1. EVIDENCE-BASED PRACTICES
REDUCING RECIDIVISM TO INCREASE
PUBLIC SAFETY
HON. WILLIAM RAY PRICE, JR.
Chief Justice, Missouri Supreme Court
Materials
Summary of Evidence-Based Practices
HON. J. RICHARD COUZENS
Judge of the Placer County Superior Court (Ret.) 1

2. The Need For Evidence Based Sentencing
Chief Justice William Ray Price, Jr.

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

4. 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.

5. Let’s look at the numbers.

6. Our Criminal Sentencing Problem
Total Correctional Population Total Pop. Behind Bars
1982 2,194, ,000
2008 7,308, ,304,000

7. Cost of Increased Incarceration
State correctional spending increased fourfold:
1988 $11.7 billion
2008 $47.3 billion

8. “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

9. Incarceration and Crime Rates

10. U.S. Crime Volume 1982-2008 Violent Offenses Property Offenses
,322,390
,382,012
Property Offenses
,652,000
,768,000
Drug Offenses
,000
,841,200

11. The War on Drugs Drug Arrests As Percentage of All Arrests
,900
2007 1,841,200
As Percentage of All Arrests % %
Prison Population
,000
2008 2,304,000 ↓
1,692,000 more people
behind bars

12. Drug Use Drives Crime And Fills Prisons
Missouri New Prison Admissions (FY2004)
1, % Drug Convictions
2, % Probation for Drug
Offense Revoked
4, % Other Crimes But Active
____ Substance Abuse
74% of all new admissions are related to illegal drug use

13. The key measurement of the failure of our incarceration strategy is the recidivism rate.
Too many people, keep coming back.

14. U.S. Recidivism Rates For 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 increased
50.4%  66.7%
Reconviction rate increased
35.3%  47%

15. The Good News About Our Failed Incarceration Based Policies Is That We Have Learned a Better Way

16. Evidence Based Sentencing Practices
Focus On Results: Lowering Recidivism
At a Lower Cost

17. 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

18. 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

19. Evidence Based Alternatives Are Available In Four Forms
Diversionary
Probationary
Prison
Reentry

20. Diversionary Practices Are Pre-sentence
They May Be Pre or Post Plea or
With Stipulation of Facts
They Avoid a Record of Conviction

21. They Usually Include Treatment
Drug Courts, DWI Courts, Mental Health Courts, Veterans Courts are Typically
Diversionary
They Usually Include Treatment

22. Probationary Practices are Post Sentence
HOPE is an Example of a Post Sentence Alternative

23. 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

24. Incarceration Can Be Evidence Based
Personal Improvement / Not Years Served
Is the Key
Education
Job Skills
Sobriety

25. 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

26. 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%

27. Reentry Programs are Usually Conducted By Parole Boards or Departments of Corrections, although Courts are Becoming More Active in this Field

28. 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)

29. Drug Courts are Evidence Based Treatment Alternatives For Addicted Offenders

30. Behavioral Modification Rewards and Swift Certain Sanctions
Drug Courts Combine
Treatment
Judicial Supervision
Behavioral Modification
Rewards and Swift Certain Sanctions

31. Missouri Drug Courts Cost Substantially Less Than Incarceration
Costs (per inmate per year)
Incarceration $16,832
Drug Court $3, ,000

32. 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

33. MO Recidivism Comparison
Recidivism Rates
(rearrest within two years)
Prison %
Drug Court Graduates 10%
(New JIS Tracking: 18-month Graduates 4.6%
18-month Terminations 15.2%)

34. A real life example of recidivism was the 35 year old St
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.

35. Sentencing Alternatives
Other Evidenced Based
Sentencing Alternatives

36. 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

37. “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

38. Requirements for Evidence Based Sentencing Practices
Assessment Tool
Training
Data Collection
Evidence Based / Not Intuition Based Decisions

39. 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.

40. 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,
Additional information about training in Evidence-Based Sentencing, and
Virginia Pretrial Risk Assessment Instrument materials,
nadcp.org

41. EVIDENCE-BASED SENTENCING:
HOW IT WORKS

42. 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
California Probation has been historically underfunded
Only state in nation without a consistent, state level of funding
In the last 15 years there has been a steady erosion of funding – developed into a landslide in the last five years – entirely at whim of Boards of Supervisors
Yet 82% of all offenders are placed on probation – about 310 k – but more than half of those are banked
Nationally about 33% fail to successfully complete probation; California’s rate is at least 10% higher than that
As revocations increase, so do the costs - $1,250/ yr for probation vs. $49,000/yr for prison
While prison incapacitates, it does little to prevent recidivism because about 70% of persons released from prison commit new crimes within three years - can a system be said to work if there is a 70% failure rate and at an expense that matches the cost of sending your child to a major university?

