Louisiana Judicial Conference The Bluffs October 1820 2012 Judge Roger K Warren Ret What is done today in corrections would be grounds for malpractice in medicine 2002 Latessa ID: 556347
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Evidence-Based Sentencing to Reduce Recidivism & Hold Offenders Accountable
Louisiana Judicial ConferenceThe BluffsOctober 18-20, 2012
Judge Roger K. Warren (Ret.)Slide2
“What is done [today] in corrections would be grounds for malpractice in medicine.”
(2002) Latessa, Cullen, and Gendreau, “Beyond Correctional Quackery…”
2Slide3
3
Top concerns of state trial judges in felony cases:
High rates of recidivism
Ineffectiveness of traditional probation supervision in reducing recidivism
Absence of effective community corrections programs
Restrictions on judicial discretionSlide4
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 Slide5
5
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) Slide6
Washington State Institute
for Public Policy Meta-analysis of 571 studies“Cautious” approachAdult EB programs cut recidivism 10-20%
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%
.Slide7
State of Maryland
Proactive Community Supervision
% of Offenders
New Arrests
RevocationsSlide8
Evidence-Based Sentencing
(EBS)The application of Principles of EBPto the sentencing process for thepurpose of reducing recidivism andholding offenders accountable
8Slide9
EBS & Purposes of Sentencing
“Just Deserts:” penalty or punishment proportionate to the gravity of the offense & culpability of the offender; accountabilityPublic Safety
Rehabilitation
Specific Deterrence
Incapacitation/Control
General Deterrence
Restitution/Restoration
9
Risk Reduction & Management Slide10
10
Three Basic Principles of EBPRisk Principle (Who)Needs Principle (What)Treatment & Responsivity
Principles (What Works & How)Slide11
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. Slide12
Potential Impact on Recidivism
Low
Low
Medium
Medium
Medium
High
High
High-
Extreme
High
Extreme
High
Recidivism rates absent treatment
Likely recidivism with effective correctional
interventionSlide13
Travis Co., Texas:
Impact of Supervision by RiskRisk Level% Re-arrest
% Change
in Rate
Pre-EBP
1/06-6/06
N = 1287
Post-EBP
7/07-10/07
N = 614
Low
26%
6%
-77%
Medium
26%
13%
-50%
High
34%
31%
-9%
Overall
29%
24%
-17%Slide14
Needs Principle
(What)
The targets for interventions should be those offender characteristics that have the most effect on the likelihood of re-offending.Slide15
Risk of Heart Attack
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 Slide16
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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 Slide17
Anti-Social Personality Pattern
Lack of self-controlRisk takingImpulsivePoor problem solvingLack of empathyNarcissistic Anger and hostilitySlide18
Non-Risk Factors
(not likely to affect future crime)Anxiety/stressLow self esteem
Intelligence
Health and physical conditioning
Mental healthSlide19
Risk/Needs Assessment
1st generation: subjective professional/clinical judgment2nd generation: actuarial, static risk factors3rd generation: actuarial, dynamic risk factors
4
th
generation: incorporate case planning featuresSlide20
Actuarial Risk/Needs Assessment (RNA)
The engine that drives evidence-based recidivism reduction strategiesMuch more accurate in predicting recidivismIdentifies dynamic risk factorsRisk is dynamic; risk scores are static
Intended to inform not replace professional judgmentSlide21
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“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.”
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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.”
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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
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*
NCSC,
Using Offender Risk and Needs Assessment Information at Sentencing
(2011), available at
http://www.ncsconline.org/csi/analysis.html
. Slide24
Amenability to Probation Supervision
Risk level (low & medium)High risk offenders may also be amenable to probation supervisionAn amenability determination requires a qualitative assessment of whether the offender can be safely and effectively supervised in the community
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Use of RNA Information in Setting Probation Conditions
Level and length of probation supervisionNature 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
25Slide26
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.
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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
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Treatment Principle
(What works)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.”
