Handbook of Issues in Criminal Justice Reform in the United States 303077564X, 9783030775643

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Elizabeth Jeglic Cynthia Calkins   Editors

Handbook of Issues in Criminal Justice Reform in the United States

Handbook of Issues in Criminal Justice Reform in the United States

Elizabeth Jeglic  •  Cynthia Calkins Editors

Handbook of Issues in Criminal Justice Reform in the United States

Editors Elizabeth Jeglic Department of Psychology John Jay College of Criminal Justice New York, NY, USA

Cynthia Calkins Department of Psychology John Jay College of Criminal Justice New York, NY, USA

ISBN 978-3-030-77564-3    ISBN 978-3-030-77565-0 (eBook) https://doi.org/10.1007/978-3-030-77565-0 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

This Handbook is dedicated to the scholars, researchers, and organizations working to reform and improve the criminal justice system.

Acknowledgements

We would like to thank Kseniya Katsman for her incredible dedication and assistance in the publication of this Handbook.

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Contents

1

 Introduction: The Need for Criminal Justice Reform��������������������������    1 Elizabeth L. Jeglic and Cynthia Calkins

Part I Policing 2

Policing American Cities: Crisis and Reform from the Seventeenth to the Twenty-First Centuries����������������������������   13 Gregory “Fritz” Umbach

3

 The Psychology of Race and Policing����������������������������������������������������   41 Kimberly Barsamian Kahn and Emma E. L. Money

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 Enhancing Police Accountability and Legitimacy��������������������������������   57 Daniel L. Stageman

5

 Victim-Oriented Police Reform: A Comparative Perspective��������������   79 Craig Paterson

6

 The Future of Police Reform������������������������������������������������������������������   97 Rachel Harmon and Scott Harman-Heath

Part II Policy and Sentencing 7

 Unfinished Innovation: American Sentencing Guidelines ������������������  113 Steven L. Chanenson and Kristi Arty

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 Racial, Ethnic, Gender, and Economic Sentencing Disparity��������������  127 Peter S. Lehmann and Anna I. Gomez

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Bail Reform in the United States: The What, Why, and How of Third Wave Efforts��������������������������������������������������������������  143 Samantha A. Zottola, Sarah E. Duhart Clarke, and Sarah L. Desmarais

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10 Case  Prosecution: Race, Justice, and Decision-Making ����������������������  171 Don Stemen 11 Juvenile Sentencing Reform��������������������������������������������������������������������  193 Riane M. Bolin 12 Risk Assessment in Sentencing ��������������������������������������������������������������  213 Anne Metz and Matthew Adams 13 Criminal  Justice Policy Reform Through Researcher–Practitioner/Policymaker Partnerships����������������������������  231 Kaylee Noorman, Julie Brancale, and Thomas G. Blomberg Part III Supervision and Reentry 14 The  History of Probation and Parole ����������������������������������������������������  257 Karol Lucken 15 Probation  and Parole: From Control to Case Management����������������  275 Lacey Schaefer and Sally Brewer 16 Reimagining  Probation Reform: Applying a Coaching Model to Probation Departments ����������������������������������������������������������  291 Brian K. Lovins, Lori A. Brusman Lovins, and Edward J. Latessa 17 Juvenile  Probation Reform: Moving from Surveillance to Effective Intervention��������������������������������������������������������������������������  307 Emily Haney-Caron and Sydney Baker 18 Prisoner Reentry Programs��������������������������������������������������������������������  335 Damon M. Petrich, Francis T. Cullen, Heejin Lee, and Alexander L. Burton 19 The  Pendulum of Community Supervision: The Emergence of RNR, Working Alliance, and Motivational Factors as a Means to Improve Supervision��������������������������������������������������������  365 C. J. Appleton, Benjamin J. Mackey, Sarah Skidmore, JoAnn S. Lee, and Faye S. Taxman 20 Paroling  Authorities and the Challenge of Leverage in an Era of Chronic Mass Incarceration����������������������������������������������  399 Edward E. Rhine Part IV Treatment 21 A  History of Psychological Treatment in the Criminal Justice System ��������������������������������������������������������������  421 Liam E. Marshall and Rebecca Fisico

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22 New  Directions in the Treatment of Justice-­Involved Individuals with Severe Mental Illness��������������������������������������������������  443 Daniel Samost, Junseon Hwang, and Philip T. Yanos 23 Treatment  of Individuals Who Have Offended Sexually: An Update on Evidence-Based Practice������������������������������������������������  463 Pamela M. Yates and Drew A. Kingston 24 T  rauma-Informed Treatment Practices in Criminal Justice Settings��������������������������������������������������������������������  483 Jill S. Levenson, David S. Prescott, and Gwenda M. Willis 25 Education Programs��������������������������������������������������������������������������������  503 Valerie A. Clark 26 Treatment  of Juvenile Offenders: Toward Multisystemic Risk and Resource Management������������������������������������������������������������  517 Yasmin Ali, Amanda C. Benjamin, and Mark R. Fondacaro 27 Therapy  with Exonerated Clients: Domains of Need ��������������������������  541 Kirk Heilbrun, Claire Lankford, Sarah Fishel, and Jennifer Schwartz 28 The  Role of the Criminal Justice System in Substance Abuse Treatment����������������������������������������������������������������  559 Holly Ventura Miller and Kristina M. Lopez Part V Alternatives to Incarceration 29 Prevention  and Criminal Justice Reform����������������������������������������������  583 Alexandra Ponce de Leon-LeBec and Mark R. Fondacaro 30 P  olice-Led Diversion Programs: Rethinking the Gateway to the Formal Criminal Justice System ������  599 Peter Neyroud, Eleanor Neyroud, and Sumit Kumar 31 Prosecutorial Diversion Programs����������������������������������������������������������  621 Leon Sawh, Charlotte N. Goff, and Matthew W. Epperson 32 Drug  Courts: The Good, the Bad, and the Misunderstood������������������  637 Douglas B. Marlowe 33 Mental Health Courts������������������������������������������������������������������������������  659 Karen A. Snedker 34 Alternatives to Youth Incarceration ������������������������������������������������������  685 Anthony Petrosino, Trevor Fronius, and Justine Zimiles 35 Electronic  Monitoring as an Alternative to Incarceration as Part of Criminal Justice Reform ��������������������������  701 Leah E. Kaylor

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36 Restorative  Justice and Criminal Justice Reform: Forms, Issues and Counter-Strategies����������������������������������������������������  717 Giuseppe Maglione Part VI  Conclusions: The Path Forward 37 The  Future of Criminal Justice Reform������������������������������������������������  739 Elizabeth L. Jeglic and Cynthia Calkins Index������������������������������������������������������������������������������������������������������������������  753

Chapter 1

Introduction: The Need for Criminal Justice Reform Elizabeth L. Jeglic and Cynthia Calkins

Abstract  The United States currently has the highest incarceration rate in the world. At present, there are some 2.3 million people in American prisons and jails— a 500% increase over the last four decades. In this introduction to the Handbook of Issues in Criminal Justice Reform in the United States, we will review how tough crime policies have exacerbated racial inequity and poverty, leading to mass incarceration and bringing the criminal justice system to a breaking point. Bringing together experts from diverse disciplines, we  propose a holistic framework for reforming the criminal justice system focusing on five main domains: (1) policing; (2) policy/sentencing; (3) reentry; (4) treatment; and (5) alternatives to incarceration. This introduction will conclude with a review of seminal reform issues that will address the five domains of the Handbook. Keywords  Criminal justice system · Reform · Systematic oppression · Racial injustice This handbook was conceptualized prior to the global COVID-19 pandemic and the 2020 death of George Floyd in the United States, which spurred Black Lives Matter (BLM) protests not only across the nation but throughout the world. These protests harnessed a reckoning on America’s history of systematic racism and oppression of minorities, and in particular Black people. While racial injustice is not something new to America, it has largely gone unaddressed. However, movements such as BLM have highlighted the racial injustices permeating the fabric of our culture and the systems upon which our country is built—the most glaring and consequential example being the racial discrimination that exists within our criminal justice system. The criminal justice system in the United States is currently at a crossroads, and there is momentum to impart change and reform in order to correct racial inequities and disparities and use data-driven, humane, and theoretically sound policies and practices. The way we choose to move forward at this defining moment as a E. L. Jeglic (*) · C. Calkins John Jay College of Criminal Justice, New York, NY, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_1

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culture and as a society will ultimately impact the future of our nation and reverberate throughout the world. The United States has the highest incarceration rate in the world, locking up more individuals per capita than any other nation (Sawyer & Wagner, 2020). Specifically, 20% of all the individuals incarcerated globally are incarcerated in the United States (Wagner & Bertram, 2020). As of 2020, there were 2.3 million people incarcerated in US state and federal jails and prisons, representing a 500% increase from the 1970s to 2014 (The Sentencing Project n.d.). It means that out of every 100,000 Americans, 698 are in prison or jail—which represents 0.7% of the population. While this rate of incarceration may appear astronomical, it actually represents somewhat of a decline from its peak between the years 2006 and 2008, when the rate of incarceration was 1000 per 100,000 adults (Gramlich, 2018). These statistics are even more alarming for people of color, who are disproportionately impacted by mass incarceration. Black men are incarcerated at a rate five times that of White men, and in Iowa, Minnesota, New Jersey, Vermont, and Wisconsin, the rate is 10 to one. In 12 U.S. states, more than half the prison population is Black (Nellis, 2016). While ethnicity within the criminal justice system has not been as consistently documented as race, disparities are also observed among the Latino population in the United States. The most recent statics suggest that Latino men are being incarcerated at 1.4 times the rate of White men across the United States and up to 3 or 4 times the rate in some northeastern states (e.g., New York, Massachusetts, Connecticut, and Pennsylvania; Nellis, 2016). Racial bias is also evident in policing. While the over-policing of racial and ethnic minorities is not a new phenomenon, racial bias in policing has been at the forefront of national discussions since the 2014 shooting of Michael Brown, a Black man, by a White police officer in Ferguson, Missouri. DeGue, et al. (2016) examined the use of lethal force by law enforcement in 17 U.S. states between the years 2009 and 2012, finding that Black individuals were overrepresented in the number of fatalities and were 2.8 times more likely to be killed by law enforcement than White individuals. This overrepresentation in police killings occurred despite the fact that Blacks were less likely to be armed as compared to both Whites and Latinos. Similarly, data show that Blacks and Latinos are disproportionately targeted by Stop-and-Frisk policies. For example, the New York City Police Department (NYPD) stopped over five million pedestrians—85% of whom were Black or Latino—over a 17-year period (NYCLU, 2020). A recent study found that being Black or Latino also increased the likelihood of being frisked and subjected to non-­ weapon force during a pedestrian stop (Levchak, 2021). Intertwined with all of this is poverty. Poverty is both the chicken and the egg of mass incarceration (DeFina & Hannon, 2013). For example, males born into the lowest-earning 10% of the population were 20 times more likely to be incarcerated by their early 30s than those born to the top 10% of income earners (Looney & Turner, 2018). Data further show that those who are incarcerated earned 41% less than non-incarcerated individuals prior to their prison sentence (Rabuy & Kopf, 2015). Incarceration has many negative consequences to the individual, including but not limited to the loss of personal freedom, job loss, severed family connections,

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housing loss, and monetary hardship (Western, 2019). There are also collateral consequences to the families and communities of those who are incarcerated—such as poverty, decreased educational attainment, behavioral and mental health problems, and stigmatization—which disproportionately impact minoritized and economically disadvantaged individuals (Adams, 2018; Wildeman et  al., 2019). Further, society as a whole is burdened by the cost of incarceration both on humanitarian and financial levels (Brown et al., 2016). Of the 2.3 million incarcerated, 44,000 are minors being housed in juvenile detention centers and 4671 are youth under the age of 17 who are serving time in adult correctional facilities (Sawyer & Wagner, 2020). The juvenile justice system emerged in the late 1800s because it was recognized that juveniles are different. Considered less blameworthy and more deserving of rehabilitation, progressives of the era recognized juveniles still developing cognitive capacities. Indeed, while at the time of its creation neuropsychological data were not available, these progressives were correct in their assumptions, as adolescent brain research shows that the adolescent’s prefrontal cortex—the area that brain’s executive functioning—is not fully developed until early adulthood, impacting impulse control, emotional regulation, and risk-taking behaviors (Bonnie & Scott, 2013). Sadly, attitudes toward youth have also become more punitive over time despite general recognition that rehabilitation is possible for youth and awareness that the detention of youth may actually increase their recidivism risk over time (Walker & Herting, 2020). Emerging evidence suggests that youth are best rehabilitated in the community (McCarthy et al., 2019), and thus criminal justice reform must also address reform of the juvenile justice system. This era of mass incarceration has been recognized as a crisis for America, and consequently, criminal justice reform is one of the few issues in US society that has bipartisan support. The COVID-19 pandemic that began in 2020 pushed this issue even more to the forefront as large numbers of correctional staff and inmates were infected with the virus amid growing awareness that jails and prisons were amplifiers of viral spreading. Prior to the pandemic, laws were being passed to reform the criminal justice system, and for the first time in decades, we began to see decreases in incarceration rates. The pandemic ushered in a period of further decarceration, as prisons and jails began to release those with complex medical issues, those nearing the end of their sentences, and those jailed for non-violent or misdemeanor crimes. Perhaps most importantly, rates of prison admission slowed (Widra, 2021). The push at both the state and federal level to decrease the jail and prison population continues, and many organizations are working to make system-level changes. Criminal justice reform is one of the very few bipartisan issues that politicians can agree upon—granted, the “how” of reform is still debated. Further, reforming the criminal justice system has garnered tremendous media attention in the last several years, and there is support for system-level change from the political arena, government organizations, not-for-profit organizations, the music industry, Hollywood, and major sporting organizations. While jail and prison populations are lower now than they were pre-pandemic, these early efforts at decarceration have not been sustained, and many jails remain over-populated (Widra, 2021). The time is ripe to

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do something. While there has been a call to decrease the prison population by 50%, at the current rate of decarceration, it will take 75 years (until 2093) to reach that goal, and that is simply unacceptable (Ghandnoosh, 2018). An area of the criminal justice system that is often overlooked when reform is discussed is supervision and reentry. Currently in the United States, 4.6 million individuals are under community supervision on either probation or parole (Porter, 2021). This is double the number of individuals behind bars and equates to approximately one in 58 adults or almost 2% of the entire US population (Horowitz; 2018; Kaeble & Alper, 2020). The tough on crime laws of the 1980s not only increased the number of incarcerated individuals but also increased the number of people under community supervision. Between 1980 and 2016, the number of people under the supervision of parole and probation increased 239%. Like the prison population, the number of people under community supervision peaked in 2007 but has also been gradually decreasing since then. The original goal of the probation system was rehabilitation, and for the first 150 years of its existence, probation officers used a social work orientation in the work they did with their clients (Ruhland, 2020; Taxman, 2012). As the focus of the penal system changed from rehabilitation to punishment throughout the 1970s and 1980s, so too did the role of probation. With burgeoning caseloads, parole and probation officers were no longer serving as agents of prosocial behavioral change but rather as law enforcement officers checking to make sure those on their caseloads were complying with their court-ordered conditions and protecting public safety through containment and monitoring (Ruhland, 2020). While there has been somewhat of a movement back to case management, the integration of the roles of therapist and law enforcement officer (what is sometimes referred to as a “synthetic officer”) is currently the dominant orientation within the field, with the collection of supervision fees now included as part of their job duties (Miller, 2015; Ruhland, 2020). Reform within community corrections has received less attention than that of policing and sentencing reform. However, reformers within community corrections see the momentum from the criminal justice reform movement as an opportunity to capitalize on an existing movement to make data-­ driven systemic changes to parole and probation as well (Horowitz, 2018). However, we would be remiss to address criminal justice reform without considering the revolving prison doors. Almost all (95%) of incarcerated individuals will re-enter society at some point (James, 2015). However, over two-thirds of these offenders will be reincarcerated within 3 years of their release and more than three quarters within 5 years of release from prison (James, 2015). While the original purpose of prison was rehabilitation, in the late 1970s and 1980s these rehabilitative ideals were deemed naïve, and the focus of incarceration turned to punishment. Consequently, many rehabilitative programs were abolished (Phelps, 2011). At present, only about 15–20% of addicted inmates receive substance abuse treatment while in prison (Chandler et al., 2009). Lack of education and trouble at school is also linked to reoffending (Winkelman et  al. 2018), but many prisons no longer provide education programs. This is troubling given the fact that educational programs have the greatest impact on desistance from offending (Tewksbury et  al., 2000). Even if treatment programs are available, few are evidence based or

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evaluated to assess outcomes. Further, prisons and jails have also become the largest psychiatric facilities in the country, with up to 20% of prison inmates and 25% of those in jails reporting a serious mental illness (Hirschtritt & Binder, 2017). By default, the Los Angeles (LA) county jail is the biggest psychiatric facility in the country (Westervelt & Baker, 2020), followed closely by jails in New York City and Chicago. Many of these issues are exacerbated upon reentry when offenders return to the community and often lack post-incarceration support. Thus, reform of the criminal justice system must also address issues of treatment and reentry. Reforming the criminal justice system will not just involve changing laws and shutting prisons. Many of the issues that caused individuals to come into contact with the criminal justice system in the first place will still exist. Consequently, we also need to start from the ground up addressing inequities that influence who ends up in the system. This effort should be two-pronged. First, at a macrolevel, we need to work with communities to address social and racial inequality and build the infrastructure needed to support our most vulnerable citizens. On a microlevel, we need to identify individuals and families who are at risk due to issues related to poverty, trauma, mental health, substance abuse issues and provide services to help them address and cope with these issues more effectively. Only then can policy reforms be expected to have any sort of lasting impact. While the primary focus of criminal justice reform in recent years has been on issues related to policing, policy, and sentencing, true and meaningful reform of the criminal justice system must be holistic. To reduce the number of individuals jailed, detained, and imprisoned within the United States, changes need to be made not only to policy and sentencing, but reform is also necessary in the areas of reentry, treatment, and alternatives to incarceration. Mass incarceration did not happen overnight, and there is no simple fix. To make significant change, we have to reimagine the criminal justice system. Further, we now have decades of research on what works—and what does not work—and thus, we need to incorporate research and evaluation into all levels of the system. “Evidence-Based Practice” should not be a buzz word or phrase that is thrown around because it is popular, but rather evidence-­ based practices should be ingrained within the fabric of all that we do—and no policy or practice should be implemented without asking—“what is the research supporting that?” and “how will we evaluate its effectiveness?” But that is not enough—not only do we have to make sure that our policies and procedures are founded on cutting-edge research—we also have to make sure that any reforms that are put in place provide fair and equitable treatment for all regardless of race, ethnicity, age, sex, gender, sexual orientation, religious affiliation, and socioeconomic status. As such, the goals of this handbook are lofty: 1 . To provide history and context to the issue of criminal justice reform. 2. To highlight particular challenges to reform in each of the domains of policing, policy and sentencing, reentry, treatment, and alternatives to incarceration with an emphasis on issues related to racial, ethnic, and economic disparities. 3. To provide concrete, evidence-based recommendations for reform from leading multidisciplinary experts in the field on how to decrease incarceration rates,

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reduce racial, ethnic, and economic disparities, prevent recidivism, and help offenders successfully reintegrate into their communities. However, our contributors have risen to the challenge. This edited handbook is one of the first volumes dedicated to the complex issue of criminal justice reform. Given the scope and magnitude of the criminal justice system, we felt that it would be important to bring experts together from multiple fields to share their research and expertise and compile a multidisciplinary review of diverse issues involved in criminal justice reform. While we focus primarily on issues related to criminal justice reform in the United States, reforming criminal justice practices is an international issue. As such, our contributors come from around the globe and share experiences, practices, and cutting-edge research from the United Kingdom, Canada, Australia, and New Zealand. We believe that holistic reform of the criminal justice system should address the following five main domains: 1. Policing 2. Policy and Sentencing 3. Supervision and Reentry 4. Treatment 5. Alternatives to Incarceration Subsequently, we have divided the handbook into five parts that will address issues related to reform in each of the domains. In each domain, the reader will be presented with a brief overview or history of the domain and its role within the criminal justice system, and within each part, the reader will be provided with tangible data-­ driven, evidence-based recommendations from experts in the field delineating concrete reforms that can be instituted. The handbook begins with policing, which is often the first contact individuals have with the system. A history of policing in the United States will be reviewed, followed by a discussion of policing and race. Two proposed frameworks for policing reform, including the enhancement of police accountability and legitimacy and victim-oriented approaches to policing, will be discussed, culminating with a discussion on the future of policing reform. The second part will focus on policy and sentencing. Along with a presentation of the history of sentencing and sentencing legislation and guidelines, this part will highlight issues related to racial, ethnic, and gender sentencing disparities. As well, this part touches on bail reform, the intersection of race, class within case prosecution, the role of risk assessment in sentencing, juvenile sentencing reform, and criminal justice policy reform. Part III will review prisoner reentry and community supervision and include broad issues related to the parole and probation system. As with the other sections, a history of parole and probation within the criminal justice system will be presented, followed by discussions of issues related to case management, juvenile probation reforms, reentry programs, use of motivational interviewing strategies to engage individuals in treatment, and the role of probation officers within the reform movement. Part III will conclude with a discussion of the future

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of parole reimagined. The fourth part reviews correctional treatment, including its history and the role of evidence-based practices. Issues involved with offender treatment such as trauma, education programming, the treatment of youthful offenders, offenders with mental illness, and substance abuse treatment within the criminal justice will also be addressed. The final part will present alternatives to incarceration, including prevention programs, police and prosecutorial diversion programs, drug and mental health courts, electronic monitoring, alternatives to incarceration for young offenders, support programs for those who were wrongfully accused and exonerated, and a review of restorative justice initiatives. The handbook will conclude with a summary by the editors of the current state of criminal justice reforms within the United States, with recommendations for future research and reforms that will work to end mass incarceration and provide a more just and equitable criminal justice system for all.

References Adams, B.  L. (2018). Paternal incarceration and the family: Fifteen years in review. Sociology Compass, 12(3), Article e12567. https://doi.org/10.1111/soc4.12567 Bonnie, R.  J., & Scott, E.  S. (2013). The teenage brain: Adolescent brain research and the law. Current Directions in Psychological Science, 22(2), 158–161. https://doi. org/10.1177/0963721412471678 Brown, T.  N., Bell, M.  L., & Patterson, E.  J. (2016). Imprisoned by empathy: Familial incarceration and psychological distress among African American men in the National Survey of American Life. Journal of Health and Social Behavior, 57(2), 240–256. https://doi. org/10.1177/0022146516645924 Chandler, R. K., Fletcher, B. W., & Volkow, N. D. (2009). Treating drug abuse and addiction in the criminal justice system: Improving public health and safety. Journal of the American Medical Association, 301(2), 183–193. https://doi.org/10.1001/jama.2008.976 DeFina, R., & Hannon, L. (2013). The impact of mass incarceration on poverty. Crime & Delinquency, 59(4), 562–586. https://doi.org/10.1177/0011128708328864 DeGue, S., Fowler, K. A., & Calkins, C. (2016). Deaths due to use of lethal force by law enforcement: Findings from the National Violent Death Reporting System, 17 U.S. States, 2009-2012. American Journal of Prevention Medicine, 51(5S3), S173–S187. https://doi.org/10.1016/j. amepre.2016.08.027 Ghandnoosh, N. (2018). Can we wait 75 years to cut the prison population in half? The Sentencing Project. https://www.sentencingproject.org/publications/ can-­wait-­75-­years-­cut-­prison-­population-­half/ Gramlich, J. (2018, May 2). America’s incarceration rate is at a two-decade low. Pew Research Center. https://www.pewresearch.org/fact-­tank/2018/05/02/ americas-­incarceration-­rate-­is-­at-­a-­two-­decade-­low/ Hirschtritt, M. E., & Binder, R. L. (2017). Interrupting the mental illness–incarceration-recidivism cycle. JAMA, 317(7), 695–696. https://doi.org/10.1001/jama.2016.20992 Horowitz, J. (2018, October 31). 1  in 55 U.S. adults is on probation or parole. Pew Charitable Trusts. https://www.pewtrusts.org/en/research-­and-­analysis/ articles/2018/10/31/1-­in-­55-­us-­adults-­is-­on-­probation-­or-­parole James, N. (2015). Offender reentry: Correctional statistics, reintegration into the community and recidivism. Congressional Research Service. https://fas.org/sgp/crs/misc/RL34287.pdf

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Kaeble, D., & Alper, M. (2020). Probation and parole in the United States, 2017–2018. Bureau of Justice Statistics, U.S.  Department of Justice. https://www.bjs.gov/content/pub/pdf/ ppus1718.pdf Levchak, P.  J. (2021). Stop-and-frisk in New  York City: Estimating racial disparities in post-­ stop outcomes. Journal of Criminal Justice, 73, Article 101784. https://doi.org/10.1016/j. jcrimjus.2021.101784 Looney, A., & Turner, N. (2018). Work and opportunity before and after incarceration. The Brookings Institution. https://www.brookings.edu/wp-­content/uploads/2018/03/es_20180314_ looneyincarceration_final.pdf McCarthy, P., Schiraldi, V., & Shark, M. (2019). The future of youth justice: A community-based alternative to the youth prison model. US Department of Justice, National Institute of Justice. https://www.ojp.gov/pdffiles1/nij/250142.pdf Miller, J. (2015). Contemporary modes of probation officer supervision: The triumph of the “synthetic” officer? Justice Quarterly, 32(2), 314–336. https://doi.org/10.1080/0741882 5.2013.770546 Nellis, A. (2016). The color of justice: Racial and ethnic disparity in state prisons. The Sentencing Project. https://www.sentencingproject.org/publications/ color-­of-­justice-­racial-­and-­ethnic-­disparity-­in-­state-­prisons/ NYCLU. (2020). Stop-and-frisk data. https://www.nyclu.org/en/stop-­and-­frisk-­data Phelps, M.  S. (2011). Rehabilitation in the punitive era: The gap between rhetoric and reality in U.S. prison programs. Law & Society Review, 45(1), 33–68. https://doi. org/10.1111/j.1540-­5893.2011.00427.x Porter, N. D. (2021). Top trends in state criminal justice reform, 2020. The Sentencing Project. https:// www.sentencingproject.org/publications/top-­trends-­in-­state-­criminal-­justice-­reform-­2020/ Rabuy, B., & Kopf, D. (2015). Prisons of poverty: Uncovering the pre-incarceration incomes of the imprisoned. Prison Policy Initiative. https://www.prisonpolicy.org/reports/income.html Ruhland, E. L. (2020). Social worker, law enforcer, and now bill collector: Probation officers’ collection of supervision fees. Journal of Offender Rehabilitation, 59(1), 44–63. https://doi.org/1 0.1080/10509674.2019.1671571 Sawyer, W., & Wagner, P. (2020, March 24). Mass incarceration: The whole pie. Prison Policy Initiative. https://www.prisonpolicy.org/reports/pie2020.html Taxman, F.  S. (2012). Probation, intermediate sanctions, and community-based corrections. In J. Petersilia & K. Reitz (Eds.), The Oxford handbook of sentencing and corrections. Oxford University Press. https://doi.org/10.1093/oxfordhb/9780199730148.013.0000 Tewksbury, R., Erickson, D. E., & Taylor, J. M. (2000). Opportunities lost. Journal of Offender Rehabilitation, 31(1–2), 43–56. https://doi.org/10.1300/J076v31n01_02 The Sentencing Project. (n.d.). Criminal justice facts. https://www.sentencingproject.org/ criminal-­justice-­facts/ Wagner, P., & Bertram, W. (2020, January 26). “What percent of the U.S. is incarcerated?” (And other ways to measure mass incarceration). Prison Policy Initiative. https://www.prisonpolicy. org/blog/2020/01/16/percent-­incarcerated/ Walker, S. C., & Herting, J. R. (2020). The impact of pretrial juvenile detention on 12-month recidivism: A matched comparison study. Crime & Delinquency, 66(13–14), 1865–1887. https://doi. org/10.1177/0011128720926115 Western, B. (2019). Poverty, criminal justice, and social justice. IRP Focus, 35(3), 3–13. https:// www.irp.wisc.edu/wp/wp-­content/uploads/2019/11/Focus-­35-­3b.pdf Westervelt, E., & Baker, L. (2020, February 25). America’s mental health crisis hidden behind bars. NPR. https://www.npr.org/2020/02/25/805469776/ americas-­mental-­health-­crisis-­hidden-­behind-­bars Widra, E. (2021, February 3). How much have COVID-19 releases changed prison and jail populations. Prison Policy Initiative. https://www.prisonpolicy.org/blog/2021/02/03/ january-­population-­update/

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Wildeman, C., Goldman, A. W., & Lee, H. (2019). Health consequences of family member incarceration for adults in the household. Public Health Reports, 134(1_suppl), 15S–21S. https:// doi.org/10.1177/0033354918807974 Winkelman, T. N. A., Chang, V. W., & Binswanger, I. A. (2018). Health, polysubstance use, and criminal justice involvement among adults with varying levels of opioid use. JAMA Network Open, 1(3), Article e180558. https://doi.org/10.1001/jamanetworkopen.2018.0558

Part I

Policing

Chapter 2

Policing American Cities: Crisis and Reform from the Seventeenth to the Twenty-First Centuries Gregory “Fritz” Umbach

Abstract  The history of policing in America cities since the colonial period has been shaped by the country’s distinctive legal culture and political traditions (leading to fragmented, local control), by power struggles of class, ethnicity, and race (leading to corrupt, unequal, and often abusive policing), but also by cycles of reform (leading to distinct eras of policing styles). Urban policing has both reflected larger historical forces and trends—including industrialization, demographic change, capitalist transformation—and become one itself, shaping the outcomes of social conflict and much of the daily lives of city residents. Technological change, likewise, has remade both the legal relationship between citizens and law enforcement and the supervisory relationship between police officers and police administrators. Awareness of this broader history underscores the malleability of seemingly fixed cultural concepts—notably those of race, rights, and resistance—as well as highlights the possibility and limits of efforts to reform American policing. Keywords  Policing history · Police violence · Police corruption · Police reform

 olicing American Cities: Crisis and Reform P from the Seventeenth to the Twenty-First Centuries Breonna Taylor and George Floyd’s deaths at police hands galvanized a long-­ deferred reckoning in America over race and law enforcement that has left many pondering just what brought us to this national crisis. The history of policing in the United States sets the foundation for understanding not only our system of policing but also our national history. Past and present power relations cannot be mapped accurately, or honestly, without real attention to policing for at least the following G. F. Umbach (*) Department of History, John Jay College of Criminal Justice, New York, NY, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_2

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two reasons. First, the police have played key roles in labor and ethno-racial conflicts since the colonial period. Second, from the perspective of many citizens— particularly those at society’s margins—the police have often been the most obvious and immediate manifestations of the state and its power. And so, any narrative of the American experiment that does not consider policing—both today and historically—will fall short. Nor can Americans understand—let alone change—policing today without an awareness of the past and its legacies. We often hear that the police don’t change because the police can’t change. That sound bite is both arresting and far from true. In reality, American policing has experienced frequent and profound changes since its beginning. Knowing the nature of those transformations allows us to expand the horizon of possibility for progress while also calibrating our expectations in light of reform’s long and unhappy record of unintended consequences. In short, problems that seemingly call out for radical change today often have their roots in yesterday’s successful progress. From a global perspective, four characteristics have distinguished American policing. These traits spring chiefly from our English political heritage. The first of these four is a tradition of limited police authority in comparison to other industrialized democracies. Anglo-American legal practices have historically checked government power even as they privileged individual liberty. The Bill of Rights embodies this dynamic and now curtails much that the police can do legally. In contrast, European police have significantly greater legal might. Germans today, for example, must carry identity papers and produce them for officers upon demand. French law, similarly, empowers police to make arrests for speech or behavior aiming to undermine the “dignity” of public servants, including that of professors, nurses, transit workers, and police officers themselves. Such laws and practices would be infringements of constitutional liberties in America. But if America has traditionally limited police authority, but has also armed its law enforcement with not just more weapons in greater variety than any other industrialized democracy, but also given officers wide discretion in their use—often with tragic results (Balko, 2013; Hirschfield, 2020). The second feature is America’s custom of local control of law enforcement. Washington has surprisingly little leverage over local police departments that, for the most part, report to locally elected officials. State governments have somewhat more—but still quite constrained—power. Nearly every other country in the world, in contrast, centralizes control over their policing system, with a single police force or, less commonly, a handful of forces with differing responsibilities—and all accountable to national authorities. In America, only lawsuits, federal dollars, and Department of Justice consent decrees (discussed below) have worked in ways akin to national control over law enforcement. This second feature leads to the third: our country’s highly fragmented system of policing. Americans’ historic suspicions of centralized authority and states’ demands for autonomy under federalism have left us with a patchwork of nearly 18,000 law enforcement agencies. As a bulwark against distant tyranny—the bugbear of the early Republic’s political imagination—such a hodge-podge possessed

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certain strengths: neither homegrown authoritarians nor invading potentates could readily seize the levers of power. And so today rather than a centralized police administration establishing and enforcing consistent standards nationally, our thousands of police departments operate with very minimal coordination between them and, with a few exceptions, next to no national regulation over them. Even our neighbor and closest competitor for fragmented policing—Canada—manages with fewer than 300 hundred law enforcement agencies (Connor et al., 2019). The fourth feature stems from the Progressive era’s faith (on both side of the Atlantic) in the social value of applying expertise to practical matters, including the daily work of police. As the noted policing scholar David H. Bayley has observed, “the United States has explicitly harnessed science, in the sense of empirical evaluation, to policing” (Bayley, 2008, p. 15). And such scrutiny of law enforcement—is it effective? is it fair?—is most frequently done by scholars and specialists outside of not just the police but also government itself. Up until very recently, this Anglo-­ American tradition was nearly unique globally; intelligentsia elsewhere traditionally kept their distance from policing’s shady politics and messy realities, limiting attention to such matters instead to legal abstractions (Bayley, 2008). And so, when police reform does happen in America, outsiders frequently engineer it; rarely have the police reformed themselves. Sometimes, as we will see, these reforms have succeeded (for a while at least) precisely because they originated from outside police departments; other times they have failed for those very same reasons. Broadly, then, the distinctive traits of American policing have shaped progressive efforts, applying the brakes or pressing the gas on reforms—and often determining their success.

Early Law Enforcement English settlers to what became the United States brought with them a tradition of law enforcement that had evolved unsystematically over centuries and not only employed a mix of constables, sheriffs, and justices of the peace but also, importantly, relied upon private citizens’ independent pursuit of offenders and initiation of criminal cases. This Old-World legacy carried over into the New until the mid-­ nineteenth century (Walker, 2018, Chapter two). Just when there emerged something resembling our modern understanding of police as police is a matter of scholarly debate. Much of the problem springs from differing notions of what constitutes modern policing. While any definition attracts adherents and detractors, what follows here assumes that when we say “the police” today we mean a state-recognized institution possessing four qualities: first, city or county-wide jurisdiction (rather than only the town’s market or docks); second, 24-h responsibility (rather than only a “night watch”); third, paid personnel on a salary basis (rather than volunteers or agents working on commission); and fourth, a single organization responsibly for preventing most crimes (rather than authority to respond to a narrow range of crimes) (Williams, 2014, Chapter two).

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A recent entrant into debates over American policing’s origins has been the contention that today’s police as an institution collectively evolved from—and so preserve racist elements of—slave patrols (Jabali, 2020). In some ways, this is not an entirely new observation. As early as 1904, famed scholar W. E. B. DuBois noted that “a system of rural police” was devised to control slaves (DuBois, 1904). But were such patrols our first police and do they represent a racist “original sin” that is now encoded into the DNA of modern policing, as some now assert? Slave patrols as they developed in the south were undoubtedly the first institutions to make significant steps toward policing in the modern sense, eventually taking on many of the aforementioned four qualities. They had a broad geographical jurisdiction and ultimately adopted regular pay for their riders, becoming the first publicly funded agencies in the American South. So, slave patrols did, in fact, come fairly close to today’s understanding of policing—particularly the Charleston Watch and Guard which lacked only the criteria of round-the-clock service of modern police departments. (Williams, 2014, Chapter two). But slave patrols also did not initially serve as an exercise in “racecraft”—that evocative and insightful term of African-American historians Barbara and Karen Fields describing the ways in which social practices that enact racial hierarchy can create the illusion of race (Fields & Fields, 2014). The first reason slave patrols did not function as racecraft is that at their birth in 1704 (Hadden, 2001, p. 19), and for much of their existence White Americans had not yet adopted coherent ideologies of either race or anti-­ Black racism, which would not emerge as widespread patterns of thought until the middle of the eighteenth century—as scholars have long noted (Fredrickson, 2002). Second, such patrols pursued not just runaway enslaved Blacks but also runaway indentured Europeans (and masters of enslaved or indentured runaways used remarkably similar language when placing newspaper advertisement for their return). In Georgia, similarly, slave patrols’ responsibilities included routinely disciplining unruly Whites as well as slaves (Reichel, 1988). Third, in places free Blacks rode on slave patrols alongside Whites.1 Notably, the particular structural forms slave patrols took on—and so might have passed on to future iterations of policing—came not from the requirements of pursuing runaways but instead were borrowed from local militias (even if the new Slave Codes defined their duties). Nor is there evidence that slave patrols were much on the mind of those who established early police departments. When, for example, the first unquestionably modern police force in America—New York City’s Municipal Police—formed in 1845, its superintendent found himself widely mocked, according to the New York Herald, for plagiarizing a longwinded speech, “word for word from a manual of instructions to the Liverpool police, published some half dozen years ago” (“City Intelligence,” 1845). In short, the establishment of modern  For slave patrols generally, see (Hadden, 2001); for free Blacks riding in slave patrols, see p. 73; for women, see p. 103. Scholars of the Transatlantic Slave Trade might also note that for many enslaved Blacks, slave patrols were the second institution aiming to police their behavior. The first was often other enslaved Africans (frequently women) who kept order below decks on the Middle Passage through the use of arms. See (Smallwood, 2007). 1

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policing in America looked not south across the Mason-Dixon to slave patrols but rather across the pond to British models. Drawing a straight line from policing today backwards to slave patrols misunderstands both how people in the past understood their own worlds and how policing developed. No doubt slave patrols, like much of life in the South, eventually did serve the oppressive racecraft of Whites and become what historian Sally Hadden describes as a “racially focused” form of law enforcement. That development, however, only came after the broad institutional outline of patrols had already been established. It is perhaps best to think of slave patrols not so much as the start of American policing, but as a “transitional” form of law enforcement that preserved elements of the earlier, more informal style while also adopting aspects of “modern” policing (Hadden, 2001, pp. 3–4; Reichel, 1988). For eighteenth-century Americans, the most important law enforcement official was the sheriff, appointed by a colony’s governor and responsible for a wide range of duties far beyond what police do today. Sheriffs not only enforced the law, but also collected taxes, maintained bridges, and oversaw elections. Less powerful but closer to our idea of police today were colonial “watchmen” who patrolled against fire, disorder, and crime. Civic duty, following English tradition, obliged all adult males to serve in the watch. Many, however, shirked the obligation by paying substitutes; others frequently showed up to posts drunk or not at all—eventually necessitating paid and essentially privatized forces (Walker, 2018, Chapter two). Contrary to popular imaginings, colonial law enforcement was no golden age of policing. It was, instead, corrupt, inefficient, and unable to pursue many offenders or prevent much crime. Victims had to seek out sheriffs or watchmen who—working on a fee system—had little incentive to investigate when other duties paid better and more reliably. It was not surprising then, that colonial cities were profoundly unruly, witnessing frequent public drunkenness and recurrent riots. What deterrence there was, in fact, emerged more frequently through—to use a contemporary criminological phrase—“informal control”: a neighbor’s rebuke, a parent’s condemnation. In the tightly knit, face-to-face communities where most colonialists lived, such penalties proved more powerful than the law itself. Indeed, “trials” for drunkenness and infidelity often unfolded not within courtrooms, but church congregations (Williams, 2014).

Modern Policing Arrives in America It would be easy to assume that police departments emerged in response to crime; crime that—it is equally easy to assume—became rampant amid urbanization and immigration. But modern policing’s birth in America is less a story of cops and robbers than of cops and disorder. In fact, for the many cities that established police departments in the middle of the nineteenth century—New York (1845); New Orleans and Cincinnati (1852); Philadelphia (1854); Chicago and Milwaukee (1855); and Baltimore and Newark (1857)—there is little evidence to suggest a crime wave triggered a need for police. Boston’s crime rates actually decreased in

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the decade before it started appointing police officers in 1838 (it wouldn’t form a police department until 1854), with the city witnessing only a single murder between 1822 and 1834 (Bacon, 1939, p.  455; Lane, 1968, p.  157; Richardson, 1974, pp.  79–80). Crime was of such little importance that Boston’s marshal made no mention of it in his 1824 report (Lane, 1967, p.  19). Rising crime, then, cannot explain the emergence of modern police departments in America. Likewise, when Gotham’s city fathers drew lessons from London as they established New York’s first police force, they were emulating a police department more focused on social order than street crime. London’s Metropolitan Police, frequently cited as the world’s first modern department, became the model for all of America’s newly established police forces in the North. Credit for the Metropolitans goes to Sir Robert Peel (1788–1850) who, as Home Secretary, crafted, and persuaded Parliament to pass, the necessary legislation. Peel’s earlier experience in colonial rule—he had overseen much of Britain’s regime in Ireland—shaped the creation of modern policing. Peel’s efforts in developing the Irish Constabulary—the Crown’s quasi-military force in the country—had taught him first-hand that foreign conquerors of rebellious populations rule more successfully through public legitimacy than by pure might. Peel, accordingly, aimed for London’s new police force to avoid the visible trappings of a “tyrannical standing army.” Their swallow-tail blue uniforms would not resemble the infantry’s cropped red coats; their wooden truncheons would not invoke the army’s carbines; they would not be barracked like troops, but instead live as civilians in neighborhoods they policed; and, critically, they would be under politicians’, not generals’, control. And rather than guarding property, Metropolitans patrolled a beat—essentially inventing the institution of foot patrol that continues, if in reduced and modified form, today (W. Miller, 1999). Peel, however, never penned the nine principles of policing routinely attributed to him; twentieth-­century textbook writers invented those (Lentz & Chaires, 2007). But Parliament also did not create London’s “Bobbies” (a riff of Peel’s first name) because crime was widespread in the city. Instead, as historians have noted, Britain’s ruling class aimed to impose a “new standard of social discipline” upon London’s growing mass of industrial workers. And such elites were delighted when only days after the new force’s formation, the commissioner deployed squads, papers reported, to clear streets of “scenes of drunkenness, riot and debauchery” (Paley, 1989, p. 119). Similarly, in the United States, the new police forces in these years did not battle crime as we think of it today. The vast majority of police arrests in the second half of the nineteenth century were not for crimes against life, limb, or property. Instead, the police occupied themselves by making arrests for crimes against public order: drunkenness, vagrancy, loitering, and quite simply and subjectively, being a “suspicious person.” In Chicago, for example, three-quarters of the 1862 arrests were for “drunk and disorderly” conduct or for visiting brothels (Mitrani, 2013, p. 54). In other words, law enforcement was called upon to enforce culture. It was the behavior of the poor—their habits, pleasures, and manners—that law enforcement aimed to suppress.

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Such social control, critically, became possible only with modern police. Rather than waiting to receive complaints from victims, the police—their ranks far larger than that of town watches—now patrolled the streets searching for crime. And for the first time in American history, more arrests started with police officers than with citizens. Just how many of these new policing featured officers targeting the morals of the poor become apparent if we fast-forward to the early twentieth century when a number of cities introduced “golden rule” policies. These police departments instructed their officers not to arrest the inebriated but instead walk them home; the impact was immediate. Collars dropped by as much as 70%. And so, for the second half of the nineteenth century, policing public-order crimes was policing in the big city. Such details should remind us, as political scientist Alex Gourevitch (2015, p.  763) notes, that “broken windows” or “quality-of-life policing…is as old as policing itself” and “was never confined to a single race,” but instead targeted whomever occupied society’s lower rungs (Harring, 1983, p. 40; Richardson, 1974, pp. 79–80). Even if, however, the charges for such arrests were nearly always minor, the implications for policing were not. The shift to a regime of police-instigated arrests tilted the power balance between individuals and the government. The police became agents of urban elites anxious over threats from the “dangerous classes.” Critically, this era’s mass immigration meant the privileged perceived such threats in xenophobic and nativist terms, and so used the police to enforce social hierarchy. As historian Khalil Gibran Muhammad, author of The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2010), observes, cities hired officers “whose status was just a tiny notch better than the folks who they were focused on policing. And so the Anglo-Saxons are policing the Irish; the Germans are policing the Irish; the Irish are policing the Poles” (Abdelfatah, 2020). Such morality policing of minorities quickly slid into corruption as cops took to pocketing bribes to overlook violations. This intersection of discrimination, immigration, and police corruption gets distilled with particular clarity in New York City’s enforcement of its “Crimes Against Public Decency and Good Morals” law, also known as the Sunday Closing laws. On December third, 1882—the New York Times described it as a day “long to be remembered”—police swept with surprising zeal through largely Jewish neighborhoods, arresting 137 for peddling goods or services on a Sunday (“Penal Code Provisions: The Arbitrary Nature of the Sunday Laws,” 1882; “Sunday Under the Penal Code,” 1882). Because Jewish beliefs require businesses close Saturdays, police enforcing the long-ignored law put these minority enterprises at a competitive disadvantage: whereas non-Jews had to close their doors on only Sundays, Jews would have to close for 2 days and so lose sales. The decades-long battle over such closing laws revealed a clear pattern: “reform” and largely Protestant mayors enforced the law vigorously but when Irish Catholics dominated City Hall, enforcement evaporated—as long as Jewish peddlers forfeited $135 (in 2020 dollars) protection money to the police. Those who didn’t finf their carts or doors tagged with chalk as fair game for arrest—or worse. Clubbings and other forms of police brutality against Jews was commonplace in New York during these years (B.  Miller, 2003). Urban policing, then, was often less a war on

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dangerous crime, and more the enforcement of social pecking order—and an occasion for graft. Corruption, in fact, defined the era’s policing. Police officers everywhere both took money to evade their eyes and paid kickbacks to politicians for their positions; promotion to sergeant in New York, for example, required paying 2500$ in 2020 dollars (Ellis & Wong, 1997, p. 431). As historians have noted, police did not so much regulate vice as much as they licensed it, collecting bribes in a surprisingly formalized system. Prostitution, in particular, proved profitable for police. Vice districts, accordingly, flourished throughout urban America, with cops—and through them, politicians—taking their cuts. Indeed, policing was politics in the nineteenth century. It is fair to ask what went wrong with American policing, particularly in contrast to the London policing that had served as the model for many US police departments formed between 1845 and 1860. Comparative studies suggest that while the London Metropolitan Police preserved their independence from politics, and so could uphold professional standards that eventually won public respect, America’s police did not. Instead, they became part of big-city political patronage machines. In most US cities, local political ward leaders appointed the police brass in charge of their neighborhood. The ward leader was also frequently the local tavern owner, purveyor of prostitution, and power broker of youth gangs used to get out the vote and intimidate the opposition. Police, in such politicians’ pockets, assisted their patrons’ vice enterprises and joined vote-buying and ballot-box-stuffing schemes. Loyal party operatives, in turn, often became police officers (regardless of qualifications), completing the circle of corruption. And so whenever city hall changed hands, police departments—as spoils of victory—could see nearly their entire personnel turn over in a day, as happened in Los Angeles (1889), Kansas City (1895), and Chicago and Baltimore (1897) (Fogelson, 1977, p. 30). And because politicians were often—directly or indirectly—beholden to business interests, municipal police departments increasingly added strike-breaking to their duties. Union organizing and labor unrest grew in strength and achieved astounding gains in the United States during the late nineteenth century: New York witnessed 5090 strikes in the two decades after 1880, involving nearly a million workers; in Chicago roughly a half million workers engaged in 1737 strikes in the same period. Many of the era’s riots that left local elites unsettled were, in reality, labor actions. Striking-breaking paid multiple dividends to Gilded Age business interests: it was both cost-effective and politically useful, alchemizing in the public imagination issues of workers’ rights into questions of criminality. But police did more than break up strikes after they had started. Police officers made “public order” arrests to keep workers from organizing in the first place, with one historian estimating a majority of arrests in these years were low-level collars aimed at breaking up worker solidarity (Harring, 1983). In many cities, police exploited vaguely worded “Tramp Acts” criminalizing vagrancy in order to arrest both organized and unemployed workers. Illinois modified its law the year of the Great Railroad Strike of 1877 to allow police to “arrest vagrants on sight,” inspiring Chicago’s police Superintendent Michael Hickey to declare “tramps require the attention of police at

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all time” (Black, 2010; “Hickey’s Message, The Police Superintendent’s Report for Last Year,” 1878, p. 7).

Early Reform Efforts and Failures Corrupt police departments inevitably outraged voters in the late nineteenth century, unleashing—however briefly—a reform movement that managed to capture headlines and depose police commissioners and elected officials, but not much else. With little understanding of policing, these reformers had no vision beyond swapping out “bad people” (their political opponents) with “good people” (their political supporters) (Walker, 2018, p.  39). In New  York City, this flash-in-a-pan reform moment was triggered by a bewhiskered minister’s undercover trip to a cross-­ dressing bawdyhouse and a Chinatown opium den that were both protected by New York’s finest in return for their share of profits (Fronc, 2009, Chapter one). Rev. Charles H Parkhurst’s evidence from his underworld slummings eventually led to the 1894 Lexow Committee hearings that, in 10,000 pages, aired the filthy linen of corrupt political bosses and their criminal conspirators in the police department. The hearings also made clear this symbiotic web of corruption was not woven simply from victimless crimes of pleasure; consider the experience of Caela Urchittel, a Russian Jewish widow forcibly separated from her three children for 17 months amid trumped-up prostitution charges by police officers intent on petty shakedowns (Czitrom, 2016; Lexow, 1895, pp. 2964–2977). The Lexow scandals led to police resignations and firings, a drumming out of the mayor, and a rejiggering of the office of the board of police commissioners—but, no lasting reforms. Similar episodes happened in other American cities, but none produced meaningful changes— largely because these outside reformers lacked vision of what good policing might require. But these events embodied what would become a recurring pattern for the next eight decades: America’s local, democratic control of policing fostered corruption while its fragmented nature frustrated large-scale, coordinated reforms. But such corruption’s stubborn persistence did ultimately lead to the next wave of reform: the movement to “professionalize” police, starting around 1900. These reforms, which began within police departments, have had lasting impacts. Every time a police officer sits for a civil service promotional exam, fingerprints a suspect, radios headquarters, or steers a juvenile into a social program, they are fulfilling the hopes of early twentieth-century reformers. But the legacy of this reform moment has been complex, marred by unintended negative consequences and bound up with America’s racially charged imperial military ventures both on the frontier and in its colonies. At the turn of the century, reforming police executives—often appointed in scandal’s wake—endeavored to change police bureaucracy itself. Troubled by politicians’ corrupt embrace of departments, reformers sought to weaken politicos’ grip on police officers. If recruitment, hiring, and promotions could be both housed within departments themselves and be subject to objective criteria, reformers hoped

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cops would no longer owe their jobs and ranks to political operatives. Police staffing, accordingly, would become professional rather than political, akin to other skilled government careers. Educational achievements would now matter. Similarly, reformers sought to minimize politicians’ influence over police departments by altering precincts’ geographic shape so they would no longer be contiguous with political wards—diluting ward leaders’ power. Finally, reformers sought to reduce commanders “span of control” by introducing middle-level management to their organizational charts, allowing for closer supervision of officers (Walker, 1977, pp.  53–57; Williams, 2014, pp.  127–130). Technology—call boxes first, then radios—made these changes possible, while the street car and subway empowered commanders to shuffle officers around freely, to fit administrative convenience or foil corruption (Thale, 2004). Key to the professionalization movement was August Vollmer, frequently fêted as the “Father of Law Enforcement” in textbooks. Vollmer’s support for stringent officer recruitment standards and freedom from political interference won him few friends with police administrators reluctant to surrender their profitable fiefdoms in the name of principle. But Vollmer and the department he ran in Berkeley, California became darlings of the era’s progressive journalists, extending the reach of his reforms and protecting them from critical scrutiny. Vollmer advanced the idea of “scientific” policing as an antidote to the excesses of “political” policing; scientific crime fighters, hoped Vollmer, would be less susceptible to corruption. Essential to such policing, Vollmer argued to progressives, was the use of forensic science. Vollmer, in fact, pushed the idea of universal fingerprinting in the United States over the objections of civil libertarians and had a Berkeley Ph.D. student design the first polygraph machine (a now highly controversial technology employed in few countries), which Vollmer used frequently as chief of both the Berkeley and Los Angeles police departments (Crank & Langworthy, 1992; Olive, 2017). The resulting convergence between, on the one hand, “scientific policing” independent of political oversight, and, on the other, America’s tradition of fragmented policing had a profoundly deleterious effect. As law enforcement adopted forensic science in the 1920s and 1930s, police frequently established “own service” labs within each city’s department, all operating independently and with little regulation. In contrast, the European tendency— mirroring broader continental policing practice—has been to centralize and regulate forensic science labs and research (Crowther, 1988; Tilstone, 2006, pp. 27–29). The result has been not simply more opportunities for undetected mistakes and fraud in the United States, but also a fair amount of junk science deployed by both police and prosecutors—as a 2009 National Research Council report made clear (Cole, 2001; Strengthening Forensic Science in the United States: A Path Forward, 2009). Critics have observed that forensic science really has two wings. The first is scientific methods, such as DNA analysis, applied to forensics problems; the second is forensic methods invented by and for police departments—fingerprint analysis, bite and tire mark matching, and hair and fiber examination—that lack reliability because they have not been subjected to validation studies or have, in fact, been debunked completely by independent research. And it was that second wing—with all its inherent

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unfairness, inefficiency, and just plain quackery—that “scientific policing” pushed (Cole, 2001; Toobin, 2007). The extent to which professionalization-era police exploited dubious forensic science with limited oversight can shock contemporary sensibilities. Take, for example, the case of William Heirens, once the United States’ longest-serving living convict. Heirens, a petty burglar and child of impoverished European immigrants, was arrested as a teenager in 1947 for a trio of Chicago’ grisliest murders. Despite intense police interrogation—almost certainly including beatings—Heirens refused to confess for 3 days. On the fourth day, psychiatrists associated with the Scientific Crime Detection Laboratory—housed at Northwestern University but functionally under police control— injected him with sodium pentothal (“truth serum”) that officers and the lab had been experimenting with criminal investigations (Despres, 1947; House, 1931). Forced into a semiconscious delirium and restrained to a hospital bed, Heirens gave the police the admission of guilt they wanted while the assistant state’s attorney, concealed behind a screen, recorded the details. On the basis of that confession—and fragmentary fingerprint evidence— Heirens was convicted for the murders and remained behind bars for 65 years from 1947 until his death in 2012. Lawyers from Northwestern University’s Center on Wrongful Convictions concluded that more “prosecutorial misconduct, incompetent defense counsel, unprecedented prejudicial pretrial publicity, and junk science” tainted Heirens’ case than any of the Center had studied (Martin, 2012).2 Notably, when Vollmer and kindred professionalizing reformers sought to insulate police from politics, they relied upon their experiences in America’s wars for imperial control where military commanders frequently enjoyed significant autonomy. The emerging procedures and protocols that Vollmer and peers pioneered stateside reflected military practices deployed against rebels in the Philippines and Puerto Rico as well as against Native Americans on the frontier. As sociologist Julian Go has documented, close to half of professionalization-era police departments were led and manned by military veterans, often fresh from duty; Vollmer himself conducted counter-insurgency operations during the Philippine-American War (Go, 2020). And so, as policing changed its character from regulating order—making arrests for, say, public drunkenness or vagrancy—to preventing crime, officers increasingly drew upon a familiar repertoire of new tools developed in colonial wars: mounted patrol, data-collection and record-keeping on troublesome characters, pin-mapping, and even daily weapons drills. Internally, as well, the police increasingly and self-­ consciously reflected military models, becoming more hierarchical, centralized, and bureaucratized—all in the name of professionalism’s autonomy from politics. Arguing in 1905, for example, in favor of tenures for police chiefs longer than the then-standard 2 years (a key goal of reformers), Jacob Schiff of the New  York Committee on the Police Problem explained, “If you have an army whose

 The Supreme Court would finally hold confessions made after ingesting “truth serums” to be unconstitutionally coercive in 1963 with Townsend v. Sain. 2

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commanders change every two years, the discipline of the army will before long be worth nothing, and the army itself will be worth nothing. … The same can be said of our police force” (Go, 2020, p. 1202). That reformers now saw policing’s salvation in emulating—not distancing themselves from—the military heralded a significant retreat from Peel’s principles of policing. Racism, too, came to plague much of Vollmer-style policing. By the standards of his day, Vollmer himself was unusually broadminded: when Berkeley police officers in 1919 groused over his hiring of a Black police officer, he famously instructed them to surrender their badges on his desk on their way out (Olive, 2017). But policing in these years often served to criminalize blackness. Much stems from timing. The Great Migration of African Americans from the rural South to the industrial North coincided with Prohibition, allowing White vice purveyors to shield their profitable operations from public scrutiny by simply relocating to Black neighborhoods. The concentration of liquor, drugs, sex work, and gambling in segregated neighborhoods gave the cover of blackness to such rot while also fusing criminality and African Americans in the minds of Whites (Muhammad, 2010, Chapter six). Police also selectively enforced the law’s protections in ways that enacted America’s racial hierarchy. Police refused, for example, in 1921 to stop White supremacists from burning 35 square blocks of Tulsa’s Greenwood neighborhood— known as America’s “Black Wall Street”—and killing as many as 300 African Americans, the single most deadly episode in the nation’s long history of racial violence (Weatherford & Cooper, 2021). Indeed, when private aircraft took to the skies above the White mob attacking Greenwood, police officers were likely in the planes as passengers fired rifles at and dropped firebombs on Black homes, businesses, and fleeing families (Oklahoma Commission to Study the Tulsa Race Riot of 1921, 2001). But racialized policing in early twentieth-century American unfolded in a very different cultural context than today and so police often enforced racial hierarchies that can surprise contemporary readers (Barrett & Roediger, 1997). Police, for example, stood by and, at times, joined in while a 3000-strong White mob drove out “filthy Greeks” from South Omaha by burning down the city’s Greek Town. Revealingly, the spark for this “race war” (as newspapers described it at the time) was an officer’s efforts to police the color line by arresting for vagrancy a Greek laborer suspected of sleeping with a White woman (“Steady Exodus of Greeks From Omaha Since Rioting Began,” 1909). Police conferred legitimacy upon the racial cleansing by conspicuously declining to pursue the rioters; none, in fact, would ever see the inside of a courtroom (Bitzes, 1964). Survivors abandoned Omaha’s ruined Greek town, escaping to other states—but similar anti-Greek pogroms would also happen that year in Kansas City and Dayton (Sherry, 2004–2005). In short, policing reinforced the second-class citizenship of many in these years. It was “racecraft” on a national scale, but not always in ways that map easily to the present. Reform policing had other less visible consequences. The telephone allowed citizens to summon the police directly while the radio and squad cars allowed headquarters to dispatch patrolmen quickly. Officers, accordingly, had both more

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intimate but also less frequent contact with the communities they served. On the one hand, emergency calls ushered the police—in ways previously impossible—into the domestic sites of personal disputes and family troubles. On the other hand, squad cars isolated officers from the ordinary lives of the law-abiding. In many cities, police lost contact with the workaday world of sturdy wage earners and stable households and increasingly encountered only lives seized by crisis or criminality. Inevitably, officers’ and civilians’ perceptions of each other deteriorated. The automobile also profoundly altered the legal relationship between Americans and law enforcement, unintentionally enabling, decades later, the over-policing of minorities. The explosion of vehicle ownership—the 500,000 cars on the road in 1910 became 18 million by 1925—created two novel quandaries for policing. First, as car accidents piled up, the public demanded both new safety laws and their stringent enforcement. But doing so required policing those traditionally with little law enforcement contact: the respectable middle and upper classes who were cars’ early adopters. Before automobiles, the pursuit of social harmony had meant police dealt chiefly those on society’s margins, while voluntary organizations—churches, unions, and trade groups—keep watch over everyone else. But because everyone broke traffic laws, everyone now became subject to discretionary policing. Second, cars vexed the American legal tradition of regulating police authority differently by location; on the one hand, the private sphere (requiring warrants per the Fourth Amendment) and, on the other, the public sphere (afforded fewer constitutional protections). Were drivers in the first sphere because cars represented an extension of their homes, or the second because they were utilizing public roadways? The Supreme Court ultimately punted on that question with Carrol v. United Sates (1925), shifting the legal fulcrum from public/private to reasonable/unreasonable. If the police action was “reasonable,” much less legal scrutiny followed. But what constituted “reasonable” proved mercurial. Unable to craft principles governing the myriad of unexpected highway interactions often requiring split-second decision-­ making, judges repeatedly deferred to the police—and with each such case, officers’ power and autonomy grew while citizens’ protections shrank. Moreover, courts increasingly applied these increased police powers to contexts far beyond highway investigations. As long as police followed the ever more arcane regime of modern criminal procedure, their behavior generally could evade legal restraint, regardless of outcome (Seo, 2019). It was, then, well-intentioned reform efforts that deepened the chasm between police and many communities in mid-century America. As one policing scholar concluded, “professionalization had created police departments that were vast bureaucracies, inward looking, isolated from the public, and defensive in the face of any criticism” (Levine et al., 1986, p. 180). This highly authoritarian vision of policing—however much it shielded police officers from political influence—also estranged officers on the beat from upper brass, who increasingly appeared less like co-conspirators in corruption’s juicy trough and more like corporate managers in corner offices. The damaging consequences of the reform model of policing remained largely invisible to most Americans until the 1960s, when both its philosophical

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assumptions and crime-control image fell apart—triggering five interrelated consequences. First, courtesy of the Supreme Court, the law’s “procedural revolution” profoundly remade the daily work of policing; second, riots across the country exposed on national television the deep enmity between many communities and the police; third, a wave of police unionization swept departments, ultimately limiting cities’ ability to reign in police abuse; fourth, a flurry of outsider research seemed to suggest reform-style policing did little to prevent crime; fifth, federal funding for new law enforcement efforts deepened the imprint of the police in the lives of poor communities.

The Due Process Revolution As all-White police departments started using vaguely phrased laws—particularly vagrancy statutes—against civil rights activists, courts took notice, triggering a long-overdue scrutiny of police procedures (Goluboff, 2016). The resulting “due process revolution” in the law brought real Constitutional standards to policing for the first time. Between 1961 and 1966, the Warren Court handed down a series of rulings protecting defendants’ rights, which radically remade police officers’ jobs. Most notably, in Mapp v. Ohio (1961), the Justices declared evidence obtained without a search warrant inadmissible in court; Robinson v. California (1962) prohibited punishment based on a “status,” such as drug addiction; and Miranda v. Arizona (1966) extended Fifth Amendment protections against compelled self-incrimination from the court to the interrogation room and other “in-custody” questionings (simple arrests, contrary to what TV crime dramas might suggest, do not require Miranda warnings). All of these decisions upended police officers’ workaday world but tied police hands less than critics at the time, including President Richard Nixon, claimed. Most evidence in non-drug criminal cases comes from witness testimony not seized property; and while Miranda likely reduced clearance rates 10–20% in the ruling’s immediate wake, police quickly adapted and “Mirandizing” suspects now has little impact on solving or punishing crime (although recidivists and white collar criminals certainly benefited) (Kamisar, 1986; Leo, 1996). But because these rulings dictated proper procedure rather than ensuring fair outcomes, to police officers—and many others—the Court seemed intent on protecting the guilty rather than their victims (Stuntz, 2011, Chapter eight). Ernesto Miranda was, after all, a career criminal, violent kidnapper, and serial rapist (Stuart, 2008). For police officers, the long arm of the Supreme Court reaching clumsily into the messy business of their street arrests in order to protect suspects was the opposite of “professionalization”—and it happened at a time when political elites were also intervening in policing elsewhere. In another era, when police officers depended on politicians for a share of corruption’s proceeds, they might have stayed quiet. Police officers, however, had been cut free of their political patrons as a consequence of progressive reform and now saw themselves as a political power onto themselves.

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Police Power/Police Union The case of New York City’s Civilian Complaint Review Board (CCRB) is instructive. John Lindsay made creating a civilian-dominated CCRB a touchstone of his 1965 mayoral campaign, establishing it the following year once in office. The police, however, used their union to get the board’s existence placed on the ballot as a referendum—all the while waging a fear-mongering campaign that including warning leaflets urging tourists to avoid “fear city.” Voters—even those who had just voted in the famously liberal Lindsay—believed the union’s warnings and decisively rejected the new CCRB and the restraint on police behavior it promised (Flamm, 2005). Taking advantage of legal changes, police unions formed across the nation, leveraging fears of lawlessness amid urban unrest to secure contracts that constrained the ability of both cities and police departments themselves to discipline officers (McCartin, 2008). Union contracts frequently became the last word: overriding the city charter in Detroit; state law in Illinois; and resisting a federal consent decree in Seattle. Racism often underwrote such union action. At the 1967 National Fraternal Order of Police convention, for example, police officers gave two standing ovations to George Wallace, the segregationist who built his presidential campaign the following year around White grievance. Contract by contract, police officers remade the disciplinary process for themselves, demanding a “police bill of rights” that often explicitly mirrored the protections the Warren Court had given criminal defendants. By 1981, roughly half of all police contracts nationwide featured such language. Disciplining police officers for abuse—or worse—became much harder (Rynecki & Morse, 1981; Stolberg, 2017).

Urban Unrest Between 1964 and 1968, hundreds of riots— striking mostly inner cities and nearly all triggered by perceived police violence—exposed a deep hatred of police officers in the epicenters of Black life in the North. While some blamed the unrest on “outside agitators,” most heeded the explanations of the National Advisory Commission on Civil Disorders (popularly: the Kerner Commission). The Commission found the riots had sprung from a “deep hostility between police and ghetto communities.” Of course, police officers make convenient symbols for larger, institutional injustices (then and now) and not all of the fury directed at police resulted from what individual officers said or did. As the Black writer James Baldwin observed in 1960 of police officers in Harlem, “Their very presence is an insult, and it would be, even if they spent their entire day feeding gumdrops to children” (Baldwin, 1960, p. 269). But the Commission pointed to a bundle of police practices responsible for adding fuel to the resentment burning in urban America. Aggressive, “stranger” patrols “which move[d] into high-crime districts without prior notice and conduct[ed]

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intensive, often indiscriminate, street stops and searches” embittered the community, while the patrol car fostered alienation between officers and citizens (National Advisory Commission on Civil Disorder, 1968, pp. 157–158). That rift—as a presidential commission on law enforcement warned the previous year—jeopardized police effectiveness, as residents refused to provide evidence or identify suspects.

Outside Research The 1960s brought a wave of outside research that undermined confidence in three central reform-era crime-control strategies: random patrol, rapid response, and investigative follow-up. A famed experiment in Kansas City suggested that motorized, random patrol had no real effect on crime or citizen fears. Follow-up studies revealed radio-driven response to emergency calls netted few wrongdoers; nearly always, crimes were reported “too slowly for a response-related arrest to be made.” One researcher concluded that even if police were to travel “faster than a speeding bullet to all reports of serious crimes,” on-scene arrest rates would rise to no higher than 5% from three (Walker, 2018, pp. 82–83). Similarly, studies of detectives found that investigative expertise barely mattered; when police did identify suspects, it generally happened before a detective got the case and most often from information witnesses provided rather than through expert gumshoeing (Greenwood and Petersilia, 1975). In short, squad cars didn’t deter criminals, detectives didn’t sleuth cases, and officers didn’t inspire gratitude; modern policing, it seemed to many, was failing.

Federal Funding In the wake of broad anxiety over America’s “long, hot summers” of urban riots, federal funding for law enforcement exploded. In 1965, President Lyndon Johnson declared “war on crime,” and shepherded through Congress the Law Enforcement Assistance Act (LEAA), which passed a mere month after Los Angeles’ segregated Watts neighborhood burned. Until then, little about street crime concerned the Feds. Unless your offenses crossed state lines, involved the mail, the President, currency, the 14th Amendment, or happened on a Native American reservation, it was probably local police (spending local tax dollars) and not Government agents (spending federal dollars) who pursued you. But Federal money allows Washington to push on state houses and city halls policies—whether speed limits set at sauntering 55 m.p.h. or dragnets aimed at drug peddlers—in ways otherwise impossible under federalism. In a rarely recalled aspect of the Democratic Party’s Great Society legislation, billions in LEAA funding created new initiatives from Boston to Boise as the Federal Government for the first time took a direct role in local police, courts, and prisons (Hinton, 2016).

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These changes, however, occurred amid a backlash against what many took to be the Warren Court’s handcuffing of police, and so scores of LEAA programs ended up putting muscle behind conservative “law and order” politics (Hinton, 2016). The spending tilt toward the police also became a fixture of American governance: in 1951, US cities spent $82 in 2020 dollars per person on police; today, they spend $286 (Epp, 2016). The federal money underwrote increased surveillance of poor neighborhoods and—echoing reform-era policing’s linkages to colonial wars—also purchased technologies developed for Cold War repression in low-income countries, including tear gas, police walkie-talkies, and the 911 emergency call service (pioneered with American assistance in Caracas, Venezuela as a counter-insurgency tool before being brought stateside by New York’s Mayor Lindsay) (Merton, 2018; Schrader, 2019, p. 151). Soon after the ink dried on Great Society social welfare legislation, anti-crime initiatives eclipsed anti-poverty ones. Programs aimed at housing, health, recreation, the arts, and job training frequently found themselves administered—or their efforts redirected—by law enforcement agencies. Law enforcement, indeed, became woven into the political and social fabric of low-income minority neighborhoods. Eager to demonstrate their usefulness (and so continue their funding), programs increasingly turned strategies intended to identify youth at risk of criminality into ways to provoke interactions with them—thus minting “clients” for their services but also labeling kids in ways that became self-fulfilling prophecies. The end for many social programs, however, came quickly. Johnson essentially wrote the Great Society’s obituary when he asked Congress to pass the Omnibus Crime Control and Safe Streets Act (1968), which ultimately pilfered money from social programs to pay for more policing (Hinton, 2016). But however much expanding policing triggered anger in communities of color, rising crime rates did as well—producing widespread but often forgotten calls by inner-city residents for more and more forceful policing. As scholars of criminal justice history adjust their angle of vision from government actors to those on the ground, they have unearthed broad support among Blacks and Latinos for policies and laws once believed to be the project primarily of a fearful and frequently racist white middle class (Mauer, 2006). But as James Forman, Jr.—son of famed civil rights vanguard James Foreman—notes in a recent Pulitzer-prize winning book, Black leaders, and politicians forcefully blocked White lawmakers’ efforts to lessen the bite of both drug laws and aggressive policing in the 1970s (Forman, 2017). Much the same story gets told by William Fortner in his work about New York in the same years (Fortner, 2015). Scholars are only now grappling with the extent to which the “punitive turn” in policing and criminal justice more broadly happened both with, and because of, the approval of working-class Blacks and Latinos who shared White anger and fear over America’s extraordinarily high crime rates (Weaver, 2017).

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Change and Reform After 1975 Policing’s failings—impossible to ignore by the 1960s—created yet another wave of reform efforts. Some of these came from inside departments, some from outside, and some from a mix of the two; a few have been demonstrated empirically, others were faith positions. The discussion below does not survey all such efforts but instead explores those revealing of both policing’s challenges and its intersection with broader social forces.

Community Policing Few developments in police science loom larger in the public imagination than community policing. Appearing in a variety of flavors (“Problem-Oriented Policing,” “Community-Oriented Policing”), community policing has for four decades now presented itself as both a diagnosis of policing ills and their remedy. Scholars generally agree on the accuracy of that diagnosis, but research has not demonstrated the effectiveness of the prescription. Indeed, the National Research Council declared the conceptual vagueness of community policing makes it impossible to conclude whether or not the approach actually works (Committee to Review Research on Police Policy and Practices, 2004). Community policing appeals, some scholars assert, “not because it has been proved to work,” but because previous approaches have been shown to fail (S. Fyfe & Fyfe, 1994, p. 251). Community policing’s critique of American law enforcement was first expressed in 1979 with law professor Herman Goldstein’s concept of problem-oriented policing. Police officers, Goldstein argued, focused too narrowly on enforcing the law in reaction to particular events. Rushing to 911 calls ate up police resources, Goldstein argued, leaving officers neither time nor inclination “for acting on their own initiative to prevent or reduce community problems. (Goldstein, 1990, p. 14).” If it was only communities, however, that could identify their own problems, then police needed to be closer to, not insulated from, communities—precisely the opposite of reform-era solutions for corruption. Others attempted to expand and apply Goldstein’s thinking, often with government support; by 1995, three-quarters of all police departments claimed to have embraced the strategy and $8.8 billion in federal grant dollars got spent to help them do so (Worrall & Kovandzic, 2007). Despite this breadth of support, however, research has never been able to connect community policing to lower crime rates (Weisburd et al., 2003); likewise, whether departments adopting the strategy actually improved community relationships is debatable.

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Broken Windows Policing Although now frequently invoked as Exhibit A in the case for police reform, Broken Windows Policing (BWP) was itself conceived as both a reform and an extension of community policing. In the early 1980s, amid high crime and incarceration rates, BWP seemingly offered a way out of that relentless dynamic. Building upon research by Stanford psychologist Philip Zimbardo (of Stanford prison experiment fame), criminologists George L. Kelling and James Q. Wilson argued in a seminal 1982 Atlantic Monthly article that visible signs of disorder—say loitering, graffiti, sex work, or drug use—signaled a neighborhood lacked caretakers and so invited criminal invasion. If, argued the pair, police were to address smaller neighborhood problems rather than chasing major felonies, the resulting atmosphere of safety and order might mean residents would suffer fewer serious crimes. The theory enjoyed intuitive appeal across the political spectrum: conservatives embraced it because it aimed to restore order; liberals celebrated it as an enlightened crime-prevention strategy. Critically, New York’s newly elected mayor, Rudolph Giuliani and his first police commissioner, William Bratton, applied the strategy to Gotham’s subways in 1994; vandals, turnstile jumpers, and—most famously—“squeegee men” found themselves snared by officers for the first time in two decades. Crime declined underground, seemingly validating BWP. Flush with public support, the NYPD then scaled BWP up from the subway to all of New York. The subsequent crack down on “quality of life” crimes, however, triggered scholarly criticism. Columbia University’s Bruce Harcourt, for example, argued this new order-maintenance approach lacked empirical support, marshaling impressive videotaped evidence of street life that discredited the theory (Harcourt, 2001). Others worried the strategy inevitably meant racially focused policing since “disorder” is in the eyes of the beholder and may have more to do with a neighborhood’s demographics than its graffiti or drug emporiums (Oberman & Johnson, 2016). But despite such elite musings, however, even recent poling data suggests BWP received greater support from Blacks than Whites. A 2015 Quinnipiac University poll of New York City residents, for instance, found that 61% of the city’s African Americans (versus 59% of Whites) wanted police to “actively issue summonses or make arrests for so-called quality of life offenses” in their own neighborhoods (Quinnipiac, 2015). Whatever BWP’s future, it undeniably exerted a powerful hold on police administrators and the public alike.

Hotspot Policing Other reforms sought to repair the relationship between the police and the communities they protect by instead surgically concentrating enforcement on crime “hot spots”—deploying police officers to particular blocks suffering from crime rather than to whole neighborhoods. Made possible by emerging mapping technologies

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and often made necessary by budgetary needs to “do more with less,” hotspot policing now gets employed—to some degree—by nine out of ten departments (Braga et al., 2012). Unlike community policing, this strategy drew upon rigorous criminological research—notably that of “crime in micro places”—and was tested empirically and repeatedly with police cooperation before being diffused widely (Weisburd, 2018). Indeed, the National Academy of Sciences concluded in 2004 that more evidence supported hotspot policing than any other policing model (Committee to Review Research on Police Policy and Practices, 2004). Critics, however, worry that the notion of “hotspots”—and the police attention they attract—potentially stigmatizes even small portions of neighborhoods, offsetting the modest gains the strategy might provide (Rosenbaum, 2006).

Asset Forfeiture Reform Ever since the 1984 Comprehensive Crime Control Act, law enforcement has profited from expanding authority to seize assets—cash, cars, houses—potentially linked to crime. Indeed, the often under-the-radar legal doctrine known as civil-­ asset forfeiture does not require a conviction before authorities can confiscate property—mere suspicion on a par with “probable cause” suffices. Americans may be innocent under the law until proven guilty, but not their assets. And because narcotics’ sizeable profits can generate substantial assets, police officers have an incentive to prioritize drug crimes over those where enforcement holds no promise of remuneration—enlarging the war on drugs in the process. Forfeiture clearly reoriented police priorities in that fashion in the 1990s; how much it still does is a matter of debate (Kantor et al., 2021; Kelly & Kole, 2016). And while the practice was originally intended to target the wealth enjoyed by organized crime and drug kingpins, police now routinely wield the tool against those of more modest means: in 2018, the median nationwide forfeiture was $1276; in Michigan, half of all cash forfeitures were smaller than $423; in Pennsylvania, that median was $369. Such small forfeiture amounts are less than a legal challenge’s cost, essentially guaranteeing authorities will profit (Knepper et  al., 2020). Reforming police use of forfeiture laws—marked by limited procedural safeguards and oversight—united critics on the political left and right, an odd bed-fellowing that culminated in the Civil Asset Forfeiture Reform Act of 2000. Critics maintain, however, that police continue to abuse their forfeiture authority (Moores, 2009). And the frequent news coverage of forfeiture malfeasance does recall police departments’ Gilded Age corruption. Texas district attorneys, for example, recently used forfeiture proceeds from policing to award themselves tens of thousands of dollars in bonuses, tickets to Hawaii, and an office margarita machine (Walters & McCullough, 2018).

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Mandatory Domestic Violence Arrest In the 1970s and 1980s, feminist lawyers and activists—convinced that police officers’ reluctance to make domestic violence (DV) arrests stemmed from their “antediluvian ideas about marital privacy and husbands’ rights to ‘chastise’ their wives”—campaigned to legally require officers to arrest men involved in domestic disputes (Gruber, 2020, p.  68). These advocates quickly found success, first in New York (1977) and then nationally. But the advocates had interacted little with either police officers or a broad range of victims—and so the mandatory arrests policies that emerged failed to grasp either the problem or the victims’ preferred solutions. Police officers, research revealed, often chose not to arrest during DV calls not because they were Neanderthals (as advocates had suggested) but rather because they understood the limits of the law’s brute force to help in such situations. Similarly, even as social science evidence piled up that mandatory arrests did not reduce injuries, deter repeated violence, or satisfy victims, advocates continued to insist on their position’s integrity. Change did eventually come, however, and the currently preferred DV approach—understood today as a “progressive” step away from punitiveness—simply unwinds the reform of feminist lawyers and activists a generation ago (Gruber, 2020, Chapter three).

Federal Consent Decrees Growing out of Rodney King’s 1991 beating by Los Angeles police officers and the six-day riot following those officers’ 1992 acquittals on excessive force charges, the Violent Crime Control and Law Enforcement Act (1994) empowered the U.S. Department of Justice (DOJ) to impose reforms on police departments with a documented pattern of civil rights violations (Livingston, 1999). Generally, those settlements have taken the form of court-enforced agreements known as consent decrees. Starting in 1997 with Pittsburgh—whose police department had long engaged in excessive force, false arrests, and illegal searches and seizures—consent decrees have represented the most robust, if imperfect, tool of the federal government to remake whole police departments rather than simply punishing individual bad apples (Stolberg, 2017). As of this writing, the actions of more than 19 police departments are currently governed by such DOJ decrees (Pittsburgh’s decree expired in 2002). Scholars generally hailed the law as holding the most promise for real reform (Stuntz, 2001, pp.  538–539). But because the DOJ must initiate the process, much depends on the Oval Office’s occupant. President Barack Obama’s DOJ opened 25 new investigations into law enforcement agencies; in contrast, George Bush’s DOJ preferred “technical assistance letters” advising police departments on institutional change required to remain in compliance with the law, negotiating no new consent decrees; and, in a dramatic break, Donald Trump’s Attorney General Jeff Sessions essentially ended the practice outright during his boss’s term

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(Rushin, 2017). One study, however, exploring the relationship between such consent decrees and measurable police behavior—using police killings as the yardstick—had mixed and somewhat discouraging findings: “consent decrees in and of themselves did not decrease police killings, there was some evidence that DOJ investigations and court-appointed monitors reduced police killings. On the other hand, the issuance of a technical assistance letter was found to have a counterproductive effect in increasing them” (Goh, 2020, p. 901). Others scholars found that when such DOJ investigations were preceded by “viral” social media coverage of police incidents, they lead to “a large and statistically significant increase in homicides and total crime” (Devi & Fryer, 2020).3

Litigation as Reform Tool The recent past demonstrates public interest litigation’s potential to enact something like centralized control over policing. Consider the consequences of the Supreme Court’s 1978 ruling in Monell v. Department of Social Services, which made cities financially liable for rights violations by individual employees. Fear of litigation’s bite functioned like a national directive to police. As suits against departments mounted—20,000 annually by 1985—chiefs everywhere began to take notice. Use-­ of-­force policies changed, oversight grew, officers were increasingly punished, and, most importantly, police shootings plummeted significantly (Epp, 2009, Chapter four). In 1971, for example, New York City police officers shot 314 suspects and fired more than 2100 rounds; in 2019, NYPD officers shot at only 15 individuals and discharged only 136 rounds—about one shooting incident per 1000 uniformed officer as opposed to 16 per 1000 in 1975 (NYPD, 2018, pp. 53–58). And racial disparities have narrowed dramatically as well; in Memphis in the 1970s, for example, for every one unarmed White suspect police shot, they shot 18 black ones (J. Fyfe, 1982). By 2018, researchers found far smaller racial disparities in police killings; indeed, the Washington Post’s analysis of its database concluded that unarmed Blacks were only “slightly more likely” than Whites to be killed by police nationwide (Fagan & Campbell, 2020; Sullivan et al., 2018). That is, of course, poor comfort for mourners of the 11 unarmed Black men killed by police the next year, but still profound proof the police can change their own behavior when poked on the right pressure point.4

 As of this writing, Roland Fryer was suspended from Harvard’s faculty for sexual harassment.  According to the Washington Post’s database, there were 12 such deaths in 2019 and 15 in 2020. As a “small number,” not much can be concluded from such variation. 3 4

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Conclusion As Black Lives Matters protests erupted nationwide in the summer of 2020, we heard understandably impassioned pleas that only abolishing the police would do because police “can’t change” (Kaba, 2020). But that the need for police reform is constant (and History is clear on that score) does not mean police behavior is also constant. Instead, the past teaches us a different lesson: that police reforms frequently falter with time; sometimes, that’s because reformers—blinded by their own righteousness—misunderstood the problem or the police or both; sometimes, reforms contain the seeds of their own undoing; and sometimes reforms failed because they were never intended to succeed. But often reforms fail because, like much else, they lose their effectiveness as conditions change. One can, with little effort, cherry pick past events and pair them with today’s headlines and pronounce reform pointless. But doing so is neither accurate nor trustworthy. Even with the cycle of crisis and reform chronicled here, policing today is remarkably different than it was even a generation ago. Reform’s failures, then, remind us not that reform impossible but that it requires constant work.

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Connor, P., Robson, J., & Marcellus, S. (2019). Police resources in Canada, 2018. Statistics Canada. https://www150.statcan.gc.ca/n1/en/pub/85-­002-­x/2019001/article/00015-­eng. pdf?st=z0qBBf8r Crank, J., & Langworthy, R. (1992). An institutional perspective of policing. The Journal of Criminal Law & Criminology, 83(2), 338–363. https://doi.org/10.2307/1143860 Crowther, M. A. (1988). On soul and conscience: The medical expert and crime: 150 years of forensic medicine in Glasgow. Aberdeen University Press. Czitrom, D. J. (2016). New York exposed: The gilded age police scandal that launched the progressive era. Oxford University Press. Despres, L. (1947). Legal aspects of drug-induced statements. University of Chicago Law Review, 14(4), 601–616. https://doi.org/10.2307/1597209 Devi, T., & Fryer, R. (2020). Policing the police: The impact of "pattern-or-practice" investigations on crime. National Bureau of Economic Research. https://doi.org/10.3386/w27324 DuBois, W. E. (1904). Some notes on negro crime, particularly in Georgia. Atlanta University Press. Ellis, E., & Wong, J. (1997). The epic of New York City: A narrative history. Kodansha International. Epp, C. (2009). Making rights real: Activists, bureaucrats, and the creation of the legalistic state. University of Chicago Press. Epp, C. (2016, April 22). Building the policing state [Conference presentation]. Police Actions and Citizen Mobilization in Democratic Societies, New Haven, CT. Fagan, J., & Campbell, A. (2020). Race and reasonableness in police killings. Boston University Law Review, 100(3), 951–1015. https://www.bu.edu/bulawreview/files/2020/05/07-­FAGAN-­ CAMPBELL.pdf Fields, B. K., & Fields, K. (2014). Racecraft: The soul of inequality in American life. Verso. Flamm, M. W. (2005). Law and order: Street crime, civil unrest, and the crisis of liberalism in the 1960s. Columbia University Press. Fogelson, R. (1977). Big-city police. Harvard University Press. Forman, J. (2017). Locking up our own: Crime and punishment in Black America (1st ed.). Farrar, Straus and Giroux. Fortner, M. J. (2015). Black silent majority: The Rockefeller drug laws and the politics of punishment. Harvard University Press. Fredrickson, G. (2002). Racism: A short history. Princeton University Press. Fronc, J. (2009). New York undercover: Private surveillance in the progressive era. University of Chicago Press. Fyfe, J. (1982). Blind justice: Police shootings in Memphis. The Journal of Criminal Law & Criminology, 73(2), 707–722. https://doi.org/10.2307/1143112 Fyfe, S., & Fyfe, J. (1994). Above the law: Police and the excessive use of force. Free Press. Go, J. (2020). The imperial origins of American policing: Militarization and imperial feedback in the early 20th century. The American Journal of Sociology, 125(5), 1193–1254. https://doi. org/10.1086/708464 Goh, L.  S. (2020). Going local: Do consent decrees and other forms of federal intervention in municipal police departments reduce police killings? Justice Quarterly, 37(5), 900–929. https://doi.org/10.1080/07418825.2020.1733637 Goldstein, H. (1990). Problem-oriented policing. Temple University Press. Goluboff, R. (2016). Vagrant nation: Police power, constitutional change, and the making of the 1960s. Oxford University Press. Greenwood, P. W., & Petersilia, J. (1975). The criminal investigation process, volume 1: Summary and policy implications. RAND Corporation. https://www.rand.org/pubs/reports/R1776.html Gruber, A. (2020). The feminist war on crime: The unexpected role of women’s liberation in mass incarceration (1st ed.). University of California Press. https://doi.org/10.2307/j.ctvxhrhq6 Gourevitch, A. (2015). Police work: The centrality of labor repression in American political history. Perspectives on Politics, 13(3), 762–773. https://doi.org/10.1017/S1537592715001322 Hadden, S.  E. (2001). Slave patrols: Law and violence in Virginia and the Carolinas. Harvard University Press.

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Harcourt, B. (2001). Illusion of order: The false promise of broken windows policing. Harvard University Press. Harring, S. (1983). Policing in a class society: The experience of American cities, 1865–1915. Rutgers University Press. Hickey’s Message, The Police Superintendent’s Report for Last Year. (1878, February 2). The Daily Inter Ocean. Hinton, E. K. (2016). From the war on poverty to the war on crime: The making of mass incarceration in America. Harvard University Press. Hirschfield, P. (2020). Policing the police: U.S. and European models. Journal of Democracy, 31(4), 166–181. House, R. (1931). The use of scopolamine in criminology. The American Journal of Police Science, 2(4), 328–336. https://doi.org/10.2307/1147361 Jabali, M. (2020, May 5). If you’re surprised by how the police are acting, you don’t understand US history. The Guardian. https://www.theguardian.com/commentisfree/2020/jun/05/ police-­us-­history-­reform-­violence-­oppression Kaba, M. (2020, June 12). Yes, we mean literally abolish the police. New York Times. https://www. nytimes.com/2020/06/12/opinion/sunday/floyd-­abolish-­defund-­police.html Kamisar, Y. (1986, June 11). The Miranda case, 20 years later. New York Times. https://www. nytimes.com/1986/06/11/opinion/the-­miranda-­case-­20-­years-­later.html Kantor, S., Kitchens, C. T., & Pawlowski, S. (2021). Civil asset forfeiture, crime, and police incentives: Evidence from the comprehensive crime control act of 1984. Economic Inquiry, 59(1), 217–242. https://doi.org/10.1111/ecin.12952 Kelly, B. D., & Kole, M. (2016). The effects of asset forfeiture on policing: A panel approach. Economic Inquiry, 54(1), 558–575. https://doi.org/10.1111/ecin.12232 Knepper, L., McDonald, J., Sanchez, K., & Smith Pohl, E. (2020). Policing for profit: The abuse of civil asset forfeiture (3rd ed.). Institute for Justice. https://ij.org/wp-­content/themes/ijorg/ images/pfp3/policing-­for-­profit-­3-­web.pdf Lane, R. (1967). Policing the city: Boston, 1822–1885. Harvard University Press. Lane, R. (1968). Crime and criminal statistics in nineteenth-century Massachusetts. Journal of Social History, 2(2), 156–163. https://doi.org/10.1353/jsh/2.2.156 Lentz, S.  A., & Chaires, R.  H. (2007). The invention of Peel’s principles: A study of policing ‘textbook’ history. Journal of Criminal Justice, 35(1), 69–79. https://doi.org/10.1016/j. jcrimjus.2006.11.016 Leo, R. (1996). The impact of “Miranda” revisited. The Journal of Criminal Law & Criminology, 86(3), 621–692. https://doi.org/10.2307/1143934 Levine, J.  P., Musheno, M.  C., & Palumbo, D.  J. (1986). Criminal justice in America: Law in action. Wiley. Lexow, C. (1895). Report and proceedings of the Senate committee appointed to investigate the police department of the city of New York (Vol. 3). James B. Lyon. https://babel.hathitrust.org/ cgi/pt?id=uc1.31822001424589&view=1up&seq=9 Livingston, D. (1999). Police reform and the Department of Justice: An essay on accountability. Buffalo Criminal Law Review, 2(2), 817–859. https://doi.org/10.1525/nclr.1999.2.2.817 Martin, D. (2012, March 7). William Heirens, the ‘Lipstick Killer,’ dies at 83. New York Times. https://www.nytimes.com/2012/03/07/us/william-­heirens-­the-­lipstick-­killer-­dies-­at-­83.html Mauer, M. (2006). Race to incarcerate. The New Press. McCartin, J. A. (2008). “A Wagner act for public employees”: Labor’s deferred dream and the rise of conservatism, 1970-1976. The Journal of American History, 95(1), 123–148. https://doi. org/10.2307/25095467 Merton, J. (2018). John Lindsay, the association for a better New  York, and the privatization of New  York City, 1969–1973. Journal of Urban History, 45(3), 557–577. https://doi. org/10.1177/0096144218765465 Miller, B. (2003). Enforcement of the Sunday closing laws on the Lower East Side, 1882–1903. American Jewish History, 91(2), 269–286. https://doi.org/10.1353/ajh.2004.0054

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Miller, W. (1999). Cops and bobbies: Police authority in New York and London, 1830–1870 (2nd ed.). Ohio State University Press. Mitrani, S. (2013). The rise of the Chicago police department class and conflict, 1850–1894. University of Illinois Press. Moores, E. (2009). Reforming the civil asset forfeiture reform act. Arizona Law Review, 51(3), 777–804. https://arizonalawreview.org/pdf/51-­3/51arizlrev777.pdf Muhammad, K. G. (2010). The condemnation of blackness: Race, crime, and the making of modern urban America. Harvard University Press. National Advisory Commission on Civil Disorder. (1968). The report of the National Advisory Commission on civil disorder. Bantam Books. National Research Council. (2009). Strengthening forensic science in the United States: A path forward. National Academies Press. https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf NYPD. (2018). Use of force report. New York City Police Department. https://www1.nyc.gov/site/ nypd/stats/reports-­analysis/use-­of-­force.page Oberman, J., & Johnson, K. (2016). The never ending tale: Racism and inequality in the era of broken windows. Cardozo Law Review, 37(3), 1075–1092. https://larc.cardozo.yu.edu/cgi/ viewcontent.cgi?article=1112&context=faculty-­articles Oklahoma Commission to Study the Tulsa Race Riot of 1921. (2001). Tulsa Race Riot. Author. https://www.okhistory.org/research/forms/freport.pdf Olive, W. (2017). August Vollmer: The father of American policing. Carolina Academic Press. Paley, R. (1989). ‘An imperfect, inadequate and wretched system’? Policing London before Peel. Criminal Justice History, X, 95–130. Penal Code Provisions: The Arbitrary Nature of the Sunday Laws. (1882, December 3). New York Times. https://www.nytimes.com/1882/12/03/archives/penal-­code-­provisions-­the-­arbitrary-­ nature-­of-­the-­sunday-­laws.html Quinnipiac University Polling. (2015). New Yorkers back ‘Brocken Windows’ policing, Quinnipiac University Poll finds. https://poll.qu.edu/images/polling/nyc/nyc05132015_ngirw58.pdf Reichel, P. (1988). Southern slave patrols as a transitional police type. American Journal of Police, 7(2), 51–77. Richardson, J. F. (1974). Urban police in the United States. Kennikat Press. Rosenbaum, D. (2006). The limits of hot spots policing. In Police innovation: Contrasting perspectives. Cambridge University Press. Rushin, S. (2017). Police reform during the trump administration. University of Illinois Law Review Online. https://illinoislawreview.org/symposium/first-­100-­days/ police-­reform-­during-­the-­trump-­administration/ Rynecki, S. A., & Morse, M. J. (1981). Police collective bargaining agreements. Police Executive Research Forum. Schrader, S. (2019). Badges without borders: How global counterinsurgency transformed American policing. University of California Press. Seo, S. (2019). Policing the open road: How cars transformed American freedom. Harvard University Press. Sherry, V.  F. (2004–2005). Greeks in Kansas and Western Missouri 1900–1940. The Journal of Modern Hellenism, 21–22, 157–175. https://journals.sfu.ca/jmh/index.php/jmh/article/ view/227/230 Smallwood, S. (2007). African guardians, European slave ships, and the changing dynamics of power in the early modern Atlantic. The William and Mary Quarterly, 64(4), 679–716. https:// doi.org/10.2307/25096747 Steady Exodus of Greeks from Omaha Since Rioting Began. (1909, February 22). The Standard. Stolberg, S. (2017, April 19). ‘It did not stick’: The first federal effort to curb police abuse. New York Times. https://www.nytimes.com/2017/04/09/us/first-­consent-­decree-­police-­abuse-­ pittsburgh.html Stuart, G. (2008). Miranda: The story of America’s right to remain silent. University of Arizona Press.

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Stuntz, W. (2001). The pathological politics of criminal law. Michigan Law Review, 100(3), 505–600. https://repository.law.umich.edu/mlr/vol100/iss3/2/ Stuntz, W. (2011). The collapse of American criminal justice. Harvard University Press. Sullivan, J., Tate, J., & Jenkins, J. (2018, May 7). Fatal police shootings of unarmed people have significantly declined, experts say. Washington Post. https://www.washingtonpost.com/ investigations/fatal-­police-­shootings-­of-­unarmed-­people-­have-­significantly-­declined-­experts-­ say/2018/05/03/d5eab374-­4349-­11e8-­8569-­26fda6b404c7_story.html Sunday Under the Penal Code. (1882, December 3). New York Times. https://www.nytimes. com/1882/12/03/archives/sunday-­under-­the-­penal-­code.html Thale, C. (2004). Assigned to patrol: Neighborhoods, police, and changing deployment practices in New York City before 1930. Journal of Social History, 37(4), 1037–1064. https://doi. org/10.1353/jsh.2004.0070 Tilstone, W.  J. (2006). Forensic science: An encyclopedia of history, methods, and techniques. ABC-CLIO. Toobin, J. (2007, April 30). The CSI effect: The truth about forensic science. The New  Yorker. https://www.newyorker.com/magazine/2007/05/07/the-­csi-­effect Walker, S. (1977). A critical history of police reform: The emergence of professionalism. Lexington Books. Walker, S. (2018). The police in America: An introduction (8th ed.). McGraw-Hill. Walters, E., & McCullough, J. (2018, December 7). Texas Police made more than $50 million in 2017 from seizing people’s property. Not everyone was guilty of a crime. The Texas Tribune. https:// www.texastribune.org/2018/12/07/texas-­civil-­asset-­forfeiture-­legislature/#:~:text=Texas%20 police%20made%20more%20than,violation%20of%20Americans'%20civil%20liberties. Weatherford, C.  B., & Cooper, F. (2021). Unspeakable: The Tulsa race massacre. Lerner Publishing Group. Weaver, V. (2017, October 24). The untold story of mass incarceration. Boston Review. http://bostonreview.net/race-­law-­justice/vesla-­m-­weaver-­untold-­story-­mass-­incarceration Weisburd, D. (2018). Unraveling the crime-place connection: New directions in theory and policy. Routledge. Weisburd, D., Mastrofski, S. D., McNally, A. M., Greenspan, R., & Willis, J. J. (2003). Reforming to preserve: Compstat and strategic problem solving in American policing. Criminology and Public Policy, 2(3), 421–456. https://doi.org/10.1111/j.1745-­9133.2003.tb00006.x Williams, K. (2014). Our enemies in blue: Police and power in America. AK Press. Worrall, J., & Kovandzic, T. (2007). Cops, grants, and crime revisited. Criminology, 45(1), 159–190. https://doi.org/10.1111/j.1745-­9125.2007.00075.x

Chapter 3

The Psychology of Race and Policing Kimberly Barsamian Kahn and Emma E. L. Money

Abstract  Racial disparities in policing are well documented and have a long-­ standing history in the United States. Across various policing metrics, Black and Hispanic Americans are disproportionately represented in police use of force and fatal force incidents. This chapter reviews the psychological science associated with race and policing. It begins by highlighting racial disparities that exist within policing, including stops, searches, arrests, and use of force, and the lack of quality national-level data that hinders knowledge on this topic. It then turns to how psychological science can explain the causes of such disparities. Focusing on individual-­ level processes, it reviews psychological literature on implicit and explicit attitudes, dual-processing systems, stereotypes, dehumanization, social identity theory and threats (stereotype threat, masculinity threat), and social dominance orientation in relation to police behavior. It next discusses contextual-level factors that interact with individual psychology to produce inequitable outcomes, including policing policies, practices, and culture. Finally, it suggests targeted ways to reduce racial bias in policing, including individual-level actions such as officer training, as well as departmental and structural policy initiatives. Reform will require multi-faceted solutions across multiple levels to be effective. Keywords  Policing · Race · Bias · Force · Stereotypes

The Psychology of Race and Policing Amid a global pandemic in May of 2020, Americans across the country protested for racial justice after African American George Floyd was killed by police in Minneapolis. Like many others before him, and others that year including African Americans Ahmaud Arbery, Jacob Blake, and Breonna Taylor, his death reinvigorated national discussions regarding racial bias in policing—proclaiming that he

K. B. Kahn (*) · E. E. L. Money Portland State University, Portland, OR, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_3

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would not have died that day but for his race. Black Lives Matter, a movement launched in response to African American Trayvon Martin’s death in 2012, continues to push for policing reform and racial equity in police treatment. Given this societal context, this chapter reviews issues of policing and race. It first provides evidence that racial minorities are disproportionately affected by police use of force and police contact. Next, it details the psychology of policing and race, focusing on individual-level factors that can lead to racially biased outcomes. It subsequently considers broader contextual forces that produce biased outcomes for racial minorities. It closes with recommendations for reform and ways to promote equitable policing.

Racially Disproportionate Policing Outcomes Racial disparities in policing outcomes are documented across all stages of police interactions (for a review, see Kahn & Martin, 2016). For example, in the United States, Black and Hispanic men are disproportionately subjected to traffic and street stops compared to White men, and Black men are least likely to perceive these stops as legitimate (Davis et al., 2018; Ridgeway, 2006). Black men are more likely to be stopped in association with violent crimes (Gelman et al., 2007) and are approximately three times as likely as White individuals to have their cars searched (Langton & Durose, 2013). Notably, these stops are also less likely to lead to arrests (thus, leading to lower “hit” rates and less effective policing; Hannon, 2020). When accounting for racial diversity and crime rates  in the area, Black and Latino individuals remain more likely to be frisked (Levchak, 2016). In regard to arrest, 38% of Black adults report having been arrested, compared to only 29% of White adults (Barnes et  al., 2015), reflecting a more striking disparity when taking into account racial group base rates in the population. As introduced above, racial disparities involving fatal police force have increasingly garnered attention from media and researchers. To the vast detriment of researchers and practioners, data on police officer fatal force is limited, difficult to obtain, and inconsistent (Goff & Kahn, 2012). In the United States, no uniform required tracking or measurement of police use of fatal force  exists, making researching racial disparities in fatal force difficult (Goff & Kahn, 2012). Efforts by government agencies to maintain national databases of fatal officer-involved shootings (e.g., the FBI’s Uniform Crime Reporting) have  resulted in systems where reporting is voluntary, leading to underreporting that obscures the extent of disparate use of fatal force (Gray & Parker, 2019). Using existing, although limited, Department of Justice data, racial disparities in police use of fatal force are profound. Black Americans are more likely to die from police force than White Americans, over and above the effect of criminal activity and other contextual variables (e.g., total population, proportion of Black residents, and poverty; Scott et al., 2017).

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Due to the lack of standardized federal metrics, non-governmental agencies (e.g., Mapping Police Violence, the Washington Post’s Fatal Force Database) and collaboration between law enforcement agencies and social scientists (e.g., Center for Policing Equity) have self-created and maintained databases on fatal police force. Beginning tracking in 2015, the Washington Post’s (2020) Fatal Force database finds that approximately 1000 people are killed by police every year in the United States. Black Americans are killed at more than twice the rate of White Americans, and Hispanic Americans are killed at just under twice the rate (Washington Post, 2020). Racial disparities are further evident when examining fatalities  when the victim was unarmed (Nix et al., 2017). Non-lethal levels of police use of force reflect similar racial disparities in application. Non-lethal force is examined on a continuum of severity, ranging from no force, to verbal force (non-threatening commands of compliance), less-lethal methods (blunt impact via baton or projectile), chemicals (pepper spray), and tasers among the higher levels (Terrill, 2003). Levels of force deployed are based on a myriad of factors in a dynamic police–suspect interaction, including training, departmental policy, individual, and situational factors (Terrill, 2003). According to the Bureau of Justice Statistics, Black individuals are more likely than White and Hispanic individuals to be the recipient of non-lethal police force and perceive it as excessive (Davis et al., 2018). Officers also tend to use higher levels of non-lethal force on Black and Latino men, regardless of the level of a suspect’s resistance (Kahn et al., 2016c; Terrill & Mastrofski, 2002). When examining particular non-­ lethal tactics, police are more likely to use tasers compared to soft hand control techniques, as well as pepper spray and hands and body force, on Black than White individuals (Fridell & Lim, 2016; Goff et al., 2016). Greater levels of non-lethal force against Black and Latino individuals are also applied earlier during an interaction compared to White individuals (Kahn et al., 2016c).

The Psychology of Racially Biased Policing As evidenced above, racial disparities in police use of force undoubtedly exist. This begs the question: What are the causes of these racial disparities? Are they the result of biases in officer-level attitudes and decision-making? Or departmental policies and practices or broader societal inequities? The answer is that each factor likely plays a role in the existence and magnitude of such disparities in policing outcomes. This chapter first focuses on psychological research on race and its effects on police behavior, examining individual-level attitudes and biases, before scaling up in levels of analysis.

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Police Officer Attitudes Social psychological research on the relationship between attitudes and behavior provides insight into how officer-level attitudes produce racially biased outcomes. Dual-processing models of social cognition highlight two types of pathways through which attitudes can lead to biased behaviors: automatic and controlled processing (Smith & Decoster, 2000). Controlled processing is deliberate, slow, and effortful and relates to our conscious beliefs and explicit attitudes. This type of processing is most commonly associated with explicit attitudes about other individuals and groups. Automatic processing, on the other hand, occurs outside of conscious awareness, without intentionality, and is the primary route through which implicit attitudes operate (Smith & Decoster, 2000). Explicit attitudes can impact policing through deliberately biased and intentional behaviors, matching a stereotype of what many may imagine a “racist” police officer to be (Cochran & Warren, 2011). Implicit attitudes may additionally produce racially discriminatory behaviors, without conscious awareness and intention, once an implicit association has been automatically activated in the mind (Bargh & Chartrand, 1999). Implicit attitudes can be primed by encountering a member of a specific social group or through environmental constructs (Fazio, 1986). Implicit attitudes are developed through exposure to cultural stereotypes and repeated pairings of group members and concepts (e.g., Black individuals and crime) (Devine, 1989; Rudman, 2004). For example, media that reinforces stereotypic associations can create implicit stereotypes and bias among society’s members (Rudman, 2004). Because everyone in society is exposed to such cultural messages, implicit attitudes are pervasive across demographic groups (Banaji & Heiphetz, 2010), and police officers can hold implicit biases, just like the general public (James, 2018). Implicit attitudes are more likely to influence behaviors under quick and automatic processing conditions, in which exposure to multiple stimuli occurs and cognitive resources are depleted (Fazio, 1986). Police officers may be especially susceptible to implicit biases through the nature of the policing task itself. Police often work long shifts and may be hypervigilant to threats, both of which can deplete cognitive resources and undermine officers’ ability to engage in controlled, more intentional, processing (James et al., 2018). Demonstrating the effect of implicit attitudes on policing, shooter bias research has sought to replicate the psychology of police officer decision-making. Shooter bias is measured using a first-person shooter simulation, which assesses the response latency and errors in decisions to shoot (or not shoot) targets carrying either weapons or non-weapon objects (e.g., a wallet); these targets vary in demographics and are typically Black or White males (Correll et al., 2014). Decisions to “shoot” are correct when the target is armed, and incorrect when the target is unarmed. Shooting decisions reflect implicit, rather than explicit, processing due to the restriction of response times (e.g., ~630-850 ms), which largely impedes the possibility of slower controlled processing. Stereotype-consistent, anti-Black response patterns in shooting decisions are evident through faster decisions to shoot armed, and a higher

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likelihood of erroneously shooting unarmed, Black targets in comparison to White targets (Correll et al., 2014). While shooter bias has largely been tested using college student and community samples, several studies using police samples have, at least partially, replicated the effect, particularly on reaction times (Correll et  al., 2007; Plant & Peruche, 2005). Shooter bias is driven by implicitly activated stereotypes, the content of which is reviewed next.