43. 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
We need to keep public protection as our primary goal
We need to do a better job at ensuring that offenders successfully complete probation and therefore stay out of state prison.
Even if we get only the “low hanging fruit,” the potential savings are significant
  Reducing recidivism is one of the best ways of increasing public safety – using our good judgment, and paying attention to EBP, we can accomplish that
The goal is to reduce recidivism through actual change of the offender's anti-social (or criminal) behaviors – not temporary control of the offender while on probation 43

44. 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
LET’S GET SOMETHING CLEAR FROM THE OUTSET:
There are many legitimate reasons why we sentence:
Just deserts: Call it accountability or whatever, every crime deserves a level of response from society – a just, proportionate sentence that accounts for the level of the crime, the def’s involvement, and the def’s history. Murders generally have a low recidivist rate, but usually they justly deserve a long period in custody
Public safety: achieved through rehabilitation, specific deterrence to the individual offender, and a level of incapacitation or control. There is also general deterrence by showing others what happens to offenders: “the message”
Restitution/ restoration in community – restorative justice – a worthy and important goal but not directly related to recidivism
We are focused in this discussion on the first three points under public safety - where outcomes can be changed by looking at different case management practices
Red: This purpose looks back – to static factors – things we can’t change – things the def did
Green: These factors look forward – to dynamic factors – things we can change – things the def can do
We are dealing with people you determine are suitable for probation and how we can best make them succeed
Risk Reduction & Management

45. “Sentencing is a complex topic that needs to be approached with humility, an open mind and common sense.” Hon. Michael A. Wolff Judge, Supreme Court of Missouri
:15

46. 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
It is important to understand what EBP is and what it is not:
It is:
A system of case management that eventually will give more, quality information about the offender so that sentencing decisions will be more effective [risk/needs assessment]
It is a tool – you have other tools, including your “gut:” this is one more tool that can be used at sentencing
It will permit probation to properly allocate limited resources where they will do the most good
The courts and probation working cooperatively will significantly reduce recidivism and increase the flow of funds to probation to provide more services
It is not:
Telling judges how to sentence – you will still send people to prison when appropriate – the just deserts of their crimes
A substitute for independent judicial discretion – you will not always agree with a case plan – you will consider many factors, only one of which is rehabilitation – the need to use good judgment will not change

47. 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
P.4
We currently have a large body of legitimate scientific study into what works and what doesn’t - EBP is all about putting this knowledge to work for us
This is an emerging area – probation depts have been using this information in varying ways internally for some time – the science is not new – California is just one of the last states to acknowledge it – probation depts, however, are at different stages of implementation - we are in a 5 – 10 yr process of change
What judges do can either facilitate or complement what is being done by probation, or judges can hinder these efforts, even to the extent of doing affirmative harm to the individual def
To barrow a phrase from medicine: we are asked to do no harm

48. 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)
P.5

49. 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?
Requirements for “gold standard” scientific research

50. 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%
Evidence-based Practices, by definition, come from two decades of legitimate scientific study into the effect of criminal justice practices on criminal behavior
An example is the State of Washington – it was considering building two new prisons – Legislature commissioned a full study into the issue to determine what made the most sense.

51. Principles of EBP….. Risk Principle (Who)
Needs Principle (What Factors)
Treatment Principle (What Works)
P.5
The discussion of EBP breaks down into three fundamental principles:
Risk principle – who we should target with these programs to achieve the highest reduction in recidivism
Needs principle – what are the factors/ characteristics of the def that need to be addressed – we will want to target the ones that are most likely to reduce recidivism
Treatment principle – what treatment strategies are supported by the scientific research – what works
1:15

52. 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
Such a profound statement; a “well, duh” moment – what a thought, giving more services to the higher needs offender!
In the past, we have done just the opposite – how many of you regularly send low-level offenders into programs? And why not? We get good reports about how they perform – programs love them – probation officers covet them because they are easy to manage and do what they are told
None of us want the difficult offender – the high risk person – they frequently don’t do what we want, they frustrate us, and when they violate probation it may embarrass us
But what does the research show? [next slide]

