JUNE 2016
a journal of correctional philosophy and practice
The Supervision of Low-risk Federal Offenders: How the Low-risk Policy Has Changed Federal Supervision Practices without Compromising Community Safety By Thomas H. Cohen, David Cook, Christopher T. Lowenkamp
Examining Overrides of Risk Classifications for Offenders on Federal Supervision By Thomas H. Cohen, Bailey Pendergast, Scott W. VanBenschoten
Trademarks, Press Releases, and Policy: Will Rigorous Research Get in the Way? By Kristin Bechtel, Anthony W. Flores, Alexander M. Holsinger, Christopher T. Lowenkamp
A Case Study of the Implementation of Staff Training Aimed at Reducing Rearrest (STARR) By Tammatha A. Clodfelter, Jefferson E. Holcomb, Melissa A. Alexander, Catherine D. Marcum, Tara N. Richards
Street-level Discretion and Organizational Effectiveness in Probation Services By Alese Wooditch, Lauren Duhaime, Kimberly Meyer
Extralegal Factors and the Imposition of Lifetime Supervised Release for Child Pornography Offenders By Niquita M. Vinyard
Trends in the Criminality and Victimization of the Elderly By Peter C. Kratcoski, Maximilian Edelbacher
Juvenile Focus By Alvin W. Cohn ADVISORY COMMITTEE
m e m b e r s
a journal of correctional Dan Richard Beto philosophy and practice National Association of Probation Executives Huntsville, Texas
PUBLISHED BY James Byrne The Administrative Office of the U.S. Courts University of Massachusetts, Lowell Lowell, Massachusetts James C. Duff, Director Honorable James G. Carr Matthew G. Rowland, Chief United States District Court Probation and Pretrial Services Office Toledo, Ohio
Federal Probation ISSN 0014-9128 is dedicated to informing its readers about current Alvin W. Cohn thought, research, and practice in corrections and criminal justice. The journal welcomes the Administration of Justice Services, Inc. contributions of persons who work with or study defendants and offenders and invites authors Rockville, Maryland to submit articles describing experience or significant findings regarding the prevention and control of crime and delinquency. A style sheet is available from the editor. Ronald P. Corbett, Jr. University of Massachusetts, Lowell Federal Probation is published three times yearly—in June, September (on a special topic), Lowell, Massachusetts and December. Permission to quote is granted on the condition that appropriate credit is given the author and Federal Probation. For information about reprinting articles, please contact Thomas Henry the editor. Seton Hall University Subscriptions to Federal Probation are available from the Superintendent of Documents at an South Orange, New Jersey annual rate of $16.50 ($22.40 foreign). Please see the subscription order form on the last page of this issue for more information. Magdeline Jensen CEO, YWCA of Greater Pittsburgh Pittsburgh, Pennsylvania
Tim Murray Pretrial Justice Institute Washington, DC
EDITORIAL STAFF Honorable David D. Noce United States District Court Nancy Beatty Gregoire, Executive Editor St. Louis, Missouri Ellen Wilson Fielding, Editor Daniel B. Ryan Justice Solutions Group Federal Probation Lakeville, Minnesota Administrative Office of the U.S. Courts Washington, DC 20544 Faye Taxman telephone: 202-502-1651 George Mason University fax: 202-502-1677 Fairfax, Virginia email: [email protected] Marie VanNostrand Senior Consultant, Luminosity, Inc. Postmaster: Please send address changes to St. Petersburg, Florida the editor at the address above. June 2016 1
THIS ISSUE IN BRIEF The Supervision of Low-risk Offenders: How the Low-risk Policy Has Changed Federal Supervision Practices without Compromising Community Safety 3 The authors present a preliminary analysis of the federal probation system’s recently adopted evidence-based supervision policy for low- risk offenders, asking 1) Have the number of officer/offender interactions changed after implementation of the low-risk policy, 2) What are the recidivism patterns of low-risk offenders supervised by officers before and after the low-risk policy went into effect, and 3) Has the collection of imposed fines and restitution changed following adoption of the low-risk policy? By Thomas H. Cohen, David Cook, Christopher T. Lowenkamp Examining Overrides of Risk Classifications for Offenders on Federal Supervision 12 The federal probation system’s Post Conviction Risk Assessment instrument (PCRA) has been empirically shown to effectively predict the likelihood that an offender will recidivate during his or her supervision period. Judicial policy allows officers the option to override the PCRA’s risk classification of an offender for certain policy-related reasons (sex offender, persistently violent, mental health issues, or serious youthful offender) or as “discretionary overrides.” In this article the authors first examine the overall prevalence of overrides for offenders under federal supervision, the types of overrides, and the rationales. They then explore whether offenders with overrides are supervised differently compared to those without and whether they recidivate at rates similar to their original or reclassified risk levels. By Thomas H. Cohen, Bailey Pendergast, Scott W. VanBenschoten Trademarks, Press Releases, and Policy: Will Rigorous Research Get in the Way? 22 It is no secret that reports regarding new practices or concepts can be broadly branded, trademarked, marketed, and distributed when the information has not been subjected to replication and peer review. What are the implications when policies and practices are adopted and substantial funding is allocated without an adequate level of empirical support? By Kristin Bechtel, Anthony W. Flores, Alexander M. Holsinger, Christopher T. Lowenkamp A Case Study of the Implementation of Staff Training Aimed at Reducing Rearrest (STARR) 30 Research on evidence-based correctional practices notes the critical importance of program implementation in assessing program effectiveness. In this article, the authors describe the implementation of a training program to improve officer-offender interactions in the federal probation system. They use several sources of information to assess implementation strategies and the success of those efforts within a single federal district. By Tammatha A. Clodfelter, Jefferson E. Holcomb, Melissa A. Alexander, Catherine D. Marcum, Tara N. Richards Street-level Discretion and Organizational Effectiveness in Probation Services 39 The authors provide an overview of street-level discretion among probation officers (and in probation departments more generally) and discuss how discretion supports the attainment of goals at the organizational level. They also examine the limitations of the street-level bureaucrat approach and conclude with recommendations for how future practices and scholarship may overcome these limitations. By Alese Wooditch, Lauren Duhaime, Kimberly Meyer Extralegal Factors and the Imposition of Lifetime Supervised Release for Child Pornography Offenders 45 For child pornography offenders, the supervised release term is particularly important because of the statutory override found in 18 U.S.C. 3583(k) enhancing the length of the term from a maximum of five years to a minimum of five years to life and providing for the revocation of supervised release resulting in the incarceration of the defendant for the remainder of the period. The author examines the effects of legal and extralegal factors on supervised release outcomes, specifically lifetime supervised release for child pornography offenders. By Niquita M. Vinyard 2 FEDERAL PROBATION Volume 80 Number 1
Trends in the Criminality and Victimization of the Elderly 58 Among the relatively reliable variables predictive of amount and types of crime is age: The proportion of violent crimes will decline as the ages of the offenders increases. On the other hand, the proportion of the elderly who are victimized by crime, particularly theft, financial fraud, and physical abuse, exceeds that of other age groups. The authors focus on changes in the amount and types of crime committed by the elderly and also on the various methods used to victimize the elderly. By Peter C. Kratcoski, Maximilian Edelbacher
D E P A R T M E N T S
Juvenile Focus 64
Contributors to This Issue 71
The articles and reviews that appear in Federal Probation express the points of view of the persons who wrote them and not necessarily the points of view of the agencies and organizations with which these persons are affiliated. Moreover, Federal Probation’s publication of the articles and reviews is not to be taken as an endorsement of the material by the editors, the Administrative Office of the U.S. Courts, or the Federal Probation and Pretrial Services System. June 2016 3 The Supervision of Low-Risk Federal Offenders: How the Low-risk Policy Has Changed Federal Supervision Practices without Compromising Community Safety
Thomas H. Cohen David Cook Christopher T. Lowenkamp Probation and Pretrial Services Office Administrative Office of the U.S. Courts
SINCE THE EARLY 2000s, the federal low-risk offenders being influenced by their the number of officer/offender interactions probation and pretrial services system higher-risk counterparts. In addition, placing changed after implementation of the low-risk has adopted an approach that emphasizes low-risk offenders into intensive monitor- policy? (2) What are the recidivism patterns using evidence-based practices to reduce ing regimes could potentially disrupt their of low-risk offenders supervised by officers the risk and recurrence of recidivism prosocial networks, including their ability to before and after the low-risk policy went into (Alexander & VanBenschoten, 2008; Cohen maintain long-term employment or remain in effect? and (3) Has the collection of court- & VanBenschoten, 2014; Hughes, 2008). As stable relationships with non-criminal peers imposed fines and restitution changed since part of that approach, the federal probation (Lowenkamp & Latessa, 2004). the low-risk policy was adopted? As we will system adopted the risk, needs, and responsiv- The federal probation system has devel- show, we find evidence that low-risk offenders ity (RNR) model of correctional supervision oped and implemented a risk assessment are being supervised less intensively by federal (Alexander & VanBenschoten, 2008; Andrews, instrument (the Post Conviction Risk probation officers and that this change in Bonta, & Hoge, 1990; Andrews & Bonta, Assessment or PCRA) that identifies those offender management has not compromised 2010). One of the key tenets of the RNR model offenders at lowest risk of recidivism; the community safety nor impeded the collection is that officers should focus on high-risk system has also promulgated policies to guide of court-imposed fines. The collection of res- offenders, while spending minimal time and officers on the supervision of low-risk offend- titution obligations, however, declined during resources on offenders at low risk to reoffend. ers (Guide to Judiciary Policy, 2014; Johnson, the period in which the low-risk policy was The risk principle is a core component Lowenkamp, VanBenschoten, & Robinson, implemented. Future studies can assess the of the RNR model. Specifically, research has 2011; Lowenkamp, Johnson, VanBenschoten, influence of the low-risk policy over longer shown that focusing time, attention, and Robinson, & Holsinger, 2013). Policy guid- periods and examine whether the negative resources on low-risk offenders has negligible ance on the supervision of low-risk offenders effect on restitution collections is offset by the impacts on recidivism. In fact, intensive super- was put into place on or about June 2012 benefits of this policy. vision of these offenders can produce negative when the Criminal Law Committee of the We note that this work represents one of consequences: Low-risk offenders supervised Judicial Conference endorsed this policy and the first efforts to investigate the potential at higher levels are more likely to reoff- recommended its ultimate adoption by the impacts of the low-risk supervision model end compared to low-risk offenders who are Judicial Conference of the U.S. in September on a system-wide basis. We are unaware of placed under supervision programs involving 2012. Now that the low-risk policy has been any efforts by other organizations analyzing minimal levels of contacts, treatment, moni- in effect for a few years, we seek to under- the effects of instituting this core component toring, etc. (Andrews, Bonta & Hoge, 1990; stand whether the policy of minimizing the of the RNR model for an entire correctional Lowenkamp & Latessa, 2004; Lowenkamp, resources expended on these offenders has agency. The few empirical assessments of low- Holsinger, & Latessa, 2006; Lowenkamp, succeeded without compromising community risk supervision practices tended to involve Flores, Holsinger, Makarios, & Latessa, 2010). safety or impeding the collection of the court- smaller field experiments or pilot studies. The reason is that intense supervision typically imposed financial obligations of fines and Hence, this research addresses this gap in the results in the intermixing of low- and high- restitution. community corrections literature. risk offenders. Placing low- and high-risk This research is a preliminary analysis of offenders in the same program can poten- the implications of the low-risk policy that tially result in negative social learning, with addresses the following questions: (1) Have 4 FEDERAL PROBATION Volume 80 Number 1
The Low-risk Supervision Policy and require written justification by the officer from the lower to higher risk categories during and approval by the supervisor. the period examined. The low-risk policy became an integral part For those low-risk offenders not reclas- For this section of the article, we used the of post-conviction supervision in June 2012 sified to higher supervision levels, judicial PCRA rather than the RPI to examine contact when it was endorsed by the Criminal Law policy provides additional details on appropri- patterns by risk level over the period of policy Committee of the Judicial Conference, which ate reporting requirements and monitoring. implementation. The PCRA served as the recommended that it be adopted as offi- Of particular importance are the judicial pol- basis for risk differentiation because we are cial policy by the Judicial Conference of the icy’s instructions that after completion of the analyzing officer behavior towards offend- United States. Details about this policy are initial case plan, subsequent contact should ers rather than outcomes. Using the PCRA provided in the Guide to Judiciary Policy (judi- be minimized unless circumstances warrant allowed us to standardize the measure of risk cial policy). This policy states that offenders further intensive supervision. In addition, the and driver of officer behavior over the period classified as low risk by either the PCRA or policy recommends that officers forgo sub- in which the low-risk policy was integrated the Risk Prediction Index (RPI) actuarial tool sequent case plans and reassessments unless into the federal supervision system. Moreover, are eligible for supervision under the low- the officer suspects or has been informed of since the low-risk policy was being promul- risk policy. The PCRA is a fourth generation a negative change in the offender’s conduct gated during the same time that the PCRA was risk assessment instrument currently used by or conditions. Instead, officers are to rely being deployed, officers tended to associate federal probation officers to classify offend- on notification from law enforcement data- the low-risk policy more with the PCRA than ers into one of the four following recidivism bases and other sources to learn if a low-risk with the RPI. We believe this is because the risk categories: low, low/moderate, moder- offender has returned to crime. Judicial policy PCRA training included heavy reinforcement ate, and high. Prior to its implementation, also informs officers to consider petitioning of the risk principle to officers. federal probation officers relied on the RPI, the court to remove or suspend any unnec- We extracted officer/offender contact a second-generation risk assessment tool that essary special conditions imposed on these information from the Probation and Pretrial classified offenders into high, moderate, or offenders. By stating that limited resources Services Automated Case Tracking System low recidivism risk categories.1 The low-risk should be expended on lower risk offenders, (PACTS), the case management system used policy references the earlier RPI as well as the the low-risk policy allows officers to conserve by federal officers. In this analysis, the aver- PCRA because the PCRA was deployed into their time so that they can focus on offenders age and median number of monthly total, the federal system gradually, thus overlap- at the higher end of the risk continuum. In personal, and collateral officer/offender con- ping with the earlier risk instrument that it fact, the low-risk policy provides the frame- tacts was calculated during an offender’s first was replacing. work in which officers can concentrate most six months of supervision.3 Personal con- The low-risk policy states that offenders of their time, resources, and services on the tacts are direct interactions between officers classified as low risk by either the PCRA or highest risk offenders. and offenders and include interactions taking RPI are predicted to reoffend at relatively low place in the probation office, the offender’s rates. Hence, judicial policy instructs officers Low-risk Policy and Officer/ home, the offender’s place of employment, to limit their supervision activities for low- Offender Contacts or elsewhere in the community. Personal risk offenders to “monitoring compliance We analyzed the relationship between officer/ contacts can also include electronic commu- with the conditions of release, if applicable, offender contacts and the low-risk policy by nications between the officer and offender and responding appropriately to any changes calculating the median and average num- such as telephone contacts, voice mail, or text in circumstances.” Although judicial policy ber of monthly contacts for offenders with messaging.4 Collateral contacts are officer recommends applying minimal levels of PCRA assessments received into supervi- interactions with third parties familiar with supervision to low-risk offenders, there are sion both before and after implementation the offender such as treatment providers, law important exceptions to this general rule. In of the low-risk policy. The pre-policy period enforcement officers, employers, and family particular, judicial policy provides officers covers offenders received into supervision members. These contacts can also be made with discretion to place low-risk offenders between June 28, 2009, and June 26, 2012,2 electronically (through telephone, voice mail, into a higher supervision level when the offi- while the post-policy periods covers offend- and text messaging). cer determines through his or her professional ers received into supervision between June judgment that the offender’s proclivity to 27, 2012, and August 12, 2015. In addition 3 reoffend is underestimated. This reclassifica- In this analysis, supervision encompasses both to examining officer/offender contacts for offenders placed on terms of supervised release tion process is known as the professional or low-risk offenders, we calculated changes in (TSR) and those on straight probation. TSR refers supervision override and applies where the monthly contacts for the other PCRA risk to offenders serving a term of supervision after officer determines that the offender has met being released from federal prison, while proba- categories (i.e., low/moderate, moderate, and one of the following policy-related criteria: tion refers to a court-imposed sentence involving high risk). By analyzing trends in monthly being classified as a sex offender, manifest- community monitoring without an incarceration contact data for all risk levels, we explore sentence. See 18 USC § 3583 & § 3563. ing persistently violent behavior, evidencing whether there was a redistribution of contacts 4 This definition of personal contacts differs from severe mental health issues, or being consid- that used in internal Probation and Pretrial Services ered a serious youthful offender. Changes in 2 Although the low-risk policy was not officially reports, which do not count electronic communica- supervision level occurring for non-policy implemented until September 2012, we used the tions between officers and offenders as personal reasons are labeled discretionary overrides June 2012 date, because that is when this policy contacts. An examination of this more restricted was adopted by the Criminal Law Committee of the version of personal contacts revealed patterns simi- 1 For more information about the PCRA and RPI, Judicial Conference. lar to those reported in this paper. see AOUSC, 2011. June 2016 SUPERVISION OF LOW-RISK OFFENDERS 5
We focused on the first six months of of supervision. This study population was into place.6 For example, the median number supervision because that allowed us to exam- further divided into a pre and post low-risk of total monthly officer/offender contacts for ine three years of post-policy contact patterns policy group. The pre low-risk policy group low-risk offenders decreased by 23 percent covering fiscal years 2013 through 2015. included offenders who started their supervi- from over 2 contacts per month prior to the Moreover, officer/offender contacts tend to sion terms prior to the low-risk policy (i.e., low-risk policy to slightly fewer than 2 con- be more intense during the first six months before June 2012), while the post policy cohort tacts per month after implementation of the of supervision and are often driven by an included offenders placed on federal supervi- policy. The median number of total monthly offender’s supervision conditions, such as sion after the low-risk policy went into effect officer/offender contacts also declined by 15 the requirement to undergo mandatory drug (i.e., after June 2012) (see Table 1). Because percent for low/moderate-risk offenders. testing.5 All offenders supervised for less than the PCRA was deployed gradually starting in Apparently, declines in total officer/ 6 months were excluded from this analysis. fiscal year 2009, there is not an even number offender contacts for lower risk offenders were Whether trends reported in this paper hold of offenders in each group. Forty-three per- not commensurate with increases in contacts true or become more pronounced beyond the cent of offenders in the study population were for higher risk offenders. High-risk offenders first six months of supervision considered in received into supervision before promulgation saw no changes in their total median monthly this study is left for future inquiry. of the low-risk policy, while 57 percent had contacts between the pre and post policy peri- In total, the study population included their supervision terms commence after the ods, while moderate-risk offenders witnessed 229,919 offenders with PCRA assessments low-risk policy was put into place. a 9 percent reduction in their total median whose monthly contacts with officers could Table 2 shows the average and median monthly contacts. We note that high-risk be calculated during their first six months number of monthly officer/offender contacts offenders constitute an increasing proportion for low, low/moderate, moderate, and high of the federal supervision population, and 5 The mandatory conditions of 18 U.S.C. § 3563(a) (5) and (e), 3583(d), and 4209(a) are outlined in the risk offenders during their first six months that officers’ caseloads have risen over the Guide to Judiciary Policy. Offenders are required to under supervision both before and after last few years (Baber, 2015). Consequently, refrain from any unlawful use of a controlled sub- implementation of the low-risk policy. As it is possible that absent the low-risk policy, stance and submit to one drug test within 15 days expected, the median number of total officer/ resources dedicated to higher risk offenders of release when on probation or supervised release offender contacts has declined the most for could potentially have declined rather than and at least two periodic drug tests thereafter, unless this condition was suspended by the court low-risk offenders since this policy was put remain unchanged. after a determination that the offender presents a Comparing changes in median personal low risk of future substance abuse. contacts pre and post policy shows the median number of monthly personal contacts declin- TABLE 1. ing by 17 percent for low/moderate risk Study Population of Federally Supervised Offenders for Low-Risk Contacts Analysis offenders. The low and moderate risk offend- Risk Policy & PCRA Risk Levels Number Percent ers witnessed similar decreases in median monthly personal contacts (13 percent and 10 All offenders 229,919 100% percent, respectively). Conversely, high-risk Pre-low risk/* 98,044 43% offenders saw no changes in their median Low 37,633 16% monthly personal contacts during the study Low/Moderate 39,036 17% time frame. Moderate 16,583 7% In terms of collateral contacts, low-risk High 4,792 2% offenders saw their median monthly collat- eral contacts decline by 40 percent, from .5 Post-low risk/* 131,875 57% contacts per month before the low-risk policy Low 48,836 21% to .3 contacts per month after the low-risk Low/Moderate 49,615 22% policy came into effect. The median monthly Moderate 25,531 11% collateral contacts for the other PCRA risk High 7,893 3% categories remained unchanged. Note: Includes offenders with actual PCRA assessments received onto federal supervision between fiscal years While an examination of contacts for 2009–2015. offenders received into supervision between */Refers to whether offenders were received onto federal supervision before or after enactment of the low-risk policy. the pre and post low-risk policy supports that officers are contacting low-risk offend- ers less frequently, the analysis presented in Table 2 can mask important trends. For example, the practice of supervising lower risk offenders less intensively might have
6 The median is the number separating the higher half of the data from the lower half. In this report, median contacts can be more useful than average contacts because averages can be disproportion- ately influenced by the small number of offenders with exceptionally high contact rates. 6 FEDERAL PROBATION Volume 80 Number 1
TABLE 2. Mean and Median Number of Monthly Officer/Offender Contacts Prior to and After Implementation of the Low-Risk Policy
Median Contacts Per Month Mean Contacts Per Month Contact Types & PCRA Risk Levels Pre-Low Risk Post-Low Risk Percent Change Pre-Low Risk Post-Low Risk Percent Change Total contacts Low 2.2 1.7 -23% 2.6 2.3 -14% Low/moderate 2.7 2.3 -15% 3.2 2.8 -10% Moderate 3.3 3.0 -9% 3.9 3.7 -5% High 4.0 4.0 0% 4.8 4.8 0% Person Low 1.5 1.3 -13% 1.9 1.6 -13% Low/moderate 1.8 1.5 -17% 2.1 1.9 -10% Moderate 2.0 1.8 -10% 2.4 2.2 -6% High 2.3 2.3 0% 2.6 2.6 0% Collateral Low 0.5 0.3 -40% 0.8 0.7 -15% Low/moderate 0.7 0.7 0% 1.1 1.0 -10% Moderate 1.0 1.0 0% 1.6 1.5 -4% High 1.5 1.5 0% 2.1 2.2 3% Note: Includes offenders with actual PCRA assessments received onto federal supervision between fiscal years 2009-2015. The pre and post low risk terms refers to whether offenders were received onto federal supervision before or after enactment of the low-risk policy. Contacts based on initial six months under supervision. gradually permeated the federal probation those shown for total contacts. For exam- comparison, the median number of monthly system, meaning that the patterns of spending ple, the median monthly personal contacts collateral contacts increased by 31 percent for less time with lower risk offenders may not be declined by 29 percent for low-risk offenders high-risk offenders from about 1 contact per apparent without examining yearly monthly from nearly 2 contacts per month for fiscal month in 2010 to nearly 2 contacts per month contact trends. Table 3 examines the median year 2010 to about 1 contact per month for in 2015. monthly officer/offender contact rates on an fiscal year 2015. Median monthly contacts Figures 1 and 2 show the distribution of annual basis for fiscal years 2010 through also decreased 17 percent for low/moderate monthly total contacts on an annual basis for 2015. The contacts were examined separately risk offenders. In comparison, moderate-risk high- and low-risk offenders. These figures by PCRA risk levels and contact types (e.g., offenders saw their median monthly personal show the percentage of high- and low-risk total, personal, and collateral). contacts decline by 10 percent and high-risk offenders received into supervision from fiscal offenders saw no changes in their median years 2010 through 2015 who were contacted Total monthly contacts monthly personal contacts in the period span- less than once per month, 1-1.9 times per The median monthly total contacts decreased ning 2010 to 2015. About half of the high-risk month, 2-2.9 times per month, 3-3.9 times the most for lower risk offenders, while offenders were contacted 2 or more times per per month, and 4 or more times per month. offenders on the higher end of the PCRA risk month during the study period. An analysis of changes in the distribution continuum witnessed either smaller declines of contacts provides another way of show- or slight increases in their median contacts. Collateral monthly contacts ing whether officers are contacting low-risk For example, the median monthly total con- Unlike personal contacts, collateral contacts offenders less frequently over time compared tacts declined by 26 percent for low-risk and manifested patterns more in alignment with to their high-risk counterparts. 19 percent for low/moderate-risk offenders the risk principle. Specifically, collateral con- Over the past six fiscal years, increas- from 2010 to 2015. In comparison, moderate- tacts declined the most for low-risk offenders, ingly higher percentages of low-risk offenders risk offenders saw their median monthly total while they increased substantially for offend- were contacted less than once per month. contacts decline by only 6 percent, while high- ers classified in the highest risk category. For For instance, 7 percent of low-risk offenders risk offenders witnessed their total contacts instance, the median number of monthly placed on supervision in fiscal year 2010 were increase by 11 percent, from 3.8 contacts per collateral contacts declined by 40 percent contacted less than once per month, while 18 month to 4.2 contacts per month during the for low-risk offenders from 0.5 contacts per percent placed on supervision during fiscal 2010 to 2015 period. month in 2010 to 0.3 contacts per month year 2015 were contacted less than once per in 2015. In addition, median monthly col- month. Among high-risk offenders, a slightly Personal monthly contacts lateral contacts decreased by 13 percent for higher percentage were contacted 4 times or An examination of trends in personal con- low/moderate-risk offenders and exhibited more per month in 2015 (53 percent) com- tacts reveals somewhat similar patterns to no changes for moderate-risk offenders. In pared to 2010 (48 percent). June 2016 SUPERVISION OF LOW-RISK OFFENDERS 7
TABLE 3. Median Number of Monthly Officer/Offender Contacts by PCRA Risk Levels, Fiscal Years 2010–2015 Median Contacts Per Month Median Person Contacts Per Month Median Collateral Contacts Per Month Low/ Low/ Low/ Fiscal Year Low Moderate Moderate High Low Moderate Moderate High Low Moderate Moderate High FY-2010 2.3 2.7 3.2 3.8 1.7 1.8 2.0 2.3 0.5 0.8 1.0 1.3 FY-2011 2.2 2.7 3.3 4.3 1.5 1.8 2.2 2.4 0.5 0.7 1.2 1.7 FY-2012 1.8 2.5 3.2 4.0 1.3 1.7 2.0 2.2 0.5 0.7 1.0 1.7 FY-2013 1.8 2.3 3.0 4.0 1.3 1.5 1.8 2.2 0.3 0.7 1.0 1.5 FY-2014 1.7 2.2 3.0 4.0 1.3 1.5 1.8 2.3 0.3 0.7 1.0 1.5 FY-2015 1.7 2.2 3.0 4.2 1.2 1.5 1.8 2.3 0.3 0.7 1.0 1.7 Percent change -26% -19% -6% 11% -29% -17% -10% 0% -40% -13% 0% 31% Note: Includes offenders with actual PCRA assessments received onto federal supervision between fiscal years 2010-2015. Offenders received into supervision during fiscal year 2009 excluded as there were relatively few PCRA assessments during that fiscal year. Contacts based on initial six months under supervision. Bold denotes the year that the low-risk policy was implemented.
Low-risk Supervision Policy and FIGURE 1. Offender Recidivism Distribution of Monthly Officer/Offender Total Contacts for Low-Risk Next we examined recidivism of low-risk PCRA Offenders, Fiscal Years 2010–2015 offenders before and after implementation of the low-risk policy. Three groups of offend- 010 7% 0 32% 27% 15% 19% ers were analyzed. The first were offenders who started and ended their supervision 011 9% 34% 25% 14% 18% terms before the beginning of the low-risk 01 13% 38% 23% 12% 14% policy (i.e., before June 2012). The second group comprised offenders whose supervi- 01 16% 39% 22% 10% 13% sion terms started after the low-risk policy was instituted (i.e., after June 2012). The third 01 17% 40% 20% 10% 13% group includes offenders who started their 01 18% 39% 20% 10% 13% supervision terms before the low-risk policy but ended their terms after the policy was 0 10 0 0 0 0 0 0 80 0 100 instituted. We labeled this third group “split er e o o e er cases.” Last, we used the RPI rather than the e 1 o 1 0 1 o 0 o 0 o or more o PCRA for the recidivism analysis because our primary focus in these sections is on outcomes rather than officer behavior. Offender recidi- vism outcomes and payment patterns are FIGURE 2. unlikely to be influenced by the risk instru- Distribution of Monthly Officer/Offender Total Contacts for High-Risk ment that officers use. Offenders, Fiscal Years 2010–2015 Table 5 shows the recidivism rates for offenders placed under supervision by risk 010 10% 21% 18% 48% level before and after the low-risk policy was placed into effect, as well as for split cases. 011 10% 16% 17% 55% Recidivism rates were calculated within a 01 12-month period after the supervision start 10% 19% 19% 51% date and include arrests for any felony or mis- 01 11% 19% 18% 51% demeanor offense. In addition, the RPI risk classifications were used because most pre-pol- 01 10% 18% 18% 52% icy offenders did not have PCRA assessments. 01 This analysis shows low-risk offenders 11% 17% 17% 53% recidivating at nearly identical rates regardless 10 0 0 0 0 0 0 80 0 100 of whether they were supervised before or er e o o e er after implementation of the low-risk policy or e 1 o 1 0 1 o 0 o 0 o or more o whether their supervision terms spanned the No e er e e o o or o e er le 1 o er mo e e r e rom 1 8 FEDERAL PROBATION Volume 80 Number 1
TABLE 4. years of supervision, and 3) offenders with 2-3 Descriptive Statistics for the Low-Risk Recidivism Anaylsis years of supervision. Table 6 shows the average amount assessed Supervision Period Number Percent by the courts in fines and restitution by Pre Low-Risk Policy 208,595 53% offender risk level and the year they started Post Low-Risk Policy 64,102 16% supervision. Fines are monetary payments Split Low-Risk Policy 121,134 31% incurred as part of the sentence and are based RPI Category on an offender’s ability to pay, while restitution Low Risk 150,685 38% refer to monetary payments that seek to com- pensate victims for their losses. Restitution Moderate Risk 176,524 45% obligations can be assessed against individu- High Risk 66,622 17% als or, in cases of joint and several liability, 12 Month Rearrest 393,831 13% against multiple parties for the same monetary amount. Joint and several liability makes each of multiple defendants liable for the entirety pre- and post-policy periods. For instance, the from the Clerk’s Office Civil and Criminal of a victim’s loss irrespective of each defen- recidivism rates for low-risk offenders were Accounting Module (CCAM). The CCAM dant’s degree of fault (WilsonElser, 2013). The essentially unchanged between the pre-policy tracks the criminal monetary penalties owed median amounts owed in single restitution group (6 percent arrest rate) and post-policy and payments made by offenders, as well as and joint and several restitution more than group (4 percent arrest rate). Offenders in the funds disbursed and monies owed to victims doubled for low-risk offenders between fiscal 8 split category had recidivism rates of 4 percent. of crime. years 2009 and 2015.9 The median restitu- Including splits in the pre-policy group pro- We examined the repayment patterns for tion and joint and several restitution amount duced relatively similar recidivism patterns for two types of low-risk offenders. The first were imposed also increased for moderate- and the pre (5 percent) and post (4 percent) policy offenders who finished supervision before the high-risk offenders. groups. When low-risk splits were merged low-risk policy started (i.e., before June 2012), Given the large increases in court-imposed into the post-policy cohort, the recidivism and the second were offenders who entered amounts over the last seven years, we exam- rates were 6 percent for the pre-policy group supervision after the policy was implemented ined assessments by offense type to see if 7 to 4 percent for the post-policy group. (i.e., after June 2012). Since the pre-policy a particular offense type was driving these group was under supervision for longer peri- Low-risk Supervision Policy and results. For low-risk offenders, fraud cases ods of time and hence, had more time to comprised over 60 percent of the joint and the Payment of Court-imposed make repayments than the post-policy group, Financial Obligations several restitution amounts and 40 percent we standardized the repayment follow-up of the single restitution obligations. The joint Last, we examined the relationship between periods for both study groups. Specifically, we and several restitution and single restitution the low-risk policy and the payment of divided the pre and post policy groups into amounts imposed by the courts for fraud court-ordered fines and restitution. As with three subgroups based on their time under cases nearly doubled from 2009 through 2015, the recidivism analysis, we used the RPI federal supervision: 1) offenders with less than approximating the overall increases for these rather than the PCRA because the focus was one year of supervision, 2) offenders with 1-2 obligation types (data not shown in report). on outcomes rather than officer behavior. In future studies, we will explore continuing We combined data from PACTS with data 8 Please note that different datasets were used to to investigate possible drivers of the increase. 7 It should also be noted that the recidivism examine officer/offender contacts, recidivism pat- rates declined slightly for moderate- and high-risk terns, and information on the collection of fees/ 9 When examining amounts owed, we used median offenders. fines. amounts because large values skew the means.
