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

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

No. 6   June 15, 2002
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Multnomah County’s
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.

Public Safety
Data Warehouse

    Issues that include Oregon's present financial shortfall have brought the Oregon State Police development of the Public Safety Data Warehouse to a standstill.  The $2.8 million project funding consists of a $2.1 million Byrne grant and a mandatory local match of $700,000.  Faced with drastic cuts, the Department of State Police is prepared to return the remainder of the federal money rather than sustain further cuts to its workforce -- having lost trooper positions in the first round of cuts.  The project manager, Nell Klumpf, has transferred to the Department of Administrative Services with an option to return to the project should the PSDW be revived, but most observers consider it dead.
    Informal discussions confirm the willingness of DOC, OYA, and the courts to find other means, if the PDSW indeed dies, by which to share data necessary to support such projects as sentencing support, with or without a "PSDW-2," but the loss of the funding and the momentum is nonetheless regrettable.


    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.

Other Developments

Since last report, Multnomah County pre-sentence investigation orders have been modified to add a box requesting

 "[   ] 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"
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.
 - Michael Marcus
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