Stereotypes Stereotypes play a central role in producing discriminatory behavior toward racial groups. Stereotypes are category-based beliefs about the characteristics, attributes, and behaviors of groups that are applied to group members (Hilton & von Hippel, 1996). Stereotypes function to reduce cognitive load on the part of the perceiver, serving as shortcuts to quick evaluations of a member of a particular group (Hilton & von Hippel, 1996). They may also be explicitly endorsed or automatically activated by relevant primes (Greenwald & Banaji, 1995). Once stereotypes are activated, they serve as a lens through which to interpret subsequent behaviors, often shifting and changing perceptions to be in line with the stereotype (Hilton & von Hippel, 1996). One of the more pervasive negative stereotypes of Black individuals centers on threat, danger, and criminality (Devine, 1989). Black individuals are also implicitly associated with weapons (Nosek et  al., 2007). Demonstrating this stereotype’s effect on evaluations, police officers perceived Black faces to be more “criminal” than White faces (Eberhardt et al., 2004). “Black” and “criminality” are also bidirectionally related to each other, such that priming one concept makes the other more salient (Eberhardt et al., 2004). Due to the race-crime stereotype, police officers may adopt a lower threshold for reasonable suspicion to stop and frisk Black individuals (Hannon, 2020). Stereotype activation may bias visual processing, increasing police officers’ attention toward Black individuals while on patrol, particularly when policing neighborhoods associated with specific racial groups (Kahn & Davies, 2017). Importantly, the race-crime stereotype exists at both the explicit (conscious) and implicit (non-conscious) level, meaning that one does not need to intentionally believe such stereotypes for them to influence behavior (Devine, 1989). Implicit stereotypes can “leak out” when they are unable to be controlled and produce discriminatory behaviors. Race-crime stereotypes similarly bias perceptions and influence decisions to shoot and use force in the field. When implicit stereotypic associations between “Black” and “criminality” are primed during shooter bias simulations, stereotype-­ consistent information (e.g., a Black target holding a gun) is processed and responded to more quickly, and ambiguous information (e.g., a Black target holding an unidentified object) is perceived in a stereotype-consistent manner (i.e., as a weapon; Payne, 2001). This results in faster shooting decisions of armed Black suspects, and greater errors shooting unarmed Black suspects. Translating these

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effects into the field, greater activation of threat-related stereotypes may also account for racial disparities in applications of force during police–suspect interactions (Kahn et al., 2016c). Police officers often have less information about a suspect upon initial contact and may rely on stereotypes to anticipate greater resistance or need for force application toward racial minorities who are stereotyped as threatening and violent (Kahn et al., 2016c). Cues that increase stereotype activation also increase biased responses. Racial minorities with more prototypical racial group features, such as darker skin tones, activate racial stereotypes in perceivers to a greater degree (Maddox, 2004). Such individuals are more likely to be targeted by shooter bias than less prototypical group members (Kahn & Davies, 2010). Relatedly, Black men who are physically taller are also more likely to be stopped by police, as height similarly primes notions of threat (Hester & Gray, 2018). While “Blackness” can increase the potential for force by priming race-crime stereotypes, the more phenotypically White an individual is, the less force is used during police interactions (Kahn et al., 2016a). Thus, “Whiteness” may provide additional protection from police force for White individuals, by further deflecting the applicability of violence stereotypes.

Dehumanization Another important psychological contributor to racially biased policing outcomes is dehumanization (Kahn et  al., 2016b). Dehumanization is the denial of uniquely human traits to individuals and groups and often occurs in intergroup contexts (e.g., Black-White interactions; Haslam, 2006). Ingroup members are more likely to be ascribed traits of “humanness” than outgroup members (Demoulin et al., 2009). In extreme forms, dehumanization contributes to genocide and torture (Harris & Fiske, 2011). Through dehumanization, outgroup members are seen as lacking human traits and as “savage.” This includes being perceived as violent and prone to criminality (Haslam, 2006)—two prominent negative Black stereotypes (Devine, 1989; Eberhardt et al., 2004). An additional form of dehumanization involves perceptions of humans as animals, a notable example being perceiving  Black people as apes (Goff et al., 2008a). Dehumanization is distinct from other forms of prejudice (Haslam, 2006; Wilde et al., 2014). Implicit dehumanization, above and beyond implicit anti-Black bias, predicts greater judgments of criminality and endorsement of violence against Black suspects (Goff et al., 2008b). Dehumanizing individuals also results in lowered perceptions of, and empathy for, physical pain experiences, or beliefs that Black people can tolerate unusual amounts of pain (Haslam, 2006; Trawalter et al., 2012). Within policing, police officers’ implicit dehumanization of Black children is associated with actual racial disparities in police force in the field. That is, the more police officers implicitly associated Black individuals with apes, the more force they used against Black compared to White individuals in the field (Goff et al., 2014). Police officers who implicitly associate Black suspects with animals, seeing

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them as less than human, may see them as less deserving of humane treatment during interactions. They may also underestimate and have less empathy for any pain resulting from use of force.

Social Identity Theory Broader social psychological theories of intergroup relations also have implications for understanding police–suspect interactions and how they may lead to racial disparities in force application. One such example is Social Identity Theory (SIT). A core tenant of SIT is that the social groups to which individuals belong make up an important part of their self-identity (Tajfel & Turner, 1986). From these social identities, one seeks to derive positive distinctiveness and social value in comparison to relevant outgroups, as social groups directly influence self-esteem. This motivation leads one to favor their ingroup, and eventually derogate the outgroup to maintain these positive perceptions. This creates an “us” versus “them”/ “ingroup” versus “outgroup” mentality, which engenders stereotypic perceptions and thinking. Individuals hold multiple social identities (e.g., race, gender, political ideology), and the salience of each will depend on the social context and individual factors. Within policing, officers may specifically identify with “police” as a social identity, to which suspects are perceived as a relevant outgroup. This may be especially true for White police officers who also do not share a racial identity with people of color. In response to the heightened prominence of the Black Lives Matter movement, a counter Blue Lives Matter movement was initiated, which further highlights the significance and salience of policing social identities in the current context. Categorization of individuals as ingroup members also leads to greater perceptual similarities between the self and the ingroup, and outgroup members are seen as more dissimilar and more homogenous (Turner & Oakes, 1989). If officers endorse negative Black stereotypes of criminality and violence (i.e., outgroup derogation), Black suspects may be perceived as  a particularly threatening outgroup who is seen in a homogenously negative light. Racial minority police officers may similarly derogate racial minority suspects through identification with the overarching policing identity. Increased perceptions of similarity between the self and the ingroup lead to depersonalization and enactment of individual behavior more prototypical of the identity group. A Black officer may see their “police” identity as more central than their racial identity while interacting with suspects, leading them to feel more similar to other officers and more dissimilar to suspects. Further, individuals on the periphery between two groups (e.g., between Black and “blue” identities) may overly identify with one group to signal their inclusion in the group, and adopt the group’s informal and formal norms and behaviors (Noel et al., 1995). This discussion is not to say that any or all identification with policing social identities are inherently negative. Social identities provide important sources of social support and meaning-making (Tajfel & Turner, 1986). Instead, SIT highlights

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the potential for such identification to lead to discriminatory outcomes, although they are not inevitable.

Threats to Social Identities In line with SIT, perceived threats to one’s social identity can produce distinct behaviors relevant to policing and bias. One such example of social identity threat is stereotype threat. Stereotype threat occurs when individuals are concerned about being judged by negative group stereotypes in a relevant context, even when they do not personally endorse those stereotypes (Steele, 1997). Stereotype threat leads to physiological arousal, cognitive depletion, and poor performance  in the relevant domain (Steele et al., 2002). Ironically, detriments in self-regulation due to arousal and depletion increase the likelihood of engaging in stereotype-consistent behaviors. Stereotype threat research within policing finds unique identity threats experienced by both police officers and community members. Black individuals may fear being judged by stereotypes of criminality and being treated unfairly by police (Najdowski et al., 2015). Black, but not White, men who experienced greater police-­ related stereotype threat anticipate feeling more anxious during interactions with police and will engage in greater self-regulation of behaviors to avoid being stereotyped (Najdowski et al., 2015). Ironically, this experience of anxiety may lead to an increased likelihood that force is used in an interaction. Police are often trained to look for physiological indicators that a suspect may be dangerous, including rapid blinking, clenched fists, quickened breathing, and sweating (Kahn et  al., 2018). While these may be pre-attack signs, these are also indicators of anxiety and physiological arousal that correspond with stereotype threat. By misinterpreting these indicators, officers may feel that an individual is threatening and that force is warranted. From the officer perspective, stereotypes exist of the “racist police officer” whose behaviors are motivated by racial animus (Cochran & Warren, 2011). Police officers who are chronically concerned about confirming this racist stereotype (e.g., they are concerned about being seen as a biased officer, not that they believe that they, in fact, are biased) while interacting with Black individuals can experience reduced confidence in their authority, and in turn, increase their support for coercive policing (Trinkner et  al., 2019). Thus, additional concern to avoid being seen as a “racist cop” ironically increases racially disparate use of force. Cognitive depletion that police officers experience as a result may also make them prone to implicit stereotyping, lacking the cognitive control needed to engage in deliberate, controlled processing that can help reduce biased responses. Masculinity threat is another form of social identity threat, which represents perceived threats to one’s manhood, that may play a role in policing. Manhood is deemed an elusive and tenuous status, in that it must be achieved or earned and then publicly maintained (Vandello & Bosson, 2013). Policing is a traditionally male-­ dominated occupation, and masculinity may be especially important to the culture

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of policing (Goff & Rau, 2020). A core component of manhood is “anti-femininity” (Vandello & Bosson, 2013) and some police training programs have subtly endorsed and socialized hypermasculinity by excluding female applicants and denigrating women’s abilities in policing (Prokos & Padavic, 2002). Some men may chronically worry that they are not being judged as masculine enough, and be vigilant to potential threats to their manhood. Perceived threats to masculinity can result in compensatory behaviors to reinforce their manhood, including aggressive cognitions and physical acts (Vandello & Bosson, 2013; Goff et al., 2012a). For police officers, use of force may be a route for demonstrating physical prowess and reaffirming one’s manhood. Noncompliance by a suspect may threaten an officer’s masculine ideals of being physically dominant, leading to increased use of force as a compensatory behavior to restore the threatened status. Manhood may be especially threatened by Black men, who are seen as more masculine than White men (Goff et al., 2008b). When police officers experience masculinity threat, they speak to racial minorities with deeper tones-of-voice as a signal of masculinity and dominance (Goff & Martin, 2012), and use force against Black men to re-affirm their manhood status (Goff et al., 2012b).

Social Dominance Orientation The final individual-level factor reviewed is how personality variables, such as Social Dominance Orientation (SDO), may play a role in biased policing. SDO is an individual difference variable consisting of beliefs that society should be arranged hierarchically, and “superior” groups should dominate over “inferior” groups (Pratto et al., 2006; Sidanius & Pratto, 1999). Legitimizing myths (consentually held beliefs that serve to uphold the hierarchy) validate beliefs of which groups are subordinate, providing a moral and intellectual argument for unequal distributions of resources (Pratto et al., 2006). Individuals who are higher in SDO endorse a variety of policies that maintain and enhance the social hierarchy. For instance, SDO predicts less support of racial equality measures and more support of the death penalty and strict law-­ and-­order policies (Pratto et al., 1994). Social dominance theorists have posited, and indeed found evidence, that individuals who are higher in SDO are more likely to occupy roles in institutions that fit their sociopolitical beliefs (e.g., in law enforcement; Haley & Sidanius, 2005). This may be due to either self-selection of individuals into these roles or institutions recruiting individuals who correspond with their roles and values. Serving in these roles may also enahnce such beliefs over time. Police officers tend to score higher in SDO than citizens in other occupations (Haley & Sidanius, 2005). White people and men are similarly higher in SDO than racial minorities and women (Pratto et al., 1994). Consistent with these findings, White officers are particularly high in SDO (Sidanius et al., 1994) and are more likely than Black officers to endorse stereotypes that Black people are violent (LeCount, 2017), potentially serving as a legitimizing myth for perpetuating racially biased policing.

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Contextual-Level Factors’ Effect on Biased Policing Thus far, this chapter has reviewed individual-level psychological factors and how they can lead to racial disparities in policing. It is imperative to understand that individual-level attitudes and behaviors do not exist in a vacuum, and thus are significantly influenced by the social context (Dasgupta, 2013). It is this interaction between individual-level thoughts, feelings, and behaviors and the situational context that together produce the patterns of discriminatory behaviors targeting racial minorities. This chapter now discusses relevant contextual factors. At the departmental level, it is important to consider the effects of police policies and practices on police behavior toward racial minorities. Departmental-level policies regarding policing practices and strategies can significantly impact racial disparities in stops, searches, and arrest rates, above and beyond individual officer-level bias. For example, the New York Police Department’s Stop-and-Frisk Policy in the 1990s created a departmental policy that broadly promoted stopping and searching individuals with lower levels of suspicion. In analyses of the effects of the policy, Black and Hispanic individuals were disproportionately represented in stops and searches, even when accounting for precinct differences and race-specific crime estimates (Gelman et al. 2007; Spitzer, 1999). The legacy of such policies is still relevant today. Similarly, policing strategies and practices that disproportionately dispatch officers to neighborhoods where racial minorities predominantly live increase the likelihood of contact with police. Over-policing due to police policy likely leads to increases in arrest numbers. Research has demonstrated that policies that rely on racial profiling exacerbate racial disparities in policing outcomes, regardless of the underlying criminality rates of groups (Glaser, 2006). Thus, racial profiling artificially leads to racially disparate outcomes that are not reflective of actual criminal behavior: It is the policy itself that produces biased outcomes. In addition to formal policing policies and practices, informal departmental and policing norms can exacerbate biased outcomes for racial minorities. Police officers are influenced by informal norms and socialized into existing police culture at both the implicit and explicit level (Goff & Rau, 2020). If those norms reflect biased beliefs, departmental police culture can contribute to individual police behavior in the field. Further, the types of training that departments focus on also serve as a signal of departmental values (Kahn, 2019). If racial bias training, which will be reviewed below, is viewed as an inconvenience versus a central tenet in the department, a more biased cultural norm is likely supported within the department. Lack of departmental measurement of racial disparities and/or accountability when biased incidents occur further contribute to a biased departmental culture. Scaling up in levels, societal inequalities can additionally influence disparities in policing outcomes. Institutionalized discrimination and policies, such as histories of redlining, unequal educational options, and inadequate healthcare have constrained opportunities and contributed to poverty for racial minorities (Kahn & Martin, 2016). Poverty and income inequality, then, predict crime (Hsieh & Pugh, 1993). If police are disproportionately deployed to high crime areas, this increases the chance

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for police contact, again biasing policing outcomes for racial minorities. Unequal societal treatment across institutions further expose racial minorities to bias within the policing domain. The examples here are not exhaustive of the contextual influences that contribute to racial disparities in policing outcomes, but rather provide relevant examples of the types and ways that policies, practices, and structures can interact with individual-­level attitudes and psychology to produce biased outcomes. The chapter next turns to issues of reform, where cross-level intervention strategies are similarly emphasized.

Reducing Racial Bias in Policing Reducing racial bias in policing necessitates a multi-level and multi-faceted approach. Reforming racial bias in policing is an essential step when considering broader criminal justice reform. As police officers serve as the entry point into the criminal justice system, remediating racial bias within the policing domain can ultimately help reduce racial disparities at further points in the criminal justice system: courts, sentencing, and jails. Biases in entry from policing into the system create an unequal basis on which the remainder of the system rests. At the individual psychological level, officer training is often instituted as a proposed solution to bias-based policing. Police training to combat bias includes sessions on racial profiling, the history of race and policing, and more recently, implicit bias (see Kahn, 2019 for review). Training, while helpful in establishing cultural norms and laying important foundation, however, is unlikely to solve the issue of racial bias in policing alone. One-time training sessions on racial bias are limited in efficacy, and ultimately individuals must be self-motivated to reduce bias (Kahn, 2019). Training is likely to be more effective when it is built into the cultural norms and beliefs of the department, and genuinely represents the values of the organization. Training should represent one part—not the entirety—of a strategy to address bias in policing. Beyond training, policies, practices, and strategies can aid in reducing racial bias in policing. One comprehensive plan to promote equitable policing was laid out in the President’s Task Force on 21st Century Policing (2015). The report issued by top practitioners, police, and researchers outlines essential pillars to guide policing in the next century. Key among these is the idea of community policing, wherein police officers work collaboratively with the community to jointly produce public safety. This entails a demilitarization approach to policing, in which community relationships instill trust and are valued. Viewing the community as full partners with equal stakes and responsibilities promotes cooperation and positive community interactions. Community engagement and contact, in which police officers spend dedicated time interacting with the community they serve, engenders trust and ultimately promotes public safety (President’s Task Force, 2015). Such

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measures and tactics are particularly important in racial  minority communities, which often have lower levels of trust in the police (Tyler, 2005). Continuing, police use of force policies should provide clear guidelines regarding the application of force, and reduce ambiguity and discretion, conditions which make it more likely that stereotypes impact behavior (Hilton & von Hippel, 1996). To promote equitable norms and culture within the department, tracking racial disparities and enacting discipline and accountability accordingly are also key steps. As discussed above, measuring racial disparities and having solid metrics can help alert a department to potential issues and signal need for reform. Body cameras can also serve to increase accountability, but their ability in and of themselves to reduce biased policing or use of force is still unclear (Alpert & McLean, 2020). Disciplinary actions for problematic officers and reform of policies with unequal consequences should also be prioritized. Open communication and transparency with the community on issues of racial bias are necessary to build trust and establish a basis of mutual collaboration.

Conclusion Racial bias is a serious and long-standing issue in policing. The psychology of stereotyping and prejudice can help understand the science behind biased decision-­ making, and also how to counteract it. Individual-level psychological attitudes, stereotypes, beliefs, and social identity threats interact with contextual, departmental, and societal-level factors to produce patterns of policing outcomes that disadvantage racial minorities. It is through multiple avenues and levels that disparities in policing will ultimately be reduced. Jointly, better metics on force application, transparency in data collection, improved training, policing policy, and cultural reform within institutions will help mitigate inequitable treatment in policing.

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Kahn, K. B., Steele, J. S., McMahon, J. M., & Stewart, G. (2016c). How suspect race affects police use of force in an interaction over time. Law and Human Behavior, 41(2), 117–126. https://doi. org/10.1037/lhb0000218 Kahn, K.  B., McMahon, J.  M., & Stewart, G. (2018). Misinterpreting danger? Stereotype threat, pre-attack indicators, and police-citizen interactions. Journal of Police and Criminal Psychology, 33(1), 45–54. https://doi.org/10.1007/s11896-­017-­9233-­1 Langton, L., & Durose, M. (2013). Police behavior during traffic and street stops, 2011. Bureau of Justice Statistics. https://www.justiceacademy.org/iShare/Library-­BJS/PoliceBehavior.pdf LeCount, R.  J. (2017). More black than blue? Comparing racial attitudes of police to citizens. Sociological Forum, 32(S1), 1051–1072. https://doi.org/10.1111/socf.12367 Levchak, P. J. (2016). Do precinct characteristics influence stop-and-frisk in New York City? A multi-level analysis of post-stop outcomes. Justice Quarterly, 34(3), 377–406. https://doi.org/1 0.1080/07418825.2016.1162320 Maddox, K.  B. (2004). Perspective on racial phenotypicality bias. Personality and Social Psychology Review, 8(4), 383–401. https://doi.org/10.1207/s15327957pspr0804_4 Najdowski, C. J., Bottoms, B. L., & Goff, P. A. (2015). Stereotype threat and racial differences in citizens’ experiences of police encounters. Law and Human Behavior, 39(5), 463–477. https:// doi.org/10.1037/lhb0000140 Nix, J., Campbell, B.  A., Byers, E.  H., & Alpert, G.  P. (2017). A bird's eye view of civilians killed by police in 2015: Further evidence of implicit bias. Criminology & Public Policy, 16(1), 309–340. https://doi.org/10.1111/1745-­9133.12269 Noel, J. G., Wann, D., & Branscombe, N. R. (1995). Peripheral ingroup membership status and public negativity toward outgroups. Journal of Personality and Social Psychology, 68(1), 127–137. https://doi.org/10.1037/0022-­3514.68.1.127 Nosek, B.  A., Smyth, F.  L., Hansen, J.  J., Devos, T., Linder, N.  M., Ranganath, K.  A., Smith, C. T., Olson, K. R., Chugh, D., Greenwald, A. G., & Banaji, M. R. (2007). Pervasiveness and correlates of implicit attitudes and stereotypes. European Review of Social Psychology, 18(1), 36–88. https://doi.org/10.1080/10463280701489053 Payne, B.  K. (2001). Prejudice and perception: The role of automatic and controlled processes in misperceiving a weapon. Journal of Personality and Social Psychology, 81(2), 181–192. https://doi.org/10.1037/0022-­3514.81.2.181 Plant, E.  A., & Peruche, B.  M. (2005). The consequences of race for police officers’ responses to criminal suspects. Psychological Science, 16(3), 180–183. https://doi. org/10.1111/j.0956-­7976.2005.00800.x Pratto, F., Sidanius, J., Stallworth, L. M., & Malle, B. F. (1994). Social dominance orientation: A personality variable predicting social and political attitudes. Journal of Personality and Social Psychology, 67(4), 741–763. https://doi.org/10.1037/0022-­3514.67.4.741 Pratto, F., Sidanius, J., & Levin, S. (2006). Social dominance theory and the dynamics of intergroup relations: Taking stock and looking forward. European Review of Social Psychology, 17(1), 271–320. https://doi.org/10.1080/10463280601055772 President’s Task Force on 21st Century Policing. (2015). Final report of the President’s Task Force on 21st Century policing. Office of Community Oriented Policing Services. https://cops.usdoj. gov/pdf/taskforce/taskforce_finalreport.pdf Prokos, A., & Padavic, I. (2002). ‘There oughtta be a law against bitches’: Masculinity in police academy training. Gender, Work and Organization, 9(4), 439–459. https://doi. org/10.1111/1468-­0432.00168 Ridgeway, G. (2006). Assessing the effect of race bias in post-traffic stop outcomes using propensity scores. Journal of Quantitative Criminology, 22(1), 1–29. https://doi.org/10.1007/ s10940-­005-­9000-­9 Rudman, L.  A. (2004). Sources of implicit bias. Current Directions in Psychological Science, 13(2), 79–82. https://doi.org/10.1111/j.0963-­7214.2004.00279.x

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Scott, K., Ma, D.  S., Sadler, M.  S., & Correll, J. (2017). A social scientific approach toward understanding racial disparities in police shootings: Data from the Department of Justice (1980-2000). Journal of Social Issues, 73(4), 701–722. https://doi.org/10.1111/josi.12243 Sidanius, J., & Pratto, F. (1999). Social dominance: An intergroup theory of social hierarchy and oppression. Cambridge University Press. Sidanius, J., Liu, J. H., Shaw, J. S., & Pratto, F. (1994). Social dominance orientation, hierarchy attenuators and hierarchy enhancers: Social dominance theory and the criminal justice system. Journal of Applied Social Psychology, 24(4), 338–366. https://doi.org/10.1111/j.1559­1816.1994.tb00586.x Smith, E.  R., & DeCoster, J. (2000). Dual-process models in social and cognitive psychology: Conceptual integration and links to underlying memory systems. Personality and Social Psychology Review, 4(2), 108–131. https://doi.org/10.1207/S15327957PSPR0402_01 Spitzer, E. (1999). The New York City Police Department’s Stop & Frisk Practices: A Report to the People of the State of New York from the Office of the Attorney General. DIANE Publishing. Steele, C. M. (1997). A threat in the air: How stereotypes shape intellectual identity and performance. American Psychologist, 52(6), 613–629. https://doi.org/10.1037/0003-­066X.52.6.613 Steele, C. M., Spencer, S. J., & Aronson, J. (2002). Contending with group image: The psychology of stereotype and social identity threat. In M. P. Zanna (Ed.), Advances in experimental social psychology (Vol. 34, pp. 379–440). Academic Press. Tajfel, H., & Turner, J. C. (1986). The social identity theory of intergroup behavior. In S. Worchol & W. G. Austin (Eds.), Psychology of intergroup relations (2nd ed., pp. 7–26) Nelson-Hall. Terrill, W. (2003). Police use of force and suspect resistance: The micro process of the police-­ suspect encounter. Policy Quarterly, 6(1), 51–83. https://doi.org/10.1177/1098611102250584 Terrill, W., & Mastrofski, S. D. (2002). Situational and officer-based determinants of police coercion. Justice Quarterly, 19(2), 215–248. https://doi.org/10.1080/07418820200095221 Trawalter, S., Hoffman, K. M., & Waytz, A. (2012). Racial bias in perceptions of others’ pain. PLoS One, 7(11), Article e48546. https://doi.org/10.1371/journal.pone.0048546 Trinkner, R., Kerrison, E. M., & Goff, P. A. (2019). The force of fear: Police stereotype threat, self-legitimacy, and support for excessive force. Law and Human Behavior, 43(5), 421–435. https://doi.org/10.1037/lhb0000339 Turner, J. C., & Oakes, P. J. (1989). Self-categorization theory and social influence. In P. B. Paulus (Ed.), Psychology of group influence (2nd ed., pp. 233–275). Lawrence Erlbaum Associates. Tyler, T. R. (2005). Policing in black and white: Ethnic group differences in trust and confidence in the police. Police Quarterly, 8(3), 322–342. https://doi.org/10.1177/1098611104271105 Vandello, J. A., & Bosson, J. K. (2013). Hard won and easily lost: A review and synthesis of theory and research on precarious manhood. Psychology of Men & Masculinity, 14(2), 101–113. https://doi.org/10.1037/a0029826 Washington Post. (2020, October 17). Fatal force. https://www.washingtonpost.com/graphics/ investigations/police-­shootings-­database/ Wilde, V. K., Martin, K. D., & Goff, P. A. (2014). Dehumanization as a distinct form of prejudice. Testing, Psychometrics, and Methodology in Applied Psychology, 21(3), 301–307.

Chapter 4

Enhancing Police Accountability and Legitimacy Daniel L. Stageman

Abstract  As the institution responsible for exercising the state monopoly on violence within US borders, the legitimacy of policing depends on its accountability through the democratic process. Ideally, police in a democracy are authorized by the voting public to use force in a manner that is limited, justifiable, and clearly in service of the aims of public safety and law enforcement—in other words, to prevent the social harms associated with criminal behavior. A combination of factors including structural inequality, historical associations with white supremacy, and hyperlocal oversight structures present significant challenges to police legitimacy, especially in highly policed communities of color (Stoughton et al., 2020). Despite the existence of various models and mechanisms that provide the potential for meaningful community oversight of police activity, abolitionist perspectives that argue for a radically different approach to public safety are gaining strength. Enhancing police legitimacy and accountability therefore depends on reducing broader race-based social, political, and economic inequities; establishing consistent national standards for police practices; ensuring strong civilian oversight across jurisdictions; and promoting procedural justice as the fundamental guiding principle for police interactions with the communities they serve. Keywords  Police reform · Law enforcement · Public safety · Civilian oversight · Police abolition · Race and policing · Police misconduct · Police violence

D. L. Stageman (*) Office for the Advancement of Research, John Jay College of Criminal Justice, New York, NY, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_4

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Introduction Next to the military, police are the contemporary institutional actor with the most important role in exercising what the seminal social theorist Max Weber called the state monopoly on violence (Weber & Owen, 2004). This concept is key to understanding the importance of police legitimacy and accountability: In Weber’s theory, humans give up the right to exercise interpersonal violence in the pursuit of their own interests, in exchange trusting in a social contract that mandates the government as the only body authorized to exercise force, coercion, and violence. The government, in turn, must have legitimacy in the eyes of the governed and must be constantly accountable to the body politic through electoral and other democratic measures. The government must further commit to utilizing violence only in extremis—when absolutely necessary, and in most cases, following a set of commonly agreed procedures and principles codified in law. In the US context, the military achieves this legitimacy largely by adhering to a short list of core principles: remaining entirely beholden to civilian leadership and (per the Posse Comitatus Act) abstaining from military action on US soil being chief among them (18 U.S.C. § 1385, 1878). American policing, with its focus on domestic security and its supervising authority resting with nearly 18,000 departments with an equally vast array of sizes, service areas, and leadership structures, has no parallel principles to ensure its legitimacy. The guiding principles available to policing are traditions and norms, haphazardly codified in law in many jurisdictions, but by no means universally binding to the institution as a whole. The most widely accepted of these norms, of public safety and law enforcement, guide the functioning of American police agencies by providing the appropriate parameters for the exercise of the state monopoly on violence: Proportionate force is legitimate when used for the narrow functions of protecting the safety of the general public and enforcing widely agreed upon laws. Police agencies are, in turn, accountable to the public in the jurisdiction they serve and should be able to justify both the necessity and proportionality of any use of force accordingly. This ideal is, however, rarely attained by contemporary American police agencies and is arguably unattainable absent massive structural changes to the nation’s overall social, political, and economic organization (Vitale, 2017). The legitimacy of contemporary policing is currently being broadly questioned primarily because the legitimacy of American democracy and governance is itself in question, especially in the context of the multiracial, multiethnic society America is quickly becoming. America’s historical legacy of white supremacist1 governance—in which  To say that the United States has a history of White supremacist governance is a simple statement of fact: the legal underpinnings of historical regimes such as slavery and Jim Crow segregation were explicitly white supremacist in their logic, rationale, and intent (Gates, 2019). Whether contemporary systems and structures of American governance—on the local, state, or federal level— are actively White supremacist is in most cases an arguable question, and an assertion not generally provable via reference to direct evidence in the form of laws or similar official documents. I choose to use the term in a contemporary context because it reflects my assessment of the indirect evi1

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the White2 majority was privileged over Black and other minority residents, who were denied full citizenship and full social membership through a wide range of legal mechanisms, including slavery and Jim Crow3 segregation—has proved extraordinarily difficult to dislodge (Gates, 2019; Gordon-Reed, 2018). If police legitimacy is dependent on broad, democratic consensus that police use of force and coercion—its exercise of the state monopoly on violence—is just and beneficial to society, then legitimacy among communities that have historically been denied full membership in that society may be impossible to achieve outside the context of broader social change (Tankebe, 2012). The importance of full social membership for Black Americans and other communities of color to police legitimacy cannot be overstated; indeed, it is the crux of the national discourse around policing and racial justice that arose in the wake of George Floyd’s killing by Minneapolis police (Serwer, 2020). Additional factors, however, complicate the role of police as agents of the state monopoly on violence in the American context. Americans are outliers—for all practical purposes unique— among developed nations for their unwillingness to cede their right to engage in interpersonal violence in pursuit of their individual, private interests: Some 20 million Americans regularly carry firearms in public, a right that has largely been upheld—and even expanded—in recent Supreme Court jurisprudence interpreting the second Amendment (Herman Peck, 2019). Further rights to engage in deadly interpersonal violence are enshrined in numerous state “stand your ground” laws that decriminalize the use of force in confrontations between private individuals; the fact that white Americans are more likely to be successful in claiming this right—particularly in cases where they are confronting people of color—further speaks to the reality of racial stratification in the social contract (Lathrop & Flagg, 2017). Ultimately, the population of Americans who reserve the right to exercise (deadly) interpersonal violence in pursuit of their own benefit represent a sizeable

dence (persistent race-based inequities across a wide range of social and economic indicators produced by approaches to governance that bolster White privilege, discriminatory and racist rhetoric on the part of elected officials, etc.), which I find overwhelmingly in support of its accuracy. See, e.g., Darity & Mullen, 2020. 2  The subject of whether and when to capitalize the names of racial groups (primarily “White” and “Black”) has received considerable attention in recent discourse surrounding issues of racial justice. I follow here the APA standard, which is to capitalize the terms “White” and “Black” as proper names denoting racial categories. This is an editorial decision applied to this volume as a whole; my personal preference would be to follow the recent decision of the New York Times and capitalize “Black” while leaving “white” lower case. See Coleman, 2020 for a nuanced and comprehensive explanation of the Times’ decision in this matter, with which I concur. 3  Jim Crow was an early nineteenth century stage caricature, performed by White actors in blackface, whose name became synonymous with the many negative stereotypes projected onto African Americans. The name was later used to categorize the suite of post-Reconstruction laws mandating racial segregation in the former Confederate states of the US South. These apartheid laws targeting African Americans persisted until the Civil Rights Movement of the 1960s. For a comprehensive history of the development of these laws, see Gates, 2019.

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interest group4 that has “opted out” of the social contract as it applies to the state monopoly on violence. The fact that this group may (as largely White and wealthy) be culturally aligned with the interests of American police is telling: the alignment of White private violence with the exercise of violence in the supposed public interest speaks volumes about the racialized distribution of political, economic, and social power—contemporary and historical—across the American populace (Pareene, 2020; Parker et al., 2017; Saad, 2019). Governance structures that protect the power and privilege of private interests and promote White supremacy have historically designed and empowered policing agencies that do the same (Brucato, 2014; Hawkins & Thomas, 1991/2013). Socially harmful actions and deviant behaviors on the part of the wealthy, White, and politically enfranchised are routinely overlooked, while crime and criminality are defined expressly to control the activities of immigrants, the poor, and communities of color—and in particular to facilitate the exploitation of these groups, as laborers and in more novel ways (Stageman, 2019). No honest discussion of police reform can afford to ignore the structural, systemic, and historical factors that tie police into the larger context of American social organization and governance, the underlying reality of which remains White supremacist despite an increasingly diverse and multiracial populace (Bonilla-Silva & Mayorga, 2011; Huber, 2016). Police legitimacy in this context is meaningful only insofar as it is a consistent concept. If legitimacy is measured solely among the White and wealthy communities whose interests police have historically protected, then the legitimacy of policing has rarely been in question; if it is measured within the highly policed communities of color against whose interests police force and violence has historically been deployed, its legitimacy is arguably irrelevant to its tacit purpose of social control (Beauchamp, 2020). Acknowledging that the narrative of the United States as a fundamentally White supremacist nation elides a more nuanced portrayal of the complicated distribution of power and privilege along racial lines (and other dimensions of group identity), the fact remains that the achievement of meaningful legitimacy and accountability for American policing is largely dependent on the resolution of these underlying structural inequities (McCoy, 2020). The range of models, mechanisms, and initiatives for improving police legitimacy and enhancing civilian oversight in  local jurisdictions cannot change where or how police agencies fit into the larger context of governance. This is not to say that existing models have been entirely ineffective in advancing the cause of police reform. American policing, as discussed above, is not monolithic. While the thousands of hyperlocal and fragmented policing jurisdictions across the nation clearly impede the establishment of nationwide standards for the oversight and accountability of police behavior, they also allow for significant experimentation with initiatives, agency structures, and civilian panels charged with enacting oversight and holding policing agencies accountable, for both official  Some 20 million Americans, or around 9% of the nation’s adult population, regularly carry guns in public. Around 66 million Americans, or about a third of the adult population, own guns, and two thirds of these cite personal protection as one of their reasons for doing so (Parker et al., 2017). 4

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actions and the behaviors of individual officers. Some of these bodies have become well-established mechanisms for enhanced accountability in individual jurisdictions; newer initiatives have in some cases made great strides in improving the legitimacy of police agencies with the local communities they serve (Jannetta et  al., 2019). The problematic reality remains, however, that hyperlocalization is a huge impediment to enacting these models in any widespread or systematic fashion nationwide (Stoughton et al., 2020). Ultimately, the discrepancy between the real and ideal functions of police in American society has given rise to a discourse which advocates that those ideal functions—providing for public safety, and fairly enforcing widely agreed upon laws—be separated entirely from the legacy, culture, and organizational structures of contemporary policing. This abolitionist perspective calls for a reimagining of the functions of public safety through a return to the core tenets of the social contract (Oh, 2020; Richie & Martensen, 2020). A necessary first step toward a renewed social contract is the recognition that the nation’s legacy of racial inequity and racial stratification stands in the way of full social membership for Americans of color. Fulfilling the promise of America’s contemporary multiracial and multicultural democracy requires the recognition and resolution of the continued harms caused by this racist legacy. From this perspective, police abolition5—whether through defunding or other mechanisms—is a necessary step toward addressing these harms, as part of a larger program of social investment and improved governance in affected communities. It is thus increasingly possible to imagine a future for public safety and law enforcement in which the legitimacy of these functions is ensured by separating them wholesale from the organizational structures, culture, and historical legacies of what we now call policing (Duffy Rice, 2020). In order to preserve its existence in the face of a growing movement calling for radical change, policing itself may need to take an equally radical approach to establishing a broad-based legitimacy that it has not historically held, and accepting mechanisms of accountability that have long been anathema to police leadership and line officers alike (Fisk & Richardson, 2017). If it is possible to achieve, the path to radically enhanced police legitimacy and accountability depends on the active engagement of the whole range of institutional actors in policing—including agency leadership, unions, professional bodies, and individual officers alike—with the resolution of several key factors: reducing broader race-based social, political, and economic inequities;  Police abolition does not imply the abandonment of public safety or law enforcement, but rather is part of a larger abolitionist discourse that presents “a way of thinking about social justice that takes seriously the damaging power [...] of the criminal legal system [and] understands how it serves to create oppression rather than safety or protection” (Richie & Martensen, 2020, p. 14). It has become closely tied to a policy position that advocates defunding: “divesting money from the back end solution of policing and investing it on the front end” (Duffy Rice, 2020) in social programs that reduce crime by building community capacity. Importantly, most of its key proponents acknowledge the necessity of “professionals responsible with holding accountable those who violate the social contract in the extreme—rape or murder—and an improved investigative system to catch perpetrators” (Duffy Rice, 2020). 5

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establishing consistent national standards of practice; ensuring strong civilian oversight across jurisdictions; and promoting procedural justice as the fundamental guiding principle for interactions between police and the communities they serve (Meares, 2017; Nagin & Telep, 2020; Tankebe et al., 2016). Policing intersects with other institutions of the criminal legal system at a wide range of touchpoints, making it a vital part of the larger project of criminal justice reform.

 egitimating the State Monopoly on Violence: What Policing L Is for (and What It Isn’t) In Weber’s original conception, the availability of violence as a means to achieve specific ends was the key distinguishing feature of the modern nation-state: “the state is the form of human community that (successfully) lays claim to the monopoly [on] legitimate physical violence within a particular territory” (Weber & Owen, 2004, p. 33; italics original). The idea of legitimacy is thus essential to the concept. This is particularly true in a democracy, where legitimacy is ostensibly conferred through citizen consensus, and periodically withdrawn or reinforced via the electoral process. In a democratic society, those entities, institutions, or organizations tasked by the state with using violence as a tool—with exercising the monopoly— do so legitimately, or with the approval of the body politic, and for the purposes upon which the state’s various constituencies have agreed. In a democratic state—in which all citizens of legal voting age ostensibly hold an equal interest—a further key to ensuring legitimacy is accountability: the necessity that the agents of state violence answer to the citizenry for its application, promptly and thoroughly, when called upon to do so. The state monopoly on violence works best as a description of the structure of policing. As to policing’s function in a democratic society, it tells us more about the institution’s tacit function than it does about its ideal function. Positivist academic works on policing tend to take these ideal functions—namely, the provision of public safety and the enforcement of widely agreed upon laws—as the appropriate framework for measuring police performance (Moore & Braga, 2003, 2004). Critical analysts, in turn, focus on the tacit functions: the maintenance of a racially stratified neoliberal economic structure, and the White supremacist social structure that sets its underlying assumptions (Vitale, 2017). A wide range of discourses on legitimacy—in the media, in the policy realm, in professional and practitioner venues—thus generate tension from the discrepancy that exists between policing’s official or ideal constituencies and its actual or tacit constituencies. In the American context, the former should consist of the entire community under a particular police agency’s jurisdiction, regardless of race or other demographic characteristics; the latter arguably include corporate interests, individual holders of wealth and capital, and individuals possessing racial privilege (White privilege), while excluding racial minorities (especially Black Americans), the poor, immigrants, etc. Official

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legitimacy, in this case, would be conferred by application of state violence in the interests of all citizens; actual (or tacit) legitimacy, however, is conferred by the application of state violence in the interests of corporations, individual holders of wealth and capital, and White Americans (Pareene, 2020). In such cases, systems of accountability are set up to give the appearance of answering to the full citizenry. When the results of accountability processes favor the state’s actual constituencies, cognitive dissonance inevitably results, especially for members of those groups officially included in—but tacitly excluded from—social membership (Johnson, 2020). As a result, “[t]hose communities where policing is most violent, where surveillance is most intensive and from which considerable populations are extracted to fill the growing prison complex are where legitimacy is lowest” (Brucato, 2014, p. 34).

Hyperlocalization and Institutional Self-Interest Hyperlocalization describes the highly decentralized and fragmented administrative structure of American policing (Stoughton et  al., 2020). The United States has nearly 18,000 independent, local law enforcement agencies nationwide, and no universally applied federal standards—nor any clear state or federal chain of command—to govern them. The leadership for many of these departments—particularly those in large municipalities—are appointed by a mayor, city manager, city council, or some combination thereof, while county sheriffs—the leaders of county-wide law enforcement agencies called sheriff’s departments, who are often responsible for patrolling unincorporated areas, operating county jails, etc.—are generally elected to four-year terms. Regardless of whether their leadership is elected or appointed, hyperlocal institutions have a significant potential to become self-interested and self-sustaining over time, allowing re-election or the continued approval of local political leadership to drive departmental decision-making, rather than the mission-­ driven public safety and law enforcement interests of the communities these agencies serve (Schrader, 2019). Self-interest in law enforcement agencies is by no means limited to leadership; however, both police culture and police unions have the potential to reinforce self-­ interested dynamics among rank and file officers of a given department, by allowing mutual loyalty (the “blue wall of silence”) or conditions of employment to eclipse a given department’s primary missions of law enforcement and public safety in their individual decision-making. Police culture and police unions are often mutually reinforcing in their promotion of officer self-interest, especially in the context of police valorization: a dynamic—especially prevalent on the American political right—that proscribes criticism of police officers by casting their fight against crime in Manichean terms, with the police as an unerring force for good, and the criminals ostensibly arrayed against them as an undifferentiated force of evil (Karpiak & Garriott, 2018).

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Police Culture and White Supremacy All of these problems arguably co-exist in the context of American policing and are therefore mutually compounding in presenting roadblocks to meaningful improvements to the legitimacy and accountability of individual agencies. In agencies where, for instance, violence is tacitly deployed in service of sustaining wealth and White privilege, a majority-White police force might acculturate to the idea of deploying violence to sustain its own privilege, individually and collectively, and elect union leadership that embodies and advances this mission (Giroux, 2017). Issues of white supremacy are, however, deeper and more pervasive in the institution of American policing than simply supporting structural racism without racist intent. Many police forces in the nation—from rural sheriff’s offices to large urban police departments—have long, largely unbroken and unchallenged histories of racist cultures and practices dating back to the civil rights era, the era of Jim Crow segregation, or even further to their founding for the purpose of slave catching or suppression of immigrant communities (Hansford, 2015). Police culture, defined as the belief systems, attitudes, practices, and relationships brought into the institution by individual officers through their traditions, modes of interaction, and legacies, has for most of the history of American policing been explicitly dedicated to enforcing White supremacy and degrading members of racial minorities, particularly the Black American community (Forman Jr., 2017; Gates, 2019; Vitale, 2017). Symbols of support for the police, such as the “Thin Blue Line” flag and the “Blue Lives Matter” slogan, have been deployed by White nationalists to express their ideological support for police, whom they view as, in turn, supportive of their movement or larger goals (Chammah & Aspinwall, 2020; Solomon et al., 2019). Ongoing movements to improve the legitimacy of policing in the communities they serve and hold accountable police officers whose actions betray community trust, need to thread an increasingly difficult path between abolitionist advocates on the left and police unions and their largely white supporters on the right. In order to justify the state monopoly on violence, police need to have widespread support in the communities they serve. Principles of procedural justice are widely shared, and communities and individuals who view the actions of police as adhering to these principles tend to consequently view police as more legitimate (Meares, 2017; Tankebe, 2012). In order to attain legitimacy, however, policing must contend with three major factors: (1) its nature as the institutional holder of the state monopoly on violence in the context of a state whose own legitimacy is questionable in many highly policed communities; (2) its own history as an instrument of discipline, punishment, and control of the underclass and racial out-groups, particularly Black American slaves and their descendants in the American South, and immigrant and organized labor groups in the North; and (3) the contemporary role of police as protectors of property rights in a society where property is increasingly consolidated in the hands of the wealthiest and most privileged Americans, in the context of decades of increasing wealth and income disparity, and increasing precariousness on the part of the

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poorest segment of Americans in terms of housing, health, and education. Advocates and scholars of the increasingly influential abolitionist movement contend that these obstacles are in fact insurmountable, and that policing should be abolished in favor of alternative public safety strategies. These advocates see police as one institution in a constellation of tools dedicated to punitive social control, which includes prisons, jails, prosecutors’ offices, the criminal court system, and others whose net effect is to reinforce the structures of White supremacy that organize American society by a racial and class hierarchy.

Enforcing Race in the History of American Policing The history and origins of American policing, especially in regard to race, are an important factor in standing in the way of legitimacy particularly in communities of color. The origins of police departments and sheriff’s departments in the US South lie with slave patrols—groups of men deputized by county courts to capture and return runaway slaves, generally for a monetary reward from slave owners (Stoughton, 2017). That such patrols were indeed a transitional institution to contemporary police agencies and policing practices in this region is well documented: “unlike the constable, watchman and sheriff, the patrollers had only policing duties, rather than accompanying expectations of fire watch and/or tax collection” (Reichel, 1988, p. 66). The legacy of slave patrols in police departments and sheriff’s offices extended largely unbroken into the era of southern Jim Crow segregation, with many such agencies working actively to suppress Black communities, ignoring and even abetting the depredations of extragovernmental organizations such as the Ku Klux Klan, and willingly giving up arrested Black suspects to horrific torture and murder by White lynch mobs (Pfeifer, 2004). Indeed, iconic images from the Civil Rights Movement include a wide range of police brutality visited upon peaceful Black protesters, including savage maulings by police dogs.6 These historical practices represent a clear demonstration of the tension between tacit and official legitimacy of the state monopoly on violence. Though police forces in the segregated South were ostensibly charged with providing public safety to Black and White communities alike, these exclusively White law enforcement agencies dedicated the vast majority of their capacity to enforcing the social arrangements of Jim Crow segregation, actively supporting official government policies of White supremacy in the process (Forman Jr., 2017). The vast majority have since made no official efforts to reckon with this legacy, condemn their historical abuses, or make an official break with the White supremacist culture handed down from veteran officers whose tenure overlapped the pre- and post-Civil Rights Era and the end of Jim Crow segregation (Seigel, 2017).  Recent investigative journalism by the Marshall Project and its partners suggests that this phenomenon has not been consigned to history. Police dog bites continue to be an underexamined but particularly egregious form of police violence. See Van Sickle et al., 2020. 6

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The origins and subsequent history of policing in America’s urban North was not officially tied to the enforcement of government-mandated racial segregation. Nevertheless, ideas of race and national origin were foundational to the motives that drove the formation of these institutions, as well as the missions with which they were tasked. Northern “politicians […] feared a ‘dangerous class’ composed not of a majority of their fellow citizens but of a minority—albeit a large one—consisting of much of the immigrant population” (Lane, 1992, p. 18). Largely in response to this fear, they formed and funded law enforcement institutions such that “the whole police organization […] involved control of what was then called the ‘dangerous class’“ (Monkkonen, 1992, p.  557) as one of its primary missions. As a raison d’être, this racialized approach to social control was used to successively define the borders of whiteness. As Irish and other immigrants became voters and began to accumulate political capital, they became a large and important segment of Northern policing’s officer corps, establishing their own “whiteness” in the process (Ignatiev, 1995/2009). By the twentieth century, the whiteness of these first and subsequent generation immigrant police forces was well established to the extent that they became integral to the Northern project of establishing the racial categories and hierarchies that should be familiar to contemporary readers: “During World War II, vicious race riots in several cities took the lives of African Americans and Mexican Americans. More to the point, the police not only failed to control the riots but were in many cases part of the problem. Thurgood Marshall compared the Detroit police to the Gestapo; some police officers saw the riots as providing fuel for Nazi anti-­ American propaganda” (Monkkonen, 1992, p. 567). In the context of a historical legacy in which communities of color were the targets of police force rather than recipients of police protection, legitimating the work of police in these communities will require a definitive reckoning with that legacy— and a clear break from it.

Existing Mechanisms for Holding Police Accountable Existing mechanisms for enforcing police accountability in the US context generally revolve around the idea of civilian oversight: as a functionally paramilitary organization, the police (like the military) in a democratic society must ultimately be directed by civilian political leaders, who are themselves directly or indirectly accountable to the democratic process. A self-directed military or paramilitary organization is no longer a tool of governance, which raises the danger that it will use the state monopoly on violence to advance its own self-interested ends, along with those of its leadership (Ba & Rivera, 2019). There are a number of contemporary models for holding police formally accountable, ranging from the purely internal (internal affairs offices) to direct citizen participation (citizen complaint review boards) (Finn, 2001). Between these poles are bodies including inspectors general, ombudsman’s offices, and the various oversight mechanisms set in place by federal consent decrees. Other systems that are not

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policing-specific but are nonetheless used to keep police agencies and individual officers accountable for their actions are civil liability and criminal prosecutions. Each of these approaches to accountability has its benefits and drawbacks. Internal and otherwise agency-related bodies (internal affairs offices, inspectorates general, ombudsman’s offices) ultimately answer to uniformed police leadership or civilian political officials, leaving their motives vulnerable to agency self-interest and other forms of corruption; however, they arguably possess the requisite professional expertise to undertake complex investigations and may have better access to data establishing patterns of abuses than parallel civilian agencies. External bodies, such as civilian complaint review boards and the oversight structures mandated by federal consent decrees, may be insufficiently resourced to address patterns of behavior, or poorly designed for addressing individual incidents. Criminal courts have a notoriously poor track record for sanctioning police actions and behaviors, in large part because they are heavily reliant on police to handle the enforcement necessary for them to serve their core function (Robertson, 2017). Civil courts, while frequently providing direct recompense to individuals harmed by police misconduct in the form of monetary damages or settlements, are a deeply flawed accountability mechanism, since civil penalties are generally paid out by municipal insurers rather than individual officers7 or offending agencies (Schwartz, 2016). Fundamentally, accountability is about answering for actions and behaviors, and facing proportional consequences for those actions and behaviors that cause measurable harm. According to this definition, holding individual officers accountable for harmful actions requires a similar calculus to that undertaken in the criminal legal system when judging a subject’s responsibility—and appropriate punitive sanctions—for criminal behavior, with the same assessment of factors: incapacitation, rehabilitation, specific and general deterrence, retribution. Institutional accountability requires an altogether more nuanced and complex set of calculations, particularly when addressing historical abuses that may significantly predate the involvement of any current individual personnel. Fledgling efforts to support police agencies in undertaking what is effectively a “truth and reconciliation” process, such as the National Initiative for Building Community Trust and Justice, have shown promising results in both promoting an awareness among agency personnel of the lasting impact of historical abuses, and in improving community-level perceptions of police legitimacy (Fontaine et al., 2019; Jannetta et al., 2019). These effects have proved largely ephemeral, however, and in the absence of further federal funding to support their consistent and widespread implementation nationwide, it is difficult to judge their potential for effecting real and lasting improvements to police legitimacy.

 “Officers personally satisfied just 0.02% of the more than $735 million awarded to plaintiffs over a six-year period in suits alleging constitutional violations and corresponding state tort claims, including assault, battery, false imprisonment, and intentional infliction of emotional distress.” (Schwartz, 2016, p. 1147). 7

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 bolition: Engaging with Alternative Approaches A to Public Safety Multiple police killings of primarily Black men in the early decades of the twenty-­ first century have instigated mass popular movements aimed at fundamentally changing the way that law enforcement and other criminal justice system actors approach people of color.8 The most recent, at the time of writing, was the death of George Floyd at the hands of Minneapolis police officers. In the movement that arose in the wake of Floyd’s killing, the slogan “defund the police” was widely popularized among progressive activists, and the idea of abolition began to receive serious consideration in media discourse and policy conversations (Duffy Rice, 2020). Originally rooted in the prison abolition movement, police abolition draws on the ideas promoted by that movement’s founders and earliest proponents, in particular the activist scholars Angela Davis and Ruth Wilson Gilmore (Davis & Rodriguez, 2000; Gilmore, 2007). The movement’s fundamental position is that “[p]rison needs to be abolished as the dominant mode of addressing social problems that are better solved by other institutions and other means” (Davis & Rodriguez, 2000, p. 215). In other words, it is a call for imagining alternative approaches and institutions that prevent, mitigate, and/or rectify the social harms associated with crime and criminality, through parallel or entirely novel mechanisms that are currently served by the prison system: deterrence, incapacitation, and rehabilitation. The justification for this reimagining is rooted in the idea that the US prison system causes as much—if not more—social harm than it prevents. The prison abolition movement has since evolved into a broader movement advocating for the abolition of a wide range of criminal justice system institutions, including (most prominently in the wake of George Floyd’s killing by Minneapolis police) policing, such that the police abolition movement can now be viewed as a distinct and highly debated area of activism. While by no means a unified movement, the basic premise from which the logic of police abolition flows is that the historical and contemporary harms caused by police to communities of color render it impossible for policing in its current form to attain legitimacy in these communities, and that in order to be held accountable for these harms, the institution of policing must be comprehensively dismantled. This is not, however, to say that the police abolition movement discounts the need for public safety professionals as a clear necessity to the continued function of a democratic society; rather, the movement advocates for a complete reimagining of these public safety functions and how they can be fulfilled. In particular, advocates call for the disaggregation of the many (arguably clumsily matched) public safety functions that contemporary police have come to fill. Separating functions such as  The most important of these is the Black Lives Matter movement, a rallying cry and organizing principle that arose from the protests in Ferguson, Missouri following the police killing of Michael Brown. The movement continues to be a powerful force in racial justice activism. See Lebron (2017). 8

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responding to incidents of mental health crises from the investigation of violent crimes, or oversight of traffic safety from responding to quality of life complaints, is essential in the views of these advocates to carry out these functions in a manner that enhances community safety rather than detracting from it. Ultimately, however, the movement questions the social value—and social purpose—of investing significant public funds in the conspicuous exercise of the state monopoly on violence. Police legitimacy among communities of color is not achievable if the actual purpose of police is to visibly protect the privileges of wealth and whiteness and actively suppress the political participation and social membership of Black communities. A legitimate approach to public safety in communities of color, in the logic of the movement, would invest a greater proportion of these public funds in social programs that address the root causes of crime, and actively serve to redress the historical exclusion and suppression of the political, economic, and social participation of communities of color in broader American society. Democratizing public safety, according to the police abolition movement, requires an acknowledgment of the true purpose police have historically served, and a repudiation of that purpose through dissolution. Only this clean break from the legacy of White supremacy, and its continued influence on the culture of policing, will allow new institutions with true and democratic public safety and law enforcement missions to arise.

Procedural Justice and Police Legitimacy The idea of procedural justice, as originally conceived by Tyler (1990/2006), is that people tend to accept the legitimacy of their interactions with police as long as they feel they have been treated fairly. This is a key finding for establishing legitimacy across the criminal justice system in an ostensibly democratic society. “Democratic societies require normative commitment to function effectively” (Tyler, 1990/2006, p. 65) because direct enforcement of the law through the punitive intervention of criminal justice system actors cannot be sufficiently widespread as to provide significant deterrence against lawbreaking. In other words, a clear connection is required between governance, the will of the people to be governed, widespread social norms, the passage of laws, and the circumstances of their enforcement, in order for a given law and the way that it is enforced to fit the shared sense of “justice” held by the majority of citizens in a society.

Achieving Meaningful Legitimacy and Accountability The abolitionist perspective laid out above raises the question of whether policing as an institutional category—and, in turn, the thousands of agencies nationwide organized under its aegis—can in fact attain meaningful democratic legitimacy at

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all, absent a comprehensive reimagining of the role of race in American society. The “policy recommendations” that follow do not presume to answer this basic question. Rather, these recommendations are intended to grapple with this question as directly as possible, primarily by remaining open to the possibility that they might be enacted across a range of potential outcomes. They are sufficiently broad to enhance legitimacy in the context of policing as it is currently defined, or to ensure accountability in the functions of public safety and law enforcement in a hypothetical future when policing as we know it no longer exists.

 stablish Clear and Consistent National Standards for Police E Behavior, and a Federal Leadership Structure to Enforce Them The hyperlocalization of American policing contrasts with the broad nationalization of media and policy discourse on the racialized nature of police violence and misconduct, resulting in a national problem that requires nearly 18,000 separate local solutions. Absent a set of binding national standards for appropriate use of force and other police activities, the vast majority of these jurisdictions will fail to undertake any meaningful problem-solving process—much less a process with the potential to achieve a lasting and significant positive effect on police legitimacy in their communities. The appropriate problem-solving process in the face of a nationwide problem is a process undertaken at the federal level. A set of national standards that positively defines the functions and clearly lays out the fundamental mission of American policing is the necessary outcome of this process, along with a federal administrative leadership structure empowered to enforce these standards. It is important to acknowledge the questionable constitutionality of a fully federalized agency structure for American policing (James & Harrington, 2020). Indeed, it is arguable that any such restructuring would first require the distinct criminal legal codes of the 50 states to be standardized. While it is beyond the scope of this chapter to speculate on the potential legal avenues for achieving this outcome, the potential for effecting meaningful and lasting reform is severely limited by the disparate nature of police leadership structures. Standardization and centralization are prerequisites to any successful effort to enhance the legitimacy and enforce the accountability of America’s public safety apparatus.

 ndertake a National “Truth and Reconciliation” Process U Addressing the Full Depth and Breadth of Policing’s Racist History In 1996, 6 years after the capitulation of South Africa’s White supremacist Apartheid government, the nation undertook a formal restorative justice process under the authority of a legislatively mandated Truth and Reconciliation Commission (Moon,

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2008). While the commission’s relative successes and failures have been fiercely debated since the conclusion of its primary work in 2000, it established a model that has been widely followed in the years since, by governments intending to acknowledge and repair the harms associated with past official policies and practices. It is explicitly a restorative rather than a retributive process although it is generally undertaken with significant investment into potential reparations for making whole existing communities and living individuals who have been harmed by the policies under examination. The process has shown promising results in the work of local police jurisdictions and other institutional actors in the United States that have adopted the model to address specific past atrocities or policies that have caused racially specific harm (Reddock, 2017). An appropriately resourced and congressionally sanctioned truth and reconciliation process encompassing the full history of racialized harm caused by American policing is a necessary step toward establishing meaningful legitimacy for the functions of public safety and law enforcement. Full participation by existing police agencies across the country is a prerequisite for the success of any such process, along with meaningful accountability in the form of official acknowledgment of harm, specific procedural reforms to address any harm that are ongoing, and reparations for the individuals and communities impacted.

 learly Delineate Roles and Responsibilities for Disparate C Public Safety Functions A common criticism of contemporary police operational structures focuses on the wide range of social functions line officers are expected to serve: the general maintenance of public order in their patrol areas; first response to a wide variety of crisis situations reported by citizens via 911 and other mechanisms, including domestic conflicts and mental health crises; protection of public safety via the confiscation of proscribed tools of violence and the incapacitation of individuals who wield them with malice; the cataloging and investigation of a vast array of property and violent crimes, from petty theft to premeditated murder. While specialization within larger police agencies provides distinctive focus to the everyday work of small groups of officers (e.g., detectives), the vast majority of American police agencies are too small or insufficiently resourced to allow for significant unit-based specialization. It is therefore necessary that police—or any successor public safety professions— clearly define and differentiate these disparate functions and address them with personnel who possess the skills and training necessary to carry them out to a high degree of competence. If police are indeed the domestic holders of the state monopoly on violence, then the limits of violence as a tool for enforcing compliance and promoting public safety must be recognized. Similarly, investment in the services that highly policed communities actually need—such as the clearance of violent crimes through the investigation, arrest, and prosecution of perpetrators—arguably

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requires the involvement of professionals unburdened by the culture and history of policing’s broader functions, and the community distrust that so often accompanies them (Ferrandino, 2020; Pare et al., 2007).

 emove White Supremacists and Other Racist Police R from Public Safety Professions Recent investigatory journalism by the Plain View Project9 has cataloged the racist social media posts of officers around the country, resulting in a range of disciplinary processes being undertaken by the departments that employ them (Hoerner & Tulsky, 2019; Lou & Jones, 2019), while an extensive recent report from the Brennan Center for Justice argues that the FBI has suppressed extensive knowledge of the degree to which individuals with ties to formal White supremacist hate groups have infiltrated police departments nationwide (German, 2020). Nuanced discussion of the potential benefits of implicit bias training and concerted efforts to hire racially diverse officers cannot answer the specific concerns raised by these findings—namely, that an institution with a powerful legacy of historical racism and (arguably) a problematic role in enforcing contemporary racial stratification has attracted to its officer corps many individuals who explicitly support these goals. Policing as an institution cannot hope to answer charges of racial bias in its core functions while employing individuals who are openly racist, nor while supporting an organizational culture in which such individuals find themselves comfortable. Training initiatives that address implicit bias and hiring initiatives that aim to increase officer diversity are intrinsically positive and should be pursued as such, but a clean break with the racist legacy of American policing requires an equally clean break with the individual personnel who continue to promote that legacy. A profession-wide zero-tolerance policy is the only appropriate solution. Individual Americans may have a constitutionally protected First Amendment right to express racist beliefs and ideology, but they have no parallel right to serve as an active-duty police officer while doing so.

 stablish Multiple Complementary Layers of Civilian Oversight, E and Directly Involve Highly Affected Communities Civilian oversight of police activity is an established reality in most large jurisdictions nationwide. It is an equally established reality that most existing mechanisms for civilian oversight are ineffective at establishing lasting and significant positive changes to police behavior. This includes formal civilian political leadership such as  https://www.plainviewproject.org/

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mayors and city councils as well as oversight-specific bodies like civilian complaint review boards. Political leadership hires and fires chiefs and commissioners primarily as a symbolic response to egregious instances of police misconduct or violence, rather than as part of a comprehensive project of granular reform. Civilian involvement in police policy- and decision-making needs to be more than symbolic or aimed at resolving individual instances of misconduct. Jurisdictions must incorporate members of highly policed communities—those that have experienced the most historical harm from abusive police practices—into formal oversight bodies with a meaningful role in public safety decision-making. Separate bodies might address individual officer misconduct, but only in the context of an overall civilian oversight structure with input into the decisions and negotiations that determine the underlying structure in which officer misconduct takes place. Key decisions requiring community input would include the hiring and promotion of departmental leadership, the negotiation of union contracts, the establishment of minimum standards for education and training, and the codification of a wide range of operational standards and practices. Involving the community directly in significant policy decisions around public safety ensures that the agencies responsible for enforcement cannot become insular and self-interested.

 pply the Principles of Procedural Justice to the Full Range A of Mission-Driven Police–Community Interactions Much of the substance of the above recommendations involves actions and mechanisms that promote procedural justice. “Procedural justice […] is a comprehensive change to the ways in which police departments do business and a constant work in progress” (Quattlebaum et al., 2018, p. 7), the ultimate goal of which is to better align the manner in which public safety is enforced with the will of the people who rely on it. A democratic society inevitably features a range of beliefs, attitudes, and ideologies among its citizenry; functional democratic governance operates on the basis of consensus, with criminal codes that represent the beliefs of a wide swath of these citizens about the proscription of harmful behaviors. It stands to reason, then, that the enforcement of these laws should be equally subject to consensus. Communities need to believe that the law enforcement agencies serving them approach enforcement in a manner that is just and fair, in order for those agencies to have legitimacy. Legitimacy, in turn, relies on accountability. Separate and self-­ interested institutions are accountable only to themselves. The concept of procedural justice is not therefore limited to a description of individual police interactions with civilians—although operational standards for everything from demeanor to transparency to de-escalation certainly matter. It is the context in which these standards are established that ensures they are one aspect of a holistic reimagining of the community’s relationship with public safety. A sense of justice and fairness is grounded in a reciprocal relationship between communities, the law, and the

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institutions that enforce it. Whether policing will be a part of establishing this reciprocity, or stand in its way, remains to be seen.

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Nagin, D. S., & Telep, C. W. (2020). Procedural justice and legal compliance: A revisionist perspective. Criminology and Public Policy, 19(3), 761–786. https://doi.org/10.1111/1745-­9133.12499 Oh, S. (2020, September 16). What it’s going to take to fix policing. Brennan Center for Justice. https://www.brennancenter.org/our-­work/research-­reports/what-­its-­going-­take-­fix-­policing Pare, P.-P., Felson, R.  B., & Ouimet, M. (2007). Community variation in crime clearance: A multilevel analysis with comments on assessing police performance. Journal of Quantitative Criminology, 23(3), 243–258. https://doi.org/10.1007/s10940-­007-­9028-­0 Pareene, A. (2020, August 28). The police are pretty sure they’re going to get away with it. The New Republic. https://newrepublic.com/article/159142/ portsmouth-­virginia-­police-­louise-­lucas-­lisa-­lucas-­burke Parker, K., Menasce Horowitz, J., Igielnik, R., Oliphant, J.  B., & Brown, A. (2017, June 22). The demographics of gun ownership. Pew Research Center: Social and Demographic Trends. https://www.pewsocialtrends.org/2017/06/22/the-­demographics-­of-­gun-­ownership/ Pfeifer, M. J. (2004). Rough justice: Lynching and American society, 1874–1947. University of Illinois Press. Quattlebaum, M., Meares, T. L., & Tyler, T. (2018). Principles of procedurally just policing. The Justice Collaboratory at Yale Law School. https://law.yale.edu/sites/default/files/area/center/ justice/principles_of_procedurally_just_policing_report.pdf Reddock, J. (2017). Truth, justice, and reconciliation in response to police shootings of African Americans in the United States. The Journal of Race and Policy, 13(1), 42–57. Reichel, P.  L. (1988). Southern slave patrols as a transitional police type. American Journal of Police, 7(2), 51–78. Richie, B. E., & Martensen, K. M. (2020). Resisting carcerality, embracing abolition: Implications for feminist social work practice. Affilia Journal of Women and Social Work, 35(1), 12–16. https://doi.org/10.1177/0886109919897576 Robertson, C. (2017). Restoring public confidence in the criminal justice system: Policing prosecutions when prosecutors prosecute police. Emory Law Journal, 67(4), 853–887. https:// scholarlycommons.law.emory.edu/elj/vol67/iss4/5/ Saad, L. (2019, August 14). What percentage of Americans own guns? Gallup. https://news.gallup. com/poll/264932/percentage-­americans-­own-­guns.aspx Schrader, S. (2019). To protect and serve themselves: Police in US politics since the 1960s. Public Culture, 31(3), 601–623. https://doi.org/10.1215/08992363-­7532667 Schwartz, J.  C. (2016). How governments pay: Lawsuits, budgets, and police reform. UCLA Law Review, 63, 1144–1298. https://www.uclalawreview.org/ how-­governments-­pay-­lawsuits-­budgets-­and-­police-­reform/ Seigel, M. (2017). The dilemma of ‘racial profiling’: An abolitionist police history. Contemporary Criminal Justice Review, 20(4), 474–490. https://doi.org/10.1080/10282580.2017.1383773 Serwer, A. (2020, October). The new reconstruction. The Atlantic. https://www.theatlantic.com/ magazine/archive/2020/10/the-­next-­reconstruction/615475/ Solomon, J., Kaplan, D., & Hancock, L. E. (2019). Expressions of American white ethnonationalism in support for “Blue Lives atter”. Geopolitics. Advance online publication. doi:https://doi. org/10.1080/14650045.2019.1642876. Stageman, D. L. (2019). The punishment marketplace: Competing for capitalized power in locally controlled immigration enforcement. Theoretical Criminology, 23(3), 394–414. https://doi. org/10.1177/1362480617733729 Stoughton, S. W. (2017). The blurred blue line: Reform in an era of public & private policing. American Journal of Criminal Law, 44(2), 117–155. Stoughton, S.  W., Noble, J.  J., & Alpert, G.  P. (2020, June 3). How to actually fix America’s police. The Atlantic. https://www.theatlantic.com/ideas/archive/2020/06/ how-­actually-­fix-­americas-­police/612520/ Tankebe, J. (2012). Viewing things differently: The dimensions of public perceptions of police legitimacy. Criminology, 51(1), 103–135. https://doi.org/10.1111/j.1745-­9125.2012.00291.x

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Tankebe, J., Reisig, M. D., & Wang, X. (2016). A multidimensional model of police legitimacy: A cross-cultural assessment. Law and Human Behavior, 40(1), 11–22. https://doi.org/10.1037/ lhb0000153 Tyler, T. R. (2006). Why people obey the law. Yale University Press. (Original work published 1990). Van Sickle, A., Stephens, C., Martin, R., Brozost-Kelleher, D., & Fan, A. (2020, October 2). When police violence is a dog bite. The Marshall Project. https://www.themarshallproject. org/2020/10/02/when-­police-­violence-­is-­a-­dog-­bite Vitale, A. (2017). The end of policing. Verso Books. Weber, M., & Owen, D. S. (2004). The vocation lectures. Hackett Publishing.

Chapter 5

Victim-Oriented Police Reform: A Comparative Perspective Craig Paterson

Abstract  The growth of the global Black Lives Matter movement has shone a renewed spotlight on the universal experience of victimization in the form of under-­ protection and over-policing for marginalized communities across the world. This chapter uses this debate as an entry point for a discussion about what a more victim-­ oriented policing might look like and introduces case study examples from the United Kingdom, India, Argentina, and Australia. These examples of victim-­ oriented policing have been selected to demonstrate the breadth of similar experiences across the globe as societies seek to enhance democratic engagement with policing and to empower the role of victims within the criminal justice system. Victim-oriented policing is rights-based, in that it prioritizes the needs of those who have been victimized, and collaborative, in its recognition that state police agencies represent just one policing node amongst a network of agencies that perform policing functions to support the person who has been victimized. The chapter reviews the existing literature on victim-oriented police reform and introduces the case studies to support some theoretically informed commentary on the challenges of implementing sustainable victim-oriented reforms. Keywords  Police · Policing · Conceptualization · Reform · Victimization · Victimology

Introduction For most of the nineteenth and twentieth centuries, the dominant mode of thinking about policing in western democracies has been that the police solve and resolve crime and disorder issues through a predominantly reactive approach. This discourse has now been partially displaced by a more proactive and preventive approach C. Paterson (*) Helena Kennedy Centre for International Justice, Sheffield Hallam University, Sheffield, UK e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_5

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to policing which seeks to stop crime occurring in the first place and re-prioritizes the position of victims of crime in criminal justice responses. The twenty-first century has seen the continued development of victims’ movements that emerged in the last quarter of the twentieth century, and this has led to the language of victim-­ oriented policing seeping into political and public debate in democratic countries although often without discussion about what this might look like in terms of police practice. Police organizations are more likely to successfully tackle crime when policing strategies are based within and informed by those who experience crime and harm (Paterson & Best, 2016; Paterson & Williams, 2018). Such an approach creates a need for police to develop problem-oriented partnerships with other agencies (including probation, social work, education, housing, and community-based organizations) to identify and address underlying causes of crime. The success of these community-oriented and partnership-based reforms is subject to much debate with repeated questions about the challenge of achieving sustainable and enduring change (McCold, 1998) rather than the continuation of a law enforcement ethos that bolts community and problem-oriented policing reforms on to traditional reactive policing models (Skogan, 2008). The multifunctional nature of policing means that police work is subject to a range of tensions, including the different priorities of upper and middle management compared to those of frontline officers and a perception amongst frontline officers that their peacekeeping role (i.e., mediation, negotiation, and pacification) is not always valued as real police work (Moor et al., 2009). Reform movements thus wax and wane without changing the fundamental purpose of policing. The growth of the global Black Lives Matter movement has shone a renewed spotlight on the universal experience of victimization in the form of under-­protection and over-policing for marginalized Black communities across the world. This chapter uses this debate as an entry point for a discussion about what victim-oriented policing might look like and uses case study examples from the United Kingdom, India, Argentina, and Australia. These examples of victim-oriented policing have been selected to demonstrate the breadth of similar experiences across the globe as societies attempt to manage ever-changing experiences of crime and security while also seeking to enhance democratic engagement with policing and to empower the role of victims within the criminal justice system. The first part of the chapter reviews the existing literature on community, problem-­oriented, and victim-oriented police reform and situates this discussion within the context of wider criminal justice reform. Theoretical and policy-focused critiques are provided and then supported by case study examples to illustrate some of the challenges and opportunities presented to those involved in reform endeavors. The second half of the chapter situates these case studies in the context of contemporary policy responses and concludes with some theoretically informed commentary for those tasked with implementing sustainable victim-oriented reforms.

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Victims of Crime, Vulnerability, and Policing The expanding subdiscipline of victimology has had a significant influence upon criminal justice discourse and has led to paradigmatic policy changes upon approaches to crimes such as domestic abuse and sexual violence. The initial influence of feminist and critical race theorists over the emergence of victimology has been supplemented by the growth of intersectional perspectives which have influenced policing policy through a discourse that surrounds the concept of vulnerability (Bartkowiak-Theron & Asquith, 2012; Paterson & Best, 2016). This section of the chapter reviews the influence of these academic and policy-level discussions and their impact upon policing studies, policy and practice before providing some case study examples of how these ideas have translated into operational policing. There has been an undoubted shift towards incorporating victims’ voices and associated support mechanisms into policing strategies and tactics across international jurisdictions (Bartkowiak-Theron & Asquith, 2012; Paterson & Best, 2016). Yet, there has been surprisingly little scholarly discussion about what victim-­ oriented policing, or, more specifically police, should look like. This absence of debate is due, firstly, to the misplaced assumption that the evolution of community policing is, in its essence, victim-oriented, and, secondly, due to the offender-­ oriented analysis that dominates policing studies. As a consequence of this, victim-­ oriented support tends to be bolted on to existing community policing services as a supplement to the prevailing police mandate of law enforcement (Kelling & Wilson, 1982), population governance (Bajpai, 2013; Foucault, 1991), crime prevention (Farrell, 2001), and low-level social control (Cohen, 1985). The discourse of police chiefs and their political overseers thus captures the language of victims, but the translation of this discourse into practice is uneven and highly dependent upon the prevailing cultures of local police teams and partner agencies. The most important initial conceptual point to make here is that there is a need to separate the police, understood to be a publicly funded body of state personnel, from policing in its broadest conceptual sense. The latter term includes the public police as well as the diverse panoply of social control roles, functions, and agencies that ensure good social order. Policing scholars have subsequently raised questions about who are the most legitimate sources of policing and authority for those impacted by the most harmful aspects of crime and disorder and how might these multiple nodes of policing and security be best organized and governed (Bayley & Shearing, 2001; Johnston and Shearing 2003). Shearing, drawing initially upon his experience of post-Apartheid South African police reform, bemoans the scholarly emphasis upon police ahead of policing and argues that this narrow conceptualization of policing problems had led to insufficient analysis of new and still emerging governing mentalities, institutions, and technologies that coalesce into networks of plural policing.1  The University of Leeds, UK (2020), has an ongoing project on Everyday Political Economies of Plural Policing for anyone interested in this literature - https://essl.leeds.ac.uk/everyday-politicaleconomy-plural-policing/doc/rescources 1

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Thus, while there is a body of literature that reviews and assesses the re-­ introduction of community-based policing and problem-oriented policing in the latter part of the twentieth century and the early years of the twenty-first century, the focus of the findings is on changes to policy and practice ahead of conceptualization. Unsurprisingly, there has been a consequent focus upon changing police discourse, policy, and training, without sufficient consideration about how to operationalize a reconceptualized purpose in the same policing context (Moor et al., 2009). Writing during the rebirth of community policing models, McCold (1998) suggests that police organizations were not yet ready for the changes that community policing and problem-oriented policing demanded. A decade later, Fleming and O’Reilly (2007) identify a similar position in Australia and describe community policing as a small-scale programmatic endeavor rather than the more ambitious reconceptualization of purpose that many had called for. This leaves us with the question of why fundamental police reform that engages citizens and empowers victims is such a challenging process. The nineteenth century processes of industrialization and modernization changed policing from being a victim-oriented service delivered through informal plural networks to a state-run offender-oriented process (Bajpai, 2013; Foucault, 1991). Prior to the rise of victims’ movements, insufficient consideration was given to the extent to which this nineteenth century shift in philosophical assumptions drew criminal justice processes away from the victim and consideration of the harm caused to individuals and the wider community (Bajpai, 2013; Kirchengast, 2006). The late twentieth century models of community policing emerged as a solution to this technocratic gap between what the public wanted from policing services and what public police and state criminal justice processes offered. Across the landscape of Anglophone criminal justice, these changes have offered slow and piecemeal reform to those who experience the most significant victimization and harms from crime. The movement towards victim-oriented policing draws on community policing’s aspirations to reduce boundaries between police and communities and the problem-­ oriented shift away from single crime incidents to a more comprehensive appreciation of what is needed to address crime problems and the harms they cause. Scholarly policing studies have had a historical tendency to situate critical discussion around either consensual administrative analysis of the police function or neo-Marxist conflict perspectives concerned with the purpose of state police, leaving little room for other perspectives. Manning (2010) concludes that it is this genesis of policing studies which limits one side of the discipline to reporting on the concerns of practitioners, the public, and politicians, while the other side engages in critique without practice application or influence. The following sections address this issue by drawing in a range of different theoretical perspectives to the discussion about victim-­ oriented policing prior to their application in the case studies.

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What Is Victim-Oriented Policing? A victim-oriented approach to policing in democratic societies has the protection of life as its primary aim alongside recognition that crime, harm, and victimization are experienced in very different ways by different people and communities. Therefore, victim-oriented policing is rights-based, in that it prioritizes the needs of those who have been victimized, and collaborative, in its recognition that state police agencies represent just one policing node amongst a network of agencies that perform policing functions to support the person who has been victimized. Victim-oriented policing is thus an aspirational goal rather than a systematic program that seeks to build collaborative aims for those tasked with informal and formal policing functions in democratic societies. There is recognition that much progress has been made in engaging communities with policing across jurisdictions, but there is a general consensus that the rights and needs of victims are yet to become a core element of day-to-day policing which remains offender-oriented and process-driven (Bajpai, 2013; Manning, 2016; Packard, 2008). This global challenge has been recognized by the United Nations which provides guidance on working with communities emerging out of conflict and the sensitivities required to work with those who have been victimized by states and conflict. One of the most critical intellectual insights on these debates comes from abolitionist and victimological scholars such as Nils Christie (1977, 1986) who provide an extensive critique of the state ownership of crime that emerges out of state legal process and the marginalization of victims of crime that emanates out of this model (see also Walklate, 2011). Community policing is not, in its essence, victim-­oriented, and the limitations of community policing endeavors arise because models of policing were not fundamentally reconfigured to deliver new aspirations (Paterson, 2011). As such, the historical purposes of state police prevailed with their focus upon social control, law enforcement, crime prevention, and the protection of the interests of the state. Community policing was subsumed into these ways of thinking about the work of the police rather than presenting a challenge to existing ways of thinking about policing. A model of policing that has citizens and victims at its core requires a much more radical reconfiguration than this. One potential mechanism for the realization of more victim-oriented approaches is to find ways of addressing “primary or secondary victimization and reduce the effects of victimization on the community” (Clark, 2005, p. 650). Where appropriate, this should include engaging communities in the reform process through radical forms of governance (for example, see Patten, 1999; Vitale, 2017). Victim-oriented policing thus requires organizations tasked with the delivery of policing to form collaborations that include those communities who are most at-risk of harm and to think about how they collectively conceptualize policing needs (Paterson & Best, 2016; Paterson & Williams, 2018). In practical terms, this should include the social, political, legal, and ideological alignment of structure, governance, partnership, roles, functions, training, and education to this conceptualization of policing (Williams & Paterson, 2019).

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The limitations that the common law model of justice poses for the development of victim-oriented policing are rarely explored. Bajpai’s (2013) victimological critique of common law criminal process provides one rare example from India, with most western studies addressing the challenge of victim-oriented developments through critiques of community policing (for an overview, see Skogan, 2008). Manning (2010) argues that this conceptual challenge arises because western policing studies have developed in a largely atheoretical manner that rarely engages with underlying assumptions about policing or that questions its common law offender-orientation. Policing scholars recognize the importance of separating the institution and functions of the police from the looser concept of policing which reflects wider processes of social control. This conceptualization has been stretched further to focus upon networks of security (Bayley & Shearing, 1996; Johnston & Shearing, 2003; Shearing & Wood, 20032) and has led to debate about the extent to which the public police retain a privileged position in security provision (Loader & Mulcahy, 2003; Stenson, 2005). Yet, despite their value in understanding the governance of policing networks, these debates take policing scholarship towards political science realms in discussing structures, accountability, and governance and do not resolve normative debates about who should police and how. This perspective opens up potential links with the theoretical literature on collective efficacy, its focus upon social disorganization, and the source of solutions to crime problems existing in the relationship between communities and crime (Sampson & Groves, 1989). Important to this perspective is the potential for victim-­ oriented policing to de-individualize responses to harm and, instead, address the collective problems and social justice issues that offenders, victims, and communities face (Christie, 1977). This cultural reconfiguration can mean that police organizations do not see it as part of their role and function to engage with victims, particularly where law enforcement or other quasi-militaristic policing philosophies are prevalent. Even where this is not the case, it can be difficult for the public police to engage those communities that are also often the target of coercive law enforcement. Because of this, many police organizations utilize non-uniformed personnel and non-coercive partners to engage with the public and victims of crime. A key question that manifests itself here is where do the police fit into victim-­ oriented policing? Particularly, where there are longstanding historical tensions between communities that feel victimized by the state and police and police organizations that view communities through the lens of order maintenance and crime control. There is an extensive literature on the under-policing and protection of specific types of victims of crime that these approaches produce (see Manning, 2010 for an overview). Added to this, the over-policing of specific societal groups and their subsequent victimization by police in the same communities where there is an absence of security leads to a significant justice and security deficit (Mastrofski

 There is a large body of literature that analyzes nodal network theory within the context of policing and security, and I have only touched the surface of it here. 2

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et al., 2002; Wisler & Onwudiwe, 2007). This latter issue has gained global attention since the death of George Floyd in the United States and the growth of the Black Lives Matter movement, but attention could also be drawn to the unjust policing of minority groups in a multitude of other countries. It is this core point about the unjustness of policing and the neglect of the least advantaged that runs through Manning’s 2010 book Democratic Policing in a Changing World. In democratic societies, policing requires trust between citizens and institutions to function justly and effectively. There is a strong international evidence base available that demonstrates that trust, confidence, and legitimacy are enhanced when there are co-operative arrangements which support the interests of all stakeholders (Tyler, 1990). Democratic citizens have a right to equal justice and public agencies are required to support this. Thus, any activity that furthers inequality should be avoided where possible, and activities should be promoted where they are of greatest benefit to the least advantaged members of society. Rawls refers to this latter aspect as the difference principle (Rawls, 1971, 1993) which Manning (2010) draws on a key potential measure of policing success. In accordance with this perspective, policing requires a distributive approach to justice that recognizes existing social, material, and political inequalities and seeks to address these. This presents a challenge to hot spot and intelligence-led policing and surveillance strategies which traditionally target the most coercive methods towards the most disadvantaged members of society and thus further entrench inequality (Kapoor, 2013; Manning, 2010; Vitale, 2017). Marxist, feminist, critical race, and post-colonial theoretical perspectives all raise important questions about the extent to which genuine democratic engagement and an orientation around victim’s needs is possible with policing structures that emerged during colonial, authoritarian, or conflict environments where their ideological priority was the establishment of a specific political order. The following section puts theory into practice and reviews victim-oriented case studies using some of the theoretical ideas presented in the previous sections. These case studies do not provide a comprehensive picture of victim-oriented reforms, but they have been selected for the purpose of an appreciative analytical approach that illustrates positive opportunities for future reform. The case studies are drawn from England and Wales, Australia, India, and Argentina.

Victim-Oriented Police Reform in England and Wales The potential of victim-oriented policing strategies for increasing public confidence in the police has been well documented (Clark, 2005; Farrell, 2001; Packard, 2008; Paterson & Williams, 2018). Influenced by feminist, critical race, and intersectional critiques, policy trajectories across criminal justice agencies continue to attempt to embed victims’ interests into the criminal justice process. This policy shift has led to the development of policies that emphasize the psychological and democratic benefits of situating victims at the heart of any police response (Ibarra & Erez, 2005;

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Taylor, 2012). It is therefore possible to reconfigure the social relations through which police–community relations emerge, to increase public confidence in police action, and to deliver more efficient and effective policing services (Clamp & Paterson, 2016). The potential implications for police legitimacy, effectiveness, and efficiency are significant. Community policing philosophies and problem-oriented policing strategies have infused contemporary policing with a renewed victim focus. Despite this, they have not achieved the paradigmatic change that their advocates hoped for due to challenges presented by, amongst other things, the offender-­ orientation of criminal justice processes, police organizational structures, and prevailing law enforcement philosophies (Clamp & Paterson, 2016; Skogan, 2008). A victim-oriented perspective should thus be an enabler for those who wish to implement community or problem-oriented models. Recognition that repeat victims generate disproportionate demands on police organizations makes this a mechanism for crime prevention and the generation of efficiencies in service delivery (Farrell, 2001; Stanko, 2008). Addressing repeat victimization extends the crime prevention function using available intelligence and data to inform proactive policing strategies. Much of the initial repeat victimization work in England and Wales from the 1990s focused upon property crimes, in particular burglary, where simple target-­ hardening prevention activities had a significant impact upon rates of repeat victimization (Farrell, 2001). Police forces in England and Wales developed their own individualized responses to repeat victimization with burglaries, and this led to dramatic reductions in crime rates, although often without a full understanding of which preventive measures had been most effective (Farrell, 2001). Crime rates in England and Wales continued to fall until 2015, but the police unexpectedly found that public confidence in their activities fell at the same time, as they were introducing these preventive strategies. This decline in confidence was partly due to an absence of focus upon how police did policing (i.e., how they engaged with citizens and victims) and their subsequent individual and organizational legitimacy in the eyes of the public (Bradford et al., 2009; Tyler, 2017). The challenge to police legitimacy also emerged because the focus upon repeat victimization encouraged police organizations to focus upon crimes that were easy to solve rather than the complex social problems that had the most harmful impact upon peoples’ lives (Eterno & Silverman, 2012). In the later 1990s, efforts to reduce repeat victimization in England and Wales started to incorporate gender violence. In part, this was due to public concerns about violent crimes, but, more significantly, it was due to the enhanced public profile given to the vulnerability of victims of gender violence by non-governmental organizations (Hanmer et al., 1989). One of the key drivers here was recognition that individuals who experienced domestically located violence in early life were then increasingly likely to experience further violence and harm, both as perpetrators and victims, in later life (Stanko, 2008). Furthermore, as this violence continues it can become increasingly severe, with one in three murders across England and Wales following on from previous abuse (Stanko, 2008). Similar insights from the United States led to the introduction of mandatory arrest policies in many states, whereas in England and Wales a range of different tools became available to police agencies

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to support and protect repeat victims. Collectively, these policy initiatives led to the development of databases that detail patterns of contact with the police (victimization and offending) and which have the potential to be used by police organizations and partners from the statutory and non-governmental organization (NGO) sectors to better understand the needs of vulnerable people as well as how and where to deploy resources in response to this. As the earlier section noted, there are many other statutory, civil, and informal bodies that perform policing functions and that contribute to order through a disparate range of social processes. It is these non-state bodies that drove initial change in policing in England and Wales from below and helped to facilitate a victim-­ orientation at the policy level. It was also clear from evidence emerging out of Australia and England and Wales that while NGOs and other statutory partners were key drivers of reform, the public continued to expect the police to undertake a leadership role within new initiatives (Clamp & Paterson, 2016; Taylor, 2012). This demonstrates that even where there are calls for reform there remains continued demand for police leadership in the community to demonstrate the presence of professional and disciplinary authority on behalf of the state alongside the capability to perform coercive functions where necessary. Therefore, change is most likely to be enacted when it has the active support of police leaders and is driven through a partnership model that prioritizes the protection of vulnerable people and is able to risk assess and triage appropriate responses (Paterson & Best, 2016; Stanko, 2008). Despite progress in responding to the needs of victims, policy developments in England and Wales face continued criticism related to their top-down and administrative response to victimization (Duggan & Heap, 2014; Walklate, 2011). It has been argued that this approach has been undertaken to the detriment of community-­ based programs that seek to empower victims via advocacy and support and address the underpinning causes of (often) male violence (Buzawa & Buzawa, 2003). Comparative analysis provides an opportunity to gain insight into alternative approaches to developing victim-oriented policy that is responsive to both the needs of individuals and the underlying social conditions that produce harm and victimization. The following sections analyze these case studies.

Victim-Oriented Police Reform in Argentina As state-centered and offender-oriented criminal justice systems have an embedded historical tendency to circumvent victims’ interests, victim-oriented innovations often emerge outside of states structures and from within civil society. Tankebe’s (2013) account of police reform in Ghana illustrates the problems this can create, as attempts to implement community and victim-oriented reforms led to a rise in police violence and extra-judicial killings. Mani (2000, p.  10) identified similar police reform challenges in countries experiencing conflict, or in post-conflict transition, which retain close links to the military or other post-colonial legacies (Cole, 1999; Kapoor, 2013). Argentina had experienced similar police reform challenges during

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its transition from military rule and the long shadow of colonial rule but the following case study provides a more positive account of how civil society can help drive victim-oriented reform and identifies the role of non-governmental organizations as key agencies in the reconceptualization of policing responses where historic military influences have damaged trust in state police. Top-down police reform requires a sufficient degree of social order and governmental support to be successful. Reforms must also be attuned to local context and their associated networks of power in order to be implemented effectively. The Buenos Aires Metropolitan Police was established in 2010 due to concerns about the Argentine Federal Police’s ability to address violent crime and low public confidence in policing resulting from years of military rule and corruption. Concerns about citizen security, police ineffectiveness, and public mistrust led to the development of a new communications infrastructure for the Buenos Aires police and the opportunity to embed a victim-oriented police response. In this example, communications center personnel were tasked with monitoring panic button calls from individuals who were at high risk of violence. This victim-­ oriented policing program emerged out of localized concerns about safety and security and, in particular, significant rises in violence against women that were given a high public profile by NGOs and activists (Sibilla, 2012; Solano, 2012). The individuals, who also included gang members, were identified as at-risk during court proceedings and were provided with additional support services. The panic button initiated a response from a bespoke emergency center that involved specially trained police personnel and live lines of communication that could also bring in bespoke psychological or social support where this was deemed appropriate. As was the case in England and Wales, initial policy awareness was driven outside of state structures which created the space for technological innovation and a victim-oriented policing response. Critically, in this case study, the individual at risk of re-victimization is the active decision-maker who initiates the police response and is not passively responding to the process-oriented goals of criminal justice professionals. This victim-oriented approach situates the police as the first responder to vulnerable people via pre-emptive alerts that are sent directly to a repeat victimization communication suite which locates the person at-risk, an appropriate response unit, and a support worker. The victim-oriented approach utilizes the technology as just one strand within a package of social and psychological support that emphasizes victim empowerment and protection alongside the smarter use of scarce police resources (La Casa del Encuentro, 2020). Latin American policing reforms need to be understood within the context of historically troubled police–citizen relations that, in Argentina, remain characterized by low levels of trust in government and concerns about police corruption and effectiveness (Eaton, 2008). These concerns about citizen security, gender violence, police corruption, and civil liberties created the space for an innovation that reconfigured policing responses. The driving force behind the panic button program’s objectives came from women’s NGOs and ensured a victim-oriented approach that continued to be owned by local actors as well as state agencies. This context facilitated the establishment of a victim-oriented inter-agency response within a new

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communications infrastructure that reflected the needs of the most vulnerable people in society. Policing reforms that are driven by the needs and vulnerabilities of communities unsurprisingly demonstrate a better appreciation of the spaces where victimization takes place (Amin, 2004) and what might be a proportionate and effective response. These bottom-up reforms therefore allow communities and vulnerable citizens to integrate their own interpretations of crime and disorder into policy developments via sustainable collaborations with more powerful institutions. In this case study from Buenos Aires, it was specific challenges to police legitimacy that drove a reconceptualization of policing around community needs. This prioritization of the voice and interests of vulnerable people has been captured once again in the Black Lives Matter movement and its recognition that poorly governed police agencies can enhance the threat of victimization to specific communities rather than providing security.

Victim-Oriented Police Reform in India Little attention has so far been given to the proliferation of victim-oriented approaches to policing which utilize twenty-first-century information and communication technological infrastructures to address repeat victimization (Paterson, 2015). In 2015, Delhi Police launched the Himmat app in response to concerns about the public safety of women after the high profile rape of a young lady on a bus in 2012. Although use of the technology was not high, with around 31,000 registered users by 2017, the app provided a policing response that was initiated by a shake of a smart phone linking a vulnerable individual to a police communications center and a nearby response vehicle with, where possible, the appropriate skillset to respond to this crime (Mason et al., 2015). A similar technology is also being used in Punjab, Stree Samman, where it has been downloaded 51,000 times since its introduction in 2015. These technological developments have been driven by concerns about citizen security, mobilized through NGOs and community action groups to force innovation and change. India had become the focus of global media due to high profile murder and sexual violence cases, not least the 2012 Delhi bus rape that led to sustained public protests organized by women’s groups. While the global attention was drawn by specific cases, the rising profile of victims in India goes back much further than 2012. The victims’ movement grew throughout the 1990s through a combination of judicial, academic, and NGO activism which led to a human rights inspired victims’ movement. This activism led to recognition that traditional criminal justice processes and procedures excluded victims (Bajpai, 2011; Chockalingam 1995, 2005) and led to a range of legislative and policy innovations that slowly began to impact upon policing. These victim-oriented developments emerged out of community-based programs as a response to inadequate social policy and uneven formal criminal justice responses (De Guzman and Kumar 2011). This challenge was particularly

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significant in the rural systems which had historically relied upon village courts (panchayats) to administer justice but were facing increased pressure from police and government to reform (Vincentnathan & Vincentnathan, 2007). There are enormous challenges in translating new policy discourse into practice across India, with police violence still prevalent in many areas (Verma, 2005). Jauregui’s (2013, p. 126) anthropology of Uttar Pradesh Police illustrates this point by identifying the continued problem of physical coercion alongside a culture of “neglect, abuse, excuse and retreat into hyper-proceduralism.” Formulating a victim-­orientation in contexts where state and federal police are in competition with other informal modes of policing remains a significant challenge and highlights the point that all police reform needs to be context specific (Paterson & Williams, 2018). It is commonplace for states experiencing political transitions and significant economic development to have pluralized forms of policing that incorporate non-­ state actors who perform community-centric policing functions. Lessons learned from the development of professional policing in Anglophone countries point to the importance of retaining these community linkages as centralized state policing capability grows (Grabosky, 2009; Hills, 2014; Williams & Paterson, 2019) to ensure that the voices of communities and those most at risk of crime are not lost. There are multiple examples of victim-oriented policy innovations in India which include the development of all women police stations for female victims and mandatory crime recording policies although these reforms have had a tendency to conceptualize female police officers as the solution to the problem of gender violence. One again, this discourse is not wholly unproblematic as it demonstrates poorly evidenced assumptions about unity amongst women of all ethnicities, religions, classes, and castes. The next section moves on to analysis of victim-oriented approaches in Australia and a case study from Queensland.

Victim-Oriented Police Reform in Australia One of the key mechanisms for victim-oriented reforms has been an increased focus upon understanding the impact of policing through the lens of vulnerability. The language of vulnerability draws upon academic discourse in the fields of ethics and human rights law as part of its attempt to re-orient police thinking around the vulnerability that is encountered by police officers and other agencies. Bartkowiak-­ Théron and Asquith (2017) describe this approach to policing as requiring a universal precautions model that recognizes all forms of vulnerability and requires policing actors to identify and respond to the individual, social, and institutional contexts of vulnerability that they encounter. The universal precautions model draws on the longstanding recognition that encountering vulnerability has always been a core element of the policing experience (Banton, 1964; Bittner, 1967; Skolnick, 1966; Westley, 1970). Collectively, these authors created the sociology of policing through their identification and analysis of policing being primarily concerned more with the management of social

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welfare and order rather than that of crime. Despite this empirical reality, modern policing continued to operate on the premise that police officers needed to just learn the law and how to administer this. There are significant changes taking place in police reforms as the recognition of vulnerability and the rights of those who experience policing has been moved to the core of how some governments and police agencies think about their work. The universal precautions model recognizes the critical role that police officers undertake as gate keepers to the criminal justice process in environments where distinctions between offenders and victims are often unclear. In response to these challenges, the Queensland Police Service has developed a universalist approach to vulnerability that makes all police officers responsible for “…improving service delivery to vulnerable people in line with the ambition of this policy” (Queensland Police Service, 2020). This shift in approach recognizes that there are specific forms of vulnerability that policing agents need to identify (e.g., age, ethnicity, gender, poor mental or physical health, previous victimization) but incorporates these specific needs within a framework that acknowledges that vulnerability is universal and potentially present in all situations that police encounter. It is therefore essential that policing agents have the requisite skills to identify and respond to each set of circumstances to intervene with legal tools where necessary and to bring in support from other agencies where appropriate. This approach is underpinned by insights from Tom Tyler (1990, 2017) on the value of procedural justice in maintaining order as more just forms of policing are likely to generate and maintain sustainable forms of social order and to avoid the social unrest that is intermittently experienced by all of the countries included in this chapter. In practical terms, this approach recognizes that the police have always delivered a combination of legal and social welfare functions, but that the latter function has been downplayed in police recruitment, training, and culture. Recognition that social welfare issues such as supporting the homeless, child safeguarding, and mental health crises are core police functions (as they have always been) is long overdue. Similar recognition is required of the need for effective collaboration to address these issues, as police officers are not trained to respond to these problems but need to be cognizant of how to access and mobilize other available resources. This approach puts both the vulnerable person (whether they are understood as an offender, victim, or witness) and the need for a rights-based response to situate the needs of the person at-risk of harm at the heart of the policing response. Bartkowiak-Théron and Asquith (2017) note that these policing responses require multi-agency governing bodies that can address the multiple layering of complex social needs in individuals and communities. This demand leads to a reconceptualization in responses and draws on the benefits of collective intelligence and the need for collaborative, multi-disciplinary action that incorporates shared policies, data access, and knowledge exchange. In the Queensland Police approach, there is an identifiable attempt by the organization to encourage police to “contextualize the individuals with whom they interact” in a manner that would be recognized elsewhere in the public health landscape where approaches grounded in vulnerability have a longer history.

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 ituating Victims and Vulnerability at the Heart S of Victim-­Oriented Police Reform The global policy drift towards community policing and an enhanced philosophical and practical orientation towards victims of crime has been slow but incrementally impactful across several jurisdictions. The next step towards victim-oriented policing will recognize this policy development as requiring a rights-based shift throughout police organizations and their policing partners towards agreed collaborative goals. In order to ensure sustainable change and development, it is necessary to provide a clear legislative platform that empowers policing agents to work collaboratively alongside human and financial resources. Prior to this, successful victim-oriented policing requires a more concerted political effort to articulate a clear conceptual understanding of victim-oriented policing as an enabler of police reform. As a primary requirement, this requires political, civil, and agency leadership to recognize that the historically narrow focus upon the police as the sole solution to the problem of crime is outdated and an inhibitor to reform. To move forward, there is a theoretical need to both broaden and lengthen the conceptual lens through which police and policing are understood in order to generate a victim-orientation that is not just bolted on to concerns with crime prevention, law enforcement, and public protection (Clamp & Paterson, 2016). A victim-oriented approach requires policy changes that are driven from the bottom-upwards to make collaborations work while also benefiting from the support of senior leadership. It is in this context that a comparative analysis of victim-­ oriented policing adds value as it encourages politicians, policy-makers and practitioners to envisage more radical changes than have previously considered and to create space for other local actors to contribute to debates about criminal justice reform. There are plenty of negative and skeptical accounts about community-­ oriented policing reforms, but these structurally focused analyses often underplay the importance of street-level professionals in driving change. The case studies in this chapter provide powerful accounts about what can be achieved. Renewed intellectual emphasis upon the dynamic nature of bottom-up reforms that emerge out of collaborations built within communities situates those who experience and deliver policing as drivers of this process (Wood et al., 2008). Successful victim-oriented policing thus requires new underpinning assumptions and a workforce that has been recruited, trained, and embedded in a culture that embraces shared goals. All policing actors need to develop practice and cognitive skills that align with statutory requirements to prioritize a duty of care and to facilitate inter-professional practice. These are examples of how this can be delivered in this chapter via a universal precautions model that is developed through a collaborative rather than siloed approach to victim-oriented policing. It is essential to stop tinkering around the edges of reform and to embrace a reconceptualization of policing that can deliver effective security for all citizens in twenty-first-century democracies.

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Chapter 6

The Future of Police Reform Rachel Harmon and Scott Harman-Heath

Abstract  The future of police reform might be best predicted by looking to the recent past, where we find countless proposals for change. But merely looking at lists of suggested reforms is not enough. This chapter considers apparent trends over the past decade in the objectives, methods, and actors targeted—the why, how, and who of reform calls—as a signal of the direction of reform efforts to come. It also examines some important issues reformers must address in answering each of these questions. With respect to the why of reform, recent efforts have emphasized addressing racial injustice, making policing more democratically responsive, and reducing harm regardless whether it is lawfully imposed, over other reform objectives. With respect to the how of reform, critics have sought more coercive means of spurring police departments to change practices, have looked to technologies of accountability, and have worked to reduce the scope of policing by diminishing its power and resources and expanding alternative means of generating public safety. With respect to the who of reform, reformers increasingly target state (rather than federal) actors and legislatures (rather than courts) to reshape policing. These trends are likely to continue, and the next decade of police reform will likely reflect their impact. Keywords  Police reform · Policing · Civilian review · Police accountability · Defund the police

R. Harmon (*) · S. Harman-Heath University of Virginia Law School, Charlottesville, VA, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_6

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The Future of Police Reform What was true in 1991, when four police officers struck Rodney King “fifty-six times in eighty-one seconds,” remains true today: Policing in the United States is in need of reform (Domanick, 2016). Moreover, there is almost universal agreement about when the reform should take place: immediately, if not before. But what kind of reform? Often, police reform efforts chase the latest crisis. After George Floyd died under the knee of Minneapolis (Minn.) police officer Derek Chauvin, reformers called for a ban of choke and strangleholds (Evstatieva & Mak, 2020), and cities and states rushed to comply. When Louisville police killed Breonna Taylor while executing a no-knock warrant on her apartment, reformers demanded the elimination no-knock warrants (Sanchez, 2020), and again states and localities acted in droves. And when it came to light that first responders in Aurora, Colorado, had injected Elijah McClain with ketamine, causing his heart to stop, reformers insisted that officers should not use the drug during arrests (Ortiz, 2020), and legislative and policy proposals are ongoing. As these examples suggest, modern reform discussions focus fervently on the what of reform: police should be demilitarized, independent prosecutors should be appointed, or officers should receive racial bias training. As crises accumulate, reform agendas risk seeming like laundry lists, which is to say, cognitively easy but perhaps conceptually bereft. You might walk away from “5 Ways to Reduce Police Misconduct” (Cherkasky & Cherkasky, 2020) or 8 Can’t Wait (Campaign Zero, 2020), or “Three Ways to Fix Toxic Policing” (Scientific American, 2020) wondering why these reforms and not others? However important the articulated reforms, such lists sometimes seem—like annual Top 10 lists—more “a public ritual” (Dargis, 2007) than a guide to action. If one merely catalogs recent reform, one might think that the near future of police reform is likely to be little more than the accretion of lessons from recently past crises. But if one looks beyond what reform has been called for and carried out over the past decade to other questions—the why, how, and who of recent reform— one can see trends that suggest something about the future of police reform. First, the why of reform. Commentators often take the why to be self-­explanatory: Reforms should prevent bad outcomes, such as those evident in last week’s news. In the wake of recent tragedies, for example, most critics want to make policing less deadly and less discriminatory than it is today, and with good reason. But police reforms have different possible objectives, those objectives influence which reforms are most appropriate, and those objectives have shifted over time. Second, the how of reform. Just as different reforms serve different goals, they attempt to solve the problems of policing differently. We suggest that most reforms fall into one of two loose categories. First, classical reform aims to change the decision pathways for officers and departments. Such efforts can be internal, in that they directly alter law enforcement agency practices, or external, exerting force on agencies and officers from the outside with the aim of effecting internal reform. Second,

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in the last several years, the popularity of another type of reform has substantially risen; contemporary reform, which includes both recent diminishing efforts, which seek to shrink coercive policing, and alternative reforms, which seek to make coercive policing unnecessary by promoting public safety and order in other ways. While classical reform will not be abandoned, trends suggest that contemporary reforms will come to complement and compete with classical approaches. Third, the who of reform. Reform agendas for local policing have long demanded action from a wide variety of government and nongovernment actors, many of whom are not local. Over the past decade, reformers have newly prioritized some actors over others, changing who is being tasked with changing the police. In each case, examining how reform efforts have shifted in recent years offers insight into the direction of future reforms that is unavailable from looking solely at recent reform agendas.

The Why Policing has long had its problems. Among other concerns, critics complain that officers are violent, ineffectual, corrupt, unfair, lawless, intrusive, and disconnected from their communities. Most reforms seek to ameliorate one or more of these issues. But the goals of police reform are not interchangeable: Different goals may suggest different reform priorities, and indeed some reforms may promote one goal at the cost of compromising another. Thus, specific reforms—the what of reform— cannot be evaluated except in relation to the why of reform, the objective the reform is intended to achieve. As the why of reform changes, the what of reform is likely to follow. For example, existing research suggests that body-worn cameras do not significantly reduce the use of force or improve police–citizen relations, the usual reasons reformers have called for them. Still, they seem to facilitate criminal investigations, making police more efficient and effective at solving crimes, a purpose that departments value, but that some critics of policing abhor (Lum et al., 2019). They may also have other yet unproven benefits, and reformers continue to push body-worn cameras, though perhaps not as enthusiastically as they did a few years ago. But whether they are worthwhile depends significantly on one’s objectives in changing the police. Even if calls for some reforms persist over time, behind those lists, one can see a shifting emphasis from some objectives to others, a trend that suggests more about the future of reform than the lists alone. Consider, for instance, civilian review and community oversight boards. For decades, reformers have advocated for civilian review, in recent years, increasingly so. Moreover, dozens of major cities have established or revamped civilian review boards in the wake of recent crises (Fairley, 2020). Traditionally, reformers advocated for civilian review on the grounds that law enforcement agencies often fail to police their own. Although officers should be

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disciplined or fired by their employers when they break the law or departmental rules, in practice officers often engage misconduct, citizens complain, and then agencies do little; they fail to investigate officers thoroughly or fairly or to discipline them adequately for misconduct. Civilian review boards have long been viewed as a way to achieve the objectives of increasing individual officer accountability and reducing future misconduct by the mechanism of strengthening investigations and discipline. Thus, boards primarily accept complaints, conduct or review misconduct investigations, and recommend discipline, although they also sometimes have other roles and powers. Unfortunately, there is little evidence that these expensive institutions work to improve accountability or reduce misconduct (National Research Council, 2004). Indeed, anecdotal evidence suggests that many boards do not substantially increase misconduct findings against officers, strengthen discipline, or earn the confidence of their communities. Commentators explain away these outcomes, arguing they result from institutional deficiencies: inadequate independence, transparency, neutrality, power, or expertise (e.g., Fairley, 2020). Nevertheless, few boards can be considered successful, and yet, still, reformers call for new and better boards and communities answer. Why demand civilian review, given how poorly it seems to work at improving officer discipline? Recent civilian review efforts suggest an answer. First, although the boards continue to focus first and foremost on investigations and discipline, they also often engage in other forms of oversight, such as making recommendations on police policy and practices (Fairley, 2020). Second, the boards now include more members of underrepresented communities. Thus, these boards open departments to community scrutiny and participation. Reformers who want more effective internal discipline as a means to reduce misconduct might be wise to consider other devices. But those who seek to make police agencies more responsive to communities, a different objective, may still value this reform. This new motivation for civilian review exemplifies one important recent change in the objectives of police reform: Unlike earlier reform efforts, which generally sought to reduce policing’s harm and increase its lawfulness by strengthening bureaucratic controls over officers, critics today often focus instead on transferring power over policing policies, priorities, and practices away from bureaucrats and technocrats to communities and their members. If democratic responsiveness as an objective for police reform is waxing, another objective is waning. By the beginning of the twentieth century, reformers complained of police lawlessness, officers’ willingness to basic legal constraints and the lack of recourse when they did. Thus, President Hoover’s National Commission on Law Observance and Enforcement, better known as the Wickersham Commission, issued a report on Lawlessness in Law Enforcement, documenting widespread abusive interrogations and illegal arrests by the police (Wickersham Commission, 1931). This concern continued to dominate twentieth century conversations about police reform, and it was reflected in the Supreme Court’s mid-century efforts to discourage and deter such abuse by imposing new legal rules and constraints and

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new incentives to follow them (Mapp v. Ohio (1961); Miranda v. Arizona (1966); Katz v. United States (1967)). Lawlessness in policing remains a concern for police reformers today, who often push to hold officers accountable for breaking the law. But, far more than before, reformers now reject lawfulness as the benchmark by which police conduct should be measured. Instead, advocates today often fight to reduce consent searches, stops, and uses of force, regardless whether they are legally imposed. For example, in 2020, a video went viral showing an officer shooting Rayshard Brooks from behind, killing him, after Brooks took a Taser from the officer and shot it at him as he ran away. Protesters did not wait for more details; they took the streets within hours. Their immediate, angry response signaled in effect that it did not matter that Brooks had resisted a lawful arrest or had turned a weapon on the police. Whatever the legal technicalities, the crowd seemed to view police shooting one more Black man as illegitimate, whether or not it was illegal. To be sure, the shift in emphasis is not total. Critics still frequently complain that particular shootings, including that of Brooks, are unlawful as well as unjust, unfair, or unnecessary. Nevertheless, on balance, police critics seem to have moved from “Hands up, don’t shoot,” towards a simpler message: “Don’t shoot.” A final trend in the why of reform concerns racial injustice. Racial justice has always been an important theme in police reform. Almost as soon as contemporary departments began in the nineteenth century, critics noted that African Americans and immigrants suffered far more than others at the hand of the police (Ayers, 1984). Concerns about racial discrimination in policing also motivated police reform efforts throughout the twentieth century (e.g., Kerner Commission, 1968). But, today, many more Americans believe both that the police treat African Americans unfairly and that Black lives should matter (Desilver et al., 2020). And a wide range of reformers view reducing racial disparities and discrimination as the single most pressing objective in police reform (Biden, 2020; May & Yancy, 2020). Assuming these three trends continue, and there is little reason to believe they will not, one should expect new reform efforts to reflect them. Commentators will likely favor specific reforms that work towards racial justice, reducing harm all told, and making policing responsive to communities over those that might promote other objectives, such as preventing corruption, increasing effectiveness, or ensuring lawful conduct. Moreover, as objectives are changing, the experts who assist reform are changing as well. Because they sought to strengthen laws governing the police and make police comply with them, twentieth-century critics of policing often turned primarily to lawyers. Today, reformers will look increasingly to social scientists, who are better situated to both guide departments in reducing harms or racial disparities and to help critics assess a department’s progress in achieving these objectives. While social scientists have long been involved in helping departments become more effective, one should expect them to be increasingly involved in providing critics and departments evidence-informed means of achieving other priority objectives, such as reducing disparities and harm. These trends also suggest some potential sources of conflict on the horizon for police reform. Prioritizing one reform objective may compromise others, something

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that is often invisible when one looks at lists of reforms detached from those objectives. For example, “democratizing” policing by transferring control to communities may not make policing less harmful or more fair. In fact, it may well do the reverse: Communities are not necessarily less harsh or less discriminatory than existing institutions, and bureaucratic control over policing may help achieve those ends (Rappaport, 2020). Faced with such conflicts, reformers will be forced to choose, implicitly or explicitly, which goal is most important.

