EVIDENCE-BASED PRACTICESREDUCING RECIDIVISM TO INCREASE

PUBLIC SAFETY

HON. J. RICHARD COUZENSJudge of the Placer County Superior Court (Ret.)

HON. WILLIAM RAY PRICE, JR.Chief Justice, Missouri Supreme Court

The Need ForEvidence Based Sentencing

Chief Justice William Ray Price, Jr.

• Since the 1980’s we attempted to incarcerate our way out of crime and illegal drug use.

• The problem is, it didn’t work.

• We were tough on crime.– Three strikes and your out.– Throw away the key.– The war on drugs

• But, we were not smart on crime.

• Let’s look at the numbers.

Our Criminal Sentencing Problem

Total Correctional Population Total Pop. Behind Bars1982 2,194,000 1982 612,0002008 7,308,200 2008 2,304,000

Cost of Increased Incarceration• State correctional spending increased fourfold:

1988 $11.7 billion2008 $47.3 billion

• “What we are seeing today is a growing recognition that our approach to dealing with convicted criminals is simply too costly. Not only is the price too high, but the benefits are too low. The states spend an estimated $50 billion on corrections annually, and the growth of these outlays over the past 20 years has outpace nearly all other essential government services.” Joan Petersilia, Stanford Law School

Incarceration and Crime Rates

U.S. Crime Volume 1982-2008

• Violent Offenses1982 1,322,3902008 1,382,012

• Property Offenses1982 11,652,0002008 9,768,000

• Drug Offenses1982 676,0002007 1,841,200

The War on Drugs

• Drug Arrests– 1980 580,900– 2007 1,841,200

• As Percentage of All Arrests– 1980 5.5%– 2006 13.14%

• Prison Population– 1982 612,000– 2008 2,304,000

↓1,692,000 more people

behind bars

Drug Use Drives CrimeAnd Fills Prisons

Missouri New Prison Admissions (FY2004)

– 1,239 13% Drug Convictions

– 2,037 20% Probation for DrugOffense Revoked

– 4,042 41% Other Crimes But Active____ Substance Abuse

74% of all new admissions are related to illegal drug use

• The key measurement of the failure of our incarceration strategy is the recidivism rate.

• Too many people, keep coming back.

U.S. Recidivism RatesFor all offenders (released 1994):• Rearrest within 3 years:

67.5%• Reconviction within 3 years:

46.9%

For drug offenders (released 1983 vs. released 1994):

• Rearrest rate increased50.4% 66.7%

• Reconviction rate increased35.3% 47%

• The Good News About Our Failed Incarceration Based Policies Is That We Have

Learned a Better Way

• Evidence Based Sentencing Practices• Focus On Results: Lowering Recidivism

• At a Lower Cost

• Evidence Based Practices

• Usually Reserve Prison Sentences for Violent and Habitual Offenders, and

• Combine Strict Judicial Supervision, Behavioral Modification, and Treatment to Non-Violent Offenders Outside of Prison

• Driven By Evidence Based Proven Strategies

• The Key of Evidence Based Practices is to Assess the Risks and Needs of Each Offender and Match the Most Effective and Least Expensive Strategy to Change his or her Behavior.

• Usually, This Includes Swift Certain Sanctions For Bad Behavior. Rewards For Good Behavior. And Treatment, When Necessary

• Data is Collected and Analyzed to Determine Best Practices

• Evidence Based Alternatives Are Available In Four Forms

• Diversionary• Probationary• Prison• Reentry

• Diversionary Practices Are Pre-sentence

• They May Be Pre or Post Plea or • With Stipulation of Facts

• They Avoid a Record of Conviction

• Drug Courts, DWI Courts, Mental Health Courts, Veterans Courts are Typically

• Diversionary

• They Usually Include Treatment

Probationary Practices are Post Sentence

• HOPE is an Example of a Post Sentence Alternative

• HOPE Avoids/Delays Incarceration By Using Enhanced Probation Services

• Hope Replaces Revocation with Swift Certain Lesser Local Sanctions

• Hope can also apply to Parole

• Treatment May or May Not Be Included

• Incarceration Can Be Evidence Based

• Personal Improvement / Not Years Served • Is the Key

• Education• Job Skills• Sobriety

• Prison is Expensive

• Prison Removes the Offender From Job and Family

• Without Drug, Educational, Behavior Modification Programming, Prison Does Little More Than Move an Offender From Normal Society to a Society of Criminals

• Generally, Prison Should Be Reserved For Dangerous or Habitual Offenders Who do not Respond to Other Strategies

• Reentry Programs Focus on the Need to Help the Prisoner Rejoin Society

• Parole Revocation Decreases Significantly With Passage of Time After Release

• Between 1 and 15 Months After Release The Chance of Arrest Drops by 40%

• Reentry Programs are Usually Conducted By Parole Boards or Departments of Corrections, although Courts are Becoming More Active in

this Field

Good News about Drug Courts

Numerous studies show that:

• Drug court participation results in lower recidivism rates (5 studies 8 – 26%)

• Drug courts result in substantial cost savings (6 studies)

• Drug Courts are Evidence Based Treatment Alternatives For Addicted Offenders

• Drug Courts Combine•

• Treatment• Judicial Supervision

• Behavioral Modification • Rewards and Swift Certain Sanctions

Missouri Drug Courts Cost Substantially Less Than Incarceration

Costs (per inmate per year)

Incarceration $16,832

Drug Court $3,000 - 5,000

Drug Courts Provide Savings Over Probation

Case Study: St. Louis City Adult Felony Drug Court

– Initial cost = cost of probation + cost of treatment

– In two years: $2,615 net savings

– In four years: $7,707 net savings

For every $1 spent $6.32 of savings

MO Recidivism Comparison

Recidivism Rates (rearrest within two years)

• Prison 41.6%

• Drug Court Graduates 10%

(New JIS Tracking: 18-month Graduates 4.6%18-month Terminations 15.2%)

• A real life example of recidivism was the 35 year old St. Joseph man arrested for drunk driving June 16, 2010, just three hours after he was released from prison.

• Other Evidenced Based • Sentencing Alternatives

• Adult Felony Drug Court• DWI Court• Family Drug Court• Veterans’ Court• Mental Health Court• Reintegration/Reentry Court

• All combine evidence based treatment with intense supervision

• “I believe we can take an approach that is both tough and smart…[T]here are thousands of nonviolent offenders in the system whose future we cannot ignore. Let’s focus more resources on rehabilitating those offenders so we can ultimately spend less money locking them up again.” Gov. Rick Perry, Texas

• Requirements for Evidence Based Sentencing Practices

• Assessment Tool• Training• Data Collection• Evidence Based / Not Intuition Based

Decisions

The Bottom line• The quality of justice is not measured by the length of

sentence.

• One size, one strategy, does not fit all offenders.

• Breaking the cycle of addiction and crime requires scientific evidence based treatment and the development of job skills and intense supervision, not always prison walls.

• Results matter. Cost matters.

SOURCES

NADCP• NCSC• PEW

• The Box Set paper by Roger Warren entitled, Evidence-Based Practice to Reduce Recidivism: Implications for State Judiciaries;

• Curriculum materials for Evidence-Based Sentencing, http://www.ncsconline.org/csi/education.html;

• Additional information about training in Evidence-Based Sentencing, http://cjinstitute.org/about/services/trainings/; and

• Virginia Pretrial Risk Assessment Instrument materials, http://www.dcjs.virginia.gov/corrections/riskAssessment/

• nadcp.org

EVIDENCE-BASED SENTENCING:HOW IT WORKS

The Problem…..

• No money–No sustainable state funding of probation–Under-funding & large caseloads–High recidivism & revocation rates

• Approximately 52,000 sent to prison–20,000 (40%) on revocations–$1 Billion annual cost–70% commit crimes after release

The Challenge….

• Reduce recidivism where ever possible• Lower state prison and parole costs • Increase public protection through reduction

in recidivism• Goal is to change anti-social behavior, not

temporary control while on probation

Purposes of Sentencing…

1. “Just Deserts:” punishment proportionate to offense and culpability

2. Public Safety–Rehabilitation– Specific Deterrence– Incapacitation/Control–General Deterrence

3. Restitution/ Restoration of community

Risk Reduction & Management

“Sentencing is a complex topic that needs to be approached with humility, an open mind and common sense.”

Hon. Michael A. WolffJudge, Supreme Court

of Missouri

What it is…..and what it is not…..

• EBP is …–More information about offender–One added tool to use among many–Better management by probation–Overall reduction in recidivism

• EBP is not …– Telling judges how to sentence–Replacing independent judgment

Where do the courts fit in?

• This is a reasoned, methodical attempt to apply validated principles of case management to the criminal justice system

• Judges are being asked to support probation in its effort to implement EBP

• Judges are being asked, at very least, to do no harm

What is EBP?

“[S]upervision policies, procedures, programs, and practices demonstrated by scientific research to reduce recidivism among individuals under probation, parole or postrelease supervision.”

P.C. § 1229(d)

• Professional practice supported by the best research evidence:–Rigorous evaluation (i.e., use of control

groups–Replicated in multiple studies– Systematic review (meta-analysis)

Where does it come from?

• Washington State Institute for Public Policy• Meta-analysis of 571 studies• “Cautious” approach – discounted results• Adult EB programs reduce recidivism by 10-

20%• Moderate increase in use of EBP would avoid

two new prisons, save $2.1 billion, and reduce crime rate by 8%

Principles of EBP…..