53. Potential Impact on Recidivism
Recidivism rates absent treatment
Likely recidivism with effective correctional intervention
This slide shows data from several studies combined.
The green is without any treatment at all; the blue is with appropriate treatment and intervention
It shows that the low-level offender actually does worse than with no intervention at all
mixing adult high level offenders with entry level offenders – the good does not rub off on the bad, it is the reverse – exchange of drug recipes?
taking people away from employment
driving up costs to pay for programs
Extremely high level offenders also tend to do worse after intervention – the sociopaths simply learn better ways to commit crimes
But look at the medium to high risk offenders – there is significant response to appropriate intervention
Low Medium
Extreme High
Medium
High- Extreme High
Medium High
Low
High

54. Travis Co., Texas: Impact of Supervision by Risk
Risk Level
% Rearrest
% Change in Rate
Pre-EBP 1/06-6/06 N = 1287
Post-EBP 7/07-10/07 N = 614
Low
26% 6%
-77%
Medium
13%
-50%
High
34%
31%
-9%
Overall
29%
24%
-17%
Another example of the application of EBP is Travis County, TX (Austin)
Before EBS high and low risk offenders treated about the same, with emphasis on education and treatment for low risk offenders
After EBS the treatment of low risk offenders: nothing at all – banked them unless new offense
Spent more time actively engaging the higher risk offenders in treatment, with significant success
“Low risk” is not “no risk” – but there is a difference between “low risk” and “high risk,” such that the two groups need a different allocation of probation resources
© National Center for State Courts

55. Needs Principle (What Factors)
The targets for intervention should be those offender characteristics that have the most effect on the likelihood of re-offending.
P.6
Another of those “well, duh” moments – it is intuitive as an abstraction, but not always easy to implement in our current criminal justice system. 
“Risk Factors:” those characteristics of an offender that affect the likelihood of recidivism.
There are two types of risk factors [both can predict future criminality] :
Static: characteristics of an offender that affect the likelihood of recidivism and that are constant or historical and cannot be changed, factors such as: age, gender, number of prior arrests, prior convictions, age at first arrest, and alcohol/ substance abuse history.
Dynamic: characteristics of an offender that affect the likelihood of recidivism and that are subject to change through appropriate intervention.
 To reduce risk of committing a crime, must focus on those characteristics that affect the likelihood of committing a crime (criminogenic) and that are changeable (dynamic). Those characteristics are referred to as “dynamic risk factors” or “criminogenic needs.” [Psychobabble!!!]
Static: Unchanging factors from past
Dynamic: Changeable factors in future
1:30 - break

56. 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
Analogy – these are the commonly understood dynamic factors or characteristics of a person that would predict a future heart attack - they are roughly in order of seriousness, highest first
I hope you don’t have all of them, because if you do, you are 130 times more likely to have a heart attack than a person with none of them.
But while all of these are factors, the top two risk factors predict 2/3 of all heart attacks
So what would you think of your doctor if he or she gave you a terrific exercise program, but did nothing to treat your high cholesterol level? You would consider it malpractice!

57. 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
These are ranked, most serious first
Attitudes: rationalization, minimization, no responsibility, always someone else’s fault, everyone does it, others don’t get caught, bad luck, law or law enforcement unfair
Personality: impulsive, risk-taking, lack of self-control, lack of problem-solving skills, narcissism, lack of empathy, anger & hostility
Above the line are the primary causes
Notice anything about those causes above the line and below the line? Don’t we tend to treat the lower four more often than the upper four?
If there are causes above and below the line, should not ignore the less serious, but should address both
Lack of employment is serious, but is not a primary cause: example: recent economic crash cost hundreds of thousands of jobs, but crime rate went down – because most people have pro-social attitudes and started looking for a new job
If we only deal with the factors below the line, aren’t we committing malpractice?

58. 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…”

59. LOW RISK MEDIUM RISK HIGH RISK
Lowest 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
Caseload 500-1,000
Caseload 65-75
Caseload Extremely High Risk; High Risk
General relationship between risk assessment and
the conditions of probation
reporting requirements
programs/treatment.
This is a conceptual diagram. The specific conditions would depend on the criminogenic needs identified for that particular individual.
The idea is that effective assessments “drive” conditions, which then “drive” the supervision practices, which then determine appropriate caseload size.