TABLE 5. Recidivism Rates for Offenders Prior to and After Implementation of the Low-Risk Supervision Policy, by RPI Groups
Low Moderate High All Supervision Policy Percent Percent Percent Percent Group Number Arrested Number Arrested Number Arrested Number Arrested All 150,685 5% 176,524 14% 66,622 27% 393,831 13% Pre Policy 82,046 6% 92,940 17% 33,609 30% 208,595 15% Post Policy 23,580 4% 27,907 13% 12,615 26% 64,102 12% Split 45,059 4% 55,677 11% 20,398 21% 121,134 10% Pre (Including Splits) 127,105 5% 148,617 15% 54,007 27% 329,729 13% Post 23,580 4% 27,907 13% 12,615 26% 64,102 12% Pre 82,046 6% 92,940 17% 33,609 30% 208,595 15% Post (Including Splits) 68,639 4% 83,854 12% 33,013 23% 185,236 11% Note: Risk classifications based on the RPI. Arrest rates calculated within a 12-month period. June 2016 SUPERVISION OF LOW-RISK OFFENDERS 9
Table 7 shows the payment rates and aver- court-imposed restitution penalties because the recidivism rates had changed after enact- age amounts paid for offenders supervised fines are assessed based on an offender’s abil- ment of this policy, and analyzed whether the before and after implementation of the low- ity to pay. Restitution penalties, on the other collection of court-imposed financial penalties risk policy. Overall, low-risk offenders who hand, are based on the actual financial dam- differed after the low-risk policy took effect. were supervised before institution of the ages caused by offenders. In general, findings are supportive of the low-risk policy paid a greater percentage of low-risk policy. This research shows that all their financial obligations than those under Conclusion and Implications low- and low/moderate risk offenders in the supervision after the implementation of this The low-risk supervision policy institution- post policy group have fewer officer/offender policy. This is especially pronounced with alized that officers should expend minimal contacts compared to their pre-policy coun- regards to restitution, both individual and amounts of time and resources on low-risk terparts. This finding suggests that the joint and several obligations. On average, pre- offenders, while placing most of their efforts low-risk policy is influencing officer behavior policy low-risk offenders supervised for two on offenders classified into the higher risk by encouraging federal officers to engage in years or less paid about half their individual categories. Low-risk offenders should be fewer interactions with offenders on the lower restitution ordered, while post-policy low- provided with minimal supervision services, end of the risk continuum. Importantly, the risk offenders on supervision for similar time because research has shown that correctional policy of supervising low-risk offenders less periods paid between 28 percent-37 percent of interventions aimed at reducing recidivism intensively has not compromised community their restitution obligations. The differences in for these offenders tend to be ineffective safety. Post-policy low-risk offenders were no payment rates among low-risk offenders were and can actually produce higher recidivism more likely to recidivate compared to their less marked between the pre and post policy rates for this risk group (Andrews, Bonta & pre-policy counterparts. This finding indi- groups for court-imposed fines. On average, Hoge, 1990; Lowenkamp & Latessa, 2004; cates that federal officers can spend less time the fine payment rates were about 90 per- Lowenkamp, Holsinger, & Latessa, 2006). and resources on low-risk offenders without cent for the pre-policy group and 84 percent The current research examined the relation- an accompanying rise in their recidivism rates. for the post-policy group. Court-imposed ship between the low-risk policy and officer/ For the most part, federal probation fines were probably paid at higher rates than offender contact patterns, explored whether officers continued to successfully monitor
TABLE 6. Court-Assigned Fines, Restitution, and Joint and Several Restitution by Supervision Year
Fine Restitution Joint/Several Restitution Fiscal year Number Mean Median Number Mean Median Number Mean Median Low Risk 2009 2,905 $20,680 $1,500 3,957 $418,932 $35,435 3,229 $649,643 $40,786 2010 3,065 $10,720 $1,500 4,113 $1,356,499 $41,627 3,793 $766,517 $52,397 2011 3,132 $24,899 $1,500 4,233 $600,112 $44,855 4,246 $1,407,249 $63,394 2012 2,950 $50,046 $2,000 4,335 $548,136 $55,800 4,294 $780,935 $68,545 2013 2,999 $16,137 $2,000 4,386 $649,946 $61,114 4,889 $828,933 $64,404 2014 3,062 $30,830 $2,000 4,461 $554,189 $76,894 4,210 $2,914,723 $78,457 2015 1,993 $17,204 $2,000 2,929 $982,220 $85,090 3,246 $1,040,297 $90,950 Moderate Risk 2009 2,105 $4,540 $1,000 1,962 $56,956 $8,338 2,118 $77,903 $6,750 2010 2,078 $2,582 $1,000 1,960 $67,390 $8,243 2,088 $118,963 $11,861 2011 2,277 $2,976 $1,000 1,970 $152,472 $8,501 2,540 $99,636 $10,809 2012 2,035 $2,943 $1,000 1,821 $94,423 $10,000 1,937 $165,627 $10,491 2013 1,952 $6,191 $1,000 1,846 $95,683 $9,369 2,014 $164,676 $11,925 2014 1,831 $2,810 $1,000 1,781 $131,154 $9,800 2,026 $225,532 $14,143 2015 1,305 $2,906 $1,000 1,277 $167,494 $10,978 1,556 $254,819 $15,253 High Risk 2009 1,217 $2,337 $1,000 1,627 $31,875 $4,930 1,652 $30,772 $6,300 2010 1,215 $5,651 $1,000 1,671 $30,805 $4,600 1,656 $28,958 $5,027 2011 1,316 $2,129 $1,000 1,736 $29,727 $4,976 1,718 $45,776 $6,198 2012 1,235 $3,082 $1,000 1,746 $50,457 $5,312 1,660 $44,930 $7,000 2013 1,215 $2,845 $1,000 1,731 $39,692 $5,001 1,564 $50,342 $6,001 2014 1,255 $2,045 $1,000 1,631 $37,152 $4,763 1,784 $33,049 $5,060 2015 878 $2,056 $1,000 1,262 $40,939 $4,834 1,262 $59,908 $5,818 10 FEDERAL PROBATION Volume 80 Number 1
TABLE 7. Repayment Ratio and Amount While Under Supervision Pre and Post Policy
Pre-Low Risk Policy Post-Low Risk Policy Payment Rate Amount Paid Payment Rate Amount Paid Payment types Number Mean Median Mean Median Number Mean Median Mean Median Low Risk Fines Under One Year of Supervision 2,305 93% 100% $4,114 $500 2,193 91% 100% $5,388 $500 One to Two Years of Supervision 1,148 91% 100% $9,356 $1,318 2,457 83% 100% $29,870 $1,858 Two to Three Years of Supervision 448 92% 100% $11,250 $2,000 1,131 79% 100% $7,694 $2,200 Joint/Several Restitution Under One Year of Supervision 312 19% 3% $19,625 $2,102 569 15% 1% $20,451 $1,400 One to Two Years of Supervision 440 24% 7% $34,441 $3,368 1,948 14% 2% $46,231 $2,913 Two to Three Years of Supervision 351 19% 4% $35,155 $3,820 1,553 13% 2% $27,418 $4,680 Restitution Under One Year of Supervision 1,131 49% 38% $35,682 $1,276 1,667 37% 7% $18,493 $1,260 One to Two Years of Supervision 1,341 49% 28% $26,601 $2,316 4,429 28% 5% $17,438 $2,366 Two to Three Years of Supervision 784 40% 15% $32,426 $3,622 2,944 23% 4% $18,270 $3,428 Moderate Risk Fines Under One Year of Supervision 1,505 83% 100% $838 $375 1,143 74% 100% $681 $300 One to Two Years of Supervision 674 80% 100% $1,468 $532 1,345 63% 76% $1,272 $540 Two to Three Years of Supervision 310 85% 100% $2,172 $1,000 826 66% 78% $1,469 $950 Joint/Several Restitution Under One Year of Supervision 326 24% 9% $5,830 $949 326 15% 3% $3,591 $511 One to Two Years of Supervision 378 24% 7% $6,132 $873 988 18% 4% $8,285 $888 Two to Three Years of Supervision 229 27% 8% $4,408 $1,375 660 19% 6% $4,633 $1,578 Restitution Under One Year of Supervision 682 37% 13% $2,223 $589 610 30% 7% $1,467 $400 One to Two Years of Supervision 591 42% 20% $2,670 $830 1,532 28% 7% $4,966 $751 Two to Three Years of Supervision 369 43% 23% $3,546 $1,350 1,039 31% 9% $3,348 $1,240 High Risk Fines Under One Year of Supervision 638 61% 70% $809 $328 1,143 74% 100% $681 $300 One to Two Years of Supervision 466 67% 96% $1,071 $500 1,345 63% 76% $1,272 $540 Two to Three Years of Supervision 204 74% 100% $1,061 $793 826 66% 78% $1,469 $950 Joint/Several Restitution Under One Year of Supervision 395 19% 5% $2,140 $403 326 15% 3% $3,591 $511 One to Two Years of Supervision 266 23% 10% $2,408 $692 988 18% 4% $8,285 $888 Two to Three Years of Supervision 129 27% 8% $2,379 $918 660 19% 6% $4,633 $1,578 Restitution Under One Year of Supervision 824 34% 13% $1,399 $404 610 30% 7% $1,467 $400 One to Two Years of Supervision 595 37% 15% $1,514 $580 1,532 28% 7% $4,966 $751 Two to Three Years of Supervision 255 46% 25% $1,929 $879 1,039 31% 9% $3,348 $1,240 June 2016 SUPERVISION OF LOW-RISK OFFENDERS 11 the collection of court-owed fines despite There are limitations in this study that Baber, L. (2015). Inroads to reducing federal the fact that less time and resources were could be addressed by additional research. In recidivism. Federal Probation, 79(3) 3-8. being expended on the low-risk population. sum, this is a descriptive analysis that exam- Cohen, T., & VanBenschoten, S. (2014). Does Restitution payments, however, did decrease ines how the low-risk policy is related to the the risk of recidivism for supervised offend- noticeably under the low-risk policy. This contact patterns and the recidivism rates for ers improve over time?: Examining changes in the dynamic risk characteristics for finding could indicate that low-risk offenders offenders classified as low risk. It suggests that offenders under federal supervision. Federal implementation of the low-risk policy resulted are less amenable to paying restitution under a Probation, 78(2), 15-21. policy that minimizes their contacts with offi- in less intense supervision practices and that Hughes, J. (2008). Results-based management cers. It’s important to note that restitution has the minimization of contacts with low-risk in federal probation and pretrial services. historically been paid at lower rates than fines, offenders has not jeopardized public safety. Federal Probation, 72(2), 4-14. and that this was true prior to the low-risk More rigorous research approaches could be Johnson, J., Lowenkamp, C., VanBenschoten, S., policy. Hence, while payment of restitution used to further understand how officers are & Robinson, C. (2011). The construction has decreased among post-policy low-risk modifying their supervision strategies under and validation of the Federal Post Convic- offenders, the payment rate has always been the low-risk policy and the effect of this tion Risk Assessment (PCRA). Federal less than for fines. policy on supervision outcomes of arrests and Probation, 75(2), 16-29. Among higher risk offenders, the expected revocations. Specifically, methods including Lowenkamp, C., Johnson, J., VanBenschoten, S., Robinson, C., & Holsinger, A. (2013). The increase in officer/offender contacts did not propensity score matching and regression Federal Post Conviction Risk Assessment discontinuity could be applied to introduce completely occur. Specifically, moderate-risk (PCRA): A construction and validation offenders recorded slight decreases in their statistical controls. Also, subsequent research study. Psychological Services, 10(1), 87-96. median contacts while high-risk offenders saw could examine other aspects of supervision Lowenkamp, C., Flores, A., Holsinger, A., Ma- some rise in their contact activity. Changes practices, including whether the provision of karios, M., & Latessa, E. (2010). Intensive in collateral contacts accounted for most of substance abuse and mental health treatment supervision programs: Does program the increases in contact activity for high- services and monitoring services such as drug philosophy and the principles of effective risk offenders. Conversely, personal contacts testing have declined for low-risk offenders. interventions matter? Journal of Criminal remained essentially unchanged for offenders Justice, 38(4): 368-375. in the highest risk category. It is crucial to References Lowenkamp, C., Latessa, E., & Holsinger, A. note that the number of offenders per officer Administrative Office of the U.S. Courts. (2006). The risk principle in action: What have we learned from 13,676 offenders increased by an average of 15 offenders dur- (AOUSC) (2011). An Overview of the federal Post Conviction Risk Assessment. Wash- and 97 correctional programs? Crime and ing the time period covered by this study. Delinquency, 51(1): 1-17. Moreover, the federal system has received ington, D.C.: Administrative Office of the U.S. Courts. Lowenkamp, C., & Latessa, E. (2004). Increasing an increase in the proportion of higher risk Alexander, M., & VanBenschoten, S. (2008). the effectiveness of correctional program- offenders. According to a recently published The evolution of supervision in the federal ming through the risk principle: Identifying report, the average PCRA scores rose from probation system. Federal Probation, 72(2), offenders for residential placement.Crimi - 5.09 to 6.55 between 2005 and 2011 (Baber, 15-21. nology and Public Policy, 4(2): 263-290. 2015). The increase in the number of offend- American Bar Association. (2016). Federal court The Administrative Office of the U.S. Courts. ers being supervised per officer, combined funding at http://www.americanbar.org/ (2012). Guide to judiciary policy: Volume with a rise in the risk level, may explain why advocacy/governmental_legislative_work/ 8, probation and pretrial services. Washing- median contacts have remained unchanged priorities_policy/independence_of_the_ju- ton, DC: Administrative Office of the U.S. Courts. for these high-risk offenders. Lastly, some of diciary/federal-court-funding.html Andrews, D. R., Bonta, J., & Hoge, R. D. (1990). WilsonElser. (2013). Joint and Several Li- the declines in contact activity for low-, low/ ability: 50 State Survey. Washington, DC: moderate-, and moderate-risk offenders may Classification for effective rehabilitation: Rediscovering psychology. Criminal Justice WilsonElser. be explained by budget sequestration, which and Behavior, 17, 19-52. resulted in cutbacks in officer services for all Andrews, D. R., & Bonta, J. (2010). The psychol- levels of offenders. ogy of criminal conduct (5th edition). Cincin- nati, OH: Anderson Publishing. 12 FEDERAL PROBATION Volume 80 Number 1 ArticleExamining Title Overrides of Risk Classifications for Offenders on Federal Supervision
Thomas H. Cohen1 Bailey Pendergast Scott W. VanBenschoten Probation and Pretrial Services Office Administrative Office of the U.S. Courts
THE FEDERAL PROBATION and pretrial an offender’s learning styles and potential score underrepresents his or her risk to reof- services system employs approaches grounded treatment barriers (the responsivity principle) fend. This component of the risk classification on evidence-based practices to ensure (AOUSC, 2011).2 process is referred to as professional discre- community safety and reduce recidivism The PCRA has been empirically shown to tion or supervision override and is one of (Alexander & VanBenschoten, 2008; Cohen & effectively predict the likelihood that an offender the major principles of effective evidence- VanBenschoten, 2014; Hughes, 2008). In order will recidivate during his or her supervision based supervision practices. The rationale to meet these objectives, federal probation period (Johnson, Lowenkamp, VanBenschoten, for allowing overrides in risk assessment has adopted the risk, needs, and responsiv- & Robinson, 2011; Lowenkamp, Johnson, mechanisms is that actuarial scores cannot ity (RNR) model of correctional supervision VanBenschoten, Robinson, & Holsinger, 2013; always capture the unique characteristics of practices (Alexander & VanBenschoten, 2008; Lowenkamp, Holsinger, & Cohen, 2015). individuals that officers can identify through Andrews, Bonta, & Hoge, 1990; Andrews Moreover, several studies have shown the various investigation techniques (Schmidt, & Bonta, 2010). One of the key events in PCRA’s efficacy at measuring change in an Sinclair, & Thomasdottir, 2016). Professional federal probation’s embrace of the RNR offender’s recidivism risk factors over time and overrides, hence, allow officers to depart model was the decision to construct, develop, the relationship between change in actuarial from the actuarial score when the totality of and implement the Post Conviction Risk risk and arrest outcomes (Lowenkamp et al., an offender’s characteristics suggests that the Assessment instrument (PCRA). The PCRA 2013; Cohen & VanBenschoten, 2014; Cohen, offender should be supervised at a level that is a dynamic actuarial risk assessment instru- Lowenkamp, & VanBenschoten, 2016). diverges from the risk classification. The over- ment developed for federal probation officers It is crucial to note that officers do not ride function is woven not only into the PCRA that incorporates most of the aspects of the have to supervise offenders according to their but into many risk classification instruments RNR model into federal supervision. Through original PCRA risk designations. Specifically, (Andrews et al., 1990; McCafferty, 2015). the PCRA, officers can classify offenders into judicial policy allows officers the option of As we will subsequently discuss, judicial different risk levels and identify those who are departing from the PCRA’s risk classification policy allows overrides for reasons we call most likely to recidivate (the risk principle), scheme by changing the risk level originally policy-related if the offender meets the follow- ascertain dynamic criminogenic characteris- assigned to the offender (Guide to Judiciary ing specified criteria: sex offender, persistently tics that if addressed could reduce reoffending Policy, 2014). For example, offenders placed violent, mental health issues, or serious youth- behavior (the need principle) and tailor inter- in the low-risk category by the PCRA could ful offender. Conversely, all other overrides are ventions and treatments that take into account be overridden to a higher risk level for super- labeled “discretionary overrides.” Although vision purposes should the officer, upon judicial policy gives officers the discretion to 1 Correspondence concerning this article should reviewing the offender’s profile, feel that in override, there have been few empirical efforts be addressed to Thomas H. Cohen, Administrative his or her professional judgment the PCRA to examine officer overrides in the federal Office of the U.S. Courts, One Columbus Circle, supervision system. This research will exam- NE, Washington, DC 20544. Email: Thomas_ [email protected]. The authors would like to 2 See Johnson, Lowenkamp, VanBenschoten, ine several key issues, including the overall thank our colleagues at the Administrative Office and Robinson (2011) and Lowenkamp, Johnson, prevalence of overrides for offenders under of the U.S. Courts, including Laura Baber, Nancy VanBenschoten, Robinson, and Holsinger (2013) federal supervision, the types of overrides (i.e., Beatty, and Matthew Rowland, for their helpful for information about the construction, validation, policy or discretionary) used by officers, and suggestions and comments. This publication also and implementation of the PCRA in the federal benefited from the careful editing of Ellen Fielding. supervision system. June 2016 EXAMINING OVERRIDES OF RISK CLASSIFICATIONS 13 the rationales provided by officers when using cases where the officer believes that the PCRA supervision override data were not electroni- discretionary overrides. has not adequately assessed an offender’s cally available until August 31, 2012 (n lost In this article we will also explore the risk of recidivism. The low-risk PCRA clas- = 90,585). In addition, offenders with PCRA adjustments in risk levels that occur as a result sification of an offender, for example, can be assessments occurring after 2013 were removed of overrides and whether offenders with over- overridden to a higher risk level (e.g., moder- because our recidivism follow-up period ended rides are supervised differently in terms of ate or high risk) if the officer thinks that the on December 31, 2014 (n lost = 33,818). Since their monthly officer/offender contacts and offender’s likelihood of recidivism is being we wanted to track offender recidivism patterns treatment services compared to offenders with- underestimated by the PCRA. Conversely, for at least 12 months, we excluded offenders out overrides. Last, we will examine whether officers can override the classifications of who received their PCRA assessments with offenders with overrides are recidivating at higher-risk offenders into lower risk levels if fewer than 12 months of recidivism follow-up. rates similar to their original or reclassified risk they deem that the initial PCRA calculation Despite the omission of these offenders, the levels. In other words, are the recidivism rates overstated the offender’s recidivism risk. study population mirrors that of larger popula- for low-risk offenders reclassified for supervi- The Guide also states that overrides should tions analyzed for other PCRA studies in terms sion purposes into high-risk levels similar to be relatively rare and that officers should use of their overall risk factors and demographic that of offenders initially classified as high risk, overrides for only certain case types (in the characteristics (see Lowenkamp et al., 2015). or are the arrest rates for these offenders more case of policy overrides) or supply rationales for Moreover, the percentage of offenders receiving similar to those of low-risk offenders? employing overrides (in the case of discretion- professional overrides has been relatively stable In the next section, we provide an overview ary overrides). Policy overrides involve instances over the past several fiscal years. Hence, the of the federal supervision system’s override where officers move offenders into higher or findings gleaned from these 58,500 offenders policy. Afterwards, we detail the methodologi- lower supervision levels because the offenders should be generalizable to the larger population cal framework used for this study. meet one or more of the following criteria: (1) of offenders currently under supervision in the they are classified as sex offenders, (2) they evi- federal system.5 Policy on Supervision Overrides dence patterns of persistently violent behavior, The risk and demographic characteristics of According to Volume 8E, §440, of the Guide (3) they manifest past or current indications of offenders in the study population are provided to Judiciary Policy (the Guide), officers may severe mental illness, or (4) they are youthful in Table 1. According to the PCRA, 75 percent diverge from the PCRA’s risk classification offenders with extensive criminal histories. In of offenders assessed within the study period scheme by placing offenders into different— addition to policy overrides, the Guide provides were initially classified as either low (35 percent) higher or lower—risk levels. To understand officers with latitude to issue overrides for other or low/moderate (40 percent) risk, while the how officers employ supervision overrides, we reasons; in this case they are discretionary over- remaining 25 percent fell into the moderate (19 first detail the PCRA’s risk classification mech- rides. A comprehensive justification is required percent) or high risk (6 percent) classification anism. The PCRA assesses an offender’s risk of whenever the officer decides to override an categories. Interestingly, the risk distribution recidivism through a process in which federal offender for discretionary reasons. Regardless changes somewhat once supervision overrides probation officers score offenders on 15 static of whether an officer overrides for policy or dis- are taken into account. After accounting for and dynamic risk predictors related to an cretionary reasons, any override request must be override adjustments, the percentage of offend- offender’s criminal history, education/employ- reviewed and approved by a supervising officer ers classified as low risk decreases from 35 ment, substance abuse, social networks, and (AOUSC, 2011; Guide to Judiciary Policy, 2014). percent to 31 percent, while the percentage supervision attitude characteristics.3 Officers placed in the highest risk category increases use these 15 predictors to generate a raw Data and Methods from 6 percent to 11 percent. Additional details PCRA score ranging from 0 to 18, which Participants on override adjustments will be provided in the translates into the following four risk cat- Data for this study were obtained from 94 findings section of this paper. egories: low (0-5 points), low/moderate (6-9 U.S. federal judicial districts and comprised Regarding the study population’s demo- points), moderate (10-12 points), or high (13 58,524 initial PCRA assessments conducted graphic characteristics, 57 percent were white or more points). These risk categories provide between August 31, 2012, and December 30, and 37 percent were black. Hispanics com- crucial information about an offender’s likeli- 2013. These assessments were drawn from a prised 24 percent of the sample. Over four hood of recidivism and inform officers about larger dataset containing 182,927 initial PCRA fifths (84 percent) of these offenders were the appropriate levels of supervision inten- assessments conducted within the time frame male and the average age was 39 years. Last, sity that should be allocated (AOUSC, 2011; spanning August 1, 2010, through December 85 percent were placed on supervised release, Johnson et al., 2011; Lowenkamp et al., 2013). 31, 2014.4 PCRA assessments prior to 2012 while the remainder had been directly sen- 6 The Guide incorporates the principle were excluded from this study because the tenced to a term of probation. that officers should be able to use profes- sional judgment when determining the most 5 4 We used the initial PCRA assessment date rather According to federal probation’s internal report- suitable levels of supervision intensity by than the actual supervision start date to anchor ing systems, a total of 135,468 offenders were on providing guidance on when officers should this study because when the PCRA was deployed, federal supervision as of 9/30/2015. exercise their discretion to override offend- PCRAs were done on offenders who might have 6 Supervised release refers to offenders sentenced ers (Andrews et al., 1990). According to the been well into their supervision term. Since our to a term of community supervision following a focus was on examining supervision overrides for Guide, supervision overrides should occur in period of imprisonment within the Federal Bureau all offenders receiving PCRA assessments, we were of Prisons (18 U.S.C. §3583). Probation refers to not concerned with restricting our study population offenders sentenced to a period of supervision 3 See AOUSC (2011) for a detailed discussion of to offenders with short time periods between their without any imposed incarceration sentence (18 the PCRA’s recidivism predictors. supervision start and PCRA assessment dates. U.S.C. §3561). 14 FEDERAL PROBATION Volume 80 Number 1
TABLE 1. For consistency purposes, we recoded these comparable to those offenders classified at Characteristics of Federal Offenders discretionary departures into the appropriate their original or adjusted risk levels. in Study Sample policy override categories. Hence the percent- age of offenders with policy and discretionary Findings Descriptive Offender Characteristics Information overrides reported in this study will differ Overall Prevalence of from that shown in federal probation’s internal Professional Overrides Original PCRA Risk Levels reporting systems.7 Low 34.9% We initially focus on the prevalence of over- Finally, in certain sections of this paper rides for offenders under federal supervision. Low/Moderate 40.3% we combined the policy overrides involv- Overall, 9 percent of the 58,524 offenders in Moderate 19.0% ing history of persistently violent behavior, our study population received supervision High 5.7% evidence of severe mental illness, or youthful overrides (see Table 2). Among offenders with Adjusted Supervision Levels offenders with extensive criminal histories overrides, officers overrode about two-thirds into an “other” policy override category. We Low 30.7% (68 percent) for policy reasons, while discre- combined these override types into one cat- tionary overrides accounted for the remainder Low/Moderate 38.5% egory because, as will be shown, there were of supervision adjustments. Examining the Moderate 19.4% relatively few offenders overridden for these relationship between officer overrides and High 11.4% specific policy types. initial PCRA risk levels shows that over- Supervised Release 85.0% Offender Recidivism Outcomes rides occurred more frequently for low- than Male Offender 84.3% high-risk offenders. For instance, 13 percent Recidivism is defined in this study as the Race of low-risk offenders were overridden to arrest of an offender for either a felony or another risk level compared to 9 percent of White 57.2% misdemeanor offense (excluding arrests for low/moderate and 8 percent of moderate-risk Black 36.6% technical violations) within one year after the offenders. Less than 1 percent of offenders Other 6.2% PCRA reassessment date. In addition to mea- initially classified in the high-risk category Hispanic Offender 23.9% suring any arrests, we also identified arrests were overridden to a lower supervision level. for violent offenses committed within one Mean Age 39.3 yrs. A combination of sex offender policy and dis- year after the initial PCRA assessment. Violent cretionary overrides drove the override rates Number of Offenders 58,524 arrests were defined using the definitions for lower-risk offenders. Interestingly, other- Note: Includes offenders with PCRA assessments that from the National Crime Information Center occurred between August 31, 2012, and December policy overrides were slightly more frequent 31, 2013. (NCIC), which included homicide and related for moderate (3 percent) than for low-risk (1 offenses, kidnapping, rape and sexual assault, percent) offenders. robbery, and assault. The recidivism data were Table 3 shows override rates by an offend- Measuring Discretionary gathered through the NCIC and Access to Law er’s most serious conviction offense and Supervision Overrides 8 Enforcement System databases (ATLAS). demographic characteristics. The override In this study, we explored the rationales pro- Analytical Plan rate was highest for sex offenders; over three- vided by officers for discretionary overrides in fourths of these offenders (77 percent) were greater detail. This research presented several The current study uses descriptive statistics placed into supervision levels that differed challenges in that officers can, and often do, to explore overrides for offenders on federal from their initial PCRA risk classifications. provide extensive written rationales in the text supervision. It examines the overall frequency In addition, the override rates for offenders fields when justifying a discretionary override. of overrides and investigates the types of over- convicted of firearms (12 percent) and violent While these text fields provide rich rides (e.g., policy or discretionary) employed offenses (11 percent) were slightly higher than information about an offender’s risk char- by officers, with specific inquiries into the the 9 percent baseline override rate. The fact acteristics, they do not lend themselves to rationales used for discretionary overrides. that most sex offenders were overridden to quantifiable analysis. We addressed this issue This research also explores the adjustments higher risk levels is not surprising, since policy by using text-mining techniques to categorize in risk levels that result from overrides and provides officers with discretion to adjust the these rationales into broader groups such whether officers deliver supervision services supervision levels for these offenders upwards as substance abuse problems, evidence of commensurate with the reclassified risk level. at the beginning of supervision while the offi- noncompliant behavior, electronic monitor- The research then analyzes whether the recidi- cer thoroughly assesses the offender (Guide to ing, and gang activity, which could be used vism rates for offenders with overrides are Judiciary Policy, 2014). Offenders convicted for analytical purposes. Ultimately, we were 7 See Decision Support Systems (DSS) report of firearms and violent offenses also gar- able to successfully classify 90 percent of the #1193 on policy and discretionary override rates. nered overrides at higher rates, because they 3,121 discretionary overrides into broader 8 ATLAS is a software program used by the are more likely to have characteristics that categories. Interestingly, 45 percent of the Administrative Office of the U.S. Courts that pro- would justify policy overrides for persistently 3,121 discretionary overrides were identified vides an interface for performing criminal record violent behavior. through this text-mining process as having checks through a systematic search of official state and federal rap sheets. It is widely used by probation occurred for policy reasons. In other words, and pretrial services officers to perform criminal officers had provided policy justifications record checks on defendants and offenders for (e.g., sex offender; offender has serious mental supervision and investigation purposes (Baber, health issues) for the discretionary overrides. 2010). June 2016 EXAMINING OVERRIDES OF RISK CLASSIFICATIONS 15
TABLE 2. Percent of Federal Offenders with Any, Policy, or Discretionary Overrides
Policy Overrides Initial PCRA risk Number of offenders All overrides Any Sex offender Other Discretionary Override Total 58,524 9.4% 6.5% 4.6% 1.8% 2.9% Low 20,439 12.5% 8.2% 6.8% 1.4% 4.3% Low/Moderate 23,599 8.5% 5.9% 3.8% 2.1% 2.6% Moderate 11,130 8.4% 6.5% 3.8% 2.7% 1.9% High 3,356 0.2% 0.0% 0.0% 0.0% 0.2% Note: Other policy includes mental health, persistently violent, and youthful offender overrides.
TABLE 3. Types of Policy and Percent of Federal Offenders with Policy or Discretionary Overrides, by Offense Discretionary Overrides Type and Demographic Characteristics Next, we examine the types of policy and dis- Percentage of Offenders with cretionary overrides used by officers. Figure Offense & Number of Any 1 focuses on policy overrides. This figure Demographics Offenders Overrride Policy Discretionary includes overrides that were originally sub- Conviction offense mitted as discretionary before being re-coded into policy overrides. Nearly three-fourths (72 Sex Offense 2,268 76.6% 75.9% 0.7% percent) of policy overrides were for offend- Firearms 8,667 12.4% 9.9% 2.5% ers who met the sex offender criteria. The Violence 2,809 10.5% 7.2% 3.3% remainder of policy overrides involved severe Other 2,829 8.7% 4.7% 4.0% mental illness (16 percent) and persistently White Collar 10,963 6.1% 2.5% 3.6% violent behavior (12 percent). Figure 2 displays the most common discre- Drug 26,865 5.0% 2.0% 3.0% tionary overrides. In over a third (35 percent) Immigration 2,581 3.4% 1.6% 1.8% of discretionary overrides, the officer cited Public Order 1,417 3.5% 1.1% 2.5% the offender’s substance abuse problems as Gender a reason for adjusting the supervision level. Male 49,326 10.1% 7.2% 2.9% Evidence of noncompliant behavior accounted Female 9,198 5.6% 2.5% 3.1% for 17 percent of discretionary overrides, while 10 percent or more occurred because Race the officer indicated that issues related to loca- Other 3,600 11.8% 9.7% 2.1% tion monitoring (13 percent), employment White 33,382 11.1% 8.0% 3.1% (12 percent), criminal history (11 percent), or Black 21,385 6.4% 3.6% 2.8% financial penalties (10 percent) necessitated a 9 Ethnicity supervision adjustment. Not Hispanic 43,887 10.7% 7.6% 3.1% It is notable that some of the justifications provided by officers for discretionary over- Hispanic 13,749 5.3% 2.9% 2.4% rides are already being measured through Note: Offense types excludes offenders convicted of escape/obstruction, technical violations, and other offenses. the PCRA. For example, evidence of non- compliant behavior and criminal history are currently measured in the PCRA’s criminal history section, while employment issues and substance abuse problems are scored in its education/employment and substance abuse domains. Moreover, other rationales such as location monitoring and the collection of financial penalties suggest that issues related to workload and case activity might be driving the override decision rather than enhanced recidivism risk. Substantial amounts of officer
9 Because officers write their rationales for over- rides, multiple reasons could be attributed to one offender. 16 FEDERAL PROBATION Volume 80 Number 1
was adjusted by one or multiple levels. Sex FIGURE 1. offender policy overrides, for example, almost Override Types for Federal Offenders with Policy Overrides always resulted in offenders being placed in the highest risk category, irrespective of e o e er l o their initial PCRA risk designation. Over 80 or urre m om percent of low risk and nearly 90 percent of 1 o e ere me l ll e low/moderate risk offenders with sex offender
er e l ole be or 1 overrides were reclassified into the highest risk category. The reclassification of lower ou ul o e er risk sex offenders into the highest risk levels e e e r m l or 0 should not be too surprising, as policy recom- 0 0 0 80 mends that sex offenders initially be placed er e o o e er ol o err e into the highest risk category while officers conduct a thorough review of the offender’s proclivities for aggressive sexual behavior. FIGURE 2. After completing this assessment, the Guide Override Rationales for Federal Offenders with Discretionary Overrides recommends that officers reclassify those sex offenders deemed not at the highest risk ub e bu e roblem into a lower risk category (Guide to Judiciary er e o o e er re o r o err e e e o o om l be or 1 Policy, 2014). No e ll o um o 100 mul le r o le be u e or re o r o err e No ll r o le o o o mo or 1 Other-policy and discretionary overrides resulted in less substantial adjustments in risk m lo me ue 1 levels. About 60 percent of low-risk offenders ub l r m l or 11 with other-policy overrides, for example, had l e l e 10 their risk levels adjusted upwards by only one e er e o u er o level. Moreover, approximately three-fourths ol eme of low and two-thirds of low/moderate risk offenders with discretionary overrides were o l e or o o placed into risk categories one level higher e e l b l or ue than their original levels. ore ere rom
l e l 10 0 0 0 er e o o e er re o r o err e
No e ll o um o 100 mul le r o le be u e or re o r o err e No ll r o le o time, for instance, can be involved monitoring TABLE 4. offenders with location monitoring condi- Adjustments in Supervision Levels for Federal Offenders with Overrides, tions, and hence officers might be responding by Initial Risk Level to these additional workload demands by Adjusted Supervision Levels adjusting risk levels upwards. Number with Low/ Adjustments in Risk Levels for Offenders Initial Risk Levels Overrides Low Moderate Moderate High with Overrides Low 2,558 — 36.3% 14.0% 49.7% Tables 4 and 5 examine the adjustments in risk Low/Moderate 2,006 3.1% — 39.2% 57.7% levels that result from supervision overrides. In Moderate 933 0.6% 2.1% — 97.2% general, overrides are upward adjustments of High 6 0.0% 16.7% 83.3% — an offender’s risk levels. Of the roughly 5,500 Note: Includes only offenders with supervision overrides. offenders with overrides, only 2 percent were adjusted downwards. The decision to override an offender often meant that they were reclas- sified into the highest risk level. For example, half of the low risk and three-fifths of the low/ moderate risk offenders with overrides were reclassified into the high risk category. The type of override often influenced whether the offender’s supervision category June 2016 EXAMINING OVERRIDES OF RISK CLASSIFICATIONS 17
TABLE 5. Comparing Supervision Intensity for Adjustments in Supervision Levels for Federal Offenders with Overrides, by Initial Offenders with and without Overrides Risk Level and Override Types In this section, we explore whether offenders Adjusted Supervision Levels with overrides were supervised more inten- Number sively by probation officers than offenders with Low/ without overrides. Supervision intensity is Initial Risk Levels Overrides Low Moderate Moderate High measured by the average number of monthly Policy-Sex Offender officer/offender contacts and the provision of Low 1,393 — 6.5% 12.1% 81.3% treatment services. Table 6 depicts the average number of Low/Moderate 898 0.0% — 10.6% 89.4% monthly officer/offender contacts for offend- Moderate 426 0.0% 0.0% — 100.0% ers with and without supervision overrides. High 0 0.0% 0.0% 0.0% — The bold font indicates offenders without over- Policy-Other ride adjustments. Officer/offender contacts Low 285 — 59.3% 26.3% 14.4% are categorized into any contacts, personal contacts, and collateral contacts. Personal Low/Moderate 492 0.6% — 58.3% 41.1% contacts involve direct interactions between Moderate 297 0.0% 1.0% — 99.0% officers and offenders and typically take place High 1 0.0% 0.0% 100.0% —- in an officer’s office or an offender’s home. Discretionary Collateral contacts involve officers interacting Low 880 — 75.9% 13.0% 11.1% with persons familiar with the offender such Low/Moderate 616 9.6% — 65.8% 24.7% as treatment providers, law enforcement offi- cers, employers, or family members. Moderate 210 2.9% 7.6% — 89.5% Examining the average number of monthly High 5 0.0% 20.0% 80.0% —- officer/offender contacts shows that over- Note: Includes only offenders with supervision overrides. ride offenders were contacted at rates nearly Other policy includes mental health, persistently violent, and youthful offender overrides. equaling their adjusted rather than their origi- nal risk categories. For example, the average
TABLE 6. Average Number of Monthly Total, Personal, or Collateral Contacts, by Original and Adjusted Risk Levels
Adjusted Supervision Levels Low Low/Moderate Moderate High Average Average Average Average Initial Risk Levels Number Contacts Number Contacts Number Contacts Number Contacts Average Total Monthly Contacts Low 17,458 1.1 924 1.6 358 2.1 1,271 3.1 Low/Moderate 57 1.0 21,285 1.7 780 2.3 1,151 3.3 Moderate 6 — 20 1.3 10,055 2.5 888 3.7 High 0 — 1 — 5 — 3,259 3.3 Average Personal Monthly Contacts Low 17,458 0.7 924 1.0 358 1.2 1,271 1.8 Low/Moderate 57 0.6 21,285 1.1 780 1.3 1,151 1.8 Moderate 6 — 20 0.8 10,055 1.4 888 1.8 High 0 — 1 — 5 — 3,259 1.7 Average Collateral Monthly Contacts Low 17,458 0.3 924 0.5 358 0.9 1,271 1.4 Low/Moderate 57 0.4 21,285 0.6 780 0.9 1,151 1.5 Moderate 6 — 20 0.5 10,055 1.1 888 1.8 High 0 — 1 — 5 — 3,259 1.6 Note: Bold font denotes that no override occurred. Officer/offender contact data available for 98% of offenders. — Not enough cases to produced statistically reliable estimates. 18 FEDERAL PROBATION Volume 80 Number 1 number of total monthly contacts for low-risk TABLE 7. offenders placed into the high supervision Percent of Offenders Provided with Contract Treatment Services, by Initial PCRA category (3.1 monthly contacts) approximates Risk Level and Override Types that of high-risk offenders without over- Any Treatment Service/a rides (3.3 monthly contacts). Similar patterns were observed for the personal and collateral Original & Adjusted Risk Levels Number Percent Receive Avg Hours Per Month contacts. For instance, low/moderate risk Low Risk—No Adjust 17,881 10.3% 1.3 offenders overridden into the high supervi- Low Risk with Overrides sion category received about the same number All Overrides 2,558 55.3% 4.1 of monthly personal contacts (1.8 personal Policy-Sex Offender 1,393 80.8% 4.7 contacts per month) as offenders with an Policy-Other/b 285 31.2% 1.3 initial high risk classification (1.7 personal contacts per month). Discretionary 880 22.7% 1.7 Table 7 examines the provision of con- Low/Moderate Risk—No Adjust 21,593 24.7% 1.7 tractual treatment services for federally Low/Moderate Risk with Overrides supervised offenders with and without All Overrides 2,006 52.4% 3.3 overrides. Offenders received contractual Policy-Sex Offender 898 73.3% 4.0 treatment services if substance abuse, men- tal health, or sexual offending services were Policy-Other/b 492 38.2% 2.1 provided through contracts held by the pro- Discretionary 616 33.3% 2.0 bation office. In general, this means that Moderate Risk—No Adjust 10,197 39.5% 2.0 the probation office paid for all or part of Moderate Risk with Overrides the services delivered. It should be noted All Overrides 933 57.7% 3.1 that non-contractual treatment services are Policy-Sex Offender 426 70.0% 3.8 frequently provided to federally supervised offenders, meaning that officers are by policy Policy-Other/b 297 50.8% 2.1 encouraged to procure community services Discretionary 210 42.4% 2.3 where available. Non-contractual treatment High Risk—No Adjust 3,350 49.2% 2.3 services are typically not reported in federal Note: Excludes high-risk offenders with downward adjustment because there were too few of these offenders (N=6) to probation’s data system and hence are unavail- provide statistically reliable estimates. able for analytical purposes. a/Any treatment services includes offenders receiving contract services for sex offender, substance abuse, or mental health treatment. Table 7 shows offenders with overrides b/Policy-other includes overrides for mental health, persistently violent, or youthful offenders. receiving contractual treatment services at substantially higher rates than their coun- terparts without overrides. For instance, the percentage of low-risk offenders with supervi- Examining the Recidivism For example, the recidivism rates for low-risk sion overrides receiving contractual treatment Rates for Offenders Receiving offenders overridden into supervision catego- services (55 percent) was five times higher Supervision Overrides ries of low/moderate (4 percent arrest rate), than low-risk offenders without supervision The next series of tables and figures focuses moderate (5 percent arrest rate), or high (4 adjustments (10 percent). The use of contract on the relationship between supervision over- percent arrest rate) risk were essentially the treatment services was particularly evident rides and recidivism. Specifically, we examined same as low-risk offenders without overrides for sex offenders with policy overrides. The whether offenders overridden into another (4 percent arrest rate). Similar patterns of percentage of low/moderate or moderate risk risk category recidivated at rates that were offenders with upward overrides also held for sex offenders with policy overrides receiv- consistent with either their original or their low/moderate and moderate risk offenders. ing contract treatment services equaled or adjusted risk levels. Stated differently, this sec- Unlike the upward overrides, offenders exceeded 70 percent; moreover, 80 percent tion explores whether low-risk offenders, for with downward overrides reoffended at rates of low-risk sex offenders with policy over- example, placed into the high-risk category nearly equivalent to their adjusted rather rides received treatment services. Offenders exhibited reoffending behavior similar to that than initial risk levels. For instance, the 20 with other-policy or discretionary overrides of their initial (e.g., low risk) or adjusted (e.g., moderate risk offenders adjusted into the low/ were also more likely to receive treatment high risk) risk classification. moderate category recidivated at rates (10 services commensurate with their adjusted Table 8 examines the overall arrest rates percent arrest rate) similar to that of offenders risk classifications than offenders without for offenders by their initial and adjusted originally designated low/moderate risk (11 supervision adjustments. PCRA risk levels. Offenders whose risk levels percent arrest rate). The relatively few num- were not adjusted through supervision over- bers of offenders with downward overrides rides are identified by bold font. In general, implies that these findings should be inter- this table shows that offenders with upward preted with some degree of caution. overrides reoffended at rates comparable to An examination of the relationship their original rather than adjusted risk levels. between supervision overrides and rearrests for violent offenses reveals similar findings June 2016 EXAMINING OVERRIDES OF RISK CLASSIFICATIONS 19
(see Table 9). Basically, the violent arrest rates for each of the override types. In general, the percent arrest rate), and high (9 percent arrest for offenders overridden into higher risk lev- recidivism rates increase incrementally by rate) risk. els were nearly identical to their original as original PCRA risk levels irrespective of the In comparison to sex offenders, there was opposed to adjusted risk levels. For instance, officer’s basis for override. Among sex offend- a closer relationship between adjusted risk low/moderate offenders placed into the mod- ers with policy overrides, for example, the levels and recidivism outcomes for offenders erate or high supervision levels exhibited arrest rates involving any offense increased with other policy or discretionary overrides. arrest rates for violent offenses (2 percent to from 4 percent for low risk to 9 percent for The percentage of other-policy offenders 3 percent violent arrest rate) similar to low/ low/moderate and 21 percent for high-risk arrested for any offense increased in the fol- moderate risk offenders without overrides (2 offenders. Similar patterns of monotonically lowing incremental pattern: 6 percent low/ percent violent arrest rate). increasing arrest rates by initial PCRA risk moderate risk, 11 percent moderate risk, and Next, we restricted our analysis to only category also held for offenders with policy- 19 percent high risk. Among offenders with those offenders receiving overrides and exam- other and discretionary overrides. discretionary overrides, those in the lower ined their recidivism rates first by their initial Figure 4 displays the relationship between adjusted risk categories (e.g., low or low/mod- (see Figure 3) and then by their adjusted risk rearrest rates and adjusted risk levels for each erate supervision levels) were less likely to be levels (see Figure 4). Specifically, we sought to of the override types. Unlike the previous rearrested than those in the higher adjusted explore the extent to which the relationship analysis, this figure shows a diminishment in risk categories; however, the recidivism rates between the PCRA’s risk categories and recidi- the relationship between recidivism rates and for offenders reclassified into the moderate vism changes once the initial risk groups have PCRA risk categories once the offender’s risk (12 percent arrest rate) or high (14 percent been adjusted to account for supervision over- levels have been adjusted by an override. This arrest rate) risk levels were relatively similar. rides. We also explored these relationships for is particularly true for sex offenders, where In general, the recidivism analysis shows the individual override types of policy-sex the arrest rates were essentially the same offenders with upward overrides being rear- offender, policy-other, and discretionary. across the four adjusted risk levels of low/ rested at rates comparable to their original Figure 3 shows the association between moderate (5 percent arrest rate), moderate (5 rather than adjusted risk levels. These find- rearrest rates and initial PCRA risk categories ings, however, were not uniform across the
TABLE 8. Twelve-Month Arrest Rates for Federal Offenders with Overrides, by Initial Risk and Adjusted Supervision Levels
Adjusted Supervision Levels Low Low/Moderate Moderate High Percent Percent Percent Percent Initial Risk Levels Number Arrested Number Arrested Number Arrested Number Arrested Low 17,881 4.0% 928 3.6% 358 4.8% 1,272 4.2% Low/Moderate 62 6.5% 21,593 10.9% 787 12.6% 1,157 10.8% Moderate 6 — 20 10.0% 10,197 21.0% 907 21.0% High 0 —- 1 — 5 — 3,350 32.0% Note: Bold font denotes that no supervision override occurred. Percentages show arrest rates within 12 months of first PCRA assessment. — Not enough cases to produced statistically reliable estimates.
