sentencing for public safety -

Sentencing for Public Safety

Michael Marcus, Circuit JudgeMay, 2004

What’s Wrong andHow Sentencing

Support Can Help

Sentencing is our Weakest Link

Successful law enforcement and prosecutions end with asentence, but:

P For most crimes, most sentences fail to preventanother crime by the sentenced offender;< Most of these offenders have been sentenced before

< Most will commit new crimes after we sentence them

< Many will victimize again;

P Sentencing often generally ignores the objective ofcrime reduction;

P Sentencing almost always fails any responsibleattempt at crime reduction.


Our use of programs for lesser crimes has little to do with publicsafety; although we use these programs –

Property Crimes Theft Talk

Drunk Driving Alcohol Eval & Tx

Drug Crimes Drug Treatment

Assault Crimes Anger Counseling

Sex Crimes Sex Offender Tx


We do so out of symmetry, not science, and not responsibly:

P We “fit the crime” instead of fit the offender< Programs get many offenders who will not benefit

< Programs miss many offenders who would benefit

P We avoid appropriate outcome measures< We may ask if their clients “complete the program,”

< We may ask if we get timely reports, but --

< We don’t ask if their graduates continue in crime

< We don’t cull the useless or support the effective programs


Our use of sentencing guidelines does not pursue crimereduction (these propositions apply to Oregon’s sentencingguidelines and those of most states with guidelines):

P The guidelines are not about crime reduction:< Punish according to seriousness of crime and criminal history

< Regulate use of prison resources

< Seek consistency OAR 213-002-0001

P The Guidelines don’t apply to almost 80% of crimes< They don’t apply to misdemeanors, which account for 75-80% of crime

P The Guidelines grant discretion within blocks and fordepartures, but do not focus that discretion on crime reduction

P The Guidelines don’t guide consecutive vs concurrent time

P The Guidelines don’t guide the objectives of probation violationdecisions


In a nutshell,

P We now accomplish crime reduction only by accident

P Our recidivism statistics demonstrate that the costsof the status quo are unacceptable

P We would surely do better by making a responsibleattempt to achieve best efforts at crime reduction – < Even with imperfect resources

< Even with imperfect information


Recidivism is unacceptably high:

P Locally, most jailed offenders have been jailedbefore – in the same jail, in the same year< 22 of 23 jailed for robbery in Portland July 2000 had been in the

same jail in the prior 12 months

< 4% of those booked 1995-99 accounted for 23% of bookings

P Seven of 10 in jail nationally had been jailed before;270,111 released from prison had 4.1 million priorarrests, and 744,000 arrests w/in 3 years after release

P (Lower recidivism figures ignore misdemeanors)


Examples of “Ballot Measure 11” [serious violent felony] caseswith the offender’s prior convictions; the sentence for eachprior failed to prevent the next crime:

P Arson I< Juvenile priors: Assault III, Theft

< Adult priors: DWS, PCS, Theft I, DCS, Assault IV, Escape

P Robbery I, Robbery II< Adult priors: DWS, Assault IV, DUII, PCS, Crim Misch III, ID

Theft

P Manslaughter I< Juvenile priors: Burg I, Escape

< Adult priors: Att PCS, DWS, Theft II, PCS, Escape, Theft II,Pssn Stolen Property, DCS


Conclusions so far:

P We are managing criminal careers – badly

P Sentencing that ignores crime reduction produces:< Avoidable victimizations

< Squandered correctional resources

< Tremendous fiscal waste

– Which multiplies with repeat offenders

< Tarnished respect for criminal justice

< Cruelty to all involved

Unpacking Sentencing Principles

Most sentencing purposes can be aimed at crime reduction:

P Traditional components of sentencing:< Retribution

– Just deserts

– Preventing vigilantism

– Reinforcing social values through denunciation

< Deterrence

– General: others avoid crime for fear of a similar punishment

– Specific: the offender avoids crime to avoid repeatpunishment

< Reformation - rehabilitation

– Treatment, programs, alternative sanctions

< Incapacitation

– Jail, prison or lesser restrictions (e.g., electronic bracelet)

Unpacking Sentencing Principles

Most sentencing purposes can be aimed at crime reduction:

P More recent labels:< Accountability, Responsibility, Consequences

< All are subsumed within the traditional categories

P Public safety through crime reduction can be anobjective of all:< Incapacitation

– Prevents crime during custody, at least outside of custody

< Rehabilitation

– Can and should be measured by reduced criminal behavior

< Deterrence (specific and general)

– If it works, it reduces criminal behavior

< Retribution

– May contribute to deterrence

Is Public Safety Our Responsibility?