The How The future of police reform similarly depends in large part on how communities move to achieve reform, a subject of long disagreement among activists, scholars, and public officials. Here, we lay out two broad categories—classical and contemporary—and their respective subsets. First, we address classical reform, within which we find internal reform and external reforms; second, contemporary reforms, which encompasses proposals addressing diminishing and alternatives to policing.

Classical: Internal Internal reform locates change with police themselves. The idea is that departments themselves can best address policing’s problems by reforming policies, training, supervision, and discipline (Walker, 2005). Departments can minimize harm by training officers not to make arrests under some circumstances or by adopting a policy that bans shooting at cars. They can hire more educated officers or those with better interpersonal skills. They can strengthen accountability, by disciplining or disavowing officers who violate the law or agency rules. Locating reform within policing agencies recognizes that officers are, first and foremost, products of the departments in which they serve (Berman, 2020), and thus, departments are best able to influence their conduct. It also reflects that officers are more likely to resist to reforms coming from outside (e.g., Fisk & Richardson, 2017). Thus, internal reforms reduce the likelihood that reform’s objectives will be thwarted by officer non-compliance. The internal approach, in the form of a push for police professionalism, often dominated reform thinking during the twentieth century, and it remains popular today, having been endorsed by President Obama’s Task Force on twenty-first Century Policing (President’s Task Force on 21st Century Policing, 2015) and President Biden (Biden, 2020), as well as scholars (e.g., Sklansky, 2011). As but one example, in pursuit of reducing harm inflicted by policing, President Obama’s Task Force on 21st Century Policing recommended that agencies adopt “preferences for seeking ‘least harm’ resolutions, such as diversion programs or warnings and citations in lieu of arrest for minor infractions” (2015, p.  43). Of course, looking to departments to

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mitigate the harms of an arrest is an internal facing reform. Importantly, however, as critics of police departments have long pointed out, policing agencies often lack sufficient inclination or incentive to effectively pursue reform goals, which has led reformers to seek external means of driving them to do so.

Classical: External Like internal reform, external reform assumes that departments are best positioned to influence officer conduct. But external reform, unlike internal reform, posits that forces outside departments are the most effective means to spur reform. External reforms aim to incentivize or force officers to their change conduct and departments to influence them to do so. Common types of external reforms include (1) legal restrictions on officer conduct, such as a state ban on chokeholds; (2); laws that guide departments, e.g., state hiring standards or requirements that departments adopt policies governing certain conduct; and (3) legal rules and remedies that provide an incentive for officers or departments to act in specific ways, e.g., civil suits for damages and the exclusionary rule. External reform played a central role in twentieth century movements to transform the police. In particular, for much of the century, U.S. Supreme Court decisions applying constitutional law to the police constituted the quintessential type of external reform. For instance, in Miranda v. Arizona (1966), the Warren Court famously prohibited the government from using criminal confessions unless officers first informed the arrestees of their rights, and in Mapp v. Ohio (1961), it prohibited using evidence obtained in violation of the Fourth Amendment in criminal prosecutions. In both cases, the Court created incentives that push departments and officers to alter their behavior—external reform is really about devising means to ensure that departments implement internal reform. Police are still free to arrest and interrogate an individual without providing a Miranda warning but, if they do so, they will be stymied from achieving their goal: a successful prosecution. Although compliance is not perfect, departments trained and supervised officers differently in response. In the intense policing reform debates of the early twenty first century, external reforms have remained prominent. Today, reformers still routinely seek prohibitions on particular conduct, such as bans on no-knock warrants, and new incentives for officers and departments, such as expanded state decertification. External reformers have been especially enthusiastic about expanding traditional legal remedies for police misconduct, which can encourage officers to follow the law and lead departments to ensure that they do so. Thus, for example, reformers advocate facilitating civil damages actions against officers by eliminating qualified immunity (Schwartz, 2017) and departments by expanding vicarious liability (Schuck, 2020). All of these reforms are achieved through an external actor—courts, federal, state, or local governments—but they nevertheless rely on departments implementing changes themselves. Changes to incentives structures hope to make some conduct so untenable or appealing that departments opt for the desired approach.

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Contemporary: Diminishing External reforms and internal reforms alike keep the project of reform itself within the department’s control, and they leave the central project of policing essentially intact. By contrast, contemporary reforms seek to achieve change by altering the underlying project of policing itself. The first such type of reform is what we call diminishing reforms, which attempt to shrink the footprint of policing as a means to reduce its harms, address its disparities, make it more responsive to communities, or make it more harm efficient. Reformers advocating diminishing reforms often believe that departments are unable to change, or that aspects of policing as it is carried out today are not worth the resources required to effectuate meaningful change or that policing is irredeemably broken. The means of achieving diminishing reforms thus often focus on removing officer or departmental capacity to police coercively—by taking away authority or by reallocating resources. Thus, those who demand that communities “defund the police” seek to deny departments a vital resource—money—as a means want to reduce policing, sometimes even to the point of abolishing departments. Would-be defunders that do not seek to abolish policing entirely hope that by reducing police budgets, they can pressure departments to curtail the most objectionable kinds of policing. Slashing budgets could instead lead departments to deprioritize important but vulnerable portions of their budget—training, competitive salaries, and community engagement programs. But, if done as envisioned, defunding departments results in shrinking policing’s sphere by reducing the number of officers, causing them to be more selectively deployed, and making departments more careful about what officers “police.” Although the defund movement gained substantial traction in the aftermath of the killing of George Floyd, it is hardly the only option available to proponents of diminishing reforms. Reformers are also pushing for civilianizing traffic enforcement; eliminating school resource officers; turning over to other agencies the responsibility to respond to individuals in mental health crisis; and decriminalizing offenses related to drug use, sex work, and homelessness. And while these reforms take a different tact than the defund movement, they share the common view that the goals of reform are best achieved by reducing the amount that we police.

Contemporary: Alternatives A second kind of contemporary reform involves building up alternatives to policing to address social ills. In lieu of the police, some proponents of alternatives envision using specialized service providers to address conflicts and crises. Typical examples of this kind of alternative includes mental health response teams for individuals in crisis (Butler & Sheriff, 2020), teams of social workers and community mediators to resolve potentially violent disputes (Guevara & Winfield, 2020), treatment and

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safe-use sites for drug users (Townes, 2017), and reentry programs to assist former offenders and prevent recidivism. Other alternative-promoting reformers want to build non-professional, community-based crime and disorder prevention and intervention capacity. And many want to change the social conditions that can lead to crime and disorder by spending on community health, education, and affordable housing. In all of these cases, alternatives attempt to reduce the effective scope of what is policed by providing other noncoercive, nondiscriminatory, and effective means of producing public safety and order and thereby making policing unnecessary. Advocates of diminishing reforms often pair their suggestions for reform with proposals that would strengthen alternatives because diminishing reforms invite questions about how to achieve public safety in the absence of officers. For example, calls to prohibit departments from responding to some individuals in mental health crisis are often paired with suggestions to the create teams of qualified mental health professionals trained in crisis response (Butler & Sheriff, 2020). Conversely, advocates of alternatives to policing may strategically seek diminishing reforms as a way to pay for other methods of achieving safety and order. Importantly, though, while alternatives are often advocated by proponents of diminishing reforms in conjunction with those reforms, that need not be the case. Some reformers—including police chiefs themselves—call for expanding social services to mitigate addiction, treat mental illness, or address homelessness, without concurrently reducing capacity or authority to handle calls involving such problems. Still, diminishing and alternative reforms are closely connected; it is unlikely either will be unable to succeed without the other. Alternatives are unlikely to be afforded the substantial capital they require to absent some concurrent diminishing reform. So too, absent demonstrable success of alternatives, calls for diminishing are likely to run into substantial resistance among those who fear a world with less policing.

Trends in How Reformers Seek Change There have been three recent trends in how reformers seek change. First, critics of policing widely believe that internal reform has been inadequate and that external reforms have not done enough to change that. In response, external reformers have recently sought stronger and more coercive means of changing officer and departmental conduct. Thus, for example, reformers advocate dramatically expanding the Department of Justice’s program of suing police departments to compel reform (Lopez, 2021), and protesters call for justice in the form of criminal prosecutions of officers. Second, both classical and contemporary reformers turn sometimes to and sometimes from technology to change policing. Technology often facilitates policing that critics seek to constrain. Thus, for example, reformers push to bar technology has that increases surveillance (e.g., drones and facial recognition) or expands options

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for using force (e.g., Tasers). But reformers also demand technologies that facilitate accountability (e.g., body-worn cameras and citizen video) or expand alternatives to police–citizen encounters (e.g., red-light cameras). In the future, new technologies will continue to transform both policing and police accountability, and reformers will inevitably have something to say about each technology as it emerges. Third, and more dramatically, compared to a decade ago, a far wider range of communities and critics support contemporary reforms. They seek to reimagine policing by recasting the scope of what police do and by involving other actors in public safety production. This trend has been spurred substantially by high-profile instances of police violence coupled with historic frustration about the failures of classical reform, especially with respect to the disproportionate burdens that black and brown individuals bear in policing (Kaba, 2020). Although abolitionists oppose classical reform in favor of contemporary kinds, classical and contemporary reform methods are not mutually exclusive: all four approaches can be pursued, in varying degrees, at the same time. Indeed, at least until far more progress has been in reducing the need for coercive policing, that is likely the best path forward. What the next decade promises remains uncertain, but there is likely to be open conflict between classical and contemporary reformers. Classical reforms have deep roots, and they represent a plausible model for change. They are unlikely to vanish. Moreover, it will take time and significant effort to convince politicians and the public that contemporary approaches are feasible. But neither are those who seek to diminish or build alternatives to contemporary policing likely to be satisfied with ongoing, ineffectual, and incremental change. Reformers will call for a variety of reforms, both ones that change departments and ones that reimagine or get rid of them.

The Who Local policing, especially as carried out by municipal police departments, is the dominant form of policing in the United States. Municipal police department employs far more officers and engages with citizens more often than other forms of policing, and they are central to American understanding of the police (Harmon, 2021). But local policing is not solely a local project. Although police departments receive funding and are organized by local governments—which also hire and fire chiefs—state legislatures give officers their powers, set minimum training and hiring standards (which are refined and implemented by state administrative agencies), and otherwise regulate department management and officer conduct. State courts interpreting state constitutional and statutory standards also hold officers to account when they violate the law, just as the federal judiciary enforces federal statutes and constitutional standards against local officers. Congress regulates the police through privacy statutes which restrict police access to information, remedial statutes which allow the government and victims of misconduct to attack illegal officer and

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department conduct, and especially through federal grant programs that fund and steer local policing towards national objectives, such as addressing interstate crime or preventing terrorism. And those grant programs and other federal programs affecting local police are administered by federal agencies, including the Department of Justice, the Department of Homeland Security, and the Department of Defense. As this list illustrates, every level and every branch of government joins local officials in regulating local policing: state legislatures, agencies, and courts; and Congress, federal courts, and federal agencies. Reformers may demand that city councils shrink police budgets, build up alternative social services, retrain officers, or compel them to use body cameras. But they may equally call on any of these other actors and institutions when they seek to effect change: They ask states to restrict the use of force, mandate that interrogations by recorded, and require independent prosecutors for police shootings. They want the U.S.  Supreme Court to narrow qualified immunity and strengthen Fourth Amendment regulation of searches and seizures. And they call on Congress to require data collection and amend federal civil rights statutes (Friedman et al., 2020). Just as critics have altered how and why they demand reform; they have also changed whom they call upon to act. Two shifts seem most notable. First, there has been a turn away from attention to what courts should do towards what legislative and administrative actors should do. For example, after decades in which legal scholars and reformers begged the US Supreme Court to better regulate consent searches, pretextual seizures, and coercive interrogations and reverse the Court’s increasingly expansive interpretation of qualified immunity from civil liability for officers under 42 U.S.C. §1983, now one is more likely to see reformers demand that Congress and state legislatures make law to achieve those ends (e.g., Los Angeles Times Editorial Board, 2021). Second, there has been a notable shift away from national reform towards state action. Although—as the source of officer power—state legislatures should be the primary external regulators of the police, they long did little to restrict the intrusiveness of policing or ensure that it is fair, transparent, or accountable, instead leaving officers to local control constrained mostly by constitutional standards. That has changed dramatically over the past decade, and even more rapidly since the national response to the death of George Floyd under the knee of a Minneapolis police officer in the summer of 2020. States have required independent prosecutors when police shoot and kill; revised use of force standards; and strengthened civil remedies, among many other reforms. State governors have also issue executive orders implementing reform and state attorneys general have intervened in instances of police violence. Not surprisingly, these legal reforms both reflect and spur reformers’ new focus on state rather than federal action. What do these two trends suggest for the future? The first is almost inevitably going to continue. The Trump Administration reshaped the federal judiciary, appointing more than 200 judges to federal district courts and courts of appeals and three justices to the US Supreme Court. These judges will influence the statutory interpretation and constitutional doctrine for decades and—perhaps apart from reforming qualified immunity—are likely to continue narrowing constitutional

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rights and remedies available to litigants in suits against officers. Those judges may also be more skeptical of Congressional efforts to use federal powers to influence local police. Reformers are unlikely to focus their energies on such unsympathetic parties, instead looking for more receptive audiences. The second trend will also continue: States are likely to continue to produce a flurry of laws on policing, in response the next crisis as well as the last. But with the election of President Biden, federal legislative and executive action are far more likely than during the Trump Administration. Reformers are therefore likely to turn at least some of their attention back to national reform, and one can expect intensified federal enforcement of civil rights statutes, a variety of federal legislative proposals on policing, and more restrictions on existing federal programs that provide money and equipment to local police departments, at least until a future election changes policy preferences once again.

Conclusion So, what is the future of police reform? Going beyond the what of reform to why, who, and how changes in policing and public safety may be achieved provides important indicators about the likely near future. New reforms will seek to reduce the harms of policing, especially to people of color, and make policing more responsive to communities. States and localities will mandate departmental action more than they trust departmental leadership to change officer conduct without strong external pressure, and they will strengthen nonpolicing efforts to produce public safety as they turn away from some traditional, coercive policing of disorder or minor crime. And states will play a central role in changing police practices in the United States, helped along by new federal efforts. Inevitably, new trends will arise, but the recent past offers these useful lessons for those who wish to predict the future.

References Ayers, E. L. (1984). Vengeance and justice: Crime and punishment in the 19th-century American South. Oxford University Press. Berman, R. (2020, December 21). The nation’s most ambitious police reform launches today. The Atlantic. https://www.theatlantic.com/politics/archive/2020/12/ new-­jersey-­police-­reform/617436/ Biden, J. (2020, June 10). We must urgently root out systemic racism, from policing to housing to opportunity. USA Today. https://www.usatoday.com/story/opinion/2020/06/10/ biden-­root-­out-­systemic-­racism-­not-­just-­divisive-­trump-­talk-­column/5327631002/ Butler, S.  M., & Sheriff, N. (2020, November 23). Innovative solutions to address the mental health crisis: Shifting away from police as first responders. Brookings Institution. https://www. brookings.edu/research/innovative-­solutions-­to-­address-­the-­mental-­health-­crisis-­shifting-­ away-­from-­police-­as-­first-­responders/ Campaign Zero. (2020). #8CantWait. https://8cantwait.org/

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Cherkasky, C., & Cherkasky, A. (2020, June 9). Floyd protests: 5 ways to reduce police misconduct, use of force and racial profiling. USA Today. http://www.usatoday.com/story/opinion/2020/06/09/ elija-­killing-­reduce-­police-­use-­of-­force-­racial-­profiling-­column/3170408001/ Dargis, M. (2007, December 23). A list, to start the conversation. The New York Times. https:// www.nytimes.com/2007/12/23/movies/23darg.html Desilver, D., Lipka, M., & Fahmy, D. (2020, June 3). 10 things we know about race and policing in the U.S. Pew Research Center. https://www.pewresearch.org/ fact-­tank/2020/06/03/10-­things-­we-­know-­about-­race-­and-­policing-­in-­the-­u-­s/ Domanick, J. (2016). Blue: The LAPD and the battle to redeem American policing (2nd ed.). Simon & Schuster. Evstatieva, M., & Mak, T. (2020, June 16). How decades of bans on police chokeholds have fallen short. NPR. https://www.npr.org/2020/06/16/877527974/ how-­decades-­of-­bans-­on-­police-­chokeholds-­have-­fallen-­short Fairley, S. (2020, June 3). Commentary: Police reform steps that must be taken immediately. Chicago Tribune. https://www.chicagotribune.com/opinion/commentary/ct-­opinion-­police-­ reform-­cpd-­lightfoot-­sharon-­fairley-­20200603-­tp5zxxhaxjczbooxzwd6xxnuiq-­story.html Fisk, C. L., & Richardson, L. S. (2017). Police unions. The George Washington Law Review, 85(3), 712–799. http://www.gwlr.org/wp-­content/uploads/2017/07/85-­Geo.-­Wash.-­L.-­Rev.-­712.pdf Friedman, B., Garrett, B. L., Harmon, R., Lopez, C., Meares, T. L., Ponomarenko, M., Slobogin, C., & Tyler, T. R. (2020). Changing the law to change policing: First steps. Justice Collaboratory: Yale Law School. https://law.yale.edu/sites/default/files/area/center/justice/document/change_ to_change_final.pdf Guevara, V., & Winfield, N. (2020, July 3). People in crisis need social workers, not cops. The Appeal. https://theappeal.org/people-­in-­crisis-­need-­social-­workers-­not-­cops/ Harmon, R. (2021). The law of the police. Wolters Kluwer Law & Business. Kaba, M. (2020, June 12). Yes, we mean literally abolish the police. The New York Times. https:// www.nytimes.com/2020/06/12/opinion/sunday/floyd-­abolish-­defund-­police.html Katz v. United States, 389 U.S. 347 (1967). https://supreme.justia.com/cases/federal/us/389/347/ Lopez, C. (2021). The civil rights division: The crown jewel of the Justice Department. The Yale Law Journal Forum, 130, 462–493. https://www.yalelawjournal.org/pdf/LopezEssay_ cm8aabf5.pdf Los Angeles Times Editorial Board. (2021, January 27). Editorial: Do black lives matter to congress? The fate of the George Floyd justice in policing act will tell us. Los Angeles Times. https://www.latimes.com/opinion/story/2021-­01-­27/ editorial-­do-­black-­lives-­matter-­to-­congress-­the-­george-­floyd-­justice-­in-­policing-­act Lum, C., Stoltz, M., Koper, C. S., & Scherer, J. A. (2019). Research on body-worn cameras: What we know, what we need to know. Criminology & Public Policy, 18(1), 93–118. https://doi. org/10.1111/1745-­9133.12412 Mapp v. Ohio, 367 U.S. 643 (1961). https://supreme.justia.com/cases/federal/us/367/643/ May, T., & Yancy, G. (2020, June 21). Policing is doing what it was meant to do. That’s the problem. The New  York Times. https://www.nytimes.com/2020/06/21/opinion/police-­violence-­ racism-­reform.html Miranda v. Arizona, 384 U.S. 436 (1966). https://supreme.justia.com/cases/federal/us/384/436/ National Research Council. (2004). Fairness and effectiveness in policing: The evidence. The National Academies Press. https://doi.org/10.17226/10419 Ortiz, E. (2020, July 3). Elijah McClain was injected with ketamine while handcuffed. Some medical experts worry about its use during police calls. NBC News. http://www.nbcnews. com/news/us-­news/elijah-­mcclain-­was-­injected-­ketamine-­while-­handcuffed-­some-­medical-­ experts-­n1232697 President’s Task Force on 21st Century Policing. (2015, May). Final report: President’s Task Force on 21st Century Policing. https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf

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Part II

Policy and Sentencing

Chapter 7

Unfinished Innovation: American Sentencing Guidelines Steven L. Chanenson and Kristi Arty

Abstract  Sentencing guidelines ushered in a new and hopefully better era of criminal sentencing. To properly assess the current state of sentencing and sentencing guidelines, one must look backward and adequately identify the players involved. Although the judge is the most visible sentencing participant, many others, such as the jury, prosecutors, parole boards, legislatures, and most recently, sentencing commissions, significantly influence the sentencing process. Sentencing guidelines, which emerged in the late 1970s, were seen as an innovative solution to troubling sentencing disparities. While sentencing guidelines are far from comprehensive and flawless, they appear to be the best option for moving toward a sentencing system that is truly equal and fair. In a perfect world, perhaps sentencing guidelines would have been the one-stop, cure-all solution to all that ails American sentencing. For now, in the real world, sentencing guidelines reflect unfinished innovation with the potential for greatness. Keywords  Sentencing · Sentencing Guidelines · Punishment · Law Reform · Justice · Disparities

Unfinished Innovation: American Sentencing Guidelines Criminal sentencing sparks strong emotions. Punishments are often lambasted as too severe or lamented as too soft. In the middle of that maelstrom sits the trial judge. The Honorable Irving R. Kaufman described sentencing as the “most trying facet” of the judicial vocation and the one where the judge feels the most “alone,” in part because no other task “carries greater potentialities for good or evil than the determination of how society will treat its transgressors.” (Kaufman, 1960, p. 3). Yet, in the last half-century, American judges have been given much more company. S. L. Chanenson (*) · K. Arty Villanova University Charles Widger School of Law, Villanova, PA, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_7

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In most cases, they still must make the difficult, final decision about the nature and duration of punishment by themselves, but in many jurisdictions, they now do so with the benefit of considerable guidance. “The emergence of sentencing law is one of the most dramatic and interesting law reform experiments in American legal history.” (Demleitner et al., 2007, p. xxvi). While still only operating fully in a minority of American jurisdictions, sentencing commissions and their guidelines have changed the nature of the sentencing discussion across the country and influenced that conversation around the world. After many years of study and debate, the American Law Institute (ALI) recently revised its Model Penal Code’s sentencing provisions. It endorsed the creation of sentencing commissions and guidelines (American Law Institute, 2017). While nothing is ever guaranteed, it appears that sentencing guidelines in non-capital cases are now a durable feature of American law. This chapter briefly charts the development of sentencing guidelines, highlighting some of the practical and constitutional challenges that emerged along the way, and ends by describing this movement as one of unfinished innovation.

Looking Backward As a foundational matter, criminal punishment is often described as an interconnected process reflecting “multiple discretions in sentencing” (Zimring, 1977, p. 4), even though the trial judge is the most visible and recognized component today. The broader array of “sentencing players” includes lawyers, juries, legislators, and more recently sentencing commissions (Gertner, 2010). To grasp the state of American sentencing and sentencing guidelines today, we must have at least a rudimentary understanding of the past. In colonial times, drawing on English practice, jurors had substantial, albeit crude, sentencing power. Jurors, selected solely from a pool of White, male property owners, were both the factfinders and finders of the applicable law in each case (Gertner, 2010). Given the then-prevalence of capital crimes, the frequent “result was binary—guilty and death, or not guilty and freedom.” (Gertner, 2010, p. 692). This sentencing practice has been referred to as a tariff system (Chanenson, 2005). Focused on retribution, colonial jurors understood the punishment that flowed from serious convictions; if they felt that capital punishment was inappropriate or too harsh, they would decline to find the defendant guilty or find guilt for a lesser crime. Given the jury’s dominant role and the limited sentencing options, there was neither a need nor an opportunity to create sentencing standards and rules. Although scholars disagree over how much of this tariff approach survived (and for how long) into the young United States, significant changes certainly happened in the 1800s (Chanenson, 2005). Judges began to possess “broad discretion in sentencing-­since the nineteenth century shift in this country from statutes providing fixed-term sentences to those providing judges discretion within a permissible range.” (Apprendi v. New Jersey, 2000, p.  481). The role of the jury was

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substantially reduced, and the judge became the leading player of sentencing. The jury, which slowly and eventually became more inclusive in composition, “could no longer link conviction to a particular sentence even if it had the power to sentence or decide questions of law—and it did not. Now, they were explicitly instructed to find only the facts; judges determined the applicable law.” (Gertner, 2010, p. 694). Furthermore, a more complex set of punishments, penitentiaries, and reformatories emerged, allowing judges to impose sentences for lengthy periods of incarceration. The central penal philosophy of the time also shifted away from retribution and embraced rehabilitation, with judges determining, in the first instance, whether— and if so, how much—incarceration was a necessary cure for the “moral disease” of crime (Gertner, 2010, p. 695 (quotation omitted)). For much of the twentieth century, judges wielded extensive discretion to mete out sentences predicated on the facts, as they informally found them, within vast statutory ranges set by the legislature, and appellate review was largely unavailable (Berman, 2017; Chanenson, 2006). This nearly unbridled authority was muted in practice because virtually all sentences were indeterminate by the middle of the twentieth century. “Indeterminate sentencing meant that there was discretionary parole release authority, often vested in a parole board acting long after the judge imposed the sentence. As such, the actual amount of time served by a defendant depended on the independent and often disconnected actions of both the … judge at the front-end and the parole board at the back-end.” (Chanenson, 2006, p. 554 n.16). However, the sentencing judge still set the terms of the sentence, and a jury’s verdict of guilt (or a defendant’s guilty plea) was all that was required to authorize all punishments up to the maximum established by the legislature. Despite this power, judges had essentially no meaningful training on how to exercise their great discretion. “In the absence of any [appellate] review, judges had little incentive to generate standards for sentencing which might be applied in future cases; few judges bothered to write sentencing opinions at all.” (Gertner, 2010, p. 697). The result—in hindsight at least—was predictable: unjustified disparity. As one commentator put it in the 1970s, this judicial free-for-all produced: gross disparity in sentencing, with different sentences imposed upon similar offenders who ha[d] committed similar offenses by the same judge on different days, different judges on different days, different judges on the same day, and different judges in different jurisdictions. (Singer, 1978, p. 402).

Not only did these unguided discretionary sentences vary by judge and geography, but they also surfaced troubling racial concerns. U.S. Supreme Court Justice Sandra Day O’Connor framed it this way in a crucial dissenting opinion: “Indeed, rather than reflect legally relevant criteria, these disparities too often were correlated with constitutionally suspect variables such as race.” (Blakely v. Washington, 2004, p.  315 (citation omitted)). More bluntly, Marvin Frankel, a federal judge and an inspiration for the guidelines movement, remarked that “every criminal lawyer knows cases in which sentencing judges have done crazy and horrible things.” (Frankel, 1973, p. 41).

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This approach to sentencing with judges wielding extraordinary and largely unchecked power was attacked as lawless (Frankel, 1972). Activists looked for ways to guide and limit judicial influence without returning to a system of tariffs. As part of the clamor for reform, many scholars such as Kenneth Culp Davis called for fairness in the criminal justice system. Judge Frankel proposed creating an administrative agency—a Commission on Sentencing—to set sentencing standards (Tonry, 2019). In 1978, legislatures started to establish these sentencing commissions and task them with creating sentencing guidelines. Minnesota acted first, with Pennsylvania and Washington close behind. This guidelines movement which—with ebbs and flows—continues to this day. Counting guideline jurisdictions can be tricky for various reasons, but one recent tally indicated that 19 American jurisdictions had some form of sentencing guidelines (Tonry, 2019). As part of the transition to guidelines, some jurisdictions, like Virginia, also abolished discretionary parole release, making their sentences “determinate.”1 Other jurisdictions, like Pennsylvania, kept discretionary parole release while adding guidelines for sentencing judges. Unlike the rehabilitative focus of the previous sentencing era, much of the guidelines age was formed around the idea that the primary aim of sentencing is to ensure offenders receive no more than the punishment they deserve while considering other purposes like deterrence, incapacitation, and rehabilitation. Although it has been widely criticized for myriad reasons, the United States Sentencing Guidelines (“USSG”) are frequently discussed because of their nationwide reach. Congress passed the Sentencing Reform Act (“SRA”) in 1984, which abolished parole and created the United States Sentencing Commission with the intent to rationalize sentencing without political influence (Gertner, 2010). The SRA, a product of a long-debated political compromise between the political right and the political left, created a determinate system with a statutory goal of considering all the traditional purposes of sentencing while attempting to avoid unwarranted sentencing disparities. The federal approach required judges to make numerous factual findings (e.g., how much money was stolen or drugs sold) at the low preponderance of the evidence standard during sentencing to determine how the guidelines applied in each case.

Guidelines 101 The innovation—and perhaps the genius—of sentencing guidelines is that they can channel judicial discretion without extinguishing it. Although it is far from a criminal justice panacea, guidelines can provide judges with a frame of reference as they embark on their daunting task of weighing the at-times competing demands of the  Some jurisdictions still allow for administrative reductions, say of 15%, in an individual’s custody duration, which is commonly referred to as “good time.” As these reductions are not discretionary, the sentences are still deemed to be determinate. 1

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law, the facts of the crime, the interests of the community, and the rights, history, and needs of the defendant. Viewed this way, guidelines might be considered a kind of sentencing compass, informing but not replacing the judicial explorer (Morris, 1953, p. 189). Sentencing guidelines come in many shapes and sizes. Guidelines offer the sentencing judge a recommendation and context for the typical case. “Some guidelines are more ‘presumptive’ or ‘mandatory’ and require the judge to abide by the recommendations or justify any deviation, while other guidelines are more ‘voluntary’ and allow the judge to dispense with the recommendations more readily.” (Chanenson, 2006, p. 555). Guidelines commonly provide typical-case guidance to judges via a two-axis grid sorted based on the offense’s seriousness and the now-convicted defendant’s prior criminal record. There are, of course, many more components embedded in this information. For example, how and why did the relevant commission deem one offense more serious than another? Is it based on the nature of the statutory prohibition or how the crime was committed? Frequently, the answer is both. One might also ask, what is relevant to determining an individual’s score for prior criminal acts? A more granular sub-question might be, are all previous convictions treated the same, regardless of the severity or recency of those events? Of course, the guidance—of whatever level of binding force—usually acknowledges that atypical cases should be treated differently although the mechanisms for doing so vary. These types of under-the-hood determinations are crucially important, but far beyond the scope of this brief examination of sentencing guidelines. The USSG Sentencing Table is a basic example of a two-axis grid (Table 7.1): The offense severity, referred to as the “offense level,” travels along the left vertical axis. The higher the offense level, the more serious the offense. The defendant’s prior involvement with the justice system, referred to as the “Criminal History Category” (which is comprised of Criminal History Points), travels along the top horizontal axis. The box or cell containing a range of numbers where the two relevant lines meet is the Commission’s recommendation to the sentencing judge. The four zones listed in the left margin reflect the types of sentences consistent with the Commission’s guidance. In Zone A, there is no incarceration requirement, while in Zone D, the minimum term must be for imprisonment for the sentence to be consistent with the guidelines. For example, the Commission recommends that a defendant at Offense Level 21 and Criminal History Category I should be sentenced to between 37 and 46 months in prison. As noted above, guidelines in “voluntary” guidelines jurisdictions are just that— guidelines to be considered but only followed when the judge agreed. In contrast, guidelines in “presumptive” or “mandatory” guidelines jurisdictions have much more power, and judges sometimes struggle to justify deviations. The initial federal guidelines fell into this latter camp and were roundly criticized for being too complicated, inflexible, inappropriately constraining of judges, as well as overly punitive (Frase, 2019; Freed, 1992).

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Darts and Laurels of Sentencing Guidelines The decades of the guidelines era have reflected both strengths and weaknesses. Two examples of each follow. Strengths include, in some jurisdictions, a reduction in disparity, including racial disparity, as well as an increase in data and transparency. Weaknesses include the challenges of prosecutorial power and legislative mandatory minimum sentences.

Disparity Reduction One of the key animating principles of the sentencing guidelines movement was to reduce unwarranted disparities. Recognizing that there are distinct features to every case, roughly similar defendants convicted of roughly similar offenses should receive roughly similar sentences. While the experience is not uniform, and some will argue that a by-product has too often been increased severity, sentencing guidelines seem to have moved the needle in this direction (Frase, 2019). “[H]ighly refined recent analyses do indicate that both presumptive and voluntary guidelines systems—most of which have been generated by commissions—have decreased disparity in terms of race and gender for many serious crimes.” (Weisberg, 2012, p. 311 (citation omitted)). Professor Michael Tonry is less generous, giving sentencing reform efforts a “low or failing grade,” in part because “[c]redible evidence of reduction in disparities exists only for a few initiatives and a few states.” (Tonry, 2019, p. 23).

Data and Transparency Before guidelines, sentencing was often a black box. Sentencing guidelines provided a structured backdrop for understanding what was happening and sometimes why. Uses for sentencing data are seemingly infinite. There is so much sentencing practitioners (including judges, prosecutors, defense attorneys, probation officers, etc.) and policymakers can do to harness the power of data in the service of rationality, fairness and justice. Attorneys can and do use data to support arguments concerning particular cases, including arguments for and against specific sentences. Judges can and do use data to resolve these claims and to further guide the exercise of their own discretion. Legislatures and sentencing commissions can and do use data to craft and improve sentencing policy on a systemic level. For example, data can help legislatures and sentencing commissions more intelligently address such crucial issues as setting or revising mandatory minimums and molding the contours of criminal history categories. (Chanenson, 2003, p. 1).

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Certain jurisdictions, like Pennsylvania, have excelled at collecting and widely disseminating sentencing data. (Weisberg, 2012). Gathering and transparently sharing sentencing data are both important (American Law Institute, 2017).

Prosecutorial Subversion Sentencing guidelines are aimed at the judges. They are the most visible of the sentencing players and operate almost entirely in the full light of day. Prosecutors, in contrast, often work in low-visibility corners of the process (Freed, 1992). A lack of visibility is not always problematic; prosecutors appropriately and necessarily need to make some choices in private. But opaque prosecutorial decisions often impact the sentencing landscape facing the judge. No system of sentencing guidelines effectively captures and considers—let alone cabins—prosecutorial discretion (Berman, 2017; Frase, 2019). As a result, the sentencing guideline process is subject to influence, and at-times manipulation, by prosecutors.

Mandatory Minimums Sentencing guidelines are the philosophical enemy of legislative mandatory minimum punishments (Berman, 2017). If guidelines are a surgeon’s scalpel, mandatory minimums are a butcher’s cleaver. Both serve a purpose, and neither is infallible. However, the metaphorical scalpel is the desired tool for intricate, nuanced, detail-­ focused work like sentencing. Legislatures enact mandatory minimum sentences, not sentencing commissions. Still, it is worthwhile to explore at somewhat longer length why mandatories are so incompatible with guidelines and how guidelines systems, through their commissions, might be able to push back. While the U.S.  Sentencing Commission was working on its initial set of Guidelines, Congress passed the Anti-Drug Abuse Act of 1986, which created what is known as the 100-to-1 quantity ratio for cocaine. That meant, for example, that distributing 5 g of crack cocaine yielded the same 5-year mandatory minimum punishment as distributing 500 g of powder cocaine, even though they are two forms of the same drug (Chanenson, 2006). Federal sentencing judges could not sentence below the applicable mandatory minimum sentence unless the defendant cooperated with the government or met stringent requirements to be classified as less blameworthy (pursuant to a later statutory amendment). The Commission, which was new and politically vulnerable, incorporated the 100-to-1 quantity ratio into the USSG, spreading the ratio to all amounts of crack and powder cocaine. Judges were vocal about their policy opposition to this rule but still enforced it. For several years starting in 1995, the U.S. Sentencing Commission tried to eliminate or reduce the disparity. It argued that the 100-to-1 ratio was disproportionate to the relative harms of the drugs, that more fine-grained factors would better

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address the differences in harmfulness that did exist, and that the severe crack penalties fell disproportionately on less-culpable participants and Black individuals (Chanenson, 2006). In 1995, the Commission voted to equalize the guideline penalties and urged Congress to do the same to the mandatory minimums. Congress responded by refusing to change the statute and taking the unusual step of rejecting the Commission’s proposed guideline change. Years later, the Commission successfully lowered some drug guidelines, and Congress narrowed—but did not eliminate—the crack-powder statutory ratio in 2010. The unanswerable question is what would have happened back in the 1980s had the Commission chosen not to peg its new guidelines to the mandatory minimum sentences. Pennsylvania, for example, never expressly linked its guidelines to the weight-based mandatory minimum sentences for drugs, which statutorily never distinguished between crack and powder cocaine. Prosecutors were, of course, able to trump the Pennsylvania guidelines when they triggered the mandatory minimum provisions, often in a non-uniform way. However, the rising tide of the mandatory did not lift all sentencing boats. The relationship between a sentencing commission and its guidelines on the one hand and the legislature on the other is always time and context specific.

Supreme Turmoil Sentencing guideline regimes, reflecting both strengths and weaknesses, appeared reasonably stable at the dawn of the twenty-first century. But it was not to last. On the federal level, judges found statutorily based ways to deviate more from the guidelines, and Congress was not amused. In 2003, Congress passed the PROTECT Act, which clamped down on judicial departures from the USSG (Gertner, 2010). In doing so, it again increased prosecutorial power at both the plea bargain and sentencing stages. Starting in 1999, the US Supreme Court issued a series of decisions (re)interpreting the Sixth Amendment to the US Constitution concerning which sentencing-­ related facts must be either found by a jury or admitted by the defendant instead of being determined by the sentencing judge (Chanenson, 2006). The more facts the jury had to find, the more complicated it became for “presumptive” (or “mandatory”) sentencing guideline systems like the USSG that relied on judicial factfinding. In presumptive guideline jurisdictions, the jury’s general verdict (or the defendant’s general guilty plea without more) no longer authorized all punishments up to the maximum established by the legislature (Blakely v. Washington, 2004; United States v. Booker, 2005). Under presumptive guidelines, they only authorized a punishment that the judge could impose without finding additional facts (e.g., how much money was stolen or drugs sold). Eventually, this reasoning was extended to mandatory minimum sentences as well, requiring prosecutors to allege and prove beyond a reasonable doubt to a jury the facts that trigger a mandatory minimum sentence (e.g., the quantity of crack sold), instead of relying on a judge to make that

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determination less formally at sentencing (Alleyne v. United States, 2013; Mitchell, 2015). It is difficult to overstate the level of bedlam that followed some of those decisions. Chaos and confusion permeated criminal sentencing for years. Some guideline systems responded by moving from a presumptive to a voluntary structure; that is what the Supreme Court did to the USSG, and Congress has not responded for more than 15 years (United States v. Booker, 2005). Other systems modified their presumptive structure to give judges more discretion. Many jurisdictions have adapted to significant changes in the way their mandatory minimum punishment schemes operate. In the ongoing push and pull between sentencing players, judges in many jurisdictions were more powerful in the 2020s than in 2000. Reasonable minds can and do differ over whether that is a good or bad development. In some jurisdictions, it facilitated a kind of a statutory reset right when more people thought that criminal punishments overall were too severe. If nothing else, the US Supreme Court’s burst of interest in sentencing guidelines has brought more attention to this area and highlighted how sentencing guidelines and the commissions that draft them can help move the criminal justice system forward.

Moving Forward Sentencing guidelines and their commissions may have a bright future, but it will require hard work and continued vigilance. Here are four of the many challenges facing—and being met by—the sentencing guidelines movement in 2021.

Creating Conversations Guidelines can become a criminal justice communication network. US Supreme Court Justice Anthony M.  Kennedy, in his Blakely v. Washington, dissent wrote, “Constant, constructive discourse between our courts and our legislatures is an integral and admirable part of the constitutional design. … Sentencing guidelines are a prime example of this collaborative process.” (Blakely v. Washington, 2004, pp. 326–327). Indeed, the way judges respond to sentencing guidelines by following them or not sends a message to the sentencing commission. Is it listening? If so, what does it hear? Does it try to understand the source of the disagreement? Similarly, what do judges hear when they choose to abide by the guidelines, which ideally are accompanied by an explanation from the commission? This is the often-­ unspoken communication that can be part of a well-functioning guidelines system. As Justice Kennedy observed, the legislature is also part of this discussion, or at least it should be.

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Not all guideline systems are good conduits for dialog. Some players in the system talk past or try to shout over each other. Nevertheless, Professor Weisberg sounds a note of optimism: Irrespective of their different approaches to guidelines, “the mere survival of a commission is itself a proof of success, because it represents legislators’ commitment to restrain their own tendencies to generate politically charged and often wasteful sentencing policies and instead to treat sentencing as a regulatory matter that warrants cost-benefit rationality in the first place.” (Weisberg, 2012, p. 312).

Confronting Racial Disparities Sentencing guidelines are generally designed to ignore inappropriate, non-legal factors. For example, consistent with a statutory directive, the USSG declare that race, sex, national origin, creed, religion, and socio-economic status are “not relevant in the determination of a sentence.” (United States Sentencing Commission, 2018, p. 464). Yet facially neutral rules, like the crack-powder mandatory minimum sentencing ratio, can have disparate impacts. Professor Richard Frase argues: [R]acial/ethnic impact assessments should be considered an essential component of a well-­ designed guidelines system…. When a sentencing rule is predicted to have a serious disparate impact, the justification for the rule must be reexamined. Any such rule should be eliminated or more narrowly tailored when the justification is weak or could be met in other ways that yield less disparate impact; when the crime being punished is nonviolent; or when the disparate impact is caused or made substantially worse by racial profiling or other systemic bias, as seems to be the case with drug crimes. (Frase, 2019, p. 121).

The Minnesota Sentencing Guidelines Commission has prepared “racial impact notes” for its legislature since 2008 (Mitchell, 2020). In the wake of George Floyd’s death in 2020, Kelly Mitchell, the Minnesota Commission’s Chair, described racial injustice as a public safety threat. She called on her colleagues “to undertake a systematic review of our policies for racial impact; a deliberate analysis to determine whether our policies have a disparate impact by race, and if so, to determine what changes should be made to reduce those effects.” (Mitchell, 2020, p. 23). That process is underway and may well blaze a path for other guideline systems to follow.

Expanding the Scope Guidelines are the crown jewel of most sentencing commissions. They embody the direct advice judges need to help impose fair and just sentences. However, they often only address parts of the judicial task, let alone the broader criminal justice missions. Guidelines can serve as the judges’ compass for more than just serious offenses meriting incarceration.

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When guidelines recommend a probation sentence, what, if anything, do they say about the duration and intensity of that ubiquitous punishment? Do guidelines cover misdemeanors, which so many sentencing players have historically overlooked despite their broad impact? (American Law Institute, 2017; Frase, 2019). What about discretionary parole release? In indeterminate jurisdictions (i.e., those with discretionary parole release), sentencing guidelines that ignore the subsequent parole decision miss a vital piece of the puzzle. What about bail? Properly viewed, that is a sentencing issue as well (Chanenson, 2017a). Although many guideline systems lack some or all of these features, there are promising experiments underway. For example, multiple commissions are working on bail guidance. The Pennsylvania General Assembly has also tasked its Commission on Sentencing to create guidelines for parole release and the revocation and recommitment of parole violators. (Chanenson, 2017b).2 Especially with an expanded scope, sentencing guidelines, and their commissions, can be the focal point around which the criminal justice system operates.

Conclusion Sentencing guidelines are a good idea (Berman, 2017). “[W]ell-designed guidelines are far better than any other sentencing reform that has been tried or even seriously proposed, and … all jurisdictions need to have some kind of guidelines—unstructured sentencing is unacceptable.” (Frase, 2019, p. 109). However, like many other good ideas, guidelines have their limits (Frase, 2019). For example, US Supreme Court Justice Stephen G. Breyer once said, “[r]anking offenders through the use of fine distinctions is like ranking colleges or the ‘liveableness’ of cities with numerical scores that reach ten places past a decimal point. The precision is false.” (Breyer, 1999, p. 186). We cannot and should not forget the human factor in judging. Nor, however, can or should we ignore the value of guidelines as the humble sentencing compass, without which we are bound to get lost. Sentencing is in a never-ending state of evolution. “No sentencing system will ever be perfect or free from risks of injustice in individual cases.” (Tonry, 1996, p. 196). But that is why guidelines “should always be considered a work in progress, to be amended and improved over time as the commission oversees and evaluates the guidelines’  As noted above, no sentencing guidelines have successfully addressed prosecutorial discretion despite its significance to the sentencing enterprise. Nevertheless, there is a nascent effort for prosecutors to voluntarily evaluate themselves according to private metrics. If embraced more widely, they could be connected to sentencing guidelines in some fashion. However, one such approach evaluates prosecutors positively in part by tracking how often they recommend sentences below the guideline minimum (Prosecutorial Performance Indicators, 2021). While recommending that a guideline be made more or less severe is one way to influence the system, it would seem inconsistent with the guidelines movement to praise prosecutors for routinely seeking sentences below the applicable guidelines in typical cases. 2

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performance in light of their purposes. The guidelines and their operation should be transparent to outside study and scrutiny, so that the commission’s work over time can be studied, criticized, assisted, and encouraged.” (American Law Institute, 2017, p. 404). Sentencing guidelines are the criminal law’s perpetually unfinished innovation.

References Alleyne v. United States. (2013). 570 U.S. 99. https://supreme.justia.com/cases/federal/us/570/99/ American Law Institute. (2017). Model penal code: Sentencing (proposed final draft). https://robinainstitute.umn.edu/sites/robinainstitute.umn.edu/files/mpcs_proposed_final_draft.pdf Apprendi v. New Jersey. (2000). 530 U.S. 466. https://supreme.justia.com/cases/federal/ us/530/466/ Berman, D.  A. (2017). Sentencing guidelines. In E.  Luna (Ed.), Reforming criminal justice: A report by the Academy for Justice (Vol. 4, pp.  95–115). Arizona State University. https:// law.asu.edu/sites/default/files/pdf/academy_for_justice/6_Criminal_Justice_Reform_Vol_4_ Sentencing-­Guidelines.pdf Blakely v. Washington. (2004). 542 U.S. 296. https://supreme.justia.com/cases/federal/us/542/296/ Breyer, S. (1999). Federal sentencing guidelines revisited. Federal Sentencing Reporter, 11(4), 180–186. https://doi.org/10.2307/20640165 Chanenson, S.  L. (2003). Sentencing and data: The not-so-odd couple. Federal Sentencing Reporter, 16(1), 1–7. https://doi.org/10.1525/fsr.2003.16.1.1 Chanenson, S. L. (2005). The next era of sentencing reform. Emory Law Journal, 54(1), 377–460. Chanenson, S. L. (2006). Booker on crack: Sentencing’s latest Gordian knot. Cornell Journal of Law and Public Policy, 15(3), 551–586. https://scholarship.law.cornell.edu/cjlpp/vol15/iss3/2/ Chanenson, S. L. (2017a). Commissions at the core. Federal Sentencing Reporter, 30(1), 84–89. https://doi.org/10.1525/fsr.2017.30.1.84 Chanenson, S. L. (2017b). Five questions for the next thirty years of federal sentencing. Federal Probation, 81(2), 23–27. https://www.uscourts.gov/sites/default/files/81_2_4_0.pdf Demleitner, N., Berman, D. A., Miller, M. L., & Wright, R. F. (2007). Sentencing law and policy: Cases, statutes and guidelines (2nd ed.). Aspen Publishers. Frankel, M.  E. (1972). Lawlessness in sentencing. University of Cincinnati Law Review, 41(1), 1–54. Frankel, M. E. (1973). Criminal sentences: Law without order. Hill & Wang. Frase, R. S. (2019). Sentencing guidelines in American courts: A forty-year retrospective. Federal Sentencing Reporter, 32(2), 109–123. https://doi.org/10.1525/fsr.2019.32.2.109 Freed, D. J. (1992). Federal sentencing in the wake of the guidelines: Unacceptable limits on the discretion of sentencers. The Yale Law Journal, 101, 1681–1754. https://digitalcommons.law. yale.edu/fss_papers/2050/ Gertner, N. (2010). A short history of American sentencing: Too little law, too much law, or just right. The Journal of Criminal Law and Criminology, 100(3), 691–708. https://scholarlycommons.law.northwestern.edu/jclc/vol100/iss3/4/ Kaufman, I. R. (1960). Sentencing: The judge’s problem. Federal Probation, 24(1), 3–9. Mitchell, K.  L. (2015, March 16). What is Blakely and why is it so important? Robina Institute of Criminal Law and Criminal Justice. https://sentencing.umn.edu/content/ what-­blakely-­and-­why-­it-­so-­important Mitchell, K. L. (2020). Taking steps to address racial disparities in sentencing. Federal Sentencing Reporter, 33(1–2), 22–26. https://doi.org/10.1525/fsr.2020.33.1-­2.22 Morris, N. R. (1953). Sentencing convicted criminals. Australian Law Review, 27, 186–208. Prosecutorial Performance Indicators. (2021). https://prosecutorialperformanceindicators.org/

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Singer, R. (1978). In favor of “presumptive sentences” set by a sentencing commission. Crime & Delinquency, 24(4), 401–427. https://doi.org/10.1177/001112877802400402 Tonry, M. (1996). Sentencing matters. Journal of Criminal Justice, 24(6), 570–571. Tonry, M. (2019). Fifty years of American sentencing reform: Nine lessons. Crime and Justice, 48, 1–34. https://doi.org/10.1086/701798 United States Sentencing Commission. (2018). Guidelines manual. https://www.ussc.gov/ guidelines/2018-­guidelines-­manual-­annotated United States v. Booker. (2005). 543 U.S. 220. https://supreme.justia.com/cases/federal/ us/543/220/ Weisberg, R. (2012). The sentencing commission model, 1970s to present. In J.  Petersilia & K. R. Reitz (Eds.), The Oxford handbook of sentencing and corrections (pp. 299–316). https:// doi.org/10.1093/oxfordhb/9780199730148.013.0012 Zimring, F.  E. (1977). Making the punishment fit the crime: A consumers’ guide to sentencing reform. The University of Chicago Law School Occasional Paper, No. 12. https://chicagounbound.uchicago.edu/occasional_papers/16/

Chapter 8

Racial, Ethnic, Gender, and Economic Sentencing Disparity Peter S. Lehmann and Anna I. Gomez

Abstract  The presence of inequalities in criminal punishment according to defendants’ race, ethnicity, gender, or socioeconomic status arguably challenges the philosophical and moral foundations of the justice system. Nevertheless, there is clear evidence of disproportional representation according to these offender characteristics in US correctional populations. For this reason, much criminological research over the past 50 years, and especially within the past two decades, has been devoted to examining judicial decision-making at the sentencing stage of criminal justice processing. This chapter provides a brief overview of this literature, which consistently has shown that minority defendants, males, and those of lower socioeconomic status receive disparately harsh penalties, even after a host of other legal and extralegal factors are accounted for. Additionally, we discuss the research exploring the individual- and contextual-level conditions under which these inequalities appear to be more or less pronounced. Following this review, we present the theoretical frameworks which sentencing scholars most often have used to explain these patterns, and we emphasize in particular the potential role of implicit biases held and acted upon by criminal justice actors. We conclude by describing several areas where policy reform might reduce these disparities and ensure a more equitable system of punishment. Keywords  Race and ethnicity · Gender · Socioeconomic status · Sentencing guidelines · Judicial discretion The possibility that defendants convicted in criminal courts are subjected to punishments in ways that are patterned according to their race, gender, age, or socioeconomic status (SES) compromises the very foundation upon which the justice system is built (Franklin, 2018; Tonry, 1995). Indeed, Ulmer (2019, p. 1145) argues that “sentencing is a window into a society’s, and a community’s, cultural and social production of who and what is considered deserving of sanction,” and thus the P. S. Lehmann (*) · A. I. Gomez Sam Houston State University, Huntsville, TX, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_8

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presence of extralegal disparities in punishment arguably undermines the fundamental moral goals of punishment itself. These concerns are particularly salient in the United States during the era of mass incarceration, as even from a bird’s-eye view there is clear and persistent disproportionality in prison populations according to these characteristics (Pettit, 2012; Spohn, 2013; Western, 2006). However, a comprehensive and nuanced understanding of these patterns requires consideration of a vast array of interconnected factors surrounding the behaviors and experiences of offenders, the decisions of criminal justice actors, and the broader historical and political context in which punishment occurs (Alexander, 2010; Travis et al., 2014). Given the importance of these issues, the complexities and contours of criminal court sentencing—as well as racial, gender, and economic inequalities therein— have represented a dominant line of criminological inquiry for at least the past half-­ century (Spohn, 2000; Tonry, 2019). Though critiques of the American courts system as unfair and prejudiced are far from new (see, e.g., Blumstein et al., 1983; DuBois, 1899; Sellin, 1935), advances during the 1990s and 2000s in administrative record-keeping by criminal justice agencies and the statistical computing power available to researchers were responsible for a rapid increase in the amount of rigorous empirical work in this area. To date, there have been many hundreds of studies on the consequences of mandatory minimum sentences, the effectiveness of presumptive guidelines for improving punishment consistency, and the ways in which court actors use and abuse their discretionary power (see Baumer, 2013; Franklin, 2018; Mitchell, 2005; Ulmer, 2012; Zatz, 2000). Although this body of research is vast, of particular interest to sentencing scholars has been the extent to which—and the conditions under which—certain defendant characteristics influence the sentences that they receive, with a sizeable portion of this work emphasizing the interactive effects of legal and community-level factors. Within this extensive literature, a clear finding repeatedly has been observed: Black and (to a somewhat lesser extent) Hispanic offenders receive harsher sentences than their White counterparts. So robust is this pattern that scholars have argued that “it is overly simplistic to ask whether [emphasis added] race and ethnicity matter at sentencing” but instead that focus should turn to “the contexts in which or the circumstances under which race and ethnicity influence sentencing” (Spohn, 2015, p. 230; see also Baumer, 2013; Ulmer, 2012). Indeed, research has revealed that the disparate punishment severity experienced by minority defendants is highly conditional upon many other factors, including gender, age, the legally relevant dimensions of the case at hand, and the racial/ethnic community context in which the sentencing decision is made. The issue of gender has been of particular interest to researchers, with much work emphasizing not only the significant disadvantages experienced by male offenders but also the emergence of young Black and Hispanic males as the subgroup particularly at risk of receiving the harshest punishments (Doerner & Demuth, 2010; Steffensmeier et al., 1998, 2017). Research on SES and sentencing is much less common in this literature, but extant studies point to the important relationships between punitive sentencing outcomes and low educational attainment (Franklin, 2017; Steffensmeier & Demuth, 2000; Wooldredge, 2012) and unemployment (Chiricos & Bales, 1991; Spohn & Holleran, 2000).

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The goal of this chapter is threefold. In the first section, we provide a brief overview of the research on sentencing disparities according to race and ethnicity, and we highlight in particular the variations in these patterns according to additional legal and extralegal factors. We also discuss the current state of knowledge regarding the role of gender and SES in punishment as well as some other factors which appear to exacerbate and mitigate sentencing inequalities according to these characteristics. Rather than provide a detailed and comprehensive review, our aim is to document in broad terms the trends that have been observed in the empirical literature, especially within the past two decades. In the second section, we discuss theoretical issues surrounding racial, gender, and economic sentencing disparities to provide some insights into why and under what conditions these effects may emerge. Finally, we conclude with some policy recommendations that might hold some promise for reducing unwarranted sentencing disparities, thus helping to ensure a fairer and more equitable criminal justice system.

Extralegal Disparities in Sentencing: An Overview Though it has long been recognized that Black and Hispanic individuals are overrepresented in correctional populations, a key consideration for criminological researchers is parsing out racial/ethnic differences in offending patterns from differences in treatment by the justice system (Mears et al., 2016; Tonry, 1995). For this reason, much work has made use of case-level data collected by criminal justice agencies on offenders who have been processed by the courts system to assess whether comparable minority and White defendants are punished similarly at the sentencing stage. Though early work in this area suffered from serious methodological limitations (Hagan, 1974; Kleck, 1981; Pratt, 1998), the extensive body of recent literature has produced convincing evidence that minorities are penalized more harshly than Whites (Franklin, 2018; Spohn, 2000; Zatz, 2000). Notably, even after accounting for such factors as offense type and seriousness, criminal history, mode of conviction, the characteristics of the sentencing judge, and the community in which the court is situated, there remains persistent evidence of unwarranted disparities according to race and ethnicity, thus implicating the discretionary decisions of criminal justice actors as a key source of these inequalities (Bushway & Piehl, 2001; Clair & Winter, 2016; Everett & Wojtkiewicz, 2002). The most common analytic approach taken by sentencing scholars has been to examine the imposition of sentences to local jail and/or state prison relative to community supervision (Bales & Piquero, 2012; Spohn & Holleran, 2000) and the length of the assigned incarceration term among those receiving such sentences (e.g., Demuth & Steffensmeier, 2004; Hester & Hartman, 2017; Steen et al., 2005; Steffensmeier & Demuth, 2000, 2001; Wang et al., 2013). Generally, this research has revealed more pronounced effects of race and ethnicity in the “in/out” decision than in sentence length, though disparities in this latter outcome frequently are observed as well (Baumer, 2013; Mitchell, 2005). Following the introduction of

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presumptive sentencing guidelines in many jurisdictions, other studies have examined upward and downward departures from guideline recommendations (Johnson & Lee, 2013), with support emerging for the notion that extralegal disparities have not been entirely eliminated through such systems (Johnson, 2005; Kramer & Ulmer, 1996, 2002, 2009; Mustard, 2001). Some work also has explored various so-called intermediate or alternative sanctions, reporting that minority defendants are less likely than Whites to receive intensive supervision, “split” sentencing, electronic monitoring, drug and alcohol treatment, and other less punitive, non-­ traditional forms of punishment (Gainey et al., 2005; Johnson & DiPietro, 2012; Lehmann & Gomez, 2021). Much of the research following this line of inquiry has been concerned exclusively with inequalities emerging among Black, White, and Hispanic defendants; however, several studies have advanced this literature by exploring the sentences assigned to other racial/ethnic groups as well. For instance, some research—especially focused on the federal system—has examined the sentencing of Asian defendants relative to other groups, and with few exceptions these findings have revealed that Asians receive similar or more lenient punishment outcomes than Whites (Everett & Wojtkiewicz, 2002; Franklin & Fearn, 2015; Johnson & Betsinger, 2009; Kutateladze et al., 2014). Additionally, some work has shown that Native Americans experience harsher penalties than White offenders, particularly in the federal system (Everett & Wojtkiewicz, 2002; Franklin, 2013; Wilmot & DeLone, 2010). However, these latter findings are not universal (e.g., Engen & Gainey, 2000), thus suggesting that the disparately severe punishment of Native American defendants might be conditional upon jurisdictional and policy-related factors. Further, as Franklin (2018, p. 23) notes, “even if all studies adopted the very same methodology for testing race effects…it would still be unreasonable to expect uniform results” given the idiosyncratic nature of court communities and the norms which guide their functioning. While the research on the independent effects of race and ethnicity are informative, this line of inquiry does not in itself enhance our understanding of the “when and where” of sentencing disparities (Baumer, 2013, p. 238). Thus, it is important to investigate the other variables which might amplify or mitigate these observed inequalities, and to this end much work has explored the role of gender. The overwhelming consensus from this body of work is that male defendants are treated more punitively than females (e.g., Daly & Tonry, 1997; Goulette et  al., 2015; Griffin & Wooldredge, 2006; Steffensmeier et al., 1993) though these differences become more muted when crime type and prior record are accounted for (Doerner & Demuth, 2014). However, the gender gap in sentencing appears to have diminished somewhat since the early twenty-first century; one review of this literature reported that many studies using recent data have revealed little evidence that female defendants are advantaged compared to their male counterparts (Bontrager et al., 2013). Notably, the effects of gender seem to be closely tied to family responsibility, with female offenders who are married or have children being substantially more likely than others to receive leniency in punishment (Daly, 1987; Doerner & Demuth, 2014; Koons-Witt, 2002; Tasca et al., 2019).

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Of interest to many researchers is the extent to which race/ethnicity and gender might exert joint effects in sentencing such that each attribute strengthens the observed differences associated with the other. Pursuing this line of inquiry, scholars have found that there are indeed interactive relationships between minority status and gender, with Black and Hispanic defendants penalized especially harshly if they are male (e.g., Brennan & Spohn, 2009; Demuth & Steffensmeier, 2004; Kramer & Ulmer, 2002; Mustard, 2001; Ulmer et al., 2016). Generally, however, researchers have continued to find that race and Hispanic ethnicity influence the sentencing of female offenders, thus distinguishing White females as receiving the most lenient criminal penalties (Brennan, 2006; Steffensmeier et al., 1993). Further, when these two offender characteristics are considered in concert with age, Black and Hispanic males between ages 18 and 29 consistently have been identified as the race/gender/age subgroups that are most disadvantaged in criminal punishment (Doerner & Demuth, 2010; Franklin, 2015; Lehmann & Gomez, 2021; Spohn & Holleran, 2000; Steffensmeier et al., 1998, 2017; Warren et al., 2012). This pattern has emerged across studies of varied sentencing systems, court communities, and punishment outcomes, thus suggesting that a consideration of race and ethnicity as independent from these two other attributes may be inappropriate. Beyond gender and age, scholars have long pointed to the legal dimensions of cases as important not only for sentencing outcomes generally but also for the extent to which minority defendants are punished disparately harshly (Miethe & Moore, 1986; Zatz, 1987). Specifically, many studies of state and federal systems have found that Blacks and Hispanics are particularly disadvantaged in the sentencing of property, drug, and other less serious crimes (Demuth & Steffensmeier, 2004; Hester & Hartman, 2017; Steffensmeier & Demuth, 2000; Warren et  al., 2012). Similar results also have been observed in studies of non-traditional sentencing outcomes, including the assignment of the habitual offender designation (Caravelis et  al., 2011; Crawford et  al., 1998) and the withholding of felony adjudication (Bontrager et al., 2005). However, within the broad categories of violent and drug offenses, there is mixed evidence that racial/ethnic disparities are amplified in less serious cases (Kautt & Spohn, 2002; Lehmann, 2020; Spohn & Cederblom, 1991; Steen et al., 2005). The interactive effects of minority status and criminal history are likewise somewhat inconsistent; while some work has revealed aggravated disparities among offenders with little or no prior record (e.g., Franklin & Henry, 2020; Hester & Hartman, 2017; Spohn & Cederblom, 1991), others have found the opposite pattern (e.g., Miethe & Moore, 1986; Ulmer & Kramer, 1996). Though individual- and case-level variables have emerged as important conditioning factors in the sentencing literature, other research has explored how the contexts in which courts are situated might affect Black- and Hispanic-White disparities in punishment. In particular, there is evidence that the relative size of the minority population at the macro level is important not only for social control outcomes in general (see Chiricos et  al., 2020) but also for exacerbating sentencing inequalities at the individual defendant level. Indeed, net of such variables as crime rates, economic conditions, and political context, minority defendants have been found to experience especially severe sentencing outcomes in areas characterized

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by larger Black or Hispanic populations (Bontrager et al., 2005; Ulmer & Johnson, 2004; Wang & Mears, 2015). Other work has shown that the dynamic dimensions of macro-level racial/ethnic context size are key, with larger disparities found among cases disposed in locations with Black or Hispanic communities that experienced recent growth (e.g., Caravelis et al., 2011, 2013; cf. Wang & Mears, 2010). Some studies extending this line of inquiry have reported similar patterns in county contexts with growing immigrant populations, though these latter findings are not conclusive (Feldmeyer et al., 2015; Ulmer & Parker, 2020). Compared to the extensive body of sentencing literature on race, ethnicity, and gender, few studies have assessed the effects of socioeconomic status on criminal punishment outcomes, not least because this information often is not available to researchers due to data limitations. Since SES is complex and multidimensional, scholars commonly use educational attainment and employment as proxy measures of this construct. Regarding education status, there is evidence that those who have more education are at a reduced risk of receiving sentences to incarceration and lengthy jail or prison terms (Freiburger, 2011; Johnson & Betsinger, 2009; Wooldredge, 2012), with some research also indicating that racial/ethnic disparities are less prominent among defendants who are college graduates (Franklin, 2017; Steffensmeier & Demuth, 2000). The findings concerning employment have been similar, indicating that unemployed defendants are sentenced more harshly than those who are employed (Chiricos & Bales, 1991; Spohn & Holleran, 2000; Wooldredge, 2010). Notably, Wooldredge (2010) also observed that offenders who relied on financial assistance from family, friends, or the government were more likely to receive sentences to incarceration. Thus, these results generally mirror what has long been observed among the nation’s jail and prison inmates: most incarcerated individuals are unemployed or low income, have less education, and live in economically disadvantaged areas (Ulmer, 2012; Zatz, 2000).

Understanding Sentencing Disparities As noted above, a thorough historical description of the ways in which punishment in the United States is intertwined with race, gender, and SES is beyond the scope of this chapter. However, within the courts system, overt discrimination in processing and sentencing is expressly prohibited under the law (Franklin, 2018; Walker et al., 2018). Further, the transition from indeterminate to determinate sentencing structures was intended in large part to restrict the discretion of court actors and ensure that legally irrelevant factors would be less likely to influence punishment outcomes (Spohn, 2000; Tonry, 2016). Nonetheless, while there might be inconclusive evidence of explicit bias on the part of criminal justice decision-makers (Clair & Winter, 2016; Mears et al., 2016), discrimination against minorities, males, and offenders of lower SES might still occur through more covert channels. Indeed, theoretical explanations that emphasize these rather hidden mechanisms of

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disparity are most commonly presented in the literature to explain the persistence of inequalities in sentencing. Albonetti (1991) provided one of the best-known social psychological frameworks relevant for criminal justice actors’ sentencing decisions. This perspective, which sometimes is referred to as attribution theory, is built on the notion that judges are required to make complex legal decisions in a context where full rationality is not feasible due to caseload pressure, incomplete information about offenders, and other organizational constraints. To overcome these obstacles and make decisions in light of “bounded rationality,” court actors can rely on “ideal cognitive states,” which are “simple, coherent, and relatively enduring structures…that provide a priori organization for interpreting new experience” (Farrell & Holmes, 1991, p.  532). Put differently, in order to efficiently manage information, judges can implicitly place offenders into mental categories that are informed not only by a wide range of legally relevant case- or offense-related factors but also by the extralegal characteristics, traits, and behaviors of the offenders themselves. Albonetti (1991) theorizes that the primary consideration guiding these evaluations is defendants’ risk of recidivism, and for this reason court actors’ stereotyped linkages between race, gender, age, SES, etc., and offenders’ perceived likelihood of future criminal activity upon release can produce extralegal disparities in sentencing outcomes. The causal attributions perspective was developed further by Steffensmeier et al. (1998), who theorized that sentencing is guided in large part by three “focal concerns” that are evaluated by court actors: (1) the blameworthiness or culpability of the offender, (2) the extent to which the defendant represents a danger to the safety of the community, and (3) various practical considerations, organizational realities, and the consequences of the sentencing decision (see also Kramer & Ulmer, 2009; Steffensmeier et al., 1993). Like attribution theory, the focal concerns framework posits that court actors have access to limited information about defendants and therefore must assign sentences in the face of time constraints, caseload pressure, local court community norms, and conflicting punishment objectives. In this “decision-­making environment that is repetitive yet characterized by considerable uncertainty and complexity” (Steffensmeier et al., 2017, p. 814), judges can develop a “perceptual shorthand” that connects attributions and typescripts associated with defendants’ membership in various status groups with their relative blameworthiness, dangerousness, or likelihood of reoffending. Consequently, these implicit biases or “cognitive heuristics” may influence how judges assess the three focal concerns and thus impact the severity of sentences that they assign to individual offenders. Both of these frameworks provide clear theoretical connections between minority status and punishment severity, as court actors’ decision-making might be informed by “global, culturally derived stereotypes” surrounding race/ethnicity that “link certain groups of offenders to notions of dangerousness, culpability, and threat of criminality” (Steen et al., 2005, p. 437). Long-standing and commonly held perceptions in the US associate dark skin with criminal behavior (King & Johnson, 2016), and court actors involved in sentencing are likely to share these attitudes and

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stereotypes such that Blacks and Hispanics are implicitly assigned labels that distinguish them as dangerous and crime prone. A similar process is likely at work in the sentencing of males as well, with female defendants—especially those who are married and/or have children—viewed as weaker, more passive, less likely to recidivate, and more amenable to rehabilitation than men (Bontrager et al., 2013; Daly, 1987, 1989; Steffensmeier et al., 1993). Further, the cultural stereotypes about race and gender can be closely intertwined, especially in concert with age, such that young Black and Hispanic males can be identified as distinctly “dangerous, committed to street life, and less reformable than women and older offenders” (Steffensmeier et al., 1998, p. 787). Because the causal attributions and focal concerns perspectives hinge on the notion that court actors are apt to rely on “perceptual shorthand” and heuristics when making discretionary sentencing decisions, it is likely the case that the exercise of discretionary power will vary in correspondence with case characteristics. Along these lines, Spohn and Cederblom’s (1991) “liberation hypothesis” anticipates that judicial discretion will be largely constrained in more serious cases given the presence of higher evidentiary quality and the predominance of legally relevant concerns. In contrast, as the seriousness of the case at hand decreases, information about the offender becomes more limited, greater ambiguity surrounds the appropriate punishment, and court actors have more discretion over the sentencing process (Hauser & Peck, 2017; Hester & Hartman, 2017; Lehmann, 2020). This perspective is commonly used to interpret the findings regarding the presence of stronger race/ ethnicity effects in the sentencing of less serious offenses and offenders with less extensive criminal histories. However, the disparate penalties experienced by Black and Hispanic defendants in the sentencing of drug crimes also may reflect unique offense-specific stereotypes, as “drug (especially cocaine) distribution and sales in particular are identified with Black dominated gangs on the one hand and with Hispanic traffickers on the other” (Steffensmeier & Demuth, 2001, p. 152). The patterns surrounding the disparately harsh penalties to which Black and Hispanic defendants are subjected in relatively large or growing minority populations often are understood in light of the group threat framework. As articulated by Blalock (1967), Liska (1992), and others, criminal justice processes represent a form of social control that is used to protect the interests of dominant social groups. In the racial/ethnic context of the United States, it is theorized that the White majority mobilizes police and the legal system in response to economic, political, or status threats presented by minority groups when these groups demonstrate a capacity to compete for resources and attain status or viability (Chiricos et  al., 2020). Scholars have hypothesized that these types of macro-level threat can become conflated with criminal threat such that Blacks and Hispanics, and especially young minority males, are identified as a danger to community safety (Bontrager et al., 2005; Crawford et  al., 1998). Consequently, while Black and Hispanic offenders might be subjected to harsher criminal penalties than Whites generally, it is theorized that “in those contexts where African Americans pose the greatest political/ economic threat to the White mainstream, differential sanctioning is most

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pronounced” (Mitchell, 2005, p. 443). As discussed above, some empirical literature has borne out this expectation. The group threat perspective fits within the broader framework of conflict theory, and it has long been argued that law, criminal justice policy, and a wide array of other state institutions are designed to benefit powerful groups, perpetuate status hierarchies, and protect the status quo (Chambliss & Seidman, 1971; Hawkins, 1987). Indeed, for decades scholars have emphasized the importance of class-based disparities in treatment by the justice system, and it is plausible that the stereotyped perceptions of dangerousness and threat commonly assigned to Blacks and Hispanics might be ascribed to defendants on the basis of SES as well. For instance, Spohn and Holleran (2000) theorize that the pervasive belief that unemployment and crime are connected might be applied to individual offenders, and they speculate that defendants with stable, well-paying jobs may be viewed as less inclined to reoffend than those who have secondary sector jobs or are unemployed. Court actors’ perceptions surrounding educational attainment might be similar, as offenders with more education might “be viewed as less risky individuals—those who possess the necessary skill set to meaningfully contribute to society and ultimately remain free from serious crime” (Franklin, 2017, p. 143). The final ways in which disparities in sentencing according to race, gender, and SES have been understood relate to the structure and implementation of criminal justice policy. At the legislative level, scholars repeatedly have expressed concerns that ostensibly colorblind policies, such as the infamous mandatory minimums for crack versus powder cocaine (Alexander, 2010; Tonry, 2016), systematically penalize minorities more than Whites. There likewise is evidence that discretionary prosecutorial decisions to apply mandatory minimums are not consistent or equitable (Rehavi & Starr, 2014; Ulmer et al., 2007). Additionally, while sentencing guidelines systems generally have reduced disparities in the jurisdictions that have adopted them (Tonry, 2019; Wang et  al., 2013), judges’ freedom to depart from guideline recommendations and the availability of “alternative” sanctions effectively open “windows of discretion” (Engen et  al., 2003, p.  111) through which extralegal offender criteria might influence punishment outcomes. Relatedly, because sentencing represents the final stage of an extensive criminal justice process, the disparate treatment of certain defendants has been identified to be—at least in part—a function of other criminal justice actors’ discretionary decisions surrounding arrest, charging, pretrial detention, and plea negotiations, all of which perpetuate a system of “cumulative disadvantage” (Kurlychek & Johnson, 2019; Kutateladze et al., 2014). For this reason, some scholars have argued that the use of criminal history as an aggravating factor in sentencing is a key mechanism underlying persistent and accumulating disparities according to race, gender, and SES (Frase, 2009; Hester et al., 2018; Ulmer et al., 2016).

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Conclusion: Recommendations for Reform Although overt forms of bias and discrimination in criminal punishment are unlawful, it is clear from the literature reviewed above that extralegal disparities represent a key problem that continues to afflict the US criminal courts system, thus undermining the goals of justice that it attempts to achieve. To address these issues, scholars have proposed several policy changes that might improve equity in sentencing. The first of these is the implementation of presumptive sentencing guidelines, as the majority of jurisdictions in the United States currently have no such systems in place. While they are far from a panacea, the extant research provides support for the notion that such guidelines work as intended (e.g., Ulmer et al., 2016), thus leading Tonry (2019) to emphatically conclude that “presumptive sentencing guidelines developed by sentencing commissions are the most effective means to improve consistency, reduce disparity, and control corrections spending” (p. 4). While it would be unreasonable to expect that inequalities will disappear entirely under sentencing guidelines due to local variations in courtroom norms and priorities, this nonetheless should represent a policy priority for many states as a means of enhancing uniformity and reducing the unwarranted exercise of judicial discretion. A second key policy recommendation that might be derived from the empirical literature on sentencing disparities is that “three strikes” laws and other mandatory minimum sentencing policies should be repealed. In the jurisdictions where they are implemented, mandatory minimums override presumptive guideline recommendations and ensure that defendants receive sentences that often are much more severe than what would have been otherwise assigned. There is very little empirical evidence that the enhanced certainty and severity ostensibly provided by these punishments confer any deterrence benefits (Tonry, 2016; Travis et  al., 2014). Further, prosecutors have wide discretion over when mandatory minimums are invoked, thus rendering these punishments largely a bargaining chip leveraged in plea negotiations. Consequently, not only are such policies arbitrarily and disparately applied and circumvented (Tonry, 2019; Ulmer et al., 2007), but the reliance on prior record as the basis for such penalties disparately affects Black and Hispanic males of low SES—those who are most likely to experience criminal justice contact and develop extensive criminal histories in the first place. Finally, scholars increasingly have issued calls to revisit the use of prior criminal record as a legally relevant aggravating factor in sentencing, including under guidelines systems. While jurisdictions and court communities can vary in the ways in which they rely on criminal history to inform punishment decisions, in many instances prior record can represent the single most important determinant of sentencing severity (Hester et al., 2018; King, 2019). However, the assumption that the harsher penalties associated with prior record enhancements are likely to reduce crime is logically and empirically dubious; instead, there is evidence that they are a key driver of racial/ethnic disproportionality in prison populations (Frase, 2009; Ulmer et al., 2016). Thus, removing criminal history from sentencing could be an

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important means through which mass incarceration might be curtailed and extralegal disparities therein could be mitigated. In conclusion, a substantial amount of research attention has been devoted to uncovering how and when defendants’ race, gender, and SES might be sources of unequal treatment at the sentencing stage of criminal justice processing. The overarching pattern emerging from this vast literature indicates that the inequalities in punishment observed decades ago persist to the present day, even as various legal safeguards have been implemented to confront these issues. Scholars generally have pointed to court actors’ exercise of discretionary power as the primary source of these disparities; however, some evidence suggests that presumptive guidelines restricting this discretion can help to reduce the effects of extralegal defendant factors, especially when such guidelines become integral to the organizational norms governing court operations at the local level (Johnson, 2005; Kramer & Ulmer, 2009; Tonry, 2019). Thus, while sentencing inequalities appear to originate in large part from the decision-making of individual actors at multiple stages of justice system processing, state- and nationwide policy reforms have the potential to alter these patterns and enhance predictability, uniformity, and fairness in punishment.

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Caravelis, C., Chiricos, T., & Bales, W. (2013). Race, ethnicity, threat, and the designation of career offenders. Justice Quarterly, 30(5), 869–894. https://doi.org/10.1080/07418825.2011.635597 Chambliss, W. J., & Seidman, R. B. (1971). Law, order, and power. Addison-Wesley. Chiricos, T., Pickett, J. T., & Lehmann, P. S. (2020). Group threat and social control: A review of theory and research. In C. Chouhy, J. C. Cochran, & C. L. Jonson (Eds.), Criminal justice theory: Explanations and effects (pp. 69–92). Routledge. Chiricos, T. G., & Bales, W. D. (1991). Unemployment and punishment: An empirical assessment. Criminology, 29(4), 701–724. https://doi.org/10.1111/j.1745-­9125.1991.tb01085.x Clair, M., & Winter, A.  S. (2016). How judges think about racial disparities: Situational decision-­making in the criminal justice system. Criminology, 54(2), 332–359. https://doi. org/10.1111/1745-­9125.12106 Crawford, C., Chiricos, T., & Kleck, G. (1998). Race, racial threat, and sentencing of habitual offenders. Criminology, 36(3), 481–512. https://doi.org/10.1111/j.1745-­9125.1998.tb01256.x Daly, K. (1987). Discrimination in the criminal courts: Family, gender, and the problem of equal treatment. Social Forces, 66(1), 152–175. https://doi.org/10.1093/sf/66.1.152 Daly, K. (1989). Rethinking judicial paternalism: Gender, work-family relations, and sentencing. Gender & Society, 3(1), 9–36. https://doi.org/10.1177/089124389003001002 Daly, K., & Tonry, M. (1997). Gender, race, and sentencing. Crime and Justice, 22, 201–252. https://doi.org/10.1086/449263 Demuth, S., & Steffensmeier, D. (2004). Ethnicity effects on sentence outcomes in large urban courts: Comparisons among white, black, and Hispanic defendants. Social Science Quarterly, 85(4), 994–1011. https://doi.org/10.1111/j.0038-­4941.2004.00255.x Doerner, J. K., & Demuth, S. (2010). The independent and joint effects of race/ethnicity, gender, and age on sentencing outcomes in U.S. federal courts. Justice Quarterly, 27(1), 1–27. https:// doi.org/10.1080/07418820902926197 Doerner, J. K., & Demuth, S. (2014). Gender and sentencing in the federal courts: Are women treated more leniently? Criminal Justice Policy Review, 25(2), 242–269. https://doi. org/10.1177/0887403412466877 DuBois, W.  E. B. (1899). The Philadelphia negro: A social study. University of Pennsylvania, Philadelphia, PA. Engen, R. L., & Gainey, R. R. (2000). Modeling the effects of legally relevant and extralegal factors under sentencing guidelines: The rules have changed. Criminology, 38(4), 1207–1230. https://doi.org/10.1111/j.1745-­9125.2000.tb01419.x Engen, R.  L., Gainey, R.  R., Crutchfield, R.  D., & Weis, J.  G. (2003). Discretion and disparity under sentencing guidelines: The role of departures and structured sentencing alternatives. Criminology, 41(1), 99–130. https://doi.org/10.1111/j.1745-­9125.2003.tb00983.x Everett, R.  S., & Wojtkiewicz, R.  A. (2002). Difference, disparity, and race/ethnic bias in federal sentencing. Journal of Quantitative Criminology, 18(2), 189–211. https://doi.org/10.102 3/A:1015258732676 Farrell, R.  A., & Holmes, M.  D. (1991). The social and cognitive structure of legal decision-­ making. The Sociological Quarterly, 32(4), 529–542. https://doi.org/10.1111/j.1533­8525.1991.tb00152.x Feldmeyer, B., Warren, P. Y., Siennick, S. E., & Neptune, M. (2015). Racial, ethnic, and immigrant threat: Is there a new criminal threat on state sentencing? Journal of Research in Crime and Delinquency, 52(1), 62–92. https://doi.org/10.1177/0022427814548488 Franklin, T. W. (2013). Sentencing native Americans in U.S. federal courts: An examination of disparity. Justice Quarterly, 30(2), 310–339. https://doi.org/10.1080/07418825.2011.605072 Franklin, T. W. (2015). Race and ethnicity effects in federal sentencing: A propensity score analysis. Justice Quarterly, 32(4), 653–679. https://doi.org/10.1080/07418825.2013.790990 Franklin, T.  W. (2017). Sentencing outcomes in U.S. district courts: Can offenders’ educational attainment guard against prevalent criminal stereotypes? Crime & Delinquency, 63(2), 137–165. https://doi.org/10.1177/0011128715570627

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Spohn, C. (2013). Racial disparities in prosecution, sentencing, and punishment. In S. M. Bucerius & M. Tonry (Eds.), The Oxford handbook of ethnicity, crime, and immigration (pp. 166–193). Oxford University Press. Spohn, C. (2015). Evolution of sentencing research. Criminology & Public Policy, 14(2), 225–232. https://doi.org/10.1111/1745-­9133.12125 Spohn, C., & Cederblom, J. (1991). Race and disparities in sentencing: A test of the liberation hypothesis. Justice Quarterly, 8(3), 305–327. https://doi.org/10.1080/07418829100091071 Spohn, C., & Holleran, D. (2000). The imprisonment penalty paid by young, unemployed black and Hispanic male offenders. Criminology, 38(1), 281–306. https://doi.org/10.1111/j.1745­9125.2000.tb00891.x Steen, S., Engen, R. L., & Gainey, R. R. (2005). Images of danger and culpability: Racial stereotyping, case processing, and criminal sentencing. Criminology, 43(2), 435–468. https://doi. org/10.1111/j.0011-­1348.2005.00013.x Steffensmeier, D., & Demuth, S. (2000). Ethnicity and sentencing outcomes in U.S. federal courts: Who is punished more harshly? American Sociological Review, 65(5), 705–729. https://doi. org/10.2307/2657543 Steffensmeier, D., & Demuth, S. (2001). Ethnicity and judges’ sentencing decisions: Hispanicblack-­white comparisons. Criminology, 39(1), 145–178. https://doi.org/10.1111/j.1745­9125.2001.tb00919.x Steffensmeier, D., Kramer, J., & Streifel, C. (1993). Gender and imprisonment decisions. Criminology, 31(3), 411–446. https://doi.org/10.1111/j.1745-­9125.1993.tb01136.x Steffensmeier, D., Painter-Davis, N., & Ulmer, J. (2017). Intersectionality of race, ethnicity, gender, and age on criminal punishment. Sociological Perspectives, 60(4), 810–833. https://doi. org/10.1177/0731121416679371 Steffensmeier, D., Ulmer, J., & Kramer, J. (1998). The interaction of race, gender, and age in criminal sentencing: The punishment cost of being young, black, and male. Criminology, 36(4), 763–798. https://doi.org/10.1111/j.1745-­9125.1998.tb01265.x Tasca, M., Cho, A., Spohn, C., & Rodriguez, N. (2019). The role of parental status and involvement in sentence length decisions: A comparison of men and women sentenced to prison. Crime & Delinquency, 65(14), 1899–1924. https://doi.org/10.1177/0011128718811929 Tonry, M. (1995). Malign neglect: Race, crime, and punishment in America. Oxford University Press. Tonry, M. (2016). Sentencing fragments: Penal reform in America, 1975–2025. Oxford University Press. Tonry, M. (2019). Fifty years of American sentencing reform: Nine lessons. Crime and Justice, 48, 1–34. https://doi.org/10.1086/701798 Travis, J., Western, B., & Redburn, F. S. (2014). The growth of incarceration in the United States: Exploring causes and consequences. New Academies Press. Ulmer, J., Painter-Davis, N., & Tinik, L. (2016). Disproportional imprisonment of Black and Hispanic males: Sentencing discretion, processing outcomes, and policy structures. Justice Quarterly, 33(4), 642–681. https://doi.org/10.1080/07418825.2014.958186 Ulmer, J.  T. (2012). Recent developments and new directions in sentencing research. Justice Quarterly, 29(1), 1–40. https://doi.org/10.1080/07418825.2011.624115 Ulmer, J. T. (2019). New theory and research on sentencing. Justice Quarterly, 36(7), 1145–1147. https://doi.org/10.1080/07418825.2019.1687204 Ulmer, J.  T., & Johnson, B. (2004). Sentencing in context: A multilevel analysis. Criminology, 42(1), 137–178. https://doi.org/10.1111/j.1745-­9125.2004.tb00516.x Ulmer, J. T., & Kramer, J. H. (1996). Court communities under sentencing guidelines: Dilemmas of formal rationality and sentencing disparity. Criminology, 34(3), 383–408. https://doi. org/10.1111/j.1745-­9125.1996.tb01212.x Ulmer, J. T., Kurlychek, M. C., & Kramer, J. H. (2007). Prosecutorial discretion and the imposition of mandatory minimum sentences. Journal of Research in Crime and Delinquency, 44(4), 427–458. https://doi.org/10.1177/0022427807305853

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Chapter 9

Bail Reform in the United States: The What, Why, and How of Third Wave Efforts Samantha A. Zottola, Sarah E. Duhart Clarke, and Sarah L. Desmarais

Abstract  Bail is the practice of using money or property as an assurance that a person charged with a criminal offense will return for their scheduled court dates and not engage in criminal activity during the pretrial period. However, there is limited evidence supporting bail as an intervention in these ways, despite the steady increase in both the use and amount of bail since the late 1980s. Instead, bail is widely criticized for emphasizing resource-based decisions that have unnecessarily increased rates of pretrial detention in the United States and have contributed to cumulative and disproportionate disadvantage for people of color and low-income people involved in the American legal system. Consequently, there is widespread agreement that bail reform is needed and, yet, what this means in policy and practice is widely contested. In this chapter, we review bail decision-making practices, their impact overall and for marginalized groups, and bail reform efforts over time, including ongoing challenges or concerns. Keywords  Bail · Pretrial decision-making · Pretrial detention · Failure to appear · Pretrial risk assessment · Pretrial services · Electronic monitoring

S. A. Zottola · S. L. Desmarais (*) Research Associates, Inc., Delmar, NY, USA e-mail: [email protected]; [email protected] S. E. Duhart Clarke RTI International, Durham, NC, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_9

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Bail Reform For the past several years, bail reform has been a near daily focus of local and national headlines. The purpose of bail—ostensibly—is to ensure that people who have been charged with a crime, often referred to as “defendants,” appear in court for their pretrial hearings and trial proceedings without committing new criminal acts during that timeframe. It is not supposed to be used as a strategy for detaining a person during the pretrial period or for punishing them for the alleged offense (ABA, 2019). Indeed, during the pretrial period, the presumption of innocence applies. In reality, however, bail is often (mis)used in these ways. And, despite local, state, or federal guidelines, research demonstrates that bail determinations can often be biased by extralegal factors, including personal characteristics, such as race/ethnicity (Demuth & Steffensmeier, 2004; Freiburger et  al., 2010; Freiburger & Hilinski, 2010; Wooldredge et  al., 2015). For these reasons, there is widespread agreement that bail reform is needed and, yet, what this means in policy and practice is widely contested. In this chapter, we first define key terms and provide a brief history of bail in the United States. We then review how bail decisions are currently being made and their impact. We end with a discussion of various contemporary bail reform efforts, including potential challenges or concerns as well as recommendations for research to support bail reform efforts.

Definitions After a person is arrested and booked into jail, they have a first appearance at which a judge or magistrate1 (hereafter referred to as judicial officers) tells them their official charges and decides whether to release them without conditions, release them with conditions, or detain them in jail for the pretrial period. Bail is one possible condition under which a person can be released. Bail is the practice of using money or property as an assurance that a person charged with a criminal offense will return for their scheduled court dates and not engage in criminal activity during the pretrial period. After a person is arrested and booked into jail, a judicial officer may assign a bail amount and type (ABA, 2019). These determinations are informed by local, statewide, and/or federal laws and policies, which provide guidance regarding the factors that can be considered in setting bail. The two main types of bail are secured bail and unsecured bail (Schnacke, 2014). Secured bail, which is most common in the United States, requires payment before the person is released from jail. Typically, a person pays the full amount required (often referred to as “posting bail”) with cash, check, or, if the court allows a credit card. A friend or family member may also  The role of magistrates varies by state but generally, magistrates are appointed judicial officers that serve at the discretion of elected US district court judges. Magistrates can reside over almost any type of court proceeding with a few exceptions (e.g., felony cases; Federal Judicial Center, n.d.). 1

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pay. In lieu of payment, some courts accept a deposit of property (e.g., jewelry, title to a car) that is equal to the amount owed. When the person returns for their scheduled court dates, the money or property is returned. If they do not return for court, they forfeit that money or property to the court. With unsecured bail, release from jail is not contingent upon paying the assigned amount; instead, the bail amount is only paid if the person does not show up to their scheduled court dates or is re-­ arrested during their pretrial period. Some jurisdictions allow people to pay a portion of the bail amount in the form of a bail bond. That is, they pay the court some percentage of the full amount owed. Sometimes this amount is returned to them when they appear for court. However, if the person does not appear for a scheduled court date, they will then be required to pay the full bail amount (Schnacke, 2014). Not all jurisdictions allow bail bonds to be paid directly to the court. Some jurisdictions only allow bail bonds to be facilitated through the services of a bail agent (also called a bondsman, bail bondsperson, or bond dealer). To use the services of a bail agent, a percentage of the bail amount is paid to the bail agent, who in turn pays the full bail amount to the court. Then, after the person appears for all their scheduled court dates, the full bail amount is given back to the bail agent. However, the person does not get back the percentage they paid the bail agent. This is the major difference between paying bail directly to the court and using the services of a bail agent. When a person pays bail directly to the court, the payment is returned when they appear for scheduled court dates; when a person pays a bail agent, the payment is never returned, even if they appear for scheduled court dates (Baughman, 2017b). While a few states have banned commercial bail agent services (e.g., Illinois, Kentucky, Oregon, and Wisconsin), this is the most common form of paying bail in most other states (“Bail Bond Agents”, 2019). A final option for paying bail is the use of community bail funds. These bail funds are raised by nonprofit organizations (e.g., Minnesota Freedom Fund) and are used to pay bail for people who cannot afford to pay on their own (Phillips, 2017). The practice of bail described here is referred to as cash bail, money bail, or monetary bail and the specifics of this practice differ slightly across states and between jurisdictions within states. We have only provided a brief overview.

The History of Bail in the United States During the 1600s through the early 1800s, in the United States, “bail” was largely synonymous with “release” and pretrial detention was relatively rare (Schnacke, 2018). In these years, bail consisted of a system of personal sureties. Under this system, a person close to someone charged with a crime (e.g., family member, neighbor) provided a personal surety, essentially a promise, that they would be responsible for ensuring that the person charged appeared for court and made any payments ordered by the court (Schnacke, 2014). If the person did not appear or defaulted on any payments, then the person who provided surety would make payments (Carlucci, 2020; Schnacke et al., 2010; Schnacke, 2018). This system lasted

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until the mid-1800s or early 1900s, when the shift to the predominantly money-­ driven bail system that we know today occurred (Carlucci, 2020).

Movement to Monetary Bail There are a number of reasons, both legal and cultural, behind the movement to money bail that are beyond the scope of this chapter (see Schnacke et al., 2010 or Schnacke, 2014 for detailed discussion). In brief, as people expanded beyond close knit communities into increasingly urban and rural areas, it became harder for a person being charged with a crime to find someone willing to provide a personal surety to secure their release from jail (Schnacke, 2014). This resulted in the establishment of commercial sureties (i.e., bail bond agents) by roughly 1900. Bail went from always being unsecured to often being secured (Schnacke, 2018) and, as a result, the gap between those who could pay and those who could not widened (Smith, 2018). Efforts to increase the number of people being released pretrial without requiring secure bail payments started in the 1920s and the emergence of research into methods such as assessing flight risk and the use of pretrial service agencies began (Carlucci, 2020; Schnacke, 2018). Over the coming decades, there was an uptick in research examining bail practices. Results of this research demonstrate that people who could not pay bail and were detained pretrial, were more likely to be convicted and to receive more severe sentences (Foote, 1965). This research provided some of the first evidence of the cumulative and deleterious impact of pretrial detention on case outcomes.

Bail Act of 1966 As a result of bail research and in conjunction with the civil rights movement, the Bail Act of 1966 was passed to reduce income discrimination in pretrial detention and to increase release rates (Bail Reform Act of 1966, 1966; Newport, 2020; Schnacke, 2014). This act stated that ensuring appearance in court was the only reason a person charged with a non-capital offense could be detained. For capital offenses, judicial officers could consider risk of nonappearance as well as threat to public safety, but the person was still to be released unless that risk was great. The act also explicitly stated factors judicial officers could consider when making a release decision (e.g., prior convictions, financial resources) and strongly encouraged release on the least restrictive conditions especially release on recognizance (i.e., release without payment of bail) (Carlucci, 2020; Schnacke, 2014). The Act pertained only to federal court decisions, but many states followed suit and, though states did not incorporate the full scope of policies set forth by this Act, pretrial detention rates and accompanying wealth disparities were greatly reduced across the country (Schnacke, 2014; Schnacke et al., 2010; Smith, 2018).

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Bail Act of 1984 Unfortunately, this period of reform was short lived and brought about a great deal of criticism for its perceived leniency. By the beginning of the 1980s, politicians vying for elected positions turned to tough-on-crime rhetoric as a way to win elections in the midst of a period of social unrest. The result was a second period of bail reform that was characterized by increasing rates of pretrial detention (Carlucci, 2020). A second bail act, the Bail Act of 1984, was passed allowing judges to detain a person pretrial if they believed that person posed a threat to public safety, no matter their charge (Bail Reform Act of 1984, 1984). The 1984 Act also expanded the conditions of release that a judicial officer could impose on a person. For example, a person could be released but be required to regularly check in with the court or required to refrain from owning a firearm. This act also greatly expanded the reasons someone could be detained. Under the 1966 Act, a person could only be detained pretrial if no condition of release would ensure their return to court. Under the 1984 Act, judicial officers could detain someone if they committed a new offense while out on bail, if they were charged with a crime while on probation or parole, or if they were charged with a crime and they were not a US citizen (Carlucci, 2020). Like the 1966 Act, the 1984 Act applied to federal courts, but many states followed suit, which resulted in increased pretrial detention rates nationwide (Schnacke et al., 2010). Because neither bail act addressed state courts, and the US Supreme Court has established only a very broad definition of bail (see Stack v Boyle and United States v Salerno), states have near total discretion to enact bail systems as they see fit (Carlucci, 2020). As a result, many of the current bail reform efforts are heavily focused on changing state rather than federal bail practices (Schnacke, 2018).

Summary of Bail Reform Efforts Over the Years A quick review of bail reform in the United States reveals a cyclical pattern. Efforts to expand the use of bail are followed by efforts to limit its use, which are then followed by renewed efforts to expand its use again. When President Lyndon B. Johnson signed the Bail Act of 1966, he said, The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price. He languishes in jail weeks, months, and perhaps even years before trial. He does not stay in jail because he is guilty … He does not stay in jail because he is any more likely to flee before trial … He stays in jail for one reason only-he stays in jail because he is poor (Peters & Woolley, n.d.-a, para. 8).

It was clear in 1966 that bail practices lead to punitive treatment of people who were still innocent in the eyes of the law, and in this way, had overstepped their purpose and were deeply unjust. Yet, less than 20 years later, President Regan promised that he was working for bail reform, “so that dangerous offenders, and especially big-­ time drug pushers, can be kept off our streets” (Peters & Woolley, n.d.-b, para. 6).

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The Bail Act of 1984 soon followed. Over the next few decades, the rate of people detained pretrial increased, and in 2011, at a national symposium on pretrial justice, then Attorney General Eric Holder gave a speech that echoed the concerns President Johnson shared almost 50 years earlier, saying that people “are forced to remain in custody . . . because they simply cannot afford to post the bail required—very often, just a few hundred dollars—to return home until their day in court arrives” (United States Department of Justice, 2015, para. 12). Now, another 9 years later, rates of pretrial detention remain unnecessarily high, with nearly two-thirds of the people detained in US jails innocent but awaiting trial (Zeng, 2020). Many of the research findings that brought about the Bail Act of 1966 are being reproduced in research today and ending the practice of money bail remains a major component of bail reform efforts, just as it was in the 1960s. However, this third wave of bail reform efforts goes beyond just seeking an end to the money bail system, which may be the key to finally breaking the reform cycle of the last 60 years.

Bail Decision-Making Today As of December 2020, the 1984 Bail Act is still in effect, which allows judicial officers to consider risk of flight and threat to public safety when determining whether to release or detain a person pretrial. Specifically, decision-makers can consider four factors: (1) nature of the current charge, (2) weight of the evidence against the person, (3) history and characteristics of the person charged, and (4) nature and seriousness of the danger the person poses to people and the community as a whole (Bail Reform Act of 1984, 1984). Bail decisions are typically made in very rapid process hearings; each case is considered and decided within a few minutes (Stevenson & Mayson, 2017). Many jurisdictions rely on bail schedules that are intended to promote uniformity in bail determinations (Gouldin, 2016; Pretrial Justice Institute, 2010). These schedules may specify classes of charged offenses that are or are not eligible for bail and recommend the amount of bail to be set based on the nature of the charged offenses. Judicial officers, however, retain ultimate discretion to set the amount. While bail schedules suggest amounts based on the charged offense, they provide no further guidance about how judicial officers should weight factors when setting bail (Stevenson & Mayson, 2017). Research demonstrates that bail determinations are often influenced by factors beyond what is legally relevant to the case and decision at hand (Banks et al., 2006; Richardson & Goff, 2013), perhaps a result of the lack of specific guidance. For instance, even after controlling for legally relevant factors (e.g., criminal history, seriousness of charged offense, or number of offenses), men tend to receive higher bail amounts than women (Ball & Bostaph, 2009; Demuth & Steffensmeier, 2004; Pinchevsky & Steiner, 2016) and Black and Hispanic people tend to receive higher bail amounts than their White counterparts (Arnold et al., 2018; Demuth, 2003; Schlesinger, 2005; Wooldredge et al., 2015). These disparities in bail amounts may be attributable, at least in part, to the rapid

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nature of bail determinations. Given the lack of time and available information, judicial officers are compelled to rely on mental shortcuts (e.g., stereotypes and biases; Tversky & Kahneman, 1974) and on easily observable characteristics, including age, gender, and race/ethnicity, when making bail decisions (Jones, 2013; Schlesinger, 2005; Tartaro & Sedelmaier, 2009). To that end, one area of emphasis in current reform efforts is the use of strategies to increase the structure and evidence supporting bail decisions.

Consequences of Bail The steady increase in both the use and amount of bail since the late 1980s is of grave concern (Council of Economic Advisers, 2015). Bail determinations are one of the first and, arguably, most impactful case decisions. Inequities that begin at a person’s bail hearing can build over time resulting in vastly different case outcomes, and even, life circumstances (Kurlychek & Johnson, 2019). In the sections that follow, we discuss the negative and cumulative consequences of bail and the groups of people most impacted by the money bail system.

Pretrial Detention There are two ways that bail practices can lead directly to pretrial detention. First, bail may be set unattainably high to prevent a person from being able to pay and attain their freedom (Liu et al., 2018). Second, a person may not be able to pay bail, even at lower amounts, causing them to remain in jail (New York City Criminal Justice Agency, 2018). About 70% of people being held in jails across the United States are charged with felony offenses (Zeng, 2020) for which they face a median bail amount of $10,000 (Council of Economic Advisers, 2015). At this amount, pretrial release is unattainable for one in ten Americans who are unable to cover an emergency expense of $400 dollars or more (Larrimore et al., 2016), even if they only have to pay 10% (i.e., $1000). Consequently, financial resources are a dominant factor in determining pretrial release (Sawyer & Wagner, 2020; Subramanian et al., 2015). People who are held in pretrial detention face a myriad of negative consequences. They are more likely to engage in plea negotiations and to plead quickly than those who are released. Indeed, people in pretrial detention plead guilty at rates anywhere from 5% to 19% higher than people not detained (Dobbie et al., 2018; Petersen, 2020; Stevenson, 2018). These rates may reflect how hard it is for people to meet with their lawyers and contribute to their defense while they are detained (Heaton et al., 2017; Kellough & Wortley, 2002; McCoy, 2007; Reaves, 2013; Sacks et al., 2015). High rates of guilty pleas may also reflect the desire to secure release from jail, regardless of the legal consequences (Ottone & Scott-Hayward, 2018). In

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addition to increasing guilty pleas, pretrial detention is associated with increases in the likelihood of being convicted (Cohen & Reaves, 2007; Phillips, 2012; Stevenson, 2018), being sentenced to prison or jail, and increased sentence length (Heaton et al., 2017; Phillips, 2012; Stevenson, 2018). These increases hold even after controlling for legal (e.g., offense seriousness and criminal history) and extralegal (e.g., age, race, and gender) factors (Williams, 2003), as well as for felony and non-felony cases alike (Phillips, 2007, 2008). The consequences of pretrial detention are not limited to poor legal outcomes. People experience the negative impacts of pretrial detention in their personal lives as well including damaged family bonds, unstable housing, inconsistent childcare, and poorer mental and physical health compared to their non-detained counterparts (Baughman, 2017a; Ottone & Scott-Hayward, 2018; Pelvin, 2017). Rates of chronic and infectious disease among people in jail are at least double those in the general population (Trotter et  al., 2018). To demonstrate, a recent report examining data from March 2020 to October 2020 revealed that people in pretrial detention accounted for the majority of COVID-19 deaths in Texas county jails during that timeframe (Deitch et al., 2020). People held pretrial also lose income, employment, access to education, and property while detained (Bak, 2002; Dobbie et al., 2018; Rabinowitz, 2010) while people who are released pretrial have significantly higher rates of employment and higher incomes up to 4 years after the bail hearing (Dobbie et al., 2018). Beyond the impacts at the person level, unnecessarily high rates of pretrial detention confer significant costs to the system, and ultimately, taxpayers. To demonstrate, the total annual cost of pretrial jail beds in the United States has been estimated in the ballpark of $13 billion (Wagner & Rabuy, 2017). For these reasons, bail reform that moves away from a money-based model and reduces rates of pretrial detention is critically needed.

People of Color Research examining racial disparities in bail practices has primarily focused on Black and Hispanic2 people. Black and Hispanic people have greater odds of being held on bail (Demuth & Steffensmeier, 2004) and lower odds of being granted nonfinancial release than White people (Freiburger et  al., 2010; Schlesinger, 2005; Wooldredge, 2012). When bail is assigned, Black and Hispanic people are often assigned higher amounts than their White counterparts (Demuth & Steffensmeier, 2004; Free, 2002; Kutateladze & Andiloro, 2014), even after legally relevant factors are considered (Arnold et al., 2018; Demuth, 2003; Schlesinger, 2005; Wooldredge et  al., 2015). Few studies have considered how multiple, interconnected social

 Studies included here identify people as Hispanic, without providing a specific definition, likely a result of the way race/ethnicity is recorded in arrest and jail records (Eppler-Epstein et al., 2016). 2

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categories contribute to discrimination in bail setting; studies that have found that Black and Hispanic men, specifically, receive higher bail amounts than White men (Demuth & Steffensmeier, 2004). Other work that additionally considers age has found that young, Black men receive higher bail amounts than White men, older Black men, and Black and White women of any age (Wooldredge, 2012; Wooldredge et al., 2015; Zottola, 2020). There may be multiple mechanisms through which these disparities in bail amounts occur. For example, bail schedules and pretrial release guidelines may include considerations that act as a proxy for race, such as criminal history and employment (Bail Reform Act of 1984, 1984). Additionally, people of color, and Black people in particular, are more likely to be charged and for a more serious offense than their White peers engaging in the same behavior (e.g., Kochel et al., 2011; Kutateladze et al., 2016; Wu, 2016), thus, making them eligible for a higher maximum bail amount. Research also shows that disparities in bail amounts may be attributable to the neighborhoods in which crimes are committed, such that when crimes are committed in more disadvantaged neighborhoods that often have higher rates of residents of color, they tend to receive higher bail amounts (Wooldredge et al., 2017). Other research, consistent with attribution theory, suggests that people of color (again, Black people in particular) are perceived as being more dangerous and blameworthy than their White peers who commit the same crimes (Johnson & King, 2017; Markowitz & Syverson, 2019; Steffensmeier et al., 1998). This may affect judicial decision-making under the framework of focal concerns theory, which organizes the various factors that guide judicial decision-making including the ways in which personal characteristics may influence these factors (Steffensmeier, 1980; Steffensmeier et al., 1998). Applied to bail determinations, this theory suggests that when information is limited or incomplete, it is hard for judicial officers to form opinions of blameworthiness, dangerousness, and practical constraints (the three focal concerns) so they also rely on characteristics (e.g., race, gender) and considerations of personal and community outcomes (e.g., career advancement, political consequences, concerns regarding social justice and safety; Freiburger & Hilinski, 2010; Schlesinger, 2005). Regardless of the specific theory or mechanism, the empirical evidence converges on the finding that people of color, specifically Black and Hispanic people, face more punitive pretrial decisions than similarly situated White people, including but not limited to bail determinations. Addressing these racial/ethnic disparities is at the heart of many bail reform efforts and, in fact, has been the focus of broader calls for changes to the legal system at large.