TABLE 9. Twelve-Month Violent Arrest Rates for Federal Offenders with Overrides, by Initial Risk and Adjusted Supervision Levels
Adjusted Supervision Levels Low Low/Moderate Moderate High Percent Percent Percent Violent Violent Percent Violent Initial Risk Levels Number Arrests Number Arrests Number Arrested Number Arrests Low 17,881 0.6% 928 0.5% 358 0.6% 1,272 0.6% Low/Moderate 62 0.0% 21,593 2.2% 787 2.3% 1,157 2.7% Moderate 6 — 20 0.0% 10,197 5.3% 907 5.3% High 0 — 1 — 5 — 3,350 8.7% Note: Bold font denotes that no supervision override occurred. Percentages show arrest rates for violent offenses within 12 months of first PCRA assessment. — Not enough cases to produced statistically reliable estimates. 20 FEDERAL PROBATION Volume 80 Number 1
override types. The relationship between the FIGURE 3. reclassified risk levels and recidivism dimin- Percent of Offenders with Overrides Arrested for Any Offense, ished the most for the sex offender overrides. by Initial PCRA Risk Classifications and Override Types Part of this pattern can be explained by the
fact that most sex offenders are overridden because of judicial policy into one supervi- 1 sion category (i.e., high risk), hence negating 0 1 the PCRA’s ability to adequately differentiate between sex offenders who are at high or low e
e risk to reoffend. Although policy dictates that 1 officers should override sex offenders into 1 1
e rr the highest risk category while an assess- er
ment of their overall dangerousness is being 10 conducted, it also states that officers should 8 reclassify these offenders into lower risk cat- egories if it is determined that they do not represent a serious danger (Guide to Judiciary Policy, 2014). In regards to the other-policy and discretionary overrides, since most of
ol e e er ol er re o r these offenders are adjusted by only one risk N 1 N 1 0 N 1 11 level, the research shows a continual close u er o err e e relationship between the rearrest rates and adjusted risk levels for these override types. o o o er e o er e Conclusion This research examined professional overrides for offenders under federal supervision. In FIGURE 4. general, officers used the override option infre- Percent of Offenders with Overrides Arrested, by Adjusted PCRA quently, with almost 10 percent of the 58,500 Supervision Levels and Override Types PCRA assessments in our study population being overridden. Two-thirds of adjustments involved policy rather than discretionary overrides. Among the policy overrides, nearly 0 1 three-fourths (72 percent) were because the offender is a sex offender, while the remainder e
e involved rationales for persistently violent 1 1 behavior or severe mental illness. Unlike
e rr 1 the policy overrides, officers are required to
er 11 provide written justifications for their deci- 10 sion to exercise discretionary overrides. The most common discretionary rationales cited involved issues related to substance abuse problems, evidence of noncompliant behav- ior, location monitoring, employment issues,
substantial criminal history, and financial ol e e er ol er re o r penalties. Some of these rationales cited are N 1 N 1 0 N 1 11 already measured by the PCRA (e.g., sub- u er o err e e stance abuse problems, criminal history), o o o er e o er e while others, including location monitor- ing and financial penalties, are indicative of increased workload and case activity. Almost all overrides were an upward adjustment, with the offender being placed into a risk level higher than that designated by the PCRA. Offenders with policy-sex offender overrides received the largest adjustments; they tended to be placed in the highest risk lev- els irrespective of their initial risk designation. June 2016 EXAMINING OVERRIDES OF RISK CLASSIFICATIONS 21
Conversely, offenders with other-policy or References Assessment (PCRA): A construction and validation study. Psychological Services, discretionary overrides were more likely to Administrative Office of the U.S. Courts 10(1), 87-96. be reclassified into a risk category one level (AOUSC) (2011). An Overview of the federal Lowenkamp, C. T., Holsinger, A. M., & Cohen, higher than their original risk level. Overrides Post Conviction Risk Assessment. Wash- T. H. (2015). PCRA revisited: Testing the also influenced actual supervision practices, ington, D.C.: Administrative Office of the validity of the federal Post Conviction Risk with overridden offenders being contacted U.S. Courts. Assessment (PCRA). Psychological Services, Alexander, M., & VanBenschoten, S. W. (2008). by officers and receiving treatment services 12(2), 149-157. The evolution of supervision within the fed- at higher rates than those without overrides. McCafferty, J. T. (in press). Professional discre- eral probation and pretrial system. Journal Finally, this research shows offenders with tion and the predictive validity of a juvenile of Offender Rehabilitation, 47(3), 319-337. overrides recidivating at rates consistent with risk assessment instrument: Exploring the Andrews, D. A., Bonta, J., & Hoge, R. D. (1990). their initial as opposed to adjusted risk levels. overlooked principle of effective correc- Classification for effective rehabilitation: In general, the findings detailed in this tional classification. Youth Violence and Rediscovering psychology. Criminal Justice Juvenile Justice. paper are on par with the relatively small and Behavior, 17, 19-52. Schmidt, F., Sinclair, S., & Thomasdottir, S. number of studies examining professional Andrews, D. A., & Bonta, J. (2010). The psychol- (2016). Predictive validity of the Youth overrides in correctional systems. Specifically, ogy of criminal conduct (5th Ed.). Cincin- Level of Service/Case Management Inven- the 10 percent override rate for federal offend- nati, OH: Anderson Publishing. tory with youth who have committed sexual ers is within the range reported in other Baber, L. (2010). Results-Based framework for and non-sexual offenses.Criminal Justice post-conviction supervision recidivism studies that show override rates of 7 per- and Behavior, 43(3), 413-430. 10 analysis. Federal Probation, 73(3), 5-10. cent to 17 percent for non-sex offenders. Vaswani, N., & Merone, L. (2014). Are there Cohen, T. H., Lowenkamp, C. T., & VanBen- Similar to the current research, nearly all of risks with risk assessment? A study of the schoten, S. W. (in press). Does change in the professional override studies have dem- predictive accuracy of the Youth Level of risk matter? Criminology & Public Policy. onstrated a weaker correlation between the Service—Case Management Inventory with Cohen, T. H., & VanBenschoten, S. (2014). adjusted risk levels and recidivism compared young offenders in Scotland. British Journal Does the risk of recidivism for supervised of Social Work, 44, 2163-2181. to the original risk levels (McCafferty, 2015). offender improve over time? Federal Proba- Wormith, J. S., Hogg, S., & Guzzo, L. (2012). In addition to examining these issues, this tion, 78(2), 41-56. The predictive validity of a general risk/ research has extended our knowledge of pro- Decision Support Systems, Report # 1193. needs assessment inventory on sexual of- fessional overrides by examining why officers (2016). Post Conviction Risk Assessment fender recidivism and an exploration of the decide to use overrides and the relationship policy and discretionary override rates. professional override. Criminal Justice and Internal report retrieved from http://www. between overrides and supervision intensity. Behavior, 39(2), 1511-1538. uscourts.gov. Future research on this topic might want to Wormith, J. S., Hogg, S. M., & Guzzo, L. (2015). Guide to Judiciary Policy. (2014). Guide to further investigate the correlation between The predictive validity of the LS/CMI with judiciary policy: Volume 8, probation and specific types of discretionary overrides and Aboriginal offenders in Canada. Criminal pretrial services. Washington, D.C.: Admin- recidivism as well as employ multivariate Justice and Behavior, 42(5), 481-508. istrative Office of the U.S. Courts. techniques to obtain a better understanding Hughes, J. (2008). Results-based management of how adjustments in risk are correlated with in federal probation and pretrial services. recidivism net of statistical controls. Federal Probation, 72(2), 4-14. Johnson, J., Lowenkamp, C. T., VanBenschoten, S. W., & Robinson, C. (2011). The construc- tion and validation of the federal Post Con- viction Risk Assessment (PCRA). Federal 10 For a review of supervision overrides in other Probation, 75(2), 16-29. community correctional systems see McCafferty Lowenkamp, C. T., Johnson, J., VanBenschoten, (2016); Vaswani and Merone (2014); Wormith, S. W., Robinson, C., & Holsinger, A. M. Hogg, and Guzzo (2012); and Wormith, Hogg, and Guzzo (2015). (2013). The federal Post Conviction Risk 22 FEDERAL PROBATION Volume 80 Number 1 ArticleTrademarks, Title Press Releases, and Policy: Will Rigorous Research Get in the Way?
Kristin Bechtel Crime and Justice Institute Anthony W. Flores California State University, Bakersfield Alexander M. Holsinger University of Missouri, Kansas City Christopher T. Lowenkamp Administrative Office of the U.S. Courts
The institutional goal of science is replication may be running in second place clearly recognized that the Stanford Prison the extension of certified knowledge. behind the well-marketed and branded reports Experiment was “groundbreaking” because it that attract such a wide, but more importantly, called attention to the inhumanity of prisons —Merton, 1942, 117 influential audience. and their impact on incarcerated individuals. There have been several studies, even The overall findings were timely and responded RESEARCH SIMPLY CAN’T catch a break—it some subjected to peer review but without the to shared concerns that imprisonment may does not move quickly, or perhaps it does findings being replicated elsewhere, that have be very detrimental. Essentially, this study not get conducted, written up, reviewed and widely influenced policy and practice or were propelled the discussion forward regarding revised, disseminated, and read as fast as policy simply catapulted to the elevated status being imprisonment and the conditions in which and practice can take hold. It is no secret that described as having achieved scientific merit. individuals are incarcerated. Unfortunately, reports regarding new practices or concepts Labeling or study branding may be to blame although attempts have been made to replicate can be written up and more broadly branded, for some of this, but it is unclear if labeling is the Stanford Prison Experiment, similar find- trademarked, marketed, and distributed to the sole culprit, especially if the study resulted ings have not followed (Reicher & Haslam, policy makers and practitioners when the in a fundamental discussion of existing prac- 2006; Kulig et al., 2016). information is not subjected to replication tices within criminal justice. A brief summary Another single study that lacked method- and peer review. Let’s face it, rigorous research of some of these studies and their impact ological rigor but garnered much attention simply cannot be summarized in a tweet of follows. and sweeping political support both from 140 characters or less, and few would follow a There have been several persuasive individ- conservatives and liberals is Martinson’s twitter feed long enough to wait on a replica- ual studies that have been labeled as “classic” or 1974 “Nothing Works” article. This narrative tion study before drafting state legislation and even “famous” despite a lack of methodologi- review of 231 studies examining the effective- introducing reforms to policy and practice. The cal rigor and limited replication of findings. ness of rehabilitation programs suggested question remains, though, what are the impli- As Kulig, Pratt, and Cullen (2016) describe it, that rehabilitative models failed to produce cations for this when policies and practices are these studies, including the Stanford Prison any appreciable impact on recidivism; as adopted and substantial funding is allocated Experiment, are often held in such high regard Lipton (1998) expressed, Martinson’s asser- without an adequate level of empirical support? that few scholars question or critique the tive summary was promptly deemed as fact Before introducing the current study, it may methodology or findings, despite the clear (Sarre, 1999). As a result, there was growing be beneficial to offer some context for how these limitations that may be observed. So, in spite interest in lengthier but determinate prison concerns have evolved. Perhaps taking a lesson of the Stanford Prison Experiment suffering sentences without the addition of treatment from history would be beneficial to explain from both methodological and ethical chal- and programming. Multiple studies followed why or how the value of rigorous research and lenges, this study has been branded a classic, questioning Martinson’s infamous pronounce- replication lost a bit of its luster. Perhaps history but there may be an underlying reason for why ment, and one year following the publication could also explain why rigorous research and it is held in such high regard. Kulig et al. (2016) of the “Nothing Works” article, Palmer (1975) June 2016 HIDDEN COSTS 23 concluded that 48 percent of the 821 studies Responding to Duriez et al.’s (2014) account truly inform the consumer. For example, one reviewed by Martinson indicated that some of the limited research on the effectiveness of such report describes two pretrial risk assess- rehabilitative programs were actually associ- Project HOPE, Kleiman, Kilmer, and Fisher ment instruments, the Ohio Risk Assessment ated with reduced recidivism. Interestingly, (2014) suggested that while replication of System – Pretrial (ORAS-PAT) and the by 1979, Martinson had recanted his find- Project HOPE is not a standard recommenda- Virginia Pretrial Risk Assessment Instrument ings, although this report was not as widely tion for jurisdictions, the consideration should (VPRAI), as the “gold standards” for pretrial read as the original “Nothing Works” article. be directed toward adopting and following risk assessment, although neither of these Decades of research followed, providing fur- swift, certain, and fair sanctioning practices two tools have been subjected to any blind ther empirical support for the effectiveness of within community-based supervision. Given peer review process regarding how well they rehabilitative approaches, but none of these the attempted but perhaps unsuccessful replica- predict pretrial failure (Lawrence, 2013, p.10). later endeavors received the amount of pub- tion of a similar Project HOPE-based program Recently, there has been growing inter- licity and broad but blind acceptance that the in Delaware, it seems that swift and certain est in understanding the impact of pretrial Nothing Works doctrine received. sanctioning is hardly guaranteed to be an effec- detention. Certainly, this is an appropriate While Martinson’s conclusion that noth- tive model for other jurisdictions or to be easily topic to evaluate and is worthy of study ing works was widely accepted without critical transferrable, with fidelity and similarly impres- since it has the potential to substantially review, the field has also borne witness to other sive results, to other settings (Duriez et al., 2014; inform practice. One study looking at data correctional interventions being touted with O’Connell, Visher, Martin, Parker, & Brent, from over 150,000 defendants booked into great fanfare but with minimal replication and 2011). Cullen, Manchak, and Duriez’s (2014) Kentucky jails between July 2009 and June evaluation. The most recent intervention that rejoinder to the Kleiman et al. (2014) response 2010 sought to examine whether or not the seems to be spreading at an alarming rate summarized the upshot of the lively discus- length of pretrial detention increased a defen- despite limited research support is Project sion as “buyer beware.” This is rather poignant, dant’s likelihood to experience pretrial failure, HOPE (Hawaii Opportunity with Probation as a lesson learned from well-branded and including failure to appear and new arrest Enforcement). Project HOPE uses swift and cer- marketed research is that we must all become pending case disposition. The study revealed tain sanctioning practices for individuals placed better-informed consumers of information. This several interesting things. First, longer stays on community supervision. It is important certainly does not suggest dismissing informa- in pretrial detention, in particular 2 to 3 days to note that there is some evidence to suggest tion outright, but instead calls us to review (as opposed to 1 day or less), resulted in an the effectiveness of Project HOPE (Hawken & evidence within the context of its limitations. increase in the likelihood of failure to appear Kleiman, 2009); however, other researchers have This approach has been referred to as “organized and new arrest pending case disposition. pointed out that Project HOPE has not been skepticism,” wherein scholars make a conscious Second, low-risk defendants were most likely subjected to considerable replication and evalu- effort to operate from logic and empiricism to experience a greater likelihood for failure to ation. Further, the fundamental components of rather than tradition and belief (Merton, 1942 appear and new arrest pending case disposi- Project HOPE, namely deterrence and sanction- and see Kulig, Pratt, & Cullen, 2016). tion when detained for 2 to 3, and 4 to 7 days. based approaches, have been questioned in The current study focuses on the pretrial Moderate-risk defendants were also found to previous meta-analytic reviews (see, for exam- field. There has been an increasing interest in experience higher rates of new arrest pend- ple, Gendreau, 2000) and, at a minimum, require studying pretrial risk assessments and super- ing case disposition when exposed to pretrial additional and more rigorous review (Duriez, vision practices to identify what the strongest detention stays of 2 to 3 days. The study also Cullen, & Manchak, 2014). predictors of pretrial failure are and what examined the impact of the length of pretrial Several explanations have been offered as pretrial practices are most effective in reduc- detention on post-disposition recidivism and to why Project HOPE became such an over- ing a defendant’s risk of experiencing pretrial suggested that a stay of 2 days or longer was night sensation, as the language used by its failure. Pretrial research is still in its infancy, associated with post-disposition recidivism proponents to describe it carries an extraor- and this area of criminal justice research does when measured at both 1 year and 2 years dinary amount of weight, including “There not compare with the extensive research con- post disposition. These results appeared to be aren’t any magic bullets that can end America’s ducted in the post-disposition field (Bechtel, strongest when examining the impact on low- battle with crime and addiction. But HOPE Holsinger, Lowenkamp, & Warren, 2015). risk defendants (Lowenkamp, VanNostrand, comes closer than anything we have seen in a Similar to what has been noted within cor- & Holsinger, 2013). While this study did not long time” (Gelb, 2011, p. 2 as cited in Duriez, rectional literature, multiple pretrial studies undergo blind peer review, it has sparked Cullen, & Manchak, 2014). Given the broad have not yet been subjected to rigorous blind great interest in the pretrial field among both and overwhelming praise that Project HOPE peer review and replication. The implications, practitioners and researchers. In an effort to has received, it should come as no surprise of course, are that these pretrial practices and “practice what we preach” by replicating and that similar deterrence-based HOPE strate- risk assessment instruments may be adopted expanding upon this research, in the current gies have found their way into state criminal without a clear understanding of these limi- study we seek to effect an organized skepti- justice reforms and legislation. tations; specifically, these practices may not cism in the pretrial literature by evaluating prove effective if implemented elsewhere, the impact of pretrial detention length on and the risk assessments may not properly pretrial failure, and specifically whether or not 1 Palmer (1975) examined a subset of Martinson’s predict pretrial failure on a different target longer stints of pretrial detention result in an 231 studies to exclude those that used an outcome population. Widely marketed reports often increased likelihood for pretrial failure. The measure other than recidivism (e.g., change in attitude, adjustment to the community, educational use labels and branding that have the poten- relationship between length of time spent in achievement). tial for attracting attention but do little to pretrial incarceration and various outcomes 24 FEDERAL PROBATION Volume 80 Number 1 may be more complex than anyone in the field value of the log transformation. These mea- of interest. The matching process involved realizes at this point. This alone should serve sures were developed for two reasons. First matching defendants who were released in as a clarion call for more research investigat- the distribution of “days from arrest to release” a particular number of days (for example ing every aspect of the issue.2 Using the State was highly skewed and leptokurtic (not nor- all defendants released on day 5) to defen- Court Processing Statistics (SCPS) data from mally distributed). To induce normality and dants released in 0 days. The defendants were the Bureau of Justice Statistics, the study that thus make the measure useful in multivar- matched on county, offense type, gender, age, follows is the first replication to test the impact iate models the variable was transformed race, Hispanic origin, type of release, and of pretrial detention on pretrial failure. using a log transformation. The second vari- each of the three risk scales. This matching able created is simply the squared value of process was repeated for defendants released Method the transformed variable. This was done to in 1 day up to 10+ days. This, in effect, created Data Source & Participants address the possible nonlinear relationship 10 matched samples comparing the outcomes The data used for this study come from the between “days from arrest to release” and one of defendants released on day 0 to defendants State Court Processing Statistics 1990-2009: or more of the outcomes of interest. released on day 1, day 2, day 3…day 10+. Felony Defendants in Large Urban Counties In an effort to control for differences in Since these samples were matched on all the (U.S. Department of Justice, Bureau of Justice defendant characteristics that relate to pretrial relevant controls, only bivariate analyses were Statistics, 2013). A detailed description of outcomes of interest, three risk scales were run on these samples. developed. These three risk scales predict the these data is available in the study codebook. Results In summary, this dataset contains data on three outcomes described above: FTA, arrest, 151,459 felony cases processed in 40 of the and violent. The variables used to create the Table 1 provides descriptive statistics on the 75 most populous counties during even- FTA scale are the number of prior FTAs, defendant’s demographic data, case-related numbered years from 1990-2006 and 2009. criminal justice system status, the number information, and the risk scales. These data Data collected on these cases include defen- of prior arrests, gender, offense type, and are presented for both the complete sample dant demographics, criminal history, pretrial number of current charges. The risk scale and the reduced sample. While many of the release and detention, pretrial conduct, adju- predicting arrest contains measures of prior differences between the entire sample and the dication, and sentencing information. commitments to jail, criminal justice sys- reduced sample are statistically significant, it tem status, number of prior serious arrests, can be argued that the two samples are similar Measures number of arrests, gender, offense type, and although not identical. Even so, the differences Demographic measures used in this study number of current charges. The risk scale pre- noted here probably preclude extending the include age in years, gender (coded as 1 for dicting violence contains measures of criminal findings with the reduced sample to the sample female and 0 for male), race (coded as 0 justice system status, number of prior serious containing detained offenders and those that for white, 1 for black, and 2 for other) and arrests, number of prior arrests, offense type, were released but excluded due to missing data. Hispanic origin (coded 0 for not of Hispanic number of charges, prior convictions for The sample used for most of the sub- origin and 1 for Hispanic origin). violent offenses, and gender. All three scales sequent analyses in this manuscript is the Data related to case processing included produced acceptable AUC-ROC values (0.64, released sample with complete data. This sam- the number of days from arrest to release, 0.68, 0.68 for the FTA, arrest, and violent ple is, on average, 30 years old and typically offense type (violent, property, drug, or public scales respectively). male (78 percent). Fifty percent of the defen- dants were black, and 48 percent were white. order), release type (financial release, nonfi- Analysis nancial release, emergency release, held on The majority of defendants (88 percent) were bail, denied bail, release conditions unknown, Analysis in this study included bivariate and not of Hispanic origin. The offense of arrest detained reasons unknown, and case closed). multivariate statistical models examining was categorized as a drug offense (36 percent), Measures of conduct while on pretrial release the relationship between days from arrest followed by property offense (32 percent), vio- were developed based on data included in the to release and the three outcomes of inter- lent offense (22 percent) and public order (10 dataset. Three outcome measures were cre- est. Since this study focuses on the released percent). The majority of released defendants ated: failure to appear (FTA), arrest for any population only, the sample was reduced by were released by financial release (52 percent). new criminal conduct (arrest), and arrest for a excluding those defendants that were not Table 2 provides the failure rates for new violent crime (violent). released pretrial (n = 55,349). The sample was released defendants with missing data (even- Two measures were created based on the further reduced by excluding those cases with tually excluded from the sample) and those measure “days from arrest to release.” One missing data on one of the key variables (n = without missing data. About 20 percent of measure is a log transformation of “days from 24,896), yielding a final sample size of 47,387. the sample is identified as having at least one arrest to release” and the other is the squared For comparison purposes we provide the failure to appear. Defendants are arrested for a descriptive statistics for the entire sample as new crime while on pretrial release 15 percent 2 In a separate analysis conducted by Holsinger well as the reduced sample (see Table 1). of the time (18 percent of the time for those (2016), length of time in pretrial detention was In addition to the bivariate and multivari- with missing data). Finally, 2 percent of the observed to be significantly and positively cor- ate tests run on the sample of 47,387 cases, a sample is arrested for a violent offense while related with FTA (every time increment of pretrial series of matched samples was developed for on pretrial release. detention), but completely unrelated to NCA. analysis. These matched samples provide a The main purpose of this manuscript Further, length of time incarcerated pretrial was found to be significantly related to post-disposition more rigorous test of the relationship between is to explore the relationship between days NCA at the 12-month point, but not the 24-month days detained pretrial and the outcomes detained prior to pretrial release and pretrial point in time. June 2016 HIDDEN COSTS 25
TABLE 1. Descriptive Statistics on Demographic Characteristics, Current Offense Type, and Release Type for Entire Sample and Released Sample with Complete Data
All Cases Released with Complete Data Measure Number Mean or Percent Number Mean or Percent Age 149,972 30.37 47,387 30.45 (10.72) Days from Arrest to Release 86,253 10.44 (29.52) 47,387 10.34( 29.58) Days from Arrest to Release 86,253 0.41 (2.13) 47,387 0.35 (2.17) Risk Scale 1 (FTA)* 118,303 21.77 (9.06) 47,387 20.49 (8.43) Risk Scale 2 (arrest)* 124,326 18.42 (9.89) 47,387 15.96 (9.09) Risk Scale 3 (violent)* 125,925 2.11 (1.61) 47,387 1.75 (1.36) Gender* Female 25,518 17 10,461 22 Male 125,407 83 36,926 78 Missing 534 <1 —- -— Race* White 55,848 37 22,525 48 Black 69,611 46 23,659 50 Native American, Alaskan Native 535 <1 217 <1 Asian, Pacific Islander 2,549 2 986 2 Missing 22,916 15 —- —- Hispanic Origin* Yes 32,822 22 5,635 12 No 97,721 65 41,752 88 Missing 20,916 14 -— —- Offense Type* Violent 37,456 25 10,479 22 Property 47,117 31 14,970 32 Drug 52,353 35 17,191 36 Public Order 14,471 10 4,747 10 General Release Category* Financial Release 43,225 29 24,783 52 Nonfinancial Release 42,325 28 21,066 44 Emergency Release 744 0 344 <1 Held on Bail 44,767 30 -— — Denied Bail 8,380 6 —- — Release Conditions Unknown 4,108 3 1,194 3 Detained, Reasons Unknown 2,202 1 -— — Case Closed 2,001 1 -— — Missing 3,707 2 -— — * p ≤ 0.001 26 FEDERAL PROBATION Volume 80 Number 1
TABLE 2. Descriptive Statistics on Outcome Measures for Entire Sample and Released Sample with Complete Data
Released with Missing Data Released with Complete Data Measure Number Mean or Percent Number Mean or Percent Arrest for Any New Crime* No 31,772 82 40,171 85 Yes 6,899 18 7,216 15 Failure to Appear* No 32,090 77 38,133 80 Yes 9,684 23 9,254 20 Arrest for New Violent Crime No 37,604 98 46,588 98 Yes 756 2 799 2 * p ≤ 0.001 outcomes. Given prior findings regarding this relationship, we suspected that the relation- FIGURE 1. ship was nonlinear. Figure 1 plots the failure Failure Rates By Days Detained (greater than 1 days recoded to 1) rates by day of release for each of the three outcomes of interest. As suspected, for both 0 FTA and arrest the rates follow an upward trend up to and including day 6 but then begin to drop and then follow a somewhat random pattern with an overall downward trend. This 0 pattern seems to be absent from the trend for arrest for a violent crime. Given the nonlinearity of the relationship e lur between the number of days detained and FTA and arrest, a squared term was included 10 in the logistic regression models predicting FTA and arrest. The squared term was not included in the model predicting arrest for a violent crime. These logistic regression mod- els are presented in Table 3 and indicate that 10 0 0 days detained and the associated squared term Number o e e are statistically significant only when predict- ing arrest. As the number of days increases, so rre r me rre V ole r me too does the likelihood of arrest for any crime while on pretrial release. This positive effect of days detained on arrest seems to diminish as one moves up the scale of days detained. arrest (any criminal arrest) or violent (arrest Those released by nonfinancial release and It should be noted that when predicting FTA for a violent offense). Black defendants were unknown conditions of release were about and violent arrest the days detained prior to more likely to experience an FTA or violent 1.5 times as likely to fail to appear compared release are not significant predictors. compared to white defendants and defendants to those released on a financial release. Those The risk category (based off the risk score) is of “other” races. There was no effect of gender3 released on emergency release were about 2.9 a significant predictor of each of the three out- or ethnicity (Hispanic origin) in any of the times as likely to FTA as those released by comes. Defendants in the moderate category three models. financial release. are about 2 to 2.5 times as likely to experience Release type was a significant predictor Tables 4, 5, and 6 present the failure rates the outcome as those in the low-risk category. of FTA. Those released through nonfinancial for FTA, arrest, and violent (respectively) High-risk defendants are roughly 4.5 to 5.5 release, emergency release, or in situations using the matched samples. As indicated ear- times as likely to experience the outcome when where release conditions were not known lier, the matching process we used generated compared to low-risk defendants. were more likely to fail to appear than those 10 samples that contained defendants released Age and race are significant predictors in defendants released by financial release. on a particular day matched to those released two of the three outcomes. Older defendants on day 0 (arrested and released the same day). were less likely to experience the outcomes 3 Recall that gender was included in each of the The failure rates were then calculated for each risk scales. June 2016 HIDDEN COSTS 27
TABLE 3. group and are presented in two columns. The Logistic Regression Models Predicting each Outcome column labeled “0 days” contains the failure rates for each of the 10 matched samples Failure to Any Criminal Variable Appear Arrest Violent Arrest of those released in 0 days. For illustration purposes consider the row labeled “1” under Days Detained Transformed 1.04 1.07* 1.06 the “Days” column. This row indicates that Days Detained Transformed Squared 1.00 0.97* — we could match 3,814 defendants released Release Type on day 1 to 3,814 defendants released on day Financial Release 0. The failure rate for those released on day Nonfinancial Release 1.46* 1.12 0.99 0 is 16 percent, whereas the failure rate for Emergency Release 2.86* 0.98 0.40 those released on day 1 is 15 percent. The row labeled “8” under the “Days” column indicates Release Conditions Unknown 1.58* 1.16 1.41 that there were 297 defendants released on day Risk Category 8 that could be matched to 297 defendants Low released on day 0. The failure rate for those Moderate 2.12* 2.53* 2.59* released on day 0 is 18 percent, whereas the High 4.53* 5.39* 5.76* failure rate for those released on day 8 is 23 percent. It should be noted that in only one Offense Type instance does the difference in FTA rates reach Violent statistical significance (those released on day Property 0.90 1.05 1.04 4 compared to the matched sample of those Drug 0.95 1.06 0.95 released on day 0). Public Order 1.15 1.09 1.10 Table 5 contains the arrest failure rates for Age 1.00 0.97* 0.96* each of the matched samples. Three of the ten samples generated differences that were Race significant and favored the group of defen- White dants released on day 0. When compared to Black 1.26* 1.16 1.48* defendants released on days 1, 4, and 10 or Other 0.75 0.95 0.94 more, the defendants released on day 0 had a Gender significantly lower rate of arrest for any crime. Finally, Table 6 contains the rates of arrest Male for a violent crime for the ten matched samples. Female 0.97 0.97 0.83 In Table 6 only one difference is statistically Hispanic Origin significant. Defendants released on day 10 or No more have a significantly higher arrest rate Yes 1.04 1.14 1.12 for a violent offense compared to the matched Constant 0.10* 0.17* 0.02* sample that was released on day 0. Discussion Using empirical evidence to inform, guide, TABLE 4. and evaluate policy and practice is the hall- FTA Rates by Days Detained Matched Cases mark of providing ethical and professional 0 Days More than 0 Days human service. Unfortunately, the accumula- tion of knowledge is often a painstakingly Days Number Percent Number Percent p slow process that is seemingly never-ending. 1 3814 16 3814 15 0.41 Areas of policy and practice for which little 2 1374 19 1374 18 0.88 to no research evidence exists can become 3 711 18 711 20 0.28 quite vulnerable in this regard. In an era 4 548 15 548 21 0.01 of near-instantaneous communication and information sharing, the time required for 5 443 19 443 24 0.07 a research project to go from inception to 6 371 22 371 24 0.60 completion and publication must be trying (to 7 336 16 336 19 0.42 say the least!) for those charged with creating 8 297 18 297 23 0.13 evidence-based policy. In fact, several recent 9 214 17 214 16 0.90 publications within the discipline of crimi- 10+ 2375 19 2375 21 0.09 nology/criminal justice have focused on this very issue. The need for informed policy and practice exists in real-time, while the world of 28 FEDERAL PROBATION Volume 80 Number 1
TABLE 5. to become random. This pattern corresponds Arrest for Any New Crime Rates by Days Detained Matched Cases with Lowenkamp et al.’s (2013) findings to some extent in that the first few days of 0 Days More than 0 Days detention seem to impact pretrial outcome Days Number Percent Number Percent p (again, based on results from bivariate analy- 1 3814 10 3814 12 0.01 sis). Results of this research support the 2 1374 11 1374 13 0.18 immediacy of the impact that detention has 3 711 12 711 15 0.10 on pretrial outcome, while the results of 4 548 10 548 15 0.01 Lowenkamp et al. (2013) show that the delete- rious effects of detention begin to surface after 5 443 12 443 16 0.10 days two or three. 6 371 13 371 15 0.46 Multivariate analysis further investigating 7 336 13 336 15 0.43 the relationship between detention and pretrial 8 294 14 294 17 0.31 outcome lends credence to the skepticism dis- 9 214 9 214 9 1.00 cussed above. Once we controlled for a number of other variables that are potentially relevant 10+ 2375 11 2375 13 0.01 toward the prediction of pretrial outcome, the TABLE 6. bivariate and apparent relationships between Arrest for New Violent Crime Rates by Days Detained Matched Cases number of days detained and each of the three outcomes are largely explained away. Given 0 Days More than 0 Days the fairly large sample used for these analyses, Days Number Percent Number Percent p and given that sample size drives significance, 1 3814 1.02 3814 1.47 0.08 the importance of this finding should not be 2 1374 1.09 1374 1.67 0.19 overlooked. Analyses indicate that the insignifi- cance of days detained is due, in large part, to 3 711 1.97 711 1.13 0.20 the offender risk variable, which demonstrated 4 548 1.46 548 1.64 0.81 significant and relatively strong relationships 5 443 2.26 443 3.16 0.41 with all three outcome measures (FTA, any 6 371 1.62 371 1.62 1.00 criminal arrest, and violent arrest). In this 7 336 0.89 336 1.79 0.31 model, financial release, race, and age were also significantly related to some of the outcome 8 294 1.00 294 2.4 0.20 measures (but not all three). 9 214 0.00 214 1.4 0.08 In addition to attempting a replication of the 10+ 2375 1.05 2375 1.81 0.03 Lowenkamp et al. (2013) study, this research also employed a more rigorous analytical approach to exploring the relationship between empirical research often exists in a vacuum, marketed pretrial release policy proposal. pretrial detention and outcome through the use devoid of “real world” demands. We see this as problematic. Accordingly, this of matched samples. Because defendants serv- Project HOPE serves as one example research sought to contribute to the existing ing 0 days of pretrial detention were matched of this quandary. Although an initial study pretrial literature by replicating the research to those serving a particular number of days supports the efficacy of Project HOPE’s punish- of Lowenkamp, VanNostrand, and Holsinger (ranging from 1-10+) in pretrial detention on ment-based strategy for reducing recidivism, using a large, diverse, and fairly representative characteristics theoretically relevant to pretrial program demand has come to supersede calls sample drawn from the 75 largest U.S. coun- misconduct once released, each of the two for additional investigations seeking to replicate ties.4 Specifically, this study examined the effect groups of defendants were rendered essen- the program’s initial findings in diverse settings of pretrial detention length on several measures tially “equal.” The rigor inherent in this type of across different client populations (Duriez, of pretrial failure. analysis is powerful because any difference in Cullen, & Manchak, 2014). So much so that a The analyses conducted here reveal a defendant outcomes is then more likely to be number of states have adopted HOPE-similar number of important findings, particularly attributable to the only other thing left to vary, programs more on the basis of hype, branding, as they compare to those of Lowenkamp, namely time spent in pretrial detention. and marketing than on the basis of replicated VanNostrand, and Holsinger (2013). First, Results from the matched samples analyses and methodologically rigorous evidence attest- bivariate analysis of failure rates by the num- comparing defendants who served 0 days to ing to validity. Another potential example ber of days detained indicates that there is a defendants who served 1 through 10+ days of hastily informed policy surrounds pretrial sharp increase in both FTA and predisposi- in detention indicate that the effect of pretrial research. While this is clearly an underdevel- tion arrest (but not violent crime arrest) detention on outcomes disappears in almost oped area of research (Bechtel et al., 2015), through the first six days in detention. After every comparison. Although there were a recent policy has emerged that relies primar- that however, the bivariate relationship seems handful of significant relationships evidenced ily on the results of one study (Lowenkamp, 4 Note that the sample used in Lowenkamp, in these matched analyses, recall that 30 dif- VanNostrand, & Holsinger, 2013) to sup- VanNostrand, & Holsinger was drawn from one ferent matched comparisons were conducted port its branded, trademarked, and widely state—Kentucky. June 2016 HIDDEN COSTS 29
(10 for each of the three outcomes) and pretrial detention on pretrial outcome, and the Hawken, A., & Kleiman, M. (2009). Manag- only 5 were significant at the p < 0.05 level first attempt at fostering an organized skepti- ing drug involved probationers with swift of significance. While the sample sizes for cism about this topic. We feel this skepticism is and certain Sanctions: Evaluating Hawaii’s the matched analyses are smaller than those especially justified given the policy implications HOPE. Washington, D.C.: Office of Justice in the multivariate tests, they are still large derived from the first study by Lowenkamp et Programs, U.S. Department of Justice. Holsinger (2016). Unpublished Data From enough that meaningful differences would al. (2013). That study, using data solely from Johnson County, Kansas. University of Mis- the state of Kentucky, found that longer stays have attained statistical significance. We think souri, Kansas City. in pretrial detention affected pretrial outcome. that the relatively large sample size employed Kleiman, M. A. R., Kilmer, B., & Fisher, D. T. in these analyses explains at least some of the However, the data used in the present study (col- (2014). Response to Duriez, Cullen, and five significant relationships and conclude lected from a national sample) shows the effect Manchak: Theory and evidence on the that predicting pretrial outcome is likely a only in bivariate models (save for one multivari- swift-certain-fair approach to enforcing very complicated issue that may or may not ate model). Furthermore, the effects of days in conditions of community supervision. be affected by days spent in pretrial detention. pretrial detention on pretrial outcome evidenced Federal Probation, 78(2), 71-74. Furthermore, we absolutely caution against here appear to be few (a mere 5 significant effects Kulig, T. C., Pratt, T. C., & Cullen, F. T. (2016 in creating, branding, and marketing any policy out of 30 models) as well as inconsistent, espe- press). Revisiting the Stanford Prison Ex- that is informed by just the Lowenkamp et al. cially once the results of the matched models are periment: A case study in organized skepti- cism. Journal of Criminal Justice Education. (2013) study, or even that study and this one considered. Unfortunately, these findings fail to Lawrence, S. (2013). Managing jail popula- replicate the Lowenkamp et al. (2013) results and taken together. Clearly, the inconsistent and in tions to enhance public safety: Assessing seem to indicate that this is very possibly a func- some cases contradictory findings of this and and managing risk in the post re-align- the Lowenkamp et al. (2013) study make the tion of increased methodological rigor. ment era. Unpublished manuscript. Paper obvious case against deriving policy from one Undoubtedly, a balance must be struck written for the Executive Session on or even a few studies, particularly those that between the need for replication, peer review, Public Safety Realignment. have not undergone the peer review process and disseminating information broadly, but Lipton, D. S. (1998). The effectiveness of correc- and/or are lacking in methodological rigor. reliably, to stakeholders, practitioners, research- tional treatment revisited thirty years later: There were several limitations present in ers, and students alike. There has to be a Preliminary meta-analytic findings from the th this research. First, these data include only consensus that both peer-reviewed journals and CDATE Study. Paper presented to the 12 felony defendants, so the results presented research reports that do not undergo a peer- International Congress on Criminology, Seoul, Korea. August 1998. cannot speak to any potential effects of pretrial reviewed process or have yet to be subjected to Lowenkamp, C. T., VanNostrand, M., & Hols- replication serve a valuable purpose. Primarily, detention on outcome for defendants with less inger, A. M. (2013). The hidden costs of we must seek to increase the knowledge of the serious charges. Second, these data were col- pretrial detention. Houston, TX: Laura and lected from the most populous counties in consumer, but also clearly offer what the limita- John Arnold Foundation. the U.S., rendering the applicability of these tions are for the existing research and what next Martinson, R. (1974). What Works? - Ques- results to smaller and more rural counties steps should occur before broad adoption and tions and answers about prison reform. The questionable. Third, because we were inter- implementation of new practices and tools fol- Public Interest, 35, 22-54. ested in examining pretrial days in detention low. The next steps for the current study will be Martinson, R. (1979). New findings, new views: on pretrial outcome, we were forced to exclude to submit this evaluation for blind peer review. A note of caution regarding sentencing a large number of defendants from our sample Although this process will certainly require reform. Hofstra Law Review, 7, 243-258. who were not released pretrial (and thus could additional time, we reserve the right to market Merton, R. K. (1942). A note on science and democracy. Journal of Legal and Political not have experienced FTA or been arrested) as and broadly share the results—perhaps with a Sociology, 1, 115–126. 140-character tweet. well as a large number of defendants for whom O’Connell, D., Visher, C., Martin, A., Parker, S., key data were missing. Although analyses References & Brent, J. (2011). Decide your time: Testing comparing these two groups of felony defen- deterrence theory’s certainty and celerity dants (those with complete versus missing Bechtel, K., Holsinger, A., Lowenkamp, C., & effect on substance-using probationers. data) did reveal some significant differences Warren, M. (2015). A meta-analytic review Journal of Criminal Justice, 39, 261-267. between the two groups, we contend that these of pretrial research: Risk assessment, bond Palmer. T. (1975). Martinson revisited. Journal type, and interventions. Under review at differences are not substantive (refer back to of Research in Crime and Delinquency, 12, Journal of Crime and Justice. Tables 1 & 2). Finally, the matching process 133-152. Cullen, F. T., Manchak, S. M., & Duriez, S. A. Reicher, S., & Haslam, S. A. (2006). Rethinking used in this study was fairly restrictive and (2014). Before adopting Project HOPE, read led to many cases being eliminated from the the psychology of tyranny: The BBC prison the warning label: A rejoinder to Kleiman, study. British Journal of Social Psychology, matched analysis, as a usable match was not Kilmer, and Fisher’s comment. Federal 45, 1-40. identified. As such, future research attempt- Probation, 78(2), 75-77. Sarre, R. (1999). Beyond “What Works?”: A ing to replicate these findings might consider Duriez, S. A., Cullen, F. T., & Manchak, S. M. 25 year jubilee retrospective of Robert other methods of sample matching, such as (2014). Is Project HOPE creating a false Martinson. Paper presented at the History of propensity score matching, in which propen- sense of hope? A case study in correctional Crime, Policing and Punishment Conference. sity score values can be used as matching and/ popularity. Federal Probation, 78(2), 57-70. Australian Institute of Criminology. or regression weights that will allow for the Gendreau, P., Goggin, C., Cullen, F. T., & U.S. Department of Justice, Bureau of Justice Andrews, D. A. (2000). The effects of com- use of a greater percentage of cases. Statistics. (2013). Felony defendants in large munity sanctions and incarceration on In conclusion, this research represents the urban counties, 2009 – Statistical tables. recidivism. Forum, 12(2), 10-13. second study to examine the effect of days in Washington, D.C. 30 FEDERAL PROBATION Volume 80 Number 1 ArticleA Case StudyTitle of the Implementation of Staff Training Aimed at Reducing Rearrest (STARR)