• Risk Principle (Who)• Needs Principle (What Factors)• Treatment Principle (What Works)

Risk Principle (Who)

• The level of supervision or services should be matched to the risk level of the offender; i.e., higher risk offenders generally should receive more intensive supervision and services

• “Risk” refers to the risk of re-offense, not the relative seriousness of either the crime committed or the potential re-offense

Potential Impact on Recidivism

Low

Low

Medium

Medium

Medium

High

High

High-

Extrem

e

High

Extrem

e High

Recidivism rates absent treatment

Likely recidivism with effective correctional intervention

Travis Co., Texas: Impact of Supervision by Risk

Risk Level % Rearrest % Change in RatePre-EBP

1/06-6/06N = 1287

Post-EBP7/07-10/07

N = 614Low 26% 6% -77%Medium 26% 13% -50%High 34% 31% -9%Overall 29% 24% -17%

Needs Principle (What Factors)

The targets for intervention should be those offender characteristics that have the most effect on the likelihood of re-offending.

Static: Unchanging factors from pastDynamic: Changeable factors in future

Heart Attacks…

• Elevated LDL and low HDL• Smoking• Diabetes• Hypertension• Abdominal obesity• Psychosocial (stress or depression)• Failure to eat fruits and vegetables daily• Failure to exercise

Dynamic Risk Factors…

• Anti-social attitudes• Anti-social friends and peers• Anti-social personality pattern• Family and/or marital factors• Substance abuse• Education• Employment• Anti-social leisure activities

In light of what we know now…

“What is done [today ] in corrections would be grounds for malpractice in

medicine”

(2002) Latessa, Cullen, Gendreau,“Beyond Correctional Quackery…”

LOW RISK MEDIUM RISK HIGH RISKLowest reporting requirements

Increased reporting requirements

Highest reporting requirements

No need for intensive discretionary programs

Discretionary programs depending on determination of need

Use of surveillance programs, & most intensive treatments

Caseload500-1,000

Caseload65-75

Caseload10-15 Extremely High Risk; 65-75 High Risk

Actuarial Risk/Needs Assessment

• Engine that drives EBP• Validation & reliability• Generalized v. specialized tools• Proprietary v. non-proprietary• Intended to inform judgment• Re-assessment with changes

Use of assessment…

• Helps identify appropriate level of supervision and services

• Helps identify dynamic risk factors and appropriate conditions of probation

• Helps determine amenability to probation supervision and treatment

• Not to be used to determine the severity of the penalty

Probation conditions

• Target most critical dynamic risk factors– Treatment conditions – successfully

complete–Monitoring/control conditions – drug tests,

EMP• Framework for case plan• Be realistic and flexible with plan• Avoid plea bargaining specific conditions

Treatment Principle (What Works)

The most effective services in reducing recidivism among higher risk offenders are cognitive behavioral interventions based on social learning principles.

Social Learning:Behaviors Have Consequences

Positive Negative• Rewards • Swift, certain, and • Reinforcement proportionate (fair)• Incentives • Severe sanctions not necessary

What also works…

• Role modeling• Demonstration• Role play• Feedback• Skill practice• Motivational interviewing

Behavioral v. Non-Behavioral%

Red

uce

d R

ecid

ivis

m

K= 297

K = 77

What doesn’t work….

• Shaming programs• Drug education programs• Prevention classes based on fear or emotion• Non-action oriented group counseling• Bibliotherapy• Freudian approaches

• Vague, unstructured rehab programs• Self esteem programs• Non-skill based education programs• Scared Straight• Physical challenge programs/boot camps• Intensive supervision without treatment

Use of coercion….

• Coercion is extrinsic• Can be effective in forcing entry into and

completing program• Goal is to achieve intrinsic motivation• Rarely productive to threaten, lecture, shame,

argue, or sympathize• Procedural fairness promotes compliance

Probation violations…

• One size does not fit all violations–Nature and severity of violation– Extent of prior compliance–Risk re-assessment

• Swift, certain and proportionate sanctions• Graduated sanctions and services• Incentives and reinforcement to avoid VOP’s• Relapse is natural

• Administrative sanctions providing probation with maximum flexibility

• Penal Code, § 1203.2(b) –Def may agree to modification in writing

without court appearance• How much risk should the community accept?

Proper Use of Assessments

• May use low-risk score to grant probation• Should not use high-risk score to deny

probation• May use dynamic risk factors in determining

whether to grant or deny probation• All information should always be used along

with all other available sentencing information

But there still is no money!

• Will provide judges reliable and relevant information for sentencing

• Principled way of making management decisions – data to back up

• Builds data base of needs • May identify programs and strategies that

don’t work

• Shift services to people most in need• EBP did not create these issues; it only

exposed them and has offered a viable solution

• …and it is the right thing to do