Resolution No. 12Slide29
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 Slide30
Behavioral Strategies:
Behaviors Have ConsequencesPositiveRewards/Positive Reinforcement Incentives
4:1 ratio
Negative
Swift, certain, and proportionate (fair) sanctions
Severe sanctions not necessarySlide31
Behavioral Strategies Also Involve
Role modelsDemonstrationRole playFeedback
Skill practiceSlide32
Behavioral v. Non-Behavioral
% Reduced Recidivism
K=297
K=77Slide33
Sometimes Aware
Behavior
Visible
Thoughts Feelings
Cognitive Structure
(Beliefs and Attitudes)
Beneath the SurfaceSlide34
28-50% reduction in recidivism
compared to traditional probation
T4C: Recidivism RatesSlide35
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What Doesn't Work?Non-Behavioral StrategiesShaming 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 programsSlide36
What Doesn’t Work:
Traditional Sanctions AlonePunishment, sanctions, or incarcerationSpecific deterrence, or fear-based programs, e.g., Scared Straight
Physical challenge programs
Military models of discipline and physical fitness - Boot Camps
Intensive supervision without treatmentSlide37
The Responsivity
PrincipleBoth the intervention (treatment,supervision, or interaction), and
personnel delivering the
intervention, must be matched to
certain characteristics of the
individual offender.Slide38
Responsivity Factors:
Offender CharacteristicsGenderLiteracy
Intelligence
Mental Health
MotivationSlide39
Promoting Offender Motivation
Coerced Treatment
Extrinsic Intrinsic Motivation
Relationship & Engagement
Stages of Change
Procedural Fairness
Motivational Interviewing Slide40
Stages
of Change
(Ready for
change)
ENTER
HERE
EXIT?
Relapse
Maintenance
Pre-Contemplation
(Denial
)
Contemplation
(“Yes but...”)
Action
LASTING EXIT
(Treatment)Slide41
Responses to Stages
(Ready for
change)
ENTER
HERE
EXIT?
Relapse
Maintenance
Pre-Contemplation
(Denial
)
Contemplation
(“Yes but...”)
Action
LASTING EXIT
(Treatment)
Promote Self-Diagnosis
Increase Ambivalence
Practical Strategies
Relapse Prevention
Avoid DemoralizationSlide42
Procedural Fairness
Research shows that there is improvedcompliance and motivation when theoffender 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 makerSlide43
Motivational Interviewing
Use open-ended questions Listen reflectively Develop discrepancy/dissonanceSupport self-efficacy
Roll with resistance; deflection
Avoid argument, lecture, shaming, threats, or sympathizing Slide44
Exercise: A Framework for An EB Probation Violations Policy
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? Slide45
Components of an EB Violation Policy
One size does not fit all violationsNature and severity of violationCurrent risk level
Extent of prior compliance
Criminal history
Reassessment of treatment plan
Incentives and positive reinforcement to promote future compliance
Graduated continuum of both sanctions and services
Swift, certain, and proportionate sanctions
Administrative sanctioning policy that allows for flexibility by probationSlide46
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.”
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EBS for Drug Offenders
Low Risk (Pro-Social)
High Risk (Anti-Social)
High Need
(Substance
Addiction)
Low level supervision
Intensive S/A
Tx
Compliance is short-
term goal
Abstinence is long-
term goal
Emphasize positive
reinforcement
Intensive supervision (DRUG CT)
Intensive S/A, Cog, & other
Tx
Compliance is short-term goal
Abstinence is long-term goal
Emphasize positive reinforcement
Strict monitoring/control
conditions
Low Need
(Substance
abuse or
misuse)
Low level supervision
Low level services
Most likely to respond
to sanctions
Intensive supervision
Intensive Cog & other
Tx
Compliance & abstinence are
short-term goals
Emphasize positive reinforce-
ment
and sanctions (HOPE)
Strict monitoring/control
conditions
Minimal level of incarcerationSlide48
Evidence-Based Sentencing to Reduce Recidivism & Hold Offenders Accountable
Louisiana Judicial ConferenceThe BluffsOctober 18-20, 2012
Judge Roger K. Warren (Ret.)