Although some argue crime reduction should not be a purpose,Oregon law is clear:

P “Laws for the punishment of crime shall be founded on theseprinciples: protection of society, personal responsibility,accountability for one's actions and reformation” Or Const, Art I § 15

P “To insure the public safety by preventing the commission ofoffenses through the deterrent influence of the sentencesauthorized, the correction and rehabilitation of those convicted,and their confinement when required in the interests of publicprotection” ORS 161.025(1)(a)

P And the latter provision is from the 1962 Model Penal Code,adopted by many states

Should Judges Ask What Works?

P Will it lead to longer/shorter jail or prison?< Yes for some, no for others, total level of incarceration not immediately at

stake

< Use the resource most efficiently

P Will it make hearings take longer?< Not inherently,

< The biggest inefficiency is recidivism

< Crime reduction is worth the time it might take

P Will it erode “equal treatment” ?< Present equality illusory

– Ignores differences that matter, even for just deserts!

< “What works” is as workable a basis for uniformity

– Oregon law approves disparity based on susceptibility to treatment:

– “To prescribe penalties which are proportionate to the seriousness ofoffenses and which permit recognition of differences in rehabilitationpossibilities among individual offenders” ORS 161.025(1)(f)


P Will it “displace” other purposes of sentencing?< No risk of displacement; what works is largely ignored now

< Crime reduction only competes when inconsistent with other purposes, whichis rarely:

– The social drinker vehicular homicide

– The intrafamilial, opportunistic sex offender< We are free to choose to serve another purpose in these cases

P Is it only appropriate for “minor” cases?< Sentencing Support tools now give most useful data for less serious cases, but

< Total time, whether concurrent or consecutive sentences (even mandatoryminimums), whether to revoke probation –

– Any decision may result in harm we could have prevented

– The stakes are highest with the most serious crimes

– We need to seek best practices in the entire range of crimes,and then prioritize based on resources and values


P Should judges do “Risk Assessment”?< We may be ill equipped, but we’re doing it anyway now;

< False Positives - offenders imprisoned unnecessarily

< False Negatives - offenders released who commit new crimes

P Opponents of risk assessment miss the point:< A demonstrated risk of harm, coupled with present conviction,

is justification for incapacitation

< Certainty is not required to justify risk reduction

P Sentencing without assessment now produces:< Higher rate of false positives

< Higher rate of false negatives

P If we don’t make our best efforts, we can onlyproduce worse outcomes for public safety


P Whether or not we accept responsibility –< Our decisions necessarily have public safety outcomes

< Our choices will or will not reduce the likelihood of anoffender’s future criminal behavior

P Unless we’re doing our best by accident – < Not trying yields victimizations we could avoid

P Many judges try to achieve crime reduction now< But they have little or no useful information to guide their

choices

< And receive little or no help from participants in the process

P We are more likely to accomplish crime reduction– With information

– With the participation of advocates

Crime Reduction: What We Know

P Incapacitation - Most dependable crime reduction< But only during incarceration

< For some offenders recidivism increases after release

P Treatment< The best achieves a 30% reduction in recidivism from some

offenders

< Some doesn’t work at all on any offenders

P Crime Prevention - these work better to reduce crime:< High school completion

< Parenting Education, Early Infancy Home Visitation

< Primary response strategies

– Multisystemic, Interdisciplinary Intervention

P But we still drastically need Smarter Sentencing: < We see the repeaters – repeatedly


P Recidivism after alternative sanctions is lower than after jail sanction

– Not statistically significant for:– Med risk person offenders

– High and med risk sex offenders

P Community sanctions have lower reconviction rates than jail sanctions

P Work crew/community service has lowest rates for high/medium riskoffenders

P High risk offenders have similar rates of reconviction regardless ofhow long they spend in jail

P Medium risk offenders: the longer the term, the higher the recidivism

P For all crime types, longer jail stays are associated with higherrecidivism after release

Oregon Department of Corrections Report to Legislature 2003

regarding community sanctions:


P “Appropriate Treatment” reduces recidivism by 30%< Appropriate = evidence-based modalities aimed at multiple,

properly assessed criminogenic factors, with monitored staff andenforced treatment practices

