Jennifer Valencia Director, Utah Sentencing Commission Utah Sentencing Guidelines Pre v Post JRI Utah Fall Substance Abuse Conference September 21,

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1 Jennifer Valencia Director, Utah Sentencing Commission Utah Sentencing Guidelines Pre v Post JRI Utah Fall Substance Abuse Conference September 21, 2016

2 The Absurdity of Statistical Prediction Prof. Orley Ashenfelter, a Princeton economist, has devised a mathematical formula for predicting the quality of red wine vintages in France. And the guardians of tradition are fuming. Robert M. Parker Jr., generally regarded as the most influential wine critic in America, calls Professor Ashenfelter's research ludicrous and absurd. William Sokolin, a New York wine merchant, said the Bordeaux wine industry's view of the work ranges somewhere between violent and hysterical.'' Passell, P. New York Times, March 4, 1990

3 We re Not Much Different than Wine Tasters! Research has shown that laypeople and experts have difficulty dealing with statistical information, and tend to ignore it in the presence of case-specific information. A study was conducted in which subjects were given one of three different types of base-rate information about known recidivism rates in a population, and a sample of several case descriptions, and asked to predict recidivism for the sample cases. No use of base-rate information occurred when case-specific information was available. Carroll, J. S. (1977). Judgments of Recidivism Risk: Conflicts between Clinical Strategies and Base-Rate Information. American Psychology-Law Society. Vol. 1, No. 2, Pg

4 Small Increases in Accurate Prediction can have Significant Benefits Given the convergence between our meta-analysis and the work of Grove et al. (2000), statistical rules ought to be employed when feasible. This is especially true for critical decisions in which falsenegative judgments can be costly. Even a small increase in accuracy is important if one is predicting suicide, domestic violence, or postparole adjustment. White, J.M., et. al. (2006). The Meta-Analysis of Clinical Judgment Project: Fifty-Six Years of Accumulated Research on Clinical Versus Statistical Prediction. The Counseling Psychologist. Vol. 34, No. 3, Pg

5 Philosophical Approach The Sentencing Commission promotes evidence-based sentencing policies that effectively address the three separate goals of criminal sentencing: Risk Management Forms 1-5a (P ) Punish, Hold Accountable, Incapacitate Risk Reduction Forms 6-10 (P , 58-66) Reduce likelihood to reoffend Restitution (P.6) Repay damages

6 What Does an Evidence-Based Approach in the Criminal Justice System Incorporate? Best Research & Data Available Professional Judgement & Experience EBP Public Input & Concerns

7 Not the Kind of Evidence Presented in Court

8 Evidence-Based Approaches in Other Fields: Baseball Defensive Shift

9 Medicine High Blood Pressure:

10 Primary Targets of 2015 Revisions: ~Legal & Evidence-Based~ 1. Remove double-counted factors used punitively 2. Incorporate research on factors relevant to re-offense 3. Increase objectivity in decision-making (reduce implicit and explicit bias) 4. Prioritize limited correctional dollars for serious and/or violent offenders

11 2015 Criminal History Assessment

12 2015 Criminal History Assessment *Supervision History & Risk Combined *Weapons in Current Offense Removed

13 Preliminary Feedback on Criminal History Scoring: Why Doesn t Everything Count!?!? Arrests Charges Law Enforcement Input Victim Input Juvenile System Placement(s) Lying Manipulative

14 No Really, Why Not? Blakely v. Washington, 542 U.S. 296 (2004) Apprendi v. New Jersey, 530 U.S. 466 (2000): Any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Statewide Due Process & Equal Protection Concerns Charges & arrests are simply insufficient Counsel is less likely to have been provided in: Class B or lower Juvenile Court Violations of supervision without a revocation hearing (See 6 th Amendment Center s Report on Indigent Defense Services in Utah)

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17 Incarceration Recommendations by Zone Zone 3: Offense Alone Justifies Incarceration Zone 2: Pushed in by Criminal History Zone 1: Presumptive Probation

18 2014 to 2015 General Matrices Comparison (Zone 3 expanded by 1 column; Zone 2 & 1 reduced) Zone 2: Pushed in by Criminal History Zone 3: Offense Alone Justifies Incarceration Zone 1: Presumptive Probation

19 2014 vs 2015 General Matrices Percentage of Recommended Sentences Zone 1: Presumptive Probation 59% 18% 23% 67% 15% 18% Zone 2: Pushed in by Criminal History Zone 3: Offense Alone Justifies Incarceration (Prison or Jail)

20 Addition of Risk Reduction Forms Judge Alm, HOPE probation hawaiihope_11-24/ State of Washington Probation & Parole Utah is the first state to incorporate into Sentencing Guidelines Implementation Pilot in 2 nd District Not a proof of concept pilot Issue is whether we can implement with fidelity, not whether it works

21 Risk for what? Validated tool assesses specific risk (failure to appear, short term recidivism, mental health, substance use, general recidivism, sex offending, etc.) Know what tool you are using and its purpose Know whether its been validated or not *( evidence-based criminogenic factors is not the same as a validated tool) The Guidelines Criminal History Scoring is a punitive measure, not a validated recidivism assessment There is some correlation, but its not a validated tool and is not intended to be LSI tools are general risk to recidivate, not necessarily a public safety assessment They were never developed to determine a just penalty They assess likelihood to fail (not who will most likely succeed) Give us offender specific, validated information on amount of supervision and treatment needed They are not pre trial release tools (but they exist and are coming soon)