Tammatha A. Clodfelter Appalachian State University Jefferson E. Holcomb Appalachian State University Melissa A. Alexander Chief U.S. Probation Officer Middle District of North Carolina Catherine D. Marcum Appalachian State University Tara N. Richards University of Baltimore
THE IMPLEMENTATION of evidence-based (STICS), Effective Practices in Community Lowenkamp, Latessa, & Smith, 2006; Taxman practices (EBP) into community correc- Supervision (EPICS), and Staff Training et al., 2005). As noted by Rhine, Mawhorr, & tions has become one of the most important Aimed at Reducing Rearrest (STARR). All Parks (2006), however, weak implementation initiatives in the field. Although the early of these programs aim to teach officers can derail an otherwise effective program. The focus was on effective programs for offend- specific skills related to the risk-need-respon- present study describes the strategy utilized by ers, more recent emphasis has been on the sivity principles, with a particular emphasis a federal probation district office in the imple- skills needed for probation officers to provide on the use of cognitive-behavioral techniques. mentation of the STARR training program. effective supervision. This shift was partially However, implementation research in a variety The purpose of this study is to highlight one due to a meta-analysis indicating that com- of settings has indicated that formal training district’s efforts to protect program integrity, munity supervision, as currently practiced, alone is not effective in changing professional the challenges faced by those efforts, and the had virtually no effect on recidivism rates behavior, and research to date on the imple- outcomes of those efforts. The hope is that this (Bonta, Rugge, Scott, Bourgon, & Yessine, mentation of these programs shows similar information will help other federal probation 2008). However, Bonta et al. also noted that results (Bonta et al., 2008). Research in other offices improve their own implementation of many officers were not practicing the risk- helping professions has noted the need for the STARR program, as well as other criminal need-responsivity (RNR) principles, which is follow-up support to ensure that skills learned justice agencies seeking to implement similar crucial to impacting recidivism rates. Prior in training result in changes during actual programs or practices. meta-analytic reviews of treatment programs practice (Miller, Yahne, Moyers, Martinez, (see Andrews & Bonta, 2010) have found that & Pirritano, 2004; Walters, Matson, Baer, & Implementation Best Practices not following RNR principles actually results Ziedonis, 2005). Numerous factors contribute to the success or in an increase in recidivism, while preliminary There is a substantial body of literature on demise of program and policy implementa- studies of officers randomly assigned to train- the effectiveness of correction interventions tion (see Fixsen, Naoom, Blase, Friedman, & ing in RNR show those offenders supervised and practices (see McGuire, 2000; Taxman, Wallace, 2005, for a comprehensive review). It by officers who adhere to the RNR model had Shepardson, & Byrne, 2005; White and is well established that failure to implement a lower recidivism rates. Given the potential Graham, 2010) and works that highlight spe- program as originally intended (aka treatment for substantial reductions if the principles cific Principles of Correctional Interventions fidelity or program integrity) contributes to are followed, a number of training programs (National Institute of Corrections, n.d.) as cen- the ineffectiveness of many social programs. have been developed, including the Strategic tral to evidence-based practices with offenders Research increasingly identifies principles and Training Initiative in Community Supervision (see also Crime and Justice Institute, 2009; strategies to increase program integrity (e.g., June 2016 CASE STUDY OF STARR IMPLEMENTATION 31
Crime and Justice Institute, 2009; Taxman, for implementation, which includes planning National Institute of Justice, n.d.; Taxman et Henderson, & Belenko, 2009). The present training, anticipating policy changes, setting al., 2005). discussion highlights elements of success- up measurement tools, and identifying the STARR emphasizes the development of ful implementation using the drivers/stages broader district issues that may need to be several key supervision skills that are to be model from the National Implementation addressed. Finally, implementation begins. used during interactions with offenders, Research Network (NIRN), as described else- During the initial implementation, training including role clarification, effective rein- where (Alexander, 2011). These represent the starts and the expectation begins that officers forcement and disapproval, problem-solving, core attributes used to assess the actual imple- will actually “do” something different. Full and understanding and teaching the cognitive mentation of the STARR program in a federal implementation is reached when 50 percent of model. These are evidence-based strategies probation district office. staff meet performance criteria for a specific and practices noted in the literature on the According to the NIRN model of imple- skill, and the program or practice has reached effective supervision of involuntary clients. mentation, the three main drivers for scale when 60 percent of the population who Many of these skills are built on the prin- successful implementation include Staff could benefit are actually receiving the service ciples of cognitive-behavioral interventions Competency, Organizational Supports, and (Van Dyke, 2011, personal communication). and motivational interviewing (e.g., Bourgon, Leadership. The staging of staff training must The next section will introduce the pro- Gutierrez, & Ashton, 2011; Trotter, 2006). be carefully considered, based on existing gram under review and discuss the training According to the Administrative Office of competencies, willingness, and consideration mechanisms. Because this particular program the U.S. Courts, as of late 2015, 65 of the 94 of those who can “champion” the cause to has been described at length elsewhere (e.g., federal districts were involved in some level their peers. Organizational supports include Lowenkamp, Alexander, & Robinson, 2014; of STARR training and use of the skills. To collecting data regarding how implementation Robinson et al., 2012), the focus will be to date, few studies have empirically evaluated is going, removing barriers to implementa- highlight the approaches used to facilitate the effectiveness of the program. Challenges to tion, and ensuring that the system as a whole the implementation of STARR in one federal quantitative assessments include the maturity (i.e., judges, attorneys, etc.) is supportive of probation district. of the program, the lack of systematic data the implementation efforts. Finally, strong vis- collection, and limited resources to conduct ible leadership, from middle managers to top The STARR Program and Federal rigorous evaluations. However, early studies leaders, is critical. Just being supportive is not Community Supervision of STARR indicate that STARR is effective at enough to safeguard against deviations in the Rooted in cognitive behavioral therapy, reducing recidivism (Lowenkamp, Holsinger, implementation process. Leaders must have STARR is an evidence-based practice that Robinson, & Alexander, 2014; Robinson, the capacity to understand and appreciate the shapes how federal community supervision Lowenkamp, Holsinger, VanBenschoten, implementation process, as well as possess the officers interact with offenders (Robinson et Alexander, & Oleson, 2012; Robinson, leadership skills to navigate potential pitfalls al., 2012). More specifically, STARR teaches VanBenschoten, Alexander, & Lowenkamp, and direct staff members towards success. officers how to provide more effective super- 2011) and the reduction may persist over a Monitoring the progress of the imple- vision by better understanding offenders’ more significant period of time (Lowenkamp, mentation is vital in order to properly assess risk factors and decision-making processes, Holsinger, Robinson, & Alexander, 2014). the various dynamics that may hinder or and using that knowledge to enhance how These suggest that, if properly implemented, bolster the success of the process. The mecha- and what they communicate with offenders. STARR can lead to more successful super- nism or individual assigned to monitor must Through more constructive and informative vision outcomes and long-term desistance be cognizant of the changing states of the interactions, offenders can learn how to make among offenders. Additionally, a recent meta- various components to the program. For positive decisions and refrain from engaging analsyis of training programs aimed at core example, a supervisor must be intimately in future criminal and dysfunctional activities correctional practices noted a 13 percent lower familiar with the stages of implementation (Hansen, 2008; Lowenkamp, Lowenkamp, & failure rate for those officers trained in CCPs and how his staff is responding to the changes. Robinson, 2010; Skeem & Manchuk, 2008). versus those providing standard supervision The NIRN model also describes the stages This approach is consistent with the risk- (Chadwick, Dewolf, & Serin, 2015). Such of implementation organizations must go need-responsivity model of correctional results have garnered the attention of commu- through to ensure effective implementation. interventions (see Andrews & Bonta, 2003; nity corrections practitioners and researchers They include Exploration, Installation, Initial Andrews, Bonta, & Hoge, 1990). Briefly and prompted the expansion of STARR Implementation, and Full Implementation. summarized, the principles of the model throughout the federal probation system. One of the first issues to acknowledge is recommend that the level of services pro- While STARR is built around core correc- the amount of time it will take to reach vided should be consistent with an offender’s tional practices and evidence-based strategies, full implementation. Research consistently risk level, services should target the specific its effectiveness will be significantly impacted shows that implementation takes two to four dynamic risk factors of a particular offender, by the actual implementation of the program years to complete (Fixsen et al., 2005). In and services should be delivered in a man- by district offices and individual officers. The the Exploration stage, management and staff ner that most is effective for offenders. The following discussion highlights the imple- must be given the time and opportunity service delivery model that is most commonly mentation in one district and assesses this to fully explore the potential change, talk identified as broadly effective with offender with reference to implementation processes through issues, and allow staff time to “get populations is the use of cognitive-behavioral noted previously. Information on the imple- ready” for change. During the installation strategies (Andrews, 2006; Hansen, 2008; mentation of STARR was obtained by direct stage, the district should begin preparing observation of STARR training and booster 32 FEDERAL PROBATION Volume 80 Number 1 sessions, conversations with officers and by forging a sense of community and trust a particular skill; two tapes per month per coaches in the district, a survey of district among the officers. Through role play and officer were required until proficiency was officers, and data provided by the district’s immediate feedback in the initial training, the reached, at which time the requirement chief probation officer (CPO). officers became comfortable with asking ques- decreased to two tapes per skill per quarter. tions to ensure their understanding of the skill The tapes were considered vital to the train- Implementation of STARR and how to realistically use it. The feedback ing because they allowed officers to compare The rollout of STARR in the district reviewed emphasized the positive aspects of the officer’s how they thought a conversation had gone to actually began with general training for staff first attempt at the skill, helping officers gain how it actually occurred or how it might be on the concepts of evidence-based practices. confidence. This development of initial con- perceived by others.1 Officers were encour- This step was considered crucial, in order fidence and comradery continued beyond the aged to submit all tapes, regardless of quality to provide officers and supervisors with a training session and seemingly strengthened of the interaction, with an emphasis that they baseline understanding of EBP and help them the officers’ commitment to using STARR. would learn the most from what they consid- see “why” STARR was being implemented. Numerous booster sessions followed the ered their “bad” tapes. Each tape was assessed Following this training, the CPO issued a initial training. Each booster focused on one using both coaching and proficiency forms request for volunteers to participate in the specific previously learned STARR skill to tailored for each skill.2 Common across the national training of STARR in Washington, improve understanding and comfort level skills were questions regarding the appropri- D.C. in late 2010. Two officers volunteered and using the skill when interacting with the cli- ateness of using the skill for that interaction, attended the training. Training of additional ent. The first booster occurred approximately the strengths of the interactions, and areas for officers began in August of 2011 with another one month after the training and boosters improvement. Also captured was the coach’s small group of volunteers. As the training occurred approximately each month thereaf- assessment of the clarity of the skill used, the progressed, the initial two officers, along with ter. Officers were required to continue monthly comfort level of the officer, and how likely it two additional officers, were selected to serve boosters until proficiency was reached, as was that the offender understood the officer’s as trainers/coaches, based on their demon- measured by a proficiency rating scale. Once comments. Feedback in this manner allowed strated skill and enthusiasm for the program, proficient, officers continued booster sessions officers to self-evaluate and to receive con- and completed additional STARR training. on a quarterly basis. Officers were trained in structive feedback from their trainer and peers Although the training was initially voluntary, waves, based on availability of coaches. To in a manner that appears to have fostered offi- the chief probation officer informed staff that date, officers in the earliest wave have attended cer improvement and consistency. all officers would eventually be required to be on average between 15 and 20 booster ses- Possibly the most critical element of the trained in STARR, although a specific date for sions, while those in the later waves have training design was the reliance on coaches completion was not established. Starting with attended on average 5-15 sessions. Similar to to conduct the booster sessions and provide the third wave of training, specific satellite the initial training, the booster sessions were feedback for the tapes (see Alexander et al., offices were selected for training based on an reported as supportive and encouraged a team 2014; also Hertneck, 2013; Taxman et al., informal assessment of readiness and super- dynamic. Interactions between officers and 2012). Each officer selected to serve as a visory support. Additional offices were added trainers emphasized professional development coach received additional training specific based on the availability of coaches, with the and the goal of improving supervision strate- to coaching and was mentored by an expert goal that coaches would not have more than gies and outcomes. During these sessions, trainer. Successful implementation is difficult 3-4 new officers to coach at any given time. trainers reintroduced a particular skill and without strategic follow-up and continued The training used numerous types of discussed any challenges/concerns officers training, which the booster sessions pro- learning techniques to educate officers about had regarding that skill. Examples of record- vided (Alexander, 2011; Alexander et al., the purpose and goals of STARR and how ings of client interactions were shared with 2014; Lowenkamp, Lowenkamp, & Robinson, to apply it across a variety of client interac- the group as learning opportunities to provide 2010). To facilitate useful monitoring and tions. The CPO or selected trainers (also feedback on the strengths and weaknesses of feedback, coaches were encouraged to main- referred to as “coaches”) delivered an initial the interactions and the use of the skill. The tain a safe learning atmosphere and had to be 1-2 day instruction in person in a confer- team members were encouraged to provide 1 There is little doubt that the use of tape recording ence room using PowerPoint presentations, additional feedback from their experiences interactions was initially cumbersome and raised a flipchart, blank cognitive model charts, and how they overcame various obstacles. concerns among some officers. However, the CPO and video and audio tapes. Training moved Finally, officers would role play the skill in was adamant that the recording of the interactions beyond mere information delivery, however, order to obtain immediate feedback. Trainers was critical to improving the quality of training and by incorporating mock client interactions and would then assess whether additional booster booster sessions as well as communicating to dis- trict officers the importance of STARR. Probation role play. Research notes that training which sessions and/or techniques were needed to offices interested in improving the logistics of audio uses directed practice and active participa- address the skill. For each of the four main recording interactions and the data management of tion results in improved implementation by STARR skills (effective reinforcement, effec- recordings, including obtaining offender approval, attendees (Crime & Justice Institute, 2009; tive disapproval, teaching the cognitive model, should contact the authors for more information. Lowenkamp, Lowenkamp, & Robinson, 2010; applying the cognitive model), there were gen- 2 The evaluation form used to assess skill pro- Robinson et al., 2012; Taxman, Henderson, erally 3-5 booster sessions provided. ficiency was developed and pretested through Young, & Farrell, 2012). Comments from the As part of the ongoing training, officers collaboration between the district office and a local university (see Holcomb et al., 2014). Copies of CPO and coaches indicate that the training were required to submit audio recordings to the evaluation form used by the district to assess design also enhanced the office environment their coaches to assess their progress with skill proficiency can be obtained by contacting the authors. June 2016 CASE STUDY OF STARR IMPLEMENTATION 33 competent in their own skill sets in order to of the district’s organizational culture and max=4.5). The specific questions asked about assess the quality of others’ efforts (Alexander officers’ support for new organizational initia- increasing offender participation, improving et al., 2014). tives and practice, both critical elements for rapport with offenders, improving offenders’ successful implementation of new programs thinking and problem-solving skills, improv- Evidence of STARR (see Lehman, Greener, & Simpson, 2002; ing behavioral management of offenders, Implementation Courtney, Joe, Rowan-Szal, & Simpson, 2007). improving cognitive focus of offenders, and The original version of the Organizational identifying and using evidence-based prac- TABLE 1. Readiness to Change survey had over 100 tices. The individual items most concerning Table 1 notes the timeline for questions. For a more efficient instrument, for officers were the latter two items (4.09 and implementation of STARR in the district. questions that were determined not to be 4.45 respectively). It is possible that the timing Initial training for first critical for the present purpose were elimi- of the survey may complicate the interpreta- group of volunteers Nov. 2010 nated. Furthermore, survey questions were tion of these results. After all, respondents (N=2) modified to reflect community supervision, had already undergone significant STARR Training for second especially federal probation, rather than the training and were being asked to think back group of volunteers Aug. 2011 institutional treatment focus of the original to organizational and officer practice before (N = 8) survey. Otherwise, the survey is substantively STARR training. Furthermore, the training Training for third similar to the original version.3 June 2012 The survey could have influenced how officers remem- group (N = 4) was administered in an online format to the 12 bered circumstances before STARR training. Training for final officers (approximately half of the supervision Suggesting that officers would have responded June 2013 group (N = 7) officers in the district) who had completed less strongly about the need for improved substantial STARR training in the district4 at practice before STARR, however, means that the time of the survey. All officers completed the training increased officer awareness about the survey, for a 100 percent response rate. the importance and need for such training. Discussion of survey results focuses on those A second area targeted in the survey was The following section assesses the implemen- questions most closely related to officer per- the perception of officers’ own effectiveness tation of STARR based upon the criteria noted ceptions of the necessity, relevance, and value and competency in performing their duties. earlier. Discussion notes those aspects of of changes to current officer practice and In general, officers indicated that, on average, implementation that appear to have been more training intended to improve that practice. they were confident in their skill sets and their successful and areas that could be improved These results are presented in Table 2. desire to improve. Seven questions5 were used and adapted by future training initiatives. First, several questions asked respon- to create an index score for self-confidence Drivers dents about their perceptions of the need for (1=Disagree Strongly to 5=Agree Strongly; organizational or officer guidance before the mean 3.94, range 3.14 to 4.86). Again, the As noted earlier, staff and participant sup- implementation of STARR. In other words, timing of the survey may complicate specific port for organizational change is essential for did officers believe that there were prob- interpretations of these results since officers program integrity. A variety of tools are avail- lems or areas of improvement that STARR had already been engaged in the training pro- able to assess staff support for organizational was intended to target? Responses to six gram. It is impossible to control for the impact change and program integrity (e.g., Crime and questions indicate that officers believed that of STARR training on officer perceptions of Justice Institute, 2009; Institute of Behavioral their district needed greater guidance to their confidence in these skills. If these results Research, n.d; Lowenkamp, Lowenkamp, & improve multiple aspects of offender super- are interpreted as independent of training, Robinson, 2010). From the earliest intro- vision (Likert scale of 1=Disagree Strongly then these officers had a fairly high degree of duction of the program, the vast majority and 5=Agree Strongly; mean=3.77; min=2.5, confidence in their professional skills before of the officers volunteered for the training. STARR. It is an equally plausible explanation Both the chief and deputy chief probation 3 The version of the ORC survey that was used that STARR training was partially responsible officer made concerted efforts to commu- in the present study (9CJ-DATS 2 BSCO-CO) has for the relatively high perceptions of pro- nicate the purpose, value, and likely impact recently been revised and is available as the TCU ORC D4 version at http://ibr.tcu.edu/wp-content/ fessional competence. To assess willingness of successful implementation of STARR to uploads/2014/01/ORC-D4-Rev-Aug09.pdf. The to seek self-improvement, five independent district staff. Once training was underway authors wish to thank Kevin Knight at IBR for his and the majority of officers had considerable assistance with information and assistance in our STARR training, a survey was disseminated revisions. to assess the officers’ readiness for change. 4 One of the original purposes of the survey was The questionnaire was a modified version to examine the relationship between responses on 5 of the Organizational Readiness for Change the survey and actual use of STARR skills. This Self-confidence measures included: 1) you feel would have provided additional information on the you have the skills needed to get your offenders to (CJ-DATS 2 BSCO-CO) questionnaire devel- factors related to officer implementation of STARR. discuss their progress with you; 2) other officers oped by the Institute of Behavioral Research Unfortunately, personnel changes following the often ask your advice about district procedures; 3) (n.d.). While it is preferable to assess staff administration of the survey greatly minimized the learning and using new procedures is easy for you; readiness for change before implementation, value of the survey for such purposes. The results 4) you are considered an experienced source of this was not possible in the present cir- are presented as evidence of attitudes of officers advice about supervision services; 5) you feel appre- trained in STARR towards organizational change ciated for the job you do at work; 6) you are effective cumstances. Nevertheless, survey responses and evidence-based practices, which can have a and confident doing your job; and 7) you are able are presented as a meaningful assessment direct impact on successful implementation. to adapt quickly when you have to make changes. 34 FEDERAL PROBATION Volume 80 Number 1
TABLE 2. Avgerage Hours Survey Measures and Questions Min/Max Range Per Month Need for Guidance Prior to Implementation (1=Strongly Disagree to 5=Strongly Agree) 2.5/4.5 3.77 Increasing participation by offenders in services 2/5 3 Improving rapport with offenders 2/5 3.45 Improving offenders' thinking and problem solving skills 2/5 3.82 Improving behavior management of offenders 2/5 3.82 Improving cognitive focus of offenders during sessions 2/5 4.09 Identifying and using evidence-based practices 3/5 4.45 Self Confidence (1 = Strongly Disagree to 5 = Strongly Agree) 3.14/4.86 3.94 You Have the skills needed to get offenders to discuss their progress with you 4/5 4.33 Other officers ask your advice about district procedures 1/5 3.58 Learning and using new procedures is easy for you 2/5 3.83 You are considered an experienced source about supervision services 2/5 3.67 You feel appreciated for the job you do at work 2/5 4 You are effective and confident doing your job 3/5 4.08 You are able to adapt quickly when you have to make changes 3/5 4.08 Self Improvement (1 = Strongly Disagree to 5 = Strongly Agree) 3/4.8 3.67 Regularly read professional articles and books on supervision 2/5 3.17 Review new techniques and case supervision information regularly 2/4 3.5 Willing to try new ideas even if some officers are reluctant 4/5 4.33 Frequently share knowledge of new offender supervision ideas with others 2/5 3.33 Do a good job of regularly updating and improving your skills 3/5 4.0 Supervisor Encouragement (1 = Strongly Disagree to 5 = Strongly Agree) 2.67/5 4.11 Encourages new ways of looking at how we do our jobs 3/5 4.08 Gives special recognition to others' work when it is very good 2/5 4.08 Emphasizes using new ideas, services, techniques etc. before most other districts 3/5 4.17 Resistance to EBP (1 = Strongly Disagree to 5 = Strongly Agree) NA NA Research-based treatments/interventions are not useful practice 1/3 2.18 Would not use interventions/techniques in which you had to follow guidelines 1/3 2.18 Stress (1 = Strongly Disagree to 5 = Strongly Agree) NA NA Officers at your district often show signs of high stress or strain 4/5 4.42 Officer frustration is common where you work 2/5 3.5 Officers are able to spend the time needed with offenders 1/5 2.75 Your district has enough supervision officers to meet current offender needs 1/5 1.92 More officers are needed to help meet needs at your district 2/5 4.42 Heavier workload reduces the effectiveness of your district 4/5 4.5 June 2016 CASE STUDY OF STARR IMPLEMENTATION 35 questions6 were used due to different coding that officers generally agreed with each of their (frequently increasing) responsibilities. conventions. Of the five measures related to these statements (overall average of 4.11). Results indicate that the present district is not self-improvement, the lowest average response Thus, officers appear to view their supervi- especially unique in perceptions about the was 3.17 (regularly read professional articles sors as supportive of new practices and officer lack of resources to supervise offenders. The and books), and the two highest were 4.0 success, both critical to the implementation of finding that officers believe there is insuffi- (good job of regularly updating and improv- evidence-based strategies and practices. cient time to work with offenders is especially ing skills) and 4.33 (willing to try new ideas). The final area of organizational culture that relevant for STARR training, because one of Officers were also asked directly about the survey was used to measure was officer the intended purposes of developing STARR their level of resistance to organizational perceptions of district resources and officer skills is to help officers use their time interact- change such as implementing evidence-based stress. Extreme responses to questions in these ing with offenders more effectively. Recent practices. Two measures were particularly areas could suggest barriers to the implemen- literature suggests that officers can affect posi- informative for officer resistance. When asked tation of new practices. Extreme shortages in tive change with as little as 20 minutes, if those the degree to which officers agreed with a) personnel may result in overburdened officers interactions use core correctional practices whether research-based treatments or inter- who are unable or unwilling to dedicate the and evidence-based strategies (Lowenkamp ventions were not useful practice, and b) if time to developing new skills or tactics. It is et al., 2104; Lowenkamp, Lowenkamp, & they would not use interventions or techniques also possible that such environments can cre- Robinson; Trotter, 2006). that had to follow instructions or guidelines ate the perceived need for more effective and Overall, the highlighted results from the (1=Strongly Disagree and 5 = Strongly Agree), efficient means of supervising offenders and, survey demonstrated that the officers in this the results showed that the officers reported therefore, create an opportunity to legitimize district were ready to change. They felt over- considerable disagreement with both state- organizational change. Research indicates that worked and not able to spend adequate time ments (mean = 2.18 for both).7 This indicates caseload size is not independently associated with the offenders, but were receptive to new that officers saw value in evidence-based with the use of evidence-based practices, and innovative ideas, felt supported by their practices and were receptive to incorporating but that organizational culture and support supervisor, were confident in their own skill this in their own practice. This minimizes the are critical to that relationship (Jalbert et sets, and for the purposes of staff buy-in, were likelihood that their participation in STARR al., 2011). Officers at the present district did open to learn new and better approaches. It is training was merely perfunctory. Coupled report relatively high levels of stress and work- possible that because the survey was dissemi- with the above findings, the officers in this load.8 All officers agreed or strongly agreed nated after the training was underway, some district seemed ready, willing, and confident that officers showed signs of high stress and of these measures could have been influenced in their abilities to learn new approaches. strain (mean=4.42), but were less certain that by the training and coaching, particularly As noted previously, organizational support frustration is commonplace across officers with a sample of one district office; however, and commitment are essential for successful (mean=3.50). One source of potential stress there appears to have been little meaning- implementation (Alexander, 2011; Taxman, was that officers generally disagreed with ful resistance among those who had already Henderson, & Belenko, 2009; Lehman et al., the statement that they were able to spend been trained. Furthermore, the district office 2002; Paparozzi & Gendreau, 2005). One of the time needed with offenders (mean = culture, especially as it relates to a supervisory the most critical aspects of organizational 2.75). They also disagreed that the district role in implementing organizational change, change is the role and attitude of a par- had enough officers to meet current offender appears to have been receptive to new training ticipant’s direct supervisor. Several survey needs (mean = 1.92). Furthermore, officers and officer strategies. questions focused on the role of the supervisor agreed that more officers were needed to help in encouraging new approaches in effective meet needs (mean = 4.42) and that heavy Sustaining Initial Implementation and practice and the officer’s resistance towards officer workload reduces the effectiveness of Reaching Full Implementation evidence-based practices or following specific the district (mean = 4.50). It is nearly univer- Successful implementation is a long road, guidelines in general. Three measures were sal that community corrections professionals generally taking 2-5 years to complete. It is combined to create an index score for super- believe caseloads are too high. Furthermore, well-documented that criminal justice reform visor encouragement. The questions asked community correctional agencies report- is frequently short-lived and modified before about the supervisor’s willingness to consider edly receive insufficient funding to perform any meaningful change can be expected to take new ideas and strategies, recognition of staff place (Lab, 2004). To minimize such decay, success, and the supervisor’s willingness to 8 It should be noted that the survey was research notes the importance of subsequent consider new ideas and practices before other administered in mid-November 2013. This was training to maintain and improve program districts. Results presented in Table 2 indicate approximately four weeks after the conclusion of integrity (Alexander, 2011; Taxman et al., a two-week federal government shutdown, which 6 2012). Providing continual officer support was Self-improvement measures include: 1) You may have contributed to higher level of staff a central element of the implementation strat- regularly read professional articles and books on stress. The survey was to be originally released in supervision of correction offenders, 2) you review September 2013, but when a possible shutdown was egy for STARR. After the initial training, the new techniques and case supervision information being discussed in the news media, it was decided first booster session was held approximately regularly, 3) you are willing to try new ideas even if to postpone the administration of the survey. a month later. As noted previously, these ses- some officers are reluctant, 4) you frequently share Researchers spoke with the district CPO before sions occurred approximately once a month your knowledge of new offender supervision ideas submitting the survey to ensure that office opera- and continue even at this time of publication, with others, and 5) you do a good job of regularly tions and the office environment had returned to updating and improving your skills. normal. Nevertheless, it is impossible to determine five years after initial training began. Such 7 Questions were asked in the negative to avoid the what, if any, effect the proximity of the survey to the long-term commitment to an implementation problem of agreement bias and repetitive format. shutdown had on officer responses. 36 FEDERAL PROBATION Volume 80 Number 1 process is a cornerstone of ensuring that officers were able to learn from feedback given researchers at a regional university conducted changes in practice become permanent. The not only to themselves but to their co-workers. an external review of the instrument (see sustainment of the use of STARR is evident in Officers also submitted tapes of client interac- Clodfelter, Alexander, Holcomb, Marcum, the percentage of contacts that include at least tions on a regular basis. The coaches used a & Richards, 2014), and the instrument went one STARR skill, as shown in Chart 1. Even standardized form to evaluate tapes, but also through numerous revisions before being with new officers being added each year, for had the freedom to add their critiques or sug- finalized. The initial group of officers trained which STARR skill use will be limited due to gestions that were in addition to the items on were rated on proficiency by the researchers the newness of the skill, the yearly averages for the evaluation form.9 Finally, coaches made a and students, who evaluated 2 audio tapes per skill use increased and now represent at least concerted effort to be available to the officer skill per officer to determine if the officers half of all contacts. (by phone, email, or in person) on a regular were competent on the skill. For each skill, basis, which helped to foster a strong teaching this totaled roughly 24 tapes that each of the Feedback environment. Overall, the officers believed approximately 20 coders analyzed. Detailed Multiple mechanisms for feedback were incor- the coaching they received was invaluable (see results were provided to the district CPO porated in the STARR training, including Alexander et al., 2014). (see Holcomb, Marcum, Richards, Clodfelter, both group and individual feedback by peers, & Alexander, 2014), and these results were coaches, and supervisors. Conversations with Evaluation shared with coaches and officers to improve district officers indicated that this feedback The final component to assessing STARR feedback and further training. Nearly all of led to officers feeling more confident in their implementation is an evaluation of officer skill the officers who underwent initial training skills and improved their proficiency. The competency and the frequency of their use of were able to demonstrate a high level of pro- coaches themselves were carefully selected STARR strategies with offenders. Research ficiency with STARR skills in the first round by the CPO due to their leadership and per- notes the importance of having an evaluation of coding. Since the initial evaluation, the formance skills. As noted earlier, each coach plan in place before the start of the program district has continued to use the proficiency received specialized training in how to be implementation (Alexander, 2011; Crime & rating scale for both the original officers and an effective STARR coach. They were also Justice Institute, 2009). As noted previously, all officers trained in subsequent waves. Once mentored by an expert STARR trainer before full implementation is considered reached deemed proficient, officers must demonstrate and throughout officer training. Thus, the once 50 percent of staff meet performance continued proficiency through submission of district provided opportunities for feedback criteria for a specific skill. quarterly audiotapes; if they do not maintain to both officers and the coaches who worked Similar to the design of the feedback proficiency, booster sessions are reinstated. To with officers. component of STARR, measures of STARR date, approximately 75 percent of officers have For the officers, the coaches provided skills were carefully crafted. The initial pro- reached proficiency. constructive criticism and suggestions tar- ficiency evaluation form was created by the In addition to assessing the quality of geting several different areas. Built into the district coaches and the CPO, who was one interactions, the district tracks the frequency curriculum of the initial training and boost- of the STARR developers. To improve the of skill usage in order to assess the scale of the ers were role play and critical assessments of validity and reliability of the instrument, intervention. Although no specific standards audio recordings. In booster sessions, coaches have been researched regarding what may gave immediate feedback, peers could ask 9 The evaluation instrument is available from constituent “sufficient” STARR skill interven- questions and offer helpful suggestions, and the authors. tion, the district has set a goal of 40-60 percent of all client interactions including a STARR skill. A monthly report of STARR skill use is CHART 1. distributed to coaches and supervisors, who then follow up with officers regarding their Yearly Percentage of Contacts which Include Use of a STARR Skill skill use. The district communicates specific 0 expectations for skill usage during the train- ing process. Newly trained officers have a 0 low expectation (5 percent of interactions) to try to ensure that officers are motivated to attempt the newly learned skills, rather 0 than be discouraged by an unattainable goal. As officers progress through training, the 0 frequency of skill usage is increased. STARR skill usage is reviewed regularly by the CPO, 0 coaches, and individual officers to increase the likelihood that officers are actually using STARR skills when appropriate. Data for the 10 2015 calendar year notes that, on average, officers trained in the STARR skills were 0 using the skills in 46.8 percent of interactions, 01 01 01 01 01 with a range of monthly use from 12 percent June 2016 CASE STUDY OF STARR IMPLEMENTATION 37
(generally at the beginning of officer training) outcomes within particular frameworks, but everyday supervision activities. The present to 92 percent for the most seasoned officer rather caused by the inability to implement study indicates that, at least in the district (one of the initial volunteers trained in 2011). the programs or policies in a manner that under review, STARR has been implemented Furthermore, STARR training appears to have would sustain change over time. In particular, sufficiently for future analysis. Now that a become part of the organizational culture, as they challenged that without proper train- sufficient period of time has passed since STARR skills are included as part of the hir- ing, monitoring, and supervision of program the implementation of STARR, it is possible ing process and are part of the performance integrity, implementation of criminal justice to conduct outcome analyses on a variety of evaluation. All of these elements suggest that reform is likely to fail. Thus, ensuring that offender outcomes. Such a study is currently the use of STARR skills have become essential a program is implemented as intended is a underway. Researchers and probation admin- to successful supervision rather than a tempo- prerequisite to any further assessment of the istrators seeking to determine the impact of rary program or tactic to be merely tolerated. program’s effectiveness. STARR or similar programs are encouraged The purpose of the present study was to to first determine if the program has been Recommendations describe the implementation of STARR in fully implemented in a manner consistent and Conclusion one federal district and determine whether an with its original design. Without such infor- Although numerous aspects of the execution outcome evaluation was warranted. After all, if mation, any evaluation will be of limited of STARR training were deemed successful, officers were not adequately trained in STARR value. Hopefully, the present study provides several areas of improvement were recognized or using those skills in their actual supervi- insight into important questions and means by researchers and district staff. The first sion practice, then it would not be prudent to of assessing implementation for community important challenge was estimating the examine the relationship between STARR and correctional agencies. offender outcomes. Navigating district officers increased workload on the coaches and how References it would affect their ability to manage their through the implementation process was a key numerous responsibilities. It was expected component of the implementation design of Alexander, M. (2011). Applying implementation that the feedback and evaluation strategies STARR in this district. In fact, the CPO and research to improve community correc- would be comprehensive, but it was not antici- coaches consider it essential to officer support tions: Making sure that “new” thing sticks! Federal Probation, 75(2), 47-51. pated how cumbersome it would be to balance and participation, which enhanced program Alexander, M., Palombo, L., Cameron, E., their new STARR responsibilities with existing integrity and prevented decay since the offi- Wooten, E., White, M., Casey, M., & Bersch, cers were invested. While the team felt that job requirements. We recommend that super- C. (2014). Coaching: The true path to visors carefully select coaches with excellent some proficiency instruments needed further proficiency, from an officer’s perspective. time management skills and take steps to revision, the CPO, coaches, and research team Federal Probation: A Journal of Correctional redistribute or modify coaches’ non-STARR went to great lengths to produce an assess- Philosophy and Practice, 77(2), 4. responsibilities to provide them with suffi- ment tool that would be useful for a wider Andrews, D. A. (2006). Enhancing adherence cient time to perform their critical function in audience of STARR trainers and supervisors. to risk-need-responsivity: Making quality implementing STARR. Currently, all locations in the district are a matter of policy. Criminology and Public It was also determined that, while the trained and appear to be actively using STARR. Policy, 5(3), 595-602. training and coaching of STARR skills were This level of engagement is in part due to the Andrews, D. A., & Bonta, J. (2003). The psychol- ogy of criminal conduct (3rd ed.). Cincinnati, well defined and articulated, the global skills documented early success of STARR (see OH: Anderson. emphasized in training were more challeng- Robinson et al., 2012). But perhaps more Andrews, D. A., & Bonta, J. (2010), The psychol- importantly, the implementation of STARR ing. Global skills are consistent with core ogy of criminal conduct (5th ed.), New Provi- correctional practices and reflect attitudinal was strongly supported by both the upper and dence, NJ: LexisNexis Matthew Bender. and relational characteristics of interactions middle management of the district. Often in Andrews, D. A., Bonta, J., & Hoge, R. D. (1990). such as empathy, collaboration, and autonomy, bureaucratic agencies, ideas of best practices Classification for effective rehabilitation: which have been found to be critical elements are informally implemented and difficult to Rediscovering psychology. Criminal Justice of successful interventions with involuntary sustain. In this context, supervisors may be and Behavior, 17, 19-52. clients (see Clark, 2005; Trotter, 2006; Walters, resistant to improve officer practice consistent Bonta, J., Rugge, T., Scott, T., Bourgon, G., & Clark, Gingerich, & Meltzer, 2007). These with existing evidence. It appears that the role Yessine, A. (2008). Exploring the black box concepts are more abstract and difficult to and support of the CPO in this particular of community supervision. Journal of Of- fender Rehabilitation, 47, 248–270. define and, therefore, harder to provide feed- district garnered support and buy-in from the Bourgon, G., Gutierrez, L., & Ashton, J. (2011). back and evaluation. While the instrument officers, which aided in the implementation The evolution of community supervision process. STARR utilization is now included revision process included measures on these practice: The transformation from case global skills, coaches occasionally found it as part of the officer’s annual review, further manager to change agent. Irish Probation difficult to evaluate interactions on these demonstrating how STARR has become an Journal, 8, 28-48. measures. As a result, the district’s STARR integral part of the culture in this district. Chadwick, N., Dewolf, A., & Serin, R. (2015). team has continued to refine the proficiency The remaining question is whether Effectively training community supervision instruments for the global skills. STARR is associated with improved offender officers: A meta-analytic review of the im- Rhine et al. (2006) argued that the failure outcomes. As noted previously, such an pact on offender outcome. Criminal Justice of evidence-based practices to show effec- investigation was not warranted until it was and Behavior, 42(10), 977-989. tive change in corrections was not due to the determined that officers were sufficiently lack of knowledge of behaviors and expected trained in STARR and were using it in their 38 FEDERAL PROBATION Volume 80 Number 1
Clark, M. D. (2005). Motivational interviewing Lowenkamp, C. T., Flores, A. W., Holsinger, Robinson, C. R., Lowenkamp, C. T., Holsinger, for probation staff: Increasing the readiness A. M., Makarious, M. D., & Latessa, E. J. A. M., VanBenschoten, S., Alexander, M., to change. Federal Probation, 69(2), 22-28. (2010). Intensive supervision programs: & Oleson, J. C. (2012). A random study of Clodfelter, T. A., Alexander, M. A., Holcomb, J. Does program philosophy and the Staff Training Aimed at Reducing Re-arrest E., Marcum, C. D., & Richards, T. N. (2014). principles of effective intervention matter? (STARR): Using core correctional practices Improving probation officer effectiveness Journal of Criminal Justice, 38, 368-375. in probation interactions. Journal of Crime through agency-university collaboration. Lowenkamp, C. T., Holsinger, A., Robinson, C. and Justice, 35(2), 167-188. doi:10.1080/073 Criminal Justice Studies: A Critical Journal of R., & Alexander, M. (2014). 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Alese Wooditch Lauren Duhaime Kimberly Meyer George Mason University
IN HIS 19th-CENTURY commentaries, Max an individual holding a designated organi- What is Discretion? Weber (1946) tried to make sense of a rapidly zational position (Zucker, 1977). For Weber A byproduct of the rational structure of bureau- changing world. Weber (1946), a German (1946), bureaucracies provide a clear roadmap cracies is that it permits low-level workers to political economist, observed the Industrial to producing efficient, effective, and produc- exercise a great deal of discretion. Hawkins Revolution transforming what was once an tive systems. (1992) characterizes discretion as the “means agrarian landscape into a capitalistic society. An inherent contradiction in Weber’s by which law […] is translated into action” The period was marked by unprecedented (1946) theory is that top-down directives (p. 11). Although workers exercise discretion mass production and consumption of goods serve to achieve goals, but the attainment of at all levels of criminal justice organizations, (Thompson, 1967). Weber (1946) also saw these goals is contingent upon compliance it is most prevalent among frontline workers the Prussian army—comprising some dis- from the bottom up (Etzioni, 1964). If, as at the bottom of the organizational hierarchy, parate territories—come together as it had Weber (1946) contests, the formal hierarchal which Lipsky (1980) refers to as street-level not before and quickly defeat the seemingly structure is the preeminent source of power bureaucrats. Lipsky (1980) refers to criminal superior military force of Austria. Amidst in an organization, how can workers at the justice line staff such as police and probation these events, Weber (1946) perceived that a bottom of the hierarchy have such control officers as street-level bureaucrats because common feature of the industrialized facto- over the success of the organization? A major they demonstrate a high degree of discretion ries and the newly unified Prussian army was drawback of Weber’s (1946) theory, according and constantly interact with the public in the organization, which he identified as a key to to critics, is its preoccupation with workers as course of their duties. Street-level bureau- possible collective success. This supposition an amalgamated group. The consideration of crats differ from low-level staff in most other became the basis of Weber’s (1946) theory workers as individual actors reveals that low- professions because they have considerable of bureaucracy. level power exists because the bureaucratic power within the organization, their relation- Weber (1946) argued that industrialized structure affords these workers autonomy and ship with clients is non-voluntary, and the job factories are rational systems (which he termed considerable freedom in their daily activities, encompasses a give and take of resources and “bureaucracies”) in which the organization a reality known as discretion. referrals (Lipsky, 1980). Examples of street- itself serves as a means for achieving desired In this article, we will explore several level bureaucrats include teachers, probation ends “within the limits imposed by given con- aspects of this Weberian omission as they officers, and social workers. ditions and constraints” (Simon, 1964, p. 573). pertain to probation departments, given that Discretion is an unavoidable aspect of the The formal structure of these organizations these organizations exhibit high levels of street-level bureaucrat’s role. Organizations serves the attainment of goals (Scott & Davis, bureaucratization. What is discretion? How is increase formalization to control the behavior 2007). A chain of command is a main source discretion exercised within probation depart- of subordinates, but the unpredictable envi- of power among workers as their hierarchical ments? Why does discretion exist among ronment these workers face requires them to position defines the amount of power they probation officers? How does discretion affect interpret and translate formal policies into hold (Weber, 1946). Formalization (creation organizational goal attainment? We will con- practices that can be carried out (Hawkins, of and emphasis on written rules and struc- clude by discussing how an understanding of 1992). That is, because they do not receive tured procedures) legitimizes inequalities in discretion can inform policies and practices specific instruction about how to implement hierarchical relationships and is a normative in probation departments and suggest ways to policies, they have to make decisions about control mechanism because workers are more better inform this knowledge base. how and when to apply them. Lipsky (1980) likely to comply with directives exercised by explains why a high degree of discretion 40 FEDERAL PROBATION Volume 80 Number 1 exists among street-level bureaucrats: (1) The The Limitations of Discretion in of his or her supervision because she thinks circumstances they encounter daily are too Probation Services another option—even just talking with the idiosyncratic to apply standardized guide- probationer—may resolve the situation. This Weber (1946) discusses the attainment of lines; (2) They must constantly respond to the use of imperfect options to make a satisfac- goals at the organizational level; however, the human element of situations, which is spo- tory decision is known as “satisficing” (Simon, existence of discretion within a bureaucracy radic and ever-changing; and (3) Street-level 1955). Because the officer is unable to con- means that individuals also directly affect bureaucrats are public servants, and discretion sider every possible option she has available goal attainment. Even though Weber (1946) is imperative to the legitimacy of the state. As and does not have the capacity to foresee the theorizes that the organization itself serves such, the rules and guidelines bureaucracies consequences of her decision with accuracy, goal attainment, the discretion individual establish are ill-suited to the uncertain, vague, she will choose one of many options, even workers exercise may also serve as a means to or changing situations that street-level bureau- though no option may be the best solution. this end. First, discretion allows for the con- crats encounter daily (Hawkins, 1992). Workers also make trade-offs and allow ethi- sideration of idiosyncrasies that help actors cal concerns to inform their actions, which select an outcome that is appropriate given Discretion in Probation may be detrimental to the success of the orga- the unique circumstances (Feldman, 1992). On a practical level, discretion is essen- nization (Loewenstein, 1996). For example, an For instance, a probation officer may treat an tial to street-level bureaucrats because of administrator facing budget cuts may opt to offender who has intellectual and develop- resource, information, and time constraints. discontinue effective rehabilitative program- mental disabilities differently than an offender For instance, it is impractical for proba- ming (Mair & Burke, 2013), and weighing on without cognitive limitations when determin- tion officers to cite clients for all violations this decision may be her reluctance to lay off ing whether to file a violation (Hutchison, incurred (Lipsky, 1980). Filing violations for employees whom she has befriended. Hummer, & Wooditch, 2013). In this situ- every failed drug test or missed visit takes up Despite the thoughtful structuring of ation, the differential treatment that arises too much time, though these are technically organizations to maximize efficiency, bureau- from discretion is arguably more equitable legitimate reasons to revoke probation. In cracies remain cooperative systems in the than the universal application of rules that recent decades, many correctional agencies sense that they depend on the willingness of characterize Weberian (1946) bureaucracies. have developed graduated sanction systems workers to achieve desired outputs (Barnard, Second, discretion may yield more favorable that prescribe escalating responses to certain 1938). Thus, the autonomy of street-level offender outcomes. For instance, correctional violations. For instance, a positive drug test bureaucrats affords them the ability to resist programming has shifted from a one-size-fits- may result in additional drug treatment meet- actions that lead to specified organizational all approach to one based around tailoring ings or missed visits may lead to an extension goals. A number of reasons may account for treatment to an individual’s needs and prior of the probation term, but there is no violation this opposition. experiences. Studies support the notion that incurred unless the behavior becomes repeti- First, organizational goals may con- this individualized, discretionary approach to tive (Wodahl, Ogle, Kadleck, & Gerow, 2013). flict with the workers’ personal views or treatment is more effective than a formalized, Systems like risk assessment instruments values. Scholars increasingly advocate for blanket approach to treatment (Andrews & and sanctioning grids (both of which pre- evidence-based policy, which is the process Bonta, 2010). scribe responses for probation officers) can of implementing research-backed policies Although there are some benefits to discre- be controversial among line staff (Makarios, that we know will successfully reduce crime tion, empirical research in this area identifies McCafferty, Steiner, & Travis, 2012; Turner, (Sherman, 1998); however, some practitio- a number of limitations that lead to ineffective Braithwaite, Kearney, Murphy, & Haerle, ners resist organizational changes to this and unjust outcomes. Street-level bureau- 2012) because of the limits they place on end (McCarty et al., 2007). A study con- crats operate within organizations that Weber officers’ discretion. Conflict need not break ducted by Miller and Maloney (2013), for describes as rational because they coordi- out, though, if managers can communicate instance, finds that agencies adopt risk-need nate actions in a way that efficiently leads the usefulness of these discretion-limiting assessments (an evidence-based approach) to to predetermined goals. However, irrational tools and promote staff “buy-in.” In most ensure that probation officers provide clients workers operate within this supposedly ratio- cases, these tools are not implemented due to with appropriate services; however, officers nal system. a desire to take away decision-making from frequently ignore the results of such assess- Mounting empirical research suggests that officers, but rather to standardize behavior, ments and even manipulate the treatment a wholly rational decision-maker is impos- make responses consistent across probation recommendations to correspond with their sible (March & Simon, 1958; Simon, 1955). offices, and improve efficiency (Makarios et own treatment decisions (see also Viglione, Situations are far too complex and uncertain al., 2012; Steiner, Travis, & Makarios, 2011; Rudes, & Taxman, 2015). Weber (1946) sug- for actors to be rational in their decision-mak- Turner et al., 2012). Such standardization is gests that bureaucracies serve the pursuit of ing. Simon (1964) argues that the information important because it allows agencies to deliver organizational goals, but he neglects the fact the actor has available, cognitive limitations, unified responses to violations and may limit that individuals select organizational goals. and the amount of time available for mak- potential complaints about discrimination As such, specific organizational goals may ing the decision serve to “bound” or limit against clients. Recommendations for imple- favor some individuals over others (Scott & rationality. In essence, actors lack the ability mentation of these standardization tools will Davis, 2007). This is problematic, because a to truly optimize their decision-making. For be discussed later. worker’s values influence his or her actions. A instance, a probation officer may decide not nationally representative survey of wardens, to revoke an individual’s probation due to probation/parole administrators, and other a minor violation of the rules or conditions June 2016 DISCRETION AND ORGANIZATIONS 41 justice administrators finds, for instance, that gut-level decision-making (Andrews & Bonta, model of risk, needs, and responsivity. The the value administrators place on rehabilita- 2010), and (3) such manipulation introduces general findings from their studies are that tion for drug offenders predicts the extent inconsistences across decision-making that probation officers do not have these skills, but to which their agencies implement substance arise from extralegal factors such as the pro- when officers do possess these skills, they do abuse treatment programming (Henderson & bation officer’s age and the offender’s prior not use them in the context of offender super- Taxman, 2009). offenses (Reese, Curtis, & Whitworth, 1988). vision (Bonta et al., 2011). Officer skills are Second, the means of reaching organiza- These examples demonstrate how social important because the probation process relies tional goals may conflict with the worker’s role realities influence power structures within upon officers creating an environment in which expectations. Over the past few decades, for bureaucracies, rather than deriving power offenders can change. More recently, attention example, the correctional system has experi- dynamics from the worker’s position in the has been given to enhancing the training of enced a slow transition from a punitive agenda formal hierarchy, as Weber (1946) contests officers through curriculums that focus on to one placing more emphasis on rehabilita- should be the case. structuring sessions, building relationships, tion (Cullen & Gendreau, 2000; Gendreau, and using behavioral techniques, cognitive 1996). Such a paradigm shift requires that Organizational Practices techniques, and effective correctional skills probation officers also shift their roles (the to Maximize the Benefits (Bonta et al., 2011; Oleson, VanBenschoten, behaviors the organization expects of the of Discretion Robinson, Lowenkamp, & Holsinger, 2011). individual) and become similarly more reha- The extensive empirical research above sug- The premise is that in order for officers to bilitative and less punitive, a change they gests that (1) the total abolition of discretion use evidence-based practices, their workflow may not embrace (Rizzo, House, & Lirtzman, is impossible and (2) unrestrained discretion needs to be adapted to the principles of their 1970). For instance, in the wake of state- among probation officers warrants concern. work environment, including attention to wide policy changes that limited the use of These two realizations debunk the theoreti- intake and assessment, monitoring compli- incarceration as a response to technical viola- cal and practical usefulness of Weber’s (1946) ance, monitoring treatment compliance, and tions, parole officers in California developed concept of organizational rationality. However, reinforcing cognitive restructuring (Taxman, resistance tactics (such as piling charges to prior research also provides knowledge that 2014). Providing training and education to make a client’s behavior appear more egre- can translate into effectiveness and efficiency officers decreases discretion within agencies gious) in order to circumvent this initiative by controlling and shaping how street-level because officers can use a common language (Rudes, 2012). bureaucrats exercise discretion. The follow- and an established set of skills. Third, a threat to bureaucratic control ing discussion outlines ways to overcome the Administrative policies may also be effec- that Weber (1946) misses in his systems-level shortcomings of discretion through policies tive at changing the overall organizational hyper-focus is that a street-level bureaucrat and practices of the organization. culture and departmental norms, such as may elect to disregard directives because he Probation departments can successfully regarding the proper implementation of or she no longer perceives the bureaucracy manage discretion by increasing formaliza- assessment instruments (Kunda, 2006). For as the dominant authority. For instance, a tion—creating and emphasizing written rules instance, agencies could devise policies that “shadow structure” may operate behind the and structured procedures (Scott & Davis, require risk and needs assessments, inform organizational structure. Shadow structures 2007). The addition of policies and regulations case management plans, or prohibit the proba- refer to the informal side of organizations, clarifies the role expectations and “make[s] it tion officer from using the override option to including unspoken rules and social networks clear that some behaviors are absolutely inap- manually set risk levels without approval from that may work to circumvent formal proce- propriate for criminal justice actors no matter supervisors. The benefit of increasing bureau- dures (Kanter, 1977). Viglione and colleagues what the justification” (King & Dunn, 2004, cratization, however, may vary by the size of (2015), for instance, examined the implemen- p. 351). Prior studies argue that formaliza- the probation department. Research suggests tation of validated risk and needs assessment tion, such as imposing sentencing guidelines that the behavior of actors in larger depart- tools among probation officers in two adult (Albonetti, 1997; Norman & Wadman, 2000), ments is more loosely-coupled (Mastrofski, probation settings. They found that while the provides probation officers with guidance Ritti, & Hoffmaster, 1987), referring to a weak use of assessment tools was widespread, how in their decision-making, in turn limiting connection between the formal organizational probation officers used the instruments mis- unwarranted disparities in case management structure and the behavior of workers. aligned with agency policy and the underlying (see also Hagan, 1979; Pruitt & Wilson, 1983). Poor communication within organizations principles of the assessment. Despite formal The benefit of increasing formalization greatly impedes the cooperation of employees training on the tool, probation officers did is that without such direction, street-level (Chen & Komortia, 1994; Dawes, McTavish, & not use the tool to guide their supervision or bureaucrats may rely upon informal organiza- Shaklee, 1977). The solicitation of advice from case management decisions and even manu- tional norms that lead to inequity or injustice. low-level workers increases their compliance ally adjusted risk scores based on their own One way to increase formalization within an with directives because workers feel heard. judgment. This practice is problematic given organization is through education about key It is important for probation departments to that research finds that (1) probation officers terms and practices that workers encounter open communication lines to inform staff overwhelmingly over-classify offenders based daily. James Bonta and colleagues studied of new practices or policies. Skogan (2008) on perceived risk (Oleson, VanBenschoten, whether probation officers have the appropri- argues, for instance, that when officers first Robinson, Lowenkamp, & Holsinger, 2012), ate interpersonal skills, role modeling, and hear about new initiatives at City Hall press (2) recommendations from risk and needs communication skills to work effectively with conferences, they feel that the department val- instruments have been found to be superior to offenders in an evidence-based assessment ues the input of the community more than it 42 FEDERAL PROBATION Volume 80 Number 1 does that of its own personnel. Organizational that have important implications for policy universal options for responding to violations leaders within the department can play an and practice. beyond doing nothing or returning to custody. important role in the communication process A main critique of extant discretion The research challenge is to illuminate the by starting conversations with staff about research pertains to methodology. For relationship between the criminal behaviors implementing new and existing practices. Just instance, Mastrofski (2004) notes that even officers want to prevent and the use of tech- allowing street-level workers to express their though studies demonstrate that college- nical violations. In other words, we must ask concerns about new policies and practices can educated officers perform better than those what behaviors technical violations are effec- go a long way toward increasing employee without a college education, research is tive in preventing and compare the answer to “buy-in” (Farrell, Young, & Taxman, 2011; “unable to distinguish the contributions of the our goals. Rudes, 2012; Rudes, Viglione, & Porter, 2013; actual educational experience in college from One way to minimize discretion in parole Schlager, 2009). Middle managers are the key the selection effects of getting into college and and probation is to introduce tools to guide to this process because they serve as the link completing it” (p. 594). Although randomized officers in their decision-making at different between high-level administrators and street- experiments are impractical in this instance, steps of the probation process. For example, a level workers (Rudes, 2012). Communication researchers need to (and can) develop studies risk and needs tool guided by probationer-level from management may also effectively control that allow them to make stronger causal infer- information can reduce discretion by intro- street-level workers informally by offering ences. Further, researchers must pursue these ducing guidelines based on assessment results. encouragement or promoting adoption of ends in a variety of criminal justice arenas Research finds that assessment results are not practices (Marquart, 1986). and settings: Studies on discretion in a large regularly integrated into case management Sensemaking is another important aspect probation department in the United States and supervisory decisions (Viglione et al., determining whether employees comply with may not be generalizable to a small probation 2015). Such neglect of information from these discretion-limiting directives. Sensemaking is department in Central Europe, for instance. instruments is embedded in organizational the process of extracting cues or making sense Additionally, research on discretion among factors beyond the control of individuals. The out of circumstances, which guides everyday prison workers may not be generalizable to same study identified the need to better define actions (Weick, 1995). An organization’s com- community corrections officers because they how to use assessment information in pro- munication system can help workers make are situated within different bureaucracies bation practice. With considerable research sense of directives because the meaning work- with different organizational structures and supporting the usefulness of assessments for ers attach to an intervention strongly predicts goals (as defined by Weber, 1946). improving decision-making consistency and whether they will implement it (Greenhalgh et Finally, research on discretion is only as accuracy and appropriate supervision strate- al., 2004). For example, probation officers have useful as its ability to inform the policies and gies (Haas & DeTardo-Bora, 2009; Luong & been found to be resistant to basing case man- practices of probation departments. Empirical Wormith, 2011; Makarios & Latessa, 2013; agement decisions on the findings of risk and research predominately focuses on select Miller & Maloney, 2013; Oleson et al., 2011, need assessment tools (Viglione et al., 2015). A aspects of discretion (e.g., sanction deci- 2012), there is greater need for future research sensemaking approach advises that probation sions, use of force), with insufficient attention on how the use of assessment tools can officers will more readily implement and abide devoted to numerous other aspects that could affect supervision discretion. Once research- by recommendations of assessment tools if the inform a wider breadth of worker behavior ers address these broader analytical concerns, agency expresses that the foremost intention (e.g., critical thinking, deescalating danger- they will facilitate the theoretical development is to produce fair and consistent outcomes ous situations). For example, finding effective of discretion and identify ways to encourage among clients. Such a message combats the responses to violations of probation and parole appropriate behavior more effectively through perception that an officer’s discretion is being is important for several reasons. First, Bureau policies, practices, and structures. constrained by the department due to a lack of Justice Statistics data show that more than of trust or disregard for their vast experience a third of the new admissions to state prisons Conclusion (Klein & Knight, 2005). in the United States consist of parole (primar- Probation departments are constantly in ily) and probation violators (Janetta & Burrell, search of ways to rein in the discretion of Directions for Future 2014). Research has shown that many of their officers. Researchers have an obliga- Research on Discretion in these violators can be safely managed in the tion not only to study discretion of low-level Probation Services community at a much lower cost than that of workers, but also to shed light on how to There is good reason to further our under- housing them in jails and prisons. Still, count- control it judiciously. After all, discretion of standing of discretion as it operates within less probation and parole violations are filed public servants is a necessary component of bureaucracies in general and probation as preventative measures, and thousands of democracies (Berkley, 1970), insofar as rules departments in particular. To better establish offenders are incarcerated. There is no reliable sufficiently govern the behavior of actors policies and procedures that minimize the evidence to support this use of violations, and (Hawkins, 1992). Thus, developments in how shortcomings while at the same time pre- recent research from Washington State found street-level workers exercise discretion must serving the benefits of discretion, there are no reduction in new criminal activity from encourage behavior that produces fair out- several recommendations for future research. confining technical violators (Drake & Aos, comes while at the same time being free from Mastrofski (2004) outlines four problem areas 2012). Janetta and Burrell (2014) suggest that tyrannical control. of discretion research: weak research designs, there is both a political and research challenge insufficient generalizability, underdeveloped facing parole and probation practices. The theory, and inattention to aspects of discretion political challenge is to provide a robust set of June 2016 DISCRETION AND ORGANIZATIONS 43
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Niquita M. Vinyard Senior U.S. Probation Officer Eastern District of Missouri
A LARGE BODY of federal sentencing misdemeanors.3 Interestingly, the supervised offense including child pornography offenses, research has examined the effects of legal and release term for child pornography offenses is the statutory maximum term of supervised extralegal factors on sentencing outcomes not guided by the class of the felony. Instead, release, which is a life term, is recommended.6 (Albonetti, 1997; Doerner & Demuth, 2010; the length of the term is guided by 18 U.S.C Under the Federal Sentencing Guidelines, Mustard, 2001). This literature focuses on 3583(k).4 Under the statute, the length of the such policy statements are to be considered by sentence length and/or the decision to incar- supervised release term for child pornography the sentencing judge (Shockley, 2010). cerate as the dependent variable. Surprisingly, offenders is a minimum of five years to life. If the policy statement in the guidelines rec- researchers have ignored a second and equally In determining where within the five years ommending the maximum supervised release important outcome of the federal sentence— to life range to impose supervised release for term for all child pornography offenses is the supervised release term. Supervised child pornography offenders, the court is to followed directly, one would expect that the release is a period of post-conviction com- consider statutory sentencing factors which exact same sentence of lifetime supervised munity supervision that is imposed at the include the nature and circumstances of the release would be meted out across all child por- time of sentencing.1 Not to be confused with offense and history and characteristics of nography cases. However, only approximately parole, supervised release adds a period of the offender; deterrence; public protection; 38 percent of child pornography offenders supervision to be served upon completion of and needed educational/vocational training, convicted in federal court in fiscal year 2010 the sentence of imprisonment. Parole on the medical care, or other correctional treat- received a life term of supervised release (USSC other hand, is a period of supervision carved ment of the offender.5 However, Congress Sourcebook, 2010). Such data suggests two out from the length of the original sentence.2 declared harsher penalties for all child por- things: (1) a disconnect between Congressional Once a sentencing court determines that nography offenders with specific directives will and the will of the sentencing court, and a term of supervised release is authorized to the U.S. Sentencing Commission (USSC) (2) the possibility of unwarranted supervised or required, the court must then decide the to include policy statements in the sentenc- release sentencing disparities for child pornog- length of the term. The maximum authorized ing guidelines regarding the imposition of raphy offenders. An unwarranted sentencing supervised release term for Class A or B felo- supervised release. According to the policy disparity refers to unequal sentencing result- nies is five years, three years for Class C and D statement, if the offense of conviction is a sex ing from unfair, unjustifiable, or unexplained felonies, and one year for Class E felonies or causes rather than a legitimate use of judicial 3 A Class A felony carries a maximum imprison- ment term of life or death. A Class B felony carries a discretion (Rigsby, 2010). maximum imprisonment term of twenty-five years The length of the supervised release term or more. A Class C felony is less than twenty-five imposed by the court is of particular impor- years imprisonment but more than ten years. A tance for child pornography offenders subject Class D felony is less than ten years imprisonment to the enhanced supervised release provi- 1 A sentencing court is authorized and, in some but more than five. A Class E felony is less than five cases, statutorily required to impose a term of years imprisonment but more than one year. sions because the statute also provides for the revocation of supervised release resulting supervised release in addition to a term of impris- 4 For all child pornography offenses, the gen- onment (see general supervised release statute eral supervised release statute (18 U.S.C 3583) is in the incarceration of the defendant for the under 18 U.S.C 3583 in Federal Criminal Code trumped by 18 U.S.C 3583(k) which authorizes the and Rules). term and length of the supervised release. 2 The Sentencing Reform Act of 1984 abolished 5 See 18 U.S.C. 3553(a) in Federal Criminal Code 6 See Section 5D1.2(b)(2) of the USSC Federal parole for federal offenders who committed their and Rules. Sentencing Guidelines Manual 2012. offenses on or after November 1, 1987. 46 FEDERAL PROBATION Volume 80 Number 1 remainder of the period.7 For example, if a Accordingly, this research is presented as an United States v. Booker (2005) defendant who is required to register under exploratory and preliminary examination of After twenty years in effect, the constitu- the Sex Offender Registration and Notification the subject matter. Third, given the relative tionality of the federal sentencing guidelines Act (SORNA) engages in any conduct consti- newness of federal child pornography adju- was successfully challenged in 2005 with the tuting a new sex offense, including child dications, the extant sentencing literature is landmark United States v. Booker case. The pornography while on supervised release, lacking in studies examining outcomes of Supreme Court held that the federal guide- the court shall revoke the term of supervised child pornography offenders. Accordingly, lines violated a defendant’s Sixth Amendment release and require the defendant to serve this research provides preliminary insight into right to a jury trial if the trial judge imposed a term of imprisonment. Under this same sentencing outcomes, particularly supervised an enhanced sentence beyond what is example, child pornography offenders serving release outcomes for this category of offend- authorized by a jury verdict (USSC Federal lifetime supervised release, if revoked, would ers. Finally, Congress has set a punitive course Sentencing Guidelines Manual, 2012). The face life imprisonment. In addition to having for child pornography offenders both statu- Supreme Court excised the mandatory nature the threat of life imprisonment if revoked, torily with the supervised release range, and of the guidelines, rendering them advisory. child pornography offenders sentenced to more importantly with policy directives in The Supreme Court reasoned that an advisory lifetime supervised release will never be dis- the guidelines for lifetime supervised release. guideline system, while lacking the manda- 8 charged from supervision. This research should be a resource to inform tory features that Congress enacted, retains In this study I seek to explore whether the Congress of which legal and extralegal factors other features that help to further congressio- imposition of a life term, which represents affect whether lifetime supervised release is nal objectives including promoting certainty the most severe term of supervised release, is imposed for child pornography offenders. and fairness in sentencing, avoiding unwar- guided solely by legal factors or whether extra- In the sections that follow, I discuss the ranted sentencing disparities, and maintaining legal characteristics also influence a judicial current sentencing structure of the federal flexibility to permit individualized sentences officer’s decision to impose a life term of super- courts including the specialized sentencing when warranted (USSC Federal Sentencing vised release for child pornography offenders. structure for child pornography offenses and Guidelines Manual, 2012). Excising the man- What is currently known about the relationship judicial dissonance in sentencing child por- datory nature of the sentencing guidelines between extralegal factors and sentencing out- nography offenders. I also review a theoretical restored discretion to federal judges. comes generally is that minorities, men, younger explanation for sentencing disparities and Currently, the sentencing guidelines func- individuals, and those with less education have provide a brief review of the empirical litera- tion with judicial discretion in a stepwise a higher probability of incarceration and receive ture assessing extralegal factors that influence manner for individual sentences (Hamilton, longer prison sentences in federal court than sentencing outcomes. 2011). First, the sentencing court must calcu- do whites, women, older individuals, and those late the guideline sentencing range. Second, with more education (Albonetti, 1997; Everett & Sentencing Structure of the Federal Courts the court determines if any departures are Wojtkiewicz, 2002). Additionally, such variables applicable. A departure is an adjustment from The Sentencing Reform Act of have been shown to interact with one another the final sentencing guideline range calculated 1984 (SRA) and with legally relevant factors (Doerner & by examining departure policy statements Demuth, 2010). It is unknown how these fac- Prior to 1984, federal judges possessed unfet- in the guidelines (USSC Federal Sentencing tors affect supervised release sentences for child tered sentencing discretion as long as they Guidelines Manual, 2012). Next, in determin- pornography offenders. imposed sentences within the statute. The ing a final sentence, the court reviews certain A study of this type has multiple impli- problem with indeterminate sentences was statutory sentencing factors that Congress cations. If courts deviate from the lifetime that defendants with similar criminal back- established as general tenets for the reason- supervised release sentence recommended by grounds often received different sentences. As ableness of an individual sentence (Rigsby, the guidelines, courts may create sentencing a means of limiting disparities in sentencing, 2010). These factors found in 18 U.S.C 3553(a) disparities generating doubts about fairness Congress passed the SRA, which established include the nature of the offense, individual and uniformity of sentences. Second, this study a statutory framework for federal sentences defendant characteristics (e.g., age, education, adds to the extant sentencing literature by (Kimball, 2011; USSC Federal Sentencing vocational skills, mental/emotional condition, examining supervised release sentences. The Guidelines Manual, 2012). Specifically, the physical condition, family ties and respon- lack of attention to this outcome is a surpris- SRA established the USSC to create, develop, sibilities, and community ties), deterrence, ing omission in federal sentencing research. and monitor guidelines. Judges had to use public safety, the advisory guideline range, the guidelines to calculate the mandatory 7 See 18 U.S.C 3583(e)(3) authorizing the incar- and avoiding disparities between like offend- ceration of a defendant that violates the terms of guideline range, which was developed on ers. The court must consider all the factors supervised release. the seriousness of the offense, the particular in 18 U.S.C. 3553(a), including whether a 8 Supervision includes at least twice-monthly crime, and the defendant’s criminal history variance, a sentence outside the advisory meetings with the probation officer either in (Kimball, 2011). Although the guidelines were guidelines, is warranted. the home, probation office, or community. The mandatory, a judge could depart from the offender must also adhere to the standard condi- guidelines if and only if a particular case pre- The Booker Decision and the Imposition tions of supervised release (e.g., committing no new of Supervised Release crimes) as well as special sex offender conditions sented atypical features. The guidelines were including but not limited to polygraph testing, sex intended to base judicial sentencing entirely Not only do the federal sentencing guidelines offender treatment, sex offender registry, no contact on legally relevant factors such as the serious- provide direction for judges in determining with children under the age of 18, restricted use of a ness of the offense and prior criminal history. the sentence of imprisonment, the guidelines computer/Internet, and search. June 2016 EXTRALEGAL FACTORS 47 provide guidance (though minimally) for of treatment.11 While the study had many some cases, life-long—monitoring and determining the sentence of supervised limitations including generalizability, it armed oversight (Shockley, 2010, p. 356). release. Although the issue at hand in the Congress and those who agree with empirical Before the Protect Act of 2003, some Booker decision was the sentence of imprison- evidence to justify punitive child pornography judges disregarded congressional amend- ment, and although the Supreme Court was statutes and guidelines. ments and granted downward departures for silent specifically on the sentence of super- Sentencing discretion that judges once had child pornography offenses (Kimball, 2011). vised release, the rendering of the guidelines in child pornography sentencing before the Following the Protect Act of 2003, non- as advisory in effect rendered the section of Booker decision was limited by the passing guideline sentences for child pornography the guidelines (see Chapter 5, Part D in USSC of the Protect Act of 2003, which reiterated offenses decreased (Krohel, 2011). However, Sentencing Guidelines Manual, 2012) that Congress’s commitment to protect children the Booker decision empowered judges to addresses the imposition of supervised release and strictly punish those who commit child exercise their discretion and the number 9 advisory as well. pornography offenses (Kimball, 2011; Krohel, of non-guidelines sentences increased again 12 2011). The main justification for the act (Kimball, 2011). Legal researchers refer to this Sentencing Structure for Child was the perception that child pornography Pornography Offenses inconsistency of sentences as judicial disso- sentences were too lenient because of the dis- nance on the issue of child pornography. In the past 15 years, federal child pornogra- proportionately high incidence of downward phy statutes have expanded and the statutory departures (Rigsby, 2010; Kimball, 2011). The Judicial Dissonance on minimum and maximum allowable sentences act amended the then-mandatory guidelines Child Pornography of imprisonment and supervised release terms to reduce the incidence of departures and Through reviews of thousands of individual 10 have escalated (Hamilton, 2011). In justify- increase the offense level in child pornography sentencing decisions and appellate decisions, ing their punitive legislation, Congress has cases. The act also amended the then-man- legal researchers have concluded that some said that intrastate distribution, receipt, and datory guidelines to prohibit judges from judges disagree with Congressional mandates possession of child pornography fuel the considering family ties and responsibilities, and/or guidelines and use their discretion to interstate market and are harmful to the chil- and ties to the community in cases involving a impose non-guidelines sentences.13 On the dren depicted and society as a whole (Krohel, minor victim. Most important, the act length- other side are judges who either agree with 2011). As a means of deterring offenders, ened the supervised release term for child Congress or abide by statute and guideline eliminating the market, and ending the con- pornography offenders from a maximum of policies and impose within guideline sen- tinual abuse of children, Congress has said five years to a minimum of five years to life. tences. Legal researchers offer three possible harsh punishment for all child pornography Congress justified the enhanced supervised explanations for why judges are imposing offenders is warranted (Hamilton, 2011). release term with deterrence and rehabilita- non-guidelines sentences. First, some judges Some researchers argue that the increas- tion arguments: view the current sentencing structure for ing punitive stance by Congress toward [18 U.S.C. 3583(k)] responds to the long- child pornography offenses, particularly pos- child pornography offenders is the result of standing concerns of federal judges and session of child pornography, as too severe. moral panic and a political culture of fear of prosecutors regarding the inadequacy of The guidelines as they currently stand call the sexual exploitation of children (Spearlt, the existing supervision periods for sex for enhanced penalties if a computer/Internet 2011). Others argue that the impetus behind offenders, particularly for the perpetra- was used and if images involved children Congress’s punitive stance is an underlying tors of child sexual abuse crimes, whose under the age of twelve.14 Some judges find presumption that anyone involved in child criminal conduct may reflect deep-seated the enhanced penalties, such as the use of the pornography is really an undetected child aberrant sexual disorders that are not likely Internet, an inherent factor in the crime that molester (Hamilton, 2011). An exploratory to disappear within a few years of release unfairly increases the guidelines and use their psychological study on child pornography from prison. The current length of the discretion to circumvent what they believe to offenders by Bourke and Hernandez (2009) authorized supervision periods is not con- be harsh sentences (Rigsby, 2010). bolstered this presumption. They found that sistent with the need presented by many A second explanation put forth is that what judges knew at the time of sentencing of these offenders for long-term—and in some judges view child pornography as a vic- about the offender’s documented criminal timless crime and/or view child pornography sexual history (as found in the presentence offenders as harmless (Hamilton, 2011). In her 11 report) vastly differed from their self-report At the time of sentencing, 74 percent of the review of judicial justifications of non-guide- criminal sexual history disclosed at the end offenders had no prior documented contact offense. By the end of treatment, 85 percent admitted they lines sentences, Hamilton (2011) highlighted 9 The author contacted the USSC on January 13, had at least one hands-on offense. one judge’s view: “From my experience, most 2014 to clarify the Booker decision on the imposi- 12 The Protect Act of 2003 enacted on April 30, of these men have no prior criminal his- tion of supervised release. Statements in this section 2003 is a law with the stated intent of prevent- tory. They usually have healthy family lives reflect the USSC’s view of the Booker decision on ing abuse. “PROTECT” stands for “Prosecutorial 13 supervised release sentences. Remedies and Other Tools to End the Exploitation It appears the difference in opinion relates to how 10 Production of Child Pornography carries a of Children Today.” The Protect Act strengthened to treat/sentence offenders convicted of possession mandatory minimum of 15 years and a maximum law enforcement’s ability to prevent, investigate, of child pornography as opposed to more serious of 30 years. Distribution and receipt offenses carry prosecute, and punish violent crimes committed offenses like production of child pornography. a mandatory minimum of 5 years and a maximum against children. One of the main provisions of the 14 According to the 2010 USSC Sourcebook, of 20 years. Possession offenses have no mandatory Act is increased penalties for sex offenses against enhancements such as the use of computer/Internet minimum and the maximum is 10 years. children, including life imprisonment for repeat and possession of images of children under twelve offenders (Kimball, 2011). are factors present in over 90 percent of cases. 