60. 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
Up to now we have used our “gut” in sizing up a def and his/her needs. Research has shown, however, that the use of a proper actuarial instrument is about 8 times more accurate
The risk/needs assessment helps us determine who should get services and what should be addressed; it helps probation allocate its available resources
The assessment must be validated: does accurately measure what we want; is it reliable: if two PO’s do an assessment, they should get the same answer – training is critical
Some tools are specialized (DUI, sex crimes, DV) – EBP most often uses generalized tools
Some tools are proprietary (LSI-R), some are govt (OST)
Again – these tools are to aid professional judgment, not to replace it
Risk is dynamic – it changes – ideally there should be a reassessment with changes in the def’s risk level, such as when there is a new violation -- can adjust probation terms to meet dynamic risk factors
2:00

61. 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
It is important to understand that no actuarial tool will tell you whether a person will or will not reoffend. What it will tell you, in broad-brush fashion, that people with similar characteristics have a certain level of risk of reoffending.
EBP is trying to improve the odds – so that people with a certain set of characteristics will have a lower chance of reoffending. While we can’t predict what an individual will do, we can do the next best thing, which is to improve the performance of a similar group of individuals
At times a PO will want to override the assessment – this is both natural and proper. It is expected that the results will be over-ridden about 10% of the time

62. 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
Two basic conditions of probation: treatment conditions where the court/probation establish an individualized case plan – one size does not fit all; and monitoring or control conditions to assure plan is carried out; both reduce recidivism – both developed by PO with R/N assessment
To extent possible, and in consideration of legal mandates, plan needs to be flexible for probation – allows PO, armed with the risk needs assessment, to meet changes in dynamic risk factors and avoids need to return to court
PO/court should avoid tendency to “load up” conditions, particularly ones that don’t address needs – drives up cost, wasteful and breeds disrespect of court orders
Courts must try to avoid plea bargaining specific conditions of treatment which may run counter to the def’s actual needs – waists time, resources, and builds potential disrespect of the court’s orders by both def and PO
Do no harm -- if you don’t have the data, how can you properly order specialized conditions?

63. Treatment Principle (What Works)
The most effective services in reducing recidivism among higher risk offenders are cognitive behavioral interventions based on social learning principles.
P.7
Again, psychobabble! But here is the point:
Behavioral change, compliance with probation and court orders, and ultimately self-management is best achieved by application of social learning principles.
We learn over time through a process of social consequences, both positive and negative: carrots and sticks, rewards and punishments
Our objective is to achieve change because of intrinsic factors, not just because of extrinsic forces
2:30

64. Social Learning: Behaviors Have Consequences
Positive Negative • Rewards • Swift, certain, and • Reinforcement proportionate (fair) • Incentives • Severe sanctions not necessary
Studies have shown that criminal offenders generally respond to positive consequences better than negative – typically positive should out-number negative 4:1
Criminal attitudes respond to rewards: they think in terms of the benefits they get from crime (the “high”) – sanctions are often viewed as simply the price of doing business
Benefits can take many forms (no, you don’t have to “hug a thug”) such as congratulations from the bench, fewer meetings with PO, no EMP, community service, day reporting
But every violation must have a swift, certain and fair sanction
Not to respond is approving bad conduct – but it needs to be part of a clear system of graduated sanctions, many simply imposed by probation, some imposed by the court – every violation does not require state prison as a consequence – if lower recidivism is goal, swift, certain and fair are more effective than long periods of custody.

65. What also works… Role modeling Demonstration Role play Feedback
Skill practice
Motivational interviewing
In addition to the appropriate handling of sanctions, there are additional behavioral techniques that work – relax – most of these are properly done by the PO – but you need to be aware of them:
Role modeling: generating respect – judges can do this in the way they conduct themselves on the bench
Demonstration: not just talking the talk, but doing what you say through consistency and fairness
Role-playing: demonstrates life skills
Feedback: both positive and negative – important role for judge
Practice: finding opportunities in programs or with probation to practice the skills that are learned
Motivational interviewing: open-ended questions, listen reflectively, support self-efficacy, deflect resistance, don’t argue
Many people don’t have the ability to do what we ask of them – these practices help deal with that problem

66. Behavioral v. Non-Behavioral
% Reduced Recidivism
K = 77
Say what you will about the behavioral techniques, scientific studies have repeatedly demonstrated that behavioral techniques are clearly superior than non-behavioral techniques in securing fundamental change.
The chart shows a meta-analysis of 374 tests of the effects of various interventions on recidivism – here programs with a behavioral component were six times more effective in reducing recidivism than non-behavioral programs.
K= 297
© National Center for State Courts

67. What doesn’t work…. Shaming programs Drug education programs
Prevention classes based on fear or emotion
Non-action oriented group counseling
Bibliotherapy
Freudian approaches
Shaming: anything that holds people up to ridicule or embarrassment
Drug education: if only lecture and “awareness”
Prevention based on fear/emotion: may have short-term effect, but soon goes away – usually focus is on low-level offender
Group counseling: if they don’t force members to acquire new skills and apply them in the community
Bibliotherapy: read a book and write a report
Freudian: can reduce symptomology of non-offenders, but has not worked with offenders
2:45

68. Vague, unstructured rehab programs Self esteem programs
Non-skill based education programs
Scared Straight
Physical challenge programs/boot camps
Intensive supervision without treatment
Vague programs: no structured process and progressive steps
Self esteem: not a factor in committing crimes
Non-skill based education: programs that don’t improve skills don’t have any long term effect in reducing recidivism
Scared Straight: based on momentary fear – no fundamental change
Physical/boot camps: May be valid for other sentencing considerations, but won’t reduce recidivism without a treatment component
Intensive supervision: will only control person during supervision period – won’t work a fundamental change without treatment component

69. 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
Some times you will need to nail a person down to start the process of treatment – and people initially forced do successfully complete programs
But just think of your children or your own childhood -- do they every really listen to dad?
Procedural fairness – firm, fair, respectful – is more likely to achieve law-abiding behavior – judges can be a positive agent for change

70. 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
P.8
The def’s successful completion of probation should be the shared goal of everyone in the system
Every VOP is not the same – frequent violations, if minor, shouldn’t trigger state prison – depending on the dynamic factors, reassessment is important - what are the gains in other areas
Swift, certain and proportionate sanctions are most effective in reducing recidivism
Whenever possible, use incentives -- they are more effective than sanctions
Remember also the process of change – relapse is natural and is present whenever change is sought – not just in drug court

71. Administrative sanctions providing probation with maximum flexibility
Penal Code, § (b)
Def may agree to modification in writing without court appearance
How much risk should the community accept?
Great opportunity for court and probation to agree to a series of administrative sanctions that are graduated, and don’t involve court appearances – should be flexible to give probation maximum ability to respond to VOP
PC (b) allows a simple waiver procedure to make changes in the conditions of probation, all without court involvement
Courts and probation need to be on the same page concerning how many violations and to what degree should be considered safe for the community – any violation shows an increased risk – but is the risk sufficient to say local services are no longer effective – what is the proper level of tolerance

72. 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
P.9
Limited use of EBP information has been approved in Malenchik
Based on Malenchik and the policy developed by a National Working Group convened under the National Center for State Courts, the proper use of RNA info will depend on whether judge looks at score or the dynamic risk factors
Proper: to use score in close case to grant probation – b/c def is actually low risk
Improper: to use high risk score to deny probation and/or set length of prison term – 1) RNA not intended for this purpose; 2) imprisoning for potential future crime, not current crime and history; 3) Risk is dynamic; 4) consistent with Malenchik – if can’t use to set term, can’t use to deny probation
Proper: to use dynamic risk factors in deciding whether to grant or deny probation
Always use info in context of all other information available at sentencing 46

73. 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
P.10
Judges get reliable and relevant info for sentencing
For example, studies suggest that just talking to PO min once a month regarding the dynamic risk factors substantially reduces the def’s chances of committing a new crime [26%] – if the PO focuses on the primary risk factors, even greater success if possible.
The proper use of EBP allows for an informed decision about who is to be banked
The data will inform our need for services – where we need to focus our attention
Should help courts and probation in assessing the true effectiveness of a program – i.e., don’t just ask about the program’s recidivism rate, ask can they show a recidivism rate better than had there been no program at all – is this a nationally validated program with proper scientific support

74. 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
Judges control the referrals, so have considerable leadership in terms of what programs are approved and used
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