P “Inappropriate Treatment” increases recidivism by 6%

P Traditional punishments increase recidivism by 7%

P But these results are incomplete:< They measure performance after release

< They ignore the crime reduction impact of incapacitation

US Department of Justice, National Institute of Correctons,reports (based on review of 154 “controlled studies”):

What Works includes Jail/Prison

Time in jail or prison Time÷

Day ofSentencing

Probation/post prisonsupervision

Proponents focus oncrime reduction here

Opponents focus onlyon increased recidivism

here

But this is where crime reductionmatters to public safety

Proponents and Opponents of jail and prison ignore eachothers’ useful information:

For most crime, there’s little time

As a practical matter, there is little jail or prison time available forthe vast majority of crimes:

P 75-80% are misdemeanors, for which the lawprovides a maximum of one year jail< In practice, far less is available because jails are full

P The majority of felonies are capped by sentencingguidelines at probation, and most below 13, 19 or 36months< More than half are C felonies

< Mandatory minimums apply to only a small portion of cases

Multnomah County’s Sentencing Support Tools:

Help us focus on what works best on which offenders:

P Smart sentencing involves doing our best to reducecrime by:< Doing that which works best

< On offenders like the one being sentenced

P Nothing works on all offenders

P Sentencing support tools show us outcomes< For similar offenders

< Sentenced for similar crimes

< With outcomes measured by crime reduction


We use data warehouse technology, which gathers data fromvarious operational databases, makes it mutually intelligible, andstructures it in one place to facilitate queries:

Courts

DOC

District Attorney

Extract

Transfer

Transform

Jail

Police


960744942

A user typically enters a case number (which identifies a specificoffender and a case) . . .

The user then selects the crime for which the offender is beingsentenced

Theprogramofferscount 1,

all othercounts,

and allothercrimesknown toOregon(or tolocal) law


The slide that shows the results:

P The bar chart on the left shows all sentencing elementsimposed on similar offenders for similar crimes:< Arranged with most frequently used to the left, least to the right

< Bars only appear for 30 or more incidents

< Elements include ranges of jail days, forms of supervision, prison,alternative sanctions, programs, etc, – all measured by the samestandard: crime reduction after sentencing

P All data is displayed below the bar chart in a table

P The right side displays the variables in use:< What is deemed a “similar crime”

< What measure of recidivism is being used

< What is deemed a “similar offender”


The next slide shows the results:

P The red and green arrow lines on the next slide show:< The user can access and modify the definition of “similar crime”

by clicking the “charge” tab– Modifiable from a specific statute to all crimes, in many steps

< The user can access and modify the measure of recidivism byclicking the “recidivism” tab– Modifiable both in time (six months and up) and nature of recidivism (type

of crime, seriousness of crime, conviction or arrest)

< The user can access and modify the definition of “similaroffender” by clicking the “profile” tab– Modifiable in terms of six flavors and five levels of crime, age, gender, and

ethnicity

P The user can immediately generate a new resultreflecting the modified variables

This slide shows results for whitemales, 18-30, sentenced for any crime,with low or moderage drug priorsand low or moderate property priors,measured by an absence of aconviction for any crime in five years;the highest bar represents prison, thetop of the scale is 50%;

This slide shows results for the samecohort as the last, but success is nowmeasured by an absence of aconviction for any violent crime infive years; the highest bar represents4-10 days jail with no probation, thetop of the scale is 100%;

This slide shows results for a cohortof females 26-45, sentenced for anycrime, with moderate to severeproperty priors, measured by anabsence of a conviction for anyproperty crime in five years; thedotted blue line is at the height of thebar representing prison, the top of thescale is 60%; this suggests thatseveral sanctions have correlated withsuccess at a higher level than prison.

Multnomah County’s other smart sentencing innovations:

P We are collaborating with our probation departmentto focus probation violation reports and hearings inthe same direction;

P We are exploring ways to inject “what works” intoeach of these regular considerations:< Departures under the sentencing guidelines

< Consecutive vs. Concurrent sentencing decisions

< Decisions whether to transfer juveniles to adult court

< Probation violation disposition considerations

< Plea negotiations

P We’ve added a box to the order for presentenceinvestigations . . .

The court further directs that the Presentence Report include thefollowing:

9 Analysis of what is most likely to reduce thisoffender’s future criminal conduct and why, includingthe availability of any relevant programs in or out ofcustody

T

For further information

including access to the user manual, more readable screenshots, and articles about smart sentencing:

Http://www.SmartSentencing.com

sentencing for public safety -

Documents