48 FEDERAL PROBATION Volume 80 Number 1 and productive careers.” (p. 562). Similarly, comply with the guidelines ranges, including Protection of the community typically U.S. District Judge Robin J. Cauthron during the policy statement to impose lifetime super- focuses on the need to incapacitate the her 2009 testimony to the USSC to reduce vised release.16 offender and deter future crime. This also the severity of child pornography guidelines In sum, opposing judicial perspectives on includes assessments of the offender’s future said, “It is too often the case that a defendant the issue of child pornography coupled with behavior such as dangerousness or recidivism appears to be a social misfit looking at dirty Post-Booker awarded discretion suggest the (Steffensmeier & Demuth, 2001; Steffensmeier pictures in the privacy of his own home with- possibility of sentencing disparities. Rigsby et al., 1998). For example, in describing evolv- out any prospect of touching or otherwise (2010) likened child pornography sentences ing perceptions of minority crime, Mauer acting out to any person” (Cardona, 2009). to the equivalent of a lightning strike in which (1999) explains that it was not until the 1970s A third explanation is that child por- congressionally mandated severe sentences and early 1980s that the stereotype of the nography offenders represent a different like lifetime supervised release strike some young black man evolved from petty theft to demographic than judges are used to encoun- offenders and miss others. ominous predator. Such fear has resulted in tering. Indeed, trends in federal data have minority offenders being stereotyped as more distinguished child pornography offenders Sentencing Disparities: A dangerous and criminally responsible (Welch, from the overall average defendants involved Theoretical Explanation 2007). Previous research has linked the in federal prosecutions. Child pornography Studies modeling the relationship between defendant’s race/ethnicity to notions of dan- offenders, who account for 2.3 percent of extralegal factors and sentencing outcomes gerousness and recidivism (Albonetti, 1991; federal prosecutions, are described as 99.3 frequently use the focal concerns perspec- Steen, Engen, & Gainey, 2005). The threat that percent male, 88.7 percent white, 35.1 percent tive to explain why unwarranted sentencing minorities are thought to pose has resulted in have completed some college, 17.5 percent disparities exist (Wolfe, Pyrooz, & Spohn, harsher sentencing outcomes (Welch, 2007). are college graduates and 27.2 percent are 2010; Steffensmeier et al., 1998). The focal Practical constraints and consequences age 50 and older (USSC Sourcebook, 2010).15 concerns perspective of case processing and relate to how sentencing decisions impact the Kimball (2011) argues that judges are using court actors’ decisions provides a framework functioning of the criminal justice system as these characteristics in addition to family for understanding why extralegal factors such well as the individual defendants and their ties and employment to justify non-guideline as race, gender, and age might continue to families and communities. Organizational sentences. Krohel’s (2011) review of sentenc- influence sentencing decisions despite the concerns include efficiency and maintain- ing decisions of child pornography offenders implementation of a formal guideline sys- ing positive working relationships among highlighted one such case example. In United tem (Steffensmeier et al., 1998; Ulmer, 1997; courtroom actors, as well as being sensitive States v. Grossman (2008), the offender pled Spohn & Holleran, 2000). The underlying to criminal justice resources (Steffensmeier et guilty to Possession of Child Pornography. premise of this perspective is that one’s posi- al., 1998). Practical consequences for the indi- The guideline sentencing range was 135 to 168 tion in the social structure has implications vidual offender include concerns about the months and a supervised release range of five for treatment in the justice system. According offender’s ability to do time, health conditions, years to life. The judge imposed a non-guide- to this framework, judges make situational special needs, and disruption of family ties line sentence of 60 months imprisonment and imputations about the offender’s character (Steffensmeier et al., 1998). For example, in 10 years supervised release. In justifying the and expected future behavior and assess these the case study cited earlier (U.S. v. Grossman), sentence, the judge noted he was “troubled” characteristics based on three main consid- the court highlighted its concern of disrupting by the discovery that the thirty-five-year-old erations: blameworthiness, protection of the Grossman’s family ties with a sentence of more married father was facing more than 10 years community, and practical constraints and con- than 10 years imprisonment. The court con- in prison for a single count of Possession of sequences (Steffensmeier, 1980; Steffensmeier sidered Grossman’s family ties in its decision Child Pornography. In justifying the sentence, et al., 1998). to impose a non-guideline sentence. the judge also highlighted that the offender Blameworthiness centers on issues of cul- was educated. pability and just deserts (Steffensmeier et al., Empirical Research on Extralegal Notwithstanding the above, other judges 1998). Judges’ views of blameworthiness are Sentencing Factors in the federal judiciary concur with Congress’s influenced by offense severity, offender bio- Empirical studies have demonstrated that position that all child pornography offenses, graphical factors such as criminal history, and although the most powerful predictors of including possession offenses, are serious and the offender’s role in the offense, such as being a federal sentencing outcomes are legally rel- warrant serious punishment. Like Congress, leader or organizer (Steffensmeier et al., 1998). evant factors, extralegal offender factors such some judicial officers believe child pornog- For example, offenders with longer criminal as race, age, and gender also play a role raphy offenses fuel the interstate market histories generally receive more severe punish- (Albonetti, 1997; Everett & Wojtkiewicz, 2002; and increase the demand and encourage the ments, because such histories suggest greater Mustard, 2001; Doerner & Demuth, 2010). production of more children being sexually culpability (Wooldredge, 2010). The federal sentencing guidelines manual abused. Judges who take this position do not devotes an entire section (see Chapter 5, find the guidelines excessive and expectedly Section H) to a discussion of offender charac- 16 See U.S. v. Kenrick (2008), U.S. v. Daniels teristics in which policy statements specific to 15 By comparison, drug offenders, who account for (2008) and U.S. v. Washington (2007) providing sex, race, national origin, creed, religion, and 28.9 percent of federal prosecutions, are described examples of courts using the policy statement in socioeconomic status are clearly identified as 87.4 percent male, 26 percent white, 14.7 percent the guidelines to justify lifetime supervised release have completed some college, 2.8 percent are col- for all child pornography offenses under 18 U.S.C as irrelevant and prohibited from consid- lege graduates, and 7.4 percent are age 50 and older 3583(k), including less serious offenses like posses- eration. Additional characteristics, such as (USSC Sourcebook, 2010). sion of child pornography (Shockley, 2010). June 2016 EXTRALEGAL FACTORS 49 age, education, vocational skills, mental and linear continuous age effect are inappropri- (2010) analysis of interaction effects in federal emotional conditions, physical condition, ate. Age influences sentence severity in a courts found that race, gender, and age have a employment record, family and communities curvilinear fashion and is best depicted by an larger combined impact than the independent ties are identified “as not ordinarily relevant in inverted U-shape, with offenders over 50 or effects, such that young black and Hispanic determining if a departure is warranted” (see under 21 receiving the least severe sentences males are disproportionately sentenced more Chapter 5, Section H)17 (Steffensmeier et al., 1998). harshly in federal court than any other group. In summary, sentencing research Race Effects Education Effects conducted to date reveals that sentencing out- Sentencing research is inundated with empiri- While the guidelines cite the defendant’s edu- comes are influenced by extralegal factors and cal inquiries on the effect of race on sentencing cation as generally irrelevant in determining a support the conclusion that legally irrelevant outcomes. Conclusions on this issue are mixed. sentence, some studies have nevertheless found factors appear to be a source of unwarranted Early studies find that race has little substantive that those offenders who are poorly educated sentencing disparity. Omitted in the empirical effect on sentencing outcomes (Kleck, 1981; are sanctioned more harshly (Clarke & Koch, literature is if and how extralegal factors also Kramer & Steffensmeier, 1993). More recent 1976; Kruttschnitt, 1980/1981). Mustard influence supervised release sentences. As studies have concluded that blacks, Hispanics, (2001) found offenders who did not graduate noted earlier, the supervised release sentence and Native Americans receive harsher sen- from high school received longer sentences for child pornography offenders is particularly tences than whites (Doerner & Demuth, 2010; [having no high school diploma resulted in significant because of the potential lifelong Everett & Wojtkiewicz, 2002; Mustard, 2001). an additional 1.2 months]. Offenders with supervised release sentence. The disagreements in the literature are largely college degrees received shorter sentences due to differences in methodological sophis- than high school graduates. College graduates Current Focus tication (Zatz, 2000). For example, in their were more likely to receive downward depar- The current study investigates the effects of review of past race and sentencing studies, tures, less likely to receive upward departures, legal factors (mode of disposition, criminal Chiricos and Crawford (1995) found that and more frequently receive large downward history, departures, sex offender enhancement, early studies failed to differentiate between the departures. and sentence length) and extralegal factors decision to incarcerate (in/out) and sentence (age, race, education, and financial status) on length decisions, inadvertently clouding the Socioeconomic Effects the imposition of lifetime supervised release influence of race on sentencing. Few studies examine the impact of socioeco- for child pornography offenders.18 This study nomic status on sentencing outcomes because extends previous federal sentencing research Age Effects there are few good indicators of economic in three important ways. First, I examine the Studies examining the impact of age on sen- status in the data (Zatz, 2000). This is true sentence of supervised release, which has not tencing measure age in one of three ways: for USSC datasets. In one of the few studies been examined in prior research. Second, I use (1) a continuous variable; (2) two subgroups: that examined socioeconomic status, Mustard post-Booker data, which provides a more dis- “young offenders” and “old offenders”; or (2001) found that offenders with incomes less cretionary sentencing context in which there (3) multiple narrowly defined categories. than $5,000 were sentenced most harshly. This is greater opportunity for extralegal factors to Models that code age as a continuous vari- group received sentences 6.2 months longer influence supervised release outcomes. Third, able assume a linear effect (Klein, Petersilia, than offenders who had incomes between I focus on child pornography offenders, as & Turner, 1988; Myers & Talarico, 1987; $25,000 and $35,000. Mustard also found that little sentencing research is available specific Wolfe et al., 2010). Studies that analyze age offenders with annual income of less than to this population. into the two subgroups “young offender” and $25,000 were less likely to have their sentences I hypothesize that extralegal factors will “old offender” do so because prior research reduced, and offenders with annual incomes influence the imposition of a life term of has found that older offenders (age 50 and of more than $35,000 were more likely to supervised release for child pornography older) are sentenced more leniently than have their sentences reduced. Low-income offenders. Specifically, I expect that non- younger offenders (under age 50), and impris- offenders were also more likely to receive whites, younger individuals, those with less oned older offenders receive shorter sentence upward departures. education and low socioeconomic status will lengths (Champion, 1987; Steffensmeier & have a higher probability of receiving lifetime Motivans, 2000). However, those studies that Interaction Effects supervised release than whites, older individu- compartmentalized age into more narrowly Research has shown that joint extralegal effects als, and those with more education and higher defined categories found that a curvilin- are often larger than individual main effects socioeconomic status. Moreover, as research ear relationship emerges, with those adults and they also show extralegal disparities that has shown that extralegal variables interact ages eighteen to twenty-one receiving more may not ordinarily emerge when examining with one another and with legally relevant lenient sentences than adults ages twenty-one only direct effects (Steffensmeier et al., 1998; factors (Doerner & Demuth, 2010), I hypoth- through twenty-nine but similar leniency to Doerner & Demuth, 2010). For example, esize that age and education; age and financial thirty to thirty-nine-year-olds (Steffensmeier, Steffensmeier et al. (1998) examined the main status; and financial status and education may Kramer, & Ulmer, 1995). Steffensmeier et and interaction effects of race, gender, and interact with and affect supervised release al. (1998) argue that models assuming a age on sentencing outcomes in state courts in outcomes. For example, older age and higher Pennsylvania. They found that young black 17 This means that courts are not to consider males are sentenced more harshly than any 18 Legal factors are factors in statutes and policy these characteristics unless they are present to an other defendant group. Doerner and Demuth’s that are spelled out as to be taken into consideration unusual degree. in sentencing. 50 FEDERAL PROBATION Volume 80 Number 1 education may interact with and serve as a child pornography offenses. Prior to 2010, child is a sentence lower than the guideline range, proxy for employability, responsibility, and pornography offenses were lumped together a downward departure/variance is expected to reduced threat, while youthfulness and lower with all other sex offenses. decrease the probability of the imposition of levels of education may interact with and serve Measures lifetime supervised release. An upward depar- as a proxy for higher risk. Likewise, older age ture/variance is a sentence greater than the and higher financial means may serve as a Dependent Variable guideline range, so it is expected to increase proxy for responsibility and reduced threat Supervised Release. As the present study is the probability an offender receives lifetime while youthfulness and less financial means focused on who is receiving the most severe supervised release. may be perceived as higher risk. Finally, I supervised release term (life), this variable was Criminal History. This variable indicates reason that financial means and higher educa- dichotomized so that a value of 0 indicates no whether the defendant has any criminal his- tion may be perceived as low risk and limited imposition of lifetime supervised release and a tory, including behavior that is not eligible financial resources and lower education may value of 1 indicates the imposition of lifetime for the application of criminal history points be perceived as high risk. supervised release. The life term was selected (e.g., arrests). The USSC codes this variable as 0 if the offender has no criminal history Methods over length of supervised release because of the severity of the sentence as well as the and 1 if the offender has criminal history. The Data implication of life imprisonment if revoked. presence of criminal history is expected to Data collected by the USSC on offenders in increase the probability of an imposition of Independent Variables 22 federal criminal courts were used for this lifetime supervised release. study. The strength of using federal sentencing The independent variables used in the analysis Sex Offender Enhancement. This vari- data as opposed to sentencing data collected are legal variables and extralegal variables that able indicates whether an enhancement of by state courts is that state courts operate are related to sentencing outcomes (Albonetti, Repeat and Dangerous Sex Offender (see under various different sentencing guidelines 1997; Mustard, 2001; Spohn, 2006). Chapter Four - Section 4B1.5 of the 2012 U.S. which make generalizability of the findings an Sentencing Guidelines Manual) was applied at Legal Measures issue. The federal system eliminates this issue sentencing. This enhancement is applied if the with its national guidelines system. Plea. Plea bargaining is a common prac- court finds that the offender committed the The USSC dataset for individual offenders tice in the federal criminal justice system. current federal offense after sustaining at least contains measures of (1) legal or court-related Approximately 97 percent of convictions in one sex offense conviction. This variable is case processing information (e.g., criminal his- federal courts (FY 2010) were the result of coded as 0 if the enhancement was not applied tory variables, departures/variances, guideline plea bargaining (USSC Sourcebook, 2010). and 1 if applied. This variable, which defines enhancements/reductions); (2) extralegal char- Research has found that plea bargaining can a pattern of sex related offending, is expected acteristics (e.g., gender, race, educational level, reduce sentence severity (Kautt, 2002). Plea to increase the probability of an imposition of age); and (3) case and sentence outcomes. The bargaining was included as an independent lifetime supervised release. focus of this study is narrowed to 1,770 males variable to determine if similar dynamics Sentence Length. The dataset provides no convicted of and sentenced for child pornogra- existed for supervised release outcomes. This means of disaggregating the various charges of phy offenses under the SRA between October 1, variable was dichotomized so that a value of 1 child pornography (e.g., Production, Receipt, 2009, and September 30, 2010.19 The dataset for represents that the defendant pled guilty either Distribution, Transportation, and Possession) the 2010 fiscal year was purposefully selected through a guilty plea or nolo contendere.20 A that could influence whether lifetime as this was the first year the USSC began isolat- value of 0 indicates that the defendant had a ing child pornography offenses from obscenity trial (bench or jury). and prostitution offenses. This practice was Departure. Courts can sentence an indi- instituted due to increasing research interest in vidual within the specified guideline range or impose an upward departure/variance or 19 Originally the dataset included 1,886 offenders a downward departure/variance.21 Departure 22 The dataset also provides an additional indicator sentenced for child pornography offenses; however, is measured with three dummy variables (e.g., of criminal history with a variable labeled criminal those cases in which a term of supervised release history points. This continuous variable is the within-guideline sentence, upward departure/ was either not imposed or was below the statutory subtotal of criminal history points assigned to an minimum of five years (out of range for the data) variance, and downward departure/variance), offender based on the contributions of one, two, or were excluded from the sample, resulting in 1,854 with within-guideline sentence as the reference three point offenses. Points are awarded for convic- cases. In addition, due to the small number of category. As a downward departure/variance tions only and apply to convictions obtained within women sentenced for child pornography offenses ten or fifteen years of the commission of the federal 20 (14 cases), these cases were also excluded from the Nolo contendere is a plea in which the defendant offense. Some studies use this indicator of criminal sample. The dataset did contain some missing data neither admits nor disputes a charge, serving as an history, but the problem with this measure is that on some of the independent variables (sentence alternative to a pleading of guilty or not guilty. an offender with an outdated criminal history, no length, criminal history, sex offender enhancement, matter how severe the history, would not receive race, education, and fine). Listwise deletion was 21 An upward or downward departure is a sentence any points. My indicator reflects a more accurate used to remove cases with missing data from the that is greater or less than the advisory guideline depiction of an offender’s criminal history because sample, leaving a total of 1,770 cases for analysis. range based upon the application of departure it includes all arrests, countable convictions, as well Chi-square analysis was conducted to compare policy statements in the guidelines. An upward or as convictions that otherwise would not receive missing cases and cases included in the sample. The downward variance refers to a sentence above or any criminal history points due to the age of the results revealed no significant difference between below the advisory guideline range based upon the conviction. Analyses conducted using the alternate deleted cases and those included in the sample. court’s weighing of one or more sentencing factors criminal history measure (criminal history points) of 18 U.S.C 3553(a). revealed no changes to the final results. June 2016 EXTRALEGAL FACTORS 51 supervised release is imposed.23 Therefore, Education. This variable indicates the Findings I used sentence length as a rough proxy highest level of education completed by the Table 1 displays descriptive statistics for all for offense seriousness. Sentence length is defendant. Education is measured with four cases and for the data partitioned by offend- a continuous variable measured in months dummy variables (e.g., less than high school, ers sentenced to lifetime supervised release of imprisonment. Due to the highly positive high school graduate, some college, and col- and no lifetime supervised release. Bivariate skewed nature of this variable (skewness=12.9, lege graduate), with less than high school as analyses (Chi-Square Test for Independence kurtosis=267.25), I used the natural log of the reference category. I chose to maintain the and Independent Samples t-test) are also dis- sentence length. Longer sentences of impris- refined disaggregation of the variable rather played. Full sample descriptive statistics reveal onment would appear indicative of greater than use a dichotomous measure (e.g., less than an overwhelming majority pled guilty (95.5 offense seriousness, and therefore are expected high school=0, high school and above=1) to percent), a little more than half received a to increase the probability of an imposition of see if different levels of education influenced downward departure/variance (55.5 percent), lifetime supervised release. the imposition of lifetime supervised release. more than half of the offenders had a crimi- Mustard (2001) measured education with four nal history (62.4 percent) and the average Extralegal Measures dummy variables and found differences in sentence of imprisonment was 120.4 months. Age. This variable is defined as the age of sentence length based on levels of education. The finding that more than half the total sam- the defendant at the time of sentencing. Accordingly, I expect offenders with lower lev- ple received a downward departure/variance Consistent with research that delineates age els of education will have a greater probability appears consistent with researchers’ argument into the two subgroups of “young offend- of being sentenced to a life term of supervised of dissonance in child pornography sentenc- ers” and “old offenders” (Steffensmeier & release than their counterparts. ing. One of the explanations put forth by legal Motivans, 2000), as well as the fact that the Fine. A variable representing socioeco- researchers for non-guideline sentences is average age of my sample is 42.26, I coded nomic status such as income is not available the different demographic characteristics of defendant age as a dichotomous variable, in the current dataset. The best proxy is the child pornography offenders compared to the where 0 represents offenders ages 19-49 and imposition of a fine at sentencing. The court overall average offender involved in federal 1 represents offenders ages 50 and over. I did imposes a fine on all offenders they determine prosecutions. Indeed, the sample consists of not code age as a continuous variable because are able to pay this penalty. An offender’s mostly white offenders (88.7 percent), with preliminary modeling showed that the effect ability to pay a fine is based upon the offend- 29.7 percent of the sample age 50 and older, a of age was not linear. I also conducted a pre- er’s net worth and net monthly cash flow little more than half (52.4 percent) had some liminary analysis of the age variable using a documented in the presentence report. This college or were college graduates, and only three-category measure (19-21; 22-49; and 50 variable was dichotomized so that a value of about 10 percent of the sample had less than and over) as suggested by Steffensmeier et al. 1 represented that a fine was imposed and a a high school education. Although not shown (1998). There was no significant difference in 0 value indicated that a fine was not imposed. in Table 1, the offenders ranged from 19 to 82 the likelihood of lifetime supervised release I expect offenders that did not incur a fine, years of age with an average age of 42.26 years. between those ages 19 to 21 and 22 to 49, which represents a rough proxy for lower Disaggregating the sample into those who which suggests that my two-category measure socioeconomic status, will have a greater received a life term (38.3 percent) compared of age is appropriate. Based on research that probability of being sentenced to a life term of to those who did not get life (61.7 per- finds older offenders are sentenced more leni- supervised release. cent) also revealed interesting dynamics. Not ently, I expect offenders age 50 and over will surprising, there were stark and significant have a lesser probability of being sentenced to Analytic Technique differences between the groups for departure, a life term of supervised release. To test the effects of legal and extralegal fac- criminal history, sex offender enhancement, Race. This variable indicates the defen- tors on supervised release outcomes of child and sentence length. Compared to those who dant’s self-reported race to the probation pornography cases, the first step is to regress received lifetime supervised release, a higher officer at the time the presentence report was lifetime supervision (1=yes, 0=no) on the percentage of those not sentenced to lifetime prepared. Due to the sample being mostly legally relevant variables (plea, departure, supervised release received downward depar- white (88.6 percent), this variable was dichot- criminal history, sex offender enhancement, tures/variances, while a lower percentage had omized such that a value of 1 represents and sentence length). Logistic regression is criminal history, received the sex offender whites and a 0 value represents nonwhites. used because the dependent variable is dichot- enhancement, and were sentenced within or The nonwhite category includes defendants omous. Next, extralegal variables (race, age, above the guideline range (upward departure/ identified as black (3.2 percent), Hispanic (6.4 education, and fine) are added to the model variance). With regard to sentence length, percent), and other (1.8 percent). Based on to see if they explain lifetime supervision those who received lifetime supervised release prior research that finds nonwhites punished above and beyond the effect of the legally had an average imprisonment sentence almost more harshly, I expect nonwhites will have a relevant variables. Finally, a series of two-way twice that of those who did not get life. greater probability of being sentenced to a life interaction terms (age and education; age and Percentages for all of the extralegal vari- term of supervised release than whites. fine; and fine and education) are added to the ables appeared relatively similar between the model to assess if there are interaction effects. groups. Compared to those who received The conditional effects of race are not consid- 23 lifetime supervised release, a lower percentage All charges of child pornography are lumped ered due to the small percentage of nonwhites together as “Child Pornography.” Regardless of the of those not sentenced to lifetime supervised in the sample. charge, all child pornography offenses carry the release were age 50 and older and had less same statutory supervised range of five years to life. 52 FEDERAL PROBATION Volume 80 Number 1 than a high school education. Only age dif- (Model 1). The full model containing all of release, and correctly classified 68.9 percent fered significantly between the groups. the predictors was statistically significant, of cases. Several of the legal factors made a x2(6,N=1,770) = 205.348, p<.001, indicating statistically significant contribution to the Logistic Regression Models that the model was able to distinguish between model. The strongest predictor of an impo- Logistic regression was used to assess the child pornography offenders who received sition of lifetime supervised was sentence impact of legal and extralegal factors on an imposition of lifetime supervised release length (natural log). A 10 percent increase in the likelihood of an imposition of lifetime and those child pornography offenders who sentence length increases the odds of being supervised release. First, legal factors were did not. The model as a whole explained sentenced to lifetime supervised release by included in the model. The results of the 14.9 percent (Nagelkerke R squared) of the a factor of 1.08, controlling for other factors logistic regression are presented in Table 2 variance in imposition of lifetime supervised
TABLE 1. Descriptive Statistics and Chi-Square for Independence / Independent Samples T-Test
Chi-Square / T-Test Full Sample Life Supervised No Life Supervised (Phi/Cramer’s V)/ Measure N=1,770 Release n=678 Release n=1,092 Eta Squared) Legal Variables 38.3% 61.7% Plea 0.073 (0.009) Pled Guilty/nolo contendere 95.5% 95.7% 95.4% Trial 4.5% 4.3% 4.6% Departure 50.812*** (0.169) Within guideline range sentence 42.1% 51.5% 36.1% Upward depart/variance 2.4% 3.5% 1.6% Downward depart/variance 55.5% 45.0% 62.3% Criminal History 27.135*** (0.125) Yes 62.4% 70.1% 57.3% No 37.6% 29.9% 42.7% Sex Offender Enhancement 35.020*** (0.144) Yes 3.1% 6.2% 1.1% No 96.9% 93.8% 98.9% Sentence Length (months) 8.585*** (0.040) Mean Sentence Length (Months) 120.40 173.14 87.65 Standard Deviation 172.39 252.01 77.31 Sentence Length (log) 12.175*** (0.077) Mean Sentence Length (Months) 4.30 4.75 4.11 Standard Deviation 1.16 1.01 1.17 Extralegal Variables Age 4.139* (0.050) Age (19-49) 70.3% 67.4% 72.1% Age (50 and over) 29.7% 32.6% 27.9% Race 0.891 (0.024) White 88.7% 89.7% 88.0% Nonwhite 11.3% 10.3% 12.0% Education 3.215 (0.043) Less than HS 10.3% 11.7% 9.5% High School 37.3% 38.0% 36.8% Some College 34.7% 33.8% 35.4% College Grad 17.7% 16.5% 18.3% Fine 0.002 (-0.003) Not imposed 86.2% 86.3% 86.1% Imposed 13.8% 13.7% 13.9% * p < 0.05; *** p < 0.001 June 2016 EXTRALEGAL FACTORS 53 in the model.24 Surprisingly, for offenders to offenders younger than age 50, controlling blameworthiness are influenced by offense who pled guilty, the odds of receiving life- for all other factors. severity and offender biographical factors time supervised release increase by a factor The third step of the modeling strategy such as criminal history (Steffensmeier et al., of 1.7 compared to those offenders who had involves testing for the possibility of two-way 1998). Sentence length, which is a rough proxy a trial. As anticipated, receiving a downward interaction effects between age and educa- for offense seriousness, is indicative of offend- departure/variance decreased the odds of tion, age and fine, and fine and education. ers being more culpable, while a downward receiving lifetime supervised release by a fac- These interaction terms were added one at departure/variance is indicative of offenders tor of .78. Upward departure/variance (which a time into the model containing legal and being less culpable. is expected to increase punishment) was not extralegal variables. The results of the mod- While research typically finds that plead- statistically significant. els containing these interaction terms are ing guilty results in more lenient sentences, for Next, extralegal variables were added to the presented in Table 3. For all models, legal child pornography offenders pleading guilty model to see if they explain lifetime supervi- variables including plea, downward depar- resulted in a higher probability of receiving sion above and beyond the effect of the legally ture, and sentence length (log) continued to lifetime supervised release. While this result is relevant variables. The results of the logistic be significant. None of the interaction terms counterintuitive, it is possible this finding may regression are presented in Table 2 (Model 2). were statistically significant. also be explained by the focal concerns notion The model as a whole explained 15.5 percent of blameworthiness. At the federal level, when (Nagelkerke R squared) of the variance of the Discussion the court accepts a guilty plea of a child por- imposition of lifetime supervised release, and This study builds on research that examines nography offense, the assistant U.S. attorney correctly classified 68.6 percent of cases. Of unwarranted disparity in sentencing by look- describes the evidence that would have been the extralegal factors added to the model, only ing at the effects of legal and extralegal factors presented if the case had proceeded to trial. age is significant. For offenders age 50 and on a sentencing outcome that has not been The evidence includes graphic descriptions older, the odds of receiving lifetime supervised studied: lifetime supervised release. Legal fac- of the child pornographic images and/or release increased by a factor of 1.3 compared tors including downward departure/variance videos. In addition, the defendant also has and sentence length exerted significant effects to advise the judge in his or her own words 24 To calculate the unit increase in Y for a 10 per- in their expected direction across all models. what he or she did and describe the images cent change in X, I divided .775 (logged coefficient) These findings are not surprising considering he or she possessed, distributed, received, or by 10, then computed the exponent of that number these factors align with the focal concerns produced. It is plausible that the graphic and to get the effect of a 10 percent change in X on the odds of Y. notion of blameworthiness. Judges’ views of
TABLE 2. Logistic Regression of Lifetime Supervised Release on Legal and Extralegal Variables
Model 1 Model 2 B SE Exp(B) B SE Exp(B) Intercept -4.469 0.511*** -4.582 0.559***
Plea 0.558 0.256* 1.746 0.551 0.259* 1.734 Upward Departure -0.003 0.334 0.997 -0.002 0.336 0.998 Downward Departure -0.248 0.111* 0.780 -0.233 0.111* 0.792 Criminal History 0.159 0.112 1.173 0.169 0.115 1.185 Sex Offender Enhancement 0.614 0.356 1.848 0.614 0.358 1.848 Sentence Length (log) 0.775 0.085*** 2.170 0.790 0.086*** 2.203
White 0.128 0.169 1.136 High School Graduate -0.186 0.180 0.830 Some College -0.231 0.183 0.794 College Graduate -0.101 0.207 0.904 Fine 0.039 0.155 1.040 Sex Offender Age ≥ 50 (SOA≥50) 0.284 0.116** 1.329 Model x2 = 205.348*** Model x2 = 214.788*** R2 = 0.149 R2 = 0.155
N = 1,770 * p≤0.05; ** p≤0.01; ***p≤0.001 Abbreviations: SE = standard error 54 FEDERAL PROBATION Volume 80 Number 1
TABLE 3. heinous nature of the evidence coupled with Interaction Models (Age*Education; Age*Fine; Fine*Education) the defendant admitting guilt and describing his or her offense conduct may magnify the B SE Exp(B) defendant’s culpability in the eyes of the court. Constant -4.523 0.566*** 0.111 In contrast, in a trial, a defendant is not likely Plea 0.545 0.259** 1.724 to admit guilt nor take the stand, resulting in Upward Departure 0.011 0.337 1.011 the possibility of de-magnification of culpabil- Downward Departure -0.239 0.112** 0.788 ity. Irrespective of the possible explanations Criminal History 0.170 0.115 1.185 put forth for this significant finding, as there is no significance found at the bivariate level, Sentence Length (log) 0.789 0.086*** 2.201 it is possible that this finding is just noise due Sex Offender Enhancement 0.620 0.358 1.859 to the small number of cases that had trials. White 0.136 0.170 1.146 Of all the extralegal factors considered in High School Graduate -0.272 0.204 0.762 this study, age exerted a significant effect in Some College -0.316 0.209 0.729 predicting those child pornography offenders sentenced to a life term of supervised release. College Graduate -0.036 0.248 0.965
Model 1 (Age*Education) This result is contradictory to findings in the Fine 0.046 0.155 1.047 most recent extant sentencing literature on Sex Offender Age ≥ 50 (SOA≥50) 0.029 0.389 1.029 the effects of age and sentencing, which finds SOA≥50 *HS Graduate 0.377 0.435 1.458 that younger offenders are more likely than SOA≥50 *Some College 0.353 0.433 1.424 older ones to be punished more harshly. One might suggest that the effect of age may be SOA≥50 *College -0.066 0.462 0.994 influenced by the criminal history of the older Constant -4.579 0.559*** 0.010 offender being greater than that of a younger Plea 0.553 0.259** 1.739 offender (the older offender having had more Upward Departure -0.013 0.337 0.987 time to offend than a younger offender). Downward Departure -0.235 0.111** 0.791 While this seems plausible, I suspect that Criminal History 0.165 0.115 1.180 criminal history has little to no bearing on the effect of age.25 Instead, I surmise that Sentence Length (log) 0.792 0.086*** 2.208 it is based on the focal concerns notion of Sex Offender Enhancement 0.601 0.358 1.824 protection of the community. Protection of White 0.127 0.169 1.135 the community draws on attributions similar High School Graduate -0.181 0.180 0.834 to blameworthiness but is distinct in that it
Model 2 (Age*Fine) Some College -0.229 0.183 0.795 focuses on the need to incapacitate or control College Graduate -0.102 0.207 0.903 the offender or to deter would-be offenders (Steffensmeier et al., 1998). This also includes Fine -0.076 0.200 0.927 assessments about dangerousness or recidi- SOA≥50 0.240 0.125 1.271 vism. Predictions about dangerousness and SOA≥50 *Fine 0.289 0.314 1.336 risk of recidivism are based on attributions Constant -4.630 0.562*** 0.010 predicated on the nature of the offense, case Plea 0.547 0.259** 1.729 information, criminal history, and demo- graphic characteristics of the offender such Upward Departure -0.004 0.337 0.996 as employment, education, age, or family his- Downward Departure -0.236 0.112** 0.790 tory (Steffensmeier et al., 1998). For example, Criminal History 0.169 0.115 1.184 Kimball (2011) reviewed a sentencing opinion Sentence Length (log) 0.792 0.086*** 2.208 where the judge cited the defendant’s youthful Sex Offender Enhancement 0.628 0.358 1.873 age and immaturity as reason for a downward White 0.123 0.170 1.131 variance (see U.S. v. Polito). This justification for a downward variance based on youthful- High School Graduate -0.125 0.191 0.888 ness suggests that younger offenders may be Some College -0.180 0.194 0.835 perceived as “getting caught up” in child por- College Graduate -0.057 0.224 0.945 nography based on their immaturity or that Model 3 (Fine *Education) Fine 0.495 0.514 1.640 their entanglement may have more innocent SOA≥50 0.282 0.116** 1.326 Fine * High School -0.579 0.586 0.561 Fine*Some College -0.481 0.577 0.618 25 The effect of age remained significant using the alternate measure of criminal history (criminal his- Fine*College -0.431 0.594 0.650 tory points) provided in the dataset. n = 1,770; Abbreviations: SE=standard error; * p≤0.05; ** p≤0.01; ***p≤0.001 June 2016 EXTRALEGAL FACTORS 55 origins.26 The flip side may be the perception one of the main provisions of the Protect Act extant literature finds for the overall average that older and mature offenders “know better.” of 2003 was to amend the then-mandatory offender involved in federal prosecutions. That is, someone age 60 may be less likely to guidelines to prohibit judges from considering Although this issue was not my primary focus, be perceived as accidentally “getting caught family and community ties in cases involving my findings compared to the extant literature up” and their entanglement in child pornog- a minor victim (Krohel, 2011). Now that the suggest that extralegal effects on sentencing raphy may have less innocent origins. guidelines are advisory in nature, these sta- outcomes for child pornography offenders The notion that older age may be viewed tuses have become relevant for some judges may be different than for other categories of as a greater threat may also be due to the (Hamilton, 2011; Krohel, 2011). Hamilton offenders. For clarity, a direct comparison age discrepancy between older offenders and (2011) and Krohel’s (2011) reviews of sen- between child pornography offenders and the depicted minors. According to the USSC tencing decisions found that in cases where average federal offenders (e.g., drug offenders) Sourcebook 2010, virtually all child pornogra- defendants received sentencing reductions, it cannot be made because previous sentencing phy offenders (96.3 percent) possessed images was common for judges to express that they studies examine a different outcome variable of minors who were prepubescent or under were impressed by the defendant’s family sup- (e.g., sentence length and/or the decision to the age of twelve. The idea of an offender port and/or career. One judge was quoted as incarcerate). Deeper examination of this issue over age 50 receiving sexual gratification from saying “aside from the offense, the defendant could be the subject of future research. images depicting the sexual assault of children has led a law abiding life, and with his wife, One of the major limitations of this under the age of twelve, including infants who has stood by his side throughout, he has research was being unable to disaggregate and toddlers, may be unsettling for judges. raised a good family and been a mainstay in the various charges of child pornography. Another possible rationale for this finding his community.” (Hamilton, 2011, p. 562). We know from the literature review that is that the average age of child pornography Other judges give weight to the defendant’s offense seriousness is a significant factor for offenders sentenced in fiscal year 2010 was age career as a reason for non-guideline sentences. some judges in sentencing child pornography 42.26. If judges on average are seeing this age Examples of careers receiving non-guideline offenders within or outside of the guidelines offender in the courtroom, then it may play in sentences include military personnel, physi- range. In this study, using sentence length as their focal concerns that older child pornogra- cians, and teachers (Hamilton, 2011). At this a rough proxy for offense seriousness has pro- phy offenders may be at most risk to re-offend. time, it is not possible to empirically test the vided some evidence, although crudely, that Contrary to my hypothesis, extralegal influence of these statuses on lifetime super- offense seriousness is a major factor driving predictors including race, education, and vised release decisions, because the USSC judicial decisions to impose lifetime super- imposition of a fine exerted no significant does not collect data on these variables. vised release as it should. Analytic models effect. These factors have been shown to Another extralegal status that may influ- run with all legally relevant variables except influence sentencing decisions for the overall ence sentencing decisions is mental health. sentence length (log) account for 7.6 percent average offender in federal court, yet we know Research has shown that mental health con- of the variance in lifetime supervised release. from the literature and the data presented in ditions like schizophrenia have been linked When sentence length (log) is included, the this study that child pornography offenders to stereotypes of dangerousness (Markowitz, models account for 14.9 percent of the vari- are not the overall average federal offender, at 2011). Through the presentence report, the ance in lifetime supervised release and 15.5 least not in terms of demographic characteris- sentencing court is made aware of any men- percent when extralegal variables are added. tics. With this in mind, it may be possible that tal health and/or emotional conditions the The legal literature suggests that judges race, education, and socioeconomic status do offender may suffer as well as any medications may be more likely to use their discretion and not come into play in sentencing decisions prescribed. Accordingly, a judge may consider impose non-guideline sentences (e.g., down- of child pornography offenders as they do the mental health status of the offender as a ward departure/variance) for offenses they with the overall average offender involved focal concern in determining which individu- believe to be less serious (e.g., possession of in federal prosecutions. Instead, it may be als require enhanced supervision in order to child pornography versus production of child possible that other extralegal statuses such protect the public. In other words, it seems pornography). Based on this, some judges as family ties and employment inform the plausible that an offender with a severe men- might be more likely to consider extralegal sentencing decisions of child pornography tal illness may be perceived as dangerous and factors as a basis for a downward departure/ offenders more so than race, education, and thus more likely to receive lifetime supervised variance. The case study cited earlier (U.S. v socioeconomic status. release than an offender with no mental health Grossman) is one such example. In that case, Under the previous mandatory federal condition. As with family ties and employ- the sentencing court was troubled by the guidelines, family support and employment ment, it is not possible to empirically test amount of prison time Grossman was fac- history were generally irrelevant in determin- the influence of mental health on supervised ing for a single count of Possession of Child ing departures from the guidelines. In fact, release outcomes, because the USSC does not Pornography and imposed downward vari- collect data on this variable. ance based on Grossman’s age, education, and 26 A news article highlighted 19-year-old Neil Contrary to my hypothesis, no interaction family ties. Geckle who was charged with child pornography effects were found in this study. Perhaps this The notion of offense seriousness guid- offenses after he downloaded photos of high school finding, like overall findings, suggests a differ- ing judicial discretion may also be explained girls he “friended” from Facebook then took pictures ent dynamic occurs with child pornography by the focal concerns notion of practical of his penis next to the photos. He then uploaded sentencing. That is, legal and extralegal fac- constraints and consequences. I can only the defiled photos to the victims’ Facebook pages. When confronted with the charges, the 19-year-old tors may not influence sentencing decisions speculate that judges may be constrained or pleaded ignorance, telling police he “didn’t think it for child pornography offenders the way the liberated by the seriousness of the offense in was a big deal” (Moraff, 2012). 56 FEDERAL PROBATION Volume 80 Number 1 considering practical and social costs of life- of child pornography cases. Kautt (2002) found References time supervised release. For example, judges that inter-district variation influences sentenc- Albonetti, C. A. (1991). An integration of may think about financial costs to the gov- ing decisions in federal courts. theories to explain judicial discretion. Social ernment in supervising an offender for life, Conclusion Problems, 38, 247-266. especially if the judge does not believe the Albonetti, C. A. (1997). Sentencing under the seriousness of the offense warrants life super- Prior empirical federal sentencing studies have federal sentencing guidelines, effects of vision. The current dataset does not allow for repeatedly found that in addition to legally offender characteristics, guilty pleas, and examination of this issue, but future studies relevant factors, extralegal factors influence departures on sentencing outcomes for using a mixed methodology approach could federal sentencing outcomes. The purpose drug offenses, 1991-1992. Law and Society interview federal judges to see if offense seri- of this study is to examine whether similar Review, 31, 789-822. ousness constrains or liberates consideration dynamics exist for lifetime supervised release Bourke, M., & Hernandez, A. (2009). The ‘But- ner study’ redux: a report of the incidence of extralegal factors as well as practical and sentences of child pornography offenders. of hands-on child victimization by child social costs of lifetime supervision. What makes this sentencing study particularly pornography offenders. Journal of Family There are additional limitations that should interesting is the political context of child Violence, 24, 183-191. be considered. As previously discussed, extra- pornography sentencing in that Congress has Cardona, F. (2009, November 29). Federal judg- legal predictors including race, education, and explicitly advised federal judges that all child es argue for reduced sentences for child- imposition of a fine exerted no significant pornography offenders should be punished porn convicts. The Denver Post. Retrieved effect. With regard to race, perhaps there harshly, specifically with the recommendation from http://www.denverpost.com. were not enough non-whites in my sample to for lifetime supervised release. Champion, D. J. (1987). Elderly felons and locate a statistically significant relationship. The results of this study support legal sentence severity: Interregional variations Although education was significant in some research that finds a disconnect between in leniency and sentencing trends. Criminal studies (Mustard, 2001), it was not significant congressional will and the will of the sentenc- Justice Review, 12, 7-14. Chiricos, T. G., & Crawford, C. (1995). Race in this study. Almost 90 percent of the sample ing court. In this study, only 38.3 percent of and imprisonment: a contextual assessment had at least a high school education. If the child pornography offenders received lifetime of the evidence. Pp. 281-309 in Darnell F. sample of cases in the less-than-high-school supervised release. Legal researchers have sug- Hawkins (Ed.), Ethnicity, race and crime: category were larger, there might have been a gested that the differences in sentences among perspectives across time and place. Albany, significant effect. Future research may benefit child pornography offenders stems from judi- NY: State University New York Press. from merging multi-year data to boost cases cial dissonance on this issue. A few reasons Clarke, S. H., & Koch, G.G. (1976). The to better disaggregate the effects of race and were suggested for the dissonance, including influence of income and other factors on education. With regard to the fine variable, extralegal demographic characteristics. My whether criminal defendants go to prison. it may be possible that there was no effect results showed that only age had an effect Law and Society Review, 11, 57-92. because this variable is not a true indicator of above and beyond the effects of legally rel- Doerner, J. K., & Demuth, S. (2010). The inde- socioeconomic status. In other words, the fine evant variables. But the variance explained by pendent and joint effects of race/ethnicity, gender, and age on sentencing outcomes in variable was unable to exert any predictive the models is so low that it suggests the unpre- U.S. Federal Courts. Justice Quarterly, 27, power because it is not a direct measure of dictability of sentences mentioned by Rigsby 1-27. socioeconomic status. (2010). The discussion section keyed in on Everett, R. S., & Wojtkiewicz, R. A. (2002). Dif- Another limitation of this study is that other possibilities driving judicial decisions, ference, disparity, and race/ethnic bias in I only examined the most severe term of including family ties, employment records, federal sentencing. Journal of Quantitative supervised release—life. Future research should and mental health. Criminology, 18, 189-211. also look at supervised release as a continu- To this end, it is not clear what is truly Federal Criminal Code and Rules. (2010). ous variable; however, researchers will have driving supervised release sentences of child Thomsom Reuters. to determine how to quantify the life term. pornography offenders. It could be a com- Hamilton, M. (2011). The efficacy of severe An additional avenue of future research is to bination of legal and extralegal factors and a child pornography sentencing: Empirical examine the impact of sex crime scandals that simple policy disagreement with Congress. validity or political rhetoric. Stanford Law and Policy Review, 22, 545-585. recently occurred (e.g., Jacee Dugard case, If Congress truly wants lifetime supervised Kautt, P. M. (2002). Location, location, location: etc.) on supervised release outcomes. A poten- release sentences for all child pornography inter-district and inter-circuit variation tial research strategy would be to conduct a offenders, they may legislate an amendment in sentencing outcomes for federal drug time series analysis of the probability of child to 18 U.S.C. 3588(k) eliminating the statutory trafficking offenses. Justice Quarterly, 19, pornography offenders sentenced to lifetime range of five years to life to include life as the 633-671. supervised release before and after the scandals mandatory supervised release sentence. This Kimball, K. (2011). Losing our soul: Judicial received intense public scrutiny. In this sense, in effect could eliminate judicial discretion in discretion in sentencing child pornography it would be interesting to see how these cause supervised release sentences as well as elimi- offenders.Florida Law Review, 63, 1515- célèbre cases influence lifetime supervised nate unwarranted sentencing disparities. 1548. release imposed by the court. In other words, Kleck, G. (1981). Racial discrimination in crimi- do judges respond to moral panics or their nal sentencing: A critical evaluation of the evidence with additional evidence on the perceptions of the public’s concern? Another death penalty. American Sociological Review, avenue would be to examine inter-district 46, 783-805. variation and how this would operate in terms June 2016 EXTRALEGAL FACTORS 57