Indigent Defendants Indigent defendants (i.e., people who are unable to afford their own counsel and have an attorney appointed to them by the court) are one subgroup that are particularly disadvantaged within current bail practices. Indigent defendants are, by definition, more financially disadvantaged than their non-indigent counterparts and, thus,

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inherently less likely to be able to post bail. The few studies that have been conducted on indigent defense status and assigned bail have shown that indigent defendants may receive higher bail amounts than their non-indigent counterparts and may also be denied bail more often than non-indigent defendants (Duhart Clarke et al., 2019; Williams, 2017). Bail guidelines often explicitly include socioeconomic considerations within their pretrial release guidelines, such as living situation, employment, and/or financial responsibilities (Bail Reform Act of 1984, 1984). Thus, socioeconomic variables inform judicial decisions both through established bail guidelines and as an extralegal point of consideration, ultimately, contributing to class inequality (Eckhouse et  al., 2018; Goddard & Myers, 2018). Very little research has been conducted on this topic, but researchers and professionals speculate that the increased bail amounts or denial of bail altogether likely result in a higher likelihood for indigent defendants to be detained pretrial and experience the associated negative effects (ABA, 2004; Williams, 2017). One solution to reduce the disparate impact of bail and pretrial detention on indigent defendants is to ensure the presence of counsel at bail decision hearings. Currently, the majority of courts in the United States do not assign indigent defense counsel until after first appearance hearings, which means that most indigent defendants do not have an attorney present when their bail amount is decided. Prosecutors, however, are present at first appearance hearings, and research demonstrates that judges often assign the bail amount that is recommended by the prosecutor (Phillips, 2004; Worden et al., 2018). Without an attorney present to advocate for them, indigent defendants are often ill equipped to negotiate bail amounts assigned to them. Many legal scholars, activists, and others argue that having a defense attorney present at the time of bail determination would aid in reducing these disparities (e.g., ABA, 2017; Bunin, 2016; Gerstein, 2013). Indeed, studies suggest that public defenders are effective in influencing bail decisions and secure better bail outcomes for those they represent compared to indigent defendants who are not represented at their bail decision hearing (Sacks et al., 2015; Turner & Johnson, 2006).

People with Behavioral Health Needs To date, there has been limited consideration of people with behavioral health needs (including those with mental illnesses or substance use disorders) in bail reform efforts; this population has received greater focus in other aspects of criminal justice reform, such as diversion programming and specialty courts which are beyond the scope of this chapter (Hartford et al., 2006; Lowder et al., 2018; Schneider, 2010). Yet, consideration of people with behavioral health needs in the context of bail reform is essential as they are likely to experience worsened health trajectories on top of experiencing the host of negative outcomes associated with pretrial detention discussed earlier. Additionally, behavioral health needs may contribute to missed court dates and result in further punitive action by courts as will be discussed later. Considering that people with behavioral health needs make up an estimated 60% of

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the population in jails (Kim et al., 2015), and therefore represent a sizable portion of the pretrial population, future bail reform efforts must address the unique needs of this population.

Current Bail Reform Efforts Given these serious and disparate consequences, current bail reform efforts emphasize strategies that may ultimately serve to reduce pretrial detention and increase equity in bail determinations. These strategies include ending money bail, supporting court appearance, implementing pretrial risk assessment tools, and providing pretrial services and supervision. We review each of these strategies, including their premise, effectiveness, and challenges, in turn.

Ending Money Bail Ending money bail is a major focus of the current wave of bail reform. The lack of fairness that characterizes the US system of money bail has received considerable media coverage (Fausset, 2018; Marshall, 2016; Rabuy & Kopf, 2016; Travis, 2018; Wykstra, 2018) and there is broad agreement that a system that emphasizes income cannot continue (Rabuy & Kopf, 2016). Particularly, troubling is the heavy reliance on commercial bail bond agents. The United States and the Philippines are the only two countries that legally allow the use of commercial bail bond agents and, as a result, their money bail systems are dominated by these private, commercial interests (Liptak, 2008). Many efforts to develop alternatives that reduce or eliminate the use of the money bail system are underway. One approach is to enact formal or legal policies that reform this system (Townes, 2017). In some places—such as the state of New Jersey and Mecklenburg County, North Carolina—these efforts have been successful at greatly reducing to nearly eliminating the use of money bail. Despite considerable political and public dialog to the contrary, empirical evidence supports the success of these efforts in reducing reliance on money bail without increasing risk to public safety or rates of failure to appear (Anderson et al., 2019; Herring, 2020; Redcross et al., 2019). The passing of bills or enactment of policy has not been uniformly successful as a reform strategy. In 2019, for example, New York State passed a bail reform package that eliminated the use of bail for many misdemeanor and nonviolent crimes. Shortly after the law went into effect, the New York Police Department (NYPD) released data showing an increase in crime rates, which was blamed on the reduced use of money bail. Though the cause of the increase is unclear, the report led to the successful passing of a new bill that rolled back many of the changes made by the initial reform bill (Lartey, 2020). Consequently, rates of pretrial detention have not only returned to but exceeded pre-reform rates (New York State Division of Criminal

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Justice Services, 2020). As another example, in California Senate Bill 10 (SB10) was passed in 2018 to eliminate the use of money bail and replace it with a risk-­ based model. Later that year, SB10 was vetoed by a referendum following pushback from civil rights advocates and the American Bail Coalition who asserted that risk-­ based models would both increase pretrial detention rates and exacerbate racial disparities (Schuppe, 2020; Leadership Conference on Civil and Human Rights, 2018). The executive director of the American Bail Coalition, who helped raise the money for the referendum, later admitted that rather than concern over racial bias, “The most obvious reason we don’t like SB10 is that it eliminates bail bonding in California” (Schuppe, 2020, A Split Over Algorithms section, para 11). In 2020, California citizens voted to repeal SB10, thereby retaining the use of money bail in California. These two failed attempts at eliminating money bail highlight the key role that advocacy groups and community members play in policy reform efforts as well as the considerable influence of the bail bond industry. Several alternatives to end money bail without implementing risk-based models of reform, which we will discuss in the next section, have been proposed. One alternative is to simply release most people on recognizance; that is, release them without any conditions (financial or otherwise) and allow them to return to court of their own volition (Robinson & Koepke, 2019; Woods & Allen-Kyle, 2019). The reductions to jail populations that occurred during the COVID-19 pandemic without commensurate increases in crime rates (Virani et  al., 2020) provide support for this option. Other alternatives include enforcing due process protections for release hearings (e.g., right to counsel, speedy hearings, robust appeals process) and employing policies that make court appearance easier (e.g., free bus pass for people with court summons, onsite childcare at courts; Robinson & Koepke, 2019; Woods & Allen-Kyle, 2019). A final alternative includes implementing a needs-based—as opposed to risk-based—pretrial model. Under such a model, all people booked into jail would be assessed by staff from agencies outside of courts and jails to identify and address needs that may prevent them from being able to make their court dates and remain crime-free during the pretrial period (e.g., housing, transportation, responsibilities such as caring for dependents, mental health care). By addressing these needs, nearly all people could be released during the pretrial period and helped to ensure follow through with their court process. If prosecutors want to detain someone, they may request a detention hearing within 24 h of booking. If prosecutors provide clear and convincing evidence that the person poses high risk of nonappearance or risk of physical violence to an identifiable person (without the use of risk assessment instruments), then the court may impose release conditions or choose to detain a person. Ideally, though, nearly everyone would be released without court-imposed conditions under this model (Virani et al., 2020). These alternatives are promising but they do come with limitations. First, such programs would require considerable staffing and time to allow for speedy, robust pretrial hearings and to offer childcare and the type of in-depth assessments necessary to accurately identify individual needs. In large jurisdictions that see dozens (or hundreds) of people a day or in jurisdictions with limited resources, this may not be possible. Second, it is not clear what would be considered clear and convincing

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evidence of risk of nonappearance or physical violence and whether this evidence would be applied uniformly across defendants without bias. Indeed, decades of research shows that unstructured professional judgments of human behavior—and criminal behavior, in particular—are less accurate and more biased than structured or statistical approaches (Grove et al., 2000; Lin et al., 2020; Meehl, 1954). Third, these reforms require buy-in on the part of courts and the public. Recent failed reform in New  York demonstrates the importance of obtaining, and maintaining, such buy-in (Lartey, 2020). Fourth, many of the suggested reforms require the availability of community-based services with some (e.g., Virani et al., 2020) requiring substantial services. Research on the treatment resource hypothesis demonstrates that judges may be unwilling to release people if the resources needed to address identified needs are not available (Garrett et al., 2019). Fifth, and finally, it is unclear whether suggested reforms would also suffer the same critiques regarding potential racial/ethnic or other biases.

Implementing Pretrial Risk Assessment Instruments Many scholars, practitioners, and policy makers believe that pretrial risk assessment instruments are another strategy for supporting efforts to eliminate money bail by increasing uniformity and transparency in pretrial decisions without relying on bail schedules (Desmarais & Lowder, 2019). Specifically, pretrial risk assessment instruments provide structure to reduce bias and promote a transparent and evidence-­ based approach for estimating the likelihood someone will fail to appear in court or be rearrested during the pretrial period. Pretrial risk assessment instruments are typically quite short, completed through record review and/or in person interview, and rely on an algorithmic approach to combine item ratings into risk scores (Desmarais et al., 2020). Jurisdictions across the United States have incorporated the use of pretrial risk assessment instruments to support bail reform (Stevenson & Mayson, 2017). There are a handful of instruments that are used in multiple jurisdictions across the United States such as the Public Safety Assessment (PSA; VanNostrand & Lowenkamp, 2013), the Virginia Pretrial Risk Assessment Instrument (VPRAI; VanNostrand, 2003), the Ohio Risk Assessment System-­ Pretrial Assessment Tool (ORAS-PAT; Latessa et al., 2009), and the Federal Pretrial Risk Assessment Instrument (PTRA; Lowenkamp & Whetzel, 2009). Other jurisdictions have adapted these instruments or developed their own (Desmarais et al., 2020). Empirical research suggests that pretrial risk assessment instruments can predict pretrial outcomes with fair to excellent predictive validity (Desmarais et al., 2020; Lowder et al., 2020b) and that their use is associated with reduced rates of pretrial detention (Anderson et  al., 2019; Brooker, 2017; Lowderet al., 2020a; Redcross et  al., 2019; Viljoen et  al., 2019). Legal scholars, advocates, and others have expressed concerns that they may further exacerbate racial/ethnic disparities (Pretrial Justice Institute, 2020; Leadership Conference on Civil and Human Rights,

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2018). These concerns must be rigorously examined; yet, studies that have examined racial bias in predictive validity show mixed results and emphasize differences across instruments and jurisdictions (see Desmarais et  al., 2020 for a systematic review of the research). Further, existing research associated with implementing pretrial risk assessment instruments shows a decrease in pretrial detention across groups defined by race or ethnicity (Lowder et al., 2020b; Redcross et al., 2019; Viljoen et al., 2019). When research has revealed disparities in pretrial detention rates, the bias could be attributed to judicial decision-makers’ interpretation of or deviation from risk scores (Cohen et al., 2020; Lowder et al., 2020b; Schaefer & Hughes, 2019; Stevenson, 2018). Thus, disproportionate rates of pretrial detention may be indicative of system rather than instrument bias (Mayson, 2019; Menefee, 2018; Schaefer & Hughes, 2019; Vincent & Viljoen, 2020). Evaluations of risk for failure to appear and  rearrest are an integral aspect of pretrial release decisions, even in the absence of pretrial risk assessment instruments (Vincent & Viljoen, 2020). The use of pretrial risk assessment instruments may not eliminate bias altogether, but research suggests they can improve accuracy, consistency, and transparency over unaided decisions (Mayson, 2019). Certainly, risk assessment results could be presented in a way that further mitigates potential harm by framing the results in a positive way (i.e., chance of pretrial success rather than failure; Scurich & John, 2011) and stating likely outcomes as probabilities rather than categories (i.e., “70% likelihood of success” vs “high risk”; Krauss et al., 2018). Further, pretrial risk assessment instruments should be used to encourage releasing more people and should never be the sole justification for pretrial detention. The implementation of pretrial risk assessment instruments may help jurisdictions achieve of the goals of bail reform, as long as they are validated, transparent, easy to understand, and their contents and findings  are easily accessible (Guttman et al., 2020; Zeng et al., 2017).

Addressing Failure to Appear The belief that requiring a person to pay bail is the only way to ensure their appearance in court is pervasive and is supported by bail law (Bail Reform Act of 1966, 1966; Bail Reform Act of 1984, 1984). Yet, recent research demonstrates that releasing people without requiring them to pay bail does not result in increases in rates of failure to appear (FTA; Monaghan et  al., 2020; Ouss & Stevenson, 2019). To be sure, FTAs are a problem for courts with some jurisdictions reporting rates ranging from 20% to 50% of cases (Davis, 2005; Cohen & Reaves, 2007; Cooke et al., 2018; Howat et al., 2016). Courts spend hundreds of hours and millions of dollars taking action against people who fail to appear (Bernal, 2017; Rosenbaum et  al., 2012; Tomkins et al., 2012) including forfeiture of bond, extra fines, driver’s license suspensions, and jail time (Bornstein et al., 2012; Crozier & Garrett, 2020). Yet, even in the face of these consequences, FTA rates have remained constant since the late 1980s (Bernal, 2017; Cohen & Reaves, 2007) suggesting that it is time to stop

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believing that bail and punitive actions are the solution and start to rethink the court’s approach to addressing FTAs. A major shortcoming of nearly all research, practice, and policy surrounding FTAs is the almost exclusive focus on whether a person will appear in court as opposed to considering why a person may not appear. This focus drives courts to respond punitively and assume bail will prevent FTAs when it does not. Yet, there are many reasons a person might FTA that will not be prevented just because there is money on the line. For instance, they may forget or never receive information that is critical for them to appear in court (Crozier & Garrett, 2020; Mahoney et  al., 2001) or they may struggle to navigate the complicated process of attending court hearings (Cooke et al., 2018; Feeley, 1979). People may miss court if they experience scheduling conflicts, family or childcare conflicts (Bornstein et  al., 2012), work commitments (Crozier & Garrett, 2020), transportation or language barriers (Mahoney et al., 2001), or mental health or substance use problems (Gehring & van Voorhis, 2014). Developing and implementing practices that respond to these reasons for missing court is critical. One intervention that has demonstrated success in reducing FTAs involves reminding people of their court date. Court date reminder programs may involve phone calls, text messages, or postcards sent within a week or two of an upcoming court date. Some reminders simply include the time, date, and location for a person’s upcoming hearing or trial while others also remind people of consequences for not appearing or encourage people to make a plan that will help them show up in court. Live phone calls also may afford the opportunity for people to ask questions and to provide extra information about logistical issues, such as parking or bus schedules (Cooke et al., 2018; Ferri, 2020; Howat et al., 2016; Lowenkamp et al., 2018; Rosenbaum et al., 2012; Schnacke et al., 2012; Tomkins et al., 2012). These programs generally show success, with some reducing FTA rates by as much as 30% or more (Bornstein et  al., 2012; Rosenbaum et  al., 2012; Schnacke et  al., 2012). However, some reminder programs did not reduce FTA rates (Cumberbatch & Barnes, 2018; Lowenkamp et al., 2018) suggesting that, for some people, forgetting their court date is not the reason they fail to appear. Nonetheless, providing court reminders is a low-cost intervention with limited drawbacks and greater demonstrated effectiveness than bail. Another intervention that has demonstrated success is extending court hours to include nights and weekends, reducing barriers related to taking time off work or secure childcare. In one county, this intervention eliminated 470 FTA warrants and reinstated 461 driver’s licenses in just three evenings and two Saturday court sessions (Bernal, 2017). Other successful interventions include allowing people to email evidence after a citation or arrest (e.g., emailing proof of a valid driver’s license) instead of requiring them to file proof in person (Bernal, 2017) and holding court hours at community locations like churches and schools (Turner, 2015). One final intervention that has successfully reduced FTA rates in New York City involved redesigning summons forms issued by police such that the court date information was easy to find (rather than buried at the bottom of the form) (Cooke et al., 2018). These interventions demonstrate successful ways to prevent FTAs that do not

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require money bail and courts across the nation are adopting interventions to decrease FTAs (Pretrial Justice Institute, 2019). Unfortunately, research on FTAs has focused on historical or static risk factors for FTAs and has not kept up with the growing interest in developing an evidence base for solutions to replace bail and improve FTA rates (Gouldin, 2018). While the examples we reviewed herein are promising, rigorous tests of these interventions as an alternative to monetary bail is sorely needed. Research on FTAs must be a priority of bail reform efforts in the coming years.

Providing Pretrial Services and Supervision Pretrial service agencies are intended to reduce the number of people in pretrial detention by providing supervision and services so that people can be released without bail but still have some level of monitoring and intervention. Federal and local pretrial service agencies have been established across the nation (Pretrial Justice Institute, 2010; VanNostrand & Keebler, 2007). There is a great deal of variation in how these agencies function, including where they are housed (e.g., in courts, jails, probation departments, independent government agencies, or nonprofit organizations) who they serve (e.g., a single court, multiple counties, or the entire state) and the services they provide (e.g., criminal history checks, interviews, pretrial risk assessment, release recommendations, and case management and supervision). Pretrial supervision is viewed by many as an essential component of bail reform (Pretrial Justice Institute, 2010). In theory, judges will release more people pretrial—that is, people they would otherwise detain—if pretrial supervision is available to promote the likelihood of court appearance and community safety (e.g., ABA, 2007; National Association for Pretrial Services Agencies, 2020). Accordingly, the vast majority of pretrial services agencies provide supervision such as having people check in by phone or in person with a pretrial officer, or through location/ electronic monitoring (Pretrial Justice Institute, 2010; Pretrial Justice Institute, 2019). However, pretrial supervision has come under scrutiny due to concerns regarding net widening, overly intensive levels of supervision, the financial costs and time burden, the use of pretrial supervision in addition to (rather than in lieu of bail), and, perhaps most importantly, its lack of empirical support as an intervention. To demonstrate, studies fail to find reductions in pretrial failure (Cadigan, 1991; Grommon et al., 2017). More specifically, research suggests that electronic monitoring may reduce one type of pretrial failure—FTAs—but that it also increases another, technical violations (Cooprider & Kerby, 1990; Sainju et  al., 2018). Research on other forms of supervision are no more compelling (see Stevenson & Mayson, 2017, for a review). Drug testing in the context of pretrial supervision has risen rapidly over the past 20 years; the vast majority of pretrial service agencies in the United States provide this service (Pretrial Justice Institute, 2010; Pretrial Justice Institute, 2019). However, there is limited contemporary research on the effectiveness of drug testing

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as a pretrial intervention (APPR, 2020), and the findings of studies conducted in the late 1980s and early 1990s are not compelling (Britt et  al., 1992; Goldkamp & Jones, 1992; Goldkamp et al., 1990; Toborg et al., 1989). A recent review of the research concluded that drug testing does not reduce FTAs or pretrial crime rates and, instead, may actually reduce the likelihood of pretrial success (Hatton & Smith, 2020). Likewise, although mental health treatment is routinely discussed as much-­ needed component of bail reform (e.g., Fullard, 2015), the evidence supporting its effectiveness as a condition of pretrial release is limited (Hatton & Smith, 2020). Indeed, a study of federal pretrial services found that some people who received mental health treatment were less likely to FTA or engage in new crime, while others were not (VanNostrand & Keebler, 2009). Regardless of whether mental health treatment is effective, the constitutionality of requiring behavioral health treatment as a condition of pretrial release is questionable (Centers for Substance Abuse Treatment, 2005). Overall, there is little research supporting the effectiveness of pretrial supervision and services (Bechtel et al., 2017) with the possible exception of court reminder interventions. Rigorous research on pretrial supervision practices must be a priority to determine whether they are appropriate strategies to support future bail reform efforts.

Conclusion There is a clear need for bail reform in the United States, but limited agreement and even less empirical evidence regarding how the system should be reformed. Much of the current discussion regarding bail reform emphasizes fear and rhetoric, rather than theory and evidence. There is a desperate need for rigorous research clarifying the drivers of different types of FTAs, evaluating pretrial interventions, and testing strategies to support their effective implementation in practice. Further, the results of this work must be shared with the public, policy makers, and other criminal justice system stakeholders. As reviewed herein, bail decisions are highly consequential and, if done well, bail reform has the potential to contribute to significant and lasting change in the criminal justice system. Indeed, reducing rates of pretrial detention and increasing equity in pretrial decisions, ultimately, may reduce rates of justice involvement overall and racial disparities in the criminal justice at large.

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Kutateladze, B. L., Andiloro, N. R., & Johnson, B. D. (2016). Opening pandora’s box: How does defendant race influence plea bargaining? Justice Quarterly, 33(3), 398–426. https://doi.org/1 0.1080/07418825.2014.915340 Larrimore, J., Dodini, S., & Thomas, L. (2016, May). Report on the economic well-being of US households in 2015. Board of Governors of the Federal Reserve System. Retrieved from https://www.federalreserve.gov/2015-­report-­economic-­well-­being-­us-­households-­201605.pdf Lartey, J. (2020, April 23). New York rolled back bail reform. What will the rest of the country do? The Marshall Project. Retrieved from https://www.themarshallproject.org/2020/04/23/ in-­new-­york-­s-­bail-­reform-­backlash-­a-­cautionary-­tale-­for-­other-­states Latessa, E., Smith, P., Lemke, R., Makarios, M., & Lowenkamp, C. (2009). Creation and validation of the Ohio risk assessment system: Final report. University of Cincinnati. Retrieved from https://www.uc.edu/content/dam/uc/ccjr/docs/reports/project_reports/ORAS_Final_ Report.pdf Leadership Conference on Civil and Human Rights. (2018). The use of pretrial “risk assessment” instruments: A shared statement of civil rights concerns. Retrieved from http://civilrightsdocs. info/pdf/criminal-­justice/Pretrial-­Risk-­Assessment-­Full.pdf Lin, Z. J., Jung, J., Goel, S., & Skeem, J. (2020). The limits of human predictions of recidivism. Science Advances, 6(7), eaaz0652. https://doi.org/10.1126/sciadv.aaz0652 Liptak, A. (2008, January 29). Illegal globally, bail for profit remains in U.S. New York Times. Retrieved from www.nytimes.com/2008/01/29/us/29bail.html Liu, P., Nunn, R., & Shambaugh, J. (2018). The economics of bail and pretrial detention. The Hamilton Project. Retrieved from https://www.brookings.edu/wp-­content/uploads/2018/12/ BailFineReform_EA_121818_6PM.pdf Lowder, E. M., Grommon, E., & Ray, B. R. (2020a, Jun). Improving the accuracy and fairness of pretrial release decisions: A multi-site study of risk assessments implemented in four counties [Award # 2018-R2-CX-0023]. National Institute of Justice, Bureau of Justice Programs, U.S. Department of Justice. Lowder, E.  M., Lawson, S.  G., Grommon, E., & Ray, B.  R. (2020b). Five-county validation of the Indiana risk assessment system  – Pretrial assessment tool (IRAS-PAT) using a local validation approach. Justice Quarterly, 37(7), 1241–1260. https://doi.org/10.1080/0741882 5.2020.1829006 Lowder, E. M., Rhade, C. B., & Desmarais, S. L. (2018). Effectiveness of mental health courts in reducing recidivism: A meta-analysis. Psychiatric Services, 69(1), 15–22. https://doi. org/10.1176/appi.ps.201700107 Lowenkamp, C.  T., Holsinger, A.  M., & Dierks, T. (2018). Assessing the effects of court date notifications within pretrial case processing. American Journal of Criminal Justice, 43(2), 167–180. https://doi.org/10.1007/s12103-­017-­9393-­7 Lowenkamp, C.  T., & Whetzel, J. (2009). Development of an actuarial risk assessment instrument for U.S. pretrial services. Federal Probation, 73(2), 33–36. Retrieved from https://www. uscourts.gov/sites/default/files/73_2_3_0.pdf Mahoney, B., Beaudin, B. D., Carver, J. A., III, Ryan, D. B., & Hoffman, R. B. (2001). Pretrial services programs: Responsibilities and potential (NCJ 181939). U.S. Department of Justice, Office of Justice Programs, National Institute of Justice. Retrieved from https://www.ncjrs.gov/ pdffiles1/nij/181939.pdf Markowitz, F.  E., & Syverson, J. (2019). Race, gender, and homelessness stigma: Effects of perceived blameworthiness and dangerousness. Deviant Behavior. https://doi.org/10.108 0/01639625.2019.1706140 Marshall, R. (2016, August 24). America’s bail system is a war on the poor. Let’s get rid of it. Vox. Retrieved from https://www.vox.com/2016/8/24/12590060/doj-­bail-­unconstitutional Mayson, S. G. (2019). Bias in, bias out. Yale Law Journal, 128(8), 2218–2300. Retrieved from https://www.yalelawjournal.org/pdf/Mayson_p5g2tz2m.pdf McCoy, C. (2007). Caleb was right: Pretrial decisions determine mostly everything. Berkeley Journal of Criminal Law, 12(2), 135–149. Retrieved from https://www.bjcl.org/assets/ files/12_2-­BerkeleyJCrimL135.pdf

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Meehl, P. E. (1954). Clinical versus statistical prediction: A theoretical analysis and a review of the evidence. University of Minnesota Press. https://doi.org/10.1037/11281-­000 Menefee, M. R. (2018). The role of bail and pretrial detention in the reproduction of racial inequalities. Sociology Compass, 12(5), e12576. https://doi.org/10.1111/soc4.12576 Monaghan, J., van Holm, E. J., & Surprenant, C. W. (2020). Get jailed, jump bail? The impacts of cash bail on failure to appear and re-arrest in Orleans Parish. American Journal of Criminal Justice. https://doi.org/10.1007/s12103-­020-­09591-­9 National Association of Pretrial Service Agencies. (2020). Standards on pretrial release: Revised 2020. Retrieved from https://napsa.org/eweb/DynamicPage.aspx?Site=napsa&WebCode =standards New York City Criminal Justice Agency. (2018, March). Annual Report 2016. Retrieved from https://www.nycja.org/assets/CJA_Annual_Report_2016-­1.pdf New York State Division of Criminal Justice Services. (2020). Jail population in New York State. Retrieved from https://www.criminaljustice.ny.gov/crimnet/ojsa/jail_population.pdf Newport, M. (2020, June 17). Bail funds are having a moment in 2020. The Washington Post. Retrieved from https://www.washingtonpost.com/outlook/2020/06/17/ bond-­funds-­are-­having-­moment-­2020 Ottone, S., & Scott-Hayward, C. S. (2018). Pretrial detention and the decision to impose bail in Southern California. Western Criminology Review, 19(2), 24–43. Retrieved from https://scholasticahq.com/criminology-­criminal-­justice-­law-­society/ Ouss, A., & Stevenson, M. (2019). Evaluating the impacts of eliminating prosecutorial requests for cash bail. George Mason Legal Studies Research Paper, Legal Studies #19–08, 1–35. Retrieved from https://www.law.gmu.edu/pubs/papers/ls1908 Pelvin, H. (2017). Doing uncertain time: Understanding the experiences of punishment in pre-­ trial custody [Doctoral thesis, University of Toronto]. Retrieved from http://hdl.handle. net/1807/80896 Peters, G., & Woolley, J. T. (n.d.-a). Lyndon B. Johnson, remarks at the signing of the Bail Reform Act of 1966. The American Presidency Project. Retrieved from https://www.presidency.ucsb. edu/node/238665 Peters, G., & Woolley, J. T. (n.d.-b). Radio address to the nation on crime and criminal justice reform. The American Presidency Project. Retrieved from https://www.presidency.ucsb.edu/ documents/radio-­address-­the-­nation-­crime-­and-­criminal-­justice-­reform Petersen, N. (2020). Do detainees plead guilty faster? A survival analysis of pretrial detention and the timing of guilty pleas. Criminal Justice Policy Review, 31(7), 1015–1035. https://doi. org/10.1177/0887403419838020 Phillips, M. T. (2004, July). Factors influencing release and bail decisions in New York City, part 3: Cross-borough analysis. New York City Criminal Justice Agency. Retrieved from https:// www.nycja.org/publications/factors-­influencing-­release-­and-­bail-­decisions-­in-­new-­york-­city-­ part-­3-­cross-­borough-­analysis Phillips, M.  T. (2007). Pretrial detention and case outcomes, part 1: Nonfelony cases. New York City Criminal Justice Agency. Retrieved from https://www.nycja.org/publications/ pretrial-­detention-­and-­case-­outcomes-­part-­1-­nonfelony-­cases Phillips, M.  T. (2008). Pretrial detention and case outcomes, part 2: Felony cases. New  York City Criminal Justice Agency. Retrieved from https://www.nycja.org/publications/ pretrial-­detention-­and-­case-­outcomes-­part-­2-­felony-­cases Phillips, M. T. (2012, August). A decade of bail research in New York City. New York City Criminal Justice Agency, . Retrieved from http://unlockjustice.org/wp-­content/uploads/2018/06/CJA-­A-­ Decade-­of-­Bail-­Research-­2012.pdf Phillips, S.  P. (2017, April). National survey of community bail funds: Report to the community. Smart Decision Initiative, Washington University in St. Louis. Retrieved from https:// static1.squarespace.com/static/5a973b49ee1759a6e039e0f4/t/5c0666d1575d1fefff96 45f2/1543923411576/national+survey.071417.pdf

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in rural small town courts. Criminal Justice Policy Review, 29(6–7), 710–735. https://doi. org/10.1177/0887403417726133 Wu, J. (2016). Racial/ethnic discrimination and prosecution: A meta-analysis. Criminal Justice and Behavior, 43(4), 437–458. https://doi.org/10.1177/0093854815628026 Wykstra, S. (2018, October 17). Bail reform, which could save millions of unconvicted people from jail, explained. Vox. Retrieved from https://www.vox.com/future-­perfect/2018/10/17/17955306/ bail-­reform-­criminal-­justice-­inequality Zeng, J., Ustun, B., & Rudin, C. (2017). Interpretable classification models for recidivism prediction. Journal of the Royal Statistical Society: Series A, 180(3), 689–722. https://doi. org/10.1111/rssa.12227 Zeng, Z. (2020). Jail inmates in 2018. U.S. Department of Justice, Bureau of Justice Statistics. Retrieved from https://www.bjs.gov/content/pub/pdf/ji17.pdf Zottola, S.  A. (2020). Efforts to improve evidence-based practices from jail booking to first appearance in court (publication no. 28075143) [Doctoral dissertation, North Carolina State University]. ProQuest Dissertations & Theses Global.

Chapter 10

Case Prosecution: Race, Justice, and Decision-Making Don Stemen

Abstract  Prosecution in the United States is changing rapidly. Prosecutors increasingly are expected to take proactive, engaged responses to community problems that de-emphasize the use of incarceration, increase prosecutorial transparency and accountability, and reduce racial and ethnic disparities in the criminal justice system. These changes have spurred a new wave of research focused on understanding prosecutorial decision-making and the potential cumulative disadvantage that may result from discrete prosecutorial outcomes. As a new wave of elected prosecutors takes office, many have introduced reforms to address both the disproportionate number of minority defendants entering the criminal justice system and the potential racial and ethnic disparity that may exist in prosecutorial decision-making. Some reforms—such as increasing the use of data—allow prosecutors to monitor case outcomes so that they can better identify and correct disparities. Other policies—such as refusing to prosecute specific offenses—are blunt reforms that can reduce the number of minority defendants entering the system and potentially correct some racial and ethnic disproportionality in the criminal justice system. Finally, other reforms—such as increasing diversion and reducing the use of prison—are intended to reduce the harsh impact of the criminal justice system and, in turn, address disparities in the collateral consequences of criminal convictions. Keywords  Prosecution · Race · Racial disparity · Case processing · Progressive prosecutors · Data

D. Stemen (*) Loyola University Chicago, Chicago, IL, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_10

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Case Prosecution: Race, Justice, and Decision-Making Prosecution in the United States is changing rapidly. Partly driven by citizens’ expectations of community well-being and shifting sentiments about punitiveness, prosecutors increasingly are expected to take proactive, engaged responses to community problems that de-emphasize the use of incarceration, increase transparency, and build greater trust through community engagement (e.g., Philly DA for the People, 2018; Real Justice, 2018). Advocates and professional groups have further encouraged elected prosecutors to adopt policies and practices that end cash bail, address disparities, and increase diversion and treatment options (e.g., American Civil Liberties Union of California, 2018; Fair and Just Prosecution, 2018; Institute for Innovation in Prosecution, 2018; Vera Institute of Justice, 2018). Importantly, prosecutors are driving change themselves. A new wave of prosecutors have gained elected office, speaking directly to these citizen and advocate expectations and campaigning on platforms to end mass incarceration, reduce racial and ethnic disparities, and increase prosecutorial accountability (Harvard Law Review, 2018; Sklansky, 2017a, 2017b). These calls for change have ushered in a renewed interest in and opportunities for understanding prosecutorial decision-making. In the American criminal justice system, the prosecutor’s discretion is broader, more often available, and less constrained than the discretion of any other system actor. Prosecutors generally have discretion to determine whether charges are filed, to control the number and severity of charges filed, to amend or dismiss charges after filing, to divert cases into alternative programs, and to craft initial and final plea offers. While discretion plays an important role in other parts of the criminal justice system—police discretion at arrest, judicial discretion at sentencing, parole board discretion at release—the breadth and impact of the discretion afforded prosecutors exceeds that of their law enforcement, judicial, or parole board colleagues. More importantly, how prosecutors use discretion and what goes into prosecutorial decision-making have been little understood outside the community of prosecutors. The increasing transparency of prosecutors’ offices, however, has spurred a new wave of research focused on the relationship between prosecutorial decision-­making and racial and ethnic disparities in the criminal justice system. In recent years, a growing body of scholarship has examined those factors that affect case outcomes throughout the prosecutorial process. Research shows that prosecutorial outcomes primarily are affected by legal factors, such as strength of the evidence and type and seriousness of the offense; but research shows that factors such as defendant and victim race, gender, and age affect outcomes as well. The empirical literature on the relationship between prosecutorial decision-making and race and ethnicity, however, is mixed. Some studies show that race and ethnicity impact case outcomes while others find no direct effects of race and ethnicity (Free, 2002; Kutateladze et al., 2012). Yet, most prior research remains fairly limited by examining only one decision point at a time. Rarely has research considered more than one decision point or formally assessed the conditioning effects of early case-processing

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decisions on future outcomes. To address this, a growing body of research has begun to examine cumulative disadvantage in prosecutorial decision-making (see, e.g., Kutateladze et al., 2014)—the idea that relatively small disparities can build over the life of a case to create significant disparities in final case outcomes. Many newly elected prosecutors have introduced reforms to address both the disproportionate number of minority defendants entering the criminal justice system and the potential racial and ethnic disparity that may exist in prosecutorial decision-making. Some reforms—such as increasing the use of data—are intended to create greater accountability and transparency in the prosecutorial process; the idea is that prosecutors should better monitor case outcomes so that they can better identify and correct disparities. Other policies—such as refusing to prosecute specific offenses—are blunt reforms that can reduce the number of minority defendants entering the system and potentially correct some racial and ethnic disproportionality in the criminal justice system. Finally, other policies—such as increasing diversion and reducing the use of prison—are intended to reduce the harsh impact of the criminal justice system and, in turn, address disparities in the collateral consequences of criminal convictions.

The Prosecutor’s Dual Roles Prosecutors occupy a unique “dual role” in the US criminal justice system as both “advocates seeking conviction and ‘ministers of justice” (Fish, 2018; Fisher, 1988). As advocates, prosecutors are part of an adversarial system in which the goal of prosecution is winning cases through conviction and punishment of defendants. As ministers of justice, prosecutors are part of a system in which the goals of prosecution include protecting the rights of defendants, representing the interests of the community, and ensuring just outcomes. While this minister of justice role may involve conviction and lengthy sentences, it also can involve diversion, dismissal, alternative sentences, or no prosecution at all (Fish, 2018; Fisher, 1988). Some observers describe these dual roles as “schizophrenic” (Steele, 1984, p. 982), requiring prosecutors to choose between acting strategically to win litigation or acting morally to pursue substantive values (Fish, 2018). Critics argue that prosecutors historically focused on securing convictions and harsh sentences over other goals, largely due to professional incentives (Felkenes, 1975; Fish, 2018; Reiss, 1975). Prosecutors’ offices, for example, have based promotion on winning cases, with many offices evaluating line prosecutors according to conviction rates (Ferguson-Gilbert, 2001; Joy & McMunigal, 2011; Medwed, 2012). Legal culture also values convictions, driven by the expectations of police and victims as well as the adversarial behavior of defense attorneys (Fish, 2018). Prosecutors also have been defined externally by their litigation function, with their role described as determining “whether an individual should be charged in order to obtain a conviction” (President’s Commission on Law Enforcement and the Administration of Justice, 1967, p. 72). This narrow description defines prosecutors simply as “case

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processors” or “enforcers of the law” (Worrall, 2008), “preoccupied with a record of punishments…rather than the doing of justice” (Reiss, 1975, p. 11). Many argue that these professional incentives and narrow definitions historically led to a traditional prosecution function focused on reactively processing cases: determining whether a crime was committed, resolving it through the criminal process, and employing prosecutorial power to incapacitate criminals (Green & Burke, 2012; Phelan & Schrunk, 2008). Scholars find that these traditional prosecution functions dominate practice as well, with the incentives to adhere to a case-­ processing approach remaining strong among young prosecutors and risk-averse prosecutors (Wright & Levine, 2014). As Worrall (2008, p. 14) explains, “[m]ost prosecutors remain case processors…want[ing] to litigate cases and send serious criminals to prison.” Indeed, critics argue that prosecutors operate according to a “conviction psychology” centered on securing convictions and harsh sentences throughout their careers (Felkenes, 1975). This adversarial, case processor role is in conflict with the prosecutor’s other role as a “minister of justice” (Fish, 2018; Fisher, 1988). Yet, historically, many of the recommendations for balancing these roles viewed the justice-seeking role of prosecutors as simply protecting the rights of defendants. Some scholars, for example, argue that prosecutors should seek to integrate adversarialism and justice-seeking by guaranteeing a “fair trial”—ensuring the court is not biased, defense counsel is not ineffective, and testimony is truthful (Gershman, 2001; Zacharias, 1991). Other recommendations seek to create obligations that “suspend” adversarialism (Fish, 2018), such as requiring prosecutors to make timely disclosure, to ensure defendants obtain counsel, to remedy wrongful convictions, and to critically evaluate witness testimony (American Bar Association, 2016; Gold, 2014; Howard, 2010). As Fish (2018, p.  1430) points out, these recommendations, however, “leave the basic logic of adversary prosecution intact, but incorporate some notions of fair play and rights protection so as to limit abuses.” Over the last two decades, many have argued for prosecutors to take on new functions that go beyond simply a stronger emphasis on this narrow role of ensuring a fair contest. Indeed, the move toward current progressive prosecution approaches is part of a two-decade evolution in prosecutorial philosophies and an expansion of the perceived role of the prosecutor. Levine (2005), for example, identified a new prosecution model emerging in the 1990s, centered on community prosecution. According to Levine (2005, p. 1151), under this new prosecution model, the goals of the prosecutors’ office include not only felony case processing but also reducing and preventing crime, addressing public disorder and misdemeanor offenses, and strengthening bonds with citizens.” During the 2000s, prosecutors advocated for a smart-on-crime approach (Fairfax, 2012; Harris, 2009;). Juxtaposed to a tough-on-­ crime approach, the smart-on-crime approach focused on creating a prosecution system that promoted effective, data-driven, research-based strategies (Association of Prosecuting Attorneys, 2018). The smart-on-crime approach, however, focused on creating more efficient strategies to improve public safety. Many argue that the most recent prosecution reforms go beyond the idea of smart-on-crime to a new “willingness to invoke the language of dignity and empathy” (Simon, 2017, p. 270).

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Several law review articles have begun to unpack this new approach to prosecution. Sklansky (2017a), for example, differentiates between prosecutors who are “too much a champion of harsh, racially disproportionate punishment, too heedless of the risk of convicting innocent people, too protective of the police, too lackadaisical in supervising [their] own staff” (p. 25) and “reform-minded prosecutors” who are “more attentive to racial disparities, the risk of wrongful conviction, the problem of police violence, and the failures and terrible costs of mass incarceration” (p. 26). A recent note in the Harvard Law Review also reflects this sentiment, describing progressive prosecutors as rebalancing the use of prosecutorial discretion to reduce the use of punitive measures and divert more defendants (Harvard Law Review, 2018, see pp. 751–752). Sklansky’s (2017a) “progressive prosecutor’s handbook” further points to several aspects of new prosecution models: a focus on fairness and proportionality, greater transparency, a focus on conviction integrity, more open discovery, and a reduced emphasis on fees and fines. A joint project by the Brennan Center for Justice, Fair and Just Prosecution, and The Justice Collaborative (Bazelon et  al., 2018) highlights 21 practical steps prosecutors can take to transform their offices, including increase diversion, charge with restraint, promote restorative justice, address racial disparity, create conviction review, and consider the costs of incarceration. The campaigns of several newly elected prosecutors reflect many of these tenets as well, with prosecutors campaigning on calls to end mass incarceration, to increase accountability and transparency, and to address racial and ethnic disproportionality and disparity in the criminal justice system (see Harvard Law Review, 2018; Sklansky, 2017b). As prosecutors and professional organizations embrace these goals, determining how new objectives are translated into decision-making becomes vitally important. This requires understanding the decisions prosecutors make and prosecutors’ decision-­making processes.

Theoretical Perspectives on Prosecutorial Decision-Making Prosecutors make decisions at numerous points in the life of a criminal case. After an individual is arrested for a crime, prosecutors generally make an initial screening decision whether to accept a case for prosecution and what the number and severity of initial charges will be. Prosecutors also make recommendations of whether a defendant will be offered bail or held in detention while their case is pending. Once a case is filed, prosecutors determine whether a case is dismissed, whether the seriousness or the number of charges are reduced, or whether a case is diverted. Prosecutors also make the initial plea offer and, if a defendant pleads guilty, determine the seriousness and number of guilty charges. At most of these points, a prosecutor’s discretion largely is non-transparent—decisions generally are made outside of public view and the prosecutor rarely is required to provide reasons for the decision. As such, prosecutorial decision-making and the factors that affect case outcomes are little understood.

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Two primary perspectives have been used to explain prosecutorial decision-­ making: the uncertainty avoidance/causal attribution model (Albonetti 1986, 1987, 1991) and the focal concerns perspective (Steffensmeier & Demuth, 2000; Steffensmeier et al., 1998). According to Albonetti (1991), prosecutorial decision-­ making reflects the use of bounded rationality, with courtroom actors making decisions based on limited information about a particular case. This limited access to information produces uncertainty that courtroom actors seek to minimize by engaging in “uncertainty management” behavior. Since the outcome of a case is uncertain, prosecutors seeks to reduce or avoid uncertainty whenever they can be using cues to determine likely case outcomes. Albonetti (1991) combines the uncertainty avoidance perspective with causal attribution, arguing that courtroom actors make subjective attributions from stereotypes of defendant and case characteristics to reduce decision-making uncertainty, linking these characteristics to evaluations of the likelihood of future criminality or the potential impact of sentences. Prosecutorial outcomes, thus, result from substantive considerations of prosecutors about defendant and case characteristics. According to the focal concerns perspective (Spohn et al., 2001; Steffensmeier & Demuth, 2000; Steffensmeier et al., 1998; see also Johnson, 2003, 2005; Kramer & Ulmer, 2002; Ulmer et al., 2007), these substantive considerations revolve around three “focal concerns:” blameworthiness of the defendant, dangerousness of the defendant, and practical constraints and consequences of sentences for defendants and organizations. Courtroom actors relate their interpretations of these focal concerns to particular defendant and case characteristics. Similar to Albonetti’s (1986, 1987, 1991) uncertainty avoidance/attribution theory, courtroom actors make decisions by making subjective determinations of blameworthiness, dangerousness, and the consequences of sentences based on particular defendant/case characteristics to reduce uncertainty. Expansions of the focal concerns theory have recognized that prosecutors concerns go beyond dangerousness and culpability to include concerns with “doing justice” (Eisenstein & Jacob, 1977) and “convictability” (Frohmann, 1997). The focal concerns perspective recognizes that courtroom actors’ decision-­ making begins with legal factors (e.g., offense severity, criminal history) as “benchmarks” for decisions but then incorporates “situational attributions” about defendants’ character or risk based on defendant and case characteristics (Steffensmeier & Demuth, 2000; Steffensmeier et al., 1998). Some describe this as a “perceptual shorthand” (Steffensmeier et al., 1998)—stereotypes of defendants, victims, and crimes—that prosecutors use to make decisions. While these attributions of defendant/case characteristics and interpretations of focal concerns may be idiosyncratic to particular courtroom actors, scholars often combine the focal concerns perspective with a court communities’ perspective (Eisenstein et  al., 1988; Eisenstein & Jacob, 1977; Johnson, 2003, 2005; Ulmer, 1997). This perspective argues that decision-making is also the product of courtroom social contexts (Eisenstein et al., 1988; Eisenstein & Jacob, 1977; Johnson, 2003, 2005; Ulmer 1997). According to this perspective, a community is formed between regular courtroom workgroup members—judges, prosecutors, defense

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attorneys, law enforcement (Eisenstein & Jacob, 1977). Through regular interactions over a long period of time, this workgroup forms a set of interdependent relationships and a local legal culture characterized by shared values and norms (Eisenstein et  al., 1988). For example, day-to-day interactions produce a set of shared expectations about the value or prioritization of cases and the proper resolution of cases. In response to uncertainty, these workgroups establish “going rates” and norms that determine decisions in most cases and that make the decision-­ making process more predictable (Eisenstein et al., 1988; Ulmer, 1997). The focal concerns and court communities’ perspectives acknowledge that these going rates and norms are often developed to ensure efficiency—the need to dispose of cases, avoid backlogs, and conserve resources contribute to outcomes. Prosecutors also appear to have a “downstream orientation” that leads them to consider and act on how other actors not yet involved in the process, such as judges and juries, will respond to a case (Frohmann, 1997). The uncertainty avoidance/attribution and focal concerns perspectives imply that prosecutors primarily are concerned with convictability and efficiency; generally overlooked in such discussions is the issue of justice. According to the American Bar Association’s prosecution standards (American Bar Association, 1993, Standard 3-1.2(c)), “the duty of the prosecutor is to seek justice, not merely to convict.” Thus, one may expect prosecutors to be motivated not just by uncertainty avoidance, focal concerns, or convictability, but by a desire to achieve or ensure justice. The ABA standards, however, do not define justice nor do they instruct the prosecutor in what factors to use in ensuring justice. Given the breadth of prosecutors’ discretionary decision-making, understanding what factors ultimately impact their decisions and, in turn, what impact their decisions have on disparities in the system is central to assessing the fairness of the criminal justice system and to developing reforms that ensure just and equitable outcomes.

Factors Affecting Prosecutorial Outcomes A growing body of scholarship has examined those factors that affect case outcomes throughout the prosecutorial process, from the initial screening decision to accept and file charges to the decision to dismiss or reduce charges after filing. Research has shown that outcomes primarily are affected by legal factors, including the type of offense (Albonetti, 1987; Hartley et al., 2007; Jacoby et al., 1982; Schmidt & Steury, 1989), the strength of the evidence (Albonetti, 1987; Jacoby et al., 1982; Spohn & Holleran, 2001), and defendant culpability (Adams & Cutshall, 1987; Albonetti, 1987; Schmidt & Steury, 1989). While these legal factors explain much of the variation in prosecutorial decisions, research also shows that case factors such as defendant and victim demographics play a part as well. However, the effects of defendant and victim race and ethnicity on prosecutorial decision-making are not always straightforward, and the results of prior studies are often inconsistent.

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Case Acceptance at Screening In a review of 24 studies of prosecutorial decisions to accept cases for prosecution, Free (2002) found that the role of race was unclear; while 9 of the 24 studies reviewed found a relationship between race and case acceptance, 15 studies found no effect of race. In a more recent review of research examining the initial screening decision, Kutateladze et al. (2012) found racial differences in 11 of the 18 studies reviewed; again, 7 studies found no relationship between race and case acceptance. In those studies that do find a relationship between race/ethnicity and case acceptance, the effects of race are mixed. Wooldredge and Thistlethwaite (2004), for example, found that misdemeanor assault cases involving Black defendants were less likely than those involving White defendants to be accepted for prosecution. Spohn et al. (2001) similarly found that sexual assault cases involving Black defendants were less likely to be accepted, and Frederick and Stemen (2012) found that drug cases involving Black defendants were less likely than drug cases involving White defendants to be accepted for prosecution. In contrast, Henning and Feder (2005) found that domestic violence cases involving minority defendants were more likely to be accepted for prosecution relative to cases involving White defendants (see also Frederick & Stemen, 2012 finding similar effects in domestic violence cases). Studies examining the types of charges filed also have found differences across racial groups, with prosecutors more likely to seek mandatory sentences against Hispanic defendants (Ulmer et al., 2007) and more likely to file a third strike charge against Black defendants (Chen, 2008). Characteristics of the victim also have been shown to play a part in the initial decision to accept a case for prosecution (Albonetti, 1986; Kingsnorth & MacIntosh, 2004; Pyrooz et al., 2011; Schmidt & Steury, 1989; Spears & Spohn, 1997; Sorensen & Wallace, 1999; Spohn & Holleran, 2001). The findings regarding victim race appear more consistent—with cases involving minority victims less likely to be prosecuted. Spohn et al. (2001) and Spohn and Holleran (2001), for example, found that sexual assault cases involving minority victims were less likely to be accepted for prosecution. Kingsnorth et  al. (2002) similarly found that domestic violence cases involving Latino victims were less likely to be prosecuted compared to cases involving White victims (see also Frederick & Stemen, 2012). Frederick and Stemen (2012) also found that person and property cases involving Black victims were less likely to be accepted for prosecution. A significant number of studies, however, have found no impact of race on the initial screening decision (for reviews, see Free, 2002; Kutateladze et  al., 2012). Frederick and Stemen (2012), for example, found that race had no impact on screening decisions for public order or weapons cases in Northern County and no impact on person or property cases in Southern County. Franklin (2010) similarly found no impact of race on the decision to accept felony drug cases for prosecution; and several studies focused on sexual assault cases also found no evidence of the impact of race on case acceptance cases (Holleran et al., 2010; Kingsnorth, et al., 1998; Spears & Spohn, 1997). When considering diversion, Albonetti and Hepburn (1996) found

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no effect of race on the prosecutor’s decision to divert felony drug defendants. In more recent studies of diversion, however, researchers found consistent disparities, with Black and Hispanic defendants less likely than White defendants to receive diversion (see, e.g., Kutateladze et al., 2019; Schlesinger, 2013; Stemen et al., 2019).

Case Dismissal After Filing Although there have been fewer studies examining the decision to dismiss charges after filing, the results of these studies are mixed. Adams and Cutshall (1987), for example, found that Black defendants were less likely than White defendants to have shoplifting charges dismissed. Stemen and Escobar (2018) similarly found that non-White defendants were less likely to have their cases dismissed in Wisconsin across several crime types. In contrast, Kutateladze et al. (2014) found that Black and Latino defendants in New York were more likely than White defendants to have their cases dismissed. Frederick and Stemen (2012) similarly found that Black defendants were more likely than White defendants to have person cases dismissed in Southern County and to have public order cases dismissed in Northern County; but the authors also found that Black and Hispanic defendants were less likely to have drug cases dismissed in Northern County and that race had no impact on dismissals for person, property, domestic violence, weapons, or DUI cases in Northern County. Spohn and Horney (1993) similarly found that neither victims’ nor defendants’ race affected the dismissal of sexual assault cases. Finally, in an analysis of the felony case dismissals in 39 of the largest 75 counties in the United States, Franklin (2010) found that neither defendant race nor ethnicity was related to the decision to dismiss a case.

Charge Reductions When examining charge reductions after filing, the effects of race on case outcomes continues to be mixed. Holmes et al. (1987), for example, found that in burglary and robbery cases Black and Latino defendants were more likely to receive a charge reduction, although the effect depended on the county in which the case occurred. Kutateladze (2018) found that Black and Latino defendants in New York were less likely than White defendants to have charges reduced; Stemen and Escobar (2018) found similar effects in Wisconsin. In contrast, Albonetti (1992) found that defendant’s race had no impact on charge reductions in burglary and robbery cases. Shermer and Johnson (2010) similarly found that in federal cases, defendant race and ethnicity had no impact on charge reductions; however, for weapons offenses, Black and Hispanic defendants were less likely than White defendants to have their charges reduced, and for drug offenses Hispanic defendants were more likely to have their charges reduced.

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Plea Offers The final decision point over which prosecutors exercise broad discretion is plea offers. Kutateladze et al. (2014) found that Black and Latino defendants in New York were more likely to receive custodial plea offers relative to White defendants. Spohn and Fornango (2009) similarly found that in three federal districts (Minnesota, Nebraska, and Iowa’s southern district) Black defendants were less likely than White defendants to receive a substantial assistance departure sentence following a guilty plea. Stemen and Escobar (2018), however, found that non-White defendants were less likely than White defendants to receive custodial sentences following a guilty plea in Wisconsin. In research examining defendants’ likelihood to plead guilty, Albonetti (1992) found that Black defendants were less likely to plead guilty; the author argues that this may be due to less favorable plea offers made by prosecutors (see also Kutateladze et al., 2014 and Piehl & Bushway, 2007).

Making Sense of Race and Prosecution In the end, interpreting the results of prior research on the effects of defendant and victim race and ethnicity on prosecutorial decision-making is not straightforward. In some instances, research shows that minority defendants and victims receive less favorable outcomes while in other instances they receive more favorable outcomes; and, in many instances, race and ethnicity appear to have no effect on prosecutorial outcomes. It opens the question of how best to interpret these mixed results. First, the inconsistent findings across studies likely is due to the fact that prior research has examined different prosecutorial decisions for different crime types in different jurisdictions. The dynamics of victim/witness cooperation or the impact of evidence factors or the office organization may vary so much across offense types and jurisdictions that it is difficult, if not impossible, to generalize the findings. Second, the often unexpected findings that minority defendants are more likely to receive favorable outcomes (e.g., case rejected at screening or dismissed/reduced after filing) may indicate prosecutors correcting for problematic arrests based on weak evidence; as such, prosecutorial outcomes may be more a reflection of law enforcement practices than prosecutorial practices. Finally, few studies have examined multiple prosecutorial outcomes in the same study; thus, little is known about the inter-connectedness of different decision points or the cumulative effects of race across multiple case outcomes. To address the latter point, researchers have started to consider cumulative disadvantage in prosecutorial decision-making—an approach that considers how decisions early in the prosecution process impact later case outcomes and, in turn, how racial and ethnic disparities in prosecutorial decisions can build over the life of a case. Sutton (2013), for example, found that Black and Latino defendants were more likely than White defendants to be detained pretrial which affected the

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likelihood of a guilty plea; variation in pretrial detention and guilty pleas in turn affected sentence outcomes resulting in a cumulative disadvantage in sentences for minority defendants. Using a similar technique, Kutateladze et al. (2014) found that Black and Latino defendants were more likely than White defendants in New York to be detained pretrial and to receive custodial plea offers, which resulted in harsher overall sentences. Wooldredge et al. (2015) similarly found that Black defendants experienced greater disadvantage than White defendants in pretrial release, guilty pleas, and incarceration decisions; the authors concluded that much of the observed racial disparity in sentence outcomes was the result of the cumulative effects of disparities in pretrial detention (see also Stolzenberg et al., 2013). Taken together, these studies point to the possibility that research focused on single prosecutorial outcomes and showing small or non-significant effects of race/ethnicity may miss broader patterns of cumulative disparity in case processing.

Racial Justice and Prosecutorial Reforms Although prior research often indicates little or no racial and ethnic disparity in prosecutorial outcomes, persistent racial and ethnic disproportionalities in the US criminal justice system remain. Black and Latinx residents comprise just 31% of the US population (U.S. Census Bureau, 2019), yet they account for 46% of individuals arrested (Federal Bureau of Investigation, 2020) and 56% of individuals incarcerated in prison (Carson, 2020). Although the causes of such disproportionality are complex, many look to the policies and practices of criminal justice system actors— the arrest practices of police, the charging practices of prosecutors, the sentencing practices of courts—for bringing more people of color into the system, charging those individuals with more serious crimes, and sentencing more of them to prison. While the findings from research on prosecutorial decision-making are decidedly mixed, these findings do not imply the absence of disproportionality; even if prosecutors treat White, Black, and Latinx defendants the same, minority defendants continue to account for a disproportionate number of criminal defendants. Many prosecutors have begun to recognize this disproportionality and to develop reforms to address it. There are several reforms that prosecutors’ offices can adopt to improve performance and address racial and ethnic disparities: use data to examine performance, publish public data dashboards, conduct research on racial disparities, decline to prosecute certain types of cases, and reduce the use of incarceration through diversion and charging practices.

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Use Data to Examine Performance Collecting, analyzing, and using data are expected in the criminal justice system. Although local, state, and federal law enforcement, courts, and corrections agencies regularly have collected and analyzed data, prosecutors historically were different. Prosecutors were late to adopt electronic case management systems (Lawrence et al., 2019; Olsen et al., 2018); as a result, data existed largely in paper form and opportunities to use data were limited. But prosecutors increasingly are expected to collect data, to employ data to guide their decisions, and to use data to evaluate their performance and communicate with the public. Data can tell prosecutors what problems are the biggest threats to community well-being and point toward solutions to tackle those problems. Data can measure the impact of prosecutors’ work and determine policies or practices that need to change. And data can identify the nature and extent of racial and ethnic disparities in case outcomes and shape reforms to correct such disparities. But to achieve meaningful organizational change, prosecutors need to use data and analytics to examine organizational performance. Efforts like Fair and Justice Prosecution (Fair and Just Prosecution, 2018) and the Vera Institute of Justice’s Reshaping Prosecution Project (Vera Institute of Justice, 2018) work with prosecutors’ offices to bring about organizational and cultural change through the use of data and to focus on reducing mass incarceration, addressing racial disparity, and improving community well-being. The American Prosecutors Research Institute (Dillingham et  al., 2004) developed a set of prosecutorial performance measures centered on measuring prosecutor offices’ achievement toward three goals of prosecution: promoting fair, impartial, and expeditious pursuit of justice; ensuring safer communities; and promoting integrity in the prosecution profession. A recent partnership between Florida International University, Loyola University Chicago, and four prosecutors’ offices has sought to develop and test a range of roughly 50 performance indicators that go beyond traditional performance measures, such as conviction rates and time to disposition. Rather, the new prosecutorial performance indicators address issues of racial/ethnic disparity in victimization, diversion, and dismissal rates, unnecessary incarceration pretrial and after sentencing, and community engagement. In all of these efforts, data can be used to set goals and hold the office and staff accountable for meeting those goals.

Publish Public Data Dashboards Wright and Miller (2010) see a direct connection between greater transparency, performance, and organizational change within prosecutors’ offices. In arguing for greater transparency through the publication of data, the authors note that “the most promising strategies will build on the transparency that becomes possible with improved case data management…[t]his transparency can break down the

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institutional barriers that keep local priorities hidden at higher levels of bureaucracies, and those that keep individual prosecutor practices hidden from organizational review.” (Wright & Miller, 2010, p. 1619). Indeed, many of the calls for increased data collection, analysis, and reporting in prosecutors’ offices center around the need to address issues of mass incarceration and racial disparity in the justice system—issues that many argue require changes in the organization and culture of prosecutors’ offices. To start to provide some of the transparency and accountability necessary to bring about such change, several offices have begun to post these performance indicators on public dashboards. The State Attorney’s Office in Jacksonville (FL), for example, reports performance metrics measuring racial/ethnic disparities in victimization rates, case filing, pretrial detention, diversion, and incarceration sentences (Office of the State Attorney of the Fourth Judicial District, 2021). The State Attorney Office in Tampa (FL) similarly reports performance metrics measuring racial/ethnic disparities in victimization, case filing, dismissal, and incarceration sentences, but also reports metrics examining differences based on socio-economic status, such as dismissals of driving with license suspension cases and victimization rates in disadvantaged neighborhoods (Office of the State Attorney of the Thirteenth Judicial District, 2021). Other prosecutors’ offices, such as Milwaukee County, Cook County, San Francisco County, and Philadelphia County, are making their data available to the public through data dashboards and allowing the public to assess prosecutorial performance. The Philadelphia District Attorney’s Office provides, perhaps, the most comprehensive and innovative public dashboard, with information on incidents, arrests, charges filed, bail decisions, case outcomes, and time to disposition (Philadelphia District Attorney’s Office, 2021). In addition to graphical representations of the data showing trends, the dashboard maps geographic distribution of cases, provides tables of the underlying data, and includes short interpretations of the data to indicate the most important take-aways from the data. Overall, these dashboards seek to not just provide the public with a visualization of the data, but to educate the public—who may not be data savvy—about the data, the analyses, and the key findings.

Conduct Research on Racial Disparities In order to meaningfully address racial and ethnic disparities in case processing, prosecutors’ offices also need to conduct rigorous research on the defendant and case factors affecting case outcomes. And several prosecutors’ offices have begun to do this, primarily through partnerships with academic and non-profit institutions. The San Francisco District Attorney’s Office, for example, partnered with academics to examine racial/ethnic disparity in case outcomes (MacDonald & Raphael, 2017). The prosecutors’ offices in Cook County, Milwaukee County, Duval County (FL), and Hillsborough County (FL) similarly partnered with academics from Florida International University and Loyola University Chicago to examine r­ acial/

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ethnic disparities across five case outcomes (see, Kutateladze et al., 2019; Stemen et al., 2019). In one of the earliest efforts, district attorney offices in Milwaukee, Mecklenburg (Charlotte, NC), San Diego, and Manhattan partnered with the Vera Institute of Justice to examine racial and ethnic disparity across a range of case outcomes as part of the Prosecution and Racial Justice Project (McKenzie et al., 2009). These efforts resulted in several changes to practices. For example, in Milwaukee County, evidence of racial disparity in the acceptance rates of misdemeanor drug paraphernalia cases led to a policy that directed prosecutors to decline these cases whenever it was reasonable and to refer the individuals to drug treatment. Although the policy did not focus directly on race, soon after it was implemented the racial disparity in drug paraphernalia cases disappeared. Similarly, in Manhattan, researchers uncovered racial disparities in pretrial detention rates and dismissal rates; in response, the office ended the prosecution of low-level offenses that did not compromise public safety and developed alternatives to cash bail and pretrial detention (The Manhattan District Attorney’s Office, 2019). In addition to performance measurement, prosecutors’ offices also are using data to develop and evaluate the success of specific programs. The San Francisco District Attorney’s Office appears far ahead of other offices in using data in this way. In 2012, the office implemented the Sentencing Planning program, which uses a risk/ needs assessment to develop alternative sentencing plans to refer defendants to vocational training, mental health services, substance abuse treatment, and housing services (MacDonald & Raphael, 2017). The office has also partnered with academics to develop the first “blind-charging tool” “which uses artificial intelligence to remove racial information from incident reports when prosecutors are deciding whether to file charges in a case.” Other efforts initiated by the office have relied on data to examine restorative justice programs for juveniles, interventions for individuals frequently arrested, and diversion programs. The Manhattan District Attorney’s Office created the Strategic Planning and Policy Unit to drive change through the use of data collected by the office. Since its creation, the unit’s analyses have been used to reform the office’s case screening process, to revise bail practices and the handling of low-level misdemeanor cases, and to assess the impact of diversion programs, charging policies for low-level offenses, summons practices, and alternatives to detention. Overall, several offices have moved to fully incorporate data and analytics into program development and reforms. However, this movement is still limited to a handful of offices. Indeed, a recent Urban Institute survey found that just 37 percent of prosecutors’ offices used data to implement crime suppression strategies, to implement and evaluate alternative programs, to address changes in offense trends, or to better identify cases for enhanced or alternative prosecution (Olsen, et  al., 2018). This despite the fact that most prosecutors’ offices collect an immense amount of data in case management systems that could be used to evaluate performance and guide decisions. The Urban Institute survey found that, although 65 percent of offices use data to set policy or guidelines, few are using data to track compliance or assess performance. When asked about compliance with guidelines on bail, diversion, and sentencing, less than one-third of prosecutors’ offices surveyed reported collecting data on compliance with the guidelines and only 23

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percent of offices reported using data to measure or assess performance. Thus, although the availability of data has created opportunities to better evaluate programs and assess performance, prosecutors’ offices are just beginning to take on these efforts.

Decline to Prosecute Certain Types of Cases The use of data is important to examine practices and address long-term strategies to improve performance and monitor progress toward meeting prosecutorial goals. But many newly elected prosecutors have also begun to address racial and ethnic disproportionality in arrests and convictions directly by declining to prosecute certain categories of offenses. Although a blunt approach to reform and not always created specifically to reduce disparities, the approach may effectively reduce the racial and ethnic disproportionality in individuals entering the criminal justice system by addressing those offenses most likely driven by discretionary arrests or offenses linked to substance use, mental health, and poverty. Several elected prosecutors, for example, have released policies stating that their offices will no longer prosecute drug possession cases (The Appeal, 2021). Prosecutors in at least 11 jurisdictions (Clark and Oconee Counties, GA; Arlington County, VA; Fairfax, County, VA; Marion County, IN; Alexandria County, VA; Bexar County, TX; Jefferson County, KY; St. Louis County, MO; Baltimore County, MD; and Suffolk County, MA) are declining to prosecute possession of marijuana cases. Six offices have gone a step further and are declining to prosecute low-level possession of any drug type (Cook County, IL; Travis County, TX; Clark and Oconee Counties, GA; King County, WA; Santa Clara County, CA). And one county is declining to prosecute low-level sale of drug cases (Travis County, TX). Many offices also are declining to prosecute offenses associated with poverty. George Gascon, the newly elected prosecutor in Los Angeles, for example, released a policy to decline prosecution of 13 misdemeanor offenses associated with poverty and homelessness: trespass, disturbing the peace, driving without a license, driving on a suspended license, criminal threats, drug and paraphernalia possession, minor in possession of alcohol, drinking in public, being under the influence of controlled substance, public intoxication, loitering, loitering to commit prostitution, and resisting arrest. Other offices have developed policies to decline prosecution of groups of these offenses as well, including cases against sex workers (King County, NY; Washtenaw County, MI; San Francisco County, CA), driving on a suspended license when the suspension is due to unpaid debt (Suffolk County, MA; Shelby County, TN), retail theft of less than $1000 as a felony (Cook County, IL), and theft of “necessary items” of less than $750 (Dallas, TX). It is unclear what the ultimate impact of these policies may be, as many of these policies are newly enacted and many jurisdictions do not release public data. However, early results in Cook County show that the policy of not prosecuting retail theft of less than $1000 as a felony has significantly reduced the number of such cases entering the system. In 2016, the year before the policy was implemented,

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82% of felony retail theft cases were accepted for prosecution; in 2017, the first year of the policy, just 32% of felony retail theft cases were accepted for prosecution. The total number of cases filed dropped from 2866 cases in 2016 to just 824 cases the following year (Cook County State’s Attorney’s Office, 2021). As these policies take effect in other jurisdictions and prosecutors release data, it may be possible to determine whether and how these policies reduce either racial/ethnic or class-based disproportionalities in the system.

 educe the Use of Incarceration through Diversion R and Charging Practices Prosecutors also have begun to address racial and ethnic disproportionality in the use of incarceration through three separate approaches linked to pretrial detention, diversion, and sentence enhancements. Given the research on cumulative disadvantage described above, such approaches may have significant impacts. Several prosecutors have implemented policies to reduce the use of pretrial detention (The Appeal, 2021). Prosecutors in at least ten jurisdictions (Fairfax County, VA; Washtenaw County, MI; Travis County, TX; Clark and Oconee Counties, GA; Los Angeles County, CA; Chittenden County, VT; San Francisco County, CA; Suffolk County, MA; Philadelphia County, PA; Prince Georges County, MD) have issued policies instructing prosecutors to seek no bail or low bail in more cases. In January 2018, for example, the Philadelphia District Attorney’s Office enacted a presumption of not seeking monetary bail for 25 offenses for which courts had been setting low bail amounts (less than $1000). Arguing that “[e]verybody could pay the bail except the poor” (Gur et  al., 2019, p.  1), the office sought to reduce the burden of monetary bail on defendants and their families. In the first year after implementation, the policy resulted in an additional 1750 defendants released without monetary bail; more importantly, there was no increase in the failure to appear rate and no increase in pretrial recidivism for people released without bail. Prosecutors are also embracing a number of programs to divert defendants out of traditional criminal adjudication. Although many diversion programs for substance abuse or mental health problems are common across the United States, some prosecutors’ offices are expanding diversion in new ways. The San Francisco District Attorney’s Office, for example, created a policy to seek diversion for defendants who are primary care givers or parents (The Appeal, 2021). The Philadelphia District Attorney’s Office created a policy to divert defendants charged with gun possession. Finally, the Milwaukee County District Attorney’s Office maintains two types of programs: a pre-filing diversion program for low-risk defendants and a post-filing deferred prosecution program for medium- to high-risk defendants. Although both programs exclude DUIs, sexual assault, some burglaries, firearms charges, and some drug offenses, diversion and deferred prosecution are open to a wide range of defendants. The pre-filing diversion program focuses on accountability and includes requirements such as restitution, community service, restorative

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justice, and education. In contrast, the post-filing deferred prosecution program addresses risk reduction and includes drug or mental health treatment and cognitive behavioral therapy. Defendants who successfully complete diversion have no charges filed against them; defendants who successfully complete deferred prosecution have their charges dismissed. In 2019, roughly 16% of felony and misdemeanor defendants received diversion or a deferred prosecution, significantly reducing the number of individuals prosecuted through traditional criminal adjudication; more importantly, because both programs result in either no charges filed or having all charges dismissed, the Milwaukee DA’s office also has significantly reduced the number of individuals in Milwaukee acquiring a criminal record. Finally, like the reforms aimed at simply not prosecuting cases, policies aimed at changing charging and sentencing practices are reforms aimed at keeping individuals out of the system and reducing the impact of incarceration and harsh sentences. Several offices have enacted policies instructing prosecutors to not seek sentence enhancements for repeat offenses (Los Angeles County, CA, Orleans Parish, LA, San Francisco County, CA) or for gang affiliation (San Francisco County, CA). Others have created presumptions against seeking incarceration sentences for drug possession (Cook County, IL), enacted policies against using mandatory minimums in plea deals (Fairfax County, VA), and adopted practices to reduce penalties for driving on a suspended license (Kauai, HI). Again, although these reforms are not created specifically to reduce disparities, the approach may effectively reduce the racial and ethnic disproportionality in individuals entering prison.

Conclusion The field of prosecution is evolving. As new reform-minded prosecutors gain elected office, all prosecutors are being pushed to re-assess their role in the criminal justice system. Citizens, advocates, and professional groups are no longer content with prosecutors as case processors; rather, there is a growing expectation that prosecutors embrace their role as ministers of justice. With that comes an expectation that prosecutors will be cognizant of inequities in the criminal justice system and seek to develop policies and practices to end mass incarceration, reduce racial and ethnic disparities, and limit the collateral consequences of criminal convictions.

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Kingsnorth, R.  F., MacIntosh, R., & Sutherland, S. (2002). Criminal charge or probation violation? Prosecutorial discretion and implications for research in criminal court processing. Criminology, 40(3), 553–578. https://doi.org/10.1111/j.1745-­9125.2002.tb00966.x Kramer, J. H., & Ulmer, J. (2002). Downward departures for serious violent offenders: Local court ‘corrections’ to Pennsylvania’s sentencing guidelines. Criminology, 40(4), 601–636. https:// doi.org/10.1111/j.1745-­9125.2002.tb00977.x Kutateladze, B. (2018). Tracing charge trajectories: A study of the influence of race in charge changes at case screening, arraignment, and disposition. Criminology, 56(1), 123–153. https:// doi.org/10.1111/1745-­9125.12166 Kutateladze, B. L., Lynn, V., & Liang, E. (2012). Do race and ethnicity matter in prosecution? A review of empirical studies. Vera Institute of Justice. https://www.vera.org/downloads/ Publications/do-­race-­and-­ethnicity-­matter-­in-­prosecution-­a-­review-­of-­empirical-­studies/legacy_downloads/race-­and-­ethnicity-­in-­prosecution-­first-­edition.pdf Kutateladze, B. L., Andiloro, N. R., Johnson, B. D., & Spohn, C. C. (2014). Cumulative disadvantage: Examining racial and ethnic disparity in prosecution and sentencing. Criminology, 52(3), 514–551. https://doi.org/10.1111/1745-­9125.12047 Kutateladze, B. L., Richardson, R., Meldrum, R., Stemen, D., & Webster, E. (2019). Race, ethnicity, and prosecution in Hillsborough County, FL. Florida International University and Loyola University Chicago. https://caj.fiu.edu/news/2019/assessing-­racial-­and-­ethnic-­disparities-­in-­ criminal-­case-­outcomes-­in-­hillsborough-­county-­florida/hillsborough-­county-­disparity-­report-­ printable.pdf Lawrence, D.  S., Gourdet, C., Banks, D., Planty, M.  G., Woods, D., & Jackson, B. (2019). Prosecutor priorities, challenges, and solutions. Priority criminal justice needs initiative. RAND Corporation. https://www.rand.org/pubs/research_reports/RR2892.html Levine, K. L. (2005). The new prosecution. Wake Forest Law Review, 40(4), 1125–1214. MacDonald, J., & Raphael, S. (2017). An analysis of racial and ethnic disparities in case dispositions and sentencing outcomes for criminal cases presented to and processed by the office of the San Francisco District Attorney. San Francisco District Attorney. McKenzie, W., Stemen, D., Coursen, D., & Farid, E. (2009). Prosecution and racial justice: Using data to advance fairness in criminal prosecution. Vera Institute of Justice. https://www.vera. org/publications/prosecution-­and-­racial-­justice-­using-­data-­to-­advance-­fairness-­in-­criminal-­ prosecution Medwed, D.  S. (2012). Prosecution complex: America’s race to convict and its impact on the innocent. New York University Press. Office of the State Attorney of the Fourth Judicial District. (2021). Racial and ethnic differences. Retrieved January 15, 2021, from https://sao4thdatadashboard.com/racial-­ethnic-­differences Office of the State Attorney of the Thirteenth Judicial District. (2021). Data dashboard. Retrieved January 15, 2021, from https://www.sao13th.com/data Olsen, R., Courtney, L., Warnberg, C., & Samuels, J. (2018). Collecting and using data for prosecutorial decisionmaking. Urban Institute for Justice. https://www.urban.org/research/publication/ collecting-­and-­using-­data-­prosecutorial-­decisionmaking Phelan, J. N., & Schrunk, M. D. (2008). The future of local prosecution in America. In J. L. Worrall & M. E. Nugent-Borakove (Eds.), The changing role of the American prosecutor (pp. 247–266). State University of New York Press. Philadelphia District Attorney’s Office. (2021). Philadelphia District Attorney’s Office public data dashboard. https://data.philadao.com/ Philly DA for the People. (2018). The people’s DA platform. https://d11gn0ip9m46ig.cloudfront. net/images/WEB-­coc-­da-­platform.pdf Piehl, A., & Bushway, S. (2007). Measuring and explaining charge bargaining. Journal of Quantitative Criminology, 23(2), 105–125. https://doi.org/10.1007/s10940-­006-­9023-­x President Commission on Law Enforcement and the Administration of Justice. (1967). Task force report: The courts. U.S.  Government Printing Office. https://www.ojp.gov/pdffiles1/ Digitization/147397NCJRS.pdf

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Chapter 11

Juvenile Sentencing Reform Riane M. Bolin

Abstract  In 1899, the first juvenile court was implemented in Cook County, Illinois. Since its inception, the juvenile justice system has experienced three waves of change. Each wave has been ushered in by changes in the beliefs regarding the philosophy of the system as well as how juveniles within the system should be treated. Broad changes to sentencing of juveniles has largely been isolated to the last two eras, the Get Tough Era and the Kids are Different Era. Sentencing reform in the Get Tough Era focused largely on increasing the punitiveness of sanctions; whereas reform in the current era has been largely focused on eliminating or limiting the imposition of the harshest sanctions on juvenile offenders. This chapter will focus on sentencing reform that has occurred within these two eras of juvenile justice and will conclude with a discussion of where juvenile justice may go from here. Keywords  Juvenile sentencing reform · Juvenile justice · Capital punishment for juveniles · Juvenile life without the possibility of parole · Blended sentencing: History of juvenile sentencing · Juveniles sentenced in adult court

Introduction The juvenile justice system has undergone a number of changes over the course of its almost 125 years of existence. In the late nineteenth century, the belief that children were inherently different than adults and thus should be treated differently within the criminal justice system emerged (Platt, 1969). As a result, states began to create separate systems for handling juvenile offenders. The first such court was established in Cook County, Illinois in 1899. Over the next several decades, the establishment of separate juvenile court systems spread across the country, with all but two states, Maine and Wyoming, having separate courts by 1925. In 1945, Wyoming became the final state to develop a juvenile court system (Mennel, 1973).

R. M. Bolin (*) Department of Criminal Justice, Radford University, Radford, VA, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_11

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The original intent of the juvenile justice system was to act within the “best interest of the child” (Mack, 1909). This entailed a focus on treating the juvenile rather than punishing them for their misdeeds (Feld, 1999; Platt, 1969). As juveniles petitioned before the juvenile court were deemed children potentially in need of assistance, the court was to issue rehabilitative dispositions focused on addressing their individual needs rather than punishing them for their committed offenses (Feld, 1999; Ryerson, 1978). Juvenile judges had a range of dispositions available to them, including, but not limited to, warnings, probation, and confinement in a training school (Snyder & Sickmund, 1999). Most juveniles sentenced within the juvenile court system during this time period received probation; however, youth were still subjected to periods of incarceration (Rothman, 1980). In fact, despite the rehabilitative focus of the original juvenile court, a substantial number of juveniles were sentenced to serve time in juvenile institutions. These institutions, similar to adult institutions, were custodial and punitive in nature (Feld, 1999; Rothman, 1980; Ryerson, 1978). While the process of trying and sanctioning juvenile offenders raised concern among a few academics in the decades following the courts origination (Pound, 1937; Tappan, 1946), widespread scrutiny of the system did not occur until the 1950s, when it underwent is first substantial period of change. During the 1950s and 1960s, skepticism emerged regarding whether the juvenile court was achieving its primary objective of treating youth. There was also concern regarding the growing number of youths institutionalized for an indefinite period of time in the name of “treatment” (Snyder & Sickmund, 1999). A number of Supreme Court cases acknowledged the failures of the court, arguing that juveniles were receiving the “worst of both worlds” (Kent v. United States, 1966). The Supreme Court argued that the juvenile court was neither treating juveniles nor providing them with due process protections. As a result, the Court, through a series of cases, granted juveniles a number of due process protections that had previously only been granted to adults, including the right to an attorney, right to cross-examine witnesses, right against self-incrimination, increased standard of proof (i.e., beyond a reasonable doubt), protection against double jeopardy, etc. (Breed v. Jones, 1975; In re Gault, 1967; In re Winship, 1970). These rulings ushered in a new era of juvenile justice, which Feld (2017) appropriately labeled the Due Process Era. While the intent of the Supreme Court’s granting certain due process protections to juveniles was not to impede the juvenile court’s ability to provide treatment to juveniles, the rulings did legitimate the use of increasingly punitive sanctions, paving the way for the third era of juvenile justice, the Get Tough Era (Bernard & Kurlychek, 2010; Feld, 2017). During the 1980s and 1990s, the United States experienced an increase in youth violence, which led to public fear of an impending juvenile crime wave (Butts & Travis, 2002; Cook & Laub, 1998; Snyder, 2000). Additionally, there was a shift in belief regarding the purpose of the juvenile court. Many states’ belief in the protective and rehabilitative nature of the juvenile system waivered and they sought instead to emphasize accountability and punishment of offenders (Bernard & Kurlychek, 2010; Forst et  al., 1992). In response, many state legislatures pushed through a number of laws intended to increase the severity of juvenile sanctions.

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The implementation and/or increased use of mandatory minimum sentences, blended sentencing, life without the possibility of parole sentences, capital punishment, etc. for juveniles occurred throughout the nation (Amnesty International and Human Rights Watch, 2005; Griffin et al., 2011; Merlo & Benekos, 2010; Merlo et al., 1999; Snyder & Sickmund, 1999). This resulted in an increased number of youths being subjected to sanctions previously reserved for adults. The feared juvenile crime wave of the 1980s and 1990s never transpired, yet youth continued to receive harsh sentences focused on punishment rather than rehabilitation. For example, in 1997, there were an estimated 14,500 youth under the age of 18 incarcerated in adult correctional facilities (i.e., local jails or state prisons) (Austin et al., 2000), with an additional 93,000 youth housed in public or private juvenile facilities. Additionally, in 1999, 14 juveniles were sentenced to death (Benekos & Merlo, 2008). Recognition of the averted crime wave as well as the increasing number of severe punitive sentences being handed down to certain juveniles, led some states to begin to rethink their sentencing policies for juveniles (Neelum, 2011). The Supreme Court also began to review state laws’ regarding the sanctioning of juveniles, issuing three important rulings (Graham v. Florida, 2010; Miller v. Alabama, 2012; Roper v. Simmons, 2005) that have set forth a new era in juvenile justice, the Kids are Different Era (Feld, 2017). This new era, which is focused on the belief that juveniles are inherently different than adults (a return to a belief held by the original juvenile court), has been witness to a number of sentencing reforms which have eliminated and/or limited the most severe sanctions to only juveniles who have committed the most severe crimes. This chapter focuses on juvenile sentencing reforms that took place during the Get Tough Era and the contemporary Kids are Different Era. Get tough sentencing reforms moved away from the rehabilitative model of the original court and toward a more punitive model, thus increasing the severity of punishments available to youthful offenders (Bernard & Kurlychek, 2010; Feld, 1999). The current era of reform, which has once again adopted the ideology that kids are different, has sought to scale back the scope and implementation of the previous Get Tough reforms and attempt to reframe the system as one which acknowledges that juveniles are capable of and deserve an opportunity at reform (Feld, 2017). The chapter will conclude with a discussion of where juvenile justice may go from here.

Get Tough Sentencing Reforms As noted above, the Get Tough Era was ushered in by an increasing juvenile crime rate and public fear that this increase was indicative of an impending juvenile crime wave. Calls for reform led state legislatures to enact a number of laws aimed at increasing the punitiveness of sanctions available to juveniles (Feld, 1998; Sheffer, 1995). The discussion that follows provides an overview of the various laws that were passed or modified to impact the sentencing of juvenile offenders in either juvenile or criminal court.

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Sentencing Juveniles in Juvenile Court Mandatory Minimum Sentences Dispositions within the juvenile court were traditionally based on an individual assessment of the offender’s characteristics and situation (Feld, 1999; Mack, 1909). In other words, dispositions were offender focused rather than offense focused. Given that the court believed that juveniles could be reformed, dispositions were frequently indeterminate, meaning that when the juvenile was rehabilitated, the disposition would end (Bernard & Kurlychek, 2010; Mack, 1909; Rothman, 1980; Ryerson, 1978). Disillusionment with the idea of rehabilitation, coupled with the increasing juvenile crime rate, led many states to shift the focus of sanctioning toward punishment and accountability (Fox, 1996; Merlo et  al., 1999; Zimring, 1998). If treatment did not work, then perhaps harsh sentences would deter juveniles from committing crimes or at least hold them accountable for having committed the offense. This change in ideology led to a shift in what factors impacted the type of disposition to be administered. Offense-based dispositions gave way to offender-based ones. In conjunction, indeterminate sentencing structures began to be replaced with determinate sentencing structures (Feld, 1998; Snyder & Sickmund, 1999). Determinate or presumptive sentencing frameworks limit judicial discretion in selecting a sentence. Rather than a judge issuing a sanction based on their assessment of what they believe is in the best interest of the child, they must instead impose a proportional sentence from a range of dispositional options based on an objective set of criteria such as the seriousness of the offense, offense history, and age (Feld, 1998). A number of states, such as New Jersey, Oklahoma, Arizona, and Texas, adopted determinate or presumptive sentencing frameworks during the Get Tough Era as an attempt to deal with serious and persistent juvenile offenders (Feld, 1998; McNulty & Russell, 1995). The guidelines outlined factors that should be considered when deciding a sentence and attempted to standardize consequences and punishments for certain offense types. The focus on determinate sentencing led to the introduction or increased use of mandatory and/or minimum sentences in juvenile court. During the 1990s through the early 2000s, nearly half of the states used some type of determinate or mandatory sentencing for juveniles adjudicated within the juvenile system (Sanborn & Salerno, 2005; Sheffer, 1995; Torbet et al., 1996). Mandated sanctions ranged from minor requirements, such as driver’s license revocation and fines, to the more serious requirements of incarceration (Sanborn & Salerno, 2005). Much of the legislation that was passed during the Get Tough Era focused on mandating periods of incarceration. From 1992 to 1997, legislatures in 16 states modified or added mandatory minimum periods of incarceration for certain types of juvenile crime, typically serious and violent in nature (Snyder & Sickmund, 1999). In 2005, 17 states had laws that mandated periods of incarceration, ranging from 90 days to 3 years, for certain types of offenses, such as DUIs, gun possession, sex

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offense, whereas an additional nine states had developed mandatory sentences which required a substantial amount of incarceration time for juvenile offenders who were adjudicated of a serious crime or who were repeat offenders. For example, in Illinois, a juvenile adjudicated either a habitual offender or a violent offender was to receive a mandatory sentence of incarceration for a period of no less than 5 years or until they reach their 21st birthday (Sanborn & Salerno, 2005). The introduction of mandatory sentencing laws did not just focus on mandating periods of incarceration, but also expanded their reach to aftercare. As of 2005, 14 states had enacted laws that required mandatory periods of aftercare supervision once juveniles were released from correctional facilities (Sanborn & Salerno, 2005). Juvenile Blended Sentences The Get Tough Era also witnessed state legislatures enhancing the sanctioning power of juvenile courts via the implementation of blended sentencing (Redding & Howell, 2000). Blended sentencing laws allow courts to impose a criminal sentence in conjunction with a juvenile disposition to juveniles either adjudicated in juvenile court or convicted in criminal court (Griffin, 2008; Merlo & Benekos, 2010; Torbet & Szymanski, 1998). The criminal sanction is usually invoked if the juvenile fails to adequately complete the requirements of the juvenile sanction. Two types of blended sentencing laws were enacted during the Get Tough Era: juvenile blended sentencing and criminal blended sentencing (Griffin, 2008). Both types allow for the imposition of both a juvenile and criminal sanction, the key difference is which court sanctions the juvenile. Between 1994 and 1997, state adoption of blended sentencing laws rose dramatically, with 21 states adopting such laws (Schaefer & Uggen, 2016). By 2008, 32 stated had enacted one or more type of blended sentencing; 15 states had juvenile blended sentencing laws, while 17 had criminal blended sentencing laws (Griffin, 2008). Some debate exists on the legislature’s intent behind implementing juvenile blended sentencing laws. Feld (1995), who examined Minnesota’s blended sentencing law, noted that such laws could be viewed as a mechanism for the juvenile court to maintain its emphasis on rehabilitation and provide juveniles with a last chance of reform rather than simply transferring them to the adult court where their chances at reformation would be reduced. Thus, it could be viewed that the court was offering juveniles an “olive branch” in hopes that they would change their ways rather than be subjected to adult sanctions. Others viewed the laws in a more skeptical light, believing that the legislation was intended to serve as simply another means in which to extend transfer and criminal sanctioning of juvenile offenders (Kupchik, 2006; Podkopacz & Feld, 2001; Schaefer & Uggen, 2016; Zimring, 2000). Dawson (1988), for example, found support for this view through his examination of Texas’s juvenile blended sentencing law. Texas used juvenile blended sentencing as a means to expand the juvenile court’s ability to issue criminal sanctions to offenders too young (below the age of 15) to be eligible for transfer to adult court. In an analysis of state adoption

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of juvenile blended sentencing laws from 1985 to 2008, Schaefer and Uggen (2016) found further support for the idea that juvenile blended sentencing laws were implemented with punitive intent. Their analysis suggested that the implementation of such laws aligned more closely with a desire to expand the punitiveness of the juvenile justice system rather than preserve the rehabilitative nature of the juvenile system.1

Sentencing Juveniles in Criminal Courts The Get Tough Era also saw the expansion of juvenile wavier, also referred to as juvenile transfer, which allowed for the transferring of a case from juvenile court jurisdiction to criminal court jurisdiction (Fritsch & Hemmens, 1995). From 1992 to 1997 alone, laws making it easier to transfer youth to criminal court were passed in 45 states (Griffin, 2008; Snyder & Sickmund, 1999). The increased use of juvenile transfer led to an increased number of youths being tried in criminal court. Though exact numbers do not exist due to a lack of record keeping by the court systems, it is estimated that approximately 13,200 youth were transferred in 1994, an 83% increase from 1985 (Butts & Mears, 2001; Snyder & Sickmund, 2006). Capital Punishment Juveniles transferred to the adult court become eligible for adult sanctions. During the Get Tough Era this included the death penalty, the most severe sanction available. Throughout this period, approximately half of the states in the United States permitted the use of the death penalty for individuals under the age of 18 who committed a capital offense (Cothern, 2000; Snyder & Sickmund, 2006). Death sentences for juveniles were issued consistently throughout this time period, with approximately 3% of all U.S. death sentences being imposed on juveniles (Streib, 2004). During the 1980s, the Supreme Court was repeatedly asked to rule on the constitutionality of executing individuals who committed their crimes while under the age of 18 (Cothern, 2000). The first case the Court agreed to hear was Eddings v. Oklahoma (1982). In this case, while the Court did not rule on the constitutionality of the juvenile death penalty, they did hold that the age of a minor was an important mitigating factor that must be considered during sentencing. Five additional requests to consider the constitutionality of juvenile death sentences were denied by the  It should be noted that while debate exists regarding whether the intent of legislatures implementing juvenile blended sentencing was to preserve the rehabilitative ideals of the juvenile court or increase the ability of juvenile courts to issue more punitive sanctions, little debate exists regarding the intent of criminal blended sentencing. The overall purpose of this legislation was to mitigate the effects of transfer laws in individual cases (Griffin, 2008). 1

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Court between 1983 and 1986 (Jackson, 1996). However, in 1987, the Court finally agreed to address the issue. In Thompson v. Oklahoma (1988), the Supreme Court was faced with the issue of whether juveniles under the age of 15 who committed a murder should be eligible for a death sentence. In a 5–3 decision, the Court held that such a sanction was a violation of the Constitution as it constituted cruel and unusual punishment. While the Supreme Court was willing to limit the age at which a capital sentence could be imposed, they were unwilling to deem the practice unconstitutional for all juveniles. In Stanford v. Kentucky (1989), recognizing the public sentiment toward serious, violent juvenile offenders of the time, the Court held “We discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age. Accordingly, we conclude that punishment does not offend the Eighth Amendment prohibition against cruel and unusual punishment.” As a result of the Court’s ruling, a number of individuals who were juveniles at the time of their crime were executed. In total, between 1985 and 2003, 22 individuals were executed (Snyder & Sickmund, 2006). Life Without the Possibility of Parole Juveniles transferred to adult courts were also eligible for sentences of life without the possibility of parole (LWOP) for a variety of offenses. While the use of juvenile LWOP was not a new phenomenon, the use of the sanction did increase substantially during the Get Tough Era; roughly ten-fold between 1990 and 1999 (Logan, 1998; Mills et al., 2015). Each year between 1990 and 2003, an average of 98 juvenile offenders received a sentence of life without the possibility of parole (Hartney, 2006). By 2002, there were over 2200 incarcerated individuals serving sentences of life without the possibility of parole for crimes they committed as juveniles (Amnesty International and Human Rights Watch, 2005). As of 2007, 41 states allowed for juveniles to receive sentences of life without the possibility of parole, with 16 of those states making the sentence mandatory for certain offenses (Streib & Schrempp, 2007).

Kids Are Different Sentencing Reforms The last few decades have witnessed another shift in juvenile justice policy and practices (Feld, 2017). Ushered in by Supreme Court rulings in three different cases (Graham v. Florida, 2010; Miller v. Alabama, 2012; Roper v. Simmons, 2005), juvenile justice is emerging with a renewed belief that kids are different from adults and thus should be treated so in a court of law (Benekos & Merlo, 2019; Feld, 2017). This section will provide an overview of these recent Supreme Court cases and will discuss how the Court’s rulings have impacted juvenile sentencing. While the previous section began discussing sentencing changes in the juvenile court followed by

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changes in the adult court, this section will proceed in reverse order as decisions made in regard to sentencing juveniles in adult courts has led juvenile courts to begin to rethink their own sentencing practices.

Sentencing Juveniles in Adult Court Get tough legislation ignored the reduced culpability of youth, which led to an increased number of youths being subjected to adult sanctions. Recognition of this problem provoked the Supreme Court to step in and judicially assert that “enough is enough” (Feld, 2017). The Court examined whether two of the most severe sanctions available for juveniles, capital punishment and life without the possibility of parole, were in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Asserting that “children are different”, the Court ruled capital punishment to be unconstitutional for juvenile offenders (Roper v. Simmons, 2005) and established criteria for implementing juvenile life without the possibility of parole sentences (Graham v. Florida, 2010; Miller v. Alabama, 2012). Capital Punishment In 2005, the Supreme Court ruled in Roper v. Simmons that capital punishment for an individual who committed their crime while under the age of 18 constituted cruel and unusual punishment, and was thus a violation of the Eighth Amendment. The narrow 5–4 decision overruled Stanford v. Kentucky (1989), which allowed states to issue a death sentence to juveniles 16 and above. The Court noted “The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the mentally retarded” (Roper v. Simmons, 2005, p. 565). At the time the case was being reviewed, states had greatly reduced the frequency by which juvenile offenders were sentenced to death. Additionally, only 20 states authorized the use of the death penalty for 16- and 17-year-olds (Streib, 2005). In the states that allowed its use, such sentences were infrequent, with only 22 juvenile death sentences being imposed in the 5 years prior to the Court’s ruling. Death sentences for juveniles were not only being imposed infrequently, but executions of juveniles who had been sanctioned to death were infrequent as well. Since the Court had upheld the use of the death penalty for those 16 and older in Stanford, only six states had carried out an execution, with only three states (Oklahoma, Texas, and Virginia) having done so within the 10 years prior to Roper. Further five states that had allowed the juvenile death penalty at the time of Stanford had since abandoned its practice through either legislative enactments or judicial decision (Streib, 2005). Reviewing this evidence, the Court concluded that “today

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our society views juveniles…as ‘categorically less culpable than the average criminal’” (Roper v. Simmons, 2005, p. 567). The Court further argued that the death penalty should be reserved for the worst offenders and three key differences between juveniles and adults limit juveniles’ ability to be deemed the “worst” (Roper v. Simmons, 2005, p. 569). First, juveniles are immature and have limited self-control; these factors lead them to act impulsively and without consideration of the possible consequences. This susceptibility to irresponsible behavior renders the behavior less morally reprehensible than that of an adult (p. 570). Second, juveniles are more susceptible to negative peer influences and they also have limited control over their own environment. The Court noted that minors often lack the ability to remove themselves from criminogenic settings. Given their “own vulnerability and comparative lack of control over their immediate surroundings…juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment” (p.  570). Lastly, the Court noted the transitory nature of juveniles’ personality; juveniles’ personalities are not yet fixed and thus the possibility for reform exists. They asserted that “it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed” (p. 570). The Court argued that because youth have diminished responsibility, the retributive justifications for the death penalty cannot be applied. They also noted that juveniles’ impulsiveness and limited self-control weakened any deterrent effect. The Court argued “the likelihood that the teenage offender has made the kind of cost-­ benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent” (p. 572). Given that issuing death sentences to juveniles seemed to serve neither a retributive nor deterrent purpose, the two rationales for the continued use of the death penalty, the Court ruled that its use could not be justified. With the Court’s ruling, the United States became the last country to officially sanction the death penalty for juveniles (Borger, 2005). Life without the possibility of parole was now the most severe sanction available for juveniles transferred to adult court (Rovner, 2021). However, within less than a decade, juveniles sanctioned to LWOP would begin to challenge their sentences using Roper’s diminished responsibility rationale. Life Without the Possibility of Parole In 2010, the Court agreed to review the issue of juvenile life without parole. Specifically, in Graham v. Florida (2010), the Court considered whether sentencing youth convicted of non-homicide offenses to LWOP constituted cruel and unusual punishment under the Eighth Amendment. The Court held that such sentences did constitute cruel and unusual punishment because the punishment was not proportional to the crime committed. The Court argued that since JLWOP was the harshest

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sentence juveniles could receive, its imposition should be limited to only those juveniles who commit the most serious crimes (i.e., homicide). To reach their conclusion, the Court relied on the same criteria they used in Roper. First, they examined whether there was a national consensus against the practice. They found that despite the fact that many jurisdictions allowed for the imposition of JLWOP for non-homicide offenses, their use was infrequent. Specifically, the research showed that there were only 129 juvenile offenders serving LWOP for non-homicide offenses nationwide, with 77 of those serving sentences in one state, Florida (Annino et  al., 2009; Graham v. Florida, 2010). The other 52 were imprisoned in just 11 other jurisdictions, indicating that only 12 jurisdictions nationwide imposed JLWOP sentences on non-homicide offenders. The Court thus concluded that there was a national consensus against the practice. The Court also considered whether the sentence was proportionate to the offense. The Court reiterated Roper’s rationale that juveniles deserved less severe sanctions given their reduced culpability (Feld, 2017). They pointed to developmental and neuroscience research to illustrate that adolescent brains differ from those of adults, impacting their culpability. The Court also noted that even the most serious non-­ homicide offenses cannot be compared to the severity and irrevocability of murder. Taking these two things into consideration, reduced culpability and offense severity, the Court held that LWOP for juveniles was disproportional. Lastly, the Court examined whether a sentence of LWOP for juveniles could be justified by any of the goals of punishment— retribution, deterrence, incapacitation, and rehabilitation. The Court found no support for any of the rationales. The Court’s ruling further aligned the U.S. with sentencing practices in the rest of the world. At the time of their ruling, only 11 nations authorized the use of LWOP for juvenile offenders under any circumstances, with only two of them, the United States and Israel, ever imposing the sentence. It is important to note that the ruling in Graham did not automatically result in release for non-homicide offenders serving LWOP. However, it did require that if a state “imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term” (Graham v. Florida, 2010, p. 82). In other words, states were now required to grant parole considerations to those juveniles sentenced to LWOP for non-homicide offenses. Just two short years following Graham, another case dealing with JLWOP made its way to the Supreme Court. In Miller v. Alabama (2012), the Court considered whether mandatory sentences of life without parole for juveniles convicted of murder was a violation of the Eighth Amendment. Expanding Roper and Graham, the Court held that mandatory LWOP for youths convicted of murder was unconstitutional as such sentencing schemes prevent consideration of reduced culpability and the increased capacity for change. Writing for the majority, Justice Kagan noted that “mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other…And still worse, each juvenile…will receive the same sentence as the vast majority of adults committing similar homicides offenses – but really, as Graham

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noted, a greater sentence than those adults will serve” (p. 476). The Court thus concluded that individualized assessments must be conducted prior to sentences of life without the possibility of parole being imposed on a youthful offender. While the Court acknowledged that the imposition of such penalties should be a rare occurrence, it stopped short of deeming JLWOP sentences unconstitutional (Mills et al., 2015). Miller impacted mandatory JLWOP sentencing laws in 28 states and the federal government (Rovner, 2021). The impacted states responded in a number of different ways. Nine states (Nevada, Wyoming, Texas, Hawaii, West Virginia, Delaware, Connecticut, Massachusetts, and Vermont) abolished the sentence either judicially or legislatively, bringing the total number of states with an outright ban to 16 (Mills et al., 2015). Some of these states utilized the opinions of Graham and Miller to rationalize the abolition. Massachusetts highest court, for example, justified the abolition of JLWOP under its state constitution by relying on Miller’s rationale that the sentence was disproportionate given juvenile’s reduced culpability (Scott et al., 2015). Other states, though continuing to allow the sentence, greatly limited the offenses for which it could be applied. California, for example, previously allowed for JLWOP for homicides involving any one of 22 special circumstances (Mills et al., 2015). However, in 2012, the state revised the law to allow for its imposition in only two special circumstances: if the defendant tortured the victim or when the victim was a public safety official. Similar legislation was passed in Florida. Further, a few states eliminated the sentencing option for a major class of offenders. North Carolina removed felony murder, Pennsylvania eliminated second-degree murder, and Washington eliminated the sentence for juveniles under the age of 16 at the time of their crime (Daugherty, 2013; Mills et al., 2015). States also grappled with the issue of whether to apply Miller retroactively. The Supreme Court failed to address the issue, leaving it up to the states to decide (Feld, 2017; Scott et al., 2015). As a result, JLWOP prisoners across the country petitioned state and federal courts for collateral review, insisting that the ruling in Miller must be applied retroactively to their cases (Scott et al., 2015). States varied in their interpretation of Miller, though a majority (14 of 21) agreed that Miller should be applied retroactively (Rovner, 2021; Scott et al., 2015). In 2016, the Supreme Court decided it would take up the issue. Using the Teague test,2 the Court found in Montgomery v. Louisiana (2016) that Miller created a new substantive rule of constitutional law and thus must be applied retroactively. The

 In Teague v. Lane (1989), the Supreme Court developed a framework used to determine whether a new rule to a constitutional law applies retroactively to individuals who were convicted prior to the Court’s ruling. The Court held that new rules apply onto to those individuals whose cases have not yet been finalized. Thus, new rules would not apply to those cases on collateral review. One exception noted by the Court, however, was that “new substantive rules of criminal law—decisions that “narrow the scope of a criminal statute by interpreting its terms” or “that place particular conduct or persons covered by the statute beyond the State’s power to punish”—apply retroactively” (Zarrow & Milliken, 2015, p. 43). This first exception was what was considered in Montgomery. 2

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ruling required that states reconsider the sentencing of those juveniles serving mandatory LWOP for homicide. States interpretations and responses to the ruling varied. Some states decided to hold resentencing hearings, where developmental factors not previously considered were examined. This proved to be problematic, as “a retrospective judgment about a prisoner’s immaturity at the time of an offense that may have occurred decades earlier may be fraught with difficulty” (Scott et al., 2015, p. 14). Other states chose to convert LWOP sentences to life with the possibility of parole, offering offenders a chance at parole after some specified period of time. This approach made it easier on the courts as it avoided “the need for retrospective evaluation of an older prisoner to determine if LWOP was an appropriate sanction at the time of the sentencing” (p.  14). Even though an offender now had the opportunity for parole, it was not guaranteed. Parole hearings are often less concerned about the factors that influenced the individual to engage and crime and more concerned about their current state of rehabilitation (Scott et al., 2015). Thus, consideration of one’s mind frame as a youthful offender is likely not going to be relevant in a parole hearing. In sum, while Montgomery granted juveniles serving JLWOP the opportunity for their sentence to be reconsidered; their chance at receiving a new sentence and/or being paroled remains limited as it requires a retrospective analysis. Miller and Graham led states to reconsider their use of JLWOP.  Some states chose to maintain JLWOP sentences. As of 2021, 26 states still allow for such sentences (Rovner, 2021). However, a number of states have revised their laws for juvenile homicide offenders (Scott et al., 2015; Rovner, 2021). Since 2012, 27 states that once had required JLWOP in certain circumstances have revised their laws for juvenile homicide offenders (Rovner, 2021). The revised laws require “mandatory minimums ranging from a chance of parole after 15 years (as in Nevada and West Virginia) to 40 years (as in Texas and Nebraska)” (Rovner, 2021, p. 3). While some scholars point to this change as a victory in reforming juvenile sentencing (Benekos & Merlo, 2019); others argue that switching from LWOP to lengthy mandatory minimum sentences does not signify a “policy of leniency toward juveniles who commit homicide” as it is the “functional equivalent of LWOP” (Scott et al., 2015, p. 15; Feld, 2017; Liles & Moak, 2015). This has led some to question the constitutionality of lengthy mandatory minimum sentences for juveniles. In People v. Caballero (2012), the California Supreme Court reviewed the constitutionality of lengthy mandatory minimums for non-homicide crimes. The Court had to decide whether the defendant’s sentence of 110  years to life violated the mandate in Graham against an LWOP sentence for a non-homicide offense. The Court held that the sentence did constitute cruel and unusual punishment as the parole eligibility date fell outside of the juvenile offender’s natural life expectancy, meaning there was no meaningful opportunity to provide release. Similarly, in State v. Null (2013), the Iowa Supreme Court found a 52 year-minimum sentence based on aggregated mandatory sentences violated both Miller and Graham. The Court argued that to be consistent with Miller, a juvenile who receives a lengthy sentence should not be worse off than a juvenile with an LWOP who is required to receive an individualized hearing. Further, the Court held that long mandatory sentences

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violated Graham as it did not provide a “meaningful opportunity” to demonstrate reform. In 2014, the Iowa Supreme Court again addressed the issue of mandatory sentences for juveniles. In State v. Lyle (2014), the Court held that “a statute mandating a sentence of incarceration in prison for juvenile offenders with no opportunity for parole until a minimum period of time has been served is unconstitutional” (p. 381). Thus, the Court held that juveniles cannot be sentenced under a mandatory minimum sentencing scheme. While some courts have broadly interpreted the rulings in Miller, Graham, and Montgomery, others have read them more narrowly, limiting them to only formal LWOP sentences and thus upholding lengthy mandatory minimum sentences (Feld, 2017). Feld (2017) notes that a number of courts have approved mandatory minimum sentences of 25 years, without the requirement of an individualized culpability assessment. Further, in Bunch v. Smith (2012), the Sixth Circuit Court of Appeals, upheld Bunch’s 89-year consecutive, fixed sentence arguing that Graham applied only to JLWOP sentences, not juveniles who received consecutive, fixed term sentences for non-homicide offenses. They quoted another court as saying “if the Supreme Court has more in mind, it will have to say what it is” (p. 553). Questions regarding the constitutionality of JLWOP sentences as well as lengthy mandatory minimum sentences for juveniles will likely continue to be brought before the courts in the years to come. Discussion of this will be presented in the concluding section on the future of juvenile sentencing.

Sentencing Juveniles in Juvenile Court The decisions rendered in the above cases have not only impacted the way that juveniles are sentenced within the adult court, but it has also carried over to the juvenile court. In response to Miller, a number of states have limited or flat out repealed mandatory minimum sentences for adjudicated youth (Balck, 2012). For example, in 2011, Ohio passed a sentencing reform bill that allowed judges to consider early release opportunities for youth serving mandatory sentences. Additionally, the state revised their mandatory sentencing guidelines to allow for judges to use their discretion when the youth was not the main actor in the crime (Balck, 2012). More recently, in 2018, Delaware removed all mandatory minimum sentences for youth adjudicated delinquent in Family Court (H.B. 307). Similarly, Louisiana revised their mandatory sentencing laws to remove the prohibition on judicial review and early release for youth committed to state custody for the most serious crimes (National Juvenile Justice Network, 2019). The Court’s rulings also seemed to reinvigorate the idea that the goal of sentencing in juvenile court should be rehabilitation, not simply punishment. In response, states have adopted strategies aimed at developing community-based alternatives to incarceration, with the goal of utilizing incarceration as a last resort (Balck, 2012; National Juvenile Justice Network, 2018, 2019, 2020). For example, Alabama established a grant program that encouraged courts to develop non-residential

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alternatives to incarceration (Balck, 2012). Similarly, in 2009, the Illinois General Assembly passed a law to make Redeploy Illinois, a program which reallocates state funds from the confinement of juveniles to jurisdictions to develop community-­ based sanctions for juvenile offenders, a permanent initiative (S.B. 1013/Public Act 95-1050). Also, in Illinois, the state legislature passed a law that requires juvenile court judges to consider a number of factors including but not limited to the youth’s criminal record, educational background, and mental, physical, and emotional health, before sentencing youth (H.B. 83/Public Act 97-362, 2011). The implementation of such laws across the country has seemed to have an impact on the number of youth in confinement. Since 2000, the number of juveniles confined in juvenile residential placement facilities has dropped by over 60% (Sawyer, 2019).

