fully operational form. Nineteen judges
have been trained to use the software, and user manuals have been electronically
distributed for judges and attorneys. The Multnomah Public Defenders
office is being furnished with a connection so that attorneys may use it
in house. Other defense attorneys will have free access to a dedicated
computer just installed in room 302B of the Multnomah County Courthouse;
a printer will be supplied in the near future. Multnomah County supplied
the computer; the courts supplied the network connection and will supply
the printer. The District Attorney's office has in-house access.
A link on the public Multnomah
County Courts web page provides access to a downloadable
user manual and the rules
table that guides the assignment of crime categories and crime theme
severity ratings for construction of offender cohorts.
Since last report, Multnomah County's Sentencing Support tools have been enhanced in several respects. Significantly, the variables reflected in an bar chart are displayed in the frame to the right of the chart. In addition, the crime themes and related code have been updated to incorporate new identity theft crimes.
Sentencing support bar chart print-outs are beginning to show up in pretrial conferences, settlement conferences, plea negotiations, and sentencing hearings.
State ITD Begins Work
on Sentencing Support
Thanks to the direction and support of the Chief Justice, the
Oregon Judicial Department Information Technology Division has continued
to work on a state-wide version of sentencing support technology.
James Roten, Lead Design Analyst on the project, has prepared a written
analysis of Multnomah County's tools.
The Technology in the Courts Committee is sponsor of the project, with regular input from the Criminal Law Committee. Judges from both committees and beyond participated in a two day "requirements" session in February, 2002: Gayle Nachtigal, Nely Johnson, Douglas Mitchell, Patricia Sullivan, Edward Jones, Michael Marcus, and Joan Seitz in a session led by James Roten; ITD Director Carl Ward and Programs Manager Jeff Barlow attended part of the session. James Roten distributed an issues draft and an issues document reflecting unresolved questions that must be settled before proceeding to the next stage. The issues-resolution process is nearing completion, and a distribution of the proposed resolutions to the requirements session participants and to the Technology and Criminal Law committees is anticipated by early July. Any issues that cannot be resolved at this level will then be submitted in some manner to the Judicial Conference as a whole for resolution.
In general, the requirements come close to describing Mutlnomah County's tools. Topics of current discussion include including an ethnicity variable in cohort definition only by user option rather than by default; comparing defenders sentenced for the same crime as opposed to a crime of the same category; and the optional use of arrests as opposed to convictions as an outcome measure.
The ethnicity variable has always been sensitive. Proponents argue that its inclusion is important because for numerous reasons what works for one set of offenders may vary considerably with ethnicity distinctions among that set -- whether because ethnicity has led to an exaggeration of criminal history through disparate enforcement, because several important programs are built on the assumption that they are tailored to specific ethnic groups, or for a host of other reasons. Opponents argue that sentencing decisions should be blind to ethnic distinctions or that a sentencing support tool that is even open to the perception that it employs "racial profiles" carries unacceptable political and ethical risk. Multnomah County's choice has been to use the variable by default and to encourage users to explore what distinctions related to the variable mean. For example, Hispanics may include a disproportionate number of defendants whose incarceration dispositions reflect an INS hold rather than any other reason to choose jail over other sentences. And the ability to see the disparities in sentences imposed correlated to ethnic distinctions in the cohort definition enables us to see those disparities and to search for their sources -- without seeing them, they would still exist but we would be far less likely to worry about whether they are inappropriately involved in our dispositions. In any event, the Multnomah County tools allow users to eliminate the ethnicity variable entirely or to perform the analysis as though all offenders were "nonminorities."
The choice whether to default to offenders sentenced for the same or for similar crimes is far less sensitive, as all agree both that the preferred comparison is with offenders sentenced for the same crime as the one before the court, and that for any given cohort there may be too little data to provide any useful results unless the comparison group is expanded to similar defendants sentenced for a similar crime. There is some concern that it is unfair to compare lower level offender results with those included in a broader cohort.
Including subsequent arrests as an optional measure of recidivism is a concern from the perspective of the presumption of innocence and the arguably minimal value of an arrest whose assumptions have not been validated by conviction. All seem to agree that this measure is important in the domestic violence area, where so many prosecutions are aborted for reasons unrelated to the merits. Multnomah County's tools use prior domestic violence charges as part of an offender's severity rating as long as the charges were not dismissed based on a district attorney code implying weakness on the merits. These tools also use convictions by default for each of the selectable outcome measures, but allow the user to choose arrests.
Overall, sentencing support tools are not intended to determine a sentence or to replace advocacy by attorneys or discretion and analysis by the judge. They are designed to give all far greater access to information never before available in this context to equip advocacy, discretion and analysis. It is desirable that all have the opportunity to consider how any of these issues may affect the choices in a specific case -- and specific cases will always have details and circumstances that are unique. The premise of sentencing support tools is that by introducing into sentencing analyses information about how similar offenders have fared after being sentenced for similar crimes, we all have a better chance of producing a resolution that will divert the offender from a criminal career.
Uniform Criminal Judgment
The Education, Technology in the Courts, and
Criminal Law Committees delivered a presentation on the UCJ roll-out
at the 2001 Fall Judges’ Conference.
The UCJ has begun to spread through the counties. Employment of the UCJ will improve data reliability and uniformity, both of which greatly enhance the potential for sentencing support technology and other analysis dependent upon that data.
As anticipated in the last Resolution News, sentencing
support presentations were delivered August 14 and 16, 2001, at the National
Center for State Courts’ Seventh National Court Technology Conference (CTC7)
in Baltimore, and on September 6, 2001, before the Multnomah County Board
of Commissioners. The Commissioners continue to support (and to fund
the lion's share of) Multnomah County's DSS-Justice project, of which sentencing
support tools are an important part. As of this writing, presentations
are scheduled for June 27-29, 2002, at the Second
International Sentencing and Society Conference at the University of
Strathclyde, Glasgow, Scotland, and for September 27, at the 2002
Conference of the National Association for Justice Information Systems
in Seattle, Washington.
Copies of the CD presentation are available without cost, and have been requested by law professors, judges, corrections officials, and related technology professionals in 16 states and the District of Columbia, four Canadian Provinces, as well as South Australia, Uganda, Belgium, the United Kingdom, and Trinidad and Tobego.
Since last report, Multnomah County pre-sentence investigation orders have been modified to add a box requesting
Presentence investigations are now beginning to include fully responsive information. The next step is to convince probation officers routinely to include a similar analysis in probation violation reports."[ ] Analysis of what is most likely to reduce this offender’s future criminal behavior and why, including the availability of any relevant programs in or out of custody"