Klein, S., Petersilia, J., & Turner, S. (1988). Shockley, B. (2010). Protecting due process from Steffensmeier, D., Ulmer, J. T., & Kramer, J.H. Racial equity in sentencing. Santa Monica, the Protect Act: The problems with increas- (1998). The interaction of race, gender and CA: Rand. ing periods of supervised release for sexual age in criminal sentencing: The punish- Kramer, J. H., & Steffensmeier, D. (1993). Race offenders. 67 Washington and Lee Law ment costs of being young, black, and male. and imprisonment decisions. The Sociologi- Review, 353-399. Criminology, 36, 763-798. cal Quarterly, 34, 357-376. Spearlt. (2011). Child pornography sentencing Ulmer, J. T. (1997). Social worlds of sentenc- Krohel, H. (2011). Dangerous discretion: and demographic data: Reforming through ing: Court communities under sentencing Protecting children by amending the fed- research. Federal Sentencing Reporter, 24, guidelines. Albany, NY: State University of eral child pornography statutes to enforce 102-108. New York Press. sentencing enhancements and prevent non- Spohn, C. (2006). Sentencing decisions in three U.S. Sentencing Commission (2012). Guidelines custodial sentences. San Diego Law Review, U.S. district courts: Testing the assumptions manual: Chapters one, two, four and five. 48, 623-676. of uniformity in the federal sentencing pro- Washington, DC: Author. Kruttschnitt, C. (1980/1981). Social status and cess. Justice Research and Policy, 7, 2-27. U.S. Sentencing Commission (2010). Sourcebook sentences of female offenders. Law and Soci- Spohn, C., & Holleran D. (2000). The imprison- of federal sentencing statistics. Washington, ety Review, 15, 247-266. ment penalty paid by young, unemployed, DC: Author. Mauer, M. (1999). Race to incarcerate. New black and Hispanic male offenders. Crimi- Welch, K. (2007). Black criminal stereotypes York: New Press. nology, 38, 281-306. and racial profiling. Journal of Contempo- Markowitz, F. E. (2011). Mental illness, crime, Steen, S., Engen, R., & Gainey, R. (2005). Images rary Criminal Justice, 23, 276-288. violence: Risk, context, and social control. of danger and culpability: Racial stereotyp- Wolfe, S. E., Pyrooz, D., & Spohn, C. (2010). Aggression and Violent Behavior, 16, 36-44. ing, case processing, and criminal sentenc- Unraveling the effects of offender citizen- Moraff, C. (2012, May 10). Overzealous child ing. Criminology, 43, 435-468. ship status on federal sentencing outcomes. porn law could ruin Main Line teen’s Steffensmeier, D. (1980). Assessing the impact Social Science Research, 40, 349-362. life. Phillymag.com Retrieved March 23, of the women’s movement on sex-based Wooldredge, J. (2010). Judges’ unequal contri- 2014, from http://www.phillymag.com/ differences in handling of adult criminal butions to extralegal disparities in impris- news/2012/05/10/excessive-child-porn- defendants. Crime and Delinquency, 26, onment. Criminology, 48, 539-576. laws/ 344-357. Zatz, M. (2000). The convergence of race, eth- Mustard, D. B. (2001). Racial, ethnic, and gen- Steffensmeier, D., & Demuth, D. (2001). Eth- nicity, gender, and class on court decision der disparities in sentencing: Evidence from nicity and judges’ sentencing decisions: making: Looking toward the 21st century. In the U.S. Federal Courts. Journal of Law and Hispanic-black-white comparisons. Crimi- National Institute of Justice (Ed.), Criminal Economics, 44, 1-30. nology, 39, 145-178. Justice 2000 (Vol. 3, pp. 503-552). Washing- Myers, M. A., & Talarico, S. M. (1987). The Steffensmeier, D., Kramer, J. H., and Ulmer, J. T. ton, DC: National Institute of Justice. social contexts of criminal sentencing. New (1995). Age differences in sentencing. Justice York: Springer-Verlag. Quarterly, 12, 584-601. Rigsby, L. (2010). A call for judicial scrutiny: Steffensmeier, D., & Motivans, M. (2000). Older How increased judicial discretion has led men and older women in the arm of crimi- to disparity and unpredictability in federal nal law: Offending patterns and sentenc- sentencings for child pornography. Seattle ing outcomes. Journal of Gerontology, 55, University Law Review, 33, 1319-1347. 141-151. 58 FEDERAL PROBATION Volume 80 Number 1 ArticleTrends Titlein the Criminality and Victimization of the Elderly
Peter C. Kratcoski Emeritus/Adjunct Professor, Kent State University Maximilian Edelbacher Austrian Federal Police, Retired, Academic Senior Advisory Council to the United Nations (ACUNS)
THOSE DEVOTED TO THE study of crime category from another. Age is a continuous of crime statistics. The changes in the victim- and criminal behavior have learned through variable having a definite starting and ending ization of the elderly were also analyzed, using their research that several variables are fairly time period, while the categorizations of age the same methodology. Since statistics on the reliable in predicting the amount of crime and are discrete variables. The development of age crimes or victimization of the elderly were types of crimes that will be committed by spe- categories is heavily influenced by the specific not available for all European countries, an cific categories of offenders. These variables socio-economic characteristics of a society exhaustive comparable analysis between the are age, gender, and socio-economic status. during a specific time period. For example, United States and European countries could The large proportion of violent crimes will a young person ten or twelve years old may not be completed. The proportion of the pop- be committed by younger (18-45) age males be expected to take on the role of an adult in ulation in the older age groups is increasing in in the lower socio-economic categories. The some societies and work 10 hours or more most of the countries throughout the world, proportion of violent crimes will decline as each day in a factory. In other societies, a particularly in the economically developed the ages of the criminal offenders increase. person age 15 or 16 may still be considered a countries, but there is no agreement among As the ages of the offenders approach what child and prohibited by law from engaging in researchers on the specific age that should is referred to as elderly, the proportion of certain types of work. In regard to the elderly, be used to categorize the “elderly.” Fattah and violent crimes committed by those in this innovations in health care, diet, communi- Sacco (1989) note that some of the research category constitutes a very small part of the cations, and types of work performed have on older offenders and victims of crime cat- entire violent crime total. This finding holds resulted in a longer life span and generally a egorizes the older person as age 50 and above; true regardless of the gender and socio-eco- more active lifestyle. While the behavior of other researchers use 60 years and above as nomic characteristics of the elderly offenders. persons in specific age groups may differ from the cut-off point, and still other researchers However, when the analysis focuses on the that of other age groups, the behavior of those have used 65 and above as the age to define victims of crime, the elderly who are victim- in the same age group may also differ during the elderly. In some of the research, the older ized are over-represented in several types of different periods of time or stages in the eco- criminal offender and older victim are cat- criminal victimizations. These include theft, nomic development of a society. egorized as early old age at 64 to 74, advanced financial fraud, and physical abuse. old age as 75 and older, and old-old age as Methodology 85 and above. The FBI (Crime in the United The Elderly This paper focuses on changes in the amount States, 2014), in recording arrests made in the The concept of “age” is generally understood and types of crime committed by the elderly United States during a given year, provides a and can be easily measured. It is a continu- and the various methods used to victimize breakdown of arrests by age, but does not use ous variable, but in order to develop a better the elderly. The criminal activity and the vic- labels to categorize the age groups. The FBI understanding of how age is related to one’s timization of the elderly were analyzed by use report does not refer to young age, middle age, development, emotions, and behavior during of statistics and reports from sources in the or elderly. The ages of the arrests made dur- different periods of life, age has been concep- United States and Europe and comparisons ing a given year are categorized into five-year tualized to include different categories such as with prior research. groups, such as 50-54, 55-60, 61-64, 65-70, infant, young child, adolescence, middle age, The criminal behavior of those in the age and 71 and above. In the research presented and old age or elderly. These categories are category referred to as the elderly has changed in this paper, the elderly are defined as being often arbitrarily defined, and there is no agree- in terms of the proportion of the total amount 65 years of age or older. However, the ages 60 ment on the specific age that separates one of crime and specific types of crime. This was and above are used in portions of the analysis. demonstrated through a longitudinal analysis June 2016 CRIMINALITY AND VICTIMIZATION OF THE ELDERLY 59
Theoretical Perspective In Austria (CIA World Factbook and Comparison of Crimes Statistik Austria, 2015: 1), the estimated per- As a result of improvements in healthcare, Committed by the Elderly in the cent of the total population 65 years and older communications, and education, changes in U.S.A. (2000-2013) for the year 2014 was 19.2 percent, with the lifestyles, including the types of employment, Based on FBI statistics (Crime in the United female elderly population exceeding the male and changes in social relationships, the life States, 2000: Table 38:226-227) for the most elderly population by 15 percent. In a report span for the populations of most countries of serious crimes in 2000, the proportion of on the aging of Europe (Carone & Costello, the world has increased. People are living lon- arrests for Serious Crimes (Index Crimes) for 2006), the increase in the proportion of the ger, working longer, and in general have more those in the age category of 65 and older was population of the European nations that is formal and informal contact with many peo- less than 1 percent. For the violent crimes in older is attributed to a decrease in fertility, a ple outside their primary social relationships. the Crime Index (murder, non-negligent man- decrease in the mortality rate, and a higher life These changes result in more opportunity for slaughter, rape, robbery, aggravated assault) expectancy. In a report by the Economic Policy members of the older population to commit for the category age 65 and over, the propor- Committee and the European Commission, crimes, and a higher probability that the older tion of arrests was also less than 1 percent of it was predicted that the total population population will be victimized. For example, the total number of arrests made for violent of the European Union will decrease by 16 in the past, a large proportion of the criminal crimes in 2000. The percent of arrests for percent between 2010 and 2050, while the victimization of the elderly was by family Index property crimes (arson, larceny-theft) elderly population will increase by 77 percent members, relatives, and close acquaintances. for the 65 and over age category was 5 percent. (Eurostat: 2012). While this may still be the case, the propor- Conclusions based on the number of tion is not as large as in the past, because the Crimes Committed by arrests made for various crimes can be erro- amount of non-primary-group contacts by the the Elderly neous, since a large proportion of reported elderly has increased through communica- crimes are never solved, and it is difficult to Several researchers have used the statistics from tions, the Internet, and other factors. In terms determine the characteristics of the persons the FBI’s Uniform Crime Report to determine of criminal activity, these same changes are who committed these crimes. In addition, the number and types of offenses committed affording the elderly more opportunities to victims of crime often do not report their by the elderly in the United States (Moberg, commit certain types of crime than in the past, victimization for a variety of reasons, includ- 1953; Keller & Vedder, 1968; Schichor, 1984; including fraud, theft, tax evasion, and even ing the fact that the offender is a relative, fear Wilbanks, 1984). There were some differences violent crimes. of retaliation, or belief that reporting will not in the findings of the researchers in regard to In regard to victimization, the lives of stop the victimization. the amount of crime committed by the elderly a larger proportion of the elderly are now One might ask what factors can explain as well as the predominate types of crime under the direction or care of some person why the arrests for all types of crimes were committed by the elderly. These differences or agency other than members of their fam- very small for those persons age 65 and above. can partially be attributed to the fact that dif- ily or relatives. The elderly who voluntarily Several factors must be considered in analyz- ferent age brackets were used to identify the or by circumstances remain in their homes ing crime, including motivation, opportunity, elderly. Such offenses as drunkenness, larceny- may not have the interaction with or emo- and the ability to complete the act. For those in theft, fraud, disorderly conduct, gambling, tional support of close family members. For the elderly age group, the motivation to com- disturbing the peace, and some types of sexual those physically or mentally disabled, the mit a crime may be there, but the opportunity offenses were prevalent for the older offenders need to rely on “outsiders” is more apparent. is not available or the person may not have in the majority of the studies. The amount of When family members are involved in elder- the ability to complete the act. For example, violent crime, including murder, was higher care, these relatives may abuse or steal from an elderly person may think twice about try- than expected for the older offenders. In the the elderly. ing to commit a crime such as robbery, when United States, the researchers projected that there is a good chance that their own personal the actual number of crimes committed by Trends in Size of the Older safety may be threatened. A person might the elderly (65 and older) and the proportion Population (U.S.A. and Europe) have a desire to commit fraud, embezzlement, of the total amount of crime committed by The older population of the United States or forgery, but for a retired person not actively the elderly will continue to increase during (defined as 65 years of age or older) numbered involved in a company or organization the the first part of the 21st Century. This does 39.6 million in 2009. This represented 12.9 per- opportunity does not exist. The proportion of not necessarily mean that there will be an cent of the entire population. Aging Statistics arrests of the elderly for some property crimes evenly distributed increase in crimes com- (Administration on Aging, Administration for such as shoplifting or minor theft, although 5 mitted by the elderly. Some types of crime Community Living: 1) estimate that in 2030 percent of the total, is somewhat larger than will show a decrease in the proportion of the there will be 72.1 million older persons in the the proportion for other crimes, and this can total committed by the elderly, even though U.S., about 19 percent of the population. The be explained by the elderly having the oppor- the proportion of the total population that is same source reports that, since 2000, the pro- tunity and ability to complete the act. Strain older will increase. This can be explained by portion of the U.S. population that is defined theory, as it is applied to older persons on fixed the fact that for some crimes the elderly do not as older has grown at a faster pace than lower incomes who are faced with constantly have the motivation, opportunity, or ability to other age groups in the U.S., and this drastic rising cost of living expenses, can provide an commit the act. increase in the older population is expected to explanation for some forms of crimes com- continue to the year 2030 and perhaps longer. mitted by the elderly, such as theft, larceny, shoplifting, and fraud. Salzmann (1963, p. 54) 60 FEDERAL PROBATION Volume 80 Number 1 suggests that the high incidence of sex crimes rates for such crimes as theft and burglary may because they had no other way to improve among older men may be explained by the be less than 10 percent. Thus, the characteris- their living conditions. needs of some older men to compensate for tics of the offenders for the unsolved crimes Edelbacher observed that those who have feelings of being unattractive, rejection, and are not known. Other crimes such as robbery had a life-long criminal career will generally impotence. In a study of homicides among the and murder have a much higher clearance change their mode of operations and the kind elderly (Kratcoski & Walker, 1988, pp. 74-75), rate (60-80 percent), but the specific age of the of criminal offenses they engage in once they it was found that the “routine activities” persons arrested is not reported. For example, become older. For example, the elderly will theory provides a framework for understand- a police statistical report for the Federal not engage in robbery and burglary, but will ing elderly homicides. The research revealed Republic of Germany (Bundeskriminalamt, still be involved in drug trafficking and all that the majority of the homicides committed Police Statistics 2014, Federal Republic of types of fraud, including financial and credit- by elderly persons occurred in the home and Germany) categorizes suspects by age as chil- card fraud, cybercrime, and identity theft involved family relationships, with the spouses dren (less than 14), juveniles (14-18), young (Edelbacher, 2015 Personal Observation). of the offenders most often being the victims, adults (18-21) and adults (22-and older). and with the incident leading up to the act The report indicates that almost 28 percent Elderly Victims of Crime being an argument over a family-related mat- of the suspects for 2014 were in the adult (United States) ter, such as money, drinking, or the quality of category, a 3.2 percent increase over 2013. In the National Elder Abuse Incident the meals served. However, the report does not reveal what Study—1996, completed by the United States proportion of these adult suspects were in Administration on Aging, the federal agency Analysis of Trends in the “elderly” age category. Several of the Elderly Crime responsible for policy matter in elder abuse, it crimes that showed significant increases in was concluded that, “The types of elder abuse When the 2013 FBI arrest statistics are com- 2014, such as fraudulent obtaining of services from the most common to the least common pared with the 2000 arrest statistics, with age (15 percent increase), fraud using unlawfully were neglect, emotional/psychological abuse, being the variable used in the comparisons obtained credit cards (10.2 percent increase), financial/material exploitation, and physical (Crime in the United States, 2013: Table shoplifting (2.6 percent), account opening abuse” (Fryling, 2009: 84). In addition, it was 38:46), we find that the proportion of all Index and transfer fraud (33.9 percent), and drug concluded that probably only 20 percent of Crimes arrests for the 60-64 age category and offenses (9.2 percent), are all crimes that the actual number of elder abuse cases are the 65 and over age category increased from the elderly might be motivated to commit or reported and substantiated. less than 1 percent to 2.2 percent. While the would likely have the opportunity to commit. Mason and Morgan (Crimes Against the percentage of arrests for Index Crimes for the Many of the countries of Europe have Elderly, 2003-2013) developed estimates of elderly is still small, it is important to note that experienced increases in street crimes such the property crime and nonfatal violent crime the proportion increased significantly over as robbery and gang fighting, in which some victimization of the elderly (age 65 and older) the more than 10 years between the two time of the participants are “elderly.” Some of the for the years 2003 to 2013. In their report, it periods. Arrests for specific violent crimes violence may be the result of fights between was found that: (murder and non-negligent manslaughter) for elderly couples and friends originating from VV Elderly homicides rates declined 44 per- those in the age category of 65 and older were arguments over small matters that become cent, from 3.7 homicides per 100,000 significantly higher in 2013, as were arrests for physical and others may be the result of clashes persons in 1993 to 2.1 per 100,000 in 2011; property crimes such as larceny-theft, com- between ethnic and racial groups. These vio- VV More than half (56 percent) of the elderly pared with the arrests for these crimes in 2000. lent encounters, often between the native violent crime victims reported the victim- When a comparison of property crime arrests population and a recent immigrant group, will ization to the police, compared to more for the two time periods (2000-2013) was generally include participants from several than 1/3 (38 percent) for persons age 12 made, the same trend of an increase in arrests age groups, the young as well as the old. The to 24; and for those in the older age categories was mani- increase in the life span and the accompanying VV Among the elderly violent crime victims, fested. The proportion of the total arrests for physical and mental disabilities many elderly about 59 percent reported being victimized fraud, forgery/counterfeiting, embezzlement, persons experience have resulted in some acts at or near their home. receiving stolen property, and commercial of violence between intimates such as mercy The matter of elder abuse is becoming more vice, and arrests for family-related offenses killing and homicide-suicide pacts. important as people are now living longer and was not significantly different when the 65 The number of cases of robbery, bur- thus the elderly make up a larger percentage and older age groups were compared for 2000 glary, and fraud (Edelbacher, 2015: Personal of the entire population of most nations. It is and 2013. For the 60 and above offenders, Observations) has increased as a result of predicted (National Institute of Justice, Elder there was a slight increase in the proportion older persons losing their employment, losing Abuse, 2015: 1) that by 2025 more than 62 of arrests made in 2013 for driving under the their homes, being neglected by their families, million Americans will be 65 years old or influence, liquor law violations, and vagrancy, and not having any secure source of income. older and 7.4 million will be 85 years old or compared to 2000. For example, Edelbacher recalls: older. The expected 62 million elderly (65 and Crimes by the Elderly in Europe A group of elderly men who had engaged older) in 2025 will be a 78 percent increase in burglary when they were young decided over the number of elderly in the U.S. in 2001. It is difficult to obtain reliable statistical data to start the “Gang of the Elderly” and In a study of the extent of elder abuse victim- on elderly offenders in Europe for several resume the type of criminal activities they ization (National Institute of Justice, Extent reasons. As in the United States, the clearance had engaged in when they were young of Elder Abuse Victimization, 2015: 1), it was June 2016 CRIMINALITY AND VICTIMIZATION OF THE ELDERLY 61 found that 11 percent of the elderly reported VV Health Care/Medicare/Health Insurance safety. She was living alone, having been a at least one form of maltreatment—emotional, Fraud; widow for many years. At the beginning physical, sexual, or potential neglect—during VV Counterfeiting Prescription Drugs; of each month, she would go out with her the past year. Financial exploitation by a fam- VV Funeral and Cemetery Scams; dog, her shopping bags, and the keys to ily member in the past year was reported by VV Fraudulent Anti-Aging Products; her flat in one hand through an alleyway 5.2 percent of the elderly. The risk for elderly VV Telemarketing Scams such as the “The that went directly to the bank to cash her maltreatment is higher for: Pigeon Drop,” “The Fake Accident Play,” pension check. Although I explained to her VV Individuals living in low income and “Charity Scams”; several times that she was an easy target households; VV Internet Fraud and Email Phishing Scams; for robbers, she did not want to change her VV Individuals who are unemployed or retired; VV Investment Schemes; pattern of behavior” (Edelbacher-Personal VV Individuals who report being in VV Homeowner/Reverse Mortgage Scams; Observations). poor health; Sweepstakes and Lottery Scams; and The This example illustrates why the elderly are VV Individuals who had experienced prior Grandparent Scam. vulnerable to crime. They are trusting, set in traumatic experiences; and A study by the Princess Clark-Wendel their behavior patterns, and often not aware VV Individuals who have low levels of Companies (Financial Fraud: The Top 4 of the changes that have occurred in their social support. Scams Against the Elderly, 2015: 1) lists the communities that might make them more top four scams against the elderly as: vulnerable to becoming victimized. There is Case Study: Serial Murder in a VV The Home Repair Scam; also speculation that the amount of violence Hospital VV The Magazine Subscription Swindle; and neglect of the elderly who are housed in VV During the years 1988 and 1989, in a hospital The Uncollected Derby Winnings Scam; hospitals and nursing homes or under the in Vienna, four nurses killed more than thirty and care of their children has increased. These VV elderly patients who were very ill and weak, The Phony Bank Inspector Scam. crimes are often not reported, since the elderly rather than providing these patients with the victims are afraid of accusing their children, support and treatment they needed. When Crimes Against the Elderly in Europe relatives, or other persons caring to them. investigating these murders, the Major Crime Even in cases in which the elderly are the Bureau in Vienna investigated 385 reports of The crime rates in many countries of Europe victims of various types of fraud and scams, suspicious death cases. After the news media increased dramatically after the break-up of the elderly do not report the victimization for revealed the circumstances of the murders, a the Soviet Union. With the uniting of East various reasons, including admitting to others general fear of being mistreated in the hospi- Germany and West Germany and the opening that they were tricked. tals arose among the public and the public felt of the borders of Western Europe with Eastern that there probably were many more cases of European countries, there was an influx of Response to Elderly Crime by maltreatment of the elderly that were never immigrants from many of the Eastern coun- Criminal Justice Agencies detected. During a two-year investigation tries. Most of these immigrants were law With the exception of children and juveniles, period, the Vienna Faculty of Medicine, the abiding and were motivated by employment the criminal codes do not make allowance Department of Forensics, and the Prosecutor’s and opportunities to improve their living for decreasing culpability for crimes commit- Service collected all of the relevant literature conditions. However, conflicts with the native ted based on age. An elderly person who is and evidence about killing of the elderly in population were inevitable, since the new physically and mentally handicapped is still which the modi operandi that characterized groups generally had a different culture and subject to the same punishment as any other killings by the nurses were used, and in the adhered to a set of traditional values and person who is found guilty of a comparable trial twenty cases of murder by the nurses were legal standards. crime. For example, there are a number of substantiated. By receiving worldwide media As the gap between the rich and poor cases of “elderly” persons being given long- th coverage, this case created an awareness of the increased during the latter part of the 20 term prison sentences for mercy killings. In a st vulnerability of the elderly and a call for the century and the early part of the 21 century, study of elderly homicide victims (Kratcoski passage of laws to protect the elderly, not only some groups, particularly the very young and & Walker: 1988), homicide-suicide pacts in Austria, but for other countries. It became the elderly, became more vulnerable. The between elderly couples were made when very clear that, as the populations of the nations elderly in particular became the targets for all one or both of the elderly partners suffered in most of the developed countries of the world types of crime, including robbery, theft, bur- from terminal illness or was in extreme pain. are becoming older, providing humane medi- glaries, and fraud. As many of the elderly are In regard to financial scams and frauds, the cal treatment, economic care, and protection physically handicapped and not able to defend criminal offenders are often older persons for the elderly will become an increasingly dif- themselves if attacked, gangs of youngsters who have been swindling and scamming ficult challenge (Edelbacher, 2015). and single offenders seek out elderly persons people most of their adult lives and thus, when to rob, steal from them, or to burglarize their finally brought to justice, should not be given Victimization of the Elderly by homes. Elderly persons who are coming from Fraud and Scams any special consideration, regardless of their a financial institution or grocery store are older age. In another study of older inmates The National Council on Aging (2015: 1-3) often selected as victims. Reflecting on experi- (Kratcoski, 1992) it was found that several cat- has compiled a list of the top 10 scams target- ences with his mother, Edelbacher recalls, egories of male offenders, such as pedophiles, ing the elderly. These include: I remember very well as a son and police had been sexually molesting children, includ- officer the talks with my mother about her ing their own children and grandchildren, 62 FEDERAL PROBATION Volume 80 Number 1 most of their adult lives. Other cases of older The major legislation pertaining to vic- revealed that crime victims typically obtained offenders arrested for such offenses as public tims of crime that was passed by the federal support from both public and private sources. intoxication, disturbing the peace, and theft government and the state legislations did The majority of the victims (the respondents have probably been in and out of the courts not pertain specifically to elder victims of were predominately younger women) tended and jails most of their adult lives. crime, but took in all victims of crime. The to rely on their family and friends for the The courts and law enforcement officials Victims of Crime Act was passed by the U.S. emotional support needed in dealing with the recognize that the crimes of many elderly, such Congress in 1984. This Act established the trauma that is often experienced when one is as shoplifting of food, receiving unqualified Crime Victim Fund. The funds are used to victimized, particularly in those cases when services, and even violent acts against another support victim assistance and compensation the action involves violence, loss of life of a person, are the result of recent circumstances, programs throughout the country. All victims, family member, or bodily harm. They sug- and these persons are more in need of assis- regardless of their age, can apply for assistance gested that the victim service agency can be tance than punishment. The diversion of older and compensation if having received physical an important intermediary between the victim offenders from the criminal justice system is or material harm from a criminal act. The and the criminal justice system by providing becoming an accepted norm. Police transport Office of Victims of Crime was established a communication link to the system and by offenders suspected of being mentally ill to a in 1988. This federal agency provides grants educating the victim on how the system oper- mental health center rather than to jail. The to victim assistance programs and training ates and what to expect from the system at older offender who is a substance abuser is for service providers. Other legislation, such various stages of the process. (Tontodonato & eligible for “drug court” processing rather as the Violence Against Women Act (1994), Kratcoski, 1995:35.) than the normal court processing, and the does not specifically pertain to older women, In many police jurisdictions, the security older financial crime offender is often allowed but older women who qualify are eligible for needs of the elderly have been recognized, to make restitution rather than being given a the mandatory restitution required by the Act. resulting in the development of programs criminal sanction. The United Nations has begun to recognize to assure the safety of older citizens. These the extent of criminal victimization through- programs include the assignment of police Crime Prevention Strategies for out the world and the need to support victims officers to housing complexes for older resi- the Elderly of war and crimes committed by corrupt lead- dents, providing crime prevention education The methods being employed to prevent the ers of nations. In 1985, The United Nations for the elderly, and establishing commu- victimization of the elderly and to assist those adopted the Declaration of Basic Principles nity policing programs in neighborhoods who have been victimized consist of both of Justice for Victims of Crime and Abuse of where the large majority of the residents are information giving and operational program- Power (Wilson, 2009: ix-xii). senior citizens. ming. In the United States, the National Crime Prevention Council (2015:1) states that the Crime Victim Assistance Conclusion key components of a viable crime prevention Agencies The proportion of the population that is plan for the elderly should include: Victim Service Programs were established considered elderly has increased rather sig- VV A communications network to keep the throughout the United States during the 1980s. nificantly in most of the countries of the elderly alert to potential crime; Most of the agencies providing these programs world during recent years. This increase in VV Information and training on how to report were initially funded by grants from the Office the elderly population is expected to continue crime; of Victims of Crime. These agencies are either well into the 21st century. This change in the VV Services to support elderly victims in independently administered or are attached to elderly portion of the population has led to dealing with the physical, emotional and a government agency, most often the state or increases in the amount of crime commit- financial impacts of crime; and county prosecutor’s office. Victim assistance ted by the elderly, as well as increases in the VV Access to products, training, and other ser- agencies provide a variety of services to those number of elderly persons who have become vices to help prevent victimization. victims of crime who ask for assistance. These victims of crime. It is recommended that the information services include assisting the victim through The amount and types of crimes commit- provided on the victimization of the elderly be the court system, providing assistance in ted by older offenders is related to several factual and truthful. It is important to avoid crisis intervention situations, assisting the factors, including the older offenders’ moti- creating such a fear of crime that the elderly victim with the completion of the forms for vation, opportunities, and ability to commit are afraid to leave their homes to shop, go to requests for compensation, assistance with the crimes. The majority of property crimes church, or engage in social activities. It was the completion of impact statements, engag- committed by the elderly may be motivated suggested that the elderly engage in social ing in crime prevention programs, providing by a desire to fulfill their basic needs, such as interaction with family, friends, and others in training in personal safety, visiting victims at food and shelter. The mental state of the older the community to the extent possible. their homes, making referrals of victims to offender may explain the causes of sex-related counseling agencies, and even locating hous- crimes, violent crimes, public order crimes, Strategies Involving Action ing and funds for victims who need to satisfy and crimes relating to drug and alcohol abuse. Programs immediate needs relating to food and shelter. In regard to providing assistance to elderly The action strategies for preventing (Tontodonato & Kratcoski, 1995:16) victims of crime, although crime victim assis- victimization of the elderly consist of leg- The findings of the research on crime tance programs have been in operation for islation, providing services, and law victims’ utilization of services completed several decades, the elderly victims of crime enforcement programs. by Tontodonato and Kratcoski (1995: iii) have not received special attention until June 2016 CRIMINALITY AND VICTIMIZATION OF THE ELDERLY 63 recently. It is now recognized that some older Fattah, E. A., & Sacco, V.F. (1989). Crime and National Crime Prevention Council. (2015). victims have needs for assistance that are quite victimization of the elderly. New York: Strategy: Crime prevention services for the different from the needs of younger victims. Springer-Verlang. elderly, 1-3. Retrieved 6/1/2015 from www. These include assistance with transportation, Federal Bureau of Investigation. (2001). Crime nij.gov/topics/crime/elder-abuse/pages/ special housing, financial security, personal in the United States, 2000. Washington, welcome.aspx D.C.: U.S. Government Printing Office. National Institute of Justice. (2015). Extent physical care, and psychological counseling. Federal Bureau of Investigation. (2014). Crime of elder abuse victimization, 1. Retrieved Having a sense of security and being able to in the United States, 2013. Washington, 5/11/2015 from www.nij.gov/topics/crime/ live without fear for one’s personal safety are D.C.: U.S. Government Printing Office. elder-abuse/pages/extent.aspx also major concerns. Fryling, T. (2009). Elder abuse, in The Praeger Princess Clark-Wendel Companies. (Sungard handbook of victimology, J. K. Wilson (Ed.), ASVoice, 2015: 1-5). Financial fraud: The References Santa Barbara, CA: Praeger, pp. 83-85. top 4 scams against the elderly. Retrieved Keller, O., & Vedder, C. (1968). Crimes old per- 5/12/2015 from http://www.forbes.com/ Administration on Aging, Administration for sons commit, The Gerontologist (8)2:43-50 sites/sungardas Community Living: 1. (2015). Accessed Kratcoski, P., & Walker, D. (1988). Homicide Salzmann, D. (1963). Delinquency in later years. 5/11/2015 from http://www.aoa.acl.gov/ among the elderly: Analysis of the victim/ Medical Trial Technique Quarterly, 9-54. aging_statistics/index.aspx assailant relationship. In B. Marthy & R. Shichor, D. (1984). The extent and the nature Bundeskriminalamt. (2015). Police crime Langworthy (Eds.), Older offenders: Perspec- of lawbreaking by the elderly: A review statistics 2014 Federal Republic of Ger- tives in criminology and criminal justice (pp. of arrest statistics. In Elderly criminals, many: 1. Retrieved 1/31/2016 from http// 62-75). New York: Praeger. E. Newman, D. Newman, & M. Gewirtz www.bkade/m_192960/sid_c5433FE- Kratcoski, P. (1992). An analysis of cases involv- (Eds.). Cambridge: Oelgeschlager, Gunn, 33D0041104A54C39D757ID471/NSC_ ing elderly homicide victims and offenders. and Hain: 17-32. true/EN/publications/policecrimestatis- In E. Viano (Ed.), Critical issues in victimol- Tontodonato, P., Kratcoski, P. C. (1995).Crime tics/2014/pc ogy: International perspectives (pp. 87-95). victims’ utilization of services. Columbus, Carone, G., & Costello, D. (2007). Can Europe New York: Springer Publishing Company. OH: Governor’s Office of Criminal Justice afford to grow old? International Monetary Mason, B., & Morgan, R. (2013). Crimes against Services. Fund Finance and Development. Retrieved the elderly (age 65 and older) for the years Wilbanks, W. (1984). The elderly offender: 12/15/2007 from http://www.imf.org/exter- 2003 to 2013. Bureau of Justice Statistics. Placing the problem in perspective. In nal/pubs/ft/fandd/2006/2009/carone.htm Retrieved 5/11/2015 http://www.bjs.gov/ Elderly criminals, W. Wilbanks & P.K.H. CIA World Factbook and Statistik Austria. index,cfm?ty=pbdetail&lid=5136 Kim (Eds.). New York: University Press of (2015). Demographics of Austria. Wikipe- Moberg, D. (1953). Old age and crime. Journal America, pp. 1-15. dia: 1. Retrieved 6/1/2015 from https:// of Criminal Law, Criminology and Police Wilson, J. (2009). Chronology of selected victi- en.wikipedia.org/wiki/Demographics_of_ Science: 43, 773-775. mology events. In The Praeger handbook of Austria National Council on Aging. (2015). Top 10 victimology (ix-xii), J. K. Wilson (Ed.), Santa Edelbacher, M. (2015). Personal Observations. scams targeting seniors: 1-9. Retrieved Barbara, CA: Praeger. Eurostat. (2012). Population Projections. Euro- 5/12/2015 from http://www. NCOA.org/ pean Commission. economic-security/money-management/ scams-security/top-10-scams-targeting- seniors/ 64 FEDERAL PROBATION Volume 80 Number 1 DEPARTMENTJUVENILE FOCUS
Alvin W. Cohn,Author D.Crim. name AdministrationAuthor of Justicetitle and Services, institution Inc.
Graduation Rates York, the Pascua Yaqui Tribe of Arizona, the entries and exits for probation and parole; Suquamish Indian Tribe of the Port Madison jurisdiction-level information on the types of The nation’s high school graduation rate has Reservation of Washington, the Shoshone- entries and exits for parole. ticked up slightly to 82 percent, a new high, Bannock Tribes of the Fort Hall Reservation Highlights: according to the U.S. Education Department. of Idaho, the Tulalip Tribes of Washington, the VV At year end 2014, an estimated 4,708,100 The rate for the 2012-2013 was the highest Confederated Tribes of the Umatilla of Oregon adults were under community supervision since a new, uniform measure was adopted and the White Mountain Apache Tribe of the down by about 45,300 offenders from year in 2010. Blacks and Hispanics made progress Fort Apache Reservation of Arizona. end 2013. in closing the achievement gap with whites. VV Approximately 1 in 52 adults in the United About 72 percent of black students and 76 per- Transparency States was under community supervision cent of Hispanics earned diplomas. For white Implementation Plan at year end 2014. students, the rate was 87 percent. The Office of the Director of National Probation findings: Defending Childhood Intelligence (ODNI) recently published the VV Between year end 2013 and 2014, the adult implementation plan for the Principles of probation population declined by about The National Institute of Justice (NIJ) has Intelligence Transparency for the Intelligence 46,500 offenders (down 1.2 percent), fall- released “An Outcome Evaluation of the Community. The principles are intended to ing to an estimated 3,864,100 offenders at Defending Childhood Demonstration facilitate intelligence community (IC) deci- year end 2014. Program.” This report highlights process eval- sions on making information publicly available VV Entries onto probation decreased about uation findings from six of the eight sites while continuing to protect information when 1.3 percent during 2014, and exits declined participating in the Defending Childhood disclosure would harm national security. The about 1.0 percent to an estimated 2,130,700. Demonstration Program, a national initiative implementation plan sets IC priorities for Parole findings: of the Department of Justice and OJJDP to transparency, translating the principles into VV The adult parole population increased address children’s exposure to violence. The concrete, measurable initiatives. by about 1,600 offenders (up 0.2 per- report presents findings from surveys and cent) between year end 2013 and 2014, data that researchers collected regarding the Adult Offenders in to an estimated 856,900 offenders at year impact of training and community awareness the Community end 2014. campaigns on children’s exposure to violence This study presents data on adult offenders VV Both entries to and exits from parole within each site. under community supervision while on pro- decreased about 1.5 percent in 2014. Tribal Access Program bation or parole in 2014. The report presents VV The re-incarceration rate among parolees trends over time for the overall community at risk of violating their conditions of The Department of Justice announced the supervision population and describes changes supervision remained stable at about 9 first 10 tribes to participate in an initial User in the probation and parole populations. It percent in 2013 and 2014. Feedback Phase of the Tribal Access Program provides statistics on the number of offend- (TAP) for National Crime Information, a pro- ers entering and exiting probation and parole Serious Juvenile Offenders gram to provide federally recognized tribes and the mean time served as well as national- Several interventions aim to reduce recidi- the ability to access and exchange data with level data on the distribution of offenders on vism by promoting prosocial attitudes and national crime information databases for both probation or parole by sex, race, or Hispanic behaviors among violent and chronic juve- civil and criminal purposes. origin, most serious offense type, and status nile offenders. CrimeSolutions.gov looked The User Feedback Phase will grant access of supervision. It also presents outcomes at those targeting violent and chronic juve- to national crime information databases and of supervision, including the rate at which nile offenders sentenced to serve time in technical support to the following tribes: the offenders completed their term of supervision secure corrections. The goal of this practice Cherokee Nation of Oklahoma, the Eastern or were returned to incarceration. Appendix is to decrease recidivism rates among seri- Band of Cherokee Indians of North Carolina, tables include jurisdiction-level information ous juvenile offenders. This practice has the Keweenaw Bay Indian Community of on the population counts and number of been rated “Effective” for reducing general Michigan, the Oneida Indian Nation of New recidivism and serious recidivism of violent June 2016 JUVENILE FOCUS 65 and chronic juvenile offenders. Learn more Youth Outcomes in State defense for youth, and respond more effectively about this program and the evaluations on Juvenile Justice Systems to the mental health needs of young offenders. CrimeSolutions.gov. The report builds on Trends in Juvenile Justice Recently, the Council of State Governments State Legislation: 2001–2011. Cross-Age Peer Mentor Program (CSG) Justice Center hosted “Improving Outcomes for Youth in the Juvenile Justice The Cross–Age Peer Mentor Program Smart on Juvenile Justice System: A 50-State Forum” in Austin, TX. Fifty pairs high school student mentors with Initiative state teams composed of lawmakers, juvenile elementary and middle school students for Recently, OJJDP announced the Office has justice officials, and judicial leaders convened mentoring sessions at the younger students’ awarded $2.2 million to expand its Smart on for this 2-day forum to discuss juvenile justice school. Depending on the distance between Juvenile Justice initiative to South Dakota reforms, lowering rearrest rates, and improv- the schools, the program follows one of two and West Virginia. This initiative supports ing youth outcomes. The CSG Justice Center, models, with students either meeting twice grant programs that promote juvenile justice in collaboration with OJJDP, produced several a week after school or once a month on system reforms, provide training and techni- products and tools to help states develop and weekends. Both models include quarterly cal assistance to prosecutors, address systemic implement system-wide plans to improve out- Saturday family activities and optional two– racial and ethnic disparities, and improve the comes for youth. CSG released the following week summer program. The program aims quality of indigent defense. The new fund- products during the forum: to increase connectedness to school and ing will also provide ongoing support for VV Recidivism Reduction Checklists to guide community for both mentors and mentees. Georgia, Hawaii, and Kentucky, all of which state and local officials on whether policy, Evaluations showed better results in spelling received funding in 2014. Smart on Juvenile practice, and resource allocation deci- achievement and connectedness to parents Justice aligns with the Justice Department’s sions are aligned with the research on and school compared to a control group. Smart on Crime initiative, a comprehen- “what works.” Learn more about this program and the evalu- sive review of the criminal justice system to VV Juvenile Justice Agency Leaders and ations on CrimeSolutions.gov. This program identify and implement reforms to ensure Managers Checklist was reviewed in partnership with the Office of federal laws are enforced fairly and efficiently. VV Policymaker Checklist Juvenile Justice and Delinquency Prevention’s Learn more about OJJDP’s Smart on Juvenile VV Judges Checklist Model Programs Guide. Justice initiative VV Locked Out: Improving Educational and Youth Justice Vocational Outcomes for Incarcerated BIDs Youth provides findings from a survey Diversion Programs With the implementation of Business of juvenile correctional agencies in all 50 Global Youth Justice champions volunteer- Improvement Districts (BIDs), U.S. cities are states on the extent to which they provide driven strategies and low-cost innovations experiencing less crime and notable economic incarcerated youth access to educational which alleviate some of the world’s more press- benefits. A 2010 analysis in Injury Prevention and vocational services. ing and costly societal problems. Global Youth of 30 BIDs in Los Angeles, Calif., found a 12 VV Improving Outcomes for Youth is an info- Justice strives to improve the quality of life for percent decline in robberies and an 8 percent graphics series that details three critical humans through reducing high juvenile crime decline in violent crime, as well as substantial challenges that states face in improving rates and historic-high incarceration rates economic development. The savings attrib- outcomes for youth. of adults locally and globally. Global Youth uted to the decline in robberies alone offset VV Reducing Recidivism and Improving Justice achieves this through favorable out- implementation costs of these districts, mak- Other Outcomes for Young Adults in comes that result from advancing the global ing BIDs a sustainable prevention strategy. the Juvenile and Adult Criminal Justice expansion of quality volunteer-driven youth BIDs are public–private partnerships created Systems is designed to help state and local justice and juvenile justice voluntary diversion by neighborhood property owners and mer- officials better support young adults in the programs often called youth court, teen court, chants to invest in local services, activities, justice system peer court, student court, peer jury and youth and improvements, with the goal of enhanc- peer panel. Record numbers of volunteer Juvenile Justice Legislation ing a city’s appeal, use, and safety. In Los youth (including former juvenile offenders) Angeles, the BID provided security officers The National Conference of State Legislatures now serve as jurors, defenders, prosecutors, and public ambassadors and helped beautify has released Trends in Juvenile Justice State judges and clerk/bailiffs in local juvenile jus- certain areas. Local BIDs can invest in various Legislation 2011-2015, which examines state tice systems on real juvenile crimes, offenses, strategies, such as street cleaning, security, legislative activity from 2011 to 2015 on a and violations involving their peers. A record community events, and green spaces. number of juvenile justice issues. The report 1,600-plus communities around the globe describes the increasing momentum of state now operate one of these cost-effective pro- Juvenile Justice System Failures juvenile justice policy development in the past grams to reduce the incidence and prevent the Girls are becoming increasingly more involved 5 years and catalogs the volume and variety of escalation of juvenile crime and incarceration in the juvenile justice system at all stages of the juvenile justice legislation enacted in the states. rates, thereby reducing adult crime and incar- process. Over the past two decades, research- According to the report, significant trends ceration rates. ers found arrests among girls have increased have emerged to restore jurisdiction to the by 45 percent, despite overall declining juve- juvenile court, divert youth from the system, nile arrest rates. Court caseloads for girls have shift resources from incarceration to commu- increased 40 percent, as has the number of nity-based alternatives, provide strong public girls in detention. 66 FEDERAL PROBATION Volume 80 Number 1
Youth Violence juvenile justice services, status offenses, and Highlights: systems integration. VV The number of veterans incarcerated in Homicide is the fourth leading cause of death state and federal prison and local jail among youths 10 to 29, with an estimated Sexual Assaults decreased from 203,000 in 2004 to 181,500 200,000 cases reported each year. For each The National Institute of Justice (NIJ) has in 2011–12. young person killed, many more sustain seri- formed the NIJ–FBI Sexual Assault Kit VV The total incarceration rate in 2011–12 ous injuries. Countless others develop mental Partnership with the Federal Bureau of for veterans (855 per 100,000 veterans health issues and engage in risky behaviors, Investigation (FBI) Laboratory in Quantico, in the United States) was lower than the like smoking and drinking, as a result. The VA, to help address one of the most difficult rate for nonveterans (968 per 100,000 U.S. World Health Organization (WHO) has and complex issues facing our nation’s crimi- residents). published a new manual, Preventing Youth nal justice system: sexual assault kits that have VV Non-Hispanic black and Hispanic inmates Violence: An Overview of the Evidence, which gone unsubmitted to forensic laboratories. made up a significantly smaller proportion details effective practices and interventions for Through the Partnership, the FBI Laboratory of incarcerated veterans (38 percent in areas where resources are limited. The manual tests kits from law enforcement agencies prison and 44 percent in jail), compared presents an evidence-based framework that and crime laboratories across the country to to incarcerated non-Hispanic black and explains why some young people are more reduce the number of untested kits in the U.S. Hispanic nonveterans (63 percent in prison likely to become involved in violence and In a brand-new video, we discuss how the and 59 percent in jail). why youth violence is more concentrated in NIJ–FBI Sexual Assault Kit Partnership plans VV A greater percentage of veterans (64 per- particular communities and populations. It to shed light on the complexities of sexual cent) than nonveterans (48 percent) were addresses how youth violence is influenced assault evidence processing and develop best sentenced for violent offenses. by personal traits, family and peer relation- practices that can improve the quality and VV An estimated 43 percent of veterans and 55 ships, and the community. Twenty-one youth speed of sexual assault kit testing. percent of nonveterans in prison had four violence prevention strategies address early or more prior arrests. childhood development, academic growth, Domestic Violence Courts social skills, parenting, substance use, prob- Domestic violence (DV) courts are special- Child Welfare lem-oriented policing, and urban upgrading. ized, problem-solving courts that specifically The National Council on Crime and There are risk and protective factors for youth handle domestic violence cases. New York Delinquency (NCCD) released a new report violence, a review of evidence on what works State has two types of DV courts: today describing efforts made with the Los in violence prevention, and steps policy mak- VV Criminal courts, which tend to be more Angeles County Department of Children and ers can take to scale up antiviolence efforts. common across the United States and only Family Services (DCFS) to prevent youth Children of Arrested Parents take domestic violence cases. in the child welfare system from becom- VV Integrated courts, which place criminal, ing involved in the juvenile justice system. Parental arrest can have long-lasting traumatic family, and matrimonial cases relating to NCCD and DCFS partnered to develop an effects on a child. Shock, confusion, and fear the same family before one judge. actuarial screening assessment, which Los are just a few emotions that arise when a child’s Learn more about this program and the Angeles County workers used to classify parent is taken into custody. A new video evaluations on CrimeSolutions.gov. Sign up to youth by their likelihood of subsequent juve- developed by the International Association receive emails from CrimeSolutions.gov about nile justice involvement. Assessment results of Chiefs of Police and the Bureau of Justice all newly rated programs and practices. enabled the county to focus prevention ser- Assistance trains law enforcement agencies vice programming on youth at highest risk of on safeguarding children of arrested parents. Veterans in Prison and Jail dual-system involvement. The video outlines strategies to help police A Bureau of Justice Statistics study presents implement a trauma-informed approach for counts and rates of veterans in state and fed- Juvenile Justice Geography protecting children before, during, and after a eral prison and local jail in 2011 and 2012. The National Center for Juvenile Justice parent’s arrest. This report describes incarcerated veterans (NCJJ) has added state juvenile justice pro- Juvenile Justice State Profiles by demographic characteristics, military char- files to its Juvenile Justice Geography, Policy, acteristics, and disability and mental health Practice, & Statistics (JJGPS) website. JJGPS The Juvenile Justice Geography, Policy, status. It describes current offense, sentencing, is an online resource featuring national and Practice & Statistics (JJGPS), developed and and criminal history characteristics by veteran state statistics on state laws and juvenile maintained by the NCJFCJ’s research divi- status. It also examines combat experience justice practices to help policymakers and sion, the National Center for Juvenile Justice associated with lifetime mental health disor- stakeholders chart juvenile justice system (NCJJ), has launched new state profiles that ders among incarcerated veterans. Findings change. The new profiles explore juvenile jus- summarize important findings across six topic are based on data from the National Inmate tice systems in each state across six topic areas. areas. This new generation of state profiles Survey, conducted between February 2011 The profiles also contain state trend data on are the most comprehensive ever released by and May 2012. Data from previous BJS sur- arrests and custody issues with comparisons the NCJJ. The profiles also highlight policy, veys of inmates in prison and jail are used to to national data. NJJ is the research division of practice, and statistics across the six topic establish historical trends regarding incarcer- the National Council of Juvenile and Family areas, including jurisdictional boundaries, ated veterans. Court Judges. The JJGPS is one of several juvenile defense, racial and ethnic fairness, June 2016 JUVENILE FOCUS 67 strategies in support of juvenile justice reform a cognitive disability. An ambulatory disabil- transition to adulthood for vulnerable youth. through the Models for Change initiative ity was the second most common reported Learn more about: disability, with 10 percent of each population VV The Attorney General’s Defending Census of Jails reporting difficulty walking or climbing stairs. Childhood initiative. The Bureau of Justice Statistics presents state- VV The National Forum on Youth Violence level estimates of the number of inmates Juvenile Justice Publication Prevention. confined in local jails at year end 2013, by sex, Ashley Nellis, a Senior Research Analyst at VV The Community-based Violence Pre- race, and Hispanic origin. This report provides the Sentencing Project, has just published vention program. information on changes in the incarceration a book, A Return to Justice: Rethinking Our rate, average daily population, admissions, Approach to Juveniles in the System. The book Traffic-Related Deaths expected length of stay, rated capacity, percent examines how the original aim of the juve- In 2013, one-third of all traffic-related deaths of capacity occupied, and inmate-to-correc- nile justice system—to consider children’s were people killed in an alcohol-impaired tional officer ratios. It also includes statistics, unique status and amenability for reform— driving crash. Just like driving after drinking by jurisdiction size, on the number of inmates has eroded, with increasing reliance on court alcohol, the use of illegal drugs or misuse confined to jail and persons admitted to jail systems that do not take into account their of prescription drugs can make operating a during 2013. It features a special section on young age. Ashley describes how the stated motor vehicle unsafe. Even small amounts the 12 facilities that functioned as jails for the intent of the juvenile justice system has fluc- of some drugs can have a measurable effect. Federal Bureau of Prisons. tuated since its inception, with attention to According to the 2013 National Survey on Highlights: the critical role that race has played in creat- Drug Use and Health, undertaken by the VV From 1999 to 2013, the number of inmates ing—or failing to create—a juvenile justice Substance Abuse and Mental Health Services in local jails increased by 21 percent, from system that is suitable for children. But she Administration (SAMHSA), an estimated 9.9 605,943 to 731,570. During this period, also notes the growing appreciation of the role million people aged 12 or older reported driv- the growth in the jail population was not of adolescent development, crippling racial ing under the influence of illicit drugs during steady, as the jail confined population and ethnic inequalities, and the profound the year prior to being surveyed. The effects of peaked in 2008 at 785,533 then declined to impact of school discipline policies in crimi- impaired driving crashes can devastate survi- its 2013 level. nalizing youth behavior that have created a vors and their families for years or a lifetime. VV The adult jail incarceration rates changed hopeful moment for the original vision of slightly between midyear 1999 (304) and juvenile justice to emerge again. Racial Disparity in year end 2013 (310). Post-Booker Sentencing VV Nearly half (46 percent) of all local jail Youth Commitments While overall federal sentence lengths have inmates were confined in jurisdictions A new policy brief written by Joshua Rovner decreased since United States v. Booker, blacks holding 1,000 or more inmates in 2013, at the Sentencing Project, Declines in Youth and Hispanics are sentenced more harshly down slightly from 50 percent in 2006. Commitments and Facilities in the 21st than whites, according to Jeffrey S. Nowacki’s VV Between 1999 and year end 2013, the Century, finds major reductions both in the recent analysis in Crime & Delinquency. In female inmate population increased by number of youth committed to residential the 2005 Booker decision, the United States 48 percent, from approximately 68,100 facilities and in the number of facilities this Supreme Court enhanced judicial discretion to 100,940. The male inmate population century. While the number of youth behind in sentencing determinations by making the increased by 17 percent, from approxi- bars has fallen by half since 2000, racial dis- federal sentencing guidelines advisory, rather mately 537,800 to 630,620. parities in youth commitment remain large than mandatory (with a modest impact). VV The juvenile population (persons age 17 or and prevalent: African American youth are 4.3 The study examines federal sentencing data younger) held in adult jail facilities in 2013 times as likely as white youth to be committed between 2002 and 2008, controlling for factors (4,420) decreased by more than half from to a secure facility, and Native youth are 3.7 such as offense severity and criminal his- its peak in 1999 (9,458). times as likely. tory, and finds that greater judicial discretion increased racial disparity in post-Booker sen- Inmate Disabilities Well-Being of Vulnerable Youth tencing. He also shows that the effect of race An estimated 32 percent of state and federal The Youth Transition Funders Group has and ethnicity varies across the distribution of prisoners and 40 percent of local jail inmates released Investing to Improve the Well-Being sentence lengths: “Black offenders were sen- reported having at least one disability in the of Vulnerable Youth and Young Adults: tenced for longer periods of time at all stages 2011–12 National Inmate Survey adminis- Recommendations for Policy and Practice. except the 10th and 25th percentiles, and tered by BJS. Estimates of disabilities include This publication provides a framework for Hispanics sentenced after Booker were only six specific classifications: hearing, vision, understanding the well-being of vulnerable sentenced longer in the 10th and 25th percen- cognitive, ambulatory, self-care, and indepen- youth and highlights the roles families, com- tiles.” A recent working paper prepared by Abt dent living. A cognitive disability—defined munities, and public systems can take to Associates for the Bureau of Justice Statistics as serious difficulty concentrating, remem- promote young people’s well-being. It offers also notes that “blacks have not benefited as bering, or making decisions—was the most recommendations for youth system leaders, much from the increased leniency afforded common disability reported by prison and jail policymakers, and stakeholders to improve to whites,” and finds no racial disparity in inmates. An estimated 19 percent of prisoners policy and practice to support a successful women’s sentences. and 31 percent of jail inmates reported having 68 FEDERAL PROBATION Volume 80 Number 1
Pretrial Detention examines the relationship between the “racial/ VV Recommend approaches for improv- ethnic threat thesis” and youth court out- ing the efficiency and quality of the Writing in the Huffingon Post, Professor comes for black and Latino children. The data collections. Cynthia Jones and Nancy Gist of the Pretrial racial/ethnic threat thesis predicts that various VV Present findings. Racial Justice Initiative call attention to the forms of social control will expand as the eco- Access the BJS Research and Development country’s dysfunctional bail process and how it nomic status and political power of people of Papers series page and read the first paper, produces racial disparities throughout the jus- color increases in relation to whites. Building Developmental Estimates of Subnational tice system and fuels mass incarceration. Most upon previous criminal justice research, the Crime Rates Based on the National Crime pretrial defendants are in jail simply because researchers hypothesized that communities Victimization Survey. they cannot afford to pay the money bond with a large minority population and greater imposed by the court—not because they are economic equality pose a greater threat to Residential Placements a public safety or flight risk, explain Jones and whites, and thus would have more severe youth A development in criminal justice in recent Gist. Because poor people in the United States court outcomes for children of color. Their years is the dramatic decrease of the num- are more likely to be people of color, black and analysis of youth court proceedings involving ber of young people involved in the juvenile Latino defendants are more likely to experi- 37 counties in three states did not indicate that justice system. The number of adolescents in ence pretrial detention. Pretrial detention can minority presence and economic status were residential placements in the juvenile justice result in job or housing loss and other dire related to increased youth punishment. system declined by 50 percent from 1999 to collateral consequences. “This reality creates 2013, from a peak of 107,493 to 54,148 in a strong incentive for pretrial detainees to Victimization Survey 2013. Regrettably, black and Latino youths plead guilty—regardless of their guilt or inno- Developmental estimates of subnational remain significantly overrepresented in resi- cence—which starts a cycle of imprisonment crime rates based on the National Crime dential placement, comprising 68 percent of that is a major driver of mass incarceration.” Victimization Survey presents rates of violent the total committed or detained youths in People in pretrial detention are three times and property crime victimization for the 2013. Committed youths outnumber those in more likely to be sentenced to prison and 50 states and select metropolitan statistical detention by 2:1 and are under supervision for receive longer prison sentences than people areas, generated using small-area estimation longer periods. It is estimated that as many as on pretrial release. According to the authors, (SAE) methods. The report describes the 600,000 youths cycle through juvenile deten- creating a bail system that is based on risk and statistical modeling approach used to produce tion annually. not resources, as in Kentucky or the District state-level estimates from the National Crime The reduction in residential placements of Columbia, will spare tens of thousands of Victimization Survey data and auxiliary coincides with efforts to address trauma people from pretrial detention and disrupt the data sources. It compares SAE victimization among youths who come in contact with cycle of mass incarceration. rates for the 50 states from 1999 to 2013 to the juvenile justice system. Studies estimate Youth Mortality FBI crime rates from the Uniform Crime that three young persons out of four in Reporting (UCR) Program. It shows trends the juvenile justice system have experienced While previous studies have demonstrated in criminal victimization rates for each state some form of traumatic victimization, and that justice-involved youth have increased from 1999 to 2013. State-level estimates of estimates for the incidence of posttraumatic risks of early death, a report in the American intimate partner violence are also presented. stress disorder range from 11 percent to 50 Journal of Preventative Medicine finds that Excel files provide three-year rolling average percent. Encounters with the child welfare and these risks increase with deeper involvement rates of violent and property crime, stranger juvenile justice systems often exacerbate stress in the justice system. In “Mortality of Youth violence, and intimate partner violence, as levels, adding additional layers of trauma. Offenders Along a Continuum of Justice well as relative mean square errors for the 50 A Government Accountability Office report System Involvement,” Matthew C. Aalsma and states, select large counties, and select large (GAO–03–865T) found that significant num- colleagues review mortality for nearly 50,000 Core Based Statistical Areas, from 1999 to bers of parents were placing their children into Indianapolis-area youth over a 13-year period, 2013. Victimization counts are also provided the child welfare or juvenile justice systems as 62 percent of whom had been arrested. In for the states for three-year rolling periods a last resort for getting mental health services examining the 500 deaths among this group, from 2005 to 2013. for their offspring. the researchers find that deeper justice system involvement—arrest, detention, commitment, Statistics Papers Binge Drinking and transfer to adult court—was associated BJS has established a Research and Research shows that persons of college with a greater risk of death. The most com- Development (R&D) Papers series, which age partake in binge drinking—defined as mon causes of death were homicide (48 details statistical methods that will be applied consuming five or more drinks on a sin- percent), overdose (15 percent), other acci- to analyzing and reporting official find- gle occasion for men and four or more for dents (14 percent), suicide (12 percent), and ings from BJS’s data collection programs. women—more frequently than any other natural causes (12 percent). The likelihood of The papers— age group. Notably, full-time college students death for system-involved youth was higher VV Examine the effectiveness of survey meth- drink more than persons the same age who for African Americans than for whites. ods currently used by BJS program. are not attending college. The college environ- Juvenile Court Outcomes VV Investigate alternative methods to deter- ment—and particularly living on campus in mine their appropriateness and application. coeducational residence halls—contributes to Michael Leiber, Jennifer Peck, and Nancy excess drinking. Rodriquez’s article in Crime and Delinquency June 2016 JUVENILE FOCUS 69
The reasons for this are complex and var- is mounting to end this psychologically trau- Correctional Populations in the ied. But researchers have documented that matizing and costly practice. Civil rights United States, 2014 many young adults about to enter college litigation, federal congressional hearings, This BJS publication presents statistics on per- expect alcohol to be more freely available on prisoner-led hunger strikes, increased media sons supervised by adult correctional systems college campuses than it was to them when coverage, criticism from international human in the United States at year end 2014, includ- they lived at home with parents or guardians rights groups, growing financial pressures, ing offenders supervised in the community on (this generally proves true) and associate binge and leadership from some progressive crimi- probation or parole and those incarcerated in drinking with college life. These assumptions nal justice leaders are some of the factors state or federal prison or local jail. The report often preordain a lifestyle that includes binge prompting correctional systems to reduce describes the size and change in the total cor- drinking. Once in college, many students their use of solitary confinement. Vera is part- rectional population during 2014. It details the consider college life as separate from the real nering with government leaders in Nebraska, downward trend in the correctional popula- world—a time when they are on their own Oregon, North Carolina, New York City, and tion and correctional supervision rate since but not yet burdened by the responsibilities of New Jersey to identify and implement safe 2007. It also examines the impact of changes finding and maintaining gainful employment. and humane alternatives to administrative and in the community supervision and incarcer- punitive segregation. Forensic Science ated populations on the total correctional population in recent years. Findings cover the Deputy Attorney General Sally Quillian Jail Population variation in the size and composition of the Yates announced that the Justice Department While big-city jails get most of the attention, total correctional population by jurisdiction will, within the next five years, require lockups in small and medium-sized counties at year end 2014. Appendix tables provide department-run forensic labs to obtain and have actually driven the overall explosion in statistics on other correctional populations maintain accreditation and require all depart- the U.S. inmate population, according to a and jurisdiction-level estimates of the total ment prosecutors to use accredited labs to new analysis of 45 years of jail statistics. U.S. correctional population by correctional status process forensic evidence when practicable. jails now hold nearly 700,000 inmates on any and sex for select years. Additionally, the department has decided to given day, up from 157,000 in 1970, and the Highlights: use its grant funding mechanisms to encour- Vera Institute of Justice found that smaller VV Adult correctional systems supervised an age other labs around the country to pursue counties now hold 44 percent of the overall estimated 6,851,000 persons at year end accreditation. The new policies arose out total, up from just 28 percent in 1978. Jail 2014, about 52,200 fewer offenders than at of recommendations made by the National populations in mid-sized counties with popu- year end 2013. Commission of Forensic Science (NCFS), lations of 250,000 to 1 million residents grew VV About 1 in 36 adults (or 2.8 percent of which was established to advance the field of by four times and small-sized counties with adults in the United States) was under forensic science and make suggestions to the 250,000 residents or less grew by nearly seven some form of correctional supervision at Attorney General on how to ensure that reli- times, Vera’s analysis shows. In that time large year end 2014, the lowest rate since 1996. able and scientifically valid evidence is used county jail populations grew by only about VV The correctional population has declined when solving crimes. three times. by an annual average of 1.0 percent since FBI Records and eFOIA Prisoner 2007. VV The community supervision population The FBI recently began open beta testing Employment Partnership (down 1.0 percent) continued to decline of eFOIA, a system that puts Freedom of A new partnership among New York State, 40 during 2014, accounting for all of the Information Act (FOIA) requests into a private investors, and a nonprofit called the decrease in the correctional population. medium more familiar to an ever-increasing Center for Employment Opportunities seeks VV The incarcerated population (up 1,900) segment of the population. This new sys- to apply thinking to an area of policy that slightly increased during 2014. tem allows the public to make online FOIA has been particularly resistant to interven- requests for FBI records and receive the results tions: lowering the recidivism rate in an era National Incident-Based from a website where they have immediate of growing prison populations. The investors, Reporting System access to view and download the released. including private philanthropists and former The FBI released details on more than 5.4 mil- Treasury Secretary Larry Summers, have put lion criminal offenses reported via the National Solitary Confinement up a total of $13.5 million to fund an expan- Incident-Based Reporting System (NIBRS) in In the United States, there are between 80,000 sion of the work that an organization called 2014. The Uniform Crime Reporting (UCR) and 100,000 people confined to prison the Center for Employment Opportunities Program’s latest report, NIBRS 2014, provides cells the size of parking spots and exposed to (CEO) already does with people coming out a diverse range of information about victims, extreme conditions of social isolation, sensory of prison. CEO’s model is simple: It prepares known offenders, and relationships for 23 deprivation, and idleness for days, months, people who have criminal records for the offense categories composed of 49 offenses. It years, and even decades at a time—a tally that workplace, gives them up to 75 days of tem- also presents arrest data for those offense cat- does not include thousands of others living in porary employment, and then helps them egories, plus 11 more offenses for which only similar conditions in jails, juvenile facilities, find jobs of their own. With the $13.5 million, arrest data are collected. and immigration detention centers. This is a CEO will work with an additional 2,000 cli- human rights crisis and it is not making our ents, targeting the highest-risk people. communities safer. Fortunately, momentum 70 FEDERAL PROBATION Volume 80 Number 1
Crime Stats Overblown national pandemic, suggesting community VV Despite overall declining juvenile arrest conditions are a major factor. The pre- rates, girls’ share of juvenile arrests As year-end crime statistics come in, data from liminary report examined five cities with increased by 45 percent. America’s largest cities show crime overall was particularly high murder rates—Baltimore, VV Girls’ share of court caseloads increased roughly the same in 2015 as in 2014, and in Detroit, Milwaukee, New Orleans, and St. 40 percent. fact is projected to decline by 5.5 percent, Louis—and found these cities also had VV Girls’ share of the detention population according to an analysis of crime trends from significantly lower incomes, higher poverty increased 40 percent. the Brennan Center for Justice. The analysis is rates, higher unemployment, and falling VV Girls’ share of the post-adjudication proba- an update to a November preliminary study populations than the national average. tion population increased 44 percent and projecting 2015 crime data. The preliminary report, released in post-adjudication placement population Using statistics through December 23, November, examined month-to-month and increased 42 percent. 2015, a team of economics and legal research- year-to-year crime numbers using data from ers released updated data providing near-final the Federal Bureau of Investigation and local Sexual Assault and crime numbers for 2015 from the nation’s 30 police departments. The authors concluded Domestic Violence largest cities. “The average person in a large that rhetoric around a “crime rise” should Attorney General Loretta E. Lynch has urban area is safer walking on the street today not stand in the way of federal, state, or local announced new guidance to help law enforce- than he or she would have been at almost any reforms to improve our justice system and ment agencies identify and prevent gender time in the past 30 years,” wrote Matthew reduce prison populations. bias in their response to sexual assault and Friedman, Nicole Fortier, and James Cullen domestic violence. The guidance offers eight in Crime in 2015: A Preliminary Analysis. Girls in the Juvenile principles for law enforcement to incorpo- Among the updated findings: Justice System rate into policies and training to ensure that VV Crime overall in the 30 largest cities in 2015 In response to the growing number of girls neither implicit nor explicit gender bias will remained roughly the same as in 2014. In who end up in the juvenile justice system, undermine efforts to keep victims safe and fact, our projections show a decrease of often following incidents of sexual abuse or hold assailants accountable. The principles 5.5 percent, meaning the crime rate will exploitation, OJJDP released a policy guid- include recognizing and addressing biases remain less than half of what it was in 1990. ance on girls and the juvenile justice system. and stereotypes regarding victims, treating VV The 2015 murder rate is projected to be The guidance presents eight focus areas where all victims with respect, and encouraging 14.6 percent higher than last year in the states, tribes, and communities can improve victims to participate in the investigation. 30 largest cities, with 18 cities experienc- their responses to girls. It also outlines OJJDP’s View and download the Justice Department’s ing increases and 7 decreases. However, commitment to providing training and tech- policing guidance on identifying and prevent- in absolute terms, murder rates are so low nical assistance, grants, research, and data ing gender bias in response to sexual assault that a small numerical increase leads to collection support to enhance the juvenile and domestic violence. Read the gender bias a large percentage change. Even with the justice field’s ability to better understand and policing guidance fact sheet. Read OJJDP’s 2015 increase, murder rates are roughly the meet the needs of girls. policy guidance on Girls and the Juvenile same as they were in 2012. Since murder Juvenile Justice Reforms for Girls, a Justice System. rates vary widely from year to year, one report released by the National Crittenton year’s increase is not evidence of a coming Foundation in partnership with the National wave of violent crime. Women’s Law Center, presents research using VV A handful of cities have seen sharp rises OJJDP data which shows that, in the last two in murder rates. Just two cities, Baltimore decades, girls’ share of the juvenile justice and Washington, D.C., account for almost population has increased at all stages of the 50 percent of the national increase in system. Key findings from the report show murders. These serious increases seem that between 1992 and 2013: to be localized, rather than part of a June 2016 71 CONTRIBUTORSDEPARTMENT To This Issue
Melissa A. Alexander Lauren Duhaime Christopher T. Lowenkamp Chief U.S. Probation Officer, Middle District Research Associate, CSR Incorporated. Social Science Analyst, Probation and Pretrial of North Carolina. Ph.D., University of Texas Previously, Graduate Research Assistant, Services Office, Administrative Office of the Southwestern Medical Center. Co-author of Center for Advancing Correctional Excellence. U.S. Courts. Ph.D., University of Cincinnati. “Driving Evidence-Based Supervision to the M.A., George Mason University. Co-author of “Towards an Empirical and Next Level.” Perspectives, the Journal of the Theoretical Understanding of Offender American Probation and Parole Association Maximilian Edelbacher Reinforcement and Punishment,” Federal (Spring 2015). Chair of the Vienna Liaison Office of ACUNS Probation (June 2015). at UNO. Previously, Chief of the Major Crime Kristin Bechtel Bureau in Vienna, Federal Police of Austria. Catherine D. Marcum Managing Associate, Crime and Justice Co-author of Corruption, Fraud, Organized Associate Professor, Appalachian State Institute. M.S., University of Missouri—Kansas Crime & the Shadow Economy (2015) and University. Ph.D., Indiana University City. Co-author of “A Meta-Analytic Review of Collaborative Policing (2015). of Pennsylvania. Pretrial Research: Risk Assessment, Bond Type, and Interventions” (2016). Anthony W. Flores Kimberly Meyer Assistant Professor, California State University, Graduate Research Assistant, George Mason Tammatha A. Clodfelter Bakersfield. Ph.D., University of Cincinnati. University Center for Advancing Correctional Assistant Professor, Appalachian State Author of “The Importance of Measuring Excellence. M.P.A., American University. University. Ph.D., University of North Carolina Offender Change,” Criminology & Public Co-author of “Community Corrections at Charlotte. Co-author of “Improving Policy (April 2016). Administration and Management” in probation officer effectiveness through Encyclopedia of Public Administration and agency-university collaboration,” Criminal Jefferson E. Holcomb Public Policy (2015). Justice Studies, 27(3), 2014. Associate Professor, Appalachian State University. Ph.D., Appalachian State Bailey Pendergast Thomas H. Cohen University. Co-author of Criminal Justice: The Intern, Probation and Pretrial Services Office, Social Science Analyst, Probation and Pretrial Essentials (2015). Administrative Office of the U.S. Courts. Services Office, Administrative Office of the Undergraduate at the University of Maryland, U.S. Courts. Previously, Statistician, Bureau Alexander M. Holsinger College Park. of Justice Statistics. Ph.D., Rutgers University Professor of Criminal Justice & Criminology, School of Criminal Justice. J.D., University University of Missouri—Kansas City. Ph.D., Tara N. Richards of Maryland School of Law. Co-author University of Cincinnati. Co-author of Assistant Professor, University of Baltimore. of “The Neglected ‘R’—Responsivity and “PCRA Revisited: Testing the Validity of the Ph.D., University of South Florida. Co-author the Federal Offender,” Federal Probation Federal Post Conviction Risk Assessment” of “An Updated Assessment of Personal (September 2014). (2015). Protective Order Statutes in the United States: Have Statutes Become More Progressive in David Cook Peter C. Kratcoski the Past Decade?” in Violence Against Women Social Science Analyst, Probation and Pretrial Emeritus/Adjunct Professor, Kent State (forthcoming, 2016). Services Office, Administrative Office of the University, OH. Ph.D., Pennsylvania State U.S. Courts. M.S., Purdue University; M.A., University. Co-author of Collaborative Niquita M. Vinyard University of Maryland. Policing: Police, Academics, Professionals and Senior U.S. Probation Officer, U.S. Probation/ Communities Working Together for Education, Eastern District of Missouri. Ph.D. candidate, Training, and Program Implementation (2015). University of Missouri St. Louis. 72 FEDERAL PROBATION Volume 80 Number 1
Scott W. VanBenschoten Alese Wooditch Chief, Program Development Branch, Doctoral Candidate and Graduate Research Probation and Pretrial Services Office, Assistant, George Mason University. Administrative Office of the U.S. Courts. Formerly, Intelligence Analyst, Office of M.S.W., Virginia Commonwealth University. Labor Racketeering and Fraud Investigation, M.P.A., The American University. Co-author U.S. Department of Labor. M.S., Penn State of “Does the Risk of Recidivism for Supervised University. Co-author of “Using Space- Offenders Improve Over Time? Examining Time Analysis to Evaluate Criminal Justice Changes in the Dynamic Risk Characteristics Programs: An Application to Stop-Question- for Offenders under Federal Supervision,” Frisk Practices,” in Journal of Quantitative Federal Probation (Sept. 2014). Criminology (June 2015). United States Government INFORMATION Order Processing Code *5876
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