The Future of Juvenile Sentencing The recent Supreme Court rulings in Roper, Graham, and Miller have ushered in a change in thinking about the culpability of juvenile offenders. The recognition that “kids are different” than adults has led both state lawmakers and courts to reconsider what punishment are appropriate for juveniles (Feld, 2017; Scott et al., 2015). The practicality of the use of harsh penalties that were implemented during the Get Tough Era are now being questioned, with some states choosing to eliminate or at a minimum limit their use (Balck, 2012; National Juvenile Justice Network, 2018, 2019, 2020). Though much change has already occurred in response to the Supreme Court rulings, it is likely that the future will see further challenges to state sentencing practices as well as states continuing to revise their laws guiding sentencing. One sentencing practice that will likely continue to be challenged is JLWOP. Since Miller failed to abolish the practice, it is expected that prisoners will continue to challenge the sentence on other grounds. On November 3, 2020, the Supreme Court heard arguments in the case of Jones v. Mississippi. As issue was whether the Eighth Amendment requires judges to deem a juvenile permanently incorrigible before imposing LWOP. Jones’s attorney, David Shapiro, argued that the decisions in both Miller and Montgomery allow only juveniles who are incapable of rehabilitation to be sentenced to LWOP (Howe, 2020). He continued that because Jones’ capability for reform was not assessed, his case should be remanded back to the state courts for reconsideration. It was unclear through oral arguments how the Court would resolve the case as some justices seemed to support how the sentencing was handled, whereas others voiced concerns. A decision should be rendered sometime in 2021. Mandatory minimum sentences for juveniles will also likely continue to be challenged on the grounds that the punishment is disproportionate given juveniles reduced culpability as well as their increased likelihood of reform (Scott et  al., 2015). Recall that in 2014, the Iowa Supreme Court deemed mandatory minimum sentences for juveniles unconstitutional as they excluded the consideration of the offender’s immaturity (State v. Lyle, 2014). Other courts may also choose to interpret Miller this broadly and limit and/or eliminate mandatory minimum sentences

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for juveniles. Additionally, state legislatures may opt to modify their mandatory minimum sentencing practices. For example, in 2005, Washington was a leader in juvenile justice reform when it abolished mandatory minimum sentences for juveniles tried as adults (Neelum, 2011). The justification for its elimination was the recognition of the research on adolescent brain development, the same research used by the Supreme Court in Roper, Graham, and Miller. More recently, between 2011 and 2013, eight states made changes to their mandatory minimum sentencing laws, including making parole eligible after serving a certain length of a mandatory sentence as well as allowing judges to reassess a youth’s adult sentence at age 18 to determine the best course of action for the youth (Daugherty, 2013). State sentencing reforms will no doubt continue as states try to align their sentencing practices with the Court’s developmental framework. Scott et  al. (2015) note a number of ways in which states could choose to respond. States could “adopt a presumption against imposing lengthy minimum adult sentences on juvenile offenders, and provide individualized sentencing hearings for juveniles facing such terms” (Scott et al., 2015, p. 26). This, they assert, would allow for the consideration of a juvenile’s age, which is consistent with the framework. An alternative solution proposed by Feld (2017) is that states could simply develop a sentencing structure that incorporates youthfulness as a mitigating factor. Such a structure would allow for youths to still be held accountable for their actions, but the punishment imposed would be proportional to their diminished responsibility. As the “Kids are Different” Era continues, it seems likely that states will continue to repeal or reduce their reliance on punishments of the Get Tough Era. Hopefully, the renewed recognition of adolescent culpability will help the juvenile system return to its original intent of reforming youth and the harsh penalties of the Get Tough Era will become a thing of the past.

References Amnesty International and Human Rights Watch. (2005). The rest of their lives: Life without parole for children offenders in the United States. Human Rights Watch. https://www.hrw.org/ report/2005/10/11/rest-­their-­lives/life-­without-­parole-­child-­offenders-­united-­states Annino, P., Rasmussen, D. W., & Rice, C. B. (2009). Juvenile life without parole for non-homicide offenses: Florida compared to nation. Public Interest Law Center, Florida State University. https://doi.org/10.2139/ssrn.1490079 Austin, J., Johnson, K. D., & Gregoriou, M. (2000). Juveniles in adult prisons and jails: A national assessment. Bureau of Justice Assistance, U.S.  Department of Justice. https://www.ojp.gov/ pdffiles1/bja/182503.pdf Balck, A. (2012). Advances in juvenile justice reform: 2009–2011. The National Juvenile Justice Network. http://www.njjn.org/uploads/advances-­2009/NJJN-­Advances-­in-­Juvenile-­Justice-­ Reform_2009-­2011.pdf Benekos, P.  J., & Merlo, A.  V. (2008). Juvenile justice: The legacy of punitive policy. Youth Violence and Juvenile Justice, 6(1), 28–46. https://doi.org/10.1177/1541204007308423

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Benekos, P. J., & Merlo, A. V. (2019). A decade of change: Roper v. Simmons, defending childhood, and juvenile justice policy. Criminal Justice Policy Review, 30(1), 102–127. https://doi. org/10.1177/0887403416648734 Bernard, T.  J., & Kurlychek, M.  C. (2010). The cycle of juvenile justice (2nd ed.). Oxford University Press. Breed v. Jones, 421 U.S. 519 (1975). https://supreme.justia.com/cases/federal/us/421/519/ Borger, J. (2005, March 2). US becomes last country to end death penalty for under-18s. The Guardian. https://www.theguardian.com/world/2005/mar/02/usa.julianborger#:~:text=The%20US%20 bowed%20to%20international,18%20when%20they%20committed%20murder Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012). Butts, J. A., & Mears, D. P. (2001). Reviving juvenile justice in a get-tough era. Youth & Society, 33(2), 169–198. https://doi.org/10.1177/0044118X01033002003 Butts, J. A., & Travis, J. (2002). The rise and fall of American youth violence: 1980 to 2000. Urban Institute. https://www.urban.org/sites/default/files/publication/60381/410437-­The-­Rise-­and-­ Fall-­of-­American-­Youth-­Violence.PDF Cook, P. J., & Laub, J. H. (1998). The unprecedented epidemic in youth violence. In M. Tonry & M. J. Moore (Eds.), Crime and justice: A review of research (Vol. 24, pp. 27–64). University of Chicago Press. Cothern, L. (2000). Juveniles and the death penalty. Office of Juvenile Justice and Delinquency Prevention. https://www.ojp.gov/pdffiles1/ojjdp/184748.pdf Daugherty, C. (2013). State trends: Legislative victories from 2011–2013: Removing youth from the adult criminal justice system. Campaign for Youth Justice. http://www.campaignforyouthjustice.org/images/nationalreports/statetrends2013/statetrends.pdf Dawson, R. (1988). The third justice system: The new juvenile-criminal system of determinate sentencing for the youthful violent offender in Texas. St. Mary’s Law Journal, 19(4), 943–1016. Eddings v. Oklahoma, 455 U.S. 104 (1982). https://supreme.justia.com/cases/federal/us/455/104/ Feld, B. C. (1995). Violent youth and public policy: A case study of juvenile justice law reform. Minnesota Law Review, 79, 965–1128. https://scholarship.law.umn.edu/faculty_articles/294/ Feld, B. C. (1998). Juvenile and criminal justice systems’ responses to youth violence. Crime and Justice, 24, 189–261. https://doi.org/10.1086/449280 Feld, B.  C. (1999). Bad kids: Race and the transformation of the juvenile court. Oxford University Press. Feld, B. C. (2017). The evolution of the juvenile court: Race, politics, and the criminalizing of juvenile justice. New York University Press. Fritsch, E., & Hemmens, C. (1995). Juvenile waiver in the United States 1979-1995: A comparison and analysis of state waiver statutes. Juvenile and Family Court Journal, 46(3), 17–35. https:// doi.org/10.1111/j.1755-­6988.1995.tb00820.x Forst, M., Crim, D., & Blomquist, M. E. (1992). Punishment, accountability, and the new juvenile justice. Juvenile and Family Court Journal, 43(1), 1–9. https://doi.org/10.1111/j.1755­6988.1992.tb00714.x Fox, J. (1996). Trends in juvenile violence: A report to the United States Attorney General on current and future rates of juvenile offending. Bureau of Justice Statistics. https://www.bjs.gov/ content/pub/pdf/tjvfox.pdf Graham v. Florida, 560 U.S. 48 (2010). https://supreme.justia.com/cases/federal/us/560/48/ Griffin, P. (2008). Different from adults: An updated analysis of juvenile transfer and blended sentencing laws, with recommendations for reform. National Center for Juvenile Justice. https://www.ojp.gov/library/abstracts/ different-­adults-­updated-­analysis-­juvenile-­transfer-­and-­blended-­sentencing-­laws Griffin, P., Addie, S., Adams, B., & Firestine, K. (2011). Trying juveniles as adults: An analysis of state transfer laws and reporting. U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention. https://www.ojp.gov/pdffiles1/ojjdp/232434.pdf H.B. 307, 149 General Assembly (2017–2018). (Delaware 2018). https://legis.delaware.gov/BillD etail?legislationId=26279

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H.B. 83, 97th General Assembly (2011). (Illinois 2011). https://www.ilga.gov/legislation/billstatus.asp?DocNum=0083&GAID=11&GA=97&DocTypeID=HB&LegID=54527&SessionI D=84&SpecSess= Hartney, C. (2006). Youth under age 18  in the adult criminal justice system. National Council on Crime and Delinquency. https://www.evidentchange.org/sites/default/files/publication_pdf/ factsheet-­youth-­in-­adult-­system.pdf Howe, A. (2020, November 3). Argument analysis: Justices debate requirements for life sentences for juveniles. SCOTUSblog. https://www.scotusblog.com/2020/11/ argument-­analysis-­justices-­debate-­requirements-­for-­life-­sentences-­for-­juveniles/ In re Gault, 387 U.S. 1 (1967). https://supreme.justia.com/cases/federal/us/387/1/ In re Winship, 397 U.S. 358 (1970). https://supreme.justia.com/cases/federal/us/397/358/ Jackson, S. (1996). Too young to die— Juveniles and the death penalty— A better alternative to killing our children: Youth empowerment. New England Journal on Criminal and Civil Confinement, 22(2), 391–437. Kent v. United States, 383 U.S. 541 (1966). https://supreme.justia.com/cases/federal/us/383/541/ Jones v. Mississippi, 140 S. Ct. 1293 (2020). Kupchik, A. (2006). Judging juveniles: Prosecuting adolescents in adult and juvenile courts. New York University Press. Liles, A., & Moak, S.  C. (2015). Changing juvenile justice policy in response to the US Supreme Court: Implementing Miller v. Alabama. Youth Justice, 15(1), 76–92. https://doi. org/10.1177/1473225414529201 Logan, W. A. (1998). Proportionality and punishment: Imposing life without parole on juveniles. Wake Forest Law Review, 33(3), 681–725. Mack, J. W. (1909). The juvenile court. Harvard Law Review, 23(2), 104–122. https://www.jstor. org/stable/pdf/1325042.pdf McNulty, E. W., & Russell, J. N. (1995). Juvenile commitment guidelines departure research project. Arizona Supreme Court. Mennel, R. M. (1973). Thorns and thistles: Juvenile delinquents in the United States 1825–1940. University Press of New England. Merlo, A.  V., & Benekos, P.  J. (2010). Is punitive juvenile justice policy declining in the United States?: A critique of emergent initiatives. Youth Justice, 10(1), 3–24. https://doi. org/10.1177/1473225409356740 Merlo, A. V., Benekos, P. J., & Cook, W. J. (1999). The juvenile court at 100 years: Celebration or wake? Juvenile and Family Court Journal, 50(3), 1–10. Miller v. Alabama, 132 S. Ct. 2455 (2012). https://supreme.justia.com/cases/federal/us/567/460/ Mills, J.  R., Dorn, A.  M., & Hritz, A.  C. (2015, September 22). No hope: Re-examining lifetime sentences for juvenile offenders. The Phillips Black Project. https://static1.squarespace. com/static/55bd511ce4b0830374d25948/t/5600cc20e4b0f36b5caabe8a/1442892832535/ JLWOP+2.pdf Montgomery v. Louisiana, 577 US_ (2016). https://supreme.justia.com/cases/federal/ us/577/14-­280/ National Juvenile Justice Network. (2018). 2017 NJJN member youth justice advances. Author. https://www.njjn.org/uploads/digital-­l ibrary/NJJN%202017%20Leg%20Advances%20 Snapshot_1.pdf?phpMyAdmin=14730ab3483c51c94ca868bccffa06ef National Juvenile Justice Network. (2019). 2018 NJJN member youth justice advances. Author. https://www.njjn.org/uploads/digital-­l ibrary/2018%20NJJN%20Member%20Youth%20 Justice%20Advances.pdf?phpMyAdmin=14730ab3483c51c94ca868bccffa06ef National Juvenile Justice Network. (2020). 2019 NJJN member youth justice advances. Author. https://www.njjn.org/uploads/digital-­library/Advances%202019,%206.1.20%20(final).pdf Neelum, A. (2011). State trends: Legislative changes from 2005 to 2010 – Removing youth from the adult criminal justice system. Campaign for Youth Justice. http://www.campaignforyouthjustice.org/images/nationalreports/statetrendslegislativevictories.pdf People V. Caballero, 55 Cal.4th 262 (2012).

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Platt, A. M. (1969). The child savers: The invention of delinquency. University of Chicago Press. Podkopacz, M., & Feld, B. C. (2001). The back-door to prison: Waiver reform, “blended sentencing,” and the law of unintended consequences. Journal of Criminal Law and Criminology, 91(4), 997–1072. https://doi.org/10.2307/1144155 Pound, R. (1937). Pauline V. Young, Social treatment in probation and delinquency [Forward]. McGraw Hill. Redding, R. E., & Howell. (2000). Blended sentencing in American juvenile courts. In J. Fagan & F. Zimring (Eds.), The changing borders of juvenile justice: Transfer of adolescents to the criminal court (pp. 145–180). University of Chicago Press. Roper v. Simmons, 543 U.S. 551 (2005). https://supreme.justia.com/cases/federal/us/543/551/ Rovner, J. (2021). Juvenile life without parole: An overview. The Sentencing Project. https://www. sentencingproject.org/publications/juvenile-­life-­without-­parole/ Ryerson, E. (1978). The best-laid plans: America's juvenile court experiment. Hill and Wang. Rothman, D. J. (1980). Conscience and convenience: The asylum and its alternative in Progressive America. Little. S.B. 1013/Public Act 95-1050, 95 General Assembly (2009). (Illinois 2009). https://www.ilga. gov/legislation/BillStatus.asp?DocNum=1013&GAID=9&DocTypeID=SB&LegId=29078&S essionID=51 Sanborn, J. B., & Salerno, A. W. (2005). The juvenile justice system: Law and processes. Roxbury. Sawyer, W. (2019). Youth confinement: The whole pie 2019. Prison Policy Initiative. https://www. prisonpolicy.org/reports/youth2019.html Schaefer, S. S., & Uggen, C. (2016). Blended sentencing laws and the punitive turn in juvenile justice. Law & Social Inquiry, 41(2), 435–463. https://doi.org/10.1111/lsi.12172 Scott, E., Grisson, T., Levick, M., & Steinberg, L. (2015). The Supreme Court and the transformation of juvenile sentencing. Models for Change. http://www.modelsforchange.net/ publications/778 Sheffer, J.  P. (1995). Serious and habitual juvenile offender statutes: Reconciling punishment and rehabilitation within the juvenile justice system. Vanderbilt Law Review, 48(2), 479–512. https://scholarship.law.vanderbilt.edu/vlr/vol48/iss2/4/ Snyder, H. N. (2000). Juvenile arrests 1999. Office of Juvenile Justice and Delinquency Prevention. https://www.ojp.gov/pdffiles1/ojjdp/185236.pdf Snyder, H. N., & Sickmund, M. (1999). Juvenile justice: A century of change. Office of Juvenile Justice and Delinquency Prevention. https://www.ojp.gov/pdffiles1/ojjdp/178995.pdf Snyder, H.  N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 national report. U.S.  Department of Justice, Office of Justice Programs. https://www.ojjdp.gov/ojstatbb/ nr2006/downloads/NR2006.pdf Stanford v. Kentucky, 492 U.S. 362 (1989). https://supreme.justia.com/cases/federal/us/492/361/ State v. Lyle, 854 N.W.2d 378 (2014). State v. Null, 836 N.W.2d 41 (2013). Streib, V. L. (2004). The juvenile death penalty today: Death sentences and executions for juvenile crimes, January 1, 1973–April 30, 2004. Ohio Northern University. Streib, V. L. (2005). The juvenile death penalty today: Death sentences and executions for juvenile crimes, January 1, 1973–February 28, 2005. Ohio Northern University. Streib, V. L., & Schrempp, B. (2007). Life without parole for children. Criminal Justice, 21(4), 4–12. Tappan, P.  W. (1946). Treatment without trial. Social Forces, 24(3), 306–311. https://doi. org/10.2307/2571484 Teague v. Lane, 489 U.S. 288 (1989). https://supreme.justia.com/cases/federal/us/489/288/ Torbet, P., Gable, R., Hurst, H., IV, Montgomery, I., Szymanski, L., & Douglas, T. (1996). State responses to serious and violent juvenile crime: Research report. Office of Juvenile Justice and Delinquency Prevention, National Center for Juvenile Justice. https://www.ojp.gov/pdffiles/ statresp.pdf

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Torbet, P., & Szymanski, L. (1998). State legislative responses to juvenile crime: 1996–97 update. Office of Juvenile Justice and Delinquency Prevention. https://www.ojp.gov/pdffiles/172835.pdf Thompson v. Oklahoma, 487 U.S. 815 (1988). https://supreme.justia.com/cases/federal/ us/487/815/ Zarrow, J. M., & Milliken, W. H. (2015). Retroactivity, the due process clause, and the federal question in Montgomery v. Louisiana. Stanford Law Review, 68, 42–49. https://www.stanfordlawreview.org/online/retroactivity-­the-­due-­process-­clause-­and-­the-­federal-­question-­in-­ montgomery-­v-­louisiana/ Zimring, F. E. (1998). American youth violence. Oxford University Press. Zimring, F. E. (2000). The punitive necessity of waive. In J. Fagan & F. Zimring (Eds.), The changing borders of juvenile justice: Transfer of adolescents to the criminal court (pp. 207–224). University of Chicago Press.

Chapter 12

Risk Assessment in Sentencing Anne Metz and Matthew Adams

Abstract  Since the 1970s, the US criminal justice system has favored a determinate approach to sentencing involving sentencing guidelines and mandatory minimums. One of the consequences of this shift has been the massive growth of incarceration rates. Some scholars and policy experts have recommended incorporating risk assessment into sentencing as a way to reduce prison populations without compromising community safety. In this chapter, we explore the use of risk assessment in state and federal sentencing as a strategy for criminal justice reform. We examine states that adopted this approach and evaluate the empirical outcome literature to determine the extent to which risk assessment achieves its intended ends. We identify several challenges to the implementation of risk assessment, particularly, the impact of this approach on racial and ethnic minorities who are already disproportionately likely to be incarcerated. We conclude this chapter with several suggestions from the literature on how jurisdictions might incorporate democratically accountable risk assessment into sentencing as a broader criminal justice reform strategy. Keywords  Sentencing · Risk assessment · Criminal justice reform · Mass incarceration · Indeterminate sentencing

Introduction There are currently 2.3 million people incarcerated in the United States, a number that has increased from 200,000  in 1970 (Alexander, 2012; Sawyner & Wagner, 2020). A striking concurrent trend is that as US jail and prison populations have grown, crime rates have fallen to historically low levels (Monahan & Skeem, 2016). In fact, there is half as much violent crime as there was 25 years ago (Alexander, A. Metz (*) Southern New Hampshire University, Manchester, NH, USA e-mail: [email protected] M. Adams University of Indiana, Bloomington, IN, USA

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_12

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2012). A major priority of the criminal justice reform movement is scaling back the size and scope of the penal system here in the United States. Proponents of reform argue in favor reversing mass incarceration through policies designed to reduce the number of people currently incarcerated. As policy experts consider reform strategies to reverse mass incarceration, there is competing pressure to maintain these historically low crime rates. To achieve this complex goal, some scholars have suggested that state and federal court systems incorporate risk assessment into a broader model of indeterminate sentencing that would allow for briefer sentences for those less likely to offend again (Frase, 2013; Kopkin et  al., 2017; Monahan & Skeem, 2016). Risk assessment is the process of using risk factors to estimate the likelihood (i.e., probability) of an outcome occurring in a population (Kraemer et al., 1997). In this case, risk assessment uses the outcome of recidivism to determine the probability of a person reoffending in the future based on a statistical model. This chapter will focus on the use of risk assessment in sentencing as a mechanism for criminal justice reform. We begin with a theoretical discussion of punishment theory and how risk assessment can be used in sentencing. Next, we examine how risk assessment works, examining the relevant factors used to predict recidivism as well as the types of assessments currently available. We then turn to a discussion of risk assessment in practice, exploring how risk-based indeterminate sentencing is used at both state and federal levels. Next, we explain the empirical literature on the outcomes of risk-based sentencing in two main ways. First, is risk assessment an effective strategy for decarceration? Secondly, does risk assessment have a disparate impact on racial and ethnic minorities? In conclusion, we identify practical challenges that impede the utilization of risk assessment and offer several research-based suggestions for overcoming these challenges in the future.

Punishment Theory Retributivism is the view that people deserve punishment in proportion to their criminal wrongdoing (Hegel, 1991; Kant, 2002; Moore, 2010). The degree of punishment must be determined by the severity of the criminal act in order to be proportional; consequently, the punishment for murder should be greater than the punishment for theft because it is a graver criminal act. Retributivism explains why punishment is permissible in certain contexts: it usually isn’t acceptable to seriously harm someone against their will (e.g., to confine them to a prison cell), even if this would bring about significant social benefits. For such treatment would violate a person’s rights. The fact, however, that criminals have acted wrongly in the past explains why it is permissible to proportionally punish them. For they deserve harmful treatment—unlike innocent people—in proportion to their wrongdoing (Goldman, 1979, p. 43). The major theoretical alternative to retributivism is utilitarianism, the theory that punishment is justifiable to the extent that it brings about (expected) future social

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benefits (Farrell, 1985). It is a “forward-looking” theory because it is concerned with realizing social good in the future, rather than redressing social evil in the past—as with the “backward-looking” theory of retributivism. In an obvious sense, punishment brings about negative future effects because it causes harm to the criminal (Bentham, 1988). But retributivists argue that such negative effects are outweighed by more significant future benefits. Most importantly, punishment can deter future crime. It can do so either by deterring the convicted criminal from recidivism or by deterring the general population from committing a crime. Deterrence theory provides a different explanation for why people should be punished to different degrees than retributivism: murder should be given a harsher punishment than theft not because murderers deserve greater punishment but because societies want to deter murder more than theft. A major motivation for utilitarian, deterrence theory is that crimes are not merely attacks on their direct, individual victims. Rather, they are attacks on society in general because they threaten the peace and stability of society. Given that crime affects society as a whole, utilitarians argue that punishment should be used to prevent future crimes that would impact everyone (Beccaria, 1986; Bentham, 1988). Hybrid theory, also called limited retributivism, contains elements of both retributivism and utilitarianism. Retributivism specifies a range of punishments that are permissible. (This is possible because although retributivism requires proportionality, it (arguably) doesn’t specify a precise, fixed amount of punishment.) Within the range set by retributivism, certain utilitarian criteria, such as the risk of recidivism, can be used to specify the precise amount of punishment (Morris, 1974). Hybrid approaches aim to combine attractive features of retributivism and utilitarianism— and in doing so to avoid problems with pure versions of each theory (Goldman, 1979). For example, in contrast to pure retributivism, a hybrid approach can account for the widely shared intuition that a number of factors—including the risk of recidivism—should be given weight, rather than an exclusive focus on what the criminal deserves. Unlike pure utilitarianism, a hybrid approach can explain why it is wrong to punish innocent people if this would deter people from committing a crime. For what the criminal deserves constrains the punishment that is permissible.

Uses of Risk Assessment in Sentencing The three theories of punishment have different implications for the viability of risk assessment in sentencing. We begin by explaining their implication for the incarceration of high-risk people and the supervised release of low-risk people. Retributivists object to using risk assessment if this results in sentences that diverge from the proportional punishments that criminals deserve. Remember that for retributivists, the degree of punishment should be exclusively determined by the degree to which criminals deserve to be punished. Consequently, if two criminals who deserve the same degree of punishment are given different punishment (e.g., one is incarcerated, and the other is given supervised release) because of their

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contrasting risk profiles, then this violates the requirements of retributivism. Significantly, retributivists also object to other legal practices such as plea bargaining for precisely the same reasons (Christopher, 2003). In contrast, utilitarians support giving risk assessment weight in sentencing if this brings about the best social benefits. There are a number of ways in which risk assessment could achieve this. First, giving people who have a high risk of recidivism longer sentences could be justified because this protects society from the harm of their likely future offenses—at least during the additional period that they are incarcerated. Second, the supervised release of low-risk people could be justified. Given that they are not likely to re-offend, the cost of inflicting a painful punishment on them is not outweighed by the benefit of protecting society. Although utilitarians can support risk assessment in theory, whether they should support it in practice depends, as we explain below, on complex empirical questions and the moral significance of the precise set of costs and benefits. In order to be workable, risk assessment has to be reliable because utilitarians are concerned with realizing the best expected social benefits. The question as to whether any current system of risk assessment is sufficiently reliable has been met with some skepticism (Ryberg, 2020). Relatedly, even if it is reliable, it is possible that any workable system will have to rely on social categorize like particular races, sexes, and social classes. Such a system could, consequently, cause social stigmatization of particular groups (e.g., African Americans) to the degree that outweighs the benefits of risk assessment (Lenhardt, 2004). Finally, it also depends on whether risk assessment undermines deterrence to a sufficient degree. Whether, for example, a uniform punishment would be a more effective means of deterring future crime than a system in which sentences are tailored to different risk profiles (Monahan & Skeem, 2014). The hybrid approach would support risk assessment if two conditions are satisfied. First, the use of risk assessment generates sentences that fall within the range of permissible punishments that are specified by retributivism. Second, the relevant empirical facts and respective costs and benefits support giving the utilitarian criterion of risk assessment weight. Finally, we examine the role that rehabilitation should perform in order to reduce risk. Rehabilitation aims at the reformation of offenders and assists in their transition from criminals to law-abiding citizens. In doing so, it reduces the future risk that they pose to society upon their release (Brooks, 2013). Retributivists object to rehabilitation that is used as either a partial or complete replacement for the punishment that offenders deserve. They can accept the institution of rehabilitation as a separate practice that takes place after punishment has been administered; however, they are likely to insist that it isn’t just to make this rehabilitation compulsory as this would violate the rights of a criminal who has been sufficiently punished. Utilitarians can support rehabilitation, and even support reduced sentences in conjunction with rehabilitation, if this realizes the best future social benefits. Whether rehabilitation would achieve this depends on how reduced sentences affect deterrence and how the value of deterrence is weighed against the value of rehabilitation. If reduced sentences reduce deterrence sufficiently and

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deterrence is accorded significant value, then it is not justifiable. Hybrid theories can support rehabilitation as long as the constraints imposed by retributivism are satisfied and the value of rehabilitation outweighs its costs.

How Does Risk Assessment Work? Risk, Promotive, and Proxy Factors Risk assessment instruments are generally considered either predictive or risk reductive in purpose (Monahan & Skeem, 2016). To which category an instrument belongs is largely a function of what factors are considered in the administration of the risk assessment. Actuarial risk assessment used in criminal sentencing takes into account three types of factors: risk, promotive, and proxy. A risk factor, in this context, is any variable that raises the likelihood of future recidivism. Monahan and Skeem (2014) suggest there are four types of risk factors. The first is a fixed marker, which is a factor that does not change over time or with intervention, such as the age of first arrest or gender. Next is the variable marker, which can change over time, but not with an intervention (e.g., age). The next category, variable risk factors, can be changed by intervention, but do not necessarily contribute to a reduced risk of recidivism. Housing and employment are variable risk factors. Causal risk factors, however, are not only changeable by intervention but also contribute to a reduced likelihood of criminal activity, for example, substance use. As Monahan and Skeem (2016) argue, unless a risk factor is demonstrated by research to be causal, there is “there is little reason to assume that reducing the risk factor will reduce [recidivism]” (p. 497). Causality is a high bar, and thus, most of what are considered criminogenic needs are actually variable risk factors. If risk factors increase the likelihood of future criminal behavior, promotive factors—the second category of variables in risk assessment—do the opposite by lowering risk. Research points to supportive intimate relationships, hope and self-efficacy, and stable employment as examples of promotive factors considered in risk assessment instruments (Serin et al., 2010; Ullrich & Coid, 2011). The third category of factors relevant to risk assessment involves proxy factors. As the name suggests, these proxy variables stand-in for other factors that are either hard to measure or, as some have argued, discriminatory. Criminal history is a classic proxy variable. Depending upon who you ask, criminal history is either a proxy for risk, which is by nature difficult to measure (Frase, 2013; Harcourt, 2015) or a proxy for race, as the “racial disproportionality in the prison population necessarily entails that the prediction instruments, focused as they are on prior criminality, are going to hit hardest the African American communities” (Harcourt, 2015, p. 240). Critics of risk assessment have also asserted that employment status, education, and neighborhood are also possible proxies for race.

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Types of Instruments Actuarial risk assessments have been used by social service agencies in the United States since 1928 (Hyatt & Chanenson, 2016). Assessment instruments are often characterized as “generations” of tools to demarcate the variations in how the instruments work (Hyatt & Chanenson, 2016). The first wave of risk assessment instruments was clinically based, meaning that an evaluator would assign someone a risk level of low, high, or medium risk based on subjective judgment without the aid of an actuarial instrument. Second-generation instruments make use of static risk factors that do not change over time, such as the age of first arrest and gender. These risk factors are moderately effective at predicting future recidivism but do not provide insights into how to reduce an individual’s risk through intervention. Third-­ generation risk instruments include both static and dynamic factors and are also known as risk and needs instruments as they include both predictive and treatment considerations and the purpose (Andrews et al., 2006). The most recent iteration of risk assessment tools, the fourth-generation instruments, includes both risk and needs but also to identify an individualized treatment plan for reducing an individual’s risk (Hyatt & Chanenson, 2016). One of the most significant developments in risk assessment is the availability of commercially available instruments that can be licensed from developers for use in sentencing (Baird et al., 2013; Monahan & Skeem, 2016). Prior to the advent of these commercially available instruments, risk assessment instruments were developed and validated by universities, research organizations, or governmental agencies based on post-sentencing populations. This movement towards commercially available instruments comes with a set of additional concerns regarding the validity and the reliability of these instruments. Because they are commercial instruments, the algorithms used in the instrument to calculate recidivism risk and criminogenic need are considered proprietary. In comparison, second-generation risk instruments are developed and validated in a more transparent way, using state sentencing data. Critics of second-generation risk assessment instruments point to ethical and legal concerns, particularly because the factors used may promote unfair stereotypes and systematically disadvantaging certain groups—especially racial minorities—which will be addressed later in this chapter. But these instruments have the advantage of transparency (Hyatt & Chanenson, 2016). In comparison, commercially available instruments offer little insight into the predictive, or algorithmic, model used to generate an individual’s risk profile. The COMPAS Violent Recidivism Risk Score, one of the most widely used commercially available risk assessment instruments, uses a proprietary algorithm to calculate risk. The company that markets the COMPAS, Northpointe, has been unwilling to share the instrument’s algorithm with researchers (Stevenson & Slobogin, 2018). The “black box” nature of the COMPAS has raised legal and ethical concerns among scholars regarding how risk is calculated (Stevenson & Slobogin, 2018). For instance, the COMPAS relies heavily on socioeconomic and family factors that critics point out correlate with race (Baird et al., 2013; Skeem & Eno Louden, 2007;

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Stevenson & Slobogin, 2018). Although race is not a static factor in the 137-­question instrument, a ProPublica report called the COMPAS software “biased against blacks” (Angwin et al., 2016).

Risk Assessment in Practice In 2014, the American Law Association’s Model Penal Code directed sentencing commissions to develop Actuarial instruments that are able to predict offender risk and treatment needs. The Model Penal Code went on to specify that these instruments be used to aid in sentence decision-making and the diversion of low-risk offenders away from prison into community-based supervision (American Law Institute, 2014). We will begin with a discussion of risk assessment and state sentencing and conclude with a discussion of risk assessment in federal sentencing.

Risk Assessment in State Sentencing There is considerable variation in how risk assessment is used in state sentencing. At present, only a few states have pursued a full adoption of risk-based sentencing practices. Virginia was the first state to adopt risk-based sentencing in the guidelines, and with the aid of an instrument, the NVRA, low-risk offenders are recommended for noncustodial sentences while allowing for more severe sentences for high-risk sex offenders (Virginia Criminal Sentencing Commission, 2019). In 1994, Virginia began the development of an empirically based risk assessment instrument that would be used to divert 25% of its lowest risk individuals convicted of drug or property crimes from the criminal justice system, sentencing them to non-prison sanctions instead. These sanctions included jail, probation, electronic monitoring, community service, restitution, or outpatient substance abuse/mental health treatment (Farrar-Owens, 2013; Kern & Farrar-Owens, 2004; Kleiman et al., 2007). By 2002, the instrument—dubbed the non-violent risk assessment (NVRA)—was adopted statewide (Ostrom et  al., 2002). The logistic regression model was then revised again in 2013, with risk level thresholds adjusted to ensure that 25% of individuals are recommended for alternative sanctions (Farrar-Owens, 2013). Like Virginia, Pennsylvania adopted a broad risk-based approach to sentencing (Pennsylvania Commission on Sentencing, n.d.). The movement towards risk assessment under the state’s indeterminate sentencing model was prompted by the legislature’s realization that alternative sentencing programs were underutilized. The resultant nine risk assessment scales are now used at sentencing events to provide empirical support for sentencing outcomes, including noncustodial alternative sentences (Hyatt & Chanenson, 2016). Utah has also adopted the use of risk assessment into the state’s indeterminate sentencing model. In Utah, risk information is communicated to the judge in the

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form of a pre-sentencing recommendation (Hyatt & Chanenson, 2016). Unlike Virginia and Pennsylvania that developed statewide front-end risk assessments, Utah adopted a commercially available instrument, the Level of Service Inventory/ Risk, Needs, and Responsivity instrument (LS/RNR). Utah selected the LS/RNR for use in all felony sentencing events to support the goal of risk reduction as a method of crime control (Hyatt & Chanenson, 2016). Utah encourages judges to consider the sentencing guidelines and the recommendations of the LSI-R to tailor supervision and treatment resources rather than focusing on the offense itself. It does so by emphasizing both the criminogenic risk and the needs of the offender (Thompson, 2020). In contrast, in Virginia and Pennsylvania, static or variable risk factors are used only to predict future recidivism. While Virginia, Utah, and Pennsylvania have fully adopted risk-based sentencing, it is more common for a state to use risk assessment in a more limited way. Typically, when risk assessment is used in a limited capacity, risk information is used to help improve the outcomes in community-based sentencing. Monahan and Skeem described the limited use of risk assessment as a way to “scaffold justice reinvestment efforts” (2016, p. 496). Arizona is an example of a state with limited-­ use risk assessment in sentencing. Arizona’s instrument was developed and validated using post-conviction data from one county. This instrument was then integrated into the pre-sentencing report available to judges. Unlike other states which use risk assessment to recommend defendants for alternative sentencing, Arizona specifies that the risk information contained in the presentence report should not be used to make custodial or noncustodial sentencing decisions (e.g., in or out), but rather should be used to design a package of appropriate community-­ based sanctions.

Risk Assessment in Federal Sentencing Risk assessment took center stage in federal sentencing with the passage of the bipartisan First Step Act (FSA) in 2018. Risk, as socio-legal scholars have noted, was referred to over 100 times in the text, as a mechanism for reducing prison populations without jeopardizing low rates. Garrett (2018) describes risk and risk assessment as the “engine that drives” this major criminal justice reform. The First Step Act contained two specific reforms that were aimed to reduce reliance on prison sentences. The first reform, a “front-end fix,” expanded judicial discretion when imposing prison sentences. The second reform, a “back-end fix,” allowed prisoners to earn credits towards early release based on engagement in rehabilitation programs that reduced their recidivism risk (Garrett, 2018). To implement the back-end fix, the FSA specified that inmates be assigned a profile of minimum, low, medium, or high risk of recidivism based on a “risk and needs assessment system.” The Attorney General developed a risk assessment instrument based on variables “that are dynamic and that can reasonably be expected to change while in prison” (FSA, 2018).

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The resultant Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) was released on July 19, 2019. After the public release and a 45-day study period of PATTERN, the Board of Prisons had 180 days to assess recidivism risk for 180,000 federal inmates, which was completed in January 2020 (Bureau of Prisons, 2020). In addition to providing a risk level for each inmate, the assessment also provided treatment recommendations for BOP programs that would theoretically reduce their risk of recidivism. FSA specifies that inmates be reassessed each year, suggesting that recidivism is not a static feature and can change, both through intervention and through the passage of time. As of 2019, 3000 inmates have been released, and 1700 have had sentences reduced under the FSA.  Another 16,000 inmates are currently enrolled in drug treatment programs, one of the evidence-­ based rehabilitation options designed to help reduce recidivism risk (Bureau of Prisons, 2020).

Empirical Research on Risk Assessment Risk assessment has been hypothesized to be an effective way to reduce mass incarceration without jeopardizing historically low crime rates. In recent years, more states have moved towards risk-based sentencing in attempts to divert lower risk populations away from custodial sentences while ensuring the higher risk individuals are incarcerated. A growing body of empirical sociological research has emerged around risk assessment, which will be summarized in this section. In general, empirical research on risk assessment can be divided into two categories: outcome and utilization studies. The outcome studies examine to what extent risk assessment leads to intended outcomes of reducing incarceration rates. The utilization studies look at how court actors such as judges, prosecutors, and defense attorneys make use of risk assessment in the sentencing process. In this section, we will summarize the major findings of this body of literature.

Outcome Studies Does Risk Assessment Reduce Incarceration Rates? Many legal scholars hypothesize that the inclusion of some form of risk assessment in the sentencing process is an effective way of reducing incarceration without compromising historically low crime rates. We can assess this hypothesis by determines whether it holds true in the states that have integrated some form of risk assessment. There have been only a handful of empirical studies examining the question of whether integrating a risk assessment tool into the sentencing process reduces restrictive placements. Of the six studies examining whether risk information reduced restrictive placements for low-risk offenders, all but two appeared to

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support the conclusion that risk assessment works (Bonta & Motiuk, 1987; Fratello et al., 2011; Garrett et al., 2019; Stevenson, 2018; van Wingerden et al., 2014; cf. Barnes-Ceeney, 2013) and the ones that do point to, at best, modest reductions in restrictive placements. For high-risk offenders, empirical research is somewhat mixed (Viljoen et al., 2019). Three studies have found that when risk assessment is used, restrictive placements increase for high-risk offenders increases (Fratello et  al., 2011; Jung et  al., 2015; Stevenson, 2018), while three studies found that restrictive placements decreased for this population (Barnes-Ceeney, 2013; Garrett et al., 2019; van Wingerden et al., 2014).  ow Does Risk Assessment Impact Racial and Ethnic Disparities H in Sentencing? One argument in favor of risk assessment is that the result of actuarial risk assessment is far more accurate than professional judgment in predictive value for future risk (Andrews et al., 2006; Grove et al., 2000; Latessa & Lovins, 2010). Although actuarial assessment risk assessment is more accurate than clinical judgment, prominent critics, including former Attorney General Eric Holder (2014), argue that the use of risk instruments in sentencing may lead to higher rates of restrictive placements for racial and ethnic minorities, who are already six times more likely to be incarcerated than Whites (Carson, 2014). Taking the contrary position, other theorists have argued that risk assessment would either have no impact on racial and ethnic disparities or may even reduce these inequities (Hoge, 2002). Although there have been numerous studies examining the impact of risk information on racial disparities in pretrial decision-making, there is a significant gap in the literature on the impact of risk assessment on post-conviction placements. Indeed, there has only been one empirical study by Skeem and Lowenkamp (2016) that looks at post-conviction placements. In their quantitative analysis of 48,475 federal offenders, Skeem and Lowenkamp (2016) found little evidence that the accuracy of the PCRA in predicting rearrest was dependent on whether offenders are Black or White. The authors did find that Black offenders had moderately higher PCRA scores than White offenders, usually due to a higher score on the criminal history scale. Skeem and Lowenkamp (2016) point out that while there is no evidence of test bias in the PCRA, they raised the prospect that the PCRA could have a greater impact on Black offenders. Interestingly, these authors published another study suggesting that the PCRA overestimates women’s likelihood of recidivism, which the authors again argue could contribute to “overly harsh sanctions for women” (Skeem et al., 2016, p. 580). Although there is an obvious need for additional research on the racial impact of risk assessment in sentencing, there are some considerable barriers to exploring this issue empirically outside of federal sentencing. At the state level, there is almost no information on the impact of risk assessment on racial disparities. While the utility of the research is apparent, many states do not collect race data from sentenced defendants. The main reason for this is that collecting such race data would be

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viewed by many as problematic because it could perpetuate racial disparities. This illuminates how difficult criminal reform can be: Sometimes, the only way to improve existing racial disparities in sentencing is to take a means that could, itself, ironically intensify existing racial disparities.

Four Challenges for Risk assessment in Sentencing As the previous section on empirical research demonstrates, there remains a need for additional research examining the extent to which risk assessment may be a plausible strategy for safely reducing incarceration rates. The extant research examining risk assessment in sentencing identifies three obstacles for the implementation of risk assessment. 1. Plea Agreements Outweigh Risk Information in Sentencing Following up on the analysis of sentencing data in Virginia (Garrett et  al., 2019), Metz et al. (2019) sought to explain why judges were electing to reject the recommendation of Virginia’s risk assessment instrument (NVRA) when sentencing eligible drug and property offenders. The authors of this study interviewed 24 Circuit Court judges who were asked to provide specific examples of closed cases when they did and didn’t choose to agree with the NVRA’s recommendation (Metz et al., 2019). Analysis indicated that 83% of participants agreed that NVRA was a valid data point to consider in the sentencing but not one that should be considered dispositive. More important than the NVRA results in the decision-making process, however, were the plea agreements negotiated by the prosecutor and defense attorneys. Nearly 71% of participants stated that if a prosecutor agreed to an alternative via plea agreement, then the judge would defer to the agreed-upon sentence regardless of what the NVRA recommended. 2. Risk Assessment Tools Will Never Be Better than the Data from Which They Are Constructed Actuarial assessment assumes that what has occurred in the past can be used to accurately predict what will happen in the future. Assessments instruments make predictions in a statistical way based on data observations collected in the past. But what if the system—or the data—is bad? For instance, racial and ethnic minorities in the United States are both overpoliced and given harsher sentences compared to Whites. An instrument built from data collected in a biased criminal justice system is going to be, by the nature of the development process, also biased. Furthermore, pinpointing systemic bias is impeded by the fact that race data may not be collected at the state level. It could be that racial and ethnic disparities in sentencing are worse (or better) than critics or advocates suggest. In the absence of data that could be used to check for bias, we will never know. This lack of accountability for racial and ethnic bias is exacerbating in the commercially available instruments that make “normative judgments concerning [the] accuracy, equality, and the purpose of punishment… in the absence of law”

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(Eaglin, 2017, p. 59). Decisions about which factors matter and how they should be weighted are almost never publicly disclosed, particularly among the commercially available risk assessment instruments. 3. Risk Assessment Won’t Work Without Treatment Resources Numerous studies have pointed to the issue of program capacity when diverting low-risk offenders to alternative sentences (Metz et al., 2019; Monahan et al., 2018, 2020). In interviews with Circuit Court judges in Virginia, Metz et  al. (2019) report that 80% of participants said that a lack of available programs contributed to the sentencing of low-risk offenders to custodial sentences when they were otherwise eligible for an alternative. The judges suggested that the program capacity issues were compounded when a defendant had medical or behavioral health. In the so-called Treatment Resource Hypothesis, Monahan et al. (2020) found that the likelihood of imposing nonjail alternative sentences on offenders increased from 44% in the most resource-poor jurisdictions to 71% in the most resource-rich jurisdictions. Program capacity is also relevant to high-risk offenders who may benefit from prison treatment to reduce their risk upon release (Skeem & Monahan, 2020). A major study by Weisberg and Petersilia (2010) of the California prison system found that there were only 11,000 substance abuse treatment “slots” for the 112,200 prisoners with serious substance abuse treatment problems, and only 200 anger control treatment “slots” for the 76,500 prisoners with documented difficulties in controlling their anger. In the years that followed, California committed to placing at least 70% of the inmates in treatment programs, but a recent report from independent auditor suggested that the California Department of Corrections (California State Auditor, 2019) had failed to meet “any rehabilitative needs for 62% of the inmates” (p. 23) who were at risk of reoffending. 4 . People Who Use Them Don’t Believe They are Valid On the whole, risk assessment instruments are more accurate than clinical judgment when it comes to predicting recidivism risk (Andrews et  al., 2006; Grove et al., 2000; Latessa & Lovins, 2010). But research on perceptions of risk assessment in sentencing suggests that the main consumers of these instruments—judges, prosecutors, and defense attorneys—are skeptical of their predictive validity (Metz et al., 2019, 2020; Monahan et al., 2018). A recent study of prosecutors and defense attorneys by Metz et al. (2020) found that while there was support for the use of risk assessment as a strategy for reducing mass incarceration, participants were practically unanimous in their objection to several risk factors used by the NVRA instrument—particularly gender and age. This finding was consistent with previous studies on the judicial perception of risk assessment at both sentencing (Metz et al., 2019; Monahan et al., 2018) and pretrial stages (DeMichele et al., 2018). Participants who were skeptical of an actuarial instrument were less likely to trust the results of a risk assessment, meaning that relevant risk information may be ignored in practice (Metz et al., 2019, 2020).

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Implications for Practice in Criminal Justice Reform Constructing Democratically Accountable Risk Instruments If the main consumers of risk assessment information feel that the instruments are biased, invalid, or even “voodoo” (Metz et al., 2020), it is unlikely that risk assessment will achieve its purported ends of reducing incarceration without compromising public safety. The explosion of commercially available instruments with proprietary algorithms appears to only exacerbate the skepticism. In an article critiquing the risk assessment instrument development Eaglin (2017) argues in favor of “democratically accountable risk assessment” (2017, p. 110) that embraces transparency, accessibility, and interpretability. In doing so, Eaglin endorses machine learning (as opposed to regression models), expert and community input on recidivism and risk factors (as opposed to the black-box model of commercial instruments), and public information about the tool construction process (again in contrast to commercial instruments). These suggestions point to a disparity in what counts as “evidence” for recidivism, with instrument developers and policymakers seeing evidence as statistical probability while court actors’ approach to evidence is perhaps more holistic: considering the contextual aspects of a case, a defendant’s motivation, and the available community resources (Metz et al., 2020).

Increase Education and Training Empirical evidence also suggests that a lack of training or education on the instrument used by the jurisdiction creates complications in terms of consistent implementation. When court actors, particularly judges, are not trained on how to use an instrument, they are less likely to consider the risk information as a meaningful dispositive factor. In a study on sentencing in Virginia, Metz et al. (2019) found that a number of judges in the study were misinformed as to whether imposing an alternative sentence for a low-risk offender would be considered a downward deviation from the sentencing guidelines (it would not). Providing training to court actors on a risk assessment instrument, including how it was developed, and how it should be used in sentencing, appears to be a critical component of an effective implementation process. Research also supports the idea that with additional education and training, perceptions of the risk assessment instrument can improve and reduce the natural skepticism to the use of an algorithm in the field of law (Metz et al., 2020; Monahan et al., 2018).

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Conclusion In this chapter, we have argued that the degree to which risk assessment should be given weight in sentencing hinges on a complex set of normative and empirical considerations. Perhaps most importantly, whether risk assessment has a disparate impact on racial minorities and whether increasing its use would affect the historically low crime rates that we currently enjoy. One point that we would like to close by highlighting is that there is strong empirical evidence that one of the major impediments to the success of risk assessment—both for the diversion of low-risk offenders and the rehabilitation of high-risk offenders—is a lack of program availability (California State Auditor, 2019; Garrett & Monahan, 2020; Metz et al., 2019, 2020; Monahan et  al., 2018, 2020). To make risk assessment work as theorized (Morris, 1974), a significant investment must be made to increase capacity in the evidence-based programs that have demonstrated efficacy for reducing the risk of recidivism. On the state level, resource availability is often highly localized based on an area’s tax base. Thus, in well-resourced areas, alternatives are available, and less-resourced areas, there are few options. If states are committed to reducing their incarceration rates, and with them the costs of the facilities, it may be necessary to subsidized programs in poorly resourced areas. There is, therefore, an important sense in which criminal justice reform can’t be viewed in isolation from other forms of actual injustice. In particular, economic inequalities that impact the efficacy and feasibility of risk assessment in sentencing. Overcoming distributive injustice is thus essential for criminal justice reform.

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Chapter 13

Criminal Justice Policy Reform Through Researcher–Practitioner/Policymaker Partnerships Kaylee Noorman, Julie Brancale, and Thomas G. Blomberg

Abstract  This chapter describes how researcher–practitioner/policymaker partnerships (RPPs) can effectively contribute to criminal justice policy reform. We begin by providing an overview of RPPs that have resulted in criminal justice system reforms. We then describe a unique partnership between researchers and a state legislature. The chronology of the initiation, implementation, and outcomes of the RPP with the legislature are included in our description as well as the lessons learned and implications for future RPPs. This chapter concludes with recommendations regarding how RPPs with legislatures and practitioners can contribute to more effective criminal justice reform. This chapter contributes to the literature on criminal justice policy reform by describing an RPP with a legislative organization, which has been notably absent in prior relevant literature. Importantly, RPPs with policymakers can contribute to criminal justice policy reform by providing policymakers with evidence-based options and likely outcomes of legislation. Specifically, through RPPs, researchers and policymakers can proactively assess the potential impacts of various policy options prior to the drafting of legislation. Keywords  Criminal justice policy · Criminal justice reform · Sentencing reform · Researcher–practitioner/policymaker partnerships · Translational criminology

K. Noorman · J. Brancale (*) · T. G. Blomberg College of Criminology and Criminal Justice, Florida State University, Tallahassee, FL, USA e-mail: [email protected]; [email protected]; [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_13

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Introduction Several decades of punitive “law and order” criminal justice policies and practices have contributed to the exponential growth in the number of people impacted by the criminal justice system in the United States. Importantly, these policies and associated growth have not been experienced equally across racial and ethnic groups. Minority individuals, primarily Black Americans, have been disproportionately impacted by the nation’s punitive criminal justice policies and practices (Alexander, 2012; Clear, 2007; Clear & Frost, 2013; Cullen & Johnson, 2017). To illustrate, between 1980 and 2015, the number of people incarcerated in the United States increased from 500,000 to 2.2 million. During this era of mass incarceration, Black Americans were incarcerated more than five times the rate of White Americans (Pew Center on the States, 2008). In response to what has been termed the “racialization of crime” and other disparate and ineffective criminal justice policies and practices, there has been growing and widespread acknowledgment that the United States criminal justice system is in need of major reform (Mears et al., 2009). As a result, concerted efforts have begun to bring about change in the criminal justice system (Petersilia & Cullen, 2015; Tonry, 2010). An emerging and integral component of effective criminal justice reform is for new policies and practices to be evidence-based. To this end, an increasing number of researchers have embraced translational criminology as a method of incorporating evidence into criminal justice policy and practice (Blomberg, 2019). Researcher– practitioner/policymaker partnerships (RPPs) have emerged as a promising best practice in the translation of scientific evidence and knowledge into criminal justice policy reform. However, and despite documented successes, many RPPs are limited in scope and involve partnerships only between scholars and law enforcement agencies. RPPs between researchers and legislative policymakers are notably absent from the available literature. Importantly, given the successes of other RPPs, partnerships with legislators have the potential to proactively contribute to early and meaningful criminal justice policy reform by providing policymakers with empirical evidence to help guide their thinking, drafting, and enactment of criminal justice bills. What follows is a review of the prior literature on RPPs with a focus on their implementation and outcomes. Next, a comprehensive description of a unique partnership between the Florida State University College of Criminology and Criminal Justice (FSU) and the Florida Senate Criminal Justice Committee (Senate Committee) that focuses upon its initiation, implementation, and outcomes. This chapter concludes with a discussion of how RPPs can be more widely employed in the development of evidence-based criminal justice policy reform.

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Researcher–Practitioner Partnerships RPPs are emerging as a promising best practice in translational criminology and criminal justice policy reform. Although funding for RPPs has since been discontinued, the United States National Institute of Justice (NIJ), in an effort to promote RPPs, funded a series of partnership projects between 2009 and 2015. These funded RPPs were centered upon law enforcement and involved the application of research to guide evidence-based law enforcement policies and practices (Blomberg, 2019; Laub & Frisch, 2016; Pesta et  al., 2019). In their evaluation of RPPs between researchers and practitioners, Alpert et al. (2013) found numerous instances of law enforcement agencies revising their policies and practices due to knowledge gained from the partnerships. For example, a police department in the western United States implemented a series of changes, which included the implementation of a local substance abuse advisory group and evidence-based research to replace their Drug Abuse Resistance Education (DARE) program. A second agency hired a criminologist to conduct internal research on the culture of the agency. A third department in the southeastern United States developed a “best practices committee” which included a criminologist among its members. Based upon these RPPs, NIJ and the International Association of Chiefs of Police (IACP) published two guidebooks for establishing and sustaining RPPs with law enforcement agencies (International Association of Chiefs of Police, 2005a, 2005b). The guidebooks outline rationales for the partnerships and provide guidance on initiating, organizing, implementing, and assessing the effectiveness of the partnerships for law enforcement leaders and researchers.

Implementation of RPPs There are numerous mechanisms through which an RPP can be initiated and funded, including government grants, private foundation grants, and funding through the practitioner agency itself (Rojek et al., 2012b). Bales et al. (2014) suggested that one of the best ways to develop a successful RPP is for academic and research organizations to be committed to and proactively develop relationships with practitioner agencies through jointly funded research projects. In describing his relationship with the Boston Police Department, Braga (2013) identified the “embedded researcher” model as another type of RPP.  In this model, a law enforcement agency hired an independent researcher to work within the department to assist with the development of programs, provide problem analysis and evaluation research, and provide scientific evidence in policy discussions. Research has also identified various components to successful as well as unsuccessful RPPs. Characteristics of successful partnerships include research products that are clear and locally applicable, effective relationship building and collaboration in all phases of the research process, and supportive leadership that accepts the

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value of research in decision-making (Cullen, 2005; Garrison, 2009; Innes & Everett, 2008; Pesta et al., 2017). Effective RPPs require collaboration, communication, and trust between both researchers and policymakers/practitioners (Laub & Frisch, 2016). Scholars have also documented impediments or barriers to successful partnerships, such as research that is too difficult and nuanced for the agency to use, unsupportive agency leadership, ideology and politics, poor relationships, and fiscal and time constraints (Blomberg et al., 2016; Blumstein, 1997; Brancale et al., 2021; Chouhy et al., 2021; Latessa, 2004; Mears, 2013; Pesta et al., 2017; Petersilia, 2008; Tonry, 2010; Weiss, 1995).

Outcomes of RPPs Importantly, RPPs have shown promise and success in translating research into effective criminal justice policy and practice (Blomberg, 2019; Laub, 2012; Pesta et al., 2017, 2019; Spivak, 2018). Spivak (2018), NIJ’s Principal Deputy Director, indicated that RPPs were the best way to implement rigorous research and evaluations that shape and inform policies and practices, and have on-the-ground impact. Below are examples of RPPs that illustrate their potential for effective reform outcomes across various branches of the criminal justice system. From 1995 to 1997 the NIJ funded Operation Ceasefire, a partnership between the Boston Police Department and researchers from Harvard University to reduce homicide victimizations among youth in Boston (Braga et al., 2001). The initiative involved collaboration between numerous agencies and established a large, interagency working group to research the nature of youth violence in Boston and design and implement an evidence-based intervention. Operation Ceasefire resulted in a significant reduction in youth homicides in Boston, with youth homicides decreasing by 63% from 1996 to 1997 (Braga et al., 2001). Additionally, monthly gun assault incidents were reduced by 25%, shots-fired calls decreased by 32%, and youth gun assaults decreased by 44% (Braga et al., 2001). As a result of Operation Ceasefire’s success, NIJ launched the Strategic Approach to Community Safety Initiative (SASCI) in 1998 to replicate Operation Ceasefire across ten other cities with high violent crime rates (Roehl et al., 2006). The study on SASCI found reductions in violent crime by up to 50% when the Ceasefire model was well implemented. Furthermore, in his role as an embedded criminologist with the Boston Police Department, Braga (2013) assisted the department with a re-implementation of the Ceasefire initiative in 2007 to reduce gang-related gun violence, resulting in a 31% reduction of gang-involved shootings. As previously mentioned, descriptions of RPPs between researchers and non-law enforcement agencies are limited. However, Blomberg (2019) documented a series of successes and provided descriptions of RPPs between researchers and a local county government (the Palm Beach County Criminal Justice Commission) and two state-level agencies (the Florida Department of Corrections and the Florida Department of Juvenile Justice). In the early 1990s, Palm Beach County’s Criminal

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Justice Commission (CJC) received federal funding for the implementation of Weed and Seed initiatives in several of the county’s high-crime areas and contacted FSU to evaluate their initiatives. Weed and Seed initiatives aim to prevent, control, and reduce criminal activity in designated high-crime neighborhoods by “weeding out” criminals in the area and preventing their return, and “seeding” the area through prevention, intervention, and treatment services (Dunworth et  al., 1999). Today, after 25 years, FSU and the CJC have a continuing partnership and have completed more than 20 studies, with two currently in progress. Additionally, through this long-lasting RPP, Blomberg (2019) indicated that the partners have collaborated on grant proposals, project implementations and evaluations, coauthored peer-reviewed articles, and given numerous presentations to both local and national government and academic audiences. Importantly, the RPP has resulted in a number of direct policy and practice reforms initiated by the Palm Beach County government that include: the decision not to build another jail based upon jail population projections; revision of the County’s process for awarding jail healthcare contracts to private providers based upon a study of inmate healthcare needs and services provided; the establishment of Youth Empowerment Centers in two high-crime areas of the County; and the implementation of more systematic monitoring of contracts service providers used by the County’s Drug Court (Blomberg, 2019). In 2012, FSU and the Florida Department of Corrections (FDC) entered into an RPP to complete a federally funded project. Through the RPP, a dataset containing a cohort of more than 250,000 inmates who were released from Florida prisons between 2004 and 2011 was developed. Using the dataset, FSU and FDC completed three individual studies: the first involved an assessment of the effectiveness of in-prison substance abuse treatment upon post-release employment and recidivism; the second was an assessment of the effectiveness of prison-based work release programs on employment and recidivism; the third was an evaluation of the effect of post-prison supervision on employment and recidivism. As a result of the findings from the three partnership studies, FDC implemented a series of system-wide reforms. Inmates now participate in substance abuse programming close to their release date, FDC now provides opportunities for released offenders to participate in aftercare programs as funding allows by negotiating aftercare services into state contracts, and FDC has expanded opportunities for inmates to participate in prison-­ based work release programs (Blomberg, 2019). A 2013 federally funded RPP between FSU and the Florida Department of Juvenile Justice (DJJ) involved three studies. The first study was an assessment of the use of civil citation as an alternative to arrest for juveniles; the second study was an assessment of the role of family visitation upon recidivism for incarcerated juveniles; and the third study was a determination of individual youth characteristics and school-level factors contributing to school-based referrals and educational attainment (Blomberg, 2019). As a result of the partnership, Pesta et  al. (2019) found the agency improved its data collection and integrity, modified its measures of visitation and school-based arrests, and enhanced the program implementation of its juvenile civil citation program. Further, the agency expanded its partnership with

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FSU to include numerous new projects in the years since the initial funded partnership project (Pesta et al., 2019; see also Blomberg, 2019). The RPPs with the Boston Police Department, the Palm Beach CJC, FDC, and DJJ have all resulted in both direct and indirect criminal justice reforms at local, state, and national levels (Alpert et al., 2013; Blomberg, 2019; Pesta et al., 2017, 2019; Rojek et  al., 2012a, 2012b; Telep, 2017). Importantly, and notably absent from the available RPP literature are studies that describe and evaluate RPPs with legislative bodies, which are unique in their structures and missions from practitioner agencies.

 PP Between FSU and the Florida Senate Criminal R Justice Committee This section describes the process of translational criminology through an RPP between FSU and Florida Senate policymakers. The methods involved in the project initiation, implementation, and outcomes will be described, including findings from post-project interviews with Senators.

Project Initiation The partnership between FSU and the Florida Senate Criminal Justice Committee was initiated by one of the Senators on the Committee who sought to address racial and ethnic disparities in Florida’s criminal justice system. To do so, the Senator proposed to include racial and ethnic impact statements with proposed pieces of criminal justice legislation and reached out to FSU’s College of Criminology and Criminal Justice to establish a partnership that would include the development of racial and ethnic impact statements with bills that were set to be heard during the Senate’s Criminal Justice Committee Meetings. The Senator envisioned that the racial and ethnic impact statements would make the legislation more efficient and would help to reduce racial and ethnic disparities in Florida’s criminal justice system (Dobson, 2019). Racial and ethnic impact statements are designed to identify potential impacts a proposed piece of legislation would have on racial and ethnic groups. Policymakers could then use the statements as they deliberate the passage of the legislation.

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Preliminary Discussions Prior to the development of the partnership contract, a series of meetings with Senators, Committee staff, and the Senate General Counsel were held. The initial planning meetings focused on developing mutual agreements about the scope and purpose of the partnership, requested deliverables, and timeframes. FSU then developed a proposal based upon these mutual agreements. The proposal detailed the data and methods that would be used. Specifically, to assess disparities, FSU would produce trends and forecasts of Florida’s population and rates of criminal justice processing, including information on the racial, ethnic, and age compositions of each group. The data required to conduct the analyses included multiple years of statewide data from Florida’s Office of Economic and Demographic Research (EDR), Department of Law Enforcement (FDLE), Office of the State Court Administrator (OSCA), and Department of Corrections (FDC). Contract Negotiation Following preliminary discussions, a contract was developed that outlined the scope of the project. FSU proposed to conduct the study in two phases. Phase I involved the gathering of data and compiling Florida population and criminal justice processing trends and forecasts. Phase I included presenting these trends and forecasts to the Senate Committee during one of their presession meetings. Phase II involved the development and submission of the racial and ethnic impact statements on ten proposed criminal justice bills during the regular legislative session. As agreed upon in the contract, the impact statements were provided to the Senate Committee prior to the bills being heard in Committee meetings. Data Gathering Data requests were sent by FSU to four Florida agencies (FDC, FDLE, OSCA, and EDR). The acquisition of data from all four agencies was integral to the building of a data repository. After obtaining the data, the research team analyzed each data file to determine potential uses and limitations. The data repository contained information on individuals’ sex, age, race, ethnicity, arrest, charges, court processing, and probation, jail, and prison sentences. Importantly, ethnicity information was available only in the data from FDC and EDR—the other Florida agencies did not collect or report ethnicity information. The primary limitation of the data was that they were not designed to be integrated and did not contain a common unique ID variable. Therefore, it was not possible to link the four data files, and, as a result, the research team chose the single most appropriate data source for each racial and ethnic impact statement provided to the Senate Committee. For example, data from FDLE was used to evaluate the racial and ethnic impact of a DUI diversion program because FDLE’s dataset included a unique identifier for tracking prior record

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whereas OSCA’s dataset did not allow for prior record tracking. The four datasets are described below. 1. Demographic Data (EDR). Data from EDR was used to gather demographic information, including population data by age, gender, race, and ethnicity. EDR data was used to obtain counts and forecasts of the Florida adult population, ages 18–59, by race and ethnicity, which served as the denominator for the criminal justice system rates. 2. Offender-Based Transaction System (OBTS-OSCA). OBTS is a transaction-­ based dataset administered by OSCA. The OBTS dataset contains information on court processing of felony and misdemeanor charges, including initial filing (i.e., arrests, notices to appear), prosecutorial, court, and sentencing phases. Demographic information in the OBTS data includes age, gender, and race, but not ethnicity. This dataset was used as the primary source for arrest, probation, and jail data. 3. Computerized Criminal History (CHH-FDLE). Data from FDLE served as an alternative to OSCA.  The CHH data from FDLE contains information on charges processed by the agency in which a fingerprint was obtained. The data includes information about arrest charges, prosecutorial decisions, court processing, and sentencing and demographic information on age, gender, and race, but not ethnicity. One benefit of the FDLE data over OSCA was the inclusion of a unique individual ID, which allowed prior record to be included in the analyses. 4. Correctional Data (FDC). The fourth dataset contained correctional data from FDC, which includes information on individuals admitted to prisons and state probation from 1980 to 2019. The information obtained includes correctional admissions and releases, including demographic information on race, ethnicity, gender, and age. Information was also obtained for individuals sentenced under the sentencing guidelines from 1998 to 2018. All FDC data included a unique encrypted identifier to each individual, allowing information to be tracked over time. An expansive criminal justice literature repository was also developed to assist in identifying evidence-based policies and practices in criminal justice related to racial and ethnic bias. The literature repository included research on bias at different criminal justice stages (e.g., arrests, conviction, and sentencing), prior criminal justice policy analyses, theories of racial and ethnic bias in criminal and juvenile justice, costs of the criminal justice system (e.g., crime and crime control), and studies of differential offending by race and ethnicity. This literature repository was especially useful in developing the prior research and other state practices sections of the individual racial and ethnic impact statements. Additionally, the literature review highlighted the lack of published studies on the racial and ethnic impact of proposed or enacted criminal justice reforms, despite several states having created recent legislation requiring racial and ethnic impact statements.

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Project Implementation Team Meetings Team meetings were an integral part of the project implementation process. Throughout the duration of the project, the research team met once and often twice a week to discuss current progress and next steps. Initial meetings involved legislative staff and college faculty to establish the logistics, overall approach, and structure for producing the racial and ethnic impact statements. Twenty-two college faculty members participated in these meetings in an effort to prepare the statewide data repository and to prepare various methods for its possible use during the legislative session. The meetings with legislative staff were particularly important in the development of the initial presentation to the Senate Committee. Specifically, the legislative staff provided guidance on what information was most important to the Senators and provided feedback on the clarity of the information. Additionally, the legislative staff helped inform us of the intricacies of Florida’s legislative process. Team meetings also played a substantial role during the development of the racial and ethnic impact statements. During this phase, the research team met at least once per week to discuss data updates, to review the proposed bills, discuss analytic plans, provide literature summaries, and discuss progress on the impact statements. Importantly, the frequency of our meetings increased with the reception of our first set of bills. Once a set of bills was received from the Senate Committee, a meeting was immediately scheduled for the following business day to review the bill(s) and discuss and agree upon the analytic plan for the impact statements. Records of meeting minutes were kept for all meetings. Project Outcomes Comprehensive Presentation to the Senate Committee  The first deliverable of the project was a presentation to the Senate Committee regarding Florida population and criminal justice trends and forecasts. The purpose of the presentation was to provide the Senate Committee with trends and forecasts of Florida’s population, arrests, probation and jail sentences for misdemeanors and felonies, and prison admissions. These trends and forecasts provided the Committee with an overview of the current and projected racial and ethnic disparities within Florida’s criminal justice system. All trends were based on data from 2009 to 2018 (10 years) and all forecasts were from 2019 to 2023 (5 years). Trends and forecasts were calculated as a rate per 10,000 of the Florida resident population ages 18–59. The forecasts were generated using ARIMA (AutoRegressive Integrated Moving Average) models. ARIMA estimations provide the structure of the relationship between the values of the series over time and generate predictions of the future values of the series. Forecasts were

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based on monthly counts of the criminal justice outcome of interest. Rates by year were then constructed using the forecasts and the official population projections from EDR (Blomberg & Brancale, 2019). The validity of the forecasting methodology was presented to the Senate Committee by showing trends for misdemeanor and felony arrests from 2004 to 2013 and forecasts from 2014 to 2018 and comparing the forecasts to actual arrest trends from 2014 to 2018. As an example, the trend and forecast rates for felony arrests are shown in Fig. 13.1.1 The validation procedure demonstrated the forecasts among White individuals closely followed the actual trend. The forecasts among Black individuals captured the overall decline in arrests but did not capture the steep declines followed by slight increases in 2016. Despite some fluctuations in the forecasts for Black individuals, the validation analyses showed their value and the overall accuracy of the methods. After demonstrating the validation procedures, Florida population trends and forecasts were presented to the Senate Committee. As shown in Fig.  13.2, the Hispanic population in Florida is the fastest growing ethnic group among the Florida adult population. Additionally, Florida has the largest percentage of population over the age of 65  in the US, and this age group is the fastest growing age cohort in Florida. Furthermore, 18–24 year olds, who are the most likely to offend, account for 9% of the Florida population, and other age groups are forecast to increase at a greater rate. Thus, the age composition is reflected in observed declines in crime and sanctions.

Fig. 13.1  Forecast accuracy for felony arrest rate trends 2004–2013 and forecasts 2014–2018  Figures 13.1, 13.2, 13.3, 13.4, and 13.5 were prepared by Florida State University College of Criminology and Criminal Justice and presented to the Florida Senate Criminal Justice Committee on November 5, 2019. 1

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Fig. 13.2  Florida population demographic trends, by race and ethnicity, from 2009 to 2018 and forecasts from 2019 to 2023

Trends and forecasts were also presented for misdemeanor and felony arrests, jail sentences, and prison admissions by race (and race/ethnicity when available). Trends and forecasts for felony arrests and jail sentences and total prison admissions are shown in Figs.  13.3, 13.4, and 13.5, respectively. The three trend and forecast models demonstrated an overall disparity, with Black Floridians more likely than White and Hispanic Floridians to be arrested and incarcerated in Florida’s jails and prisons. Additionally, despite the forecasted decline in arrests, jail sentences, and prison admissions, disparity was likely to remain. Submission of the Racial and Ethnic Impact Statements  FSU received ten criminal justice bills from the Senate Committee and racial and ethnic impact statements were developed for each bill. Numerous mechanisms went into the development of the impact statements including team meetings, comprehensive reviews of the bills, reviews of relevant research literature, gathering information on other state practices, and conducting forecasting analyses. Team Meetings and Bill Reviews  Team meetings were integral to this partnership. During the development of the racial and ethnic impact statements, the research team consisted of seven faculty members and three graduate students. Upon receipt of the bills for analyses, the research team met to discuss each bill’s intent, to identify the dataset best suited for the analyses, and decide upon the specific analytic strategy.

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Fig. 13.3  Felony arrest trends from 2009 to 2018 and forecasts from 2019 to 2023

Fig. 13.4  Felony jail sentence trends from 2009 to 2018 and forecasts from 2019 to 2023

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Fig. 13.5  Total prison admissions trends from 2009 to 2018 and forecasts from 2019 to 2023

Conducting Analyses  The primary focus of the impact statements was to identify the racial and ethnic impact of proposed legislation. The analytic methods used varied for each bill. For some bills, ARIMA modeling was used to forecast the potential impact and others used descriptive statistics to generate trends. The method used was largely dependent upon the availability of data and the requirements of the bill. In addition, integral components of the impact statements included concise literature reviews and overviews of practices/policies in other states related to the piece of legislation in question. Developing Impact Statements  The impact statements were generally brief, averaging three to four pages, as recommended by Senate Committee staff. The impact statements included an executive summary, a summary of the bill that highlighted the main intent of the bill and any qualifying and/or exclusionary eligibility criteria, a brief review of the literature and comparable legislation from other states, and descriptions of data, methods, and associated limitations. The final section was a specific and direct statement about the racial and ethnic impact that the proposed bill would have, if passed. See Supplemental Materials at the end of this chapter’s text for an example of a racial and ethnic impact statement that was submitted to the Senate Committee. Submitting the Statements and Attending Senate Committee Meetings  Complete racial and ethnic impact statements were submitted to the Staff Director of the Senate Committee at least 3 days prior to each bill being heard in session. Research

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team members then attended each Committee meeting in which the bills were being heard to answer any questions from Senators. Debriefing Senator Interviews  To determine the effectiveness of the racial and ethnic impact statements, interviews were conducted with the five Senators on the Committee following the end of the legislative session. Questions focused on whether the Senators found the racial and ethnic impact statements to be useful in their consideration of the pending legislation, which particular parts of the impact statements were most useful, which parts were not particularly useful, and if there were any areas not included that they would like to see included in the future. The timing of the receipt of the racial and ethnic impact statements by the Senators emerged as a common limitation throughout the interviews. Specifically, the Senators indicated that in order to maximize the usefulness of the research provided, they would have preferred to receive the impact statements much earlier in the legislative process. Moreover, the Senators suggested that the research team take a more proactive approach in the future by providing relevant research and impact statements prior to the start of the legislative session. The Senators believed that with a more proactive approach, the impact statements would have a much better chance at influencing bills while they are still being drafted, rather than after they had already been written. Another common suggestion was to schedule individual meetings with Senate Committee members prior to public meetings to provide briefings on the findings rather than presenting findings through written impact statements during the Committee meetings. As two of the Senators pointed out, Committee meetings are essentially for show; therefore, presenting research findings at the meetings was not the most useful strategy for impacting their respective policy decisions. Partnership Next Steps  To further institutionalize and increase the effectiveness of the RPP, FSU is planning to host annual Florida Criminal Justice Research and Policy Summits before the legislative session in an effort to take a more proactive approach. The annual summits will be designed to provide detailed Florida crime trends and forecasts to identify criminal justice policy and legislative priorities. Criminal justice professionals from across the state, including policymakers and practitioners, will be invited to attend. Crime trends and forecasts will be developed for all stages of the criminal justice system; namely, arrests, charging, plea agreements, convictions, probation, and jail and prison sentences in order to identify potential problem areas in need of review and possible policy actions. Additionally, evidence-based best practices will be shared with legislators and state- and local-­ criminal justice practitioners to confront any identified criminal justice problem areas with validated evidence-based policy responses.

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Conclusion In recent years, jurisdictions across the United States have been implementing criminal justice reform policies and practices. However, criminal justice change has remained slow and uneven. Prior research has recognized that if current reform efforts, such as decarceration and diversion, are to effectively confront issues in our criminal justice system empirical evidence must be used. RPPs have been shown to be a promising strategy for translating research into policy and practice (Blomberg, 2019). The RPP between FSU and the Florida Senate Criminal Justice Committee underscores the potential of data-driven policy analysis as a tool for evaluating the potential impact of proposed criminal justice legislation. Importantly, this type of RPP has the ability to draw attention to previously unforeseen challenges in criminal justice reform, in particular, in reform efforts that seek, for example, to address and mitigate racial and ethnic disparities in the criminal justice system. The focus of many of the bills FSU analyzed for the Senate Committee was on decarceration and diversion. Despite reducing the overall number of people in prison or the number subject to formal criminal justice system involvement, most of the bills would have had little to no impact on racial and ethnic disparities. This was found to be largely the result of various exclusionary eligibility criteria included in the bills’ provisions. For example, one of the bills sought to create a diversion program for first-time DUI offenders. Individuals who had at least one prior felony conviction for any offense or two prior misdemeanor convictions for any offenses (these exclusionary priors were not related to driving or alcohol offenses) were excluded from participation in the program. If passed, this bill would have substantially excluded many Black individuals because they were more likely to have prior, non-alcohol-related, convictions, which would have excluded them from eligibility in the diversion program. White individuals, who were less likely to have prior records, would be more likely to be diverted into the program. The racial and ethnic impact statement for this bill is provided in the Supplemental Materials at the end of this chapter’s text. In addition, it was found that legislation that aims to reduce overall prison populations would not always translate into reductions in racial and ethnic disparities. For example, several of the bills proposed to reduce the length of prison sentences for select groups of offenders. Although this would have reduced the overall number of individuals in Florida’s prisons, it would not have had a major impact on the racial and ethnic disparity of Florida’s prison population because of exclusionary eligibility criteria that disproportionately impact minorities. As documented in many of the racial and ethnic impact statements provided by FSU for the Senate Committee, criminal justice reform legislation may not always have the intended effects and may, in some instances, create the unintended consequence of further disadvantaging minority populations. Therefore, in order to have a meaningful impact on racial and ethnic disparities, specific and nuanced legislation that employs a “target selection” approach and does not include criteria

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that would automatically exclude or disadvantage specific groups should be considered. This chapter has provided an overview of the prior relevant literature on evidence-­ based criminal justice reform through the use of RPPs and described a unique partnership between researchers and legislative policymakers. Important lessons learned and recommendations for future RPPs with legislators include the importance of timing and relationships. RPPs can provide policymakers and practitioners with timely research and evidence-based recommendations. Importantly, if incorporated as part of the development of legislation, researchers can assist policymakers by providing evidence-based options and likely outcomes before reforms are implemented. Thus, RPPs should be used more frequently as policymakers and practitioners continue to work toward system-wide reform that would produce a more fair, equitable, just, and effective criminal justice system.

 upplemental Material: Example Racial/Ethnic S Impact Statement Racial/Ethnic Impact Statement SB1396 Prepared by Florida State University College of Criminology and Criminal Justice For The Florida Senate Criminal Justice Committee

Contributors William D. Bales, Thomas G. Blomberg, Julie Brancale, Susan Burton, Jonathan Caswell, Cecilia Chouhy, Natalie Edwards-Heller, Carrington Estes, Kaylee Fitzpatrick, George B. Pesta, Sonja Siennick, and Nicolas Swagar.

Executive Summary SB1396 creates s. 316.19395, F.S., which requires each judicial circuit to establish a Driving Under the Influence (DUI) Diversion Pilot Program. Prior research on DUI diversion programs has found that the programs generally reduce rates of recidivism among participants. Importantly, research has also found that White individuals are more likely to be eligible to participate in the programs than are other racial/ethnic groups. Using data from the Florida Department of Law Enforcement (FDLE), it was found that White individuals are more likely to be charged with a DUI, but also that a greater percentage of White individuals would be eligible for participation in the DUI diversion program. The observed racial

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disparity in program participation eligibility can be attributed to Black DUI offenders being more likely than White DUI offenders to have prior felony and misdemeanor convictions. Therefore, although DUI offending rates are higher among White individuals, this bill may contribute to some racial disparity in the punishment for this offense.

Bill Summary SB1396 creates s. 316.19395, F.S., which requires each judicial circuit to establish a DUI Diversion Pilot Program that would be operated by the circuit’s state attorney’s office. The bill would require that individuals who complete the program be offered a plea agreement for a charge of reckless driving and provides for the withholding of adjudication. The bill also authorizes the state attorney to discharge a person from the program for failing to comply with the program’s requirements and pursue prosecution for the DUI offense. To successfully complete the program, participants would be required to remain in the program for 12 months and must not be in possession of, or consume, drugs or alcohol. Participants would also be required to complete community service, attend a substance abuse course, participate in a victim impact panel session or class, pay all fines and imposed costs, submit to mandatory vehicle impoundment for 10 days, and use an ignition interlock device for a specified period of time. Individuals will be eligible for participation in the program if: 1. They have not been charged with a prior alcohol- or drug-related criminal traffic offense, regardless of disposition; 2. They do not have a prior or pending felony conviction; 3. They have no more than two prior misdemeanor convictions; 4. They have not been involved in a vehicle crash or accident related to a charge of driving under the influence; 5. They were not, at the time of the offense, accompanied in the vehicle by a person under 18 years of age; 6. They did not, at the time of the offense, have a blood alcohol level or breath-­ alcohol level of 0.20 or higher; 7. They have not previously participated in the pilot program.

Comparable Legislation and Prior Research Seven states offer statewide DUI diversion programs similar to the program proposed in SB1396; namely, Georgia, Indiana, Kansas, Louisiana, Oregon, Pennsylvania, and Texas. The programs in these states require some combination of drug treatment, community service, temporary suspension of driving privileges, and

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the use of an ignition interlock device. The seven statewide programs, as well as three countywide programs in Florida, are described below. It is important to note that Pennsylvania’s program is the only program that has been evaluated for effectiveness and potential racial/ethnic disparities. Georgia’s (O.C.G.A. 15-18-80) program is not a formal DUI diversion program, but individuals who are charged with DUI can be eligible for diversion under the state’s general first-time offense diversion program. The program requires 6–9 months of supervision, community service, and participation in counseling or education programming. Specific program requirements are negotiated with each district’s Diversion Coordinator and District Attorney. Indiana’s (Indiana Code 33-39-8-5(c)) program allows for the diversion of DUI cases at the discretion of the prosecutor. The program excludes individuals whose DUI offenses involved injury or death, DUI cases where the driver holds a commercial license or was operating a commercial vehicle, and individuals who had passengers younger than 18 in the vehicle at the time, had previous convictions for DUI or drug offenses, or had a blood alcohol level exceeding 0.15. The requirements for completion of the program vary by the case at the discretion of the prosecutor but generally include participation in drug treatment and driver education programs. Kansas’ (K.S.A 22-2906) program allows for the diversion of individuals charged with a DUI whose blood alcohol level was less than 0.24. In addition, the individual must not have had a passenger under 14 or been driving on a suspended license. Kansas allows the local district attorney to mandate additional conditions for program participation, including, but not limited to, community service, counseling, and employment. Louisiana’s (Louisiana Revised Statute 14.98) program allows for the diversion of individuals with blood alcohol levels less than 0.10. It is notably not restricted to first-time offenders; however, those convicted of four or more previous offenses are excluded from eligibility. Requirements to participate in the diversion program are set by each parish; however, most require a 1 year participation period in counseling, community service, and victim impact panels, along with the use of an ignition interlock device. Oregon’s (O.R.S 813.215) program allows for the diversion of individuals with no prior DUI or drug convictions, no prior participation in a DUI or drug diversion program, no prior felony convictions, and cases where no accident, crash, death, or serious bodily injury was committed during the offense, the driver was not a commercial driver or operating a commercial vehicle, and the court determines the person would be a good candidate for the program. Participants are required to be in the program for 12 months, during which time they are required to complete drug/ substance treatment courses and use an ignition interlock device. Pennsylvania’s (Pennsylvania Code Title 234, Rule 300) program is part of the state’s Accelerated Rehabilitative Disposition (ARD) program. ARD is a pretrial diversion program for first-time nonviolent offenders. Participants must be approved for participation by the local district attorney and generally must complete drug or alcohol treatment at a facility, complete a driving safety course, and accept a license

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suspension. The local district attorney may stipulate other conditions, such as community service, or an ignition impairment device. Texas’ (Texas Code of Criminal Procedure Art. 16.23) program allows counties and courts to make the determination as to appropriate requirements for each case. Common requirements for participation are no previous criminal history, DUI offenses that did not involve passengers who are minors, and DUI offenses that did not result in injury or death. The requirements for completion of the program depend on the jurisdiction, but usually include drug treatment, community service, fines, and use of an ignition interlock device. Orange County, Florida’s diversion program requires participants to meet the following conditions: no more than two prior misdemeanor convictions, no related crash or accident in the course of the DUI offense, and a blood alcohol level not exceeding 0.22. The county requires the Office of the State Attorney to approve program participants. Participants are required to participate in victim impact classes and substance abuse treatment, and to submit to 10  days of vehicle impoundment and 2–6 months of ignition interlock device use. Palm Beach County, Florida’s diversion program requires participants to meet the following conditions: no prior commissions of similar offenses, a blood alcohol level below 0.20 at the time of arrest, no minors in the car at the time of the DUI arrest, no accident in the course of the DUI, no prior prison time served, not driving without a license or on a suspended/revoked license at the time of the DUI, and no drug charges accompanying the DUI arrest. The program requires participants to complete 20 h of community service, DUI school, a victim impact panel, and use an ignition inhibition device for a variable amount of months based on the participant’s blood alcohol level at the time of arrest. Miami-Dade County, Florida’s diversion program requires participants to meet the following conditions: no more than one previous nonviolent felony conviction or two misdemeanor convictions, no more than one previous participation in a diversion program, no minors in the vehicle at the time of arrest, no accident related to the DUI, and the offender was not driving with a suspended/revoked license. Individuals who had a blood alcohol level below 0.15 are required to complete 6–9  months in the program, DUI school, substance abuse counseling, 40  h of community service, and a victim impact class. Those with a blood alcohol level above 0.15 are required to complete 12 months in the program, 60 h of community service, DUI school, substance abuse counseling, a victim impact class, and 6 months with an ignition interlock device. Prior research has found that rates of DUI vary across racial and ethnic groups. For example, the U.S.  Department of Transportation, National Highway Traffic Safety Administration (2010) found that Native American and White drivers were the most at risk for alcohol impaired driving. Similarly, self-reported rates of DUI are highest among White males, followed by Native American males, and then mixed-race males (Caetano & McGrath, 2005). Prior research has generally found that DUI diversion programs reduce recidivism and/or extend the time between completion and recidivism (for example, Knoth & Ruback, 2019; Lucker & Osti, 1997; Miller et al., 2015; Rivolta, 2013).

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However, the programs typically contain multiple components or requirements and research has not determined which component or component combination is most effective. A limited amount of research has examined the racial/ethnic differences among eligible program participants and program completers. Knoth and Ruback (2019) caution that participation in these programs may be biased toward specific groups based on gender, age, and race. In their study of Pennsylvania’s statewide diversion program, the authors found that women, older offenders, those with fewer prior arrests, those with lower blood alcohol levels at the time of arrest, and White individuals were more likely to participate in the diversion program. Very importantly, participation in the program generally resulted in lower rates of recidivism across all gender and ethnicity groups.

Data and Methods for Racial/Ethnic Impact Forecast Data from FDLE were used to prepare this racial/ethnic impact statement. Individuals who were charged with a DUI offense under s. 316.193, F.S. for the first time between 2014 and 2018 and had no DUI charges, felony convictions, and no more than 2 misdemeanor convictions over the past 5 years were included in the analyses. Due to data limitations, we were required to restrict the number of years in which we were able to identify prior felonies and misdemeanors. Further, the available data did not allow us to consider the individual’s blood alcohol level, age of passengers in the car, or whether the DUI resulted in a crash or accident. Therefore, our analyses may capture some individuals who would not be eligible for participation in the diversion program. It is important to note that the analyses in this impact statement show racial disparities among individuals with DUI charges who would be eligible for participation in the diversion program. We will be unable to assess racial differences among individuals who participate in and complete the DUI diversion program until after the program has been implemented.

Results From 2014 to 2018, more White individuals were charged DUI offenses than were Black individuals. Graph 13.1 shows the rates of DUI charges per 10,000 Florida residents. In 2018, 12.3 White individuals per 10,000 White Florida residents were charged with a DUI offense whereas 10.7 Black individuals per 10,000 Black Florida residents were charged with a DUI offense. In 2018, there were 18,323 Black and White individuals charged with a DUI offense. Of those, 15,772 were first-time offenders with no prior felony convictions and no more than two prior misdemeanor convictions. During the same year, 87% of White DUI offenders would have been eligible for the DUI diversion program, compared with 81% of Black DUI offenders. Table 13.1 provides the total number

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Graph 13.1  Rates of DUI charges, by race Table 13.1  Total DUI charges and total individuals eligible for diversion, by year and race

Year 2014 2015 2016 2017 2018 Total

White DUI offenders Total Eligible for DUI diversion 16,204 13,968 15,769 13,588 14,608 12,533 14,767 12,859 15,782 13,713 77,130 66,661

Percent eligible 86 86 86 87 87 86

Black DUI offenders Total Eligible for DUI diversion 2,279 1,793 2,056 1,645 2,020 1,605 2,296 1,852 2,541 2,059 11,192 8,954

Percent eligible 79 80 79 81 81 80

of DUI charges, the total number of individuals who would be eligible for participation in the DUI diversion program (those who had no prior DUI charges, felony convictions, and no more than two misdemeanors), and the percent of total offenders who would be eligible for the past 5 years. As shown, each year, most DUI offenders, regardless of their race, would be eligible for participation in the proposed DUI diversion program; however, a smaller percentage of Black offenders than White offenders would be eligible. White individuals are more likely than Black individuals to be charged with a DUI and more likely to be eligible for participation

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in the program. The observed racial disparity in the eligibility for program participation can be attributed to Black DUI offenders being more likely than White DUI offenders to have prior felony and misdemeanor convictions.

Racial/Ethnic Impact Statement for the Bill SB1396 creates s. 316.19395, F.S., which requires each judicial circuit to establish a DUI Diversion Pilot Program. Prior research on DUI diversion programs has found that the programs generally reduce rates of recidivism among participants. Importantly, research has also found that White individuals are more likely to be eligible to participate in the programs than are other racial/ethnic groups. Using data from FDLE, it was found that White individuals have higher DUI offending rates than Black individuals, but also a greater percentage of White individuals would be eligible for participation in the DUI diversion program. The observed racial disparity in program participation eligibility can be attributed to Black DUI offenders being more likely than White DUI offenders to have prior convictions. Therefore, although DUI offending rates are higher among White individuals, this bill may contribute to some racial disparity in the punishment of this offense given that Black DUI offenders are more likely to have prior felony and misdemeanor convictions that would disqualify them from participation in the proposed DUI Diversion Pilot Program.

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Part III

Supervision and Reentry

Chapter 14

The History of Probation and Parole Karol Lucken

Abstract  Probation and parole have a rich history. That history is interesting not only for its own sake but for the sake of assessing probation and parole today. Both practices have often been cast as mere alternatives to or extensions of the prison, however, their place in the assembly of penal sanctions predates and is integral to the functioning of the prison and criminal justice more broadly. This chapter chronicles the origins of probation and parole, highlighting the actors, rationales, and problems associated with their development. The roots of probation begin in Colonial America, while the roots of parole coincide with the arrival of the penitentiary. In the early twentieth century, or what is known as the Progressive Era, the ambitious agenda of probation and parole is most fully conceived. Both practices emerge from this reform process as key pillars of the correctional system and the rehabilitation platform. Keywords  Probation · Parole · History · Community supervision · Progressivism · Pardons · Bail Efforts to turn back many of the strategies of the “get-tough” era have been underway in the US for more than a decade. An area of criminal justice that has been especially impacted by these efforts has been the adult correctional system. While no single law or practice has defined this call for change in corrections, two policy aims are apparent. They are the reduction of prison populations and the promotion of offender reentry. Community-based supervision has been pivotal in the realization of these aims. Specifically, probation and parole agencies have had significant roles to play in supporting offender reentry and decreasing, or at least flattening, prison admissions. Parole agencies oversee the postprison supervision of offenders and are therefore a resource and a watchman in a difficult reentry process. Probation and parole K. Lucken (*) University of Central Florida, Orlando, FL, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_14

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agencies also have the capacity to decrease prison admissions. This can be achieved through supervision strategies that reduce offender recidivism and/or the number of technical violations issued. As probation and parole systems across the country continue to undergo a change in support of these aims, an examination of the history of probation and parole might seem out of place. Why investigate the past when there is no shortage of problems and transformations occurring in the present? Moreover, what can historical accounts of probation and parole offer to contemporary decision-makers in the way of evidence or insight? Answers to these questions require a fuller understanding of historical offerings. For instance, history, by definition, is evidence-based. Historical accounts consist of the documentation of actual events, statistical records, and other factual archival information. Historical accounts also reveal that some variation of modern-day practices can be easily located in previous decades or even centuries. Consequently, a vast repository of ideas, arguments, and empirical data can be found on a range of penal strategies. Finally, history establishes an empirical benchmark for that proverbial aspiration called progress. No matter how change or progress is defined, its measurement can only be achieved by consulting the past. This chapter examines the history of probation and parole across several dimensions. The first dimension is the origins of both practices, including the contexts, rationales, and actors associated with their development. A second dimension is the primary operational features and outcomes of probation and parole from their inception to the early part of the twentieth century. The final dimension concerns the implications of this historical knowledge for current probation and parole systems.

Probation and Parole: A Basic Introduction Before examining the individual histories of probation and parole, it is helpful to consider certain fundamentals about their meaning. One such fundamental is that probation and parole are not interchangeable terms. This elementary fact is worth punctuating as confusion over these terms, and the practices they represent, has been longstanding. This is illustrated in a 1910 report of the American Institute of Criminal Law and Criminology, which stated that “so much confusion exists in the use of these terms that it is necessary so to define them ….” (Bolster, 1910, p. 438). The persistence of this confusion is seen nearly two decades later at the 1928 National Probation Association meeting. Here, the General Secretary opened his address, stating “It is still necessary in discussing probation to define it, to say what it is and is not… Probation should always be distinguished from parole....” (Chute, 1928, p. 136). Confusion over these terms is perhaps even more legitimate today. Both probation and parole involve supervision in the community and often by the same group of professionals. Ever-changing laws governing their use have also blurred the distinctions, as in the case of a split-sentence. A split-sentence is a

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sentence prescribed by the court that involves a fixed term of prison with a predetermined release date followed by a fixed term of probation. Probation and parole are differentiated primarily by their function. Probation is intended to function as an alternative to incarceration. The general rationale underlying probation is that there are cases where neither the offense nor the offender warrants incarceration. In these cases, the court sentences the offender to a fixed term of supervision in the community instead of jail or prison. To the extent a custodial sanction is the presumptive sentence, probation can be loosely interpreted as an act of mercy bestowed by the court. Parole functions as an extension of prison or rather a conditional release from prison. That release is contingent upon several factors, including the offender’s behavior in prison, evidence of their reform, and the risk they pose to the community. Eligibility for release begins after an inmate has served the minimum amount of time in prison dictated by the [indeterminate] sentence. If this minimum amount of time has been served and the parole board determines that release is warranted, parole supervision in the community ensues for the remainder of the original prison sentence. Parole supervision can be revoked however upon commission of a new offense or rule infraction. Though the difference in the functionality of probation and parole is significant, an equally significant thread unites these supervision modalities. That thread is their social and theoretical roots. Probation and parole statutes were implemented under the aegis of the Progressive Era and a philosophy of rehabilitation. This era was designated for the grassroots social and political campaign (Progressivism) that flourished between the 1890s and 1920s. As American cities faced new levels of crime, poverty, suicide, and disease, Progressivism sought to address these problems through government intervention. A central tenet of Progressivism, then, was the expansion of government assistance and oversight into purely domestic affairs. Progressive ideology also held that the scientific community should inform the government’s response to domestic problems. Crime, for example, would be remedied through the combined efforts of government and social-behavioral research. Ideally, the offender would be “corrected” under the care of the state, using the latest psychological, biological, and sociological knowledge on criminal behavior. This diverse body of knowledge was deemed essential to a criminal justice system seeking to treat offenders according to their own “abnormal” circumstances. Social reformers even maintained that if offenders were in a “normal condition,” they would be incapable of dealing with the problem of crime (American Church Review, 1872). Out of this social, scientific, and political context, an ambitious penal reform agenda was conceived. That agenda included, but was not limited to, probation and parole. Shaped by the promises of science and Progressivism, probation and parole helped solidify the development of a multipronged “correctional” system. With that being said, the ideas of probation and parole did not just emerge in a Progressive era vacuum. Long before the turn of the twentieth century, some semblance of probation and parole was already being practiced.

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History of Probation “ Bailing on Probation”: Community Supervision in the American Colonies The notion of employing some form of community supervision or suspension of sentence in response to criminal activity dates to the 1700s. Historical records in Philadelphia, New  York, Delaware, and Virginia show that throughout the eighteenth century, the use of “bonds,” “securities,” or “recognizances” was not uncommon. These variously termed judicial options were essentially a form of bail that was utilized for several mainstream offenses (e.g., public drunkenness, adultery, and stealing; Friedman, 1993). If the “bail” option was exercised by the judge, the criminal case was typically adjourned before a sentence was imposed (Chute, 1933). The defendant was released on bail (bonds/securities/recognizances), which, like today, was a financial payment to ensure the offender’s return to court. However, unlike today, bail was also imposed to ensure law-abiding behavior for a specified time after adjournment or conviction. The judge could order the offender to pay a portion of their bond/security and find a community member to pay the remaining portion. For example, a community member or surety (a person or persons who vouched for the offender) could be ordered to chip in to secure the offender’s good behavior for 12 months (Friedman, 1993). If the offender remained law-abiding during that period, the bond would be voided or rather returned to the parties in full (Friedman, 1993). When used in this capacity, bonds could serve as a stand-alone requirement or be combined with other sanctions, such as fines, whippings, or restitution. Because Colonial communities were generally on alert for misconduct and fleeing to another community was not always feasible due to “admission requirements” (e.g., proof of good standing), bond forfeitures and absconding by the offender were probably rare. However, the short- or long-term effectiveness of the “bail” option is not generally known. What is known is that a notably different penal mindset was exhibited in this practice. By and large, Colonial American punishment was conditioned by retributive thinking. The dominant sanctions of the day (whipping, shaming, fines) focused on atoning for the wrong done and were relatively momentary in duration. The surety/bond system departed from this philosophy by seeking to secure good behavior in the future through a financially leveraged monitoring of the offender. The idea of a community member paying for and supervising an offender might seem outlandish to the contemporary observer. Yet, this show of collective responsibility was consistent with Colonial American needs and values. Small, close-knit communities placed a high premium on interdependence, both for survival and religious purposes. Put simply, residents were expected to care for and keep watch over their neighbors. A surety’s or community member’s financial stake in the offender’s behavior merely reinforced an existing community standard.

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The surety/bond practice and modern-day probation have many features in common. One main overlapping feature is the suspension of the full force of the law. A second shared feature is the offender’s contribution to the cost of their supervision and the involvement of some other person that is accountable for the offender. Lastly, both practices feature the coupling of supervision with other sanctions, such as restitution or a fine. The use of bonds/securities is manifestly different from modern-day probation in that the supervision itself was not technically a sentence or punishment. The period of supervision or rather suspension of the sentence was for the purpose of “proving” oneself, such that no “real” punishment would need to be imposed later; this explains the policy of returning monies upon successful completion. This Colonial practice was also unique in that it was occasionally used on those acquitted by the court (Friedman, 1993). Despite a jury verdict of “not guilty,” a judge could still order the bail supervision option if they were unconvinced of the offender’s innocence (Friedman, 1993).

 robation as Charitable Work: Community Supervision P in the New America A second stage in the evolution of the probation concept emerged in the first half of the nineteenth century. As a new and increasingly prosperous independent nation, Americans were confident and optimistic about their future. However, they were also trepidatious. In the decades following 1820, anxiety over a surging immigration population permeated larger cities. A Boston newspaper captured this anxiety when reporting that Bostonians feared that the “wave of misery and vice which is pouring from revolutionized Europe upon our shores, should overflow the dikes of liberty and justice, and sweep away the most precious of our institutions” (Charles Elliott Norton, as cited in Vale, 2000, p. 60). The atmosphere of moral panic ultimately gave way to a revolution in social practice (Vale, 2000). Bostonians, New Yorkers, and Philadelphians spearheaded a movement that advocated institutional, albeit philanthropic, solutions to problem populations. What resulted were penitentiaries for the criminal, asylums for the insane, almshouses for the poor, and orphanages for neglected and abandoned children. It was widely theorized that almost any ailment of society could be cured through moral reformation in a vice-free well-ordered institution (Rothman, 1980). The notion that human intervention could alter the fate of individuals inspired the development of not only asylums and institutions, but numerous charitable associations. These associations sought to correct an assortment of moral vices, such as alcoholism, gambling, and prostitution (Blomberg & Lucken, 2010). In fact, travelers from abroad frequently commented that America was a land of religious and benevolent associations. This charitable zeal was so obvious that Americans were labeled as “neurotic do-gooders” by European observers (Vale, 2000).

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This “do-gooder” trait was personified in Boston resident and shoemaker John Augustus. In 1841, he established and grew what can only be described as a more charitable version of bonds or securities. Augustus replicated this Colonial practice by personally posting bail and then monitoring those he invested in financially. For example, the courts charged Augustus 30 dollars’ bail for 30 days’ suspension of sentence, and then reduced the charge to one cent and court costs if the probationer did not reoffend during that time (Friedman, 1993). However, Augustus’ work went beyond the Colonial version of probation in three important respects. First, he took the idea of community supervision into the realm of an alternative to incarceration. He paid bonds/sureties for those who were headed for the house of corrections, an institution for the able-bodied poor that did not exist in Colonial America. He also adapted his manner of supervision to the zeitgeist of the era. This “guardian angel,” as he was called, did not just monitor his financial investment, he sought to help and transform his charges. Finally, he [initially] single-handedly supervised all referrals from the court, taking on a caseload of enormous proportion. Records indicate that the number of times Augustus intervened on an offender’s behalf numbered in the thousands. Between 1841 and 1859, he posted bail and volunteered to act as the personal guardian for 2000 offenders (Friedman, 1993). At the time of his death in 1859, he had posted bond (though not necessarily served as guardian) for 1152 men, 794 women, and about 3000 girls (Duffee, 1989). Just how able a helper Augustus was in these cases cannot be known for sure. His work was voluntary and thus shielded from the kind of scrutiny given to sanctions directly administered by the state. However, if workload and legacy are any indication of success, then his efforts were arguably effective on some level. The supervision arrangements he provided were not roundly denounced or discontinued by judges or other officials of the day. On the contrary, numerous members of the Boston community had begun to follow his lead before and well after his death. His bail-to-supervision movement eventually became so popular, that a paid probation officer position in the county’s criminal courts was instituted in 1878. The practice was authorized statewide in Massachusetts in 1891 (Friedman, 1993). Throughout the 1890s, Augustus’ model was adopted in various forms in other states. For example, Michigan (1885), New York (1893), Maryland (1894), Missouri (1897), Vermont (1898), Minnesota (1899), Rhode Island (1900), and New Jersey (1901) all followed the lead of Massachusetts by implementing their own probation systems (Barnes, 1972). So widespread was his influence [even abroad], that well-­ known probation advocate Lillian Le Mesurier declared that the idea of releasing offenders to supervision as an alternative to punishment was clearly the invention of the US (Le Mesurier, 1935). Augustus’ model served as the impetus for probation’s development in numerous countries, such as New Zealand, Australia, Portugal, Canada, Belgium, Luxemburg, Greece, Uruguay, Norway, and Germany (Vanstone, 2008). Admittedly, the replications of this “invention” across this country and elsewhere were haphazard. After all, the formalization of community supervision as a statewide or nationwide legislatively authorized alternative sentence was unprecedented. 

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The contributions of John Augustus have been lauded recently by criminologist Maurice Vanstone (2008). He argues that Augustus’ work, though often overlooked by social theorists and historians, was vital to the development of probation as we understand it today. Vanstone (2008) maintains that there were certain “strands” within Augustus’ work that advanced the integration of probation into the modern legal system. He characterized those strands as “humanistic and befriending.”

 rogressive Probation: Community Supervision in the Early P Twentieth Century Despite Augustus’ furtherance of the probation idea, the dominant story of probation’s origins lay elsewhere. The story resides in two seminal events, namely the Progressive movement and the development of the social sciences. As mentioned previously, Progressivism sought to expand government responsibility for a host of domestic problems. Social-behavioral scientists, in effect, aided this new responsibility by studying the factors that caused or contributed to these problems. This new iteration of probation was driven by the science of the individual and the belief that “no person, no matter whatever his age or past record, should be assumed to be incapable of improvement” (Mulready, 1912, p. 634). Based on this assumption, courts were to consider several factors when meting out sanctions. They were to consider the individual circumstances of the case and make the punishment fit the criminal instead of the crime. Courts were also expected to provide guidance and a climate of support to the offender’s rehabilitation (Chute, 1935). Probation was even considered “the most important step” taken in the “individual treatment of the offender” (Report on Penal Institutions, 1931, p. 173; as cited in Chute, 1933). In effect, probation was not just a sanction, it was the method of treatment. This conception of probation was illustrated in the words of the General Secretary of the National Probation Association in 1935: The probation treatment consists of, first, investigation for understanding of the factors in the individual case; second, a plan of supervision and friendly personal guidance designed to insure successful conduct. It requires competent probation officers employed by the court (Chute, 1935, p. 136). An essential task probation officers performed for the courts was advising judges on the offender’s suitability for probation. Suitability was typically based on the offender’s character and capacity for change rather than the offense committed. Though some eligibility criteria were imposed by states, statutes were generally very flexible concerning the criminal record. For example, eight states put no limits on probation eligibility; the number of prior offenses or severity of offense was irrelevant. Five states allowed all offenses, except those punishable by death or life imprisonment (Chute, 1933). Thirteen states were more restrictive, forbidding the use of probation when there was a previous felony conviction or term of incarceration. Still, other states had unusually specific eligibility criteria. For example, Iowa

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explicitly prohibited anyone with a venereal disease.  Conversely, North Carolina only allowed those with a venereal disease or a conviction of prostitution (Chute, 1933). The importance placed on the offender’s character and potential for reform in determining suitability for probation meant that probation officers were to be trained “not in the law but, … in the science and practice of social adjustment” (Chute, 1928, p.  137). This job qualification necessitated the ability to classify offenders using a life history of the offender. This thoroughgoing knowledge of the offender was to be obtained through the officer’s performance of a presentence investigation (PSI). PSIs compiled exhaustive details about the offender’s life, including their personal history (vital statistics, place of birth, residence, education, immigrant status), childhood experiences (truancy record, injuries, early associates, habits of indulgence, grudges, ambitions, parental control), family, (grandparents and sibling information, including education and causes of death), neighborhood and home situation (economic status, number of boarders, moral condition), and personality (Blomberg & Lucken, 2010). It was reasoned that comprehensive knowledge of the offender would enable probation officers to determine the causes of crime and therefore suitability for probation. This determination would then be forwarded to the judge in the form of a sentence recommendation. The second and more obvious task of the probation officer was supervisory. Probation was to be the means of normalizing the personality, pathologies, and habits of the offender. It was even believed that the very success of probation supervision rested on the personal qualifications and skill of the probation officer (Chute, 1933). Mary Richmond’s 1917 book Social Diagnosis set the standard in guiding this new group of professionals in the supervision of offenders. In their supervisory capacity, probation officers were to be many things at once, including policeman, social worker, and human behavior expert. Ostensibly educated in the social sciences, probation officers were to be gatherers of facts and capable of converting those facts into a customized treatment plan. This plan included regular contacts with the offender and contacts with the offender’s family, community, and employer. It also included the officer’s immersion in the life of their probationers, so they could mold them into “normal” and productive citizens. According to the wisdom of the reformers, the enormity of this task dictated that probation caseloads should not exceed 50 offenders (Rothman, 1980). As is the case with many legal reforms, the adoption of probation as a formal sanction was incremental and uneven. Adult probation developed legislatively in two-thirds of the states in just under 30 years (Chute, 1935). Initially, it was primarily an urban phenomenon; all major industrialized states and cities used probation regularly. In more rural states, such as Texas, Kentucky, Tennessee, the Dakotas, Nevada, and Wyoming, probation was rarely employed as a sanction option (Rothman, 1980). By 1930, approximately 36 states and Washington, D.C. had authorized the use of probation (Rothman, 1980). Yet, only 19 states used it on a routine basis (Barnes, 1972). The federal system of probation was authorized in 1925.

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In states where probation was more systematic in use, the growth in probation officers and referrals was continuous. The number of probation officers regularly appointed increased every year from 2656 in 1922 to 3955 in 1931 and to over 4000 by 1935 (Chute, 1935). The number of adults referred to probation in Massachusetts, for instance, increased every year from 13,084 in 1911 to 30,518 in 1931, amounting to roughly 25% of all convictions annually. In New York state, the number of adult offenders placed on probation increased every year as well, from 4941 in 1908 to 19,817 in 1932 (Chute, 1933). In the federal system, the use of probation also increased dramatically, from 4222 cases in 1930 to 28,419 cases by 1933. The consistent growth in the use of probation was no doubt aided by claims of success. For example, a 1915 annual report on adult probation in Philadelphia indicated that of the 1520 adult males placed on probation over 3 years, only 6% qualified as failures (Journal of Prison Discipline & Philanthropy, 1915). The report also computed the additional positive outcome of the average earnings of probationers for that year. In other state reports, data were provided on such measurables as the amount of costs, fines, and restitution collected from probationers. A 1907 report on the Massachusetts Probation System touted the cost savings attributed to probation: There has been a decrease of 1,478 in the average prison population between 1897, when it reached its highest point, and 1906 .... A proportionate increase in the prison population would have added 1,238 to the average, bringing the prison population up to 8,978, and the decrease would have been 2,716. The cost of food and clothing is somewhat in excess of a dollar a week. An estimate far below the actual cost of food and clothing shows a saving of at least $150,000 a year. This reduction of the prison population, and consequent saving in cost of supporting prisoners, has been due almost wholly to the growth of the probation system. (American Statistical Association 1907, p.  251–252, as cited in Vanstone, 2008, p. 746)

The reporting of positive outcomes did not mean that probation was a blanket success. Relative to the intention of the reformers of the day, it could be argued that probation fell short in many respects. For example, several county and state laws failed to prescribe the qualifications to be a probation officer; most appointments to the position were made at the sole discretion of the judge. Consequently, probation officers were rarely if ever trained or college educated in the new social sciences (Friedman, 1993). For instance, New  York’s occupational standards, which were considered above normal, required that one be between the ages of 21 and 60; be physically, mentally, and morally fit; and have a high school education or its equivalent. In the absence of uniform guidelines for hiring, probation officers everywhere were often untrained volunteers, political supporters of judges, state attorney and police personnel, and various other individuals lacking the credentials for affecting offenders’ lives. As one might expect, given the deficiencies in officer qualifications, the PSI was often deficient as well. What was intended to be a “scientific” report was often comprised of a few facts and much speculation about the offender. Officials of the day even described PSIs as “dossiers of gossip” (Rothman, 1980). Using this “gossip,” judges frequently granted probation based on evidence of good moral character and middle-class respectability. Not surprisingly, the best candidates for probation were

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often family men who already abstained from liquor, brothels, drugs, gambling, and other vices. The lack of specificity in laws governing probation also extended to the supervision function. Some states provided little or no guidance on the terms and conditions of probation. Laws governing probation were also vague with respect to officer duties and even the length of the offender’s supervision or the officer’s appointment by the court. When supervision guidance was provided, the general conditions were that offenders maintain employment; submit to monthly visits by the officer; support dependents; and refrain from alcohol, evil associates, places of ill-repute, smoking, and saloons (Rothman, 1980). Probation’s goal of rehabilitation was further weakened by the working conditions of probation officers. Officers were grouped together in one room where noise and crowding served as constant distractions to a meaningful interaction with offenders. Overwhelming caseloads also made the goal of individualized care improbable. In Newark, New Jersey, 37 probation officers were responsible for 5800 cases, amounting to approximately 150 cases per officer (Rothman, 1980). In Milwaukee, three officers were charged with the supervision of 839 offenders, yielding a caseload of nearly 280 offenders per officer (Rothman, 1980). Throughout the US, the typical caseload ranged from 100 to 500 offenders (Chute, 1935). Consequently, personal contact with offenders was rare and, in some jurisdictions, came to roughly 10 min a year (Rothman, 1980). In reality, the treatment of probation was little more than the enforcement of various kinds of abstinence and the collection of monthly reports. It is also noteworthy that probation often defaulted on its most basic function as a true alternative to prison. Though probation was conceived as an alternative to state imprisonment, this locally funded program was generally implemented as an alternative to local jail or receiving no sanction at all. This outcome is somewhat predictable when one considers that states required local jurisdictions to absorb the costs of supervising state-remanded offenders. Local jurisdictions responded by complying with the state mandate to use probation, but in a way that best met their own budgetary needs (Rothman, 1980). The early misapplication of probation began a longstanding tendency to implement community-based alternatives to incarceration as supplements. For example, the Director of the National Probation Association noted early on that the increase in the number of adults on probation in states where the practice was most organized and efficient (i.e., New York and Massachusetts) did not owe to an increase in crime. Indeed, statistics in these states showed “there is no clear evidence of this” (Chute, 1933, p. 68). It was suggested instead that the increase could be attributed to the “extension of probation service to more courts and its greater use” (Chute, 1933, p. 68).

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History of Parole  arly Release, “Free and Clear”: Pardons, Commutations, E and “Good-Time” Laws Parole was the Progressive era’s second reform involving community supervision. However, the antecedents of parole date back to the inception of the penitentiary. In or around the 1820s, when prison had emerged as the dominant sanction in the US, offenders were already being released months and sometimes years before the expiration of their sentence. Those administering the prison system quickly realized that the problem of institutional order was best managed by the offering of hope. Hope was viewed as a better inducement to the inmate’s “industry and obedience” than fear. The hope that was being offered was “some abridgment” of the term of incarceration (Wines, 1910). That abridgment took the form of a pardon or sentence commutation. Pardons were highly discretionary acts performed by a state’s governor. A pardon was akin to an act of grace or mercy and absolution of the offender’s guilt. A sentence commutation alternated between being awarded by a governor and regulated by the law, depending on the state. When regulated by law, the amount of time deducted from the sentence was based on a fixed scale and operated as a legal right. However, a commutation did not absolve the offender’s guilt or “wipe the slate clean.” Though different in concept and procedure, commutations and pardons each set the offender free without supervision to follow. Not unlike today, the privilege of being granted a pardon was usually reserved for the wealthy and well-connected. In the words of historian Lawrence Friedman, they could afford the attorneys that could “pry open the prison door” (1993, p. 162). However, historical records indicate that some form of early release (i.e., a pardon or sentence commutation) was also given to “ordinary” offenders, especially when conditions were dire. For example, in New York, hundreds of offenders were pardoned because there was no place to house them. In 1812, 740 inmates were pardoned. In 1813, 198 offenders were admitted and 134 of them were pardoned. In 1814, 213 offenders were admitted and 176 of them were pardoned. Between 1792 and 1822, 5069 offenders were admitted and 2819 were pardoned (Barnes, 1972). All in all, the problem of overcrowding meant that offenders typically completed no more than 50% of their prison sentence and often felt unduly wronged if they were not released early (Kuntz II, 1988). Given the frequency with which pardons were granted, they were widely criticized for being abused and nullifying the court’s authority (Lieber, 1851). Midway into the nineteenth century, sentence commutations evolved into “gain time” or “good-time” laws. Gain/good-time laws had been in use across various states since 1850, though most were implemented after 1850. By 1869, 23 states had passed some version of a “gain/good-time” law. Much like pardons and commutations, “good-time” laws also aided the pragmatic needs of the institution. The prospect of early release helped to control overcrowding and potentially unruly

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inmates, served as an alternative to corporal punishment, and assisted in motivating inmates who were unwilling to work. As the name suggests, these laws authorized time off an inmate’s sentence in accordance with good behavior. For example, under an Illinois law, it was possible for a well-behaved inmate to have a 24-month sentence reduced to a 17-month sentence and a 10-year term reduced to 6 years and 3 months (Friedman, 1993). By 1890, 38 states had enacted gain/good-time laws, increasing to 46 states by 1910. Overall, if no disciplinary infractions accrued, an inmate could serve approximately one-half to one-third of their sentence (Miller, 1980).

“Conditional Liberation”: Release on Parole Legislation authorizing parole increased rapidly throughout the US, even though pardons and gain/good-time laws were still in force. The argument supporting this growth was that parole was the superior method of release because offenders were still under the control of the correctional system, even if they were “out on the streets” (Friedman, 1993). By 1900, every reformatory for younger offenders (e.g., 16–26 year of age) had parole, and 20 states had parole laws for institutions other than the reformatory, namely penitentiaries. By 1910, 41 states had parole laws in place and by 1922, parole was used in 44 states (U. S. Department of Justice, 2003). By 1925, 46 out of the existing 48 states had parole laws in place. The exceptions to this rapid trend were Mississippi and Virginia, who finally adopted their laws by 1942 (Friedman, 1993). The actual use of parole was uneven, however. In active-use states, the percentage of all released inmates that were paroled exceeded 70% (Cahalan, 1986). This was the trend in 17 states in 1936. However, in the remaining less-active states, only 20–50% of all released inmates were paroled (Cahalan, 1986). Though parole release was permitted nearly everywhere and heavily utilized in certain states, supporters of parole were under continuous pressure to dispel misconceptions. Detractors had to be repeatedly convinced that parole was not an act of leniency, but a means of protecting the community (Bates, 1938). Advocates even suggested a change in the vernacular surrounding parole to calm public outcry. Sanford Bates, an esteemed Massachusetts corrections commissioner and first director of the Federal Bureau of Prisons, proposed that parole not be characterized as something that was being “granted,” but as something to which the offender must be “subjected” (Bates, 1938). The idea of parole was carried into practice in large part by the indeterminate sentence. Though technically distinct in “thought and law,” parole and the indeterminate sentence were “vitally related to one another as component parts of an advanced prison system” (Wines, 1910, p. 36). The indeterminate sentence created a structure whereby release decisions could be made based on the rehabilitative progress of the offender. This individualized release process stood in contrast to the

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prior system of determinate sentencing, where the term of imprisonment was fixed in advance by law based on the gravity of the offense committed. An indeterminate sentencing structure required that judges only set a minimum and maximum amount of time to be served in prison. In its most extreme form, a sentence could range from a minimum of 1 year in prison to life in prison. However, very few offenders remained in prison until their natural death solely because rehabilitation had not been properly demonstrated. Nevertheless, the [hopefully penetrating] message of parole and indeterminacy was that it was in the inmate’s own control and best interest to reform. The motto of progressive penology was that “you could be cured or be kept” (Miller, 1980, p. 85). Once an inmate had served the minimum amount of time required under the indeterminate sentence, a parole board hearing was convened within the institution. Each qualifying inmate was granted this hearing annually until the parole board agreed that reform had occurred, and release was warranted. Interestingly, reform-­ minded advocates envisioned this decision-making process to be one where authorities would “desire” the inmate’s release and be a friend and not an enemy to the offender (Wines, 1910). It was reasoned that the inmate’s amenability to treatment depended on a lack of enmity between the inmate and their keeper. In this supposed atmosphere of goodwill, decision-making in the parole hearing was to be approached scientifically. This approach was to be predicated on a careful review of past and present information on the inmate, including the number of credits gained or lost within the institution and their “constitutional and acquired defects and tendencies” (Laws New York, 1835, chap. 258, p. 299, as cited in Friedman, 1993, p. 161). In effect, the parole board was to assess the inmate’s former and present habits, activities, associations, and reputation. This extensive assessment also covered the offense of conviction, offense history, institutional conduct, work record, academic progress, attitude, and plans upon release. Historical records from several states show a notable consistency in the tone and content of parole hearings (Rothman, 1980). Despite the intent to pursue knowledgeable judgments about the inmate’s current criminal propensity, hearings were often capricious and directionless. Parole board members tended to gravitate to the past, inquiring more about what the offender had done than about their current disposition. For example, they retried or relitigated the original conviction by posing questions about the details of the offense, such as whether they had a trial or plead guilty, or had a lawyer (Rothman, 1980). Parole board members also voiced their interest in the “peculiarities” and appearance of inmates. They openly remarked on the offender’s physique, neatness, and “good looks” (Rothman, 1980). In addition to literally judging appearances, board members also posed questions that would elicit assuring answers about future behavior. Examples of this line of questioning included “What would you do if released?” or “Are you through with drinking?” (Rothman, 1980). Despite clear flaws in the process, it would be a mistake to imply that parole hearings were entirely vacuous. Much like today, parole board members gave legitimate thought to the length of the inmate’s prior record. Naturally, the span of one’s criminal career was viewed as a good predictor of offender recidivism. Board

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members also considered the relevant factor of the inmate’s employment prospects. Having a job was considered the best evidence of an inmate’s claim to normalcy (Simon, 1993). In fact, in the view of nineteenth century thinkers, “there was simply no gap between the idea of reform and the idea of labor” (Simon, 1993, p. 67). The association of employment with future success meant the inmate needed an offer of employment in hand or at least an employment sponsor prior to being released (Simon, 1993). However, the requirement of having a job or job sponsor in advance of release was eventually relaxed. Securing job connections or employment while still in prison was a formidable undertaking that was often based on circumstances beyond the inmate’s control. For example, the labor market was not always conducive to the employment of the law-abiding much less offenders. This was especially true during the Great Depression. The requirement of advance employment could also forestall releases that prevented overcrowding. An inmate could be deemed ready for release and even categorized as “released” from the standpoint of parole records, but still held in custody while awaiting confirmed employment (Journal of Prison Discipline & Philanthropy, 1913). The parole release process was equally undermined by the [dis] qualifications of parole board members. Reformers opined that board members were “unfitted for the task,” having little or no expertise in the behavioral or social sciences (Wines, 1910, p. 42). Most parole board members held other highly political and time-consuming positions within the state government, such as governor, secretary of state, or attorney general. Consequently, it was said that “their hearts are not in their work” and they were “lax in their methods” (Wines, 1910, p. 42). Records show that few parole board members read the file in full or in advance of the parole hearing. Records also indicate that they met only a few times a year to decide the fates of several hundred offenders (Rothman, 1980). Moreover, the hearing typically lasted no more than 3–5 min (Pisciotta, 1994; Rothman, 1980). Parole officers who oversaw the supervision of released inmates were also expected to be “fitted” for the task. Like probation officers, they too were to be model citizens, students of the new social sciences, and specially trained in the reform of offenders. Parole officers were also expected to fulfill multiple roles, including that of policeman, detective, social worker, psychiatrist, and work supervisor. However, once again, reformers complained that offenders were often handed over to people “whose qualifications for the oversight of a paroled prisoner were not what they should be” (Wines, 1910, p. 42). Compounding the problem of an unqualified workforce was the supervision protocol. Supervision was cursory in nature and overwhelmingly focused on employment. For example, parolees were to adhere to four basic conditions: (1) remain employed; (2) submit monthly reports signed by their employer; (3) not quit or change jobs; and (4) in all respects, conduct oneself with honesty, sobriety, and decency, avoiding low or evil associations, and abstain from intoxicating drinks (Pisciotta, 1994). Even though the negative effect of prison on the future employment of offenders was well-known (Ohl, 1903), the heavy emphasis on employment continued for many years.

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Parole’s success in preventing crime or reforming the offender is difficult to ascertain and for many of the same reasons it is difficult to determine today. Statistical reports often cast parole in a positive light by noting the low recidivism rates. For example, a report of The Eastern State Penitentiary in Pennsylvania indicated that of the 295 inmates paroled between September 1910 and December 1912, only 63 cases were apparent failures (Journal of Prison Discipline & Philanthropy, 1913). In effect, 78.6% of cases were successful (Journal of Prison Discipline & Philanthropy, 1913). The Western State Penitentiary reported that of the 276 paroled since the inception of parole in their state, 223 or 85.8% of offenders were still successfully reporting (Journal of Prison Discipline & Philanthropy, 1913). Similar reports of low recidivism rates were also documented in Delaware, Illinois, Massachusetts, Washington, and New  York (Journal of Prison Discipline & Philanthropy, 1913). What all these reports could not account for in their recidivism rates however were the unreported or undetected instances of criminal behavior. Recidivism rates were not the only indicator of the success [or failure] of parole. The Pennsylvania parole report additionally noted the cost-effectiveness of parole over continued incarceration. They noted a $30,000 net gain to the state due to parole (Journal of Prison Discipline & Philanthropy, 1913). Technical violations, which led to the reincarceration of offenders and increased costs, were also accounted for. Importantly, it was recognized that technical violations of parole (e.g., rule infractions) often generated more returns to prison than new criminal behavior (Journal of Prison Discipline & Philanthropy, 1916). Speaking more harshly to the state of parole everywhere as of 1930, Barnes maintained that the only good to come from parole was that it got men out of prison sooner (Barnes, 1972). He described parole as nothing but a “palpable paper parole, which neither provided supervision nor encouragement to reform” (Barnes, 1972).

Conclusions and Implications This history of probation and parole enables a twofold view of contemporary probation and parole. On the one hand, it reveals major advances in the practice of community supervision and what can be realistically achieved over time. On the other hand, it exposes problems in community supervision that persist, regardless of time. This troubling continuity suggests the need for concerted policy attention on a few select issues, rather than a need for innovation in areas that are not chronically problematic. To the first point, the brief history presented here demonstrates that probation and parole systems have evolved considerably. In many respects, probation and parole have become what Progressive reformers ideally had in mind a century ago. Though the maturation process was long indeed, probation and parole systems have “grown up” in meaningful ways. For example, parole board members and probation and parole officers now come from the ranks of the college educated in the social

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and behavioral sciences. No longer are officer qualifications and terms of appointment unclear or open-ended or under the purview of a single judge or jurisdiction. Decision-making in probation and parole has also acquired a scientific bent. While not entirely free of subjectivity, bias, or politics, decisions are regularly informed by data, research, uniform policies, and vast professional experience. For example, the quantification and statewide standardization of presentence investigation reports, parole release guidelines, and probation and parole classification instruments have curbed unwarranted discretion and arbitrary decision-making. Each of these decision points is structured by factors shown to be highly relevant in assessing offender risk, needs, recidivism, dangerousness, and treatment amenability. To the second point, it is equally evident from history that certain challenges have followed probation and parole throughout their lifespan. Most of these challenges are not insoluble, inordinately complex, or without empirical support, but they remain, nevertheless. For instance, the optimal size of offender caseloads and overly large caseloads have been a habitual burden (The Pew Charitable Trusts, 2020). Moreover, the answer proposed today (i.e., 50–100 offenders per caseload) is no different than the one proposed a century ago and every decade in between. Responding to technical violations of probation and parole supervision also remains an area of protracted difficulty (The Pew Charitable Trusts, 2020); to enforce or not to enforce technical conditions of supervision is the recurring question. Despite alternating approaches to this problem, the answer to the question of enforcement has been quite apparent for more than a few decades. When a strong enforcement approach to technical conditions is adopted, noncriminal violations of probation and parole inevitably drive up prison admissions and ultimately, prison populations and costs (Journal of Prison Discipline & Philanthropy, 1916; Reitz & Rhine, 2020; Rowland, 2013). When they are not enforced, criminal recidivism is no different or worse (Petersilia & Turner, 1993). A continuing challenge for probation and parole that is undoubtedly complicated and perhaps harder to overcome, is the problem of offender employment. Employment, more than any other technical condition or expectation short of not reoffending, has been at the heart of probation and parole since their inception. Then and now, employment stands out as the most symbolic and consistent correlate of criminal desistance or “going straight.” However, the fulfillment of this condition or expectation falls outside the direct control of the probation or parole officer and, to a fair extent, even the offender. Numerous and long-lasting barriers to ex-offender employment can make job attainment precarious at best. Skill deficits, lack of reliable housing, prior record questions on job applications, criminal background checks by employers, and laws, regulations, and practices that expressly restrict ex-offender employment in the private and public sector can all have a chilling effect on job searching and job retention (Lucken & Ponte, 2008). While efforts to reverse these barriers have been substantial of late (Love & Schlussel, 2020), other barriers remain or quickly emerge that can thwart or negate these efforts. Labor market downturns and prolonged economic crises only aggravate existing barriers to employment and perhaps fuel offender apathy toward employment.

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Thus far, the correctional system has been responsive to these employment barriers. The factor of employability or the requirement of employment has been relaxed or eliminated over the years in parole hearings and probation and parole supervision. Yet, the expectation that offenders be gainfully employed is hard to dislodge from the national psyche and the sheer practical necessity of gainful employment is undeniable. What then is to be done with the condition or expectation of offender employment? More broadly, if employment cannot be realistically enforced as a condition because of these barriers, and the enforcement of other technical conditions of supervision is now being relaxed due to mass incarceration, what will the sum and substance of probation and parole supervision be in the coming years?

References American Church Review. (1872, July). Prison reform. American Church Review, 24, 377–396. Retrieved from https://books.google.com/books?id=kQMFAAAAQAAJ Barnes, H. E. (1972). The story of punishment. Patterson Smith. Bates, S. (1938). How good is parole?: A debate. Forum and Century, C(2), 69–70. Blomberg, T.  G., & Lucken, K. (2010). American penology: A history of control. Transaction Publishers. Bolster, W. (1910). Adult probation, parole and suspended sentence. Journal of Criminal Law & Criminology, 1(3), 438–449. Retrieved from https://scholarlycommons.law.northwestern.edu/ jclc/vol1/iss3/9/ Cahalan, M.  W. (1986). Historical corrections statistics in the United States, 1850–1984. U.S. Department of Justice, Bureau of Justice Statistics. Chute, C.  L. (1928). The extension of probation in criminal courts. Annals of the American Academy of Political and Social Science, 136, 136–141. Chute, C.  L. (1933). The progress of probation and social treatment in the courts. Journal of Criminal Law and Criminology, 24(1), 60–73. Retrieved from https://scholarlycommons.law. northwestern.edu/jclc/vol24/iss1/4/ Chute, C. L. (1935). The extension of probation in criminal courts. National Probation Association. Duffee, D. E. (1989). Corrections: Practice and policy. Random House. Friedman, L. M. (1993). Crime and punishment in American history. Basic Books. Journal of Prison Discipline & Philanthropy. (1913). Parole work in Pennsylvania. Journal of Prison Discipline & Philanthropy, 52, 28. Journal of Prison Discipline & Philanthropy. (1915). Adult probation in Philadelphia. Journal of Prison Discipline & Philanthropy, 54, 33–34. Journal of Prison Discipline & Philanthropy. (1916). Parole of prisoners in Philadelphia. Journal of Prison Discipline & Philanthropy, 55, 21. Kuntz, W. F., II. (1988). Criminal sentencing in three 19th-century cities: Social history of punishment in New York, Boston, and Philadelphia, 1830–1880. Garland. Le Mesurier, L. (Ed.). (1935). A handbook of probation. National Association of Probation Officers. Lieber, F. (1851). The pardoning privilege and its abuse. Prisoner’s Friend, 3(11), 483–495. Love, M., & Schlussel, D. (2020). Pathways to reintegration: Criminal record reforms in 2019. Collateral Consequences Resource Center. Lucken, K., & Ponte, L. M. (2008). A just measure of forgiveness: Reforming occupational licensing regulations for ex-offenders using BFOQ analysis. Law & Policy, 30(1), 46–72. https://doi. org/10.1111/j.1467-­9930.2008.00269.x

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Miller, M. B. (1980). At hard labor: Rediscovering the 19th-century prison. In T. Platt & P. Takagi (Eds.), Punishment and penal discipline (pp. 79–88). Crime and Social Justice Associates. Mulready, E. (1912). Illinois and Massachusetts probation laws. Journal of the American Institute of Criminal Law and Criminology, 3(4), 633–634. Retrieved from https://www.jstor.org/ stable/1133430 Ohl, J. F. (1903). The national prison congress: Philadelphia, PA, September 13–17, 1902. Journal of Prison Discipline & Philanthropy, 42, 28–62. Petersilia, J., & Turner, S. (1993). Evaluating intensive supervision probation/parole: Results of a nationwide experiment. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice. Retrieved from https://www.ncjrs.gov/pdffiles1/Digitization/141637NCJRS.pdf Pisciotta, A.  W. (1994). Benevolent repression: Social control and the American reformatory-­ prison movement. New York University Press. Reitz, K. R., & Rhine, E. E. (2020). Parole release and supervision: Critical drivers of American prison policy. Annual Review of Criminology, 3(1), 281–298. https://doi.org/10.1146/ annurev-­criminol-­011419-­041416 Richmond, M. E. (1917). Social diagnosis. Russell Sage Foundation. Rothman, D. J. (1980). Conscience and convenience: The asylum and its alternative in Progressive America. Scott Foresman and Company. Rowland, M.  G. (2013). Too many going back, not enough getting out: Supervision violators, probation supervision, and overcrowding in the Federal Bureau of Prisons. Federal Probation, 77(2), 3–16. Retrieved from https://www.uscourts.gov/federal-­probation-­journal/2013/09/ too-­many-­going-­back-­not-­enough-­getting-­out-­supervision-­violators Simon, J. (1993). Poor discipline: Parole and the social control of the underclass, 1890–1990. University of Chicago Press. The Pew Charitable Trusts. (2020, April). Policy reforms can strengthen community supervision: A framework to improve probation and parole. The Pew Charitable Trusts. Retrieved from https://www.pewtrusts.org/-­/media/assets/2020/04/policyreform_communitysupervision_ report_final.pdf U. S. Department of Justice. (2003, May). History of the federal parole system. Author. Retrieved from https://www.justice.gov/sites/default/files/uspc/legacy/2009/10/07/history.pdf Vale, L. J. (2000). From the Puritans to the projects: Public housing and public neighbors. Harvard University Press. Vanstone, M. (2008). The international origins and initial development of probation: An early example of policy transfer. The British Journal of Criminology, 48(6), 735–755. https://doi. org/10.1093/bjc/azn070 Wines, F. H. (1910). The indeterminate sentence, the parole, and the new criminology. Journal of Prison Discipline and Philanthropy, 49, 36–42.

Chapter 15

Probation and Parole: From Control to Case Management Lacey Schaefer and Sally Brewer

Abstract  Historically, probation and parole practices have swung from conservative to progressive extremes, promoting approaches that prioritize control versus case management. The rehabilitative ideal birthed case management strategies that emphasized diversion from prison, individualized assessment, and social service brokerage. The “nothing works” movement saw an era of heightened control that focused on increased monitoring and punishment. This led to a crisis in corrections in which the guiding philosophy of correctional practices was unclear, resulting in atheoretical or logically mis-specified models of probation and parole. Following the era of mass imprisonment, the resulting era of mass supervision has produced a second crisis in corrections; one in which staff must manage rising caseloads with diminished resources. Consequently, contemporary case management is about managing cases rather than correcting them, focusing on efficient processing and administrative requirements rather than individualized treatment. This crisis must be met with system-level reforms for probation and parole to be effective. We recommend an investment in social services and sentencing reforms that will reduce caseloads, and we encourage probation and parole authorities to adhere to the principles of effective correctional intervention, engage in meaningful intervention, use core correctional practices, utilize fitting supervision strategies, receive professional development, and prioritize recidivism reduction. Keywords  Case management · Community corrections · Offender supervision · Probation and parole Probation and parole have largely adhered to the same overarching frameworks for more than a century. Yet despite this consistency in the structure of community corrections orders across time, the routine practices of probation and parole agencies L. Schaefer (*) · S. Brewer Griffith Criminology Institute, School of Criminology and Criminal Justice, Griffith University, Brisbane, QLD, Australia e-mail: [email protected]; [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_15

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have embodied largely different philosophies. As the correctional pendulum has swung from treatment to punishment orientations, community corrections practices have changed in response, moving between case management and control orientations, respectively. While many jurisdictions have begun to utilize evidence-­based practices, the rising populations within probation and parole have meant that many community corrections practitioners now exercise “case management” strategies of a different variety; where resources are diminished but caseloads are higher than ever, some practices are organized around purely managing (rather than correcting) cases. Reviewing some of the hallmarks of these varying approaches to probation and parole, this chapter is organized into six sections. We begin by providing a brief overview of the principles that guide punishment, followed by a brief history of probation and parole, showcasing how the structure of community corrections has remained largely unaltered over time. Next, we examine the impact of the correctional pendulum in community corrections, demonstrating how the rehabilitative ideal and the tough on crime movements infiltrated probation and parole practices. We then demonstrate how the current crisis in corrections and the introduction of mass probation and parole has led to new practices in community corrections focused on administrative and bureaucratic efficiencies rather than correctional intervention. Finally, we provide some suggested reforms for future probation and parole practices, organized around the evidence of contemporary best practices, followed by a brief summary.

A Brief Overview of the Principles of Punishment Decisions made in the criminal justice system, and particularly in crime prevention, sentencing, and corrections, are guided by several principles of punishment. There are four core principles which are most influential when responding to offending behavior: retribution, deterrence, incapacitation, and rehabilitation. Each of these philosophies presents different theories about why offending occurs and how to best respond (Cullen & Jonson, 2012; Schaefer & Williams, 2019). These four penological principles guide correctional decision-making, both broadly by corrections agencies as a whole, as well as individually when staff members exercise their discretion in how to case manage an offender. These principles are deeply influential in informing correctional practices, although their popularity may wax and wane across time. Retribution is based upon the premise that punishment should be proportionate to the crime committed. The emphasis is based upon taking “an eye for an eye” and rebalancing the scales of justice, with retribution being a nonutilitarian principle. This philosophy is often referred to as “just deserts,” as the goal is to punish offenders equally and commensurately. Deterrence aims to discourage prospective offenders from committing an offense and is premised upon rational choice theory; the central tenet is that individuals make cost-benefit calculations in their

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decision-­making and can be deterred from choosing to offend if the costs are high. Deterrence can be general (which targets larger society by making an example of the individual receiving punishment) or specific (which targets a known offender by discouraging a new offense through punishment), but it must be swift, severe, and certain to maximize effectiveness. Incapacitation in no way attempts to alter offenders’ internal dispositions but instead aims to limit crime by restricting an individual’s abilities. These strategies seek to prevent offending by incapacitating the individual, such as through incarceration or community-based interventions (such as electronic monitoring or license forfeiture). Incapacitation can be either collective (when all individuals with a certain characteristic are targeted for punishment because of the risk presented by the larger group) or selective (when a sanction targets an individual believed to be at a heightened risk of reoffending). Rehabilitation aims to treat the offender and reduce rates of recidivism. Rehabilitation encompasses a broad range of methods, ranging from brief cognitive-behavioral interventions to intensive offence-targeted treatment programs. Utilizing a medical model of diagnosis and treatment, rehabilitative correctional practices have the goal of identifying and remedying the problem underlying the offending behavior. Collectively, these philosophies of punishment are somewhat at odds with one another. Each of the principles envisions a different cause of offending and therefore advocate for different forms of responses. That said, it is not unusual for these punishment philosophies to overlap; the correctional sanction of imprisonment, for instance, can embody goals of retribution, deterrence, incapacitation, and rehabilitation all at once. When corrections agencies implement policies or agents develop case management decisions, they are often aiming to invoke one or more of these principles. At times, correctional sanctions can fail to be effective because the wrong principle was employed or was operationalized poorly. There is generally great debate and controversy surrounding which philosophy should be used when. The principles that are used by corrections departments are often a reflection of the community’s values and priorities, which may shift across time, requiring updated penological philosophies and strategies (Cullen & Jonson, 2012).

A Brief History of Probation and Parole Probation is the practice of granting selected offenders the conditional freedom to remain within the community, while being placed under the supervision, guidance, and treatment of a capable supervisory officer (Travis & Beck, 2008). John Augustus, often cited as the founder of probationary release, experienced the difficulty of balancing the competing goals that underly correctional practices: the possibility of reconciling an offender’s potential for change, while simultaneously accounting for their criminal history (Hanser, 2013; Schaefer et al., 2016). In the mid-1800s, Augustus selected individuals whom he thought would be amenable to supervision, with little emphasis on the likely effectiveness of crime prevention initiatives. Probationary release was first demonstrated in the form of “bail,” in

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which Augustus earned the release of approximately 2000 offenders on the condition of being held accountable for their outcomes following court directives. This same overarching structure still informs probation practices to this day, nearly two centuries later: In lieu of a likely custodial sentence, convicted offenders are provided with their freedom to remain in the community on the condition that they agree to adhere to a series of behavioral prescriptions and restrictions while under the authority of a supervisory corrective services officer; a failure to do so may result in the remainder of the sentence being served in custody. Parole is the act of an offender being granted early leave from incarceration in exchange for finishing their sentence within the community under conditional supervision. Parole can be either board-ordered (in which a prisoner may apply for parole after a predetermined period of imprisonment) or court-ordered (in which a prisoner is given a predetermined parole release date that follows a period of imprisonment). Parole nearly always follows imprisonment (some exceptions do occur, such as in the case of suspended sentences), as opposed to probation which is a community sanction served in lieu of incarceration (Travis & Beck, 2008). Yet similar to probation’s origin story, the development of parole also had to consider the conflicting views on the causes of desistance and attempt to balance the application of treatment- and control-oriented solutions. The introduction of parole originated in the form of “mark systems” and “tickets of leave” for obedient convicts (Hanser, 2013; Schaefer et al., 2016; Travis & Beck, 2008). Alexander Maconochie is often cited as the founding father of parole, resulting from his development of the mark system implemented for penal colonies in Australia. Under this scheme, convicts were given the opportunity to earn marks for their good behavior and work, which would later be used to buy their freedom (Bottomley, 1990). Similarly, Sir Walter Crofton developed an Irish system of tickets of leave, which allowed offenders to be released from their sentence prior to completion, in exchange for being granted with conditional freedoms (Hanser, 2013). Today, nearly 200 years on, parole continues to reflect the indeterminate sentencing practices that historically shaped the use of parole, granting early release from custody in exchange for prisoners agreeing to adhere to certain conditions, and supervising these early releasees in the community on the condition that they abide by the directives of their supervisory corrective services officer; where parolees fail to abide by these rules or do not submit to the authority of their parole officer, they may risk serving the duration of their sentence in custody.

The Correctional Pendulum The general principles that guide the structure of probation and parole orders remain comparable to those in the mid-1800s. Yet even in modern times, there is still conflict regarding the most appropriate and effective method of limiting reoffending among probationers and parolees. The origins of probation and parole highlight the difficulties in maintaining a balance between conflicting philosophies that propose

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sometimes incongruous approaches to managing offenders in the community. There is substantial debate over the mechanisms that are most useful in probation and parole, and the challenge of balancing these contrasting goals is still receiving criminological attention today. Early forms of probation and parole often promoted a control orientation, employing a utilitarian Classical Criminological approach. However, this philosophy was scrutinized following the emergence of the Positivist School of Criminology, in which biological, psychological, and sociological causes were seen as the underlying factors driving criminal behavior rather than offender choice alone (Schaefer et  al., 2016). These latter considerations have motivated approaches to probation and parole that are more treatment-oriented, focusing on addressing the underlying causes of offending. Still, there persists an ongoing lack of consensus among scholars, practitioners, policymakers, and the public surrounding which philosophy is most effective, with probation and parole practices swinging between the two approaches. Correctional policies and practices are guided by penological principles which encompass a set of theoretical assumptions outlining what goals the correctional system should aim to achieve and which principle will guide legislation, correctional policy, and probation and parole officer decision-making (Cullen & Jonson, 2012). The emphasis placed upon which principle primarily influences policy and practice has fluctuated throughout history, often as a response to the fluid social dynamics of the local community (Cullen & Gilbert, 2013; Schaefer & Williams, 2019). As a result of these fluctuations, the implementation of principles of offender punishment is somewhat representative of a swinging pendulum that moves between the two dominant perspectives—one that embraces punishment and control and another which advocates for rehabilitation and social service provision (Cullen & Gilbert, 2013; Schaefer et al., 2016). Prior to the 1970s, rehabilitation dominated correctional philosophy but was followed by a moral panic which led to a shift toward more punitive approaches (Rothman, 1980). This swing from treatment-oriented to punishmentoriented offender handling practices was influenced by the emerging public scrutiny regarding the state’s ability to effectively manage and treat the offender population (Cullen & Gilbert, 2013; Rothman, 1980).

The Rehabilitative Ideal Retribution was the guiding force of sentencing and sanctioning for much of human history. Yet from the mid- to late-1800s through the first half of the twentieth century, rehabilitation became the guiding correctional philosophy of many sanctions and interventions (Schaefer et al., 2016). Policymakers and practitioners began to see the humanitarian and practical value in treatment, spawning the birth of “the rehabilitative ideal.” The term reflects the notion that the treatment of offenders was a noble and enlightened endeavor that superseded our baser desires to inflict pain through punishment (Cullen, 2013).

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The idea of reform originally translated to a term of imprisonment. Penitentiary models were viewed as a possible solution to offending and as a mechanism of reformation to family, school, and work problems (Morris & Rothman, 1998). Prisons were designated as pseudo-treatment centers in which those who entered the facility as deviant would leave the institution as reformed individuals. Rehabilitation was the anticipated by-product of carceral architectural design and stringent prisoner routine, assisted by penance, isolation, and industry. People believed that prison was an institution that could instill morality and law and order into offenders therefore using prison as a tool to change the individual into a member of society who favors and abides by the law (Morris & Rothman, 1998). Up until the mid-1900s, community correctional approaches also embraced the rehabilitative ideal. The underlying philosophy was that offenders were not “normal people” and thus required treatment in order to not commit crime again (Cullen, 2013). This sentiment reflected the popular public opinion that offenders were worthy of reform. In the first half of the 1900s, the use of probation and parole (and associated community correctional strategies) blossomed, with officers embodying the medical model of rehabilitation, achieved largely through service brokerage (Hanser, 2013; Schaefer et  al., 2016). This model of case management differed from the more targeted and empirically validated correctional interventions used contemporarily. In this era, officers referred the offenders on their caseload to external service providers and worked to ensure that each individual received the concrete provisions (such as accommodation and employment) thought to facilitate the desistance process. Various “correctional” programs were developed which were thought to target the underlying causes of offending (although by contemporary standards, we now understand that some of these interventions were likely misguided). The driving belief in rehabilitation’s heyday was that the use of probation and parole helped offenders to avoid the ills of incarceration, and that individualized case management could be used to limit reoffending (Cullen & Gilbert, 2013; Morris & Rothman, 1998).

Heightened Control Rehabilitation had been the dominant penological principle for the first half of the twentieth century but was followed by a switch to more punitive measures when entering the 1960s (Schaefer et al., 2016). This shift was initially the consequence of the growing doubts surrounding the effectiveness of rehabilitation practices. Progressive policymakers were concerned about the inequities that resulted from the indeterminate sentencing practices associated with rehabilitative efforts, while conservative parties believed that correctional treatment was soft on crime (Cullen & Gilbert, 2013). At a time when the public was distrusting of the government’s ability to humanely and effectively rehabilitate offenders under its care, the “nothing works” movement crystallized and catalyzed the sentiment that the rehabilitative ideal was just that—an ideal, devoid of practices that could successfully reform

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the wayward (Cullen & Jonson, 2012; Schaefer et  al., 2016). In 1974, Robert Martinson published a review of 231 correctional interventions, concluding that, “With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciative effect on recidivism” (p. 25). Martinson’s conclusion that “nothing works” to rehabilitate offenders was propelled into public rhetoric, providing the ammunition for policymakers and practitioners to alter the approaches used in probation and parole (Cullen & Gilbert, 2013; Cullen & Jonson, 2012). The battle-cry of “nothing works” resulted in public pressure for increased severity and certainty of correctional sanctions, producing a new “tough on crime” movement (Schaefer et al., 2016). A wave of control-oriented initiatives was introduced to community corrections in the 1980s. Probation and parole practices which had previously emphasized individualized case management, treatment, and service brokerage were replaced with a host of surveillance tactics and behavioral restrictions (Schaefer et al., 2016). Practices such as electronic monitoring, house arrest, day reporting, shock incarceration, drug testing, stringent supervision conditions, and widespread probation and parole revocations became common. These efforts were premised on retribution, deterrence, and incapacitation and were broadly applied with little recognition of individual differences. Despite research evidence demonstrating that control-oriented correctional practices fail to produce the desired effects (Cullen & Jonson, 2012), they have retained their political and public popularity and many ineffective probation and parole practices abound.

Crisis in Corrections The movement of the correctional pendulum from treatment to control orientations is more than a philosophical shift; the prioritization of a given penological principle has real-world consequences for the operationalization of probation and parole. The shift from the rehabilitative ideal toward the era of heightened control has impacted the management of offenders within the community. As described by Cullen and Jonson (2012): Still, if rehabilitation did not vanish, its role as the hegemonic or dominant correctional theory was severely damaged, with a host of get tough policies being implemented that were inconsistent with rehabilitation and individualized treatment. From the 1970s to this day there has been a theoretical crisis in corrections. (p. 36)

This first crisis in corrections relates to the atheoretical nature of correctional practices, in which scholars and policymakers “lost faith in rehabilitation but never gained faith in punishment” (Cullen & Jonson, 2012, p. 35). This crisis has been exacerbated by rising caseloads and diminishing resources, requiring probation and parole agencies to do more with less (Schaefer et al., 2016). With few exceptions, many nations are experiencing record-breaking numbers of offenders serving probation and parole orders, indeed creating an intensified crisis

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in corrections. Large numbers of offenders are supervised in the community, including more than 4.5 million individuals in the United States (Kaeble, 2018), more than 250,000  in the United Kingdom (Ministry of Justice, 2019), and roughly 80,000 persons in Australia (Australian Bureau of Statistics, 2020). The current era of mass incarceration has flow-on effects for parole populations, with this form of conditional release serving as a pressure valve. Additionally, prison overcrowding may encourage diversionary sentencing, resulting in greater numbers of offenders serving probation orders. Collectively, the increases in the numbers of offenders supervised by probation and parole authorities have birthed a new era of “mass supervision” (Phelps, 2013), which has led to a second crisis in corrections. Unfortunately, the increased use of community corrections—particularly those that are control-oriented and lacking a treatment element—has led to an increased number of breaches of supervision orders; these technical violations worsen the revolving prison door and contribute to prison overcrowding (Human Rights Watch, 2020). Control-oriented approaches to probation and parole rely on bastardized operationalizations of deterrence theory that fail to reduce reoffending (Schaefer et al., 2016). This is due in part to the lack of an individualized approach to offender management that includes meaningful intervention (Cullen & Jonson, 2012). While the evidence is fairly consistent that probation and parole practices that emphasize surveillance, control, and punishment are ineffective (Cullen & Gendreau, 2000; MacKenzie, 2006), the alternate approach is not guaranteed to be successful. While the correctional pendulum has begun to swing back toward rehabilitation as agencies adopt evidence-based practices (Ward & Maruna, 2007), studies show that treatment approaches in community corrections are often not executed well, violating the principles of effective correctional intervention (Schaefer et al., 2016). Day and colleagues further note that generic case management approaches “are not sufficiently tailored to the organizational context” of probation and parole and “may be particularly ill-suited to correctional practice” (2012, pp. 484–485). They describe case management in community corrections as “a sequence of activities related to assessment, goal setting and planning, monitoring, and reviewing progress” (p. 486). Under a case management model, probation and parole officers ensure that the offender abides by the necessary requirements of their order while also directing them to appropriate services and treatment plans in the community. The role of the case manager is not one of “fixing” the offender themselves but often involves them coordinating the implementation of interventions that address the underlying causes of the offender’s misbehaviors. They also assist the offender in setting goals for the future, encouraging prosocial expressions, and facilitating successful order completions (Day et al., 2003). Unfortunately however probation and parole practices today are too often not geared toward offenders’ behavioral change, but toward bureaucratic offender management. Case processing has become a central element in probation and parole, at the expense of effective rehabilitation (Schaefer et al., 2016). In fairness, probation and parole authorities are currently facing unreasonably high caseloads, limiting their capacity to meaningfully case manage each offender. The treatment or control debate has led to a new breed of “case management”—one

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focused on efficiency rather than effectiveness. This “new penology” relies on managerialism rather than intervention (Bull, 2010; Feeley & Simon, 1992), converting probation and parole case managers into staff who merely manage cases rather than developing and administering an individualized, targeted treatment plan for each offender. This second crisis in corrections has resulted in probation and parole staff supervising large numbers of offenders simultaneously, often without adequate resources (Day et al., 2012). Consequently, probation and parole officers dedicate many of their working hours to the administrative workload required. Although efficiency in case processing cannot be abandoned entirely (it is a bureaucratic necessity in the current operating environment), it cannot form the foundation for recidivism-reducing probation and parole practices (Schaefer et al., 2016). For probation and parole practices to be effective, control orientations must be limited, and case management must be treatment-focused rather than administratively driven.

Suggested Reforms for the Future of Probation and Parole Criminal justice reform is an economic and ethical imperative. The system fails to work in many ways, costing taxpayers, communities, and forensic populations immensely. Indeed, although the system ought to work in a one-way fashion—with individuals coming out of the corrections system having been “corrected”—this is simply not the reality. Recidivism rates are high, resulting in a cyclical “revolving door” in the criminal justice system; today’s prisoner, probationer, or parolee is tomorrow’s police arrest. In the United States, for instance, roughly two-thirds of ex-prisoners are arrested for a new offense within 3 years of release; more than one-­ third who were arrested within 5  years were arrested in the first 6  months after release (Durose et al., 2014). In Australia, approximately two-thirds of prisoners have been in prison before and two-thirds of adult offenders processed through the courts had previous convictions (Payne, 2007). Studies show that probation and parole may not necessarily make people worse (unlike many evaluations of the effects of imprisonment), but community corrections orders do not make people better either (Schaefer et  al., 2016). Toward closing the revolving door, Galston describes that the current manifestation of probation and parole supervision “is not up to this task or—put more accurately—does not really try” (2016, p.  1). Community corrections authorities require dramatic alterations to their guiding philosophy and daily operations. Unlike many political topics, there is bipartisan support (Galston, 2016) and public support (Cullen, 2013) for such reforms, whereby “the political momentum is turning against our over-reliance on cuffs and cages” (Dagan & Teles, 2014, p.  267). The time is ripe for structural changes that will improve the criminal justice system. Fortunately, the past two decades have seen an accumulation of empirical evidence regarding the principles of effective correctional intervention; that is, we now know what works in probation and parole practices (Andrews & Bonta, 2010; Bonta et al., 2008; Craig et al., 2013; Cullen & Jonson, 2012; Cullen & Gendreau, 2000;

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Cullen & Gilbert, 2013; MacKenzie, 2006; Schaefer et  al., 2016). Yet even with these evidence-based practices in hand, probation and parole authorities face real challenges in their efforts to implement them. First, many agencies have experienced increased caseloads without a commensurate increase in staff numbers, resulting in probation and parole officers having stretched capacities. Second, several corrections departments are struggling with budget cuts and funding hurdles in addition to the reduced availability of external social services for offenders. Third, there remains the issue of balancing two conflicting functions of probation and parole: delivering meaningful treatment and exercising control and supervision over the offender. The use of a hybrid form of probation and parole supervision that employs both enforcement and social work mechanisms may be most useful for accomplishing these competing objectives (Skeem & Manchak, 2008). Importantly, several innovative models of probation and parole have recently been developed which demonstrate the utility of case management as an opportunity for intervention (Bonta et al., 2011; Robinson et al., 2012; Schaefer & Little, 2019; Schaefer et al., 2019; Smith et al., 2012). Reflecting on the contributions of these developments, we recommend eight system-level reforms for probation and parole case practices: 1. Probation and parole authorities must adhere to the principles of effective correctional intervention (Andrews & Bonta, 2010). These principles outline the structure through which community corrections strategies can effectively limit recidivism; unfortunately, many probation and parole agencies neglect these principles or operationalize them poorly (Bonta et  al., 2008; Schaefer et  al., 2016). Probation and parole orders must abide by the risk principle, whereby the intensity or dosage of the intervention (both treatment and supervision components) is commensurate with the risk of reoffending, as determined by actuarial assessments. Community corrections interventions must further adopt the need principle, which stipulates that authorities must target for change those factors that are the cause of offending; these “criminogenic needs” should be identified through specialized assessments, and probation and parole activities should be oriented around reducing reoffending risk by addressing these underlying crimecausing factors. Finally, probation and parole agents should utilize the responsivity principle, tailoring the interventions in ways that the individual will be responsive to. These risk, need, and responsivity principles (commonly referred to as the RNR model) provide the overarching structure that probation and parole authorities must integrate into the supervision and treatment processes. Studies show that reoffending rates are lower among community corrections approaches that utilize these principles (Andrews & Bonta, 2010; Cullen & Gendreau, 2000; Cullen & Jonson, 2012; Schaefer et al., 2016). 2. The activities undertaken during officer-offender meetings must be oriented around meaningful intervention. Traditionally, probation and parole officers meet with their clients and organize their discussion around compliance; officers ask questions about the individual’s circumstances and their adherence to supervision conditions. These conversations are control-oriented and distract the offi-

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cer from activities that are geared toward behavioral change (Bonta et al., 2008). Several studies have shown that officers can use supervision meetings to conduct brief interventions with offenders and that these efforts can have significant crime-reducing effects (Bonta et al., 2011; Robinson et al., 2012; Schaefer & Little, 2019; Smith et al., 2012; Taxman, 2008). Rather than relying solely on formal rehabilitation programs, probation and parole officers can use their meeting time with offenders to conduct brief cognitive-behavioral interventions that target criminogenic needs (such as cognitive restructuring or cognitive skills training; Schaefer et al., 2016; Schaefer & Little, 2019; Smith et al., 2012). This reorientation requires that officers see themselves as change agents, moving away from a bureaucratic form of case management toward a model of probation and parole that emphasizes behavioral change and recidivism reduction (Bourgon et al., 2011; Lovins et al., 2018; Taxman, 2008). 3. Probation and parole officers must use core correctional practices. As more and more corrections agencies began to incorporate the principles of effective correctional intervention, scholars noted that there were further factors that influenced the success of a given approach (Schaefer et  al., 2016). A social psychological approach to understanding criminal conduct has implications for the treatment modalities that are likely to be effective with forensic populations. Specifically, probation and parole practices that rely on the contingencies of conditioning and enhance the therapeutic integrity between the practitioner and the client can work to enhance the efficacy of supervision (Bourgon et al., 2010; Dowden & Andrews, 2004). Beginning in the 1980s, researchers began to identify core correctional practices as those methods that enhance the utility of offender treatment. These practices specify how corrections practitioners should interact with their clients and include elements of anti-criminal modeling, effective reinforcement, effective disapproval, effective use of authority, structured learning, cognitive restructuring, problem-solving, and relationship skills. White and Graham (2010) suggest that new models of case management tend to emphasize finding services rather than building therapeutic relationships. Yet research has demonstrated that staff who have received training in how to utilize these core correctional practices produce important benefits across many staff and offender outcomes (Chadwick et al., 2015; Robinson et al., 2012; Smith et al., 2012; Taxman et al., 2004). As studies show that probation and parole staff target only some criminogenic needs at some times while neglecting others (Bonta et  al., 2008; Chadwick et  al., 2015), community corrections approaches must rely on the routine use of brief interventions in officer-offender meetings that help to facilitate prosocial behavior skill development. 4. Community corrections mechanisms must be thoughtfully utilized. One of the reasons certain probation and parole strategies fail to work is because they are broadly and generically applied across offender cohorts, irrespective of each individual’s risk, need, and responsivity considerations (Schaefer et al., 2016). While correctional authorities are not able to control who is ordered to complete a probation or parole sentence or for what reasons, they should be capable of exercising professional discretion in a measured way that is responsive to each

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individual’s risks, criminogenic needs, and responsivity factors (Andrews & Bonta, 2010). Supervision, monitoring, surveillance, and enforcement tools and strategies must be commensurate to the level and type of risk that the individual offender presents with (Schaefer et al., 2016; Taxman et al., 2004). Additionally, as risk is dynamic, these correctional strategies—such as supervision frequency, drug testing, electronic monitoring, or curfew—should be graduated, changing across time in response to the individual’s behavior (Schaefer et  al., 2016; Taxman et al., 2004). The philosophy of one-size-fits-all will not work between or within offenders; rather, the various “levers” that are pulled should be based on each individual offender and the risks and criminogenic needs that are present at various stages of the order. The use of community corrections mechanisms should ideally be used to shape behavior (Taxman, 2008; Taxman et al., 2004), which requires thoughtful conversations about actions and reactions between officers and offenders, guided by the core correctional practices. 5. Probation and parole staff must receive professional development. Community corrections staff receive very little professional education and training and minimal on-the-job supervision in how to best perform the tasks associated with their role (Bourgon et al., 2011; Schaefer et al., 2016). In the best-case scenarios, on average officers receive instruction on managing cases (e.g., how to complete their paperwork, the procedures for conducting a drug test, how to administer an assessment), rather than on proper case management. Realistically, probation and parole staff are provided with very little vocational and educational training that teaches them how to shape offender behavior (Bourgon et al., 2011). There is an unfortunate lack of professional development in community corrections, the result of which means that probation and parole officers are not skilled in encouraging desistance (Schaefer et al., 2016). If we want community corrections staff to impact the behavious of the offenders they supervise, then they must receive the knowledge, skills, and resources to be able to effectively do so. 6. Communities must invest in social services to increase their availability to community correctional populations. Probationers and parolees have concrete life needs that are not being adequately met due to shortages in service provisions. There must be an investment in accommodation and employment assistance, in addition to services that aid in an improved relationship and health outcomes for community-supervised offenders. Studies show that offenders often fail to serve their full sentence of community service work hours, in part due to the unavailability of opportunities for offenders (Bushnell, 2018). This is unfortunate, as “unpaid community work often represents the first time that offenders have experienced structure, routine, and responsibility in their chaotic lives. It also allows offenders to develop skills that might otherwise be unattainable with potential relevance to future job opportunities” (Sentencing Advisory Council, 2014, p.  4). Indeed, some of these social service provisions are sometimes related to criminogenic needs (particularly those in the Central Eight, including substance abuse, family/marital relationships, school/work, and recreational activities; Andrews & Bonta, 2010), and as such, they must be targeted in order to achieve recidivism reduction. In addition to the aim of minimizing risk,

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investing in these services for offenders is supported by the public and is the moral, humane, and just thing to do (Cullen & Gilbert, 2013; Cullen & Jonson, 2012; Ward & Maruna, 2007). Work programs are designed with the goals of providing skills training to offenders and to normalize the role of work in a prosocial routine (Bushnell, 2018). In order for a case management model to be effective however probation and parole officers must have services to refer their clients to; when these are lacking for the general public, the availability of these services for community-supervised offenders (a stigmatized and disadvantaged population) is even less. Accordingly, there must be a revitalization of these services for justice-involved individuals who may require these services to avoid reoffending. 7. There must be sentencing reforms in order to achieve reduced caseloads. Probation and parole authorities across jurisdictions and countries have noted the deleterious effects of the “mass supervision” on the caseload sizes of staff (Phelps, 2013). These unreasonably high caseloads have fundamentally changed the nature of probation and parole work, and have made it difficult for staff to carry out more interventive activities with offenders that target their criminogenic needs (Day et al., 2012), resulting in a bureaucratic form of managerialism (Bull, 2010; Schaefer et al., 2016). In order for some of the above recommendations to be carried out, caseload numbers must be minimized. Realistically, the most effective method for achieving reduced caseloads is for there to be meaningful sentencing reforms (see Chap. 7) that decrease the number of people being ordered to serve probation or prison (and then parole) terms. This may include the elimination or reconceptualization of mandatory minimums and sentencing guidelines that attach community supervision automatically to certain offense types. 8. Community corrections agencies must be accountable for their outcomes. Many agencies are evaluated according to the impact that they have and the outcomes they produce. Probation and parole departments should be held to comparable performance standards. According to Cullen and Gilbert, historically and contemporarily, “correctional officials get paid to maintain order and not to rehabilitate” (2013, p. 211). In order to achieve better outcomes, community corrections agencies should be required to prioritize recidivism; this would compel them to organize their policies and practices around meeting this goal (Cullen & Gilbert, 2013). This requires a fundamental reorientation away from models of supervision based on control or compliance and toward frameworks that value and work toward behavioral change in offenders.

Summary Historically, the correctional pendulum has swung from conservative to progressive extremes, promoting probation and parole practices that prioritize control versus case management approaches, respectively. The first crisis in corrections has been

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partially resolved, given the large body of empirical evidence favoring individualized treatment that now informs community corrections policies and practices around the world. While the fidelity of these correctional interventions may require some improvements, the renewed commitment of corrections practitioners to rehabilitation has been encouraging. Yet the second crisis in corrections remains problematic. Due to the era of mass imprisonment, community correctional authorities are now grappling with the resulting era of mass supervision. The large number of offenders being supervised have led to a new breed of case management in probation and parole, in which cases are managed rather than corrected. For probation and parole to be effective, practices must be oriented around the objective of recidivism reduction, achieved through a focus on how supervision can facilitate behavior change. This task must be assisted by translational criminologists, whereby the empirical evidence base will need to be converted into actionable and practicable strategies for frontline probation and parole practitioners.

References Andrews, D.  A., & Bonta, J. (2010). The psychology of criminal conduct (5th ed.). Anderson/ LexisNexis. Australian Bureau of Statistics. (2020). Corrective services, Australia, March quarter 2020. Australian Bureau of Statistics, Commonwealth of Australia. Retrieved from https://www.abs. gov.au/ausstats/[email protected]/mf/4512.0 Bonta, J., Bourgon, G., Rugge, T., Scott, T.-L., Yessine, A., Gutierrez, L., & Li, J. (2011). An experimental demonstration of training probation officers in evidence-based community supervision. Criminal Justice and Behavior, 38(11), 1127–1148. https://doi.org/10.1177/0093854811420678 Bonta, J., Rugge, T., Scott, T. L., Bourgon, G., & Yessine, A. K. (2008). Exploring the black box of community supervision. Journal of Offender Rehabilitation, 47(3), 248–270. https://doi. org/10.1080/10509670802134085 Bottomley, A. (1990). Parole in transition: A comparative study of origins, developments, and prospects for the 1990s. Crime and Justice: Review of Research, 12, 319–374. https://doi. org/10.1086/449168 Bourgon, G., Bonta, J., Rugge, T., Scott, T.-L., & Yessine, A. K. (2010). Program design, implementation, and evaluation in “real world” community supervision. Federal Probation, 74(1), 2–15. Retrieved from https://www.uscourts.gov/sites/default/files/74_1_1_0.pdf Bourgon, G., Gutierrez, L., & Ashton, J. (2011). The evolution of community supervision practice: The transformation from case manager to change agent. Irish Probation Journal, 8, 28–48. Retrieved from http://www.probation.ie/EN/PB/0/002AB43E8625A47680258030003C3277/ $File/Bourgon.pdf Bull, M. (2010). Punishment and sentencing: Risk, rehabilitation, and restitution. Oxford University Press. Bushnell, A. (2018). Making community corrections work. Institute of Public Affairs. Retrieved from https://ipa.org.au/wp-­content/uploads/2018/05/Making-­Community-­Corrections-­Work-­ released-­14-­May-­2018.pdf Chadwick, N., Dewolf, A., & Serin, R. (2015). Effectively training community supervision officers: A meta-analytic review of the impact on offender outcome. Criminal Justice and Behavior, 42(10), 977–989. https://doi.org/10.1177/0093854815595661 Craig, L. A., Dixon, L., & Gannon, T. A. (Eds.). (2013). What works in offender rehabilitation: An evidence-based approach to assessment and treatment. Wiley-Blackwell.

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Chapter 16

Reimagining Probation Reform: Applying a Coaching Model to Probation Departments Brian K. Lovins, Lori A. Brusman Lovins, and Edward J. Latessa

Abstract  Over the past 20 years, the criminal justice system has been the focus of much-needed reform. Overwhelmed by the decades of “get tough” policies, the corrections system needs to be reimagined from top to bottom—with probation being front and center to any reform efforts. Serving nearly 4.5 million people a year, probation departments often fall under the radar as to their part in the corrections system. This chapter explores the ways in which probation departments, as well as probation officers, can realign their practice with the purpose of rehabilitation. Calling for evolution of probation from catching failure (referee probation) to one that focuses on improving success (probation coach)—this chapter challenges the system to truly reimagine probation. Probation administrators, operating like general managers of a team, are responsible for employing both staff and strategies that are aligned with rehabilitative goals. This chapter provides a guide for probation administrators to rethink how their agencies operate—shifting the focus from inputs to outputs—ultimately ensuring that the staff are provided an environment where they can evolve into hall of fame coaches. Keywords  Probation · Reform · Behavioral change · Coaching model · Organizational change

B. K. Lovins (*) Justice System Partners, South Easton, MA, USA e-mail: [email protected] L. A. Brusman Lovins Bowling Green State University, Bowling Green, OH, USA e-mail: [email protected] E. J. Latessa University of Cincinnati, Cincinnati, OH, USA e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_16

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While the United States’ community supervision system was born out of efforts to divert individuals from the prison system, it has become more of a pipeline to prison than a path to redemption (Phelps, 2017). One in 58 Americans were on probation or parole in 2018 (Kaeble & Alper, 2020). However, only half of those under community supervision complete successfully, ultimately resulting in hundreds of thousands entering jail or prison each year (The Pew Charitable Trusts, 2018). While much of the reform efforts have been on the bookends of the criminal justice system—pretrial detention and prisons—there has been a recent recognition that without significant probation reform it is nearly impossible to reimagine a different corrections system. This call for reform of probation does not come lightly. Decades of shifted priorities have produced a probation system that is overburdened, under-resourced, and misaligned with the goal of rehabilitation. To reform the criminal justice system is to reimagine probation. We must call on probation administrators, criminal justice stakeholders, and advocates to come together to create a space in which probation departments can do their best work. It is imperative that we rethink the probation department’s purpose and the probation officer’s role if we are going to make progress in the broader criminal justice reform. As the United States embarked on a two-decade long experiment with “tough on crime” policies, probation populations began to grow exponentially, resulting in nearly four times the number of people under community supervision over the course of 40  years (The Sentencing Project, 2020). This growth was not from a single change, but a multitude of different policies coming together to cause the perfect storm. To start, probation departments were used as a safety valve for the overgrowth of prisons. While this policy aimed to divert nonviolent offenders from prison, it also expanded those subject to long terms of community supervision. In addition to getting wider at the top, probation began to grow from the bottom as well, becoming the default sentence for individuals who were convicted on lower level, first-time offenses (e.g., driving while intoxicated, domestic violence, and theft). Finally, the length of probation sentences has grown significantly—in part to increase the punitiveness of probation (i.e., punishment/retribution) but also in an effort to deter future crime by expanding the time that a person can be monitored and held accountable for noncompliant behavior (i.e., deterrence). Not only did these changes have a significant impact on the number of people under supervision and how long they stayed on probation, but they also had a profound effect on probation officers’ day-to-day activities (Taxman, 2002). Once interested primarily in behavioral change, the role of the officer became more focused on monitoring compliance of rules (e.g., drug testing, treatment compliance, paying fees/fines/restitution, monitoring movement) and reporting any noncompliance to the court (Taxman, 2013). While rehabilitative principals were never fully abandoned, they were definitely curtailed for the “trail’em, nail’em, and jail’em” strategies that became more pervasive and engrained in the fabric of probation. This shift was underscored by the broken windows version of probation, which is centered around community safety via neighborhood surveillance and swift sanctions rather than rehabilitating the individual (Taxman & Byrne, 2001). All in all,

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the focus for officers became monitoring an ever-growing list of conditions in an effort to reduce criminal behavior more so than behavioral change. Over the past 10 years, probation departments have begun to shake off the remnants of the tough-on-crime era and have refocused their efforts on behavioral change. From framing probation within the Risk-Needs-Responsivity (RNR) principles to adopting core correctional practices, research has begun to show that public safety may be better achieved through building relationships with people on supervision, teaching new skills, and reinforcing positive change (Bonta et  al., 2011; Cullen et al., 2017; Skeem et al., 2007; Smith et al., 2012). But as suggested by Lovins et al. (2018), a greater shift is needed for the benefits of these new practices to be fully realized, a shift from the dichotomous view of probation officers as either a social worker or law enforcement officer to the “probation coach.”

 robation Officer as a Coach: Building a New P Professional Identity This new identity of a probation officer as a coach is critical to moving the probation field forward. If we want to improve probation practices, we must stop thinking like referees and start approaching our work as coaches. To put this into context, let us first consider a referee’s role in sports. Their job is to maintain the order of the game. They are provided a set of rules (in case of probation—conditions of supervision) and their primary role is to identify when players break those rules. They are fundamentally looking for failure in order to blow the whistle and issue a penalty. The referee’s part in a game is to ensure the rules are followed and teams play fairly. The primary means to ensuring that the game is played fairly is to consistently blow the whistle and shape player’s behavior into compliance through the threat of penalty and ultimately expulsion from the game. Now consider the role of a coach. It is to help their players be successful and win the game. A coach assesses a player’s talent, motivates players to improve, teaches new skills, holds players accountable, and ultimately is invested in the players getting better so that the team can win games. While coaches understand the rules of the game and teach their players to play within them, they do so for a different purpose. Their purpose is to keep their players on the field so that they can be successful. Effective coaches (we do recognize that not all coaches are good at their jobs) improve their players so that they can be successful. As Lovins et al. (2018) suggest, successful probation coaches would do the same. Instead of looking for failure (probation referee), probation coaches would be building for success. Less worried about what people on probation’s behavior at the time of placement and more focused on how to help them improve and be successful by the time they leave probation. This novel concept of probation officer as a coach challenged the status quo of the field’s conceptualization of a probation officer (Lovins et al., 2018). We called

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for probation officers to adopt a new professional identity, shifting their role from referee—someone whose job is to monitor rule compliance, and blow the whistle when rules are violated—to coach—someone who teaches, supports, and invests in player success. We even went as far as suggesting that officers, themselves, could change what they do within the context of their day-to-day work to adopt a coach role in supervising probationers. While we still believe that individuals have some capacity to shift their work, we are acutely aware that these changes cannot occur in a vacuum. What appears to be a small change from the outside has become a monumental task of peeling the onion, layer by layer, exposing additional “refereeing” practices that have been engrained in probation for more than 40 years—solidifying the need of probation officers to take on the role of coach more than ever. Maybe we were a bit naïve in our original work, but what we did not anticipate was how the role of officer or referee was engrained not only in the professional identity of the people who worked in the system but in the system itself. If the initial Probation Officer as a Coach: Building a New Professional Identity article was the path for probation officers to rethink their individual role in the system, this chapter provides the foundation for probation’s leaders to adopt a framework in which officers can truly adopt a probation coach role. Specifically, this chapter will focus on three core areas. First, we discuss the role of the administration in adopting a coach model of probation, suggesting that agencies must shift their infrastructure as much as line staff are expected to shift their professional identity. Second, we propose rethinking how probation works—suggesting that the conditions of probation model that has persisted for the past 100 years may not be the best model to affect change. Third, we suggest that probation departments need to rethink how they collect and use data in order to support the shift from referee to coach.

Probation Chief as a General Manager What would it mean for a probation chief to be a coach or even better yet a general manager? If probation officers are expected to be coaches then maybe the probation chief, as well as those overseeing probation practices (i.e., judges, departments of corrections), should reenvision themselves as general managers—putting together their best team of coaches to ensure a winning season. Sticking with the sports analogy, an effective general manager establishes an environment in which coaches and players can perform at their highest capacity. They provide a vision as to the goal of the team, establish guidelines that allow the team to flourish, and provide resources for coaches and the team to be successful. In Table 16.1, we updated the Probation Officer as a Referee vs. a Coach table (Lovins et al., 2018) to show how general managers, through the development of agency policies, protocols, and practices shape the role of the officer as much, if not more, than the individual identity of the officers themselves.

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Table 16.1  Probation agency as a general manager Dimensions of the officer role Referee agency 1.  Main job function Issue policies dictating line-level interventions; define how and when officers deliver interventions

Coaching agency Provide a framework in which coaches can deliver individualized interventions determined between probation coach and person on supervision 2.  Response to a rule Graduated sanction model in Develop a learning model which infraction which punishments are recognizes incremental growth and predetermined by administration provides coaches with the flexibility to teach new skills in the face of noncompliance 3.  Knowledge of Develop policies that ensure Develop practices that ensure that person on supervision assessments are completed in a the probation coach has a working timely fashion knowledge of people on their team (caseload) and that knowing a person goes beyond their criminogenic needs 4.  Relationship with Policies that maintain distance Develop policies that prioritize the the person on between officers and person on relationship between coach and supervision supervision (e.g., changing person on supervision. Match caseloads frequently) or people on supervision with coaches assigning people to officers based that best fit the needs of the person on caseload size 5.  Feedback to the Protocols to deliver warnings, Establish means to provide people person on supervision sanctions, and revocation on supervision with ongoing, real-time feedback as to their progress on supervision 6. Professional Establish audits and quality Focuses on competence fidelity expertise improvement to ensure that (Mathews, 2017) probation officers deliver services (operational assurance) 7. Organizational Oversight through fear and Learning environment culture compliance 8. Organizational Deliver services consistently and Provide an environment in which goal effectively coaches can affect the greatest change

Rule Enforcement vs. Behavioral Change Even as probation officers redefine themselves as coaches and shift from compliance monitoring to behavioral change efforts, they too often find themselves on an island, bucking existing policies and procedures and risking admonishment from their supervisors and managers. The current probation system is designed for probation officers to act as referees and not coaches. Take for example the conditions of probation and the role the officer plays in enforcing those conditions. Probation conditions start with absolutes (e.g., you must maintain employment, you must

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remain drug-free). Then probation officers are trained to watch for violations of these rules, write reports when noncompliance is present, and issue a punishment as predetermined by the progressive sanctions model. To best understand this process, we do not have to look any further than the current swift-certain-fair (SCF) probation strategies being employed throughout the United States. The SCF model has probation officers provide clear expectations to people on supervision, inform them ahead of time of the consequence for noncompliance, and if noncompliance occurs, swiftly enact the punishment—a quintessential referee (Nagin, 2016). As Cullen et al. (2016) found in an early analysis of the extant research on the SCF model, referees had no better impact on reducing recidivism and in most cases were found to be less effective than probation as usual. Regardless of whether a probation officer wants to be a coach or a referee, from the outset, the structure of conditions forces even the most coach-like person into a referee role. To support probation coaches, the orientation of the conditions would need to change. Currently focused on compliance and perfection, the rules would need to shift to change-oriented language to allow for the person on supervision to change over time. These change-oriented conditions would be written in futuristic, goal-oriented language—work towards full-time, quality employment, or strive for sobriety through engagement in treatment and support services. This language modification shifts the focus to change and growth, allowing for probation coaches to partner with the person on supervision to reinforce their success at making changes. Not only will these conditions support the role of a coach, but the change-­ oriented conditions will also provide hope to people on supervision. Often individuals start off probation failing almost every assigned condition, as they have not yet learned the skills or developed the support necessary to adapt their criminal behaviors.

Relationship with People on Supervision As we suggest in Lovins et al. (2018), probation coaches need to build healthy, professional relationships with the people on supervision. Referees are taught to be impartial—never getting too close to a person to ensure that they are not biased when applying the rules and sanctions. Armed with a tool kit that includes warnings, sanctions, and revocation, referees are inherently part of the system—maintaining order and applying the rules fairly. The ability of an individual probation officer to shift their focus from the system to the person is insurmountable without a similar shift in policy and procedures within the probation department. For probation coaches to make this shift, probation leaders will need to rewrite their policies and procedures to ensure that the probation department is centered around the person on supervision changing their behavior vs. centered around the conditions of supervision and compliance. While this sounds like a small detail, it is the crux of transforming referees to coaches. Coaches inherently are invested in their players. They recognize, for a team to win, they must get each player to

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perform at their best. Probation coaches are no different. The probation coach must see the value and talent that each person on their team (caseload) brings and invest in the person to help them improve their lives. To meet this, the probation department must establish policies and practices that allow for probation coaches to build rapport with each of the people on their caseload, develop individualized success (case) plans, and encourage coaches to develop small, innovative ways to support change within the individual and across the organization. Currently, probation departments operate more like assembly lines. The court places a person on supervision with conditions, the intake/assessment officer conducts an assessment, the person on supervision is randomly assigned to an officer, based on caseload size or geographic location, and reassigned when convenient to the probation department. With each change in officer, the person on supervision needs to retell their story, the officer needs to relearn their strengths and limitations, and establish trust and rapport again, and the process starts all over. The system often prioritizes efficiency over effectiveness. A probation department interested in supporting coaches must rethink the process from the beginning. The initial intake would include an assessment of the person’s needs and assets. Conditions of supervision would be derived from this assessment. Hence, an inventory would be made of the person’s skills and talents, as well as areas of need, and a success plan would be developed from the beginning—forming the basis of the conditions (vs. conditions dictating case plan requirements). Once ordered to supervision, the probation department would match the person with a coach that fits the individual needs of the person on supervision. Instead of a focus on balancing caseload sizes, the probation department would establish a matching algorithm that would place people on supervision with a coach that had specific skills/attributes that match the needs of that person. From there, the probation department would work to keep that relationship intact as long as it was producing success. Efforts to retain staff would be prioritized. Strategies to keep people with the same probation coach would be developed such as allowing for virtual connections or requiring fewer physical check-ins with probation as people move about the jurisdiction. And ultimately, measuring the success of both staff and people on supervision to ensure that the best match is occurring is important.

Correctional Agency Mission As we have discussed, asking staff to shift from referee to coach is not enough to truly move probation departments forward. The role of the probation coach is couched in the orientation of the agency as much as it is in the professional identity of the staff. We offer the following chart (Fig. 16.1) as a way to visualize the need for both the officer and organization to change in order for the agency to be able to produce high-quality interactions that lead moderate and high-risk persons to be successful.

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Agency

Coach-like Agency

• • • •

Refereelike agency

• • •

Administration is frustrated staff are not operating like coaches Policy and practice do not match (coach policy, referee practice) Low risk/self-correctors do well Moderate to high risk people fail Staff are content because practice equals policy Fair, just, and equitable interactions occur Low risk/self-correctors do well High rates of technical violations for moderate to high risk people Referee (staff)

• • •

• • •

Staff are inspired to help people change Leads to adoption of EBPs Moderate to high risk people improve success Frustrated staff Policy and practice do not match (referee policy/coach practice) Mixed messages to individual on supervision

Coach (staff) Staff

Fig. 16.1  Coaching framework applied to organizations and staff

As we think about probation reform, we must examine the context in which staff work, rather than only the staff themselves. Based on the above figure, agencies that are referee-oriented (measure transactions, apply rules/consequences) that also have staff who have a referee identity produce content staff (referees), deliver fair, just, and equitable interventions, and work well for people who are capable of self-­ correction. But as we call for staff to reorient themselves to a coaching perspective, the referee agency becomes a source of contention for coaches. The policies and procedures designed to create consistency and equity become limiting to coaches. Interested in helping their “players” improve, coaches find themselves frustrated with the prescribed structure in which they are expected to change behavior—often resulting in coaches either leaving or conforming to the referee nature of the agency. Further, individuals on supervision get mixed messages, leading to confusion, frustration, and mistrust. In contrast, agencies and leaders who see their organization as a place for coaches—rewriting policies to support coaching efforts, quickly find that referee-­ oriented staff do not readily shift their perspective to coach just because the policies change. Street-level bureaucrats, (in this case probation officers), as described by Lipskey (2020) “exercise discretion to control the work situation….[they] have a significant say in the rules under which they are employed” (p. 189). If probation officers maintain a referee orientation, efforts of the agency to adopt a coach-like environment are usurped, leading to disjointed policy and practice and frustrated management. For the probation department to truly reform, both agency and staff must be in alignment with a coaching philosophy. The agency creating a context in which staff can adopt coaching identities and staff who readily accept their role as coaches. This creates a perfect storm, leading to inspired staff and a culture of learning, one in which the people on supervision who need the most help (moderate to high risk) are embraced and efforts to improve their lives becomes the central mission.

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 robation Departments as a Coaching Organization: Three Key P Infrastructural Changes As we have suggested, departments that want their staff to adopt coaching identities must also look at their own identity for the transformation to be truly impactful. A coaching organization wants to provide an environment in which probation coaches can do their best work in helping people on supervision “win.” A referee-oriented organization wants to ensure that probation officers monitor compliance, blow the whistle when violations occur, and issue a sanction. The ultimate goal of a referee-­ oriented organization is to achieve behavioral compliance from both staff and persons on supervision—the ultimate goal of a coach-oriented organization is to empower staff to help improve people’s lives. A coach-oriented agency is interested in their winning record—judged by their wins and losses, while referee-oriented agencies are assessed on their ability to monitor compliance consistently and equitably. While we still believe that individual probation officers can operate as a probation coach, we are convinced more than ever that the organization in which they work has a significant impact on their ability to perform effectively as a coach. We provide three key characteristics that agencies must have to be team owners that support probation coaches: (1) they are purpose-driven; (2) they support “winning;” and (3) they create a learning environment. Referee-oriented probation agencies may not value these strategies, but for agencies that want to be coach-oriented, they are essential. First, a coach-oriented agency must be purpose-driven. Without a well-defined purpose, agencies and staff can lose focus on their primary mission and risk slipping into “places [that] reek of apathy and neglect” (Rodriguez, 2019). In a recent study of 502 business leaders across 39 unique industries, PricewaterhouseCoopers (2016, p. 16) found that 79% of leaders reported that purpose is central to their business success; however, only 34% reported that purpose was the guidepost for decision-­ making within their organization. For agencies that want to adopt coach-oriented approaches, the purpose must be front and center. While referee-oriented agencies may still find purpose, it is vital for coach-­ oriented agencies to lead with purpose. Probation departments can easily slip into routinization, losing focus on the transformational aspect of their work, instead of becoming transactional. As Schiraldi (Rodriguez, 2019) points out, “if they revoke somebody and send them to prison nothing happens to them, but if they take a chance on someone, and it goes south they’re screwed.” This fear of the “bad case” often permeates throughout the probation system and is the focus of many department’s policies and practices. Purpose-driven agencies will resist the temptation to focus on the “bad case” and will create an infrastructure that drives their defined purpose throughout all levels of decision-making. Closely aligned with purpose, the second characteristic of coach-oriented agencies is a focus on winning. Referee-oriented agencies do not have win/loss records. They “win” if the rules are applied consistently and equitably. In the same way,

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ejecting a player from a football game is not considered a negative measure for a referee, revocation rates are not necessarily a negative measure for referee-oriented probation departments. In fact, for many probation departments, revocations are seen as a necessary outcome of doing their jobs. If a person violates the conditions of supervision, it is their job to blow the whistle and report those violations to court. If the court revokes a person’s supervision, it reflects that person’s noncompliance rather than the probation department’s failure. A coach-oriented organization takes a different approach. Hand in hand with purpose, a probation department would focus on improving successful completion of supervision. To do this, agencies would have to first, know their winning record. A study by The Pew Charitable Trusts (2018) reported that nearly 50% of people on probation are discharged for a reason other than successful completion. Interestingly, as we drill down to individual probation departments and even further to individual staff, it is quite rare for a probation officer or even a probation department to know their win/loss record. Often, probation departments track how many people they supervise, how many contacts are required and completed, and how many conditions are assigned and met, but probation agencies typically fail to measure whether a person is successful at changing their behavior (Blasko et al., 2016). The coach-­ oriented probation department would develop real-time dashboards that helped agencies, probation coaches, and even people on supervision measure their successes. Probation departments would post their success rates on their website, for all to see, and build coalitions within and outside the department to actively work towards improving their outcomes. The third characteristic of coach-oriented probation departments is an environment where learning is cultivated and rewarded. Senge (2006) suggests that the most effective companies are comprised of five core components: systems thinking, personal mastery, mental models, building shared vision, and team learning. Typical referee-oriented probation departments fail at all five of these, instead choosing to focus on hierarchical structures that operate on control-oriented strategies instead of learning principles. Policies and practices are often dictated from top-down communication; prescribing what a probation officer will do with people on supervision and when they will do it. To manage the work, probation departments often disaggregate the larger purpose of a probation officer’s work to a checklist format. Complete an assessment, develop a case plan, make a referral to a substance abuse treatment program—these activities become transactional, losing the purpose of why they are done and turning into a “get them done and move on” approach. Coach-oriented probation departments would benefit from reorienting their departments to be learning environments. The first step is to help probation coaches take a step back and see the bigger system. Behavior is interconnected. A person’s actions today are not in isolation, but imbedded in a series of decisions, all predicated on the previous one. The same is true with the infusion of evidence-based practices. Any single activity in itself is not very useful. Take the use of risk assessment as an example. Adopting a tool but not incorporating it into decision-making renders it useless. It is only when we pair risk assessment with a success plan (case plan) that the risk assessment findings become useful. But even a well-constructed

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success plan that is informed by assessment is not of value until skill-building and incremental measures of improvement (not compliance) are implemented. Together, these tools or strategies create a space in which probation coaches can join with a person on probation to see the bigger picture of how their life can improve. Separately, these tools are done in isolation and the bigger picture is lost to the transactional nature of “getting them done.” The second step in creating a learning environment is personal mastery. For probation coaches to be successful, they must be incredibly proficient in being a change agent. Working with moderate to high-risk individuals on supervision takes patience, skills, and commitment to getting better at your craft. Even in the business world, companies that create hierarchical structures produce staff that just put in their time. “People enter business as bright, well-educated, high-energy people, full of energy and desire to make a difference. By the time they are 30, [many just] put in their time [at work] to do what matters to them on the weekend. They lose the commitment, the sense of mission, and the excitement with which they started their careers. We get damn little of their energy and almost none of their spirit” (Senge, 2006, p. 6). A coach-oriented organization would create an environment in which the probation coaches are challenged to continue to grow, striving to learn new ways to help people improve their lives. Third, coach-oriented departments would work towards building a shared vision of the work. Often, when coach-oriented leaders recognize the need for a vision of the work, they deliver their personal vision of what they want the organization to look like in the future. Depending on the leader’s characteristics, they can temporarily champion the vision, but unless they work with their staff to build a shared vision, the energy and commitment to that vision begins to wane. Coach-oriented departments would work to develop a shared vision in which the staff would contribute their perspective of the work—leadership would engage staff in meaningful exploration of what it would look like for a probation department to have a long-­ term impact on people’s lives. The fourth step in creating a learning environment for agencies is to adopt a team learning perspective, resulting in ongoing strides to learn more effective strategies to help people improve their lives and remain crime-free in the future. In referee-­ oriented departments, much like a sports referee, the rules are updated from the top and then implemented on the ground. Once the new rule is implemented and staff learn to adapt it to the work, the learning is over until the next new rule change. The result is an organization that has all the right parts—risk assessment, evidence-­ based treatment programs, training in core correctional practices—but agencies that have not figured out how to put these pieces together to evoke real change. Once effective strategies are contextualized into the agency’s infrastructure, organizations will finally be able to create an environment in which staff can successfully transform from referee to coach, as they have both the vision and competencies to do so.

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Benefits of a Coaching Organization Over the past 20 years, probation departments across the United States have invested a significant number of resources in training their officers in core correctional practices. From EPICS (Effective Practices in Community Supervision) to the Carey Guides, probation officers have been trained in techniques to help people on supervision change their behavior. Unfortunately, probation departments have routinely focused on the “what” they are doing and not the “why” and the “how.” With a focus on the delivery of interventions, we have forgotten that the context in which those services are delivered matters as well. While we suggest the benefits of probation departments moving to a coaching model are great, ultimately this is a question left to future research studies. We imagine as probation departments take up new purposes and their leaders face new challenges; some will aspire to match organizational context with operational content. This will allow us to measure the impact when probation coaches work within organizations that are designed to let them be coaches. Until then, we can only offer what we believe to be the potential benefits of matching context with content. First, organizations that are coach-like will see their players (staff members) as the greatest assets. Without them, you cannot win. This means changing how we create environments to ensure staff can do their greatest work. This would take a reinvestment in technology to improve effectiveness and efficiency and ensure that staff have the most up-to-date tools to help improve their service delivery. It also means recognizing the skills, passion, and innovation that coaches bring to the table and allowing them the autonomy to produce winning records. And ultimately, organizations must develop a learning culture in which staff can be supported in growing their skills over time. Second, coach-like organizations will change the dialog from discussing failure to celebrating success. Too often our probation departments, and corrections in general, are about minimizing risk and avoiding failure. A coach-like organization is not going to “try not to lose” but is going to embrace winning—creating an environment where staff that produce results (behavioral change) are recognized for their work (see Cullen et al., 2012, 2017; Lovins et al., 2018). Currently, agencies create elaborate schemes to monitor the inputs of probation officers’ work. Using algorithms to ensure they meet contact standards, tracking timeliness of paperwork, and ensuring compliance to conditions, agencies have been focused on the inputs, but have not created great ways to measure the outcomes of officer interventions. Quality improvement departments, often focused on operational assurance, leads to audit systems that check boxes and ensure completion of tasks (see Cheng & Lam, 2012). A coach-like organization is going to be more interested in measuring the impact of interventions, not the interventions themselves, leading to a focus on competence fidelity (Berliner et al., 2013; Cross & West, 2011; Mathews & Linski, 2016). This will allow for probation coaches to directly tie what they do with what impact it has on the people they serve, to ensure that staff are delivering services that make a difference.

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Third, and finally, organizations that adopt a coach-like model can rethink their policies and procedures to ensure the best outcome for the people it serves. In an authoritarian (referee-like) organization, the policies are often written as a top-down process—assuring compliance over quality. For example, leaders in corrections often believe that services delivered by probation officers need to be individualized and personalized to the person on supervision, but then they write policies that dictate how probation officers will act (e.g., contact standards). A coach-like organization would create policies that allow for probation officers to develop individualized success plans informed by science and shaped by the needs of the person on supervision.

Conclusion: Building a Field for Probation Coaches Identities matter, but so does the context in which people operate (Goodwin et al., 2017; McAdams, 2001). To shift the system forward and truly reform the corrections system, we must focus on both the orientation of the agency and the professional identity of the probation officer. Agency level transformation would shift probation departments from hierarchical, top-down organizations to more organic places in which work is aligned with purpose is important so that those people on supervision can get better. But that alone will not make the system better either. We must simultaneously change the professional identities of staff from referees to coaches as well. Having probation coaches completely changes the purpose of the role—from catching failure to growing success. The call for probation coaches is a call to staff to find their purpose, to lean in, and help people placed on supervision find a path forward to success. The shift from referee to coach cannot be just in name but would result in a fundamental shift in probation—from managing the system to focusing on the individual, from managing risk and failure to promoting success. Ultimately, the future of probation hangs in the balance. As the probation system is “marked by high stakes, missed opportunities” (The Pew Charitable Trusts, 2018), it is time to challenge ourselves to adopt a rehabilitative model that is congruent with the values of this country. It is time that our probation departments are no longer pipelines to prison, but places for hope, inspiration, and change. It is imperative that probation departments adopt a new perspective to help move criminal justice reform forward. They are intricate spoke in the wheel of criminal justice and without an evolutionary change like shifting from referee to coach—any criminal justice reform could be lost. For many, this will be too bold, requiring too much change. But for some forward-thinking leaders, changing their organization’s structure to promote coaching is the necessary shift to help tip the scales of criminal justice reform.

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References Berliner, L., Dorsey, S., Sedlar, G., Jungbluth, N., & Merchant, L. (2013). Everyday competence and fidelity for EBP organizations: Practical guide. Washington State Division of Behavioral Health and Recovery. Retrieved from https://depts.washington.edu/uwhatc/PDF/TF-­%20 CBT/pages/Theoretical%20Perspective/Everyday%20Competence%20and%20Fidelity%20 Guide-­2013.pdf Blasko, B.  L., Souza, K.  A., Via, B., Del Principe, S., & Taxman, F.  S. (2016). Performance measures in community corrections: Measuring effective supervision practices with existing agency data. Federal Probation Journal, 80(3), 26–32. Retrieved from https://www.uscourts. gov/sites/default/files/80_3_3_0.pdf Bonta, J., Bourgon, G., Rugge, T., Scott, T.-L., Yessine, A.  K., Gutierrez, L., & Li, J. (2011). An experimental demonstration of training probation officers in evidence-based community supervision. Criminal Justice and Behavior, 38(11), 1127–1148. https://doi. org/10.1177/0093854811420678 Cheng, R. K. W., & Lam, R. C. M. (2012). The concept of operations assurance and its application in metro railway. In Y.-Q.  Ni & X.-W.  Ye (Eds.), Proceedings of the 1st international workshop on high-speed and intercity railways (pp.  455–466). Springer. https://doi. org/10.1007/978-­3-­642-­27963-­8_41 Cross, W., & West, J. (2011). Examining implementer fidelity: Conceptualizing and measuring adherence and competence. Journal of Children’s Services, 6(1), 18–33. https://doi. org/10.5042/jcs.2011.0123 Cullen, F. T., Jonson, C. L., & Eck, J. E. (2012). The accountable prison. Journal of Contemporary Criminal Justice, 28(1), 77–95. https://doi.org/10.1177/1043986211432202 Cullen, F. T., Jonson, C. L., & Mears, D. P. (2017). Reinventing community corrections. In M. Tonry & D. S. Nagin (Eds.), Reinventing American criminal justice—Crime and justice: A review of research (Vol. 46, pp. 27–93). University of Chicago Press. https://doi.org/10.1086/688457 Cullen, F. T., Pratt, T. C., & Turanovic, J. J. (2016). It’s hopeless: Beyond zero-tolerance supervision. Criminology & Public Policy, 15(4), 1215–1227. https://doi.org/10.1111/1745-­9133.12260 Goodwin, A. L., Low, E.-L., & Darling-Hammond, L. (2017). Empowered educators in Singapore: How high-performing systems shape teaching quality. Wiley. Kaeble, D., & Alper, M. (2020, August). Probation and parole in the United States, 2017-2018. Bureau of Justice Statistics. Retrieved from https://www.bjs.gov/content/pub/pdf/ppus1718.pdf Lipskey, M. (2020). Street-level bureaucracy: Dilemmas of the individual in public services. Russell Sage Foundation. Lovins, B. K., Cullen, F. T., Latessa, E. J., & Jonson, C. L. (2018). Probation officer as a coach: Building a new professional identity. Federal Probation Journal, 82(1), 13–19. Retrieved from https://www.uscourts.gov/sites/default/files/82_1_2_0.pdf Mathews, B. (2017). We need to evolve correctional quality management in the era of evidence-­based practices. LinkedIn. Retrieved from https://www.linkedin.com/pulse/ we-­need-­evolve-­correctional-­quality-­management-­era-­mathews-­d-­m-/ Mathews, B., & Linski, C. M. (2016). Shifting the paradigm: Reevaluating resistance to organizational change. Journal of Organizational Change Management, 29(6), 963–972. https://doi. org/10.1108/JOCM-­03-­2016-­0058 McAdams, D.  P. (2001). The psychology of life stories. Review of General Psychology, 5(2), 100–122. https://doi.org/10.1037/1089-­2680.5.2.100 Nagin, D. (2016). Project HOPE: Does it work? Criminology and Public Policy, 15(4), 1005–1007. https://doi.org/10.1111/1745-­9133.12263 Phelps, M. (2017). Mass probation: Toward a more robust theory of state variation in punishment. Punishment & Society, 19(1), 53–73. https://doi.org/10.1177/1462474516649174 PricewaterhouseCoopers. (2016). Putting purpose to work: A study of purpose in the workplace. Retrieved from https://www.pwc.com/us/en/about-­us/corporate-­responsibility/assets/pwc-­ putting-­purpose-­to-­work-­purpose-­survey-­report.pdf

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Rodriguez, I. (2019, March 1). Does community supervision have a future?The Crime Report. Retrieved from https://thecrimereport.org/2019/03/01/does-­community-­supervision-­have-­a-­future/ Senge, P. (2006). The fifth discipline: The art and practice of the learning organization. Crown Publishing Group. Skeem, J. L., Louden, J. E., Polaschek, D., & Camp, J. (2007). Assessing relationship quality in mandated community treatment: Blending care with control. Psychological Assessment, 19(4), 397–410. https://doi.org/10.1037/1040-­3590.19.4.397 Smith, P., Schweitzer, M., Labrecque, R. M., & Latessa, E. J. (2012). Improving probation officers’ supervision skills: An evaluation of the EPICS model. Journal of Crime and Justice, 35(2), 189–199. https://doi.org/10.1080/0735648X.2012.674826 Taxman, F. (2013). 7 steps to improved EBP implementation. Federal Probation, 77(2), 76–86. Retrieved from https://www.uscourts.gov/sites/default/files/77_2_13_0.pdf Taxman, F. S. (2002). Supervision—Exploring the dimensions of effectiveness. Federal Probation, 66(2), 14–27. Retrieved from https://www.uscourts.gov/sites/default/files/66_2_3_0.pdf Taxman, F.  S., & Byrne, J.  M. (2001). The truth about “broken windows” probation: Moving towards a proactive community supervision model. Perspectives: Journal of the American Probation and Parole Association, 25. The Pew Charitable Trusts. (2018). Probation and parole systems marked by high stakes, missed opportunities. Retrieved from https://www.pewtrusts.org/-­/media/assets/2018/09/probation_ and_parole_systems_marked_by_high_stakes_missed_opportunities_pew.pdf The Sentencing Project. (2020). Fact sheet: Trends in U.S. corrections. Retrieved from https:// www.sentencingproject.org/publications/trends-­in-­u-­s-­corrections/

Chapter 17

Juvenile Probation Reform: Moving from Surveillance to Effective Intervention Emily Haney-Caron and Sydney Baker

Abstract  Probation is the most common disposition for justice-involved youth. Traditional approaches to probation expect perfect compliance with probation conditions and utilize surveillance strategies to identify noncompliance. Youth have difficulties successfully completing probation, and in many instances receive additional sanctions for noncompliance, including incarceration. Furthermore, traditional approaches to probation are not associated with a reduction in recidivism. These traditional approaches to juvenile probation do not reflect research on cognitive and socioemotional development, nor do they utilize a burgeoning literature on effective interventions for justice-involved youth. This chapter reviews developmental science and its applications to juvenile probation and provides recommendations for reforming juvenile probation in line with developmental science. Next, this chapter discusses how principles of the Risk-Need-Responsivity model and Graduated Response can inform successful approaches to probation reform. This chapter also outlines ideal strategies for youth probation officers to implement during case management. Finally, this chapter concludes with a call for policy changes and recommendations for future research, both of which are crucial to ensure effective juvenile probation reform. Keywords  Probation · Juvenile justice · Evidence-based practice · Graduated response · Risk-need-responsivity Juvenile probation is designed to keep youth in their communities, providing an alternative to placement in residential, secure juvenile justice facilities (Mendel, 2018). Because of the significant drawbacks of incarcerating youth (e.g., increased recidivism; reduced mental health; disconnection from family and community resources; potential abuses within facilities; Harvell et  al., 2018), probation is a E. Haney-Caron (*) · S. Baker John Jay College of Criminal Justice and the Graduate Center, City University of New York, New York, NY, USA e-mail: [email protected]; [email protected]

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critical tool for improving outcomes for justice-involved youth while still providing sanctions for delinquent behavior. In 2018, juvenile courts handled approximately 744,500 delinquency cases and 97,800 status offense cases (Hockenberry & Puzzanchera, 2020). During the same year, out of cases in which youth were adjudicated delinquent, 63% were sanctioned to probation, and out of cases in which youth were adjudicated as a status offender (that is, adjudicated for an offense that is only illegal because of the youth’s status as a minor, such as truancy or running away), 59% were sanctioned to probation (Hockenberry & Puzzanchera, 2020). Probation has consistently been the most common disposition for youth in the justice system and, although probation programs have promise as an important alternative to incarceration, traditional approaches to probation have some significant limitations ripe for evidence-based reform. This chapter will begin by describing the traditional youth probation model and its limitations. Then, we will provide a brief overview of the literature regarding adolescent development, as well as recommendations for how juvenile probation procedures should be guided by adolescent development science. This will be followed by a discussion of how the Risk-Need-­ Responsivity model and Graduated Response should be applied when designing the ideal juvenile probation system and to inform case management practices. Finally, this chapter will conclude with a discussion of policy recommendations and future research needed to ensure the success of juvenile probation reform.

Traditional Probation Model and Its Limitations The United States juvenile justice system was developed in the late nineteenth century to rehabilitate youth who were engaged in criminal behavior (Ward, 2013). Prior to the advent of separate juvenile courts, youth crimes were either handled within the family or within the adult criminal justice system. Juvenile courts were intended to provide a paternalistic system to save those deemed amenable to rehabilitation—usually White immigrant youth—“from a downward career” (Mack, 1909; Ward, 2013). This approach is in stark contrast to the adult criminal justice system’s focus on retribution. Over the past century, the juvenile justice system has retained an expressed commitment to youth rehabilitation. However, this commitment has been paralleled by an increasing public interest in retribution and crime control, which has led to a shift toward a more punitive approach to juvenile justice (Redding et al., 2005). Currently, the juvenile justice system provides separate processes for handling juvenile delinquency, with mechanisms in place for continuing to process some youth within the adult criminal justice system, while also often treating youth as if they have the same level of culpability and competence as adults (Feld, 2017). Juvenile justice dispositions are intended to help youth develop into productive members of society, yet are often not designed in ways conducive to the achievement of this goal. Although the juvenile justice system’s goals differ from the goals of the adult criminal justice system, traditionally, juvenile probation is similar to adult

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probation, in its focus on surveillance, structure, and definition of and response to noncompliance (Steiner et al., 2004). When a youth is adjudicated as a delinquent in juvenile court and the resulting disposition is probation, several steps typically occur: the judge gives the youth a number of probation conditions with which they are expected to comply, the court assigns a probation officer, and the probation officer regularly monitors the youth’s behavior for the duration of the youth’s time on probation (Goldstein et al., 2016). The number of probation requirements given to a youth at a time can vary depending on the case and on the judge; however, some research shows youth may be expected to comply with as many as 30 requirements at one time (Mendel, 2018). Probation requirements commonly include attending regular meetings with the probation officer, attending school, submitting to (and passing) drug screens, abiding by a curfew, completing community service, completing counseling or treatment programs, and paying restitution, fines, or court costs (NeMoyer et al., 2014). Under a traditional probation structure, probation conditions may reflect the youth’s specific challenges or offense or may be imposed on all youth regardless of their specific situation (Schwartz, 2018). Often, probation compliance is defined as perfect compliance—that is, a youth is expected to adhere to each of the conditions the court has set, 100% of the time, from Day 1 (Goldstein et al., 2016). To successfully complete probation, a youth is expected to continue to achieve perfect compliance throughout the probation period, and any missteps may result in increased sanctions (Goldstein et al., 2016). Probation may be for a specific period of time (e.g., 6–9 months) as is typical for adult probation, but can also be open-ended, such that a youth is kept on probation and expected to continue to comply until the judge is satisfied with the youth’s progress and decides to close the case (Sickmund, 2003). During that period, the youth typically has periodic court dates during which the judge reviews the youth’s progress and compliance with probation requirements, informed by the probation officer’s report to the court (Goldstein et al., 2016). If the judge believes the youth’s noncompliance warrants probation revocation, the judge can discontinue probation and instead incarcerate the youth as an alternative sanction (Sickmund, 2003), even if the noncompliance is minor or normative behavior in adolescence (e.g., missing school). Alternatively, the judge may sanction a youth with increased probation conditions or other sanctions short of incarceration (Mendel, 2018). Under this traditional probation approach, youth are not rewarded or reinforced for improved compliance or probation success; the only reinforcement comes at the very end of probation when the youth is successfully discharged and released from court supervision (Mendel, 2018). Instead, the focus is on surveilling youth and punishing mistakes, often only once the youth returns to court for a review hearing, with no immediate consequences for either positive or negative behavior (Goldstein et al., 2016). Thus, to be successful on probation, youth must remember a (potentially quite large) number of conditions, understand how to follow the conditions that have been imposed, and consistently make choices that are in compliance with probation requirements regardless of the situations in which they find themselves. This requires that youth learn from and be motivated by distal punishment in the absence of any rewards or immediate consequences.

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Unfortunately, this traditional approach to probation has a number of limitations. First, and perhaps most concerning, probation either fails to have any effect on recidivism or, in some instances, may actually be associated with worse outcomes related to community safety (e.g., Robinson et al., 2012). Second, when youth are on probation, they have difficulty consistently doing what they are being asked to do; 40–52% of youth fail to comply fully with probation (Adams et  al., 2002; NeMoyer et al., 2014) and, in many jurisdictions, large numbers of youth are incarcerated for a “technical” violation of probation even in the absence of any new delinquent behavior—potentially accounting for a third to a half of residential placements of juvenile justice-involved youth (Mendel, 2018). Finally, traditional probation often fails to realize racial equity and instead reinforces patterns of pushing youth of Color further into the justice system. Black youth are more often perceived by juvenile courts as noncompliant with probation, and systems actors (e.g., judges, probation officers) are likely to make characterizations of probationer youth and their families based on race (Smith et al., 2009). Additionally, incarceration for technical violations grossly disproportionately impacts youth of Color, such that youth of Color—especially Black and Latinx youth—make up the large majority of youth in residential placement for probation noncompliance (Mendel, 2018). Accordingly, juvenile probation is ripe for system reform to address these limitations. Ideally, any reforms in this area would be guided by and reflect adolescent developmental capacities and needs, as well as reflect the need for equitable practices.

Adolescent Development Youth on juvenile probation are different from adults on probation in important ways, and understanding foundations of adolescent development are critical for designing effective probation processes. During adolescence, the brain undergoes physical changes that have direct implications for youth behavior, including how they respond to and are able to navigate aspects of the juvenile justice system. The limbic system, which is a set of neural structures involved in emotion and memory, matures during adolescence, and activity in this region is greater in adolescence than in adulthood (Casey et  al., 2019). The limbic system houses the amygdala, which is responsible for emotion and motivation regulation, and the nucleus accumbens, which processes reward. Therefore, youths’ behaviors tend to be heavily influenced by their desire for positive emotions and inability to tolerate negative emotions. In contrast to the limbic system, the prefrontal cortex develops slowly throughout adolescence and into early adulthood (Casey et al., 2019). The prefrontal cortex is responsible for higher-order executive functioning abilities, such as the ability to engage in behavioral inhibition, long-term planning, and problem-solving. Specifically, synaptic pruning, a reduction in the number of unused neurons and synapses, and myelination, an increase in neural tissue insulation, continue to occur in the prefrontal cortex throughout adolescence (Cauffman & Steinberg, 2012). As

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youth transition into young adulthood, synaptic pruning and myelination together create greater efficiency of neural connections, contributing to the development of complex cognitive abilities. During the period in which the limbic system is fully developed but the prefrontal cortex is still maturing, emotional processes are likely to exert control over executive functions, especially in emotionally charged situations in which the limbic system is activated. In emotional contexts, the allure of anticipated immediate rewards can overpower the knowledge of long-term negative consequences, resulting in an increase in risk-taking, impulsivity, and sensation-seeking (Cohen & Casey, 2014). Cognitive development (e.g., information processing and logical thinking) plateaus around age 16, but youth continue to struggle with integrating aspects such as feedback, probability, intertemporal choice into the decision making process (Hartley & Somerville, 2015). Youth are not likely to consider all possible outcomes, and therefore their behaviors may not be deliberate. In addition, adolescents struggle with behavioral inhibition, so even when they do “know better,” they still may make poor decisions. Furthermore, around puberty, changes in the dopaminergic system have consequences for reward processing that also contribute to a rise in risky behavior. Increased levels of dopamine, the neurotransmitter responsible for sensitivity to reward and anticipation of reward, are seen in the prefrontal cortex, resulting in heightened sensitivity to rewarding stimuli (Hoops & Flores, 2017). Taking risks and receiving approval from peers are particularly rewarding for youth. Youth are therefore more prone to risk-taking than adults, especially in the presence of their peers (Centifanti et al., 2016; Defoe et al., 2015). Adolescents’ susceptibility to peer pressure can make it difficult for them to resist the influence of their friends who encourage them to engage in antisocial behavior. Risk-taking, impulsivity, and sensation-seeking are all developmentally typical behaviors for youth (Arain et al., 2013). In fact, these behaviors may benefit youth by encouraging them to explore new contexts and develop new social skills (Crone & Dahl, 2012). Considering adolescent cognitive and socioemotional development is particularly important when designing models for youth probation (Goldstein et al., 2016). For example, harsh punishments for failure to comply with probation requirements are not developmentally aligned with youths’ cognitive and socioemotional abilities. Even when youth know what the probation requirements are, their immature executive functioning skills put them at risk for violating requirements anyway, as they are less readily able to inhibit noncompliant behaviors. Not only is some degree of delinquent behavior a normative aspect of adolescent development, but it is also transient and likely to desist without intervention (Moffitt, 1993; Steinberg et  al., 2015). As adolescents age, their brains become better equipped to regulate their emotions and impulses, which translates to a reduction in criminal behavior. Indeed, the development of psychosocial maturity from adolescence to young adulthood is associated with a decline in antisocial acts (Monahan et al., 2009). Sanctions that are too punitive can actually disrupt this natural process, leading to the opposite of the desired effect. For example, juveniles transferred to the adult criminal justice system have an increased risk of violent recidivism, even

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when controlling for criminal history (McGowan et al., 2007). Because adolescent delinquency is primed by development factors out of which youth naturally mature, juvenile justice system policies must rely on interventions that promote healthy development.

Applying Adolescent Development Science to Probation In designing or evaluating a juvenile probation system, it is important to be mindful of key aspects of adolescent development. Specifically, given relevant science on adolescent cognitive and emotional development, probation systems should recognize that adolescents will continue to make impulsive decisions. Probation should be structured to support positive decision making by youth by capitalizing on what we know about adolescent responsiveness to reward. Additionally, a juvenile probation system shaped by adolescent development science would view youth risk-­ taking and delinquency as time-limited. Such an approach would provide a foundation for youth success on probation, and, therefore, better outcomes for the community. First, if a probation program is developed from an understanding that youth are developmentally primed to make risky or impulsive decisions, the program would then give youth multiple opportunities to work toward improved compliance, rather than expecting perfect, consistent performance from the beginning. Even when youth are committed to succeeding on probation, the developmental science reviewed above suggests that in some circumstances (e.g., when peers are present or in emotionally charged situations), youth will struggle to inhibit impulses to engage in behaviors that violate probation conditions (Centifanti et  al., 2016; Cohen & Casey, 2014). Expecting some youth error and allowing for some degree of noncompliance with probation requirements recognizes the unique developmental characteristics of adolescence and gives youth on probation an opportunity to work toward increased compliance even after engaging in impulsive action (Goldstein et al., 2016). Second, probation programs would ideally provide a structure for youths’ probation experiences that encourage positive decision  making, both helping youth strengthen decision making skills and at the same time including opportunities for youth to improve their ability to successfully follow through on probation expectations (Schwartz, 2018). This would mean considering youth developmental capacities when determining the number of probation requirements given at one time and the regularity with which probation staff review expectations with youth (Goldstein et al., 2016). Additionally, probation would be structured in such a way that guides youth in identifying both the long- and short-term consequences of choices they will likely need to make in daily life (e.g., whether to go to school or skip school to meet up with friends) and helps youth make decisions in advance to reduce the likelihood of impulsive noncompliance.

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Third, a developmentally informed approach to juvenile probation would capitalize on developmental science illustrating enhanced responsiveness to reward in the adolescent brain. This would mean shifting away from punishing youth noncompliance and, instead, focusing on catching kids being good. As described further below, such an approach is also consistent with science on behavior change. To do this, probation officers and judges would need to reward youth for positive behavior, making probation compliance actually rewarding, rather than relying on the use of punishment for probation noncompliance (Walker et al., 2019). Such an approach would aim to make probation compliance as—or more—reinforcing in the short-­term than the natural positive reinforcement (e.g., peer approval; fun; excitement) youth often experience from violating probation conditions. Finally, developmental science on adolescent risk-taking is supported by criminal justice research illustrating that a majority of youth desist from crime as their brains reach full maturity (e.g., Steinberg et al., 2015). Therefore, a developmentally informed approach to juvenile probation would be structured to build youth capacities for meeting the challenges of adulthood and would avoid disrupting or interfering with a natural process of desistance (Schwartz, 2018). This would, for example, translate to an approach that reduces collateral consequences of justice involvement (e.g., employment and educational barriers) as much as possible, to allow youth to mature into adults who make meaningful contributions to society without unnecessary barriers to their success. This may require diverting many youth from formal juvenile justice processing, including probation. This would also mean developing a probation system that addresses barriers youth may have to achieving positive outcomes in adulthood, such as mental health needs (White, 2019). Ultimately, this approach would also sharply reduce the number of youth on juvenile probation to ensure that court involvement does not unnecessarily disrupt youth pathways toward desistance (Mendel, 2018).

Approaches to Probation Reform The following three sections outline two frameworks for probation reform: the Risk-Need-Responsivity Model (RNR) and Graduated Response. We start by describing these frameworks, then make recommendations about how the principles of each should be applied to reform the juvenile probation system. We also provide case studies describing how two jurisdictions in the United States are successfully utilizing aspects of the RNR model and Graduated Response in practice. Finally, we discuss how youth probation officers should structure their case management practices to maximize the odds of success for youth.

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 ringing Probation in Line B with Risk-­Need-Responsivity Principles The Risk-Need-Responsivity (RNR) model is an approach for assessing and treating justice-involved individuals that focuses on maximizing the effectiveness of interventions to reduce recidivism (Bonta & Andrews, 2007). Although this approach was not developed specifically for probation procedures or for application to juvenile justice (Brogan et al., 2015), its core principles can guide effective juvenile justice system probation practices. Research has demonstrated that the use of the RNR model is an effective way to decrease the likelihood of reoffending in various juvenile justice system contexts, including probation (e.g., Koehler et al., 2013; Vieira et al., 2009). For adolescents incarcerated for violent, nonviolent, and drug-­ related offenses, closer adherence to RNR principles when prescribing interventions was associated with a decrease in negative outcomes (Singh et al., 2014). Risk Principle The first principle of the RNR model, risk, is used to determine which youth should receive justice system services. The risk principle states that the intensity of supervision and intervention should be directly related to the risk of reoffending (Bonta & Andrews, 2007). This requires that, at the point of system entry, youth undergo a risk assessment that measures their risks, needs, and strengths. Results of this risk assessment should be used when making decisions about disposition, and only youth deemed as having a medium or high risk of reoffending should be placed on probation (Seigle et al., 2014). Youth with a low risk of reoffending or who are first-­ time offenders are better served if diverted away from the juvenile justice system. A majority of youthful offenders decrease engagement in delinquent behavior over time (Mulvey et al., 2010), and formal intervention can actually increase the likelihood of recidivism (Lowenkamp et al., 2006). In fact, restrictive and intense juvenile justice interventions increase the odds of subsequent adult criminal justice system involvement (Gatti et al., 2009). Therefore, application of the risk principle means that in a successful youth probation system, most youth will actually be diverted away from formal sanctions altogether, including diversion away from probation. The Misdemeanor Services Unit in Lucas County, Ohio, described below, is one example of how to structure an alternative to probation programming for lowand medium-risk youth (Evangelist et al., 2017). For youth who are placed on probation, the risk principle also would require that more intensive probation supervision and intervention be provided to youth who are at higher risk, and less intensive probation supervision and intervention be provided to youth at lower risk (Brogan et al., 2015). To appropriately apply the risk principle to the juvenile justice system, decisions about intensity of services, including whether to divert youth, must be structured and consistent, which requires the use of empirically supported risk assessment

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tools that are specifically designed for use with adolescents (Brogan et al., 2015). Examples of such instruments include the Structured Assessment of Violent Risk In Youth (SAVRY; Borum et al., 2000), the Youth Level of Service/Case Management Inventory (YLS/CMI; Hoge & Andrews, 2002), and the Short-Term Assessment of Risk and Treatability: Adolescent Version (START:AV; Nicholls et al., 2010). For each of these measures, the evaluator determines a final risk estimate (e.g., low, moderate, or high) after considering the ratings of each factor in the context of the circumstances specific to each case (Schmidt et al., 2011; Viljoen et al., 2019). In addition to a risk estimate, specific risk factors are identified, which should guide decisions during case planning. When risk assessments were implemented in youth probation offices, probation officers were more likely to adhere to the risk principle when making service referrals (Vincent et al., 2012), but adherence to the risk principle alone was not associated with a change in rates of reoffending (Vincent et al., 2016). However, the use of risk assessment tools may be a promising way to address racial disparities regarding disposition. After the implementation of the YLS/CMI in a Midwestern juvenile court, Black youth were more likely to be classified as low risk and diverted from formal to informal probation (Onifade et  al., 2019). As described further below, however, there are also some concerns that risk assessment tools may themselves introduce racial bias (Harcourt, 2015). Need Principle When formal probation is the best option for a youth, the second principle of RNR model—need—should be used to inform probation procedures. The need principle states that interventions and treatment should be matched to an individual’s criminogenic needs (Bonta & Andrews, 2007). Criminogenic needs are dynamic (i.e., changeable) factors related to the likelihood of engaging in criminal or delinquent behavior, such as pro-criminal attitudes, poor performance at work or school, and low number of or quality of interpersonal relationships (Bonta & Andrews, 2007). Not only do the SAVRY, YLS/CMI, and START:AV predict risk, but they also aid in the identification of criminogenic needs. For example, among other things, each of these measures includes items measuring education, family environment, peer relationships, substance use, and attitudes. In addition to reliable and valid risk assessment tools, a thorough clinical interview to determine psychosocial needs is necessary to appropriately determine the factors that should be targeted by intervention for a given youth (Brogan et al., 2015). Youth on probation commonly have needs in the areas of education, employment, family and peer relationships, substance use, personality traits, anger management challenges, how leisure time is spent, and antisocial attitudes (Vieira et al., 2009). In practice, the need principle means that youth probation should be flexible, individualized, and amenable to change to reflect aging and development (Brogan et  al., 2015). Probation officers should tailor probation requirements to directly address factors that confer risk for reoffending for that youth, which differs from traditional models by going beyond recommending treatment that targets known

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risk factors more generally (e.g., a common probation practice of requiring school attendance or drug testing for all youth, regardless of need). A potential pitfall of the need principle occurs when assessors incorrectly classify needs or make treatment referrals that do not target identified needs. Research suggests that, generally, under-­ prescription of services is more common than over-prescription, yet probation officers still have a tendency to overserve youth who are assessed as low risk (Drawbridge et al., 2019; Nelson & Vincent, 2018). One study found that youth with needs in substance use and family/parenting were the most likely to have their needs matched to services correctly, whereas there was less than a 50% chance that youth were correctly matched when their needs included disruptive behavior problems, emotional stability concerns, education, and negative peer relations (Nelson & Vincent, 2018). Under-prescription of services was also found to be more frequent for youth whose needs were related to personality, behavior, and attitudes (Drawbridge et al., 2019). Perhaps this is a result of probation officers’ perceptions that it is easier to address needs that are concrete and measurable or to a lack of available community programs that address needs that are more abstract (Haqanee et al., 2015). Youth probation programs modeled after the RNR model have varying degrees of compliance with the risk factor (Peterson-Badali et al., 2015; Vincent et al., 2016). However, when probation requirements are accurately matched to address a youth’s specific needs, there is a decrease in the likelihood of recidivism (Luong & Wormith, 2011; Vieira et al., 2009). For example, youth who received services based on needs determined by the YLS/CMI demonstrated lower rates of reoffending compared to youth who received services that were not matched to their individual needs (Peterson-­ Badali et al., 2015). Responsivity Principle Responsivity is the third principle of the RNR model. Broadly, responsivity, which consists of both general responsivity and specific responsivity, encompasses the efforts taken to increase the effectiveness of interventions. General responsivity asserts that when promoting behavior change, people respond best to cognitive social learning strategies (Bonta & Andrews, 2007). Bonta and Andrews (2007) assert that two important aspects of effective cognitive social learning strategies include a warm and collaborative relationship between the clinician and client and structuring of prosocial behavior change. For youth on probation, general responsivity also means that probation officers must consider the developmental factors of youth when making referrals to treatment programs and when motivating youth to attend treatment. Youths’ brains are wired to have strong responses to reward, which means that employing principles of reinforcement is likely to be a good strategy for promoting prosocial and positive behaviors (Walker et al., 2019). Specific responsivity refers to the traits or circumstances of a specific youth that will impact how they respond to services. This principle should heavily influence the decisions that a probation officer makes during case planning. Probation officers should determine how factors specific to an individual, such as learning style,

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motivation, and personal strengths, can be incorporated into treatment to maximize chances of success (Bonta & Andrews, 2007). It is also important for youth probation officers to identify specific responsivity factors that are likely obstacles to successfully meeting probation requirements. For example, it is important for youth probation officers to address basic needs that can interfere with treatment success, such as lack of transportation, food insecurity, and housing instability (Haqanee et al., 2015). In addition, cultural factors must be considered, including language barriers and resistance to receiving mental health services due to fear of stigmatization within the cultural community (Haqanee et  al., 2015). The interventions to which youth on probation are referred must be responsive to considerations of culture and gender, as well. This will be discussed in more detail in the next section. Specific responsivity factors should be viewed as dynamic and individual, and therefore should be reassessed as necessary (McCormick et al., 2017). The SAVRY, YLS/CMI, and START:AV can be used to assess potential responsivity factors, and therefore can help inform probation officers’ decisions regarding program referral (Holloway et al., 2018; Viljoen et al., 2019). During case management, probation officers should consider factors such as mental health concerns, which can influence the effectiveness of prescribed services (Holloway et al., 2018; McCormick et al., 2017). Youth on probation who received treatment for mental health needs were more likely to have their criminogenic needs addressed, which was associated with a decrease in the likelihood of recidivism (McCormick et  al., 2017). Because justice-­involved youth experience high rates of traumatic events (Abram et  al., 2004), trauma may also be a common specific responsivity factor that should be routinely assessed. With the proper training, probation officers were able to use the YLS/CMI to correctly identify trauma-related responsivity factors, yet they did not incorporate these factors when creating case plans (Holloway et al., 2018). Further research is needed to determine the impact of receiving probation services that target traumatic event exposures and trauma stress symptoms on reoffending. Limitations of the RNR Model Although the RNR model has promise as an approach for evidence-based probation reform, the model’s strengths should be considered in the context of some potential pitfalls or limitations. First, the RNR model’s reliance on structured risk assessment means that applications of the model to probation may lead to inequitable or biased probation responses because of the potential for bias in risk assessment tools (Harcourt, 2015). This limitation has implications for both the procedural justice of probation systems using an RNR approach and for the outcomes of the youth of Color in such systems. Second, the RNR model has faced criticism for its focus on risk rather than on strengths. Alternative models, such as the Good Lives Model of offender rehabilitation (GLM; Ward & Brown, 2004), a strengths-based model of treatment for justice-involved individuals, may more effectively improve youth overall well-being.

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An important component of the RNR model is the accurate and continuous assessment of risk, needs, and strengths, which requires that assessment tools are valid, reliable, and culturally appropriate. Although beyond the scope of this chapter, a robust debate presently exists within the fields of psychology, criminal justice, and law regarding the degree to which the use of structured risk assessment either reinforces (e.g., Harcourt, 2015; Moore & Padavic, 2011; cf. Campbell et al., 2018) or, alternatively, helps ameliorate (e.g., Skeem & Lowenkamp, 2016; cf. Campbell & Miller, 2018) racial bias within justice system decision making. In brief, because virtually all stages of juvenile justice system processing disproportionately impact youth of Color, particularly Black and Latinx youth, the data on which risk assessment tools are normed are affected by a systemic bias which may therefore result in biased tools with risk factors that function as a proxy for race (Harcourt, 2015). Additionally, biases of justice system personnel may mean that Black and Latinx youth are scored differently than White youth on risk items (Moore & Padavic, 2011), resulting in inflated scores for youth of Color. Risk assessment tools, under the RNR model, determine many aspects of a youth’s experience in the system, including intensity of sanctions (Brogan et al., 2015). Accordingly, any bias in risk assessment tools or scoring may further reinforce the longstanding racist handling of youth of Color within the juvenile justice system (see Ward, 2013 for a comprehensive history of race in the juvenile justice system). Given inconsistent findings in this domain, additional research is needed, and any jurisdiction adopting an RNR approach to youth probation should carefully monitor for racial disparities. Not only do youth need to be treated fairly, but they also need to perceive their treatment as fair, as perceptions of procedural justice are related to the likelihood of offending behavior (Fagan & Tyler, 2005). Currently, youth of Color are disparately impacted by the juvenile justice system at multiple points. This is true starting with initial contact, as Black youth are more likely to be stopped by police officers than White youth, and through adjudication, as Black youth are more likely to be adjudicated as delinquent than white youth (Leiber & Peck, 2013). Although unable to correct for the discriminatory practices that occur in other aspects of the system, it is imperative that youth probation procedures are equitable. Importantly, the likelihood of being diverted from formal probation programs must be completely independent of race, which requires that risk assessment tools be free from racial bias. Separate from the possibility that reliance on formal risk assessment may reinforce racial bias, the RNR model has also faced criticism for focusing on offender management rather than on improving the well-being and experiences of individuals involved in the justice system (Ward & Brown, 2004). Little literature exists on applications of GLM with justice-involved youth (Fortune, 2018), and to our knowledge there is no research available on applying GLM to youth on probation. However, approaches such as GLM may offer important alternatives to a traditional RNR framework for probation systems interested in adopting a strengths-­ based focus.

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 NR in Practice in Probation: Misdemeanor Services Unit in Lucas R County, Ohio In 2012, the Juvenile Court in Lucas County, Ohio saw that only 11% of youth on probation were at a high risk of reoffending, whereas 51% of youth placed in residential custody due to violating probation were assessed as low to medium risk (Esthappan et al., 2019). Recognizing that low- to medium-risk youth do not benefit from incarceration, the Misdemeanor Services Unit (MSU) was established as part of Lucas County’s probation transformation efforts. The MSU serves as a diversion program in which youth, a parent or caregiver, and MSU staff collaborate to identify community-based services (e.g., art programs, athletic leagues, treatment, and restorative justice programs) for youth to attend in lieu of formal justice system procedures. Important to the success of the MSU is the work that Lucas County does to create partnerships with community organizations and foster trust with community representations, including providing education about the justice system to the public. Lucas County’s services are also informed by efforts to increase racial and ethnic inclusion, which involves working to build credibility in communities of Color. The practices of the MSU align with the RNR model and reflect aspects of youth cognitive and socioemotional development. In line with the RNR model, the MSU serves as a system where youth who are not at high risk for reoffending can be diverted from restrictive juvenile justice interventions. Most youth in the MSU are adjudicated for misdemeanors, but they could also have been adjudicated for first-­ term non-violent felony offenses if also assessed as low risk for reoffending (Esthappan et al., 2019). Referrals to community-based organizations are tailored to youths’ specific criminogenic needs, and all youth undergo assessments (including the Ohio Youth Assessment System, a set of risk-need tools developed for the Ohio Department of Youth Services) to determine what these needs are (Esthappan et al., 2019). Once youth are connected with community programming, they are strongly encouraged to attend, but attendance is not required (Esthappan et al., 2019; Mendel, 2018). Furthermore, youth are not sanctioned for noncompliance (Mendel, 2018). In working to support positive decision making without punishing youth for making mistakes, these practices are developmentally appropriate for youth who are more likely than adults to engage in risky and impulsive behaviors (Defoe et al., 2015). Although outcome data for the MSU is still needed, it shows some initial promise. In 2012, of 100 youth who were on probation, 30 of these youth were ultimately placed in residential custody for violating probation agreements—not for new delinquent acts. In 2016, after the implementation of the Misdemeanor Services Unit 2016, only four youth were placed in residential custody for technical violations (Mendel, 2018). Furthermore, youth in only 18 out of the MSU’s first 175 cases later returned to the court for new offenses (Esthappan et al., 2019). Although it is premature to recommend replication of the MSU, preliminary evidence, as well as existing literature and theory, suggest that the MSU may lay the foundation for future probation transformation. However, the MSU is also not without its limitations. A vital aspect to ensure success of youth within the MSU is

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connecting them to appropriate services in their communities. Unfortunately, access to services is likely to vary considerably for each youth based on socioeconomic status and race/ethnicity. Factors such as waiting lists, physical distance, and lack of available transportation can also act as barriers to mental health treatment utilization (Hines-Martin et al., 2003; Hodgkinson et al., 2017; Kouyoumdjian et al., 2003). It is likely that these same factors would impact attendance at any community-based service, as well. It therefore will be important that jurisdictions looking to build successful diversion programs not only consider how to motivate youth to attend community programming but also develop ways to address common service barriers (e.g., providing transportation to clients and allocating funding to increase the availability of services in low SES communities).

Implementing Graduated Response In addition to utilizing RNR principles, probation reform efforts should ideally utilize a graduated response approach to incentives and sanctions for youth on probation. Graduated response approaches to probation use principles of learning and behavior change to shape youth behavior over time; a comprehensive system of incentives is used to reinforce probation compliance and sanctions are used to discourage noncompliance (Center for Children’s Law and Policy, 2016). Graduated response approaches have also been applied to shape behaviors in other domains (e.g., positive behavioral interventions and supports used in schools to improve student behavior; specialty courts for adults charged with drug offenses), and the same theoretical foundations and principles apply across contexts (Center for Children’s Law and Policy, 2012). Theoretical Foundations of Graduated Response Graduated response approaches are informed by basic tenants of behavior change, primarily operant conditioning (Goldstein et al., 2016). Although a full description of operant conditioning is beyond the scope of this chapter, the theory at its most basic identifies that behavior changes based on what occurs following it: desirable or reinforcing consequences increase the frequency with which a behavior will occur, and undesirable or punishing consequences decrease the frequency of the behavior (Goldstein et al., 2016). Reinforcement can be either providing something the person wants, tangible (e.g., gift cards; movie tickets) or non-tangible (e.g., praise; extended curfew), or removing something the person does not want (e.g., reducing the frequency of required meetings; decreasing the amount of time on probation). Punishment, similarly, can mean imposing something the person does not want (e.g., mandated drug testing; a fine) or taking away something the person does want (e.g., the ability to spend time with friends; an allowance).

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Operant conditioning theory indicates that punishments will reduce the frequency or likelihood of unwanted behavior, but that punishments do not teach new, more desirable behaviors. As a result, when the goal is to replace unwanted behaviors with specific, prosocial behaviors (e.g., replace getting high with friends after school with going home to start on homework), reinforcements are necessary to increase the likelihood of the desired replacement behavior (Goldstein et al., 2016). Additionally, use of punishment alone may create learned helplessness, in which the individual receiving punishment comes to believe the punishment cannot be avoided and therefore desists efforts to change the punished behavior (Goldstein et  al., 2016). Therefore, incentives should be emphasized, and sanctions used more sparingly to ensure the desired behavior change. Finally, when the desired behavior is complex or is very far from the starting behavior, operant conditioning theory identifies the need to use shaping—reinforcing behaviors that are closer and closer to the desired behavior over time to move behavior gradually in the wanted direction (Kazdin, 2013). In graduated response approaches, reinforcements are commonly called incentives, and punishments are commonly called sanctions. As discussed in the opening section of this chapter, probation typically utilizes sanctions to punish undesired behaviors (that is, violation of probation requirements). For example, if a youth violates a probation requirement to attend school each day, the sanction imposed may be adding an electronic ankle monitor or setting an earlier curfew. Because this response does not provide reinforcement for the desired replacement behavior, and relies solely on punishment, it will be less effective at changing the youth’s behavior than an approach grounded in learning theory. Graduated response approaches, instead, utilize principles of operant conditioning in reimagining sanctions to optimize their impact on stopping unwanted behaviors and add a structure of incentives to encourage replacement of unwanted behaviors with new, more adaptive behaviors. Incentives are emphasized and sanctions are used in a more limited way, with both incentives and sanctions titrated so that the intensity of the response matches the degree of noncompliance or probation success the youth has demonstrated. Principles of Graduated Response Graduated response approaches to probation are guided by a number of principles taken from the learning theory just described to encourage youth probation success. In designing a system of sanctions and incentives, graduated response models ensure that these sanctions and incentives are certain, immediate, vary in intensity to match the behavior, are fair, and are selected to be maximally reinforcing or punishing for the particular youth involved (Center for Children’s Law and Policy, 2016). These principles recognize that youth will be most likely to make choices based on probation requirements if they can be certain of either reward (for compliance) or punishment (for noncompliance). Additionally, both because of principles of behavior change and because of the short-term decision  making characteristic of adolescence, responses to behaviors will be most effective if the incentive or

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sanction is delivered close in time to the behavior it is intended to reinforce or punish. Youth will be most motivated to avoid serious probation noncompliance and to instead comply with even the most challenging probation requirements if the intensity of the sanction or incentive is matched to the behavior. This means that very serious noncompliance receives a serious sanction, whereas only minor noncompliance receives a minor sanction, which helps youth avoid all-or-nothing thinking (e.g., “I skipped school today so I know my probation is going to be revoked; I might as well get high with my friends and stay out all night since the worst is already going to happen”). Sanctions and incentives should also be viewed by youth as being the system’s response to their behavior, rather than to other factors (e.g., a youth will be more motivated to change behaviors if incentives and punishments are seen as resulting from their behaviors, rather than from a probation officer’s dislike of the youth, or from racial bias, etc.). Finally, sanctions and incentives only work if they are actually reinforcing or punishing for that youth. Sanctioning noncompliance with a curfew will not be motivating for a youth who prefers to be inside early anyway. Similarly, incentivizing compliance by offering tickets to a baseball game will not be motivating for a youth who hates sports. In implementing the above principles, graduated response systems work best when they are structured to maximize the chance that youth can be successful, taking into account adolescent development. Accordingly, youth should be given many opportunities to learn probation expectations and provided with information about the reason behind the requirements imposed (Goldstein et al., 2016). Because adolescent brains are primed to be especially responsive to reward, youth should be given opportunities to experience success as early as possible (Harvell et al., 2018), both by making early probation requirements achievable and by rewarding improvements in behavior short of full compliance. Additionally, given adolescent impulsivity and proclivity toward sensation-seeking, graduated response systems should anticipate imperfect compliance and should, using principles of behavior shaping, categorize improved but imperfect behavior as a move toward compliance and deserving of reinforcement (Goldstein et al., 2016). For example, under a graduated response system, if a youth who had been attending school only 1 day a week was given a probation condition of perfect school attendance, a shift from 1 day a week to 3 days a week would be viewed as an improvement and incentivized, rather than viewed as noncompliance and punished. Because graduated response systems necessarily require that probation procedures be tailored to each youth, the potential exists for implicit bias on the part of system actors (i.e., probation officers and judges) to shape the responses to an individual youth. Given that these biases exist within traditional probation responses to youth, care is needed in developing and implementing a graduated response approach to avoid bias (Harvell et al., 2018). Furthermore, youth perceptions that justice system processes are fair improve youth outcomes (Fagan & Tyler, 2005). Although each youth will need incentives and sanctions that reflect their own preferences, structured incentives/sanctions matrices can be developed to classify the intensity of both violations and compliance and provide a number of response options for a given behavioral severity (Harvell et  al., 2018). Examples of such

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matrices are available through the Center for Children’s Law and Policy (n.d.). Probation officers can be required to document both the incentives and sanctions given to each youth, and the intensity of the behavior receiving the response, so individual officers and the probation system can monitor for disparate treatment by race, gender, or other identities.  raduated Response in Practice: Opportunity-Based Probation in Pierce G County, Washington Pierce County, Washington is an example of one jurisdiction that has shifted from traditional probation models to a model that is more developmentally informed. With funding from the Annie E. Casey Foundation, researchers at the University of Washington designed Opportunity-Based Probation (OBP) in response to youth repeatedly returning to probation, despite having received evidence-based rehabilitation (Walker et al., 2019). Components of the OBP model were designed with an emphasis on six aspects of adolescent development (Walker et al., 2019): 1 . Drive toward independence 2. Heightened responsivity to rewards 3. Underdeveloped cognitive control 4. Underdeveloped capacity for forward thinking 5. Sensitive to home environment and parenting 6. Strongly influenced by peers The Prototype OBP Model is reflective of graduated response principles. A key component of OBP is the collaborative case management process in which the youth, a parent or guardian, and the probation officer work together to determine the youth’s criminogenic needs, identify areas of strength, and set clear and tangible goals (Walker et  al., 2019). This allows youth a thorough understanding of the court’s expectations, as well as increases the likelihood that they will buy in to the probation process. Furthermore, throughout all phases of probation, including pretrial assessment, case planning, and supervision, probation officers encourage positive behavior by providing rewards for attendance and meeting goals (Walker et al., 2019). Youth are rewarded with points that they can ultimately redeem for incentives ranging from small prizes such as gift cards to more substantial prizes, such as reduced probation sentences (Esthappan et al., 2019). Overall, youth who completed OBP demonstrated low rates of reoffending (Esthappan et al., 2019). Furthermore, results of a qualitative pilot study examining the feasibility and acceptability of the Prototype OBP model demonstrated preliminary evidence of success and revealed areas that need improvement (Walker et al., 2019). Probation officers reported being able to promote youth self-efficacy and prosocial growth and that they saw a decrease in family crises, which they attributed to the goal-setting structure and engagement with parents, respectively. Overall, both youth and parents were satisfied with the OBP process, particularly with the attentiveness of POs and the improvements in youth-parent relationships and

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youths’ consequential thinking. However, because of the flexibility of OBP and the amount of physical and mental resources required by POs, they also reported wanting additional support, including clearer guidance on the use of discretion. Youth and parents identified the importance of ensuring that incentives align with the interests of the youth. These factors should be considered when designing probation programs, and future research should examine the effectiveness of a modified OBP.  As new jurisdictions adopt similar approaches, additional research is also needed that compares youth and parent satisfaction of traditional probation to their satisfaction of OBP. Finally, because Pierce County (as well as Lucas County—see above), had already been engaging in reform efforts with similar goals for several years prior to the implementation of OBP, the Annie E. Casey Foundation notes that other sites may not be as well equipped for such flexible probation models and therefore may require a more extensive transformation process (Esthappan et al., 2019).

Reforming Case Management Strategies: Putting It All Together As the previous sections identify, probation case management strategies should be informed by principles of the RNR model and Graduated Response. Importantly, case decision  making must be guided by both flexibility and standardization. Although the probation requirements themselves must be adapted to fit a youth’s particular needs, to ensure that practices are equitable, standardized procedures should be followed to determine risk level. Therefore, empirically based risk assessment tools are a necessary component of case management (Harvell et al., 2018). In addition to implementing the above approaches, youth will benefit from probation practices designed to enhance communication, engage the youths’ family, and provide culturally appropriate programming. Effective Communication with Youth Throughout the youth probation process, probation officers must ensure that youth understand what is required of them, what is not allowed, how they will be monitored, and how compliance will be both enforced and rewarded (Harvell et  al., 2018). Furthermore, probation officers should provide youth with justification for each requirement, as this can help facilitate youth buy-in of the probation process (Harvell et  al., 2018). This requires that probation officers use developmentally appropriate language and frequently check to ensure that youth know the conditions of their probation, which may involve asking youth to explain conditions in their own words. Probation officers should work with youth to set clear short-term goals, outline activities necessary for youth to meet their goals (e.g., treatment or community service), and set a timeline for goal completion (Griffin & Torbet, 2002). These goals should be important to the youth and based on their individualized

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criminogenic and responsivity needs (Harvell et al., 2018). The number of goals set at a time should be proportional to a youth’s risk level but should be no more than three (Goldstein et  al., 2016). Importantly, these practices have the potential to improve youth outcomes: When youth probation experiences match their beliefs about how probation should work, they commit fewer probation violations and delinquent acts (Fine et al., 2019). Engagement of the Family Probation officers should also meaningfully engage a youth’s family member or caregiver in the case planning process, as this can help promote healthy development (Harvell et  al., 2018). Families can receive treatment services themselves through treatment modalities such as Functional Family Therapy or Multisystemic Therapy (see Chap. 26) or can augment services provided to youth by helping them practice new skills at home and rewarding them for doing so (Garfinkel, 2010). Research has demonstrated that for youth on probation, an increase in parental knowledge (i.e., parent’s knowledge of the youth’s whereabouts, activities, and associations) was associated with a decrease in the number of technical violations and new delinquent offenses, and an increase in parental support (i.e., quality of the relationship between the youth and parent) was associated with a decrease in number of new delinquent offenses (Vidal & Woolard, 2017). Although parental involvement may serve as a protective factor against probation noncompliance, evidence-based practices for how to involve family are lacking, and therefore future research is necessary to build a framework outlining the best method of family involvement (Burke et al., 2014). Providing Culturally Appropriate Services When making referrals, probation officers must take race, gender, social class, sexual orientation, and immigration status into account (Harvell et al., 2018). It is vital that youth are connected to services that reflect their culture and cultural values and target the specific needs of their population (Vergara et al., 2016). Meta-analyses have found that, compared to standard interventions, a variety of culturally sensitive interventions (e.g., culturally responsive individual psychotherapy, group therapy, and skills training that match content to youths’ lived experiences) have better outcomes for clients of Color (Benish et al., 2011; Hall et al., 2016). However, additional research is needed to examine the impact of culturally adapted interventions on delinquency. Ensuring the availability of culturally responsive services often requires that youth probation agencies build partnerships with organizations and leaders in the communities in which justice-involved youth live, and particularly in communities of Color (Mendel, 2018; Vergara et al., 2016). At minimum, youth probation officers should base their offices in and refer youth to services in such communities.

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Youth probation officers also ideally would form relationships with community members, which may involve outreach (e.g., providing education about the juvenile probation process and why it is important), volunteering, and supporting local businesses (Griffin & Torbet, 2002). In areas where there are gaps in available programming options, probation officers should work to recruit local service providers, which may involve helping agencies apply for funding (Griffin & Torbet, 2002). For justice-involved girls, probation officers should prioritize making referrals to gender-responsive programming, which refers to services specifically designed to serve girls and women. Justice-involved girls differ from justice-involved boys in important ways, including that they are more likely to have histories of abuse and neglect (Asscher et al., 2015), symptoms of depression, including suicidal ideation (Kleinfeld, 2009), and other mental health symptoms related to traumatic stress (Zahn et al., 2010). In line with these gender differences, key aspects of gender-­ responsive programming involve creating a safe environment, fostering nurturing relationships, building confidence using a strengths-based approach, and responding to trauma needs (Treskon et al., 2017). The PACE Center for Girls is one example of a gender-responsive program for justice-involved girls and girls at risk of becoming justice-involved. PACE incorporates academic services, women’s health education, career development activities, counseling, parental engagement, and more into their programming (Treskon et al., 2017). Compared to a control condition, in the year following their application to PACE, girls in PACE received more academic and social services and had greater levels of academic engagement (Millenky et al., 2019). Although empirical evaluation is needed to examine the longer term effects of PACE, specifically on delinquency outcomes, it shows promise. One potential caveat is that gender-specific programming may not be ideal for girls without gender-sensitive risk factors. One study found that, for girls in detention, gender-responsive programming was only effective in reducing recidivism for those with gender-sensitive risk factors (i.e., trauma history, symptoms of depression or anxiety, anger and irritability, alcohol and substance use, and somatic complaints; Day et  al., 2015). Although future research is needed to examine the impact of gender-responsive programming for youth on probation, this finding highlights the importance of incorporating gender when applying the RNR model to case planning.

Conclusions and Future Directions As discussed at the beginning of the chapter, traditional youth probation procedures in the United States have substantial limitations that make it difficult for youth on probation to successfully navigate the juvenile justice system. Throughout this chapter, we recommend that jurisdictions strive to adopt the following juvenile probation reforms:

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1. Shift practices to be more in line with adolescent developmental capacities, including normalizing some degree of probation noncompliance, reducing the number of probation requirements, emphasizing reward, and diverting youth away from formal processing when possible. 2. Utilize risk-need-responsivity principles, diverting all low-risk youth, matching interventions to an individual youth’s criminogenic risk factors, and ensuring that interventions are culturally appropriate and trauma-informed. 3. Adopt a graduated response approach to youth compliance and noncompliance grounded in learning theory, developing probation practices that heavily rely on rewards to shape youth behavior and tailoring both rewards and sanctions to match the intensity of youths’ improvements or noncompliance. 4. Structure youth probation experiences to include research-supported approaches to case management, improving communication between probation officers and youth, involving families in youth probation, and developing interventions designed to meet youths’ specific needs, including gender-responsive and culturally appropriate programming. To create the ideal youth probation system based on these recommended reforms, public policy changes, and perhaps even overhauls, are required. Furthermore, ongoing research is necessary to continue to ensure that youth probation reforms are evidence-based. The reforms recommended in this chapter will be more feasible and successful if the following policy changes and research advances are made.

Policy Recommendations As individual jurisdictions make efforts to reform juvenile probation to bring policies more in line with the best practices described in this chapter, public policy at the state level may be helpful in encouraging reform. Legislatures should shift state resources toward developmentally appropriate probation practices, providing the needed funding for individual jurisdictions to adapt research-based approaches— including graduated responses or RNR—to the specific needs of their youth. Such funding could also be used to incentivize those jurisdictions that are able to demonstrate the adoption of policies consistent with the relevant social science literature. Funding may be specifically earmarked for ongoing training and for program evaluation to determine whether policy shifts result in improved youth outcomes. Such an approach by state legislatures would disincentivize the aspects of traditional probation that research has identified as either inconsistent with youth developmental capacities or tied to poor youth outcomes. Legislatures can also play a role in evaluating whether probation services in the state achieve equitable outcomes for youth who may face discrimination within the justice system by requiring the reporting of data broken down by youth race, ethnicity, gender, and sexual orientation. Specifically, data on which youth are offered probation, the number of conditions imposed on individual youth, the frequency

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with which probation is revoked, length of probation, and the likelihood of successful completion would make it possible to identify areas in which equitable processes and outcomes have not yet been achieved. Once areas for continued improvement have been identified, legislatures may incentivize jurisdictions’ efforts to reduce disparities.

Future Research Agendas As more jurisdictions express interest in rethinking their probation systems, rigorous program evaluation is critically needed to provide clear data on the best approaches to juvenile probation. Advocacy organizations are starting to develop guides to jurisdictions interested in reform (e.g., Center for Children’s Law and Policy, 2016) and foundations have devoted considerable resources to help effectuate these changes (e.g., Annie E. Casey Foundation’s probation transformation initiative; Goldstein et al., 2019). The system change that is resulting has the potential to reduce probation costs, improve outcomes for youth, and increase community safety. However, without robust, empirical program evaluation, it is uncertain whether the promising approaches described above can be expected to consistently lead to those outcomes. Additionally, although initial data suggest that the above reforms lead to good outcomes for many youth, research is critically needed on the impact of the most vulnerable system-involved youth, including youth of Color and LGBTQ+ youth. Research evaluating the effectiveness of culturally competent treatment services for marginalized youth is crucial to ensure that youth probation officers are able to make referrals to evidence-based programs. Funding agencies have an important role to play in increasing the resources and services available to traditionally underserved youth. Given the lack of culturally competent treatment programs, especially in the areas where justice-involved youth live, funding agencies may prioritize program development and research proposals targeted on interventions for youth most impacted by justice system disparities. Increasing the evidence base for such interventions would ensure that probation officers can actually use the responsivity principle when making program/treatment referrals for youth of Color and LGBTQ+ youth. As researchers, foundations, and other funding agencies work together to build a robust foundation of data on which to base probation reform, research should be carefully conducted from a racial and ethnic equity perspective. At each stage of the research process, researchers must take care to ensure that their work is in service of the groups who are most effected by the disparities of the juvenile justice system. To do this, researchers need a deep understanding of their community of interest, which can be achieved if they work in close collaboration with leaders and members of that community, and need to consistently analyze how their biases impact their work (e.g., the way questions are posed, the way data is interpreted; Andrews et al., 2019). Finally, it is important that researchers disseminate their findings to audiences beyond other researchers, such as policymakers, community stakeholders,

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and even the study participants (Andrews et al., 2019). This may require that findings are presented in creative and engaging ways and that researchers take action to guide the necessary change (Andrews et al., 2019).

Conclusion Currently, the system of youth probation in the United States is structured very similarly to the adult system, despite a plethora of research that suggests that youth are at a different developmental stage than adults. Because the areas of the brain responsible for emotion regulation develop more quickly than areas of the brain responsible for executive functioning, youth are likely to prioritize short-term rewards over long-term consequences, which can lead them to engage in risky, impulsive, or sensation-seeking behaviors (Cohen & Casey, 2014). Developmentally informed probation practices are mindful of this, and therefore support positive decision making while recognizing that mistakes are likely to occur. In addition, principles of the RNR model and Graduated Response reflect what is known about adolescent development and provide guidance for how to structure youth probation. The RNR model ensures that youths’ developmental needs are met through appropriate case planning (Brogan et al., 2015), while Graduate Response capitalizes on youths’ responsiveness to rewards by providing incentives for prosocial behavior (Goldstein et al., 2016). Substantial public policy changes, as well as a research agenda, focused on identifying the best practices for each aspect of the system, are necessary to bring youth probation practices more in line with adolescent development science.

References Abram, K. M., Teplin, L. A., Charles, D. R., Longworth, S. L., McClelland, G. M., & Dulcan, M. K. (2004). Posttraumatic stress disorder and trauma in youth in juvenile detention. Archives of General Psychiatry, 61(4), 403–410. https://doi.org/10.1001/archpsyc.61.4.403 Adams, S. B., Olson, D. E., & Adkins, R. (2002). Results from the 2000 Illinois adult probation outcome study. Illinois Criminal Justice Information Authority. Retrieved from http://www. icjia.org/assets/pdf/ResearchReports/juvenile2000study.pdf Andrews, K., Parekh, J., & Peckoo, S. (2019) How to embed a racial and ethnic equity perspective in research: Practice guidance for the research process. Child Trends. Retrieved from https://www.childtrends.org/publications/a-­guide-­to-­incorporating-­a-­racial-­and-­ethnic-­equity-­ perspective-­throughout-­the-­research-­process Arain, M., Haque, M., Johal, L., Mathur, P., Nel, W., Rais, A., Sandhu, R., & Sharma, S. (2013). Maturation of the adolescent brain. Neuropsychiatric Disease and Treatment, 9, 449–461. https://doi.org/10.2147/NDT.S39776 Asscher, J. J., Van der Put, C. E., & Stams, G. J. J. (2015). Gender differences in the impact of abuse and neglect victimization on adolescent offending behavior. Journal of Family Violence, 30(2), 215–225. https://doi.org/10.1007/s10896-­014-­9668-­4

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Chapter 18

Prisoner Reentry Programs Damon M. Petrich, Francis T. Cullen, Heejin Lee, and Alexander L. Burton

Abstract  In any given year, more than 600,000 inmates are released from prisons into communities across the United States. Former prisoners face countless economic, social, and psychological obstacles that make reentry difficult and increase the risk of reoffending. These issues have become increasingly salient to scholars and policymakers over the past two decades. Backed by public support, government agencies have allocated taxpayer dollars to the design and implementation of a wide range of reentry-focused efforts to reduce recidivism. However, evaluations of reentry programs typically yield mixed results. Although some of the lackluster findings may be the result of methodological problems in these studies, serious flaws also exist in the content and delivery of many programs that limit their potential effectiveness. Reentry programs often fail to target high-risk offenders, do not consider the issues of treatment dosage and timing, focus on factors only weakly linked to reoffending, and are not implemented with fidelity. Thus, to improve the effectiveness of the reentry movement in the future, programs must be undergirded by a strong theoretical understanding of the reentry process, implemented as designed, and evaluated using rigorous research designs. Keywords  Prisoner reentry · Reentry programs · Program evaluation · Rehabilitation · Public policy In response to rising crime rates and the swing of the political pendulum toward conservative ideals such as law and order governance, individual responsibility, and fear of “the other,” the United States undertook a protracted experiment in mass incarceration beginning in the late 1970s (Garland, 2001; Gottschalk, 2006). From the 1950s through the early 1970s, the number of individuals incarcerated in state or federal prisons remained relatively stable at around 200,000 per year (Cullen, 2018). However, this population grew to 315,974 by 1980 and continued to rise until peaking at 1,608,300 in 2008 (Cohen, 1991; Kaeble & Cowhig, 2018). Adding in those D. M. Petrich (*) · F. T. Cullen · H. Lee · A. L. Burton University of Cincinnati, Cincinnati, OH, USA e-mail: [email protected]; [email protected]; [email protected]; [email protected]

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held in jails, there were a total of 2,310,300 Americans confined in correctional institutions in 2008 (Kaeble & Cowhig, 2018). Even accounting for growth in the American population during this period, data show that the rate of incarceration more than quintupled from 161 per 100,000 in 1972 to 767 per 100,000 in 2008 (National Academy of Sciences, 2014). Since 2007, the total incarcerated population has declined by an average of 0.7% per year (Kaeble & Cowhig, 2018); however, the United States continues to maintain its title as the world’s largest incarcerator (World Prison Brief, 2018). Although the increased use of incarceration could be justified on the grounds of the temporary incapacitation of offenders (Spelman, 2000), the reality is that more than 95% of inmates are eventually released (James, 2015; Petersilia, 2003). Thus, a significant consequence of the precipitous growth in incarceration is the attendant rise in the number of inmates returning to their communities each year. In 1980, 157,604 offenders were released from state and federal prisons; by 2018, this figure had ballooned to 614,844 (Carson, 2020; Carson & Golinelli, 2013). From the 1980s through the early 2000s, little attention was paid to this problem, nor to the broader issues of how best to prepare inmates for and support them during reintegration (Gunnison & Helfgott, 2013; Jonson & Cullen, 2015; Petersilia, 2003; Travis, 2005). Rather, efforts to rehabilitate offenders were increasingly seen as being a fool’s errand, the powers of parole boards to determine whether inmates had earned their release were limited, and community supervision extended the punitive valence of penal populism (Cullen & Gilbert, 2013; Garland, 2001; Simon, 1993). Supervision policies such as electronic monitoring, random drug testing, increased breadth of conditions, and actuarial risk assessment reflected the view that offenders were lifelong bundles of risk to be managed, rather than wayward souls to be treated and supported (Simon, 1993). Indeed, extant research illustrates that control-­ oriented supervision has led to a constant churning of offenders in and out of correctional institutions (Pew Center on the States, 2011; Travis, 2005). The findings show that roughly one-third of new prison admissions are the result of technical violations such as missed appointments with parole officers, failed drug tests, or failure to pay fines and fees. Beginning in the early 2000s, however, scholars and policymakers began to take notice of the many problems faced by offenders upon release from incarceration (Gunnison & Helfgott, 2013). The publication of two influential books, in particular, shone a bright light on the many deficits and invisible punishments faced by former inmates that make their reintegration into society fraught with difficulty. Perhaps equally important, as Jonson and Cullen (2015) note, was that the use of the term “reentry” throughout these books provided a concise yet impactful name for the ensuing movement to support offenders in their transitions. In her 2003 book, When Prisoners Come Home: Parole and Prisoner Reentry, Joan Petersilia drew attention to not only the growing number of prisoners being released every year but also that these individuals “remain largely uneducated, unskilled, and usually without solid family supports—and now they have the added stigma of a prison record and the distrust and fear that it inevitably elicits” (p.  3). Jeremy Travis’s (2005) book, But They All Come Back: Facing the Challenges of Prisoner Reentry, pointed

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to a similar set of issues in the reentry process. He also noted that many prisoners are released into communities with high rates of crime, addiction, limited opportunities for work, and poverty—all of which increase the likelihood of recidivism. Thus, Travis (2005) argued that imprisonment should revolve around opportunities for inmates to develop skills and capacities that will allow them to begin breaking away from a criminal lifestyle. Once inmates are released, supervision and treatment services should aim to provide continuity of care, extending the changes made while incarcerated by providing opportunities for treatment, work, and housing, and supportive rather than control-oriented supervision. With helpful nudges from Petersilia (2003) and Travis (2005), the past 20 years have seen greater attention being paid to the many issues surrounding reentry. At the core of this movement has been an effort to develop programs that aim to build skills and opportunities for inmates as they transition from incarceration to their communities. Between 2001 and 2007, for example, the federal government provided states nearly $110 million via the Serious and Violent Offender Reentry Initiative (SVORI) for the development of programs and practices aimed to improve recidivism rates, education and vocational skills, health, and housing for high-risk offenders (Lattimore & Visher, 2009). In 2008, President George W. Bush signed the Second Chance Act (SCA), through which $475 million has since been allocated to reentry efforts such as employment programming, substance use and mental health treatment, and faith-based and mentoring programs, among others (D’Amico & Kim, 2018; National Reentry Resource Center, n.d.). More recently, President Donald J. Trump signed the First Step Act (FSA) in 2018, which included approximately $87.5 million  for the development of reentry programs that create employment opportunities, in addition to the creation of a federal risk/need assessment system (Cohen, 2019; U.S. Department of Labor, 2019). In light of the scholarly and public policy attention given to the development of reentry programs in recent years, the current chapter provides a critical assessment of this movement. To that end, the remainder of the chapter is divided into four sections. First, given the salience of crime to individual citizens, the fact that their tax dollars fund a significant portion of efforts to curb recidivism, and that they have the power to sway legislators, we discuss public opinion on the issues of rehabilitation and support for reentry programs. The second section introduces the three broad types of reentry programs: those offered solely within correctional institutions, those offered solely in the community, and those that provide continuity of care between the two contexts. We discuss notable examples of each type and the ways by which they attempt to rehabilitate offenders and provide opportunities for change during their transition. The third section outlines what is currently known about the functioning and effectiveness of reentry programs. This discussion of effectiveness includes an appraisal of the methods commonly used to evaluate programs, the extent to which program fidelity is maintained (or even assessed to begin with), and whether we can confidently say that programs tend to meet their goals of reducing recidivism and improving other outcomes such as employment. The final section concludes this chapter by discussing the future of research and practice for reentry. Specifically, we cover the necessities of developing and adhering to principles of

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effective reentry, conducting more and higher quality evaluations of programs, and investing sufficient funding to do so.

Public Opinion on Incarceration and Reentry General Support for Rehabilitation According to previous studies, public support for rehabilitation is a “criminological fact” (Cullen, 2006, p. 666). Research conducted across various decades has shown time and again that the American public endorses offender rehabilitation (see Cullen et  al., 2000, 2013, 1990). Several key findings from the extant literature merit discussion. First, the public has favorable general attitudes toward a rehabilitative correctional orientation. A majority of the public report that rehabilitation should be the main emphasis in most prisons (e.g., Applegate et  al., 1997; Cullen et  al., 1990; Thielo, 2017). Second, beyond global support for a treatment orientation, specific rehabilitation policies have received consistent support—especially job training and education (Ouellette et al., 2017). For example, in a 1986 survey of two Ohio metropolitan cities, about six in ten respondents chose educational and vocational training as the best policy for dealing with inmates while they were in prison (Cullen et al., 1990). Third, nearly all Americans endorse “child saving,” advocating for the delivery of treatment to wayward juveniles (Cullen et al., 2007; Nagin et al., 2006; Piquero et al., 2010). Importantly, public support for correctional rehabilitation did not wane even during an era when the rehabilitative ideal was attacked in political and academic domains as being unjust, overly lenient, and ineffective (Cullen et al., 1985, 1988, 1983)—a phenomenon referred by some scholars as “the tenacity of rehabilitation as a correctional ideology” (Cullen et  al., 1990, p.  15). Indeed, most Americans have “a duality of beliefs” about the causes of crime (i.e., dispositional and situational attributions) and support a complex solution to crime control that appropriately punishes and corrects offenders (Atkin-Plunk, 2020; Cullen et  al., 2013; Jonson et al., 2013; Unnever et al., 2010). Therefore, public opinion about sanctioning is characterized as “balanced and moderate” (Cullen et al., 2000, pp. 5–6).

Specific Support for Reentry Prisoner reentry includes “all activities and programming conducted to prepare ex-­ convicts to return safely to the community and to live as law-abiding citizens” (Petersilia, 2003, p.  3). Public support for reentry, observe Jonson and Cullen (2015), is “part of a broader, long-standing support for rehabilitation” (p.  535).

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Thus, given the favorable public attitudes toward rehabilitation, it is not surprising that the public is highly supportive of prisoner reentry. Furthermore, public support for rehabilitation and reentry might grow even stronger now that the policy of mass incarceration has lost its political appeal and progressive initiatives are gaining in popularity (Butler et  al., 2020; Johnston & Wozniak, 2021; Petersilia & Cullen, 2015). Multiple signs point to this paradigmatic shift from an exclusionary era into an inclusionary era in American corrections (Cullen et al., 2020). For instance, public support for punitiveness is in decline, as evidenced by a halt in the prison population growth and decreased support for the death penalty (Enns, 2016; Ramirez, 2013). These attitudinal changes have occurred across all generations of Americans (Lee, 2020). In addition, there is a societal movement to embrace a broader notion of rehabilitation and to seek alternative options to incarceration (see Petersilia & Cullen, 2015). In tandem with such changes in attitudes, the prisoner reentry movement gained momentum in the United States. During the past two decades, an array of scholarly works have actively discussed the problems of mass incarceration (e.g., Alexander, 2010; Enns, 2016; Mears & Cochran, 2015; Petersilia, 2003; Travis, 2005) and the collateral consequences faced by returning prisoners (e.g., American Bar Association, 2018; Jacobs, 2015; Mauer & Chesney-Lind, 2002; Sawyer & Wagner, 2020; Uggen et al., 2006; United States Commission on Civil Rights, 2019; Wagner & Sawyer, 2018). These works include detailed reports by the Urban Institute on prisoner reentry (see, e.g., Brooks et al., 2006; Immerwahr & Johnson, 2002; La Vigne et al., 2004; Solomon et al., 2004; Visher et al., 2004; Visher et al., 2007). In politics, progressive initiatives such as ban-the-box regulations and criminal justice reforms (e.g., Second Chance Act, First Step Act) were implemented (Avery, 2019; Cohen, 2019). Considering that public policy is highly responsive to public attitudes (Pickett, 2019), at issue is whether the public supports providing reentry services to returning inmates. Notably, a growing number of studies indicate that the public provides strong support for reentry services in general (e.g., job training, education, housing assistance) to ex-offenders (Brooks et al., 2006; Garland et al., 2013; Immerwahr & Johnson, 2002; Krisberg & Marchionna, 2006; Lattimore et  al., 2010; Ouellette et al., 2017; Sundt et al., 2012). Previous surveys consistently report that over eight in ten respondents support programs to assist ex-offenders in their return to society—regardless of sampling methods (e.g., national polls, convenience samples) (e.g., Sundt et al., 2015; Thielo, 2017; for summaries, see Jonson & Cullen, 2015; Park, 2009). An examination of specific programs reveals that public support for job training and education proves strong in particular—a similar pattern that is observed for public views toward rehabilitation (Ouellette et al., 2017; see also Immerwahr & Johnson, 2002). Public support for substance abuse and mental health treatment is almost unanimous, typically exceeding nine in ten respondents (Garland et  al., 2013; Sundt et  al., 2012, 2015). The public also highly supports health care and medical services for ex-offenders (Garland et al., 2013; Krisberg & Marchionna, 2006). Support for providing housing assistance to reentering offenders tends to be

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mixed. Still, more than half of respondents favor extending this assistance (Garland et al., 2013; Krisberg & Marchionna, 2006; Sundt et al., 2012). Our own data— drawn from a 2017 national-level survey—reinforce these findings (see Thielo, 2017). Public support for five types of reentry services was consistently high, with more than nine in ten respondents favoring each of the services (see Table 18.1). Despite these favorable sentiments, public support for reentry is complex and potentially contingent on a range of considerations. Thus, respondents may hold ambivalent views, supporting reentry services but also expressing antipathy against certain ex-offenders (Brooks et al., 2006; Clear et al., 2001; La Vigne et al., 2004; Visher et al., 2007). Support for reentry programs may attenuate when providing reentry services would increase taxes, when a program would be placed in the respondents’ neighborhood, when repeat offenders are compared to one-time offenders, and when ex-offenders are pitted against law-abiding citizens in the receipt of services such as free college education (Applegate, 2001; Garland et al., 2013; Immerwahr & Johnson, 2002; Ouellette et al., 2017). Moreover, public attitudes may also vary on a policy- and personal-level (see, e.g., Clear et al., 2001; Garland et al., 2013; Immerwahr & Johnson, 2002; Ouellette et al., 2017). To illustrate one such example, Garland et al. (2013) found that support for housing programs dropped by half if the programs would be implemented in the respondent’s neighborhood. In this context, future opinion research wishing to inform public policy should probe not only overall support for prisoner reentry but also the factors that might produce citizen opposition to such efforts.

Public Belief in Offender Redeemability Why is it that the American public supports rehabilitation in general and reentry in particular? During get-tough times, punitive rhetoric was used by scholars which often depicted offenders as “the other”—as wicked, high-risk super-predators Table 18.1  Public support for providing services to offenders after release from prison

Items 1. Mental health treatment 2. Drug treatment 3.  Help finding housing 4. Education 5.  Job training

% Strongly support 54.3

% % Somewhat Support support 25.7 15.3

% Somewhat oppose 2.5

% % Strongly Oppose oppose 1.7 0.48

% Total support 95.3

52.8

24.9

14.8

3.3

2.9

1.3

92.8

38.7

31.0

23.2

2.9

3.2

0.84

92.9

44.2 48.8

26.6 27.8

21.2 18.1

4.9 2.1

2.3 2.1

0.73 1.1

92.0 94.7

Note: The results are weighted. “Total Support” includes respondents answering 4 = somewhat support, 5 = support, and 6 = strongly support (versus 1 = strongly oppose, 2 = oppose, 3 = somewhat oppose)

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beyond redemption (DiIulio Jr., 1995; Wilson, 1975; see also Garland, 2001; Simon, 2014). It is not clear how much the public embraced these views, although punitive sentiments were more prevalent (Enns, 2016). Regardless, a recent body of research indicates that among the public today, there is a strong belief in offender redeemability (e.g., Burton et al., 2020b; Butler, 2020). Maruna and King (2009) were the first to explore this concept and its impact on public policy attitudes. They defined public belief in redeemability as a belief that “even the most persistent offenders can redeem themselves and turn their lives around” (p. 9). In their study, Maruna and King (2009) found that belief in redeemability had a large and negative effect on punitiveness. Building on their conceptualization of offender redeemability, a handful of studies have explored whether such public beliefs are related not only to punitiveness but also to support for offender inclusion and reintegration. Belief in redeemability has been shown to increase support for rehabilitation (Burton et al., 2020b), restorative justice (Moss et al., 2019), the use of parole (Dodd, 2018), expanding housing assistance to released prisoners and increased employment opportunities (Ouellette et al., 2017), increasing employers’ willingness to hire persons with a felony conviction (Lehmann et al., 2019; Reich, 2017), and increasing support for restoring rights lost upon a criminal conviction (e.g., voting rights) (Burton et al., 2020a). These recent findings reveal that a majority of Americans reject the view that offenders are intractably wayward—that “once a criminal, always a criminal” (Burton et al., 2020b; Butler, 2020; Maruna & King, 2009). Instead, they believe that many offenders have the capacity to change for the better and become lawabiding citizens. In this context, support for reentry programs makes eminent sense. If returning prisoners are redeemable and not destined to recidivate, then supporting them with appropriate treatment and reintegration services is needed to ensure that this possibility of reform is realized and not squandered.

Types of Reentry Programs The overarching goal of reentry programs is to prepare offenders for and/or support them during their transition from incarceration into the community (Berghuis, 2018; Jonson & Cullen, 2015; Seiter & Kadela, 2003). The preparation and support offered by these programs often take the form of addressing the more practical challenges to adjustment such as housing, referrals to services offered by nonprofit organizations (e.g., substance abuse treatment, education), and assistance with finding employment. It is also crucial that reentry programs address cognitive-behavioral issues that create an underlying propensity for offending (e.g., low self-control, hostile attribution biases). In this context, a variety of programs have emerged to address these diverse needs. In this section, we delineate and provide examples of three types of reentry programs: (1) those available solely prior to release from prison; (2) those offered only once offenders are back in their communities; and (3) those which provide continuity of care between the two contexts.

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In-Prison Programs While incarcerated, inmates are often provided with opportunities to become involved in programs that attempt to address mental health and substance abuse disorders, educational and vocational deficits, and errors in thinking. For example, cognitive-behavioral programs offered within correctional institutions attempt to eliminate antisocial attitudes and thought patterns and build prosocial behavioral repertoires. Such programs tend to produce sizable reductions in reoffending (Bonta & Andrews, 2017; Landenberger & Lipsey, 2005; Sammut Henwood et al., 2015). These types of programs may build skills and capacities that ultimately increase the likelihood of success upon release. However, participation in these programs can occur at any point during incarceration and their goal is to rehabilitate offenders more broadly, not specifically to prepare inmates for the obstacles they will face during the transition from prison to the community. Thus, when referring specifically to “reentry programs” that operate behind prison walls, we mean those that are offered close to inmates’ scheduled release dates and are explicitly designed to develop skills and opportunities germane to the impending experience of community reintegration. An example of an inprison program that adopts a broader approach to dealing with the multiple issues involved in reentry is the Amity therapeutic community (TC), housed at the R. J. Donovan Correctional Facility near San Diego, California. In general, TCs use a phased approach to address negative thoughts and behaviors and develop self-control, as well as a sense of responsibility within participants (Inciardi et  al., 2004; Prendergast et  al., 2003; Welsh, 2007). The Amity program involves three phases that occur during the final 12 months of an inmate’s sentence. As Prendergast et al. (2003) explain, the first phase lasts 2–3 months, during which residents’ risks and treatment needs are assessed and they are slowly assimilated into the TC culture by way of group sessions and learning the rules of the unit. The second phase lasts around 5–6 months and includes more intensive involvement in education, group work, and counseling sessions, as well as increased responsibility within the unit. Prendergast et al. (2003) suggest that the goals of this phase are to build “self-discipline, self-worth, self-­ awareness, respect for authority, and acceptance of guidance” (p. 38; see also Welsh, 2007). The final 1–3  months of the Amity TC program are devoted to preparing residents for reentry by strengthening planning and decision-making skills and developing post-release case management plans (e.g., conditions of supervision, connections with community-based treatment, and vocational services). Residents of the in-prison program are also eligible to voluntarily enroll in a TC-based residential treatment facility upon release—however, data show that less than one-third do so (Prendergast et al., 2003).

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Community-Based Reentry Programs Offenders transitioning from correctional institutions to the outside community face substantial obstacles to their successful reentry (see Mears & Cochran, 2015; Petersilia, 2003; Travis, 2005). Having been incarcerated makes finding work (Decker et al., 2015; Goodstein & Petrich, 2019; Pager, 2007) and housing more difficult (Evans & Porter, 2015; Leasure & Martin, 2017), and is associated with financial insecurity (Harris, 2016; Schwartz-Soicher et al., 2011), poor health outcomes (Massoglia & Pridemore, 2015), and the disintegration of families (Apel, 2016; Massoglia et al., 2011), among myriad other problems. Petersilia (2003) suggests that community-based programs and services offered in an attempt to address these issues “should begin immediately upon release and be front-loaded in the first 6 months to the first year” (p. 153). Indeed, multistate studies by Langan and Levin (2002) and Durose et al. (2014) illustrate that roughly a third of prisoners are rearrested within 6 months of their release thus signaling the necessity of rapid service provision upon reentry. One type of program that attempts to address these issues in a holistic manner is the reentry court—a logical extension of the long-standing drug court model (Mitchell et al., 2012). The U.S. Department of Justice laid the foundation for reentry courts in 1999 by calling for practitioners to focus on the following: incorporating actuarial risk/needs assessments, connecting offenders with appropriate services in the community (e.g., substance abuse treatment, job training, work opportunities), having active oversight by both parole officers and reentry court judges, and making use of both graduated sanctions and good behavior incentives (Office of Justice Programs, 1999). Over the past 20 years, reentry courts following these principles have been implemented across the United States (e.g., Carey et  al., 2017; Taylor, 2020; Vance, 2011). As an example, the Harlem Parole Reentry Court (HPRC) has been in operation in Harlem, New  York since 2001. Shortly before release from incarceration, the HPRC begins case planning for offenders in order to smooth their transition into the community (Hamilton, 2010). Following the DOJ guidelines and the risk-need-­ responsivity (RNR) model more broadly (Bonta & Andrews, 2017), the HPRC integrates the COMPAS assessment tool with case planning to refer parolees to services in the community based on identified risks and needs (e.g., housing, employment services; Ayoub, 2020; Hamilton, 2010). Following release, parolees meet with their parole officer weekly and attend hearings with the court judge biweekly; both represent efforts to ensure the progress through the case plan (Hamilton, 2010). Officers are trained in the use of motivational interviewing (see Chap. 19) to foster the desire for change among parolees, and high-risk clients are referred to Thinking for a Change, a cognitive-behavioral program aimed at building social skills and reducing thinking errors among offenders (Ayoub & Pooler, 2015). Throughout the approximately 6-month program, missteps such as positive drug screens or missed treatment sessions are met with graduated sanctions (e.g., stricter curfews, electronic monitoring), while progress is supported via incentives such as relaxation of

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travel restrictions or certificates of accomplishment (Hamilton, 2010). After completion of the HPRC program, offenders are placed back onto regular parole supervision for the remainder of their sentence.

Continuity of Care According to many corrections scholars (e.g., Jonson & Cullen, 2015; Ndrecka, 2014; Seiter & Kadela, 2003; Travis, 2005), the most effective strategy for reentry programming is to provide a continuity of care from inside of institutions to the outside community. As Travis (2000) put it, for example, “drug treatment in prison should be linked to drug treatment in the community, job training should be linked to work outside, and so forth. In other words, mirror support systems should be established so that [offenders] can move from one to the other seamlessly upon release” (p. 9). Given that many of the obstacles faced upon release (e.g., housing, employment, contact with antisocial peers) are rather immediate, building the capacities to overcome such problems and establishing ties to support and services on the outside prior to release is crucial. Policymakers, practitioners, and scholars are evidently taking note of this necessity to provide continuous service provision. A scan of the recent evaluation literature shows that multimodal, multi-context programs are becoming more common (see, for example, Berghuis, 2018; Doleac, 2019; Duwe, 2014; Willison et al., 2014). One notable example of a programmatic effort to provide continuity of care during the reentry process is the Minnesota Comprehensive Offender Reentry Plan (MCORP). Approximately 60  days prior to their release from prison, offenders enrolled in MCORP are assigned to an institutional caseworker. Through a review of case files, administration of the Level of Service Inventory-Revised assessment tool (Andrews & Bonta, 1995), and the use of motivational interviewing techniques, caseworkers develop individualized transition accountability plans for inmates (Duwe, 2012). These plans chart out a coordinated regimen of treatment and supervision goals for inmates to adhere to, both while incarcerated and upon release. A key part of the case planning process is the use of SMART (small, measurable, attainable, realistic, timely) strategies, which help to keep offenders motivated and on-task toward treatment goals. Institutional caseworkers also involve community supervision officers in this process as early as possible. Duwe (2012) notes that these inreach efforts aim to provide continuity throughout the MCORP program by giving supervision officers a role in case planning and enabling them to ensure that access to appropriate services (e.g., employment, vocational training, housing, faith-based programming) is provided immediately upon inmates’ release. The program is also intended to give supervision agents assigned to MCORP lighter caseloads (i.e., 35–40 offenders as opposed to 75–80) in order to provide improved delivery of services (Duwe, 2012).

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The Effectiveness of Prisoner Reentry Programs From the standpoint of public safety, it is of utmost importance that reentry programs are implemented correctly, evaluated using rigorous research designs, and modified or discontinued based on these evaluations. In other words, given the investment of taxpayer funds in these programs, we should know whether and why they work to reduce reoffending. In the current section, we therefore discuss the current state of the evidence for whether reentry programs are effective in reducing reoffending and achieving secondary outcomes such as improvements in employment records. We also describe the reasons that reentry programs may fall short on achieving these ends, including failures of the programs themselves and limitations of the research strategies used to evaluate them.

Empirical Findings on Reentry Programs Given the attractive features of the three programs reviewed in the previous section (i.e., risk-needs assessments, motivational interviewing, multimodal service provision), it might be expected that they “work” to produce consistently favorable outcomes for reentering offenders. The results from their evaluations, however, proved to be mixed. First, in their evaluation of the Amity TC, Prendergast et al. (2003) tracked participants randomly assigned to either the TC program (N = 341) or normal prerelease procedures (N = 235) for a period of 5 years. Intent-to-treat analyses including those who participated in the aftercare component showed significant reductions in reincarceration for the treatment group through the 2-year mark, after which the groups began to converge. Subgroup analyses revealed no significant differences in reincarceration or drug use for those who completed the prison TC when compared to those who dropped out. However, those who completed the program were more likely to have been employed in the past year. Individuals who completed the aftercare component were significantly less likely to have been incarcerated during the follow-up period than those who only completed the in-prison component or dropped out of aftercare, although selection effects are likely a significant source of bias. Second, Ayoub (2020; see also Ayoub & Pooler, 2015) similarly examined the efficacy of the HPRC by randomly assigning parolees to the treatment program (N = 213) or parole-as-usual (N = 291). Analyses indicated that the program led to significant reductions in revocations by 18 months but had no significant effect on rearrests or reconvictions. Surveys completed by a subset of the treatment and control groups did indicate, however, that taking part in HPRC was associated with a greater likelihood of being currently employed, higher earnings over the previous year, increased perceptions of procedural justice, and less substance use (Ayoub & Pooler, 2015).

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Third, findings on the MCORP program have been mixed as well. Duwe (2014) investigated the reoffending outcomes of individuals randomly assigned to either MCORP (N = 415) or treatment-as-usual (N = 274). Adjusting for post-­randomization differences between groups, Duwe (2014) found that participation in MCORP led to significant reductions in rearrests, reconvictions, and technical violations but not in reincarcerations for new crimes. However, reanalyses of these same data by Doleac et  al. (2020) produced different findings. They found that many of the covariates used for adjustment by Duwe (2014) were measured post-randomization and thus could have been affected by treatment. Dropping these covariates and using an alternative matching strategy, Doleac et al. (2020) found that the effects of MCORP on reoffending trended toward being beneficial but were not statistically significant. Unfortunately, the equivocal findings from evaluations of the Amity TC, HPRC, and MCORP are by no means outliers in the broader literature on reentry programming. The results from evaluations of large-scale reentry efforts have been similarly mixed. Examination of the “most promising” SVORI programs showed that participation was associated with longer time to arrest and fewer arrests for adult and juvenile males and adult females (Lattimore et al., 2012). However, there were no significant impacts on reincarceration for juvenile males and adult females, and mixed effects existed for adult males. The effects of specific services were also inconsistent. Lattimore et al. (2012) reported that treatments for anger management and criminal attitudes led to longer times to rearrest for adult males but not females, while life skills training was beneficial for adult females but criminogenic for adult males. The effects of SVORI participation and specific services were generally not statistically significant for intermediate outcomes such as housing, employment, and substance use as well. Evaluations have also recently been completed on a range of reentry efforts funded by the Second Chance Act (SCA). D’Amico and Kim (2018) focused on seven sites across the United States that developed programs for medium- and high-­ risk male offenders. These programs were heterogeneous in that some offered in-­ prison services only, others in the community only; length of time in-program ranged from less than 1 month to more than a year; the types and specific uses of risk-needs assessments by program varied; and the types of treatment and services offered varied as well. Participants were randomly assigned to either the SCA reentry program (N = 606) or treatment-as-usual (N = 360). Participation in SCA programming did not lead to discernible reductions in reoffending or improvements in employment outcomes at the 18- and 30-month follow-ups (D’Amico & Kim, 2018). Another multisite study by Carey and associates (2017) examined SCA-funded reentry courts over a 2-year period. A total of 1025 reentry court participants were compared with 1595 eligible but unenrolled offenders using propensity score weighting. Participation in SCA reentry courts was associated with significant increases in the amount of services received. For example, the treated group received more outpatient group counseling for substance use than the comparison group (41% vs. 22%), more criminal thinking/life skills classes (44% vs. 29%), and more employment and education services (56% vs. 45%). Effects on reoffending between

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the seven programs were quite variable, however. Courts in Ohio and Texas reduced rearrests and reconvictions, for instance, while those in New Hampshire and Virginia had null or criminogenic effects. On the success of the Texas reentry court, Carey et al. (2017) observed that the breadth of services was much greater than in other states and that the increases in service provision were much larger. For example, 57% of Texas reentry court participants received cognitive-behavioral therapy, while only 31% of those in the comparison group did (Carey et al., 2017). Several large projects focused on employment have also been evaluated in recent years. Wiegand and Sussell (2016) reported on the 4-year outcomes from the Reintegration of Ex-Offenders (RExO) project. The U.S. Department of Labor provided funding for 24 grantees to develop programs for released offenders focused primarily on job readiness training and work placement, and secondarily on mentoring and case management. Analyses compared individuals randomly assigned to either an RExO program (N = 2804) or parole-as-usual (N = 1851). Wiegand and Sussell (2016) found that RExO had no significant impact on employment, earnings, rearrests, reconvictions, or reincarceration. Similar results come from a randomized control trial (RCT) of the Transitional Jobs Reentry Demonstration (TJRD), in which parolees in four Midwestern cities were assigned to parole-as-­ usual (N = 901) or the TJRD program (N = 912). The program provided transitional jobs and access to other work-related services (e.g., job search assistance, preemployment classes). After 2 years, TJRD had no significant impact on any measure of reoffending, nor did it impact unsubsidized employment (Valentine, 2012; Valentine & Redcross, 2015). Another jobs program—the Center for Employment Opportunities (CEO)—produced mixed results (Redcross et  al., 2012). Offenders randomly assigned to the CEO treatment group (N = 568) were provided a 5-day preemployment class and transitional jobs in which they worked in small crews and received constructive feedback from crew leaders. Those in the control group (N = 409) also attended the preemployment class but were not placed in transitional jobs. Similar to the TJRD program, Redcross et al. (2012) found that CEO had no significant impact on unsubsidized employment during a 3-year follow-up. The effect of CEO on reoffending was mixed: (1) Participants had fewer overall and misdemeanor, but not felony, reconvictions; (2) They were reincarcerated in jails less, but there were no significant differences for any form of returns to prison.

Accounting for the Weak Effects of Reentry Programs Taken together, the results of reentry program evaluations appear to be disconcerting. Indeed, a recent meta-analysis of nine RCTs by Berghuis (2018) concluded that these programs reduce reoffending by between 7 and 11%, though these effects were not statistically significant. Likewise, an earlier, more expansive meta-analytic review of 53 studies by Ndrecka (2014) found that reentry programs reduced reoffending, on average, by 6% when compared to treatment-as-usual; this effect was

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statistically significant. In spite of the body of evidence amassed thus far, however, we caution against prematurely writing off the idea of reentry programs being potentially beneficial. As discussed below, there are several related explanations for the observed inability of programs to achieve reductions in reoffending, as well as methodological shortcomings in prior studies that could erroneously mask program successes. If these issues are adequately addressed in future efforts, it might be possible to develop a clearer understanding of what works for offender reentry and what does not. Reasons for Program Failures Although existing reentry efforts may be created with the best of intentions, a key reason exists for their inability to produce positive results: They often do not target the criminogenic needs that are most strongly related to recidivism. In other words, reentry programs “frequently appear to have no overlap with theory or research on the causes of offending” (Mears & Cochran, 2015, p. 215; see also Berghuis, 2018; Jonson & Cullen, 2015). A prime example of this failure to focus on reoffending’s most robust predictors is the repeated attempt to help inmates’ transition from prison solely through the provision of work readiness training and transitional jobs. These issues are evidently salient to offenders themselves, as many report desiring but having limited access to educational and vocational programs (D’Amico & Kim, 2018; Harlow, 2003; Rampey et al., 2016). As evidenced by the central role of employment in federal grant programs (e.g., the FSA, RExO, SCA), policymakers, too, seem smitten with the idea of work being a silver-bullet solution to reoffending. Yet the employment programs discussed above (Valentine, 2012; Wiegand & Sussell, 2016), as well as the evaluation literature more broadly (e.g., Farabee et al., 2014; Visher et al., 2005), tend to show that employment alone generally does not curb reoffending. Theory and research on the causes of recidivism and the principles of effective intervention provide insight as to why work often does not “work” (Bonta & Andrews, 2017; Gendreau et al., 1996; Katsiyannis et al., 2018). Drawing on that literature, for example, Listwan et al. (2006) observe that simply providing offenders a job is unlikely to pay dividends without simultaneously addressing the core determinants of recidivism (i.e., antisocial personality factors, antisocial cognitions, and antisocial peers; see Bonta & Andrews, 2017; Papp et  al., 2019). Employment alone will tend not to cause desistance if the offender continues to have problems such as low self-control, hostile attribution biases, and an inability to resist negative peer influences after s/he leaves work. The second set of reasons that existing reentry efforts have likely produced weak effects concerns haphazard attention to the principle that the intensity of services should be tailored to the risk level of the individual offender (Andrews & Dowden, 2006; Bonta & Andrews, 2017). On the one hand, it is encouraging to see increasing use of actuarial tools to assess offenders’ eligibility for programs and the dynamic risks/needs to be targeted during treatment (e.g., the Level of Service Inventory-­ Revised, Correctional Assessment and Intervention System; see Clark, 2015;

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D’Amico & Kim, 2018; Duwe, 2014; Grommon et al., 2013). On the other hand, some programs continue to rely on subjective assessments to determine eligibility (see, e.g., Braga et al., 2009) or do not utilize assessment tools whatsoever (e.g., Farabee et al., 2014; Redcross et al., 2012; Valentine, 2012). Proponents of the RNR model have long argued—and found empirically—that the largest benefits of treatment will be for high-risk offenders, while low-risk offenders will be unaffected or even harmed by treatment (Andrews & Dowden, 2006; Bonta & Andrews, 2017). Evidence of this effect can be observed in existing evaluations of reentry programs. For example, in their study of the CEO transitional jobs program, Redcross et al. (2012) found that the program had null effects on recidivism for individuals with three or fewer prior convictions but was associated with significantly fewer arrests and felony and misdemeanor reconvictions for offenders with four or more priors. Likewise, Van Voorhis et al.’ (2013) examination of the community-based Reasoning and Rehabilitation program showed that the program decreased offending by 10% points for high-risk offenders compared to randomly assigned controls, but it increased reoffending by approximately 4% points for low- and medium-risk offenders. A related concern is that reentry programs do not closely consider the timing and dosage of treatment. As discussed previously, many of the obstacles that offenders face upon community reentry are immediate, and a large proportion of individuals who eventually reoffend do so within the first few months of release (Langan & Levin, 2002). To be maximally impactful, then, enrollment in a treatment program should begin as close as possible to release from incarceration. Yet, it is evident that some programs leave large gaps between release and service delivery for a nontrivial proportion of clients (e.g., Farabee et al., 2014; Redcross et al., 2012; Wiegand & Sussell, 2016). A salient finding from the CEO evaluation by Redcross et  al. (2012) is that significant effects on recidivism were confined to individuals enrolled in the program within 3 months of their release; those enrolled later reoffended at rates indistinguishable from parole-as-usual. Further, the actual dosage of treatment received is quite limited in some programs. It is quite common for studies to report a time-in-treatment of less than 12 weeks (e.g., D’Amico & Kim, 2018; Wiegand & Sussell, 2016; Wilson & Davis, 2006). As Wilson and Davis (2006) note, short treatment duration is problematic because of the substantial time it takes for offenders to develop a desire to change and then to actually do so. Indeed, research on reentry programs (Ndrecka, 2014) and offender treatment in general (Makarios et al., 2014; Sperber & Lowenkamp, 2017) suggests that dosage plays a significant role in program effectiveness, with high-risk clients requiring substantially more service for maximal benefits. A third set of reasons that reentry programs may fail is that they are often not implemented as designed (i.e., they lack fidelity). A treatment protocol could be designed to be perfectly consistent with established knowledge on the causes and dynamics of reoffending but if its implementation fails, the program may also fail, and thus empirical conclusions will be misleading. A now-infamous study of Project Greenlight by Wilson and Davis (2006) highlights the potential sources of infidelity that can occur. The program incorporated a well-established CBT module

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(Reasoning & Rehabilitation [R&R]) and involved the development of a multimodal intervention plan targeting educational and vocational skills, family, and substance use. Despite these features, Wilson and Davis (2006) found that participants reoffended sooner and at a higher frequency than comparisons. Their process analysis revealed that R&R classes were more than twice the size and delivered in half the time as intended. Wilson and Davis (2006) likewise lamented the lack of aftercare for a program that was designed to target high-risk offenders. Other studies highlight similarly troubling issues with implementation: Grommon et  al. (2013) observed that individual participants’ treatment dosage was highly variable and declined dramatically over time in the program they evaluated; Duwe (2012) found that despite intentions of halving parole officers’ caseloads and enrolling inmates 60 days or more from release, caseloads remained the same and many inmates were assigned to MCORP less than a month prior to release; and Clark (2015) noted problems with staff turnover and the removal of intended programming due to budget cuts. Each of these failures in implementation could result in large departures from the intended goals of treatment and thus contribute to the lackluster findings on program effectiveness. Reasons for Nonsignificant Findings Existing reentry programs may indeed have limited effects on reoffending and other outcomes because of the types of design flaws noted above. It is also worth noting, however, that quantitative findings can sometimes be misleading because of flaws in the methods used to produce them. In this regard, the extant reentry program evaluation literature has often fallen short. As Mears and Cochran (2015) note, most correctional programs are never evaluated at all. Among the small number that are, a cursory reading of this literature and of resources like the National Institute of Justice’s CrimeSolutions.gov webpage indicates that the overwhelming majority of programs have been assessed only once. And among that number, very few apply the gold standard RCT approach (Berghuis, 2018; Doleac, 2019), with most opting instead for quasi-experimental methods such as propensity score matching (e.g., Braga et  al., 2009; Lattimore et  al., 2012; Willison et  al., 2014). When properly conducted, quasi-experimental techniques can yield groups that are statistically indistinguishable on observables, yet we cannot assume, as we do with the RCT, that all confounds have been randomly and evenly distributed between treatment and control groups (Morgan & Winship, 2015). In other words, treatment and comparison groups in quasi-experimental studies may differ in ways that bias estimates of treatment effects. This is not to say that RCTs are infallible, however, and indeed there are recurrent problems in the reentry program evaluation literature. The most common is that studies lack the statistical power necessary to make confident (and probable) inferences about program effectiveness (see, e.g., Clark, 2015; D’Amico & Kim, 2018; Doleac et al., 2020). For example, in their evaluation of SCA-funded reentry programs, D’Amico and Kim (2018) noted that the sizes of treatment and control

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groups at each of the seven sites examined were not sufficient to make reliable inferences about the effects of any individual program. Thus, despite each site having received between $1.5 and $3.25 million to develop and implement their programs, we cannot say whether any particular effort was effective and, if so, why and for whom. Insufficient power is often a problem even when single programs are analyzed. To illustrate this issue, Doleac et  al. (2020) reanalyzed and conducted power analyses on data from three prior reentry projects. All three of these studies were insufficiently powered. For example, Duwe (2014) found that participation in MCORP reduced rearrests by 5.3%. With 689 participants, this effect size was not statistically significant. Doleac et al.’s (2020) power analysis showed that a sample of 4303 would have been necessary to detect an effect of 5% or higher. Issues relating to selection bias can also be problematic in both experimental and quasi-experimental designs. With regard to the latter, matching and weighting techniques are prone to work well when correctional administrators and staff assign offenders to treatment based on objective indicators, such as offense history or pre-­ incarceration employment status. These indicators are often made available to researchers, and, thus, matching on observables can adequately account for the selection mechanism (Morgan & Winship, 2015). However, participation in some reentry programs is either entirely voluntary (e.g., Willison et al., 2014), or enrollment in certain components is optional (e.g., aftercare in the Amity TC program; see Prendergast et al., 2003). In these situations where offenders actively choose to take part in programs, quasi-experimental techniques are more likely to impart nontrivial bias since the list of observables available to analysts will generally not include the types of subjective factors driving decisions to enter treatment (e.g., motivation to change, attitudes about treatment). Attrition creates similar problems with selection bias in RCTs. It is well-known that, for a variety of reasons, many offenders assigned to treatment programs fail to complete them (Hatcher et al., 2012; Listwan, 2009; Olver et al., 2011). For example, they may be dropped from a study post-randomization due to early release or placement in another program (Duwe, 2014), or they may choose to drop out due to disinterest (Olver et al., 2011; Van Voorhis et al., 2013). Whatever the reason for attrition, there is a strong possibility that non-completers will differ from completers in important ways that will influence treatment effect estimates. In Olver et  al.’s (2011) meta-analysis of attrition predictors for offenders, non-completers were more likely to score high on dynamic risk-need assessments; have problems with criminal thinking, impulsivity, and hostility; score low on pretreatment motivation; and have substance and alcohol use problems. All of these factors are associated with an increased likelihood of recidivism and thus dropping non-completers from analyses of treatment effects will bias estimates. For this reason, scholars increasingly recommend the use of intent-to-treat analyses that analyze groups as assigned to treatment, regardless of completion status (Doleac et  al., 2020; Farabee et  al., 2014; Hatcher et al., 2012).

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Conclusion: The Future of Reentry Programs As the reentry movement now enters its third decade, all signs point to its continued growth. The public generally supports the notions that offenders are redeemable and that efforts should be made to assist reentry through the provision of rehabilitation programs, substance abuse and mental health treatment, and employment opportunities. In step with these public sentiments, preparing offenders for reentry is now an integral part of corrections in the United States, with scholars and policymakers devoting increased attention to reentry program development. This new focus on reentry is a welcome change and reason for optimism. Rather than continuing the practice of setting offenders free from prison without support and hoping to deter criminal behavior solely by the threat of reincarceration, former prisoners now experience more support for overcoming the practical challenges they face upon release. However, despite the good intentions behind the reentry movement, we have pointed out in this chapter that there are serious obstacles in the way of programs achieving their goals of supporting offenders’ reintegration and improving public safety. Reentry programs often fail to target high-risk offenders, focus on factors only weakly associated with recidivism, deliver services in low dosages or too late in the reentry process, and are not implemented with fidelity. There are also frequent limitations in the methodological strategies used to evaluate programs. To conclude, we now draw on these criticisms to offer recommendations for improving future efforts in the design and evaluation of reentry programs. As the reentry movement moves forward, heeding these suggestions and marrying good intentions with good science will be essential to producing effective interventions. Continued failure or mixed results risks undermining the allocation of tax dollars to assist returning prisoners. Indeed, program success is integral to sustaining the reentry movement and to justifying broader efforts at criminal justice reform.

A Theoretical Foundation for Reentry Practice The first suggestion is that reentry programs need to be undergirded by a strong theoretical understanding of the causes of offending and of behavioral change. Adherence to the principles of risk, need, and responsivity has proven to be effective in programs that, while not explicitly reentry-focused, foster the development of cognitive and behavioral skills that aid desistance from crime (Bonta & Andrews, 2017; Landenberger & Lipsey, 2005; Smith et al., 2009). As should be clear from the discussions throughout this chapter, we argue that the RNR model is also a solid framework around which a criminology of reentry can be built (see also Jonson & Cullen, 2015; Mears & Cochran, 2015). In accordance with the model, entry into programs and case planning should ideally be based upon actuarial risk assessment, reserving most services for medium- and high-risk offenders and titrating treatment

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dosage accordingly. Services will be optimally effective when delivered using cognitive-­behavioral/social learning strategies (e.g., cognitive restructuring, behavior chain analysis; see Dowden et al., 2003; Landenberger & Lipsey, 2005; Spiegler & Guevremont, 2010). Research suggests that these strategies will be particularly impactful when coupled with staff’s use of core correctional practices such as active listening, effective reinforcement and punishment, use of authority, and behavioral modeling (Dowden & Andrews, 2004; Haas & Spence, 2017; Robinson et al., 2012). In terms of the types of services delivered to offenders, reentry programs should: (1) aim to build offenders’ motivation for change; (2) tackle the underlying propensity for criminal offending; and (3) provide practical opportunities that facilitate reintegration into the community. In the case of motivation, it has been established that offenders who are unmotivated or feel unable to engage in treatment are more likely to drop out of programs and reoffend (Olver et  al., 2011). Thus, scholars increasingly recommend preemptive efforts such as motivational interviewing that aim to build the self-discrepancies and efficacy beliefs that motivate individuals to change their behavior and engage meaningfully in therapy (e.g., Markland et al., 2005; McMurran, 2009; Petrich, 2020). On the issue of offender propensity, significant attention should be directed toward changing antisocial personality patterns (e.g., low self-control, poor emotion regulation), antisocial cognitions (e.g., hostile attribution bias, moral disengagement), and involvement with antisocial peers. Existing research illustrates that these dynamic criminogenic needs are the most strongly predictive of offending behavior and that targeting them in treatment protocols produces the largest reductions in reoffending (e.g., Bonta & Andrews, 2017; Gendreau et al., 1996; Katsiyannis et al., 2018). As a large amount of research shows, common post-incarceration obstacles include difficulties in securing employment and housing, poor physical and mental health, fractured relationships with family, and restrictions on social assistance and voting rights (Mears & Cochran, 2015; Petersilia, 2003; Travis, 2005; Western, 2018). Efforts to increase offenders’ motivation to change and address criminogenic needs should therefore be paired with services that address the practical needs of offenders. The benefits of addressing motivation and propensity without simultaneously addressing practical reality are likely to be limited, and vice versa. For example, offenders who are motivated to change and initiate cognitive transformations (e.g., increased self-control, reduced hostility) may nonetheless slip back toward criminality if supports for employment, housing, and family reunification are absent (Halsey et al., 2017; Petrich, 2020). Likewise, for individuals who receive no treatment for antisocial attitudes/cognitions and maintain connections to antisocial peers, employment or aiding family reunification alone may have null effects or even facilitate increased offending (e.g., Browning et al., 2004; van Koppen et al., in press).

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Improving Evaluations and Metrics of Success Our second set of suggestions for moving the reentry paradigm in a positive direction concerns the ways in which programs are commonly evaluated and how “effectiveness” is defined. As discussed previously, one of the problems here is that very few programs are ever evaluated. Among the few that are evaluated, most are examined only once and with quasi-experimental designs that leave open the potential for selection bias. Given that federal, state, and local governments spend roughly $80 billion per year on corrections (National Academy of Sciences, 2014), the amount spent over the past two decades on designing, implementing, and evaluating reentry programs is a pittance (Listwan et  al., 2006; Mears & Cochran, 2015; Seiter & Kadela, 2003). Travis (2005) noted that the iron law of imprisonment is that, eventually, “they all come back” into our communities. For the sake of both public safety and the well-being of offenders themselves, it is therefore imperative that sufficient funding be allocated to understanding how we can make reentry programs effective. Much of the money that is devoted to program evaluations should evidently be put toward high-quality RCTs with sufficient statistical power to detect causal effects. Within these evaluations, however, we urge greater attention to the issue of program fidelity (see also Berghuis, 2018; Jonson & Cullen, 2015). Although some scholars have noted specific, actionable problems with fidelity in reentry efforts (e.g., Clark, 2015; Duwe, 2012; Wilson & Davis, 2006), implementation analyses in large-scale, federally funded studies commonly amount to showing whether assignment to the treatment group corresponds with greater receipt of services than for those in comparison groups (Carey et al., 2017; D’Amico & Kim, 2018; Wiegand et al., 2015). These types of evaluations tell us little about the fidelity and quality of the services that are actually delivered to offenders. However, tools such as the Correctional Program Assessment Inventory and the Correctional Program Checklist have been developed to assess the extent to which services are designed in accordance with the RNR principles, whether they are implemented correctly, and the characteristics and training of the staff tasked with delivery. Prior studies illustrate that programs with higher scores on these tools create larger reductions in reoffending (e.g., Lowenkamp et al., 2006; Makarios et al., 2017; Nesovic, 2003). Finally, evaluators and policymakers alike should consider precisely how “success” in reentry programs is defined. Although there are certainly exceptions (e.g., Ayoub & Pooler, 2015; Duwe, 2012; Farabee et al., 2014; Lattimore et al., 2012; Wiegand et al., 2015; Wilson & Davis, 2006), evaluations commonly neglect non-­ offending outcomes germane to the reentry process, such as improvements in mental health, substance use, housing, unsubsidized employment, and family reunification (see also Gunnison & Helfgott, 2013). Each of these outcomes is relevant to criminal behavior and may indeed serve an intermediate function in reducing reoffending. In other words, achieving improvements in these intermediate outcomes may serve as a stepping stone to long-term desistance from crime. A related issue is how we operationalize “recidivism” in research on correctional programs. It is quite common in this body of work to analyze recidivism as a binary

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event (Maruna, 2015). However, the broader literature on criminal careers illustrates that desistance from crime is best conceptualized as a gradual process rather than the result of an abrupt cessation of criminal activity (Bushway et al., 2003; Laub et al., 1998; Piquero, 2008). Thus, measuring recidivism solely as a binary outcome in evaluation studies may erroneously mask meaningful reductions in the frequency, variety, or severity of offending that occur because of involvement in reentry programming. In closing, the fact that “they all come home” is a correctional reality that cannot be ignored. For about two decades, officials have made important strides in creating programs and in making the very notion of “reentry” an accepted correctional function with broad public support. The challenge ahead is to create a second generation of programs capable of reliably reducing recidivism and of improving the quality of returning prisoners’ lives. In this task, good intentions must be merged with good science, with a realization that the best way to save the wayward is to provide access to programs that are, at once, supportive in intent and effective in practice.

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Valentine, E.  J., & Redcross, C. (2015). Transitional jobs after release from prison: Effects on employment and recidivism. IZA Journal of Labor Policy, 4(1), 16. https://doi.org/10.1186/ s40173-­015-­0043-­8 van Koppen, V., van der Geest, V., Kleemans, E., & Kruisbergen, E. (in press). Employment and crime: A longitudinal follow-up of organized crime offenders. European Journal of Criminology. https://doi.org/10.1177/1477370820941287 Van Voorhis, P., Spiropoulos, G., Ritchie, P. N., Seabrook, R., & Spruance, L. (2013). Identifying areas of specific responsivity in cognitive-behavioral treatment outcomes. Criminal Justice and Behavior, 40(11), 1250–1279. https://doi.org/10.1177/0093854813494182 Vance, S.  E. (2011). Federal reentry court programs: A summary of recent evaluations. Federal Probation, 75(2), 64–73. Retrieved from https://www.uscourts.gov/sites/default/ files/75_2_11_0.pdf Visher, C. A., La Vigne, N., & Travis, J. (2004). Returning home: Understanding the challenges of prisoner reentry. Maryland Pilot Study: Findings from Baltimore. The Urban Institute. Retrieved from https://www.urban.org/sites/default/files/publication/42841/410974-­Returning-­Home-­ Understanding-­the-­Challenges-­of-­Prisoner-­Reentry.PDF Visher, C.  A., Palmer, T., & Roman, C.  G. (2007). Returning home: Understanding the challenges of prisoner reentry. Cleveland stakeholders’ perceptions of prisoner reentry. The Urban Institute. Retrieved from https://www.urban.org/sites/default/files/publication/43056/411515-­ Cleveland-­Stakeholders-­Perceptions-­of-­Prisoner-­Reentry.PDF Visher, C. A., Winterfield, L., & Coggeshall, M. B. (2005). Ex-offender employment programs and recidivism: A meta-analysis. Journal of Experimental Criminology, 1(3), 295–316. https://doi. org/10.1007/s11292-­005-­8127-­x Wagner, P., & Sawyer, W. (2018, June). States of incarceration: The global context 2018. Prison Policy Initiative. Retrieved from https://www.prisonpolicy.org/global/2018.html Welsh, W. N. (2007). A multisite evaluation of prison-based therapeutic community drug treatment. Criminal Justice and Behavior, 34(11), 1481–1498. https://doi.org/10.1177/0093854807307036 Western, B. (2018). Homeward: Life in the year after prison. Russell Sage. Wiegand, A., & Sussell, J. (2016). Evaluation of the Re-Integration of Ex-Offenders (RExO) program: Final impact report. U.S. Department of Labor. Retrieved from https://wdr.doleta.gov/ research/FullText_Documents/ETAOP-­2015-­10_The-­Evaluation-­of-­the-­Re-­Integration-­of-­Ex-­ Offenders-­%28RExO%29-­Program-­Final-­Impact-­Report_Acc.pdf Wiegand, A., Sussell, J., Valentine, E., & Henderson, B. (2015). Evaluation of the Re-integration of Ex-Offenders (RExO) program: Two-year impact report. Social Policy Research Associates. Retrieved from https://wdr.doleta.gov/research/FullText_Documents/ETAOP_2015-­04.pdf Willison, J. B., Bieler, S. G., & Kim, K. (2014). Evaluation of the Allegheny County Jail collaborative reentry programs. The Urban Institute. Retrieved from https://www.urban.org/sites/default/ files/publication/33641/413252-­Evaluation-­of-­the-­Allegheny-­County-­Jail-­Collaborative-­ Reentry-­Programs.PDF Wilson, J. A., & Davis, R. C. (2006). Good intentions meet hard realities: An evaluation of the Project Greenlight reentry program. Criminology & Public Policy, 5(2), 303–338. https://doi. org/10.1111/j.1745-­9133.2006.00380.x Wilson, J. Q. (1975). Thinking about crime. Vintage. World Prison Brief. (2018). World prison population list (12th ed.). Institute for Criminal Policy Research. Retrieved from https://www.prisonstudies.org/sites/default/files/resources/downloads/wppl_12.pdf

Chapter 19

The Pendulum of Community Supervision: The Emergence of RNR, Working Alliance, and Motivational Factors as a Means to Improve Supervision C. J. Appleton, Benjamin J. Mackey, Sarah Skidmore, JoAnn S. Lee, and Faye S. Taxman

Abstract  The rhetoric and philosophy of community supervision is moving toward rehabilitation, spurred in part by the emergence of evidence-based practices. However, there remains a great deal of tension between punitive and rehabilitative approaches in supervision. This chapter offers a brief history of this tension, with consideration of how macro-level sociopolitical forces affect micro-level practitioner efforts to balance their dual roles as helper and enforcer. Following this, we focus on the ways the tension appears in the present-day context by providing an empirical review of both the punitive sanctions and rehabilitative techniques routinely used in supervision. Our review of rehabilitative techniques includes the dominant risk-need-responsivity (RNR) framework and some of its embedded tools: cognitive-behavioral therapy (CBT), working alliance (WA), and motivational interviewing (MI). We discuss emergent strength-based approaches (SBAs) which shift the focus from an individual’s potential risks to their extant strengths. Based on the evidence supporting the RNR, an integrated RNR and SBAs approach will provide a holistic approach to supervision and offer opportunities to provide effective treatment services. Keywords  Community supervision · Rehabilitation · Risk-need-responsivity · Strength-based approaches · Managerial justice

C. J. Appleton (*) · B. J. Mackey · S. Skidmore · J. S. Lee · F. S. Taxman George Mason University, Fairfax, VA, USA e-mail: [email protected]; [email protected]; [email protected]; jlee120@ gmu.edu; [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_19

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Over the course of the last 40 years, the pendulum has swung in community supervision, with altering philosophies that drive how (best) to manage individuals. The rehabilitative ideal—the dominant philosophy in community supervision since its formal inception in the late nineteenth century—withered under an onslaught of empirical and ideological critique. It was replaced in the 1970s and 1980s with a control-oriented philosophy(s) that prioritized the management of community supervision clients1 over the provision of rehabilitative services to them (Petersilia, 1997; Rhine & Taxman, 2018; Taxman, 2002). Concurrently, the number of people under supervision has almost tripled from less than 1.5 million in 1980 to nearly 4.4 million by the end of 2018 (Bureau of Justice Statistics, 1982; Kaeble & Alper, 2020). These seismic shifts in the philosophy and scope of community supervision have repeatedly altered both its goals and methods. Indeed, as supervision expanded and shifted from the previously dominant rehabilitative approach to the control-­ oriented approach, the role of the officer changed from that of helper and service broker to one focused on managing these extensive numbers of clients through surveillance and monitoring (Rhine & Taxman, 2018; Taxman, 2002). However, the control-oriented approach did not produce improved outcomes on supervision but instead had the iatrogenic effect of increasing revocations (Petersilia & Turner, 1993) and new entries into jail/prison (Pew Charitable Trusts, 2018). With new scientific evidence on “what works”—along with concerns about rising incarceration rates—rehabilitation reemerged as the favored paradigm of supervision (Taxman, 2008). While this resurgence is often framed as a shift from the “nothing works” attitude to “what works” in supervision, this shift is far from complete. The search for the holy grail still exists today. The purpose of this chapter is to flesh out the tension between the punitive and rehabilitative approaches in supervision to identify a way forward. In doing so, we discuss the officer-client working alliance (WA) and motivational interviewing (MI) as key mechanisms within the current RNR framework used to attain a balance between rehabilitative and control-­ oriented philosophies. However, we suggest that, in its focus on deficit categories such as risk, the RNR framework may limit mechanisms such as WA and MI from achieving this balance. Consequently, we assert that the incorporation of strength-­ based approaches (SBAs) within the RNR framework could build a more holistic model that simultaneously considers both the criminogenic needs and intrinsic strengths of the client. Such a holistic model could serve to amplify the effectiveness of WA and MI in the supervision setting. To make these points, we first offer a brief history of community supervision. Woven throughout this history is a tension between punitive and rehabilitative approaches to supervision. Next, we expand our understanding of this tension by offering an empirically grounded review of sanctions and rehabilitative techniques. Our empirical review of sanctions focuses on two distinct categories frequently employed by probation and parole officers (POs): those that structure movements  We use the term “client” to denote an individual on community supervision. We recognize that this is not a perfect term, as “client” seems to imply that the relationship is consensual when it is not. We nonetheless use the term to avoid use of stigmatizing labels such as “offender.” 1

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(physical sanctions) and thought processes (psychological sanctions). To review rehabilitative techniques, we begin with a broad overview of the RNR framework and how it guides the rehabilitative processes in supervision. Then, we consider key tools used to achieve rehabilitative goals within the RNR framework: cognitive-­ behavioral therapy (CBT), working alliance (WA), and motivational interviewing (MI). In addition, we consider the empirical evidence on strength-based approaches (SBAs) to rehabilitation including the Good Lives Model (GLM). Finally, we conclude with a discussion regarding the current state of affairs in the community supervision field, wherein the evidence for rehabilitation and sanctions has been weighted and repurposed to support evidence-based models of supervision such as the Risk-Needs-Responsivity (RNR) model. While these models carry with them the flavor of rehabilitative paradigms, we ultimately find that they fall short of a full measure of criminal justice reform including a return to rehabilitative supervision. We conclude by illustrating how integrating strength-based approaches in the RNR model may bring supervision back in line with its rehabilitative goals.

 ensions in the Field: The Sociohistorical Context T of Community Supervision A historical review of the field can provide an understanding of the tensions that exist between the rehabilitative and control-oriented approaches to community supervision. These origins are deeply situated within the sociohistorical context where community supervision developed, matured, and evolved. Like the prison paradigm before it (Durkheim, 1901/1983; Foucault, 1975/1995), community supervision has its origins in a wave of liberal reform, which sought to make punishment appear more humane, individualized, and reformatory. Far more than the prison, the origins of probation and parole are deeply rooted in the rehabilitative ideal—of using the principles of social work to improve the circumstances of the punished individual (Rhine & Taxman, 2018; Taxman, 2002). The following presents a brief account of these origins, especially the early ties between community supervision and the rehabilitative ideal.

 he Inception of Probation and Parole in the Context T of Rehabilitation Probation and parole have two similar trajectories. The history of modern probation is traced back to the work of John Augustus in 1841 (Petersilia, 1997). A bookmaker by trade, Augustus had no law enforcement experience—he was a wealthy religious man who had some experience working with alcoholics (Petersilia, 1997). Augustus developed his early model of probation after posting bail for a man charged with

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drunkenness; thereafter, he convinced the judge to allow him to supervise and reform the man personally (Petersilia, 1997; Wodahl & Garland, 2009). Augustus further impressed the judge how supervision could reform the man, thereby satisfying the reformatory goals of punishment. While the reformative bent of Augustus’s efforts was met with some resistance from law enforcement officials, it fit within the general notion of punishment, which saw rehabilitation as a primary goal of punishment (Allen, 1981; Cullen & Gendreau, 2000; Petersilia, 1997). Furthermore, it aligned with the Protestant work ethic, which sought to enhance each person’s capability of being self-sufficient. Augustus and those who adopted the nascent probation model were well-suited for this rehabilitative conception of punishment, as many came from an explicitly religious and humanistic standpoint (Petersilia, 1997). These individuals and the formalized version of probation officers (i.e., law enforcement officers) who followed them served as service providers or brokers, connecting people to community organizations when unable to provide services directly (Rhine & Taxman, 2018; Taxman, 2002). A popular model of supervision developed—one in which the rehabilitative function of punishment, it was believed, could be achieved in the community. Within a few decades, probation was formalized in Massachusetts in 1878, with formal adult probation systems present in the majority of US states by 1938 (Wodahl & Garland, 2009). The origins of parole are similar to probation. Although there exists some disagreement as to where the concept originated, the British penal colony superintendent Alexander Maconochie is frequently cited as the inventor of modern parole (Wodahl & Garland, 2009). Charged with the supervision of incarcerated persons on Norfolk Island, Maconochie developed a ticket-of-leave system allowing his carceral charges to accumulate “marks” for good behavior and steady labor; upon the accumulation of enough marks, an incarcerated person could be granted a ticket-of-­ leave permitting them to cease their penal labor on the condition that they remain in the local jurisdiction (Wodahl & Garland, 2009). Parole allowed punishment to appear more humane and rehabilitative while reducing the number of people in prison (Simon, 1993; Wodahl & Garland, 2009). Parole gained adoption in the US, with the first formal parole system established by the federal government in 1910 (Wodahl & Garland, 2009). The rehabilitative origins of probation and parole are best understood within the broader sociohistorical context in which they developed (Wodahl & Garland, 2009). The rhetoric and means of punishment underwent dramatic shifts as they continued to focus less on the punishment of the body and more on reformation of the values and perspectives of the mind (Foucault, 1975/1995). The reformatory goals of punishment were clearly articulated as early as 1870 when the National Congress on Penitentiary and Reformatory Discipline asserted that the “infliction of vindictive suffering” of punishment should be replaced with a rehabilitative approach (as cited in Cullen & Gendreau, 2000, p. 116). Such an approach would guarantee community safety by reforming law violators, rather than grievous punishment of their bodies (Cullen & Gendreau, 2000; Foucault, 1975/1995). Situating the origins of community supervision within this sociohistorical context illustrates their substantial degree of interdependence with larger cultural and social patterns; it also

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anticipates how changes in the larger context exerted sufficient influence on community supervision to shift from a model of rehabilitation to one of managerial compliance to achieve efficiency.

The Decline of the Rehabilitative Ideal and a New Penology Understood as a slow process of change tied to broader social forces, the early cracks in the rehabilitative ideal are apparent. Although deeply rooted in the rhetoric surrounding early probation and parole, the rehabilitative ideal was not always reflected by the actions of practitioners in these fields (Petersilia, 1997; Simon, 1993; Wodahl & Garland, 2009). Doubt regarding the efficacy of rehabilitation as a means of crime control spread among academic circles as early as the 1950s, leading some to launch more rigorous empirical evaluations of common rehabilitative strategies (Cullen & Gendreau, 2000). In 1974, Robert Martinson published one of the larger studies of the field, reviewing over 250 studies. Entitled “What Works? Questions and Answers About Prison Reform,” Martinson’s study provided findings regarding the efficacy of reformative strategies, and ultimately concluded that his findings “give us very little reason to hope that we have in fact found a sure way of reducing recidivism through rehabilitation” (Martinson, 1974, p.  49). While it is important to note that Martinson (1974) never concluded that “nothing works” to rehabilitate those involved in the criminal legal system (Cullen & Gendreau, 2000), this conclusion nonetheless proliferated widely. Confidence in rehabilitation dipped rapidly as critiques of penal-welfarism and individualized treatment abounded (Garland, 2001). This effect was not limited to carceral practices however but instead extended to the rehabilitative ideal more broadly. The decline of the rehabilitative ideal (Allen, 1981) served to move probation away from its social work origins and toward a surveillance- and control-oriented model grounded in the risk of recidivism (Rhine & Taxman, 2018). The shift in community supervision from rehabilitation to surveillance and control was by no means inevitable—rather, it was a result of the confluence of several sociopolitical factors. Martinson’s (1974) study appeared amid growing skepticism regarding the use of rehabilitation as a sound penological policy (Cullen & Gendreau, 2000), along with the rise of retributive justice and the beginning of the mass incarceration era. The mass incarceration era defined deterrence as the main objective of punishment, which was to be accomplished through stiffer sentences, more conditions, and a number of collateral consequences. This era was spurred by political actors who capitalized on growing middle-class fear of crime in the late 1980s, allowing the power to punish to be increasingly stripped away from the judiciary through devices such as mandatory minimums, sentencing guidelines, and so-called “three-strikes” laws (Garland, 2001). In the context of widespread social anxiety concerning crime, coupled with mounting efforts to use this anxiety to achieve political ends, punishment came to reflect a new approach that sought to manage individuals who commit crimes—to control and contain them—rather than

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to “cure” criminal behavior (Feeley & Simon, 1992; Garland, 2001). Given the historically limited resources allocated to community supervision (Lynch, 2000; Rhine & Taxman, 2018), this resulted in what Feeley and Simon (1992) describe as an ostensibly cost-efficient “new penology.” The new penology facilitated the control of the burgeoning supervision populations by shifting the field’s focus away from the reformation of the individual and toward managerial strategies to control groups. Aggregated into a collective, the idea of dangerous classes—those that engage in criminal behavior regardless of the nature of the behavior—is sustained by the discourse and tactics of the new penology; under its logic, these dangerous classes must be managed and controlled, not reformed (Feeley & Simon, 1992; Simon, 1993; Wacquant, 2009). The aftermath of the Martinson study, emphasis on deterrence and retribution, and new penology reoriented supervision toward a control-­oriented approach based on management and surveillance.

RNR and the Resurgence of the Rehabilitative Ideal In spite of these shifts in the cultural landscape that reoriented community supervision toward a more control-oriented stance, the idea of rehabilitation never disappeared entirely. Three major developments reframed the argument using empirical evidence to support a resurgence of rehabilitation: (1) the development of meta-­ analytic techniques (Andrews & Bonta, 2010b), (2) the creation of the Psychology of Criminal Conduct (Andrews & Bonta, 2010b), and (3) the adaptation of clinical strategies in community supervision (Taxman, 2002, 2008). First, meta-analysis provided an objective methodology to quantify the scientific literature. In 1996, the National Institute of Justice commissioned a review of crime control strategies by a team from the University of Maryland (Sherman et al., 1998). Overwhelmingly, the review found rehabilitative strategies reduced recidivism compared to punitive or social control approaches. The rigorous methods employed by the review made it more difficult to debate the efficacy of a rehabilitative approach. Second, the Psychology of Criminal Conduct (PCC) challenged the traditional way the “criminal” was conceived. Using a social learning approach, the PCC views criminal behavior as acquired within a social context. The PCC was able to focus on individuals in terms of their behaviors and associated cognitions, criminal history, and a constellation of potential “antisocial” personality factors (e.g., impulsiveness, thrill-seeking, egocentrism) (Andrews & Bonta, 2010b). This counters the traditional sociological approach to crime that focused on structural conditions (Andrews & Dowden, 2006). The PCC effectively shifted the focus away from aggregates onto the individual, thereby emphasizing the principles of effective correctional practices to dually control and change behavior. A result of this shift was the development of the risk-need-responsivity (RNR) model developed by Andrews, Bonta, and colleagues (1990a). The principle of risk refers to the risk of recidivism ascribed to an individual by an empirically based assessment; it allows these individuals to be classified as either low, medium, or

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high risk. The need principle describes the criminogenic needs, both static and dynamic, of the individual within their current environment. Finally, the responsivity principle seeks to maximize the client’s ability to learn from interventions by using CBT techniques while tailoring interventions to be culturally responsive and fit the learning style of the client. Currently, the RNR model is viewed as the premier rehabilitative paradigm in community supervision (Gleicher et al., 2013). Third, the emergence of Rogerian psychological approaches in community supervision offered effective treatment strategies. Taxman and her colleagues (2008) demonstrated how adapting counseling strategies by community supervision officers can be incorporated in supervision settings by redefining the role of the officer. Instead of managing the client in the community, the officer was perceived to be a facilitator of change. The use of evidence-based tools demonstrates utility in community supervision settings. This led to the development of hybrid supervision models in which officers were tasked at balancing compliance with the social work aspects of their job. While this balancing act has long been a part of the profession, the hybrid rehabilitation models attempted to standardize the way officers identified, targeted, and responded to their client’s criminogenic needs. Specifically, these hybrid rehabilitation models started to focus on the face-to-­ face contacts, or the interactions between officer and client (Taxman, 2002; Robinson et  al., 2011), as a key to providing efficacious supervision services. Attempts to understand the “black box” of supervision (Bonta et al., 2008) revealed the importance of purposefully structuring these interactions to increase the impact on recidivism. The RNR principles have been used as the foundation of many modern models of supervision, including training efforts such as Strategic Training Initiative in Community Supervision (STICS), the Staff Training Aimed at Reducing Re-arrest (STARR), Effective Practices in Community Supervision (EPICS), and Staff Undertaking Skills To Advance Innovation (SUSTAIN) (see Toronjo, 2019). Each of these models follows the belief that reductions in recidivism are a result of targeting medium-/high-risk individuals (Risk), that the interventions should target criminogenic needs (Needs), and that those interventions should be based on cognitive-­behavioral and/or social learning models and tailoring responses to the individual (Responsivity) (Bonta et al., 2019; Latessa et al., 2013; Robinson et al., 2011; Taxman, 2008). By tasking officers with creating a working relationship with their clients and using social learning/cognitive-behavioral techniques, modern supervision models represent a shift in community supervision toward a rehabilitative approach.

The Crisis of Penological Modernism The new penology uses aggregated risk categories as a means to administer the “dangerous classes” concept and facilitates a shift away from the rehabilitative to managerial procedures. The RNR principles, with strong empirical backing (Andrews et  al., 1990a; Andrews & Dowden, 2006), use the same aggregating

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methods (risk and criminogenic need) to help guide the type of interventions to rehabilitate individuals. Interestingly, no matter which philosophy (punitive or rehabilitative) dominates supervision, a tension exists between the two based on the way supervision is practiced. As Taxman and Smith (2020) identified, supervision consists of multiple components (contacts, compliance, treatment, and desistance) which are commingled in everyday practice. Even if the emphasis is on rehabilitation, the officer must use the tools of contacts and compliance to achieve this end. The challenge is that the “tone” of the interaction—whether it is in a contact, compliance monitoring, treatment, or restoration—depends on the agency and its sociopolitical environment. In addition to broader social trends (e.g., the mass incarceration era; see above), the sociopolitical environment of the agency is determined by the administrators and officers who work there. While the new penology has found acceptance at an administrative level in community supervision, this approach may not have “trickled down in a straight and direct path to the front lines” (Lynch, 1998, p.  861). Indeed, Lynch (1998, 2000) finds evidence that front-line officers “have constructed the parolee subject as one who is dispositionally flawed, and who is ultimately responsible for his own improvement” (Lynch, 2000, p. 40). While not a full reversion to the rehabilitative ideal, this outlook suggests that officers still conceptualize the client as reformable, although this reform can only be achieved by the client themselves. In this outlook, regardless of which interventions the officer employs, only the individual can carry out their own reformation. In addition, this perspective exculpates the PO from the responsibility to use “what works” (rehabilitative) services, which are seen as ineffective if the client is not sufficiently responsible and motivated themselves. In sum, then, Lynch’s (1998, 2000) findings indicate that front-line POs hold different conceptions of the supervision subject than administrators. Whereas administrators appear to largely endorse managerial justice and its modes of aggregation (Lynch, 1998), POs still conceptualize the client as reformable—but they assert that this reform can only be achieved by the client themselves. Given that the supervision administrators and officers may hold differing conceptions of the community supervision, the very ideals (viz., rehabilitation) which initially underpinned community supervision are mutable. This points to a larger crisis of identity within modern punishment. Labeled a crisis of penological modernism (Garland, 1990, 2001; Simon, 1993), this crisis is one in which the goals and means of punishment are not agreed upon by either practitioners or the general public, resulting in a “basic turmoil in the theory, practice, and aspirations of penality” (Simon, 1993, p. 1). The crisis of penological modernism manifests itself in the disagreement about the goals and the purpose of community supervision—rehabilitation, punishment, incapacitation, or just deserts (von Hirsch, 1976; Wodahl & Garland, 2009). Practitioners such as prosecutors, defense attorneys, and judges each hold different perceptions of the purpose of community supervision (Wodahl & Garland, 2009). Even the most basic assumptions for public safety purposes of community supervision are questionable under the crisis of penological modernism, as the very definition of public safety varies by “setting, timing, and sociopolitical climate” (Taxman

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& Belenko, 2012, p. 192; see also Simon, 1993). Within community supervision agencies, the crisis of penological modernism exists by the competing demands embedded in the rehabilitative philosophy and the tools of supervision such as contacts, compliance, and treatment. The effectiveness of evidence-based supervision in real-world settings is challenged by the inability of officers to transfer skills learned in training/intervention into “real world” encounters with clients (Bourgon & Gutierrez, 2012). Similar to Lynch’s (1998, 2000) observation of ground-level resistance to the new penology, officers tend to make decisions that nullify the tools they are given to execute rehabilitation and/or RNR due to ideological differences about those tools (e.g., the results of the risk assessment; Viglione et al., 2015). This complicates the identification of client needs and assignment to appropriate treatment programs (Flores et al., 2003). Officers often deviate from the rehabilitative recommendations evolving from a risk assessment by choosing more restrictive options based on the need to satisfy the court-ordered conditions, which often are not in line with the risk-need profile of the client (Miller & Maloney, 2013; Thurman et al., 2019). The following two sections will review the tools of supervision that have been identified as being critical to the delivery of evidence-based supervision based on the RNR approach and based on translating the philosophy of supervision into practice. Contacts, compliance, and treatment under rehabilitation models are the main tools of supervision, but these tools exist in punitive or deterrence models of supervision. The evidence-based supervision training is designed to provide officers with new skills and processes to deliver contacts, compliance, and treatment. Yet, the sociopolitical environment of supervision impacts whether supervision reflects a punitive or rehabilitative approach, or somewhere in between.

Evaluation of Sanctions The decline of the rehabilitative ideal (Allen, 1981) led to the loss of credibility for treatment and the rise of sanctions as a tool to achieve better client outcomes. Although supervision frequently used sanctions for noncompliance—typically via termination of the community-based sentence and the imposition of a prison- or jail-based one—sanctions were also repurposed under the new penology as a managerial tool to respond to noncompliance (Feeley & Simon, 1992). This took the form of intermediate or graduated sanctions—“structured, incremental responses to noncompliant behavior” (Taxman et al., 1999, p. 183) which are intended to deter an individual from future offending behavior. Noncompliance can be managed through a series of these responses, some may involve periods of incarceration. The use of intermediate sanctions at the hands of supervision officers is a relatively recent development. Petersilia (1989) traces their origin to the mid-1980s when a constellation of factors—including overcrowded prisons in the Southern US, a lack of financial resources to build new prisons, and a growing disillusionment with traditional probation and its rehabilitative goals—spurred the

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development of these sanctions. Notably, this era also saw the decline of the rehabilitative ideal and the rise of more control-oriented supervision practices (Allen, 1981; Feeley & Simon, 1992). As an alternative to the expensive practice of incarceration, intermediate sanctions were touted as a cost-effective means for the state to mete out punishment while maintaining a tough-on-crime attitude (Cullen et al., 1996; Petersilia, 1998; Steiner et al., 2012). Given their origins as tough-on-crime punishment, intermediate sanctions are perceived as quite punitive. Despite being described as an option that is more severe than traditional probation but less severe than prison (Homant & DeMercurio, 2009), receivers of intermediate sanctions rate them as equal to or greater than a period of incarceration in terms of punitiveness and unpleasantness (Spelman, 1995; Wodahl et  al., 2020). In fact, Petersilia and Deschenes (1994) found that one-third of individuals surveyed preferred incarceration over intermediate sanctions because officers had high levels of discretion leading to unpredictable sanctions. Two distinct types of intermediate sanctions are commonly used in community supervision: physical and psychological sanctions. Physical sanctions target and restrict the individual’s movements. In contrast, psychological sanctions focus on restructuring cognitive processes and providing pressures. The following will examine the evidence for several specific and commonly used sanctions within each category.

Physical Sanctions Physical sanctions are designed to restrict or structure an individual’s movements in an attempt to remove their opportunity to engage in criminal behavior and to help the individual learn restraints on behavior. Findings concerning the efficacy of physical sanctions are mixed (Padgett et al., 2006). For example, using data from 17,659 individuals sentenced to a home confinement program, Gowen (2000) found lower rates of recidivism for those in the program. Examining data from 75,661 individuals sentenced to home confinement, Padgett et al. (2006) similarly found that individuals who were subject to electronic monitoring while under house arrest had significantly lower odds of committing technical violations, reoffending, or absconding. However, this study did not rely on random assignment, making it difficult to establish a causal relationship. Renzema and Mayo-Wilson (2005) in their systematic review and meta-analysis of electronic monitoring found that electronic monitoring was associated with decreased recidivism in two studies, but these studies had small sample sizes. The researchers ultimately concluded that there exists insufficient evidence to support the use of electronic monitoring as a crime control technique. Another example of physical sanctions is intensive supervision, which structures an individual’s movements by requiring frequent contact with the probation agency. This typically involves checking in with their PO multiple times each week, as well as frequent and sometimes unannounced drug or alcohol testing (Kilmer et  al.,

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2013; Petersilia & Turner, 1991, 1993). Evaluations of increased contacts are mixed but seem to suggest a positive relationship between the number of contacts and the number of technical violations and revocations incurred. In a 14-site randomized control trial, Petersilia and Turner (1993) found that, in 11 of the 14 study sites, people placed on intensive supervision were arrested at a higher rate than those who were not, although this difference was not statistically significant. MacKenzie (2000), in reviewing the evidence available at the time, concluded similarly that programs designed to increase surveillance through intensive supervision were ineffective in producing compliance (MacKenzie & Brame, 2001).

Psychological Sanctions Psychological sanctions target the psychosocial functioning of an individual by breaking patterns of antisocial behavior and replacing them with patterns of prosocial behavior. Given the noted connection between cognitions and subsequent actions (Craske, 2017), interventions such as cognitive-behavioral therapy (CBT) are commonly employed in this category. Perhaps because of its emphasis on promoting more prosocial, adaptive responses to stimuli, CBT and its counterparts are often conceptualized as beneficial interventions, rather than punitive sanctions. This framing allows them to coexist with rehabilitative strategies like motivational interviewing and working alliance (discussed below). Nonetheless, while CBT and similar behavioral interventions can certainly be used as part of a rehabilitative community supervision strategy, they can also be components of a punitive one. More specifically, CBT takes the form of a psychological sanction when it is used as a response to the noncompliant behavior of an individual on supervision—for example, when an officer responds to noncompliance by increasing the number of CBT sessions that the client must attend each week (Arabia et al., 2008; Taxman et al., 1999).

Conclusions on Intermediate Sanctions With the advent of the evidence-based supervision era in the 1990s and 2000s, new attempts were made to standardize sanctions in community supervision (Taxman, 2012a). These efforts did not seek to do away with physical and psychological sanctions, but rather to use them more efficiently and with greater consistency (Turner et  al., 2012). To this end, sanction grids or matrices were introduced to provide officers with a formulaic approach to the application of punishment. That is, the matrices allowed every infraction or violation committed by a client to be categorized (e.g., as minor, intermediate, or technical) and sanctions tailored based on the intensity level of their supervision (see, e.g., Maryland Department of Public Safety and Correctional Services, n.d.). While the use of sanction matrices sought to infuse

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the actuarial elements of evidence-based practices into the supervision environment, these tools have not yielded the desired results. In their study of one such matrix—the California Parole Violation Decision-Making Instrument—Turner et al. (2012) found that organizational adoption of the tool did not reduce recidivism rates and that officers used it inconsistently. This latter finding points to larger issues regarding officer resistance to the implementation of sanctioning reforms that may reduce their discretion (Rudes, 2012; Steiner et al., 2011). The failure of evidence-based tools like sanction matrices to promote better outcomes with respect to sanctions may be indicative of flaws in the underlying rationale of these responses—that is, flaws in the use of punishment to deter and induce behavior change (see Paternoster et al., 1983; Sherman, 1993; Ugwudike, 2011). Some have concluded that sanctions are not effective in the community supervision context. MacKenzie et al. (1999) find that, although probation is an effective mode of crime control, what officers do in terms of sanctions does not play a role in its efficacy. MacKenzie (2000) concludes that intermediate sanctions and, more specifically, “correctional programs that increase control and surveillance in the community (intensive supervised probation or parole, home confinement, community residential programs, urine testing) are not effective” (p.  466). Petersilia (1998) concludes similarly, asserting that the outcomes produced by these programs are largely symbolic rather than substantive. However, others emphasize that more research is needed before such firm conclusions can be drawn (Taxman, 2012b).

Evaluation of Findings for Rehabilitative Tools The evidence-based supervision movement attempts to achieve better outcomes (e.g., reduced recidivism) while improving how supervision is delivered. To accomplish this goal, the techniques of treatment professions have been interfaced with enforcement strategies to more effectively manage supervision populations (Taxman, 2002, 2008). Contemporary “what works” findings advocate for officer-­ client contacts to engage and motivate the client in supervision goals (Taxman, 2008), compliance enforcement focused on adherence to the conditions of supervision (Petersilia & Turner, 1993), and rehabilitation on providing appropriate treatment services (Andrews & Bonta, 2010a, 2010b; Latessa et  al., 2020; Taxman, 2008). The blending of these approaches in the field requires skilled front-line workers who can carry the rehabilitative tone while also balancing the role of punisher. Although the components of supervision are the same (contacts, compliance, treatment), how these tools are implemented has changed. This implementation is significantly impacted by the framework which guides the day-to-day interactions between officer and client. While there has been a substantial body of evidence to support the efficacy of the RNR principles in supervision, its focus on client deficits (risk) can act as a fundamental barrier to a truly rehabilitative approach. On the other hand, strength-based approaches (SBAs) specifically focus on the strengths of the individual and how they might capitalize on

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those strengths to desist from antisocial patterns of behavior. Below, we begin by reviewing the dominant rehabilitative paradigm in community supervision, RNR. In doing so, we speak broadly about the RNR as a guiding framework and then dive deeper into three key components: cognitive-behavioral therapy (CBT), working alliance (WA), and motivational interviewing (MI). Next, we consider strength-­ based approaches (SBAs) as emerging strategies within the rehabilitation paradigm that offers a revision to the deficit-based RNR framework, by concentrating on client assets and capabilities. Within this discussion, we examine the Good Lives Model (GLM) as a flexible strength-based framework that is capable of coexisting with RNR to reinforce rehabilitative ideals for both client and staff.

Risk-Need-Responsivity (RNR) Andrews and Bonta (2010b), in the Psychology of Criminal Conduct, offer a three-­ prong approach to rehabilitation. As stated earlier, three principles drive this approach; (1) the risk principle, which requires attention to the public safety risk that a person poses, with more treatment and social controls to individuals that are moderate to high risk; (2) the needs principle to target factors that drive criminal behavior, including substance abuse, antisocial peers, antisocial values, criminal personality, education and employment deficits, and dysfunctional families; and (3) the responsivity principle, which is to tailor interventions to address factors such as culture, gender, mental capability, etc. The risk principle has received the most empirical attention, with studies finding that higher risk individuals benefit from more intensive treatments and social controls (Lowenkamp et al., 2006; Taxman & Caudy, 2015) and that individuals benefit from greater attention to incentives than sanctions (Sloas et al., 2019; Mowen et al., 2018; Wodahl et al., 2011). The attention to the need principle often does not address which criminogenic needs should be targeted but rather that attention to needs will reduce recidivism (MacKenzie, 2006; Taxman & Belenko, 2012). Studies on treatment programming tend to illustrate that programs that address multiple needs are more likely to reduce recidivism than those that address a single need (Andrews & Dowden, 2006). Wooditch et al. (2014) examined which dynamic criminogenic need led to greater reductions in offending and found that probationers who had reductions in criminally involved family members they associate with, improved work performance, and decreased alcohol use had the greatest reductions in offending. Taxman and Caudy (2015) assessed the questions of clustering of criminogenic needs and found that the eight criminal drivers identified by Andrews and Bonta actually distilled down to four clusters: low probability of both risks and destabilizers (i.e., mental health issues, food insecurity, housing instability, etc.) (28% of the clients), moderate risk and criminogenic needs with a high probability of multiple destabilizers (36%), a high probability of risk and needs with moderate probabilities of destabilizers (13%), and a high probability of static and criminogenic needs and

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destabilizers (23%). The literature in this area is emerging regarding which drivers of criminal behavior should be addressed to receive the most gains. Prendergast et al. (2013) conducted a meta-analysis of the RNR principles for substance use treatment programs and found that the principles are related to reduced recidivism but not reduced drug use. Their study was one of the few studies that examined the responsivity principle and generally found that interventions that focus on social learning principles (i.e., cognitive-behavioral therapy) are more effective in reducing recidivism than interventions that do not use social learning theories. Overall, the RNR model positions supervision to attend to the risk level of individuals as well as criminogenic needs thus focusing attention on rehabilitation. This study did not explore which principle was more effective in reducing recidivism or what combination of factors will affect recidivism reduction. And, Drake (2011) found that the RNR-based supervision model reduced recidivism by 16%, which is more than an intensive supervision model that refers clients to services (10% reduction). The RNR principles are the subject of many training protocols for probation officers given the salience of the research on the value of RNR in improving outcomes (see Andrews et al., 1990b). Additionally, the RNR model has spurred the proliferation of rehabilitative strategies and interventions which are part of the responsivity principle. A selection of these strategies and their empirical and theoretical bases is presented below.

Cognitive-Behavioral Therapy (CBT) When applied in community supervision settings, CBT fundamentally aims to change a person by replacing potentially criminogenic thought processes with prosocial ones. CBT seeks to modify the cognitive processes that occur in response to certain stimuli by replacing “maladaptive emotional, behavioral, and cognitive response chains with more adaptive responses” (Craske, 2017, p.  24). Perhaps because of its focus on maladaptive responses, CBT became one of the primary rehabilitative strategies in criminal justice after its development in the mid-­twentieth century, having been incorporated into many popular treatment programs (Barnes et al., 2017; Feucht & Holt, 2016; Milkman & Wanberg, 2007). CBT has generally been found to be effective in reducing recidivism (see, e.g., Aos et  al., 2006; Landenberger & Lipsey, 2005), with individual evaluations for DWI (Barnes et al., 2017; Quinn & Quinn, 2015), sex offenses (Mpofu et al., 2018; Olver et al., 2020), and substance abuse (Carroll & Kiluk, 2017; Carroll & Onken, 2005) producing positive results. However, Feucht and Holt (2016) point out CBT may be more effective for certain populations, such as juveniles, and they find mixed results concerning its efficacy with people convicted of sex offenses. Furthermore, the efficacy of CBT in criminal justice settings may be at least partially dependent upon the stage of the process when an individual receives it. In the only study to examine differences in treatment efficacy based on whether it was imposed at the initial point of sentencing or as a response to noncompliant behavior,

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Linhorst et al. (2012) found that jail-based substance abuse treatment may be effective in reducing the frequency of violation for both populations, although the effect was strongest for those mandated to treatment. This suggests that, when used as a psychological sanction in response to a client’s noncompliant behavior on supervision, the efficacy of CBT may be attenuated.

Working Alliance The modern concept of working alliance (WA)—or the relationship between therapist and client—is based on the work of Bordin (1979). Bordin theorized that WA has three main constructs: development of bonds, assignment of tasks, and agreement on goals (Johnson & Wright, 2002). In therapy, it is believed that positive work cannot be completed in the absence of WA (Cournoyer et al., 2007), and WA has been found to be a more effective ingredient in positive therapeutic outcomes than the type of treatment delivered (Lambert, 2004). Since the typical therapy relationship is voluntary, with little to no coercive tools for the therapist to use, therapists rely on the WA they build with their client to gain cooperation and achieve goals. Supervision, on the other hand, relies upon the relationship between the officer and individual to deliver supervision (Taxman, 2002; Trotter, 1996), and therefore the quality of the relationship has an impact on supervision outcomes (Blasko et al., 2015; Skeem et al., 2007). The inherent coercive nature of supervision greatly complicates the development of WA (Skeem et al., 2007) since the officer is both the helper and the enforcer. Even still, because of the increasing social work/therapist-­ type demands of community supervision, coupled with an understanding that forcing someone to comply will not achieve true behavior change, WA is viewed as the best tool to gain compliance (Appleton, 2020). WA is an important construct since it draws upon the role of the officer as a facilitator, but the compliance management activities of officers can undermine the firm and fairness role if individuals do not agree with the actions taken by the officer. Seven factors mark positive officer–client relationships: empathy, openness, warmth, firmness, prompting and encouragement, enthusiasm, and humor (Bonta et al., 2008). These may seem standard, but how they are executed can be complicated due to the tension between the officer’s helper and law enforcement roles. That is, officers must be able to display both firmness and fairness in a balanced way (Skeem et al., 2007). This is partially done through a nonauthoritarian communication style, which is preferred by both officers (Viglione et  al., 2017) and clients (Cornacchione et al., 2016; Morash et al., 2018). Additionally, a client’s negative past experiences within the justice system can serve as a barrier to WA (Ross et al., 2008). These negative experiences may have an impact on the relationship because of the inability of the individual to separate their view of the officer from their view of the system (Polizzi et al., 2014). Officers are often aware of this barrier and do what they can to distance themselves from other parts of the justice system. In some instances, officers seek to introduce who

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they are as human beings to develop WA amid an unequal power dynamic (Appleton, 2020) and to focus on their role as a facilitator of change (Taxman, 2008).

Motivational Interviewing Motivational Interviewing (MI) was developed by Miller and Rollnick (1991) for use with those struggling with substance use disorders. MI is designed specifically as a way to constructively work through many of the challenges to motivate others toward change. In its conception, MI is meant to avoid using either a directive style (i.e., telling the person what to do) or a following style (i.e., listening without inserting one’s own opinion). MI seeks to fit between these two styles in what is referred to as a guiding style of communication (Miller & Rollnick, 1991). The core of MI starts with a collaborative partnership between subject and helper. This partnership sits on a foundation of acceptance of the subjects’ autonomy, belief in their ability to solve their own problems, and compassion which forefronts the welfare and interests of the subject (Miller & Rollnick, 1991). There are four processes in MI. Engaging involves the development of a WA between the two parties and is considered a prerequisite for any further work. Focusing is the process through which the helper maintains a particular direction in the change conversation. Evoking involves eliciting from the client their own motivations for change. Planning happens when the client displays a readiness for change, at which point the helper assists with goals and activities that the client agrees with (Miller & Rollnick, 1991). MI is effective when working with individuals suffering from substance use disorders (Harper & Hardy, 2000), and it has also emerged as an evidence-based technique in community supervision (McMurran, 2009; Taxman, 2002). McMurran (2009) conducted a systematic review of 19 evaluated applications of MI with individuals on supervision. She found that MI was used for three main purposes: to enhance engagement in treatment, to improve motivation for change, and to change behavior. MI is implemented in many different ways—it can be a stand-alone tool or a component of treatment. Results were mixed on all three purposes, with the strongest positive impact being with enhancing the motivation to change for substance users (McMurran, 2009). In a community supervision setting, scholars have found that MI benefits both the client and the officer (Clark et al., 2006). The MI approach gives officers the tools which allow them to navigate violations, disagreements, and other difficulties while maintaining their position as a helper and motivator in the relationship (Clark et  al., 2006). Officers maintain their position as a helper and increase their ability to influence change by passing “the stick,” or punishment decisions to a judge, supervisor, or agency policy (Clark et al., 2006). The ability to depend on others for punishment enhances MI in the supervision system since difficult moments are passed on to others therefore leaving the officer to continue to do productive work with their client.

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Barriers to WA and MI There are many barriers to the development of a strong WA in the community supervision setting and the use of MI. First, due to mutually held negative preconceived notions about the other, many officer–client relationships begin at a disadvantage that can negatively affect both the officer and client, causing the initial stages of the relationship to reinforce socially constructed views of each other (Polizzi, 2014). Officers who do not believe in their client’s ability to change (Sturm et al., 2020) or do not see themselves as change agents have a difficult time developing WA (Bourgon & Guiterrez, 2013) and using MI (Taxman et al., 2004). Further, there are many nonvoluntary aspects of the supervision setting that act as barriers. For example, the officer has to hold the client accountable to a set of conditions that are often beyond the control of either party. Many case plans developed on supervision come directly from the results of the risk-need assessment tool with very little input from the client (Bourgon & Guiterrez, 2013). This description of the supervision setting runs directly counter to the ingredients for a WA, or to goals of open communication with shared power between officer and client which is part of MI. It is key that modern supervision models are situated in environments that can reverse this coerced feeling and promote change. Fortunately, strategies exist within contemporary evidence-based supervision models that can address these limitations. For example, the STICS supervision model contains Role Clarification as a means to reset the officer–client relationship. The STICS training builds the officer–client relationship through the practice of establishing the roles, responsibilities, and expectations encompassing both control and helping aspects of supervision at the outset (Trotter, 2006). Role clarification allows the working relationship to be grounded on clear communication about what is and is not negotiable, how information is accumulated and shared, the general approach and practices of the helper, organizations demands, and client expectations of the officer (Trotter, 2006). Collaborative goal-setting is another technique where the officer and the client set goals and prioritize judicial ordered conditions (Friedmann et al., 2008, 2012). In these methods, officers work with clients to develop their own list of problems as opposed to the officer telling someone what is wrong with them. This places the client in the position to understand the drivers of their behavior and to make choices as to the solutions. The risk-need assessment information can be the information source that both parties use which allows the individual to engage in a problem ranking process in which the client rank orders the list of problems to prioritize the work (Bourgon & Guiterrez, 2013; Taxman et al., 2004). This establishes a collaborative working relationship between officer and client which effectively counters the typical coercive environment of supervision. However, the context of supervision must acknowledge that the individual is an equal partner for WA and MI to work well.

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Strength-Based Approaches The predominant supervision framework, including RNR, remains grounded in attention to deficits and risk factors. In contrast, strength-based approaches (SBAs) highlight the ways in which clients may harness their emotional, behavioral, and technical strengths to promote self- and community improvement. Although they are currently being applied in increasingly diverse contexts (Kewley, 2017b; Vandevelde et al., 2017), SBAs have been used in juvenile justice as early as the nineteenth century (Oesterreich & Flores, 2009). Underlying SBAs is an assumption that each individual has strengths that they can employ which serve to benefit themselves and their communities (Cox, 2008; Hammond & Zimmerman, 2012; Laursen, 2003). SBAs acknowledge that “[w]hat we focus on becomes one’s reality” (Hammond & Zimmerman, 2012, p. 6)—in other words, attention to deficits in supervision processes involving assessment and intervention can be internalized by the individual as to how they shape the ways in which they view themselves. SBAs focus on strengths adopt language (e.g., “at-potential” instead of “at-risk”) which promotes self-efficacy (Clark, 1997; Laursen, 2003). SBAs emphasize building strengths in case plans (Hunter et al., 2016). RNR and SBA can be used in conjunction to complement each other (Fortune, 2018; Kewley, 2017a; Marshall & Marshall, 2012; Olver et al., 2020). SBAs also can be integrated into therapeutic strategies such as CBT (Olver et al., 2020; Wong et al., 2019). The principles of SBAs refer to the well-being of the client in part by holistically addressing problems they may be facing (Tate & Wasmund, 1999). Namely, this entails (1) contextual identification of the problem; (2) identification of the needs that underlie the problem; (3) identification of strengths; and (4) verification that the methods of remediation are practical and accessible (Tate & Wasmund, 1999, p. 175). Laursen (2003, pp. 14–16) specifies three primary methods by which this can occur: (1) strength-seeking conversations between client and provider, (2) direct observation of a person’s strengths in their environment, and (3) use of formal assessment tools to identify strengths. SBAs have seen rising popularity in recent years, with growing incorporation in fields such as education, law, mental health care, family studies, juvenile justice, and policy development (Kewley, 2017b; Vandevelde et  al., 2017). In a criminal justice context, SBAs have been used with perpetrators of IPV (Asay et al., 2016; Curwood et al., 2011), justice-involved youth (Clark, 1999; Fortune, 2018; Kalke et  al., 2007; Oesterreich & Flores, 2009; Yoder & Ruch, 2015), individuals convicted of sexual offenses (Marshall et al., 2017; Yoder & Ruch, 2015), and reentry populations (Hunter et al., 2016). An experimental study that used strength-based case management approaches with parolees, Transitional Case Management, had null effects on outcomes related to participating in drug treatment programs, drug use, HIV risk factors, and offending (Prendergast et al., 2011). The study found that SBA were difficult to use by case managers given the emphasis on accountability and punitive sanctions in the justice and treatment settings. Otherwise, few empirical evaluations have examined the impact of SBAs on recidivism (Marshall et al.,

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2017; Olver et al., 2020). However, one study found that SBAs had a positive effect on potentially negative factors, such as self-esteem, victim empathy, and denial and minimization of the offense (Marshall et al., 1997, 1996; Marshall, 1994). In perhaps the only longitudinal evaluation in this area, participants in an integrated CBT/ RNR program employing elements of a SBA demonstrated lower rates of sexual and violent recidivism than comparison and no-treatment groups (Olver et al., 2020). SBAs face significant challenges to successful implementation. They are being introduced into justice environments wherein punitive sentiments prevail and clients are often conceptualized in terms of their deficits or risks (Cox, 2008; Feeley & Simon, 1992; Kewley, 2017b; Nissen, 2006; Prendergast et al., 2009, 2011). Known challenges to implementing evidence-based tools (see, e.g., Bonta et  al., 2011; Brennan et  al., 2009; Thurman et  al., 2019; Viglione et  al., 2015; Viglione & Taxman, 2018; Vincent et al., 2016) may similarly impede the adoption of SBAs— officers may deviate from these approaches even when they are adopted in their organization (Kewley, 2017a; Viglione et al., 2015; Prendergast et al., 2009), and, if they are perceived as too rigid, caseworkers may find them inapplicable to their work (Oliver & Charles, 2015). While these challenges exist, the noted benefits of SBAs outweigh the obstacles to their use. To better explicate these benefits, it is informative to examine one SBA in particular: Good Lives Model (GLM). The Good Lives Model (GLM) is a strength-based theory for offender rehabilitation which was originally created for sex offender populations (Ward, 2002). The GLM philosophy posits that individuals have primary goods and that the priorities given to these goods reflect an individual’s personal values and identity (Willis et al., 2014). These primary goods fall into ten classes: life, knowledge, excellence in play and work, excellence in agency, inner peace, friendship, community, spirituality, happiness, and creativity (Ward & Gannon, 2006). In addition, the GLM asserts everyone has a set of secondary, or instrumental, goods by which they attain the primary goods they desire. Consequently, the belief is that crime occurs when an individual uses inappropriate secondary goods to procure their desired primary goods (Willis et al., 2014). Thus, the GLM addresses criminal behavior by equipping individuals with the internal and external conditions that allow them to secure primary goods in positive and meaningful ways. Good Lives Model (GLM) The GLM is a flexible framework that can be integrated with practices and factors already accepted as important in the rehabilitation arena (Whitehead et al., 2007). For example, some theoretical research has described how to incorporate GLM into extant models to address the unique needs of various populations, including violent offenders (Whitehead et al., 2007), youth offenders (Fortune, 2018), and male perpetrators of domestic violence (Langlands et  al., 2009). Willis et  al. (2014) conducted a study of 13 programs in the US and Canada highlighting how GLM principles have been operationalized in real-world settings including (1) reframe their goals to focus on skill development rather than avoiding, fixing, or managing

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deficits, (2) take a more individual approach to building case plans for each client, (3) take a holistic approach to include attention to both criminogenic and non-­ criminogenic (health, education, arts/crafts, recreation) needs, and (4) promote more positive and respectful encounters between staff and clients (Willis et  al., 2014). In these 13 programs, the GLM principles were well received by staff because they complimented the existing practices and philosophies. In some instances, the community partners (e.g., probation and parole officers) adopted the GLM approaches.

Discussion The history of community supervision has seen the pendulum swing from a supervision model grounded in rehabilitation and the fundamental ideal of the redeemable individual, to frameworks that focus the management of dangerous classes through the use of sanctions to achieve compliance and behavior change (Allen, 1981; Feeley & Simon, 1992). Besides the historical tension between rehabilitation- and compliance-based supervision, this history also shows how the same toolkit of contacts, compliance, treatment, and desistance is offered in both philosophical emphases. The tools of supervision for the most part do not demonstrate reduced recidivism, except for those applied as part of treatment efforts. A preponderance of the evidence indicates success for rehabilitation, while the empirical support for sanctions is inconclusive and often illustrates the iatrogenic effect of sanctions. The recent evolution of the evidence-based supervision model is built on the rehabilitative framework but uses tools that are common to both philosophies of supervision. The hybrid behavioral management approaches, which use the tools of compliance but emphasize efforts aligned to the rehabilitation-based model, present challenges from a technology transfer perspective. While officers theoretically understand the new emphasis for contacts and compliance management embedded in WA and MI, the environment reinforces accountability and sanctions and officers respond to their environmental cues (Viglione et al., 2015). However, even this modern rehabilitative push toward evidence-based supervision is dominated by the philosophy of the new penology. The punitive model and RNR both categorize individuals based on their risk for future justice involvement, which labels individuals as part of the dangerous classes. The risk-need assessment (RNA) information is intended to be used to standardize the classification of client risk-level and criminogenic needs—risk is not meant to be a subjective category, although it is often used as such. For example, Viglione and Taxman (2018) found that officers were hesitant to label individuals low risk if they were also convicted of sex offenses or convicted of driving while intoxicated. The results of the RNA should be a guiding tool when developing a case plan to effectively address the client’s needs. Burgeoning research illustrates the inconsistency regarding how risk-need assessment information (RNA) is used. Various studies have pointed to the lack of

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understanding and trust officers have for RNA instruments, which handicaps the effectiveness of case planning (Bonta et al., 2011; Brennan et al., 2009; Thurman et al., 2019; Viglione et al., 2015; Vincent et al., 2016). The lack of trust can sometimes come from officers who view the rehabilitative aspects of the RNA as being “soft” or too lenient on the clients (Viglione et al., 2017). Consequently, this negative view leads officers to focus on managing adherence to the conditions of supervision instead (Thurman et al., 2019). Officers turn away from an evidence-based supervision approach to ensure that they are properly managing the person using a compliance and enforcement lens. This is how a hybrid model of supervision turns into a compliance-heavy approach. Additionally, officers respond to an individual’s risk class. An officer’s view of the client fundamentally exists as a barrier to how the officer uses their newfound tools. Polizzi et al. (2014) refer to this, saying, the attitudes about offender treatment and the policy initiatives that come as a result are evidence of an underlying set of negatively defined socially constructed meaning about offenders. These views undercut real conversations about reentry, rehabilitation, or restorative justice practices. (p. 4)

Thus, the standardized classes of risk can still play a role in socially constructing the client in the eyes of the officer, which can impact the officer’s ability to effectively develop a working alliance. It is possible that the perspective toward rehabilitation and the utilization of evidence-­based practices could shift as the demographics and education of officers change. Positive attitudes toward evidence-based practices are more common among female officers (Aarons & Sawitzky, 2006), officers with less experience in the field (Aarons & Sawitzky, 2006), younger officers (Reese et al., 1988; Shearer, 2002; Ward & Kupchik, 2010), and officers with college or other advanced degrees (Aarons & Sawitzky, 2006). These are good indicators of system transformation through changing demographics, provided that the pendulum swing toward rehabilitation continues and is embraced by the leadership of supervision agencies and stakeholders. Henderson and Taxman (2009) found that reform was more feasible when the leadership embraced it, and it was bolstered by the knowledge and skills of leaders in their management of the organization. Support for evidence-based supervision therefore requires leaders that can use the tools of supervision in environments that embrace WA and MI. This requires a truly humanistic approach to supervision where risk is not used to categorize or demonize individuals. Risk must be used in the spirit of WA and MI to help the individual understand their psychological, social, and environmental factors that affect their behaviors and choices. The movement is away from managerial efficiency to allowing individuals to grow and develop in positive manners. Inspired by the PCC’s shift in focus away from aggregate crime to the individual, the RNR model is designed to identify the individual needs of a client and respond in a fair and just way (i.e., the principles of need and responsivity). In doing so, the goals of the RNR model harken back to the social work origins of community supervision (Petersilia, 1997; Rhine & Taxman, 2018; Taxman, 2002). It is through

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these principles that the model appears to have created a framework to allow the rehabilitative paradigm to reappear in community supervision. However, it is important to note that even if POs were to employ the RNR model holistically and consistently, its use may still reflect the modern context of supervision—one that has been molded by the rise of the new penology and its emphasis on managing so-called dangerous classes of people. Putting the RNR framework into practice has had a difficult history due to the sociopolitical environment of probation. Indeed, RNR resembles the new penological forms of managerial control by classifying and aggregating individuals on the basis of risk scores (see Feeley & Simon, 1992). However, the risk principle serves a distinct purpose in the RNR model: it allows POs to aggregate individuals by their assigned risk score where individuals assigned a high score are in need of more intensive services (Andrews et al., 1990a; Andrews & Bonta, 2010b). The system has also established that failure to abide by the requirements of intensive services carries the threat of sanction if the individual receiving them is noncompliant. This is the catch-22—more-efficient modes of supervision coupled with more opportunities for the individual on probation to miss a check-in, fail a screening, or fall short of meeting a condition. Furthermore, risk is a deficit category approach which tends to “promote an approach that devalues other outcomes—such as individual well-being, a sense of hope or purpose, developing human capital, or reconnecting with family and friends—that are of considerable importance in individuals’ lives” (Werth, 2019, p. 9). Thus, some critics have argued that the RNR may reproduce new penological narratives of dangerous classes and categories (i.e., so-called “high-risk individuals”) by devaluing the lived experience of these individuals and legitimating more intensive forms of supervision—including more frequent use of sanctions (see generally Goddard & Myers, 2017; McNeill, 2019; Simon, 2005; Werth, 2019). The hybrid approach—which uses psychological tools to work with clients—may encounter the same drawbacks depending on the emphasis placed on compliance management versus treatment and/or desistance approaches.

Conclusion: Toward Community Supervision Reform As indicated in the preceding discussion, elements of the new penology remain alive and well within community supervision—including its more evidence-based models. Within the evidence-based paradigm, most of the reforms to community supervision are either risk-based (which increase surveillance) or needs-based (which focus on providing assistance with the needs associated with risk) (Burnett & Maruna, 2006). While the risk assessment has been found to be an effective strategy in determining the dosage of treatment and intervention, these assessments are decidedly deficit-based with little attention given to strengths (Brown et al., 2020). In contrast, SBAs reconceptualize rehabilitation in a way which promotes more restorative outcomes; they are also more closely aligned with the social work origins of community supervision. Our focus in this chapter on the empirical evidence

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supporting SBAs shows that the desire to focus on strengths is not born out of pure humanism, and as such should not be seen as going “soft” on “offenders.” Interestingly, there is new evidence which conceptualizes strengths as a dynamic factor which not only protects an individual from the negative impact of criminogenic needs but also promotes prosocial outcomes (Brown et al., 2020). Brown et al. (2020) have pursued the inquiry into strengths through the investigation of protective factors, which exist in two different varieties. An “interactive protective factor” is a variable that interacts with a risk factor to nullify its effect. A “risk-based protective factor” is a variable that predicts a low probability of offending among a group at risk (Farrington et al., 2016). Brown et al. (2020) conducted a study of two risk assessments—the Youth Assessment and Screening Instrument (YASI) and the Service Planning Instrument (SPIn) used for adults—with 6445 justice-involved youth and 46,127 adults in the US and Canada. Their goals were (1) to compare the predictive validity of strength versus criminogenic need measures in predicting recidivism; (2) to determine whether a strengths measure would act as a buffer against a criminogenic need; and (3) to examine the effects of different strength domains on justice-related outcomes, including whether these effects vary by domain. The study found a positive effect for three of the five adult samples. When comparing the impact of both strengths and criminogenic needs on recidivism, results showed that strengths reduced recidivism more than criminogenic needs increased recidivism. In addition, when interacting with strengths and needs, strengths reduced the predicted probability of recidivism for the low- and medium-­ need groups in the Canadian adults program, while increasing Tx completion in all three (low, medium, high) need groups. In sum, these findings indicate that strengths are an important predictor of both recidivism and success on supervision. This points to the importance of identifying strengths and using them to tailor interventions to individuals. The strengths-based approach is beginning to be recognized within the RNR framework. In fact, the newest version of the RNR model incorporated the concept of strengths within three of the 15 RNR principles (as cited in Brown et al., 2020). While this is a positive step, more can be done to incorporate the strength-based philosophy into the RNR framework. There are a number of benefits to the adoption of SBAs within the community supervision setting. First, a model utilizing strength-­ based principles may facilitate the construction of a robust working alliance between the officer and individual on supervision (Whitehead et al., 2007). Identity verification is an important part of working alliance, as officers and clients both wish to be seen as holistic individuals (Appleton, 2020). The use of strengths as a basis to tailor interventions to individuals allows their achievements to be acknowledged on an institutional level, thereby promoting a view of the client that is not entirely deficit-­ focused. Further, such a model may allow the PO to adopt a more holistic identity, as they are empowered to emphasize their role as a helper rather than solely a deficit-­based enforcer. Second, a strengths-based model would serve as another means to direct services and provide a human service environment as Andrews and Bonta (2010b) earmark as essential to achieve the goals of risk reduction. This requires identifying strengths such as interpersonal skills, social skills, educational

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and/or vocational skills, and so on. By highlighting an individual’s strengths, it may help them to avoid the feeling of being viewed as “just another bundle of risk factors” (McNeill, 2019, p. 225). This is important as a positive, strengths-based view of oneself has been found to be a crucial aspect of the desistance process (Maruna, 2001). A strengths-based system presents a path forward in the modern supervision environment. The culmination of a long history of pendulum swings in the community supervision field for the last 50 years has resulted in the current tensions within the field. In part, these tensions reflect the perils of trying to fit social work practices into control-oriented settings. To overcome these tensions and move forward, a need exists to realign community supervision practices with the social work origins of the field. By returning to these social work roots, the systems that provide community supervision would also embrace the foundations of social work practice: a client-centered, strengths-based approach to treating the individual within their environment. Not only would this social work approach to community supervision resolve these tensions but focusing on positive development would also allow us to move beyond our current deficit-focused practices and, instead, maximize the human potential of the clients in the system.Financial DisclosureThe authors want to acknowledge funding from Arnold Ventures for the research to support this article.

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Petersilia, J., & Deschenes, E. P. (1994). Perceptions of punishment: Inmates and staff rank the severity of prison versus intermediate sanctions. The Prison Journal, 74(3), 306–328. https:// doi.org/10.1177/0032855594074003003 Petersilia, J., & Turner, S. (1991). An evaluation of intensive probation in California. The Journal of Criminal Law & Criminology, 82(3), 610–658. Retrieved from https://scholarlycommons. law.northwestern.edu/jclc/vol82/iss3/5/ Petersilia, J., & Turner, S. (1993). Evaluating intensive supervision probation/parole: Results of a nationwide experiment. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice. Retrieved from https://www.ncjrs.gov/pdffiles1/Digitization/141637NCJRS.pdf Pew Charitable Trusts. (2018). Probation and parole systems marked by high stakes, missed opportunities. Author. Retrieved from https://www.pewtrusts.org/-­/media/assets/2018/09/probation_and_parole_systems_marked_by_high_stakes_missed_opportunities_pew.pdf Polizzi, D. (2014). Developing therapeutic trust with court-ordered clients. In D.  Polizzi, M. Braswell, & M. Draper (Eds.), Transforming corrections: Humanistic approaches to corrections and offender treatment (2nd ed., pp. 303–333). Carolina Academic Press. Polizzi, D., Braswell, M., & Draper, M. (2014). Transforming corrections: Humanistic approaches to corrections and offender treatment. Carolina Academic Press. Prendergast, M., Frisman, L., Sacks, J.  Y., Staton-Tindall, M., Greenwell, L., Lin, H.-J., & Cartier, J. (2011). A multi-site, randomized study of strengths-based case management with substance-abusing parolees. Journal of Experimental Criminology, 7(3), 225–253. https://doi. org/10.1007/s11292-­011-­9123-­y Prendergast, M., Greenwell, L., Cartier, J., Sacks, J., Frisman, L., Rodis, E., & Havens, J. R. (2009). Adherence to scheduled sessions in a randomized field trial of case management: The criminal justice-drug abuse treatment studies transitional case management study. Journal of Experimental Criminology, 5(3), 273–297. https://doi.org/10.1007/s11292-­009-­9077-­5 Prendergast, M.  L., Pearson, F.  S., Podus, D., Hamilton, Z.  K., & Greenwell, L. (2013). The Andrews’ principles of risk, need, and responsivity as applied in drug abuse treatment programs: Meta-analysis of crime and drug use outcomes. Journal of Experimental Criminology, 9(3), 275–300. https://doi.org/10.1007/s11292-­013-­9178-­z Quinn, T.  P., & Quinn, E.  L. (2015). The effect of cognitive-behavioral therapy on driving while intoxicated recidivism. Journal of Drug Issues, 45(4), 431–446. https://doi. org/10.1177/0022042615603390 Reese, W. A., Curtis, R. L., & Whitworth, J. R. (1988). Dispositional discretion or disparity: The juvenile probation officer’s role in delinquency processing. The Journal of Applied Behavioral Science, 24(1), 81–100. https://doi.org/10.1177/0021886388241008 Renzema, M., & Mayo-Wilson, E. (2005). Can electronic monitoring reduce crime for moderate to high-risk offenders? Journal of Experimental Criminology, 1(2), 215–237. https://doi. org/10.1007/s11292-­005-­1615-­1 Rhine, E.  E., & Taxman, F.  S. (2018). American exceptionalism in community supervision. In K. R. Reitz (Ed.), American exceptionalism in crime and punishment (pp. 367–409). Oxford University Press. Robinson, C.  R., VanBenschoten, S., Alexander, M., & Lowenkamp, C.  T. (2011). A random (almost) study of staff training aimed at reducing re-arrest (STARR): Reducing recidivism through intentional design. Federal Probation, 75(2), 95–107. Retrieved from https://www. uscourts.gov/sites/default/files/75_2_10_0.pdf Ross, E.  C., Polaschek, D.  L., & Ward, T. (2008). The therapeutic alliance: A theoretical revision for offender rehabilitation. Aggression and Violent Behavior, 13(6), 462–480. https://doi. org/10.1016/j.avb.2008.07.003 Rudes, D. S. (2012). Getting technical: Parole officers’ continued use of technical violations under California’s parole reform agenda. Journal of Crime and Justice, 35(2), 249–268. https://doi. org/10.1080/0735648X.2012.677572 Shearer, R.  A. (2002). Probation strategies of juvenile and adult pre-service trainees. Federal Probation, 66(1), 33–37.

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Sherman, L.  W. (1993). Defiance, deterrence, and irrelevance: A theory of the criminal sanction. Journal of Research in Crime and Delinquency, 30(4), 445–473. https://doi. org/10.1177/0022427893030004006 Sherman, L. W., Gottfredson, D. C., MacKenzie, D. L., Eck, J., Reuter, P., & Bushway, S. D. (1998). Preventing crime: What works, what doesn’t, what’s promising. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice. Retrieved from https://www.ncjrs. gov/pdffiles/171676.pdf Simon, J. (1993). Poor discipline: Parole and the social control of the underclass, 1890-1990. The University of Chicago Press. Simon, J. (2005). Reversal of fortune: The resurgence of individual risk assessment in criminal justice. Annual Review of Law and Social Science, 1, 397–421. https://doi.org/10.1146/annurev. lawsocsci.1.041604.120006 Skeem, J. L., Louden, J. E., Polaschek, D., & Camp, J. (2007). Assessing relationship quality in mandated community treatment: Blending care with control. Psychological Assessment, 19(4), 397–410. https://doi.org/10.1037/1040-­3590.19.4.397 Sloas, L., Wooditch, A., Murphy, A., & Taxman, F. S. (2019). Assessing the use and impact of points and rewards across four federal probation districts: A contingency management approach. Victims & Offenders, 14(7), 811–831. https://doi.org/10.1080/15564886.2019.1656691 Spelman, W. (1995). The severity of intermediate sanctions. Journal of Research in Crime and Delinquency, 32(2), 107–135. https://doi.org/10.1177/0022427895032002001 Steiner, B., Makarios, M.  D., Travis, L.  F., III, & Meade, B. (2012). Examining the effects of community-based sanctions on offender recidivism. Justice Quarterly, 29(2), 229–257. https:// doi.org/10.1080/07418825.2011.555413 Steiner, B., Travis, L.  F., III, & Makarios, M.  D. (2011). Understanding parole officers’ responses to sanctioning reform. Crime & Delinquency, 57(2), 222–246. https://doi. org/10.1177/0011128709343141 Sturm, A., Menger, A., de Vogel, V., & Huibers, M. J. (2020). Predictors of change of working alliance over the course of probation supervision: A prospective cohort study. International Journal of Offender Therapy and Comparative Criminology, 64(8), 753–773. https://doi.org/1 0.1177/0306624X19878554 Tate, T., & Wasmund, W. (1999). Strength-based assessment and intervention. Reclaiming Children and Youth, 8(3), 174–180. Taxman, F. (2008). No illusions: Offender and organizational change in Maryland’s proactive community supervision efforts. Criminology & Public Policy, 7(2), 275–302. https://doi. org/10.1111/j.1745-­9133.2008.00508.x Taxman, F., Shepardson, E., & Byrne, J. (2004). Tools of the trade: A guide to incorporating science into practice. National Institute of Corrections. Retrieved from https://nicic.gov/ tools-­trade-­guide-­incorporating-­science-­practice Taxman, F. S. (2002). Supervision—Exploring the dimensions of effectiveness. Federal Probation, 66(2), 14–27. Retrieved from https://www.uscourts.gov/sites/default/files/66_2_3_0.pdf Taxman, F. S. (2012a). Crime control in the twenty-first century: Science-based supervision (SBS). Journal of Crime and Justice, 35(2), 135–144. https://doi.org/10.1080/0735648X.2012.686583 Taxman, F.  S. (2012b). Probation, intermediate sanctions, and community-based corrections. In J.  Petersilia & K.  R. Reitz (Eds.), The Oxford handbook of sentencing and corrections (pp. 363–385). Oxford University Press. Taxman, F. S., & Belenko, S. (2012). Implementing evidence-based practices in community corrections and addiction treatment. Springer. Taxman, F. S., & Caudy, M. (2015). Risk tells us who, but not what or how: Empirical assessment of the complexity of criminogenic needs to inform correctional programming. Criminology and Public Policy, 14(1), 71–103. https://doi.org/10.1111/1745-­9133.12116 Taxman, F. S., & Smith, L. (2020). Risk-Need-Responsivity (RNR) classification models: Still evolving. Aggression and Violent Behavior, 101459–. https://doi.org/10.1016/j. avb.2020.101459

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Taxman, F.  S., Soule, D., & Gelb, A. (1999). Graduated sanctions: Stepping into accountable systems and offenders. The Prison Journal, 79(2), 182–204. https://doi. org/10.1177/0032885599079002004 Thurman, T., Chowdhury, S., & Taxman, F. S. (2019). Fidelity measures for risk-need assessment (RNA) tools usage in case plans. Corrections, 1–17. Toronjo, H. (2019). A corrections workforce for the 21st century. Federal Probation, 83(1), 3–7. Retrieved from https://www.uscourts.gov/sites/default/files/83_1_1.pdf Trotter, C. (1996). The impact of different supervision practices in community corrections: Cause for optimism. Australian and New Zealand Journal of Criminology, 29(1), 1–19. https://doi. org/10.1177/000486589602900103 Trotter, C. (2006). Working with involuntary clients: A guide to practice. Sage. Turner, S., Braithwaite, H., Kearney, L., Murphy, A., & Haerle, D. (2012). Evaluation of the California Parole Violation Decision-Making Instrument (PVDMI). Journal of Crime and Justice, 35(2), 269–295. https://doi.org/10.1080/0735648X.2012.683636 Ugwudike, P. (2011). Compliance with community penalties: The importance of interactional dynamics. In F. McNeill, P. Raynor, & C. Trotter (Eds.), Offender supervision: New directions in theory, research and practice (pp. 325–343). Routledge. Vandevelde, S., Vander Laenen, F., Van Damme, L., Vanderplasschen, W., Audenaert, K., Broekaert, E., & Vander Beken, T. (2017). Dilemmas in applying strengths-based approaches in working with offenders with mental illness: A critical multidisciplinary review. Aggression and Violent Behavior, 32, 71–79. https://doi.org/10.1016/j.avb.2016.11.008 Viglione, J., Rudes, D. S., & Taxman, F. S. (2015). Misalignment in supervision: Implementing risk/needs assessment instruments in probation. Criminal Justice and Behavior, 42(3), 263–285. https://doi.org/10.1177/0093854814548447 Viglione, J., Rudes, D. S., & Taxman, F. S. (2017). Probation officer use of client-centered communication strategies in adult probation settings. Journal of Offender Rehabilitation, 56(1), 38–60. https://doi.org/10.1080/10509674.2016.1257534 Viglione, J., & Taxman, F. S. (2018). Low risk offenders under probation supervision: Risk management and the risk-needs-responsivity framework. Criminal Justice and Behavior, 45(12), 1809–1831. https://doi.org/10.1177/0093854818790299 Vincent, G. M., Guy, L. S., Perrault, R. T., & Gershenson, B. (2016). Risk assessment matters, but only when implemented well: A multisite study in juvenile probation. Law and Human Behavior, 40(6), 683–696. https://doi.org/10.1037/lhb0000214 von Hirsch, A. (1976). Doing justice: The choice of punishments. Farrar, Straus, and Giroux. Wacquant, L. (2009). Punishing the poor: The neoliberal government of social insecurity. Duke University Press. Ward, G., & Kupchik, A. (2010). What drives juvenile probation officers? Relating organizational contexts, status characteristics, and personal convictions to treatment and punishment orientations. Crime & Delinquency, 56(1), 35–69. https://doi.org/10.1177/0011128707307960 Ward, T. (2002). The management of risk and the design of Good Lives. Australian Psychologist, 37(3), 172–179. https://doi.org/10.1080/00050060210001706846 Ward, T., & Gannon, T. A. (2006). Rehabilitation, etiology, and self-regulation: The comprehensive good lives model of treatment for sexual offenders. Aggression and Violent Behavior, 11(1), 77–94. https://doi.org/10.1016/j.avb.2005.06.001 Werth, R. (2019). Risk and punishment: The recent history and uncertain future of actuarial, algorithmic, and “evidence-based” penal techniques. Sociology Compass, 13(2), e12659. https:// doi.org/10.1111/soc4.12659 Whitehead, P. R., Ward, T., & Collie, R. M. (2007). Time for a change: Applying the Good Lives Model of rehabilitation to a high-risk violent offender. International Journal of Offender Therapy and Comparative Criminology, 51(5), 578–598. https://doi.org/10.1177/0306624X06296236 Willis, G. M., Ward, T., & Levenson, J. S. (2014). The Good Lives Model (GLM): An evaluation of GLM operationalization in North American treatment programs. Sexual Abuse, 26(1), 58–81. https://doi.org/10.1177/1079063213478202

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Chapter 20

Paroling Authorities and the Challenge of Leverage in an Era of Chronic Mass Incarceration Edward E. Rhine

Abstract  This chapter points to a notable renewal of interest in paroling authorities emerging alongside the nation’s fitful transition from a historically unprecedented period of growth in rates of imprisonment to the new normal of chronic mass incarceration. In a majority of states, paroling authorities possess varying degrees of leverage that when exercised may increase or decrease, sometimes dramatically, states’ prison populations. This chapter explores the proposition that parole decision-­ making may have contributed to the long arc of mass incarceration. It goes on later to challenge paroling authorities in forthcoming years to exercise the leverage they possess to support an agenda of decarceration or prison downsizing. The groundwork for doing so has been established by a tangible shift in discourse and far-­ reaching efforts supportive of sentencing and correctional reform. The actual capacity to pursue meaningful prison downsizing must necessarily confront the bifurcation of contemporary penal policy manifest in harsh statutory barriers that rigidly sort nonviolent from violent offenders, often banishing the latter from parole or release consideration of any kind. Providing a strategic path forward, this chapter presents five recommendations for parole boards committed to prison downsizing within a framework that is justice-centered, informed by evidence-based practice, and inclusive of individuals serving time for both violent and nonviolent crimes. Keywords  Paroling Authorities · Discretionary release · Leverage · Bifurcation · Decarceration

E. E. Rhine (*) Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School, Minneapolis, MN, USA

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_20

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Introduction: The Renewal of Interest in Paroling Authorities A renewed interest in paroling authorities has emerged focusing on the need to rethink and retool discretionary parole release. A growing chorus of voices within universities, law schools, and justice-oriented advocacy organizations are now calling for the reform or revitalization of parole (Aviram, 2020; Beckett, 2018; Ghandnoosh, 2017; Mathews et al., 2018; Paparozzi & Caplan, 2009; Paparozzi & Guy, 2009; Rhine et  al., 2017; Tonry, 2016). Since 2014 the Robina Institute of Criminal Law and Criminal Justice within the University of Minnesota’s Law School has conducted research and produced a diverse portfolio of publications on paroling authorities, in addition to working with three states’ parole boards on reforms tailored to their systems (Georgia, Kansas, and Pennsylvania). In 2020, the Robina Institute launched a new study designed to understand prison release discretion and the degrees of indeterminacy that may be found in all 50 states’ sentencing and correctional systems, inclusive as well of the federal system and the District of Columbia.1 Paroling authorities, once rather insular agencies, have themselves adopted various reforms in numerous jurisdictions aimed at bringing more structure, consistency, and transparency to their decision-making processes (Burkes et  al., 2017; Ruhland et  al., 2017). For roughly a decade starting in 2009, the newly formed National Parole Resource Center engaged parole boards throughout the country offering site-specific technical assistance, training in the application of evidence-­ based policies and decision tools, and a variety of forums designed to disseminate research-informed knowledge. In 2015 a partnership was forged between the National Governors Association Center for Best Practices, the Association of Paroling Authorities International, and the National Parole Resource Center offering an annual “Learning Collaborative” for selected states to advance paroling practices and strengthen their cooperation with governors’ offices, and other criminal justice stakeholders. Presently, a majority of states, 34 in total, continue to deploy discretionary parole release housed within indeterminate sentencing systems in which judges impose a maximum prison sentence and parole boards, often in tandem with prison officials, decide the dates of release for most individuals. In the other 16 states which exhibit greater determinacy in their sentencing structures, parole boards do not decide most offenders’ release dates. They may however exercise discretionary authority over “old code” offenders, that is, those convicted prior to the effective date of the determinate sentencing statute and/or inmates serving life sentences (Rhine et al., 2018b). This chapter argues that paroling authorities occupy a consequential, but largely unrecognized niche, shaping prison release policy and serving as crucial

 The link to the Robina Institute of Criminal Law and Criminal Justice is https://robinainstitute. umn.edu/. The website houses a variety of articles, reports, research briefs, blogs, and other information covering issues pertaining to sentencing reform, probation, parole, and other justice-related areas. These materials are available for retrieval. 1

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decision-makers in two-thirds of the states (Reitz, 2020a; Reitz & Rhine, 2020).2 What follows begins with a consideration of mass incarceration and the role paroling authorities may have played relative to the explosive growth of prison populations throughout the country from the early 1970s to its peak in 2007. This discussion then devotes attention to developments since illustrating the strikingly modest declines in imprisonment from 2007 to 2017 that appear likely to persist through the mid-twentieth century in the form of chronic mass incarceration. The discussion turns next to the discourse and pursuit of sentencing and correctional reforms, especially those that have focused on prison downsizing. There are stark challenges facing such efforts presented mainly by the bifurcation of penal policy manifest in harsh statutory barriers that rigidly sort violent from nonviolent offenders often excluding the former from parole or release consideration altogether. These context-­ setting discussions lay the groundwork for turning attention back to paroling authorities and the leverage they have should they pursue a comprehensive agenda of decarceration. This chapter concludes by offering five recommendations salient to prison downsizing within a forward-looking and sustainable strategic framework for expanding the reach of discretionary parole release. Their pursuit and adoption are aligned with and integral to comprehensive criminal justice reform.

 aroling Authorities and the Dawn of Chronic P Mass Incarceration For roughly 40 years, from 1972 to 2007, the nation experienced a steady upward flow of the prison population at the state and federal levels. The remarkable ascendency of mass incarceration has been widely commented upon given its steady, multi-decade increase, and its far-reaching implications for offenders, families, and communities (Alexander, 2010; Barker, 2009; Clear & Frost, 2014; Gottschalk, 2015; Reitz, 2018; Useem & Piehl, 2008; Zimring, 2020). In 1972, roughly 110,000 persons were confined in state and federal prisons. At the state level, the rate of imprisonment stood at 84 per 100,000 (Reitz, 2020a). Thereafter, the country experienced unprecedented growth in those incarcerated. Focusing still on the states, by 2007, the rate of incarceration jumped to its all-time peak of 447 per 100,000 while the state prison population stood at just under 1,400,000, reaching its all-time high

 A forthcoming multivolume report features a fundamental reworking of the nation’s criminal sentencing laws. Titled the Model Penal Code: Sentencing (American Law Institute, in press), this document represents a major overhaul of its well-known predecessor report issued in 1962. Pertinent to this chapter, the new Model Penal Code: Sentencing recommends the abolition of discretionary parole release systems by all states (see MPCS 6.11(9), (10)), and Appendix B (The Question of Parole Release Authority). This comprehensive document, alongside the voices calling for its reform, will likely stimulate a robust discourse regarding the future of parole in the years ahead. 2

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of 1,407,369 in 2009. That same year, the aggregate state rate dipped slightly to 443 per 100,000 (Carson, 2018, Table Six).3 In considering this growth, it is necessary to recall that at the start of the 1970s, every state and federal system relied on indeterminate sentencing structures (Travis, 2005). The decades since, mainly from the mid-1970s through the 1980s–1990s, witnessed a pronounced pivot towards greater determinacy in states’ sentencing codes. This determinacy however came in different forms, including fixed-­sentences, truth-in-sentencing, and judicial sentencing guidelines housed within newly created sentencing commissions. An initial emphasis was placed on fairness and proportionality in the sentencing reforms that were adopted. Such efforts however eventually gave way to the passage of legislation authorizing the imposition of mandatory minimums, “three-strikes and you are-out” statutes, and life with and without parole (Nellis, 2017; Tonry, 2016). Triggered by these developments, the cascading presence of mass incarceration came to exert its impact through concentrated penal actions manifest across all 50 states (Garland, 2017).4 To be sure, there was variation in states’ rates of incarceration, yet there was a common thread running through the changing correctional landscape. Every jurisdiction moved towards heightened punishment in the application of criminal penalties under the banner of “getting tough on crime” (Aviram, 2020). In seeking to explain the causes, it appears that “much of the prison build-up can be attributed to laws making long sentences longer” (Travis et al., 2014). The question might be asked: in addition to bipartisan support favoring statutory harshening, what else might have contributed to mass incarceration? As Reitz (2020a) notes, the move towards sentencing determinacy is often identified as a principal reason for increasing prison populations. Challenging this understanding, he suggests the hypothesis that the cumulative impact of parole boards’ decisions in states that retained discretionary release within indeterminate sentencing systems may have exerted a notable impact on the growth trajectory of mass incarceration. Reitz’s analysis of what he calls the “Great Prison Buildup,” measured through increases in rates of imprisonment from 1972 to 2007, proposes that risk aversion on the part of parole boards may have become an ever more prominent feature of their decision-making during this period. Parole boards may have  This discussion has centered mainly on the states for reasons that will become clear later in this section. Depending on the source, prison population totals may refer to rates or numbers alone at the federal and/or state level. The choice that is made shifts when the peaks in numbers, rates, and percentages occur. When viewed in terms of numbers alone, the state and federal prison population combined reached its highest point in 2009 at 1,615,487 (Carson, 2018, 2020; Reitz, 2019). 4  Garland (2017) and Zimring (2020) both comment on the surprising extent to which the emergence and staying power of mass incarceration represented actions dispersed in time and space taken by every state and the federal system all moving in basically the same direction. Garland’s argument that there was no centralized national campaign serving to direct these changes is reinforced by Zimring’s claim that the absence of state level coordination yet the shared directions taken independently by the states represent a unique historical moment in sentencing and punishment policy; one unlikely to occur in the near future given the absence of urgency relative to the nation’s continuing incarceration crisis. 3

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acted in a manner more favorably predisposed to granting release prior to the 1970s, showing greater lenity in their decisions. However, during the era of mass incarceration, they appear to have realigned their mission by emphasizing “release-denial discretion.” Reitz illustrates that states experiencing larger growth in their prison population were those with indeterminate sentencing and discretionary parole release rather than jurisdictions with determinate sentencing structures. It is revealing that during the course of the buildup, nine of the ten states with the highest standing prison rates featured indeterminacy and parole discretion. The tenth state fell into the indeterminacy category for most of the timeframe under review before transitioning to determinate sentencing statutes.5 At least for now, the era of mass incarceration has given way to a period of prison population decline, albeit quite modest (Carson, 2020; Ghandnoosh, 2019a, 2020; Travis, 2014; Zimring, 2020). Between 1972 and 2009 the nation’s prison population experienced roughly 700% growth while reaching its highest federal and state population total at 1,615,487 (see footnote #2). By yearend 2018, the overall number of those in prison dropped to 1,465,158, representing a decline of 9% since 2009. As an indicator of the sharply limited extent to which the country has taken actions to decarcerate, this average represents a 1% annual drop. Should the goal be to cut the current prison population in half, at this pace it will take 65 years, or until 2085, to do so (Ghandnoosh, 2019a). In an analysis of what the future may hold, Zimring (2020) finds that the aggregate trends after the peak of robust prison population increases show a rather modest slope of decline when compared to the steady upward growth associated with mass incarceration. The mild slope of the decrease, he argues, represents the most likely scenario for imprisonment in the foreseeable future. Though acknowledging states’ decarceration efforts, he believes that the nation will most likely continue to confine a million or more individuals well into 2040 and 2050. This represents what he calls the “insidious momentum of mass incarceration” evolving from a period of exceptional growth to an era representing a largely stable new normal relative to imprisonment. Normatively, “it takes for granted rates of penal confinement that were unknown in developed nations before the last quarter of the twentieth century” (Zimring, 2020, p. 167). This is the context within which paroling authorities must navigate in the decades ahead. It is one in which the infrastructure of chronic mass incarceration will remain largely intact. Yet it is also an environment that exhibits an “agonistic” array of competing actors mobilizing to put in place significant changes aimed at decarceration and criminal justice reform (Goodman et al., 2017). What follows poses a question, the answer to which, if affirmative, offers a more inclusive narrative for reshaping paroling authorities in the years ahead. If parole boards helped engineer the era of mass incarceration as evidenced by their disproportionate presence in  The nine states were Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, and Texas. The tenth state, Arizona, operated an indeterminate system from 1972 to 1993; a period of significant population growth. After switching in 1994 to a determinate system, Arizona experienced less prison growth through 2007 (Reitz, 2020a; see footnote #16). 5

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indeterminate sentencing-high incarceration rate states, are they positioned to redirect their decision-making leverage in an era of chronic mass incarceration towards an agenda responsive to prison downsizing?

The Discourse of Reform and the Bifurcation of Penal Policy The Promise of Reform Contemporary cross-currents affecting the justice system present a promising, if daunting backdrop in which to assess how parole boards might respond. With respect to the promise, over the past decade and more, a wave of impressive, arguably durable reforms have emerged, some legislative, others more policy-based, that challenge the corrosive infrastructure of mass incarceration. These developments have spawned a new, albeit pragmatic optimism, giving momentum to sentencing and correctional change, mainly at the state level. Some of the reforms targeted prison downsizing. The first such initiative to call attention to is the passage of the Second Chance Act in 2007. This important bipartisan legislation enacted by Congress spawned a federal, as well as state commitment, to effecting system-wide policies and practices supportive of prisoner reentry (Rhine & Thompson, 2011). Since its enactment, federal grant funding has been made available from the Bureau of Justice Assistance to state and local jurisdictions to enhance the post-release, transitional prospects of individuals returning home. Sizeable obstacles remain in place, all-too-­ often serving to undermine individuals’ efforts at reintegration (Petersilia, 2003; Travis, 2005; Western, 2018). Nevertheless, the emergence and spread of a prisoner reentry movement acted as a salient symbol of promise: for the first time in decades the focus across a growing number of states was not on how to “lock them up but how to let them out,” thereby confronting the seemingly immutable trajectory of mass incarceration (Sullentrop, 2006). Some states have amended legislation reducing certain felonies in the criminal code to misdemeanors (e.g., California, Proposition 47). A landmark decision by the U.S. Supreme Court, Brown v. Plata (2011), drawing on the Eighth Amendment’s prohibition against cruel and unusual punishment, directed that California release roughly 35,000 inmates to ensure the adequacy of medical and mental health care in less crowded conditions. California adopted the Public Safety Realignment Act (AB 109) in anticipation of this decision ultimately shifting authority for the custody and supervision of designated felons to its 58 counties. Under the First Step Act of 2018, it is now possible for prisoners in the federal Bureau of Prisons to directly petition the courts for a reduction in their sentences. Reduced sentences may also be ordered in “thousands of cases where the First Step Act has retroactively reduced statutory penalties” (Russell, 2019). This legislation provides judges with an opportunity to take a “second look” and thus reassess the

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length of sentences imposed giving the individual under review a chance to gain a reduction resulting in release at an earlier date. Though other efforts might be included, the last to be mentioned here is the Justice Reinvestment Initiative (JRI). It has exerted an influential voice in facilitating sentencing and criminal justice reform through its work with jurisdictions across the country. JRI evolved from its distinctive precursor, Justice Reinvestment (JR).6 Framed as a public–private partnership between the Bureau of Justice Assistance, The Pew Charitable Trusts, the Council of State Governments, and others, it has become the main form of JR practice across the nation (Sabol & Baumann, 2020). JRI provides technical assistance to participating jurisdictions helping them respond to sentencing and correctional population trends through changes designed to enhance public safety, reduce prison populations, and curb costs by prioritizing prison space for serious, violent, and repeat offenders. The overriding intent is to redirect some of the savings accrued by establishing alternatives to incarceration for low-level, nonviolent offenders through evidence-based practices known to be effective at reducing recidivism. The extent of its outreach has been impressive. Between 2007 and 2017, it facilitated the consideration, if not the adoption, of sentencing and criminal justice reforms in at least 35 states (Pew Charitable Trusts, 2018). Relative to paroling authorities, 21 states revised their parole hearings/eligibility standards, 16 expanded their good-time/earned time-credits, three created board member qualifications, and another 11 established expanded geriatric or medical parole. Among its objectives, JRI efforts are clearly targeted at decreasing the nation’s reliance on incarceration.

The Bifurcation of American Penal Policy JRI has engendered sharp criticism, in part, because the precise impact of the reforms achieved remains subject to debate (Klingele, 2016; Sabol & Baumann, 2020). This chapter raises another concern, as well. Though JRI has effected laudable changes in a number of jurisdictions, the initiative has also acted to reinforce the consolidation of a harmful narrative, one informed by what Seeds (2017) refers to as the bifurcation of American penal policy. As this narrative acquired resiliency over the years, sentencing codes hardened imposing retributive penalties in the form of disproportionately severe terms of incarceration, mainly on those convicted of crimes of violence. The taken-for-granted appropriateness of handing down inordinately long periods of imprisonment resides at the core of bifurcation policy.

 Justice reinvestment emerged in the early 2000s as a response to the unprecedented growth of mass incarceration. The intent behind this concept was to redirect a percentage of corrections expenditures saved by diverting individuals from prison by reinvesting in the capacities of communities to manage them locally. Over time this model was replaced by (JRI) (Sabol & Baumann, 2020). 6

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Also central to bifurcation, visible in the initiatives championed by JRI and other advocates (e.g., reentry administrators under SCA funding), are reforms limited to what some refer to as the non-non-nons—nonviolent, nonserious, and nonsexual offenders (Gottschalk, 2015; Seeds, 2017). The narrative of bifurcation that has taken hold appears to be fostering a new way of engaging crime and punishment; a view tied to the notion that “only relatively sympathetic defendants facing less-­ serious charges are deserving of reform” (Beckett, 2018, p. 244). As it has unfolded, the narrative of bifurcation, illustrated in the JRI portfolio of engagement at the state level, is embedded in a bipartisan assumption that the response to violent crime should be fundamentally different than the response to nonviolent crime. The bifurcation driving contemporary penal policy will likely continue to produce long sentences on top of sentences that are already quite lengthy. It will do so within a sanctioning context that rigidly sorts and excludes parole and other release opportunities for those convicted of violent crimes, while granting eligibility for individuals doing time for nonviolent, less-serious felony convictions, (Nellis, 2017; Seeds, 2017; Tonry, 2016).

Paroling Authorities and Decarceration The bifurcation divide presents a particularly difficult barrier for paroling authorities should they embrace the goal of decarceration. For those parole boards that might consider prison population reduction as part of their agency’s revitalized mission, three factors arise that may contribute to their willingness and institutional capacity to do so.7 The reality is that (1) most states’ stock prison populations contain a majority or sizeable percentage of violent offenders—to have a meaningful impact on reducing the number of those currently confined, this group must be included in a decarceration agenda; (2) paroling authorities occupy a potent niche within the landscape of correctional decision-making; one that gives them unrecognized leverage should they elevate decarceration as an explicit policy goal; and, finally, (3) paroling authorities in a number of states have already demonstrated their capacity to act in a manner that contributes to prison downsizing. Each of these factors is discussed below. When considering the profile of state prison populations, it is essential to distinguish prison admissions from the stock prison population. If the focus is on the latter, that is, the inmate population confined on any given day, those individuals with long sentences will have a more decided impact on the total number incarcerated. In considering this issue, one review found that in 2014, the percentage of individuals in prison for three crimes of violence—murder, rape, and robbery stood  These factors, albeit important, are augmented by the tangible benefits that may accrue should parole boards mobilize around prison downsizing, especially in concert with departments of corrections. The benefits include reduced crowding, cost savings, shortened terms for individual offenders, and a quicker and more focused engagement with reentry and its transitional needs. 7

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at 38.7% of the total population, while drug offenders, at 15.7%, were less than half the population of violent offenders (Zimring, 2020, p. 98). More generally, in terms of offenders incarcerated for violent crimes, their share of the state prison population increased from roughly 50 to 54% from 2000 to 2016 (Sabol & Baumann, 2020, p. 327). The impact of excluding such individuals when tied to a commitment to decarceration is the removal of a sizeable segment of the total prisoner population, perhaps up to half, from parole release consideration (Sabol & Baumann, 2020; Zimring, 2020, p. 139). Paroling authorities choosing to emphasize decarceration in the mix of their decision-making, have the leverage to do so. They represent relatively small agencies, yet the reach of their decision-making is substantial. In 2013, across 46 states, 340 board members granted 187,035 discretionary releases to parole (Rhine et al., 2017). This figure does not include the number of decisions that resulted in a denial or deferral of parole subject to reconsideration at a later date. Their power over an individual’s liberty, and specifically, how much time they may serve is vast, often exceeding that of the sentencing judge (McVey et al., 2018).8 If they possess sizable leverage, parole boards also operate in a “low-friction” environment where actual changes in prison release policies and outcomes can take hold without new legislation, sentencing guidelines revisions, changes to administrative rules, and modifications in prosecutorial practices, or court decisions (Reitz, 2020a). The implication of this: if parole boards’ authority includes extending the length of prison sentences to the expiration of an individual’s maximum term, it also entails the corresponding leverage to reduce the amount of time served in confinement. Exercising their discretionary authority in alignment with the latter would serve to establish decarceration as a crucial component of a state’s prison release policy. A recent report of five states highlights how each jurisdiction worked to achieve prison population reductions ranging from 14 to 25%. Paroling authorities were actively involved in initiatives across these jurisdictions adopting practices that increased prison releases (Schrantz et al., 2018). In turning to a consideration of the post-prison growth period covering 2007–2017, a contrast emerges between indeterminate and determinate sentencing states in their respective decline in prison rates. During this decade the nation entered its transition from the peak of mass incarceration towards a period of relatively modest reductions in the number of those incarcerated. Reitz (2020a, p. 2775) calculates that the average of state prison rates decreased from 429 to 380 per 100,000, roughly an 11% decline. Among indeterminate states however the average change was −49 per 100,000 compared with −23 per 100,000 in determinate states. As the author notes, this is not a significant drop for either sentencing system. Nonetheless, the fact that indeterminate states displayed more than twice as much prison-rate decline as determinate states in the post-growth period illustrates that

 Paroling authorities not only determine if and when individuals may be released from prison, but also the conditions of their supervision post-release, and any period of reincarceration they may face for violating parole rules. For a discussion of these features, see Reitz and Rhine (2020). 8

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prison downsizing is feasible.9 It also raises the possibility that the low-friction quality of indeterminate prison release regimes may make it easier for parole boards to reverse course than under the “stickier” or more rule-regimented determinate sentencing systems.10

I n Pursuit of Prison Downsizing: Recommendations for Parole Release Against this tapestry, the discussion turns next to the role paroling authorities might play through releasing practices that pursue an embracing decarceration strategy. Paroling authorities often possess an expansive jurisdiction to grant or deny release thus exerting notable leverage over the length of sentence or the amount of time an individual actually serves. They are able to leverage significant changes by exercising their discretionary authority to measurably increase or decrease parole grant rates. In essence, paroling authorities are positioned to shape states’ prison policies. Doing so however will require a forward-looking, strategic construction of a sustainable foundation for expanding the reach of discretionary parole release while remaining attentive to the necessary requisites of public safety. It requires a framework that is inclusive in its consideration of violent and nonviolent offenders alike, justice-centered, and informed by a commitment to evidence-based practice. The recommendations that follow are premised on the assumption that the parole board within the limits of the state’s sentencing structure should be bound by the judge’s determination that the minimum sentence imposed is sufficient to serve retributive purposes.11 The paroling authority should be restricted from denying parole based on the rationale that granting release would depreciate the seriousness of the crime (McVey et al., 2018). Rather the parole board should ask whether a prison stay beyond the date of first eligibility for parole release is necessary to serve the goal of public safety. The primary ground for the denial of release should be the board’s finding, based on credible evidence (e.g., serious misconduct, assaultive behavior within the institution), that the prisoner presents an unacceptable risk of reoffending if released (Rhine et al., 2017).

 It is important to note that of the 15 states showing growth, the top five represented indeterminate sentencing jurisdictions, while another four were determinate sentencing states. The states in the middle were all jumbled together relative to their sentencing structures (Reitz, 2020a, Table 1). 10  Stickier regimes impose greater requirements that must be satisfied for parole and corrections officials to effect dramatic changes in prison release policy. Those seeking such changes must, for example, propose legislation, or seek to amend sentencing guidelines. This is because of the relatively fixed relationship that exists between the sentence imposed and the amount of time the individual is likely to serve (Reitz, 2020a). 11  A majority of the recommendations proposed herein have been discussed elsewhere by the author and colleagues at the Robina Institute of Criminal Law and Criminal Justice. See Reitz and Rhine (2020); Rhine et al. (2017); and Rhine et al. (2018b). 9

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Four of the five recommendations call for the adoption of a strong presumption governing parole release, one that is considered binding on those with responsibility for such decision-making at first and subsequent reviews. The presumption is designed to create a fair measure of certainty that parole release will be granted. Presumptive parole may be operationalized through the use of parole guidelines, administrative parole, or other structured decision-making frameworks, all of which incorporate the use of risk assessment instruments. To establish and maintain a credible presumption of parole, equally clear rules of rebuttal permitting an override of the presumption must also be available to those making the decisions. These rules, present when parole release is considered, may serve to rebut the presumption of release at that time. However, the application of each such rule must represent “extraordinary” or “substantial” circumstances that justify a departure from the presumption. Ideally, there should be a meaningful review to assess those circumstances in which overrides to the presumption of release occur (Reitz, 2020b). The recommendations that follow are also guided by the research and literature informing evidence-based practice (Cullen, 2013; Goodman et al., 2017; Mathews et al., 2018). Paroling authorities are well-positioned to become contributors to a new evidence-based standard of practice calling for lower prison populations and higher parole release rates in many jurisdictions. Doing so will however require the use of validated, risk assessment tools. As they are a necessary precondition to a rational, transparent, and accountable decision-making process, each of the recommendations touches in some way on the use of such assessments.

Recommendations  se Structured Decision Tools to Prioritize Individuals Assessed as Low U Risk for Presumptive Parole Release at the Earliest Opportunity The adoption of structured decision tools to inform parole decision-making has been a notable development during the past several decades, inclusive mainly of risk assessment instruments and parole guidelines (Serin & Gobeil, 2014). Of the 34 states with indeterminate sentencing structures, 30 (88%) rely on risk-based actuarial assessments (Rhine et  al., 2018a). Several jurisdictions use risk assessment independent of parole guidelines, while others incorporate an assessment of risk within a parole guidelines framework. Very few states do not incorporate a risk assessment of some kind when considering discretionary release on parole. Even more, every parole board that makes use of a guidelines-driven approach to decision-­ making embeds the assessment of risk as a factor to be weighed (Rhine et  al., 2018b, p. 11). During the past several decades, there has been a discernible growth in sophistication in generating risk assessment outcomes that more accurately identify the likely probability of offender recidivism (Rhine et al., 2018b, p. 12; Reitz, 2020b).

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Despite their growing sophistication and accuracy, legitimate issues have been raised with respect to their predictive capacity and social class bias.12 It is important to point out that actuarial tools are better at predicting low-rather than high-risk behavior (Rhine et al., 2017; Reitz, 2020b). When considering such instruments, the false-negative rate may be as low as 2–3% meaning that very few individuals assessed as low risk actually go on to reoffend or fail. Conversely, they may produce a false-positive rate estimated at least 30% for higher risk individuals (Rhine et al., 2017). Parole boards tend to place a singular emphasis on offenders at this level of risk. It is essential that paroling authorities prioritize for release individuals who are assessed as low risk. Lower risk scores offer a more reliable indicator of the outcomes board members are most interested in knowing and provide a greater measure of confidence when making decisions to grant parole release. Reitz highlights the success of risk assessment instruments in identifying individuals who are at low risk of serious offending or low-risk-of-violence (Reitz, 2020b). One such violence-­ prediction tool, validated in 2018 by the Pennsylvania Sentencing Commission, reported a 98% true-negative rate with the outcome measured as no offense against the person as defined in the state’s criminal code. With respect to the 2% of “false negatives,” most of the crimes such individuals were predicted to commit did not result in serious injury to the victim (as cited in Reitz, 2020b, p. 209).  eploy Presumptive Decision Criteria for Administrative Parole that D Reduce the Need to Hear Low-Risk Cases Administrative parole occupies an unusual niche within the continuum of discretionary parole. It does so in a manner that offers more certainty of release for defined categories of offenses and offenders within a framework driving parole eligibility thresholds known at the time of admission to prison. Presumptive release dates in parole guidelines systems function in a soft advisory capacity (e.g., Colorado, Pennsylvania, and Texas). Overrides of the guideline’s recommendations occur frequently. In contrast, the same presumption under administrative parole triggers an automatic release from imprisonment without a hearing, given individuals’ compliance with criteria established shortly after admission. At least five states have adopted administrative parole provisions: Maryland, Mississippi, New Jersey, Oklahoma, and South Dakota. Each of these jurisdictions incorporates several shared features. To start, offenders must serve a minimum period of their sentence to be released at their parole eligibility without a hearing.  Serious concerns have been raised regarding the disproportionate impact risk assessment tools may have on racial minorities and the poor (Harcourt, 2007; Starr, 2014). It is essential that the use of such instruments be validated on local offender populations, receptive to public challenge, committed to the removal of race-tainted variables, and attentive to how their application at the backend of the system may serve to concentrate race and class bias within correctional systems (Rhine et al., 2017; McVey et al., 2018). 12

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They must also comply with the requirements of their parole plan, and not have any serious institutional misconduct violations within a specified period of time. Some states also require agreement with the terms of supervision post-release, and the submission of a discharge plan approved by the parole board. Within each of these states, offenders found to be in compliance with the conditions of their case plan are granted release without appearing before the parole board. Typically, it is the department of corrections that furnishes notification of offenders’ compliance with the parole case plan to the parole board.13 Administrative parole presents the greatest potential for change when release is based on objective criteria, including low risk, that reduce, and may often eliminate, the need for a hearing.  irect Parole Decision-Making Resources to the Most Serious, High-Risk D Cases Within a Hearing Process Bounded by Procedural Integrity The recommendations thus far suggest the overriding importance of adopting policy-­driven reforms calling for the presumptive release of low-risk prisoners often in the absence of a hearing. This recommendation takes advantage of such a change by giving paroling authorities an opportunity to redirect the hearing process in a manner that focuses on those individuals who are assessed as more serious and at a higher risk to public safety. The value of this redirection cannot be overstated in an environment in which most parole boards as relatively small agencies remain under-­ resourced while facing sizeable workloads. The decision to grant or deny parole release is comparable to a sentencing decision, yet all-too-often, the procedural safeguards provided during the course of a parole hearing, if a hearing is provided at all, are shoddy (Rhine et al., 2017; Reitz & Rhine, 2020). Though there are some notable exceptions (see Slater, 2020, on the California Board of Prison Terms), individual hearings reduce to brief interviews consisting of a short series of questions conducted by board members to which the individual is given a brief opportunity to respond. The assistance of legal counsel is not the norm. Even more, most offenders are poorly prepared, and ill-equipped to present their case for release in a manner that is convincing, or in the board’s view, insightful (Slater, 2020). In essence, the hearing frequently reduces to a summary process, despite the fact that the offender may be facing many additional years of confinement before reconsideration should parole be denied (Gonnerman, 2019; Watts, 2017). If paroling authorities take advantage of this redirection and prioritize their institutional investment towards more serious and higher risk offenders, it will be possible to offer greater protections at hearings centering on presumptive parole release coupled with due consideration of the grounds that may exist for its rebuttal. Two  Parole hearings will be scheduled for offenders determined to be in noncompliance, or upon request of the victim. In such instances, the presumption of parole is removed though the offender may still be released (Rhine et al., 2018b). 13

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more prerequisites however are necessary. It is crucial that clear roadmaps are provided to offenders of what they must do to earn a favorable release decision at an initial and all subsequent reconsiderations of release when parole is denied (e.g., complete a risk reduction program). This should be coupled as well with a provision ensuring that increasing presumptive weight is given to individuals who are denied release on successive occasions (Rhine et al., 2017). In the aggregate, the actions taken herein will foster a measurable increase in the degree of fairness and procedural integrity associated with discretionary parole release.  dopt a Presumption of Compassionate Parole Release A for Eligible Individuals Compassionate parole release encompasses incarcerated offenders who fall under several interconnected categories, including elderly or aging prisoners, those with serious medical conditions, and those diagnosed as terminally ill. In most instances, the statutory terms referring to this practice allude to medical parole or furlough, special needs parole, or geriatric parole (Rhine et  al., 2018b). As important as it might be as a lever for decarceration, it is exercised with extraordinary infrequency. Nonetheless, some variation of compassionate release is found in 49 states (Price, 2018). Generally, compassionate release is offered by the states when offenders reach a certain age (55–60+ years of age). It is usually joined by the further requirement that they have already served a minimum or appreciable number of years or a percentage of their maximum sentence. There is an additional expectation that the individual’s health has deteriorated to the point that he or she no longer represents a threat to the community should release be approved. An offender’s declining health status is normally determined by a department of correction’s physician. Paroling authorities are influential relative to the process that is followed for approving or denying offenders’ applications for compassionate release. In 30 of 34 states with indeterminate sentencing structures, parole boards either decide or forward a recommendation to the governor in such cases (Rhine et al., 2018b). This is of significance when the graying of American prisons is considered both in terms of the growing number of offenders with deteriorating health conditions and the length of the sentences they are often serving. One estimate observes that more than 400,000 individuals 55 and older will be confined by 2030, making up nearly one-­ third of the prison population (Pro & Marzell, 2017). As a much underutilized mechanism for release, paroling authorities are well-­ positioned to trigger increases in states’ consideration and approval of compassionate release. Offering a justification for expanding the use of this lever, research shows that these individuals pose little threat to the communities to which they return. Given their typical age and health demographics, individuals eligible for presumptive compassionate parole release are highly unlikely to be rearrested or reincarcerated (Price, 2018). Representing a lessened risk to public safety, these individuals could be granted release in far greater numbers than is presently the case.

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 resumptive Release Eligibility should be Reached at 15 Years P for Individuals with Life Sentences Individuals serving life sentences have experienced dramatic increases in the time they serve due largely to the impact of the nation’s bifurcated penal policy. As recently as several decades ago, individuals receiving life with the prospect of parole served far shorter sentences on average than what has become the norm today. In South Carolina, lifers receiving parole in 1980 served 11.6 years, while those granted parole in 2013 served 27.5 years. Likewise, the enactment of statutory changes delaying parole eligibility for lifers has had a significant impact in some states. In Georgia, individuals convicted for serious violent felonies prior to 1995 achieved parole eligibility after serving 7 years. After 2006, those convicted of the same crimes become eligible for parole only after confinement for 30  years. As Ghandnoosh (2017) observes, for the lifer population parole release has become more uncertain at the same time parole boards have grown more reluctant to grant parole to eligible lifers. Alongside these trends, those serving life sentences and life without parole have grown dramatically.14 There has been a pronounced increase in life sentences given the frequency of their imposition from 1984 to 2016. In 1984, roughly 34,000 individuals were serving mostly life with parole, albeit with some serving life without parole (the first year such information was available). By 2016, this figure rose to 206,268. The majority, 108,667, were serving life with parole terms, another 53,290 life without parole sentences, while another 44,311 were subject to virtual life sentences. Combined, these groupings accounted for 13.9% of the prison population at the state and federal levels (Nellis, 2017).15 Retribution, long-term incapacitation, and public safety concerns underlie the imposition of life sentences for serious and violent felonies. However, the act of confining individuals in prison for exceedingly long periods of time produces diminishing returns relative to the likelihood of their reoffending (Kleinstuber & Coldsmith, 2020). The propensity to commit crime, even violent crime, greatly recedes as individuals age (Mauer & Nellis, 2018). An earlier study of a 1995 cohort of paroled lifers convicted of murder in California found that of 860 individuals released, less than 1% were recommitted to jail or for a new felony, none of which  A third category, virtual life sentences, has also emerged precluding parole release until 50 years or more have been served (Nellis, 2017, 2019). 15  This recommendation is directed mainly at individuals serving life with the possibility of parole (LWP) and enhancing their prospects for release. Though it is the author’s view that life without parole terms (LWOP) should be commuted to (LWP), more than 100 laws were enacted between 2000 and 2013 in roughly two-thirds of the states expanding the reach of (LWOP) (Seeds, 2017, p. 598). Virtual life sentences represent extraordinarily long terms of imprisonment that an individual is not likely to survive (Nellis, 2017, p. 9). Yet they are not considered equivalent to life sentences. Those serving life without parole or virtual life sentences offer a pool of offenders for whom some form of executive clemency is required prior to becoming available for parole consideration or some other form of release. These exclusionary barriers reflect the imprint of the bifurcation of American penal policy. 14

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constituted life-term crimes (Weisburg et al., 2011). A new analysis of studies on released violent offenders, notably individuals convicted of homicide and who are older at release, concluded they have lower overall recidivism rates when compared to other offenders who have also been released. Across each of the studies examined, the overwhelming majority of those convicted of homicide (usually more than 99%) did not commit another murder upon release. This suggests such offenders pose little risk should they be granted release on parole (Prescott et al., 2020). It is also important to point out that offenders serving life sentences change over time demonstrating prosocial skills, earned credentials, and a readiness for release (Ghandnoosh, 2019b; Watts & Rhine, 2018). There is some evidence paroling authorities are inclined to view lifers more favorably when outside advocacy is provided giving offenders the opportunity to present their case during hearings reflecting greater procedural regularity.16 Under such circumstances, it is evident that paroling authorities can be simultaneously attentive to public safety concerns, the reintegration of the offender, and the goal of decarceration.

 aroling Authorities, the Length of Sentence, P and the Mitigation of Harm It is likely that chronic mass incarceration is here to stay, at least through the mid-­ twenty-­first century (Zimring, 2020). If the historically unprecedented rates of prison growth have ebbed, the slight decline in incarceration rates in recent years still leaves the United States with rates more than four times the pre-1972 level, and as much as 5–10 times higher than European countries (Travis, 2014, p.  569). Diminished only slightly, the impact of chronic mass incarceration will continue to foster the wide-ranging cascading damage long associated with the nation’s nearly four decade period of prison population growth. The recommendations above lend guidance and direction should paroling authorities choose to reframe their role by addressing efforts to effect prison downsizing via a steady and sustained commitment to decarceration. Towards that end, the recommendations contribute admittedly modest, yet consequential criminal justice reforms aimed at mitigating the harms experienced by prolonged and unnecessary incarceration, especially by individuals serving lengthy terms of imprisonment, most often, but not exclusively, for violent crimes.17  A volunteer group called Parole Prep works with individuals serving life sentences in the New York Prison System. Their goal is to prepare the lifers before each hearing, so they are successful at securing release. The Vera Institute for Justice says the success rate for the last 3 years for lifers without such preparation has been 36%. The Executive Director of Parole Prep states that through their assistance the success rate stands at 60%. Parole Prep has helped 149 individual lifers exit prison (Gonnerman, 2019). 17  Pronounced demographic disparities are embedded in the criminal justice system’s response to crime, both nonviolent and violent. With respect to the latter, in 2016, nearly half of all life-sen16

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Paroling authorities are favorably positioned to make a measurable dent in states’ incarcerated populations should they realign their decision-making with the recommendations. To acquire a voice calling for reform however they will have to cultivate a new way of thinking about the release of individuals from prison sometimes well prior to the expiration of their maximum sentence. Doing so must necessarily challenge the formidable boundaries imposed by America’s bifurcated penal policy. Penal sanctioning signals appropriate societal disapproval towards those convicted of crime, especially violent offenders. However, the criminal justice system is at its essence a blaming institution, discouraging a sense of civic belonging while reinforcing social exclusion (Western, 2018). Within this context, an expansive commitment to parole release must be rooted in an affirmative framework inclusive of the presumptive consideration of offenders convicted of nonviolent and violent crimes (Ghandnoosh, 2019b; Mauer & Nellis, 2018; Reitz, 2020b). In sharp contrast to unforgiving terms of confinement, such a framework offers some measure of hope and a credible possibility of release no matter the gravity of the harm inflicted years ago.

References Alexander, M. (2010). The New Jim Crow: Colorblindness in the age of mass incarceration. New York Press. American Law Institute. (in press). Model penal code: Sentencing. American Law Institute. Aviram, H. (2020). Yesterday’s monsters: The Manson family cases and the illusion of parole. University of California Press. Barker, V. (2009). The politics of imprisonment: How the democratic process shapes the way America punishes offenders. Oxford University Press. Beckett, K. (2018). The politics, promise, and peril of criminal justice reform in the context of mass incarceration. Annual Review of Criminology, 1, 235–259. https://doi.org/10.1146/ annurev-­criminol-­032317-­092458 Burkes, K. J., Rhine, E. E., Robey, J. P., & Ruhland, E. L. (2017). Releasing authority chairs: A comparative snapshot across three decades. Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School. Retrieved from https://robinainstitute.umn.edu/ sites/robinainstitute.umn.edu/files/parole_chairs_report_final.pdf Carson, E. A. (2018). Prisoners in 2016. U.S. Department of Justice, Bureau of Justice Statistics. Retrieved from https://www.bjs.gov/content/pub/pdf/p16.pdf Carson, E. A. (2020). Prisoners in 2018. U.S. Department of Justice, Bureau of Justice Statistics. Retrieved from https://www.bjs.gov/content/pub/pdf/p18.pdf Clear, T. R., & Frost, N. A. (2014). The Punishment Imperative: The rise and failure of mass incarceration in America. New York University Press.

tenced inmates (including life with and without parole) were African American, and two-thirds were people of color (Nellis, 2017, 2018). The nation’s policy of bifurcation, if left unexamined, virtually ensures the continuation of such demographic disparities if sentencing, correctional, and paroling authorities do not become more willing to consider the release of such individuals. The recommendations provide a series of responsive, interlocking measures for addressing these crucial concerns (Kleinstuber & Coldsmith, 2020; Prescott et al., 2020).

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Cullen, F. (2013). Rehabilitation: Beyond nothing works. In M. Tonry (Ed.), Crime and justice: A review of research (Vol. 46, pp. 299–376). University of Chicago Press. Garland, D. (2017). Penal power in America: Forms, functions and foundations. Journal of the British Academy, 5, 1–35. https://doi.org/10.5871/jba/005.001 Ghandnoosh, N. (2017). Delaying a second chance: The declining prospects for parole on life sentences. Sentencing Project. Retrieved from https://www.sentencingproject.org/wp-­content/ uploads/2017/01/Delaying-­a-­Second-­Chance.pdf Ghandnoosh, N. (2019a, September 17). U.S. prison population trends: Massive buildup and modest decline. Sentencing Project. Retrieved from https://www.sentencingproject.org/ publications/u-­s-­prison-­population-­trends-­massive-­buildup-­and-­modest-­decline/ Ghandnoosh, N. (2019b, April 2). The next step: Ending excessive punishment for violent crime. Sentencing Project. Retrieved from https://www.sentencingproject.org/publications/ the-­next-­step-­ending-­excessive-­punishment-­for-­violent-­crimes/ Ghandnoosh, N. (2020, May 19). U.S.  Prison decline: Insufficient to undo mass incarceration. Sentencing Project. Retrieved from https://www.sentencingproject.org/ publications/u-­s-­prison-­decline-­insufficient-­undo-­mass-­incarceration/ Gonnerman, J. (2019, November 25). Prepping for parole. The New Yorker. Retrieved from https:// www.newyorker.com/magazine/2019/12/02/prepping-­for-­parole Goodman, P., Page, J., & Phelps, M. (2017). Breaking the pendulum: The long struggle over criminal justice. Oxford University Press. Gottschalk, M. (2015). Caught: The prison state and the lockdown of American politics. Princeton University Press. Harcourt, B. E. (2007). Against prediction: Profiling, policing, and punishing in an actuarial age. University of Chicago Press. Kleinstuber, R., & Coldsmith, J. (2020). Is life without parole an effective way to reduce violent crime? Criminology & Public Policy, 19(2), 617–651. https://doi.org/10.1111/1745-­9133.12496 Klingele, C. (2016). The promises and perils of evidence-based corrections. Notre Dame Law Review, 91(2), 537–584. Retrieved from https://scholarship.law.nd.edu/ndlr/vol91/iss2/2/ Mathews, B., Walker, A., & Rhine, E. E. (2018). Awakening the sleeping giant: The future of paroling authorities in America. Corrections: Policy, Practice and Research, 5(3), 206–221. https:// doi.org/10.1080/23774657.2018.1470478 Mauer, M., & Nellis, A. (2018). The meaning of life: The case for abolishing life sentences. The New Press. McVey, C. C., Rhine, E. E., & Reynolds, C. V. (2018). Modernizing parole statutes: Guidance from evidence-based practice. Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School. Retrieved from https://robinainstitute.umn.edu/sites/robinainstitute. umn.edu/files/parole_ebp_report.pdf Nellis, A. (2017, May 3). Still life: America’s increasing use of life and long-term sentences. Sentencing Project. Retrieved from https://www.sentencingproject.org/publications/ still-­life-­americas-­increasing-­use-­life-­long-­term-­sentences/ Nellis, A. (2018, December). The facts of life sentences. Sentencing Project. Retrieved from https:// www.sentencingproject.org/wp-­content/uploads/2018/12/Facts-­of-­Life.pdf Nellis, A. (2019, August 29). Virtual life sentences. Sentencing Project. Retrieved from https:// www.sentencingproject.org/publications/virtual-­life-­sentences/ Paparozzi, M.  A., & Caplan, J.  M. (2009). A profile of paroling authorities in America: The strange bedfellows of politics and professionalism. Prison Journal, 89(4), 401–425. https:// doi.org/10.1177/0032885509349559 Paparozzi, M. A., & Guy, R. (2009). The giant that never woke: Paroling authorities as the lynchpin to evidence-based practices and prisoner reentry. Journal of Contemporary Criminal Justice, 25(4), 397–411. https://doi.org/10.1177/1043986209344561 Petersilia, J. (2003). When prisoners come home: Parole and prisoner reentry. Oxford University Press.

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Pew Charitable Trusts. (2018, July 11). 35 states reform criminal justice policies through justice reinvestment. Pew Trusts. Retrieved from https://www.pewtrusts.org/en/research-­and-­analysis/ fact-­sheets/2018/07/35-­states-­reform-­criminal-­justice-­policies-­through-­justice-­reinvestment Prescott, J.  J., Pyle, B., & Starr, S.  B. (2020). Understanding violent-crime recidivism. Notre Dame Law Review, 95(4), 1643–1698. Retrieved from http://ndlawreview.org/wp-­content/ uploads/2020/05/9.-­Prescott-­et-­al..pdf Price, M. (2018). Everywhere and nowhere: Compassionate release in the states. Families Against Mandatory Minimum Sentences. Retrieved from https://famm.org/wp-­content/uploads/Exec-­ Summary-­Report.pdf Pro, G., & Marzell, M. (2017). Medical parole and aging prisoners: A qualitative study. Journal of Correctional Health Care, 23(2), 162–172. https://doi.org/10.1177/1078345817699608 Reitz, K.  R. (Ed.). (2018). American exceptionalism in crime and punishment. Oxford University Press. Reitz, K.  R. (2019). Measuring changes in incarceration rates: Shifts in carceral intensities as felt by communities. Berkeley Journal of Criminal Law, 24(1), 1–40. https://doi.org/10.15779/ Z38B27PR7N Reitz, K.  R. (2020a). Prison-release reform and American decarceration. Minnesota Law Review, 104(6), 2741–2779. Retrieved from https://minnesotalawreview.org/article/ prison-­release-­reform-­and-­american-­decarceration/ Reitz, K. R. (2020b). The compelling case for low-violence-risk preclusion in American prison policy. Behavioral Science and Law, 38(3), 207–217. https://doi.org/10.1002/bsl.2461 Reitz, K.  R., & Rhine, E.  E. (2020). Parole release and supervision: Critical drivers of American prison policy. Annual Review of Criminology, 3, 281–298. https://doi.org/10.1146/ annurev-­criminol-­011419-­041416 Rhine, E. E., Mitchell, K. L., & Reitz, K. R. (2018a). Levers of change in parole release and revocation. Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School. Retrieved from https://robinainstitute.umn.edu/sites/robinainstitute.umn.edu/files/ parole_landscape_report.pdf Rhine, E. E., Petersilia, J., & Reitz, K. R. (2017). The future of parole release. In M. Tonry & D. S. Nagin (Eds.), Crime and justice: A review of research (Vol. 46, pp. 279–338). University of Chicago Press. Rhine, E. E., & Thompson, A. C. (2011). The reentry movement in corrections: Resiliency, fragility, and prospects. Criminal Law Bulletin, 47(2), 177–209. Rhine, E. E., Watts, A., & Reitz, K. R. (2018b, April 3). Parole boards within indeterminate and determinate sentencing structures. Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School. Retrieved from https://robinainstitute.umn.edu/ news-­views/parole-­boards-­within-­indeterminate-­and-­determinate-­sentencing-­structures Ruhland, E. L., Rhine, E. R., Robey, J. P., & Mitchell, K. L. (2017). The continuing leverage of releasing authorities: Findings from a national survey. Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School. Retrieved from https://robinainstitute. umn.edu/sites/robinainstitute.umn.edu/files/final_national_parole_survey_2017.pdf Russell, S.  F. (2019). Second looks at sentences under the First Step Act. Federal Sentencing Reporter, 32(2), 76–85. https://doi.org/10.1525/fsr.2019.32.2.76 Sabol, W. J., & Baumann, M. L. (2020). Justice reinvestment: Vision and practice. Annual Review of Criminology, 3, 317–339. https://doi.org/10.1146/annurev-­criminol-­011419-­041407 Schrantz, D., DeBor, S., & Mauer, M. (2018, September 5). Decarceration strategies: How five states achieved substantial prison population reductions. Sentencing Project. Retrieved from https://www.sentencingproject.org/publications/ decarceration-­strategies-­5-­states-­achieved-­substantial-­prison-­population-­reductions/ Seeds, C. (2017). Bifurcation nation: American penal policy in late mass incarceration. Punishment and Society, 19(5), 590–610. https://doi.org/10.1177/1462474516673822

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Serin, R., & Gobeil, R. (2014, September). Analysis of the use of the structured decision making framework in three states. National Institute of Justice. Retrieved from https://s3.amazonaws. com/static.nicic.gov/Library/028408.pdf Slater, S. (2020, January 1). Can you talk your way out of a life sentence? The New York Times Magazine. Retrieved from https://www.nytimes.com/2020/01/01/magazine/prison-­parole-­ california.html Starr, S. B. (2014). Evidence-based sentencing and the scientific rationalization of discrimination. Stanford Law Review, 66(4), 803–872. Retrieved from http://www.stanfordlawreview.org/wp-­ content/uploads/sites/3/2014/04/66_Stan_L_Rev_803-­Starr.pdf Sullentrop, C. (2006, December 24). The Right has a jailhouse conversion. The New York Times. Retrieved from http://www.nytimes.com/2006/12/24/magazine/24GOP.t.html Tonry, M. (2016). Sentencing fragments: Penal reform in America, 1975-2025. Oxford University Press. Travis, J. (2005). But they all come back: Facing the challenges of prisoner reentry. Urban Institute Press. Travis, J. (2014). Assessing the state of mass incarceration: Tipping point or the new normal? Criminology and Public Policy, 13(2), 567–577. https://doi.org/10.1111/1745-­9133.12101 Travis, J., Western, B., & Redburn, S. (2014). The growth of incarceration in the United States: Exploring causes and consequences. National Academies Press. Useem, B., & Piehl, A. M. (2008). Prison state: The challenge of mass incarceration. Cambridge University Press. Watts, A. (2017, April 7). Parole release reconsideration in states with discretionary parole release. Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School. Retrieved from https://robinainstitute.umn.edu/news-­views/ parole-­release-­reconsideration-­states-­discretionary-­release Watts, A., & Rhine, E.  E. (2018, April 16). Opinion: The human cost of politicized parole consideration. Robina Institute of Criminal Law and Criminal Justice, University of Minnesota Law School. Retrieved from https://robinainstitute.umn.edu/news-­views/ opinion-­human-­cost-­politicized-­parole-­consideration Weisburg, R., Mukamal, D. A., & Segall, J. D. (2011, September). Life in limbo: An examination of parole release for prisoners serving life sentences with the possibility of parole in California. Stanford Criminal Justice Center. Retrieved from https://law.stanford.edu/publications/life-­ in-­limbo-­an-­examination-­of-­parole-­release-­for-­prisoners-­serving-­life-­sentences-­with-­the-­ possibility-­of-­parole-­in-­california/ Western, B. (2018). Homeward: Life in the year after prison. Russell Sage Foundation. Zimring, F. E. (2020). The insidious momentum of mass incarceration: Diagnosis, prognosis, and treatment. Oxford University Press.

Part IV

Treatment

Chapter 21

A History of Psychological Treatment in the Criminal Justice System Liam E. Marshall and Rebecca Fisico

“Homo sum, humani nihil a me alienum puto”, or “I am human, and I think nothing human is alien to me.” —Terence (195 BCE)

Abstract  This chapter reviews the history of treatment in prisons. We begin by briefly reviewing the origin of laws and prisons, and then focus on the development of treatments in the twentieth century to more recent advances. Until quite recently, attempts at rehabilitating offenders were primarily punitive. Then, in the nineteenth century, along with punishment, attempts were made to correct the character of the individual, an idea that was predicated on offending being a failure of morals. We then discuss the influential 1974 Martinson article reviewing prison-based treatments, the conclusion of which can be summarized as “nothing works.” This led to a regression in treating offenders to a risk-containment model. In recent years, there appears more research examining whether and if so how, treatment for offenders could be made maximally effective. In the early 1990s, Andrews and Bonta described the necessary principles for effective offender treatment, the Risk/Needs/ Responsivity model. The most recