Evidence-Based Sentencing to
Reduce Recidivism & Hold
Offenders Accountable
Judge Roger K. Warren (Ret.)
Louisiana Judicial Conference
The Bluffs
October 18-20, 2012
“What is done [today] in
corrections would be grounds
for malpractice in medicine.”
(2002) Latessa, Cullen, and Gendreau,
“Beyond Correctional Quackery…”
2
Top concerns of state trial judges
in felony cases:
1. High rates of recidivism
2. Ineffectiveness of traditional probation
supervision in reducing recidivism
3. Absence of effective community
corrections programs
4. Restrictions on judicial discretion
3


Top two reform objectives:
Reduce recidivism through expanded
use of evidence-based practices,
programs that work, and offender risk
and needs assessment tools
Promote the development, funding,
and utilization of community-based
alternatives to incarceration for
appropriate offenders
Evidence Based Practice
(EBP)


EBP: professional practices supported by
the “best research evidence”
Best research evidence:
– Well-matched control groups
– Consistent results across multiple studies
– Systematic analysis (meta-analysis)
5
Washington State Institute
for Public Policy



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Meta-analysis of 571 studies
“Cautious” approach
Adult EB programs cut recidivism 1020%
EB programs have benefit/cost ratio
of 2.5:1
Moderate increase in EBP would
avoid 2 new prisons, save $2.1
billion, and reduce crime rate by 8%.
% of Offenders
State of Maryland
Proactive Community Supervision
New Arrests
Revocations
Evidence-Based Sentencing
(EBS)
The application of Principles of EBP
to the sentencing process for the
purpose of reducing recidivism and
holding offenders accountable
8
EBS & Purposes of Sentencing
1.
“Just Deserts:” penalty or punishment
proportionate to the gravity of the offense
& culpability of the offender; accountability
2.
Public Safety
 Rehabilitation
 Specific
Deterrence
 Incapacitation/Control
 General Deterrence
3.
Risk Reduction
& Management
Restitution/Restoration
9
Three Basic Principles of
EBP



Risk Principle (Who)
Needs Principle (What)
Treatment & Responsivity Principles
(What Works & How)
10
Risk Principle
(Who)
The level of supervision or
services should be matched to
the risk level of the offender: i.e.,
more intensive supervision and
services should be reserved for
higher risk offenders.
Potential Impact on Recidivism
80
70
60
50
40
30
20
10
0
Recidivism rates absent treatment
Likely recidivism with effective correctional
intervention
Travis Co., Texas:
Impact of Supervision by Risk
Risk Level
Low
Medium
High
Overall
% Re-arrest
% Change
in Rate
Pre-EBP
Post-EBP
1/067/07-10/07
6/06
N = 614
N = 1287
26%
26%
34%
29%
6%
13%
31%
24%
-77%
-50%
-9%
-17%
Needs Principle
(What)
The targets for interventions
should be those offender
characteristics that have the
most effect on the likelihood
of re-offending.
Risk of Heart Attack
1.
2.
3.
4.
5.
6.
7.
8.
Elevated LDL and low HDL levels
Smoking
Diabetes
Hypertension
Abdominal obesity
Psychosocial (i.e., stress or depression)
Failure to eat fruits and vegetables daily
Failure to exercise
Dynamic Risk Factors
(Criminogenic Needs)








Anti-social attitudes
Anti-social friends and peers
Anti-social personality pattern
Family/marital
Substance abuse
Education
Employment
Anti-social leisure activities
16
Anti-Social Personality Pattern






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Lack of self-control
Risk taking
Impulsive
Poor problem solving
Lack of empathy
Narcissistic
Anger and hostility
Non-Risk Factors
(not likely to affect future crime)





Anxiety/stress
Low self esteem
Intelligence
Health and physical
conditioning
Mental health
Risk/Needs Assessment




1st generation: subjective
professional/clinical judgment
2nd generation: actuarial, static risk
factors
3rd generation: actuarial, dynamic
risk factors
4th generation: incorporate case
planning features
Actuarial Risk/Needs
Assessment (RNA)





The engine that drives evidence-based
recidivism reduction strategies
Much more accurate in predicting
recidivism
Identifies dynamic risk factors
Risk is dynamic; risk scores are static
Intended to inform not replace
professional judgment
“Resolution 7 In Support of the Guiding Principles
on Using Risk and Needs Assessment Information
in the Sentencing Process”
•
The Conference of Chief Justices
• “endorses the guiding principles
described in the National Working
Group’s report” and
•“encourages state and local courts
... to work with their justice system
partners to incorporate risk and
needs assessment information into
the sentencing process.”
21
Malenchik v. State of Indiana
(928 N.E.2d 564 (2010))
“Evidence-based assessment instruments
can be significant sources of valuable
information for judicial consideration in
deciding whether to suspend all or part of a
sentence, how to design a probation
program for the offender, whether to assign
an offender to alternative treatment
facilities or programs, and other such
corollary sentencing matters.”
22
Using RNA Information at
Sentencing: 9 Guiding Principles*
# 1: For purpose of effectively
managing and reducing the risk of
recidivism
# 2: To determine amenability for
probation supervision
#3: To establish appropriate conditions
of probation
*NCSC, Using Offender Risk and Needs Assessment Information at
Sentencing (2011), available at http://www.ncsconline.org/csi/analysis.html.
23
Amenability to Probation
Supervision



Risk level (low & medium)
High risk offenders may also be
amenable to probation supervision
An amenability determination requires a
qualitative assessment of whether the
offender can be safely and effectively
supervised in the community
24
Use of RNA Information in
Setting Probation Conditions




Level and length of probation supervision
Nature and intensity of treatment
conditions to address specific criminogenic
needs (dynamic risk factors)
Nature and intensity of control conditions
to monitor, manage, or control the risk of
recidivism
In the absence of reliable RNA, wherever
possible, courts should defer to probation
in setting terms and conditions
25
Malenchik v. State of Indiana
(928 N.E.2d 564 (2010))
The court noted, however, that risk/needs
tools were “never designed to assist in
establishing the just penalty” and ruled
specifically that risk assessment scores
cannot serve as aggravating or mitigating
circumstances in determining the
appropriate length of a prison sentence.
26
Using RNA Information at
Sentencing: Other Principles
# 4: The importance of educating counsel
and other stakeholders
# 5: Encouraging use of RNA information by
counsel and discouraging plea negotiations
(especially of probation conditions) in the
absence of RNA information
# 8: Determining the format & content of
assessment/pre-sentence investigation
reports
27
Treatment Principle
(What works)
Resolution No. 12
Judges should “educate themselves about
the effectiveness of community based
corrections programs in their jurisdictions,”
and “advocate and … make use of those
programs shown to be effective in reducing
recidivism.”
Treatment Principle
(What works)
The most effective interventions in
reducing recidivism among medium
and high risk offenders:
•target offenders’ most critical risk
factors, and
•utilize cognitive behavioral strategies
Behavioral Strategies:
Behaviors Have Consequences
Positive



Rewards/Positive
Reinforcement
Incentives
4:1 ratio
Negative


Swift, certain, and
proportionate
(fair) sanctions
Severe sanctions
not necessary
Behavioral Strategies Also Involve
Role models
 Demonstration
 Role play
 Feedback
 Skill practice

% Reduced Recidivism
Behavioral v. Non-Behavioral
K=77
K=297
Behavior
Visible
Thoughts
Feelings
Sometimes
Aware
Cognitive Structure
Beneath the
Surface
(Beliefs and Attitudes)
T4C: Recidivism Rates
28-50% reduction in recidivism
compared to traditional probation
What Doesn't Work?
Non-Behavioral Strategies

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Shaming programs
Drug education programs
Drug prevention classes focused on fear or
emotional appeal
Non skill-based education programs
Non-action oriented group counseling
Bibliotherapy
Freudian approaches
Talking cures
Vague, unstructured rehabilitation programs
Self-esteem programs
35
What Doesn’t Work:
Traditional Sanctions Alone





Punishment, sanctions, or
incarceration
Specific deterrence, or fear-based
programs, e.g., Scared Straight
Physical challenge programs
Military models of discipline and
physical fitness - Boot Camps
Intensive supervision without
treatment
The Responsivity Principle
Both the intervention (treatment,
supervision, or interaction), and
personnel delivering the
intervention, must be matched to
certain characteristics of the
individual offender.
Responsivity Factors:
Offender Characteristics





Gender
Literacy
Intelligence
Mental Health
Motivation
Promoting Offender Motivation
Coerced
Treatment
Extrinsic
Intrinsic Motivation
Relationship & Engagement
Stages of Change
Procedural Fairness
Motivational Interviewing
LASTING
EXIT
Stages of Change
Relapse
Maintenance
(Treatment)
Pre-Contemplation
EXIT?
Action
(Ready for
change)
(Denial)
Contemplation
(“Yes but...”)
ENTER
HERE
LASTING
EXIT
Responses to Stages
Avoid Demoralization
Relapse
Maintenance
(Treatment)
Relapse Prevention
EXIT?
Action
(Ready for
change)
Promote Self-Diagnosis
Pre-Contemplation
(Denial)
Increase Ambivalence
Practical Strategies Contemplation
(“Yes but...”)
ENTER
HERE
Procedural Fairness
Research shows that there is improved
compliance and motivation when the
offender views the court process as
“fair”:
– Views bench as impartial
– Has an opportunity to participate
– Is treated with respect
– Trusts the motives of the decision maker
Motivational Interviewing

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Use open-ended questions
Listen reflectively
Develop discrepancy/dissonance
Support self-efficacy
Roll with resistance; deflection
Avoid argument, lecture, shaming,
threats, or sympathizing
Exercise: A Framework for An
EB Probation Violations Policy
1.
2.
3.
Identify 5-6 key components of
an EB approach?
E.g., how would this framework
provide for an appropriate use of
sanctions?
What administrative authority
should probation have regarding
sanctions & incentives?
Revocation Proceedings
“Revocation is an appropriate response
to a violation when a reassessment of
the offender’s dynamic risk factors in
light of the offender’s overall criminal
history and record of probation
compliance and non-compliance
determines that the offender can no
longer be safely and effectively
supervised in the community.”
46
EBS for Drug Offenders
Low Risk (Pro-Social)
High Need
(Substance
Addiction)
Low Need
(Substance
abuse or
misuse)
High Risk (Anti-Social)
•Low level supervision
•Intensive supervision (DRUG CT)
•Intensive S/A Tx
•Intensive S/A, Cog, & other Tx
• Compliance is shortterm goal
• Abstinence is longterm goal
• Emphasize positive
reinforcement
•Compliance is short-term goal
•Abstinence is long-term goal
•Emphasize positive reinforcement
•Strict monitoring/control
•conditions
•Low level supervision
•Intensive supervision
•Low level services
•Intensive Cog & other Tx
•Minimal level of
incarceration
•Compliance & abstinence are
short-term goals
•Emphasize positive reinforcement and sanctions (HOPE)
•Most likely to respond
to sanctions
•Strict monitoring/control
conditions
Evidence-Based Sentencing to
Reduce Recidivism & Hold
Offenders Accountable
Judge Roger K. Warren (Ret.)
Louisiana Judicial Conference
The Bluffs
October 18-20, 2012