22 Criminal History and PSI Level Pre JRI Category V Category IV Category III Category II Category I ,300 High/Intensive Low Moderate

23 Criminal History and PSI Level Post JRI Category V Category IV Category III 1, Category II 1, Category I ,000 1,500 2,000 High/Intensive Low Moderate

24 Best Statistical Procedure for Interpreting Risk: Receiver Operating Curve (ROC) (Multilayer Neural Network, 4 Hidden Units) Represents a perfect predictor 100% of the time. An AUC value ranges between 0.50 and An AUC equal to 0.50 does not predict crime any better than chance alone 50/50 chance. A model with an AUC of 1.00, on the other hand, indicates accurate prediction 100% of the time. % HITS Represents a 50/50 chance of prediction. % Correct Negative

25 Utah Index Crime Rate Per 1,

26 Index Crime Rate per 1,000 versus Utah Incarceration Rate per 100,

27 Have We Incorporated the Best Research & Data? What is done [today] in corrections would be grounds for malpractice in medicine. (2002) Latessa, Cullen, and Gendreau, Beyond Correctional Quackery

28 From 1993 to 2014, the rate of violent crime declined from 79.8 to 20.1 per 1,000. From 1993 to 2014, the rate of property crime declined from to per 1,000.

29 Theories on Cause of Nationwide Crime Decline Brennan Center for Justice, NYU Law School What Caused the Crime Decline? February 2015

30 Brennan Center for Justice, NYU Law School What Caused the Crime Decline? February 2015

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32 Felony Drug Possession Filings Were Up 150% Over Past 20 Years 7000 Felony Drug Possession Cases Filed Possession Only Possession W/Intent Utah Administrative Office of the Courts November 2014

33 Felony Drug Poss. Enhancements Added (With No Statistically Significant Impact) University of Utah Criminal Justice Center Utah Sentence Inflation, July 2008, p. 17

34 Crack Cocaine Use at All-Time Low, Heroin & Meth Use Increasing Annual Report, p. 75

35 Divergent Trends Counties Rate to Prison per 10,000 Index Crime Rate per 10,000 Percent Change Since 2006 Percent Change Since 2006 Beaver % % Box Elder % % Cache % % Carbon % % Davis % % Duchesne % % Emery % % Grand % % Iron % % Juab % % Kane % % Millard % % Salt Lake % % SanJuan % % SanPete % % Sevier % % Summit % % Tooele % % Uintah % % Utah % % Wasatch % % Washington % % Weber % % Department of Public Safety, 2014 Crime in Utah Report

36 Felony Trials Sum of Disposition Felony Bench Felony Jury Bench Total District Count Trials Trials % Jury % Trial % % 0.7% 1.3% % 0.7% 0.8% % 0.7% 0.8% % 1.0% 1.2% % 0.8% 1.5% % 1.3% 1.4% % 0.3% 0.3% % 0.8% 0.8% Grand Total % 0.8% 0.9% Administrative Office of the Courts, 2015 Utah Felony Trial Data

37 Central Eight Dynamic Factors Addendum D (P. 58) Big Four Mod Four Adapted from Butters, R.P. (2014) Community Based Treatment Interventions. In W. Church & D. Springer (Eds.), Juvenile Justice Sourcebook. New York, NY: Oxford University Press 2014.

38 How Many of the Central Eight Should We Target? Change In Recidivism Rates Target 1-3 more criminogenic needs Lowenkamp, C.T., Pealer, J., Smith, P., & Latessa, E.J. (2006). Adhering to the risk and need principles: Does it matter for supervision-based programs? Federal Probation, 70 (3), Target at least 4-6 more criminogenic needs *More than 40 meta-analyses of the correctional treatment literature have been published. Results have been replicated with remarkable consistency. Considerable support exists for the RNR Framework across qualitative reviews of the literature. Smith et al., 2009

39 Begins with Validated Risk & Needs Assessment Risk is risk to reoffend, likelihood to fail - not necessarily dangerousness Need is the specific dynamic factors most predictive of re-offense Responsivity is how the programming is delivered - identifying specific barriers for the individual

40 Supervision & Treatment Framework Risk/Need/Responsivity Conceptualization Adapted from Comprehensive Framework to Reduce Recidivism developed by Darin Carver, Weber Human Services, 2015

41 Intensive Supervision Alone Does Not Reduce Recidivism *Not a single reviewer of studies of the effects of official punishment alone (custody, mandatory arrests, increased surveillance, etc.) has found consistent evidence of reduced recidivism. *40 60% of the studies of correctional treatment services reported reduced recidivism rates relative to various comparison conditions, in every published review.

42 Ratio of Incentives to Sanctions Increases Probability of Success

43 Prison Population Growth An Overview The prison population is a product of Admissions New crimes and violations 2,803 prison admissions during 2015 from both sources (lowest since 2001) Although nearly split in half, in 2015 more admissions were for condition violations Length of stay for the inmate population 2.7 years was the average release length of stay in This is the highest average over the past 30 years being tracked

44 Incarceration Rates United States, Western States & Utah: 1982 to 2015 Utah has the 7 th lowest incarceration rate in the nation National rate has been gradually decreasing

45 Average Yearly Incarcerated Population: 1982 to 2015 Evaluating Utah s incarcerated population for more than 30-years adds perspective to the recent decrease in the prison population. Policy/behavior shift Emergency release

46 Felony Sentences to Probation & Prison: 1988 to 2015 There were 438 fewer felony sentences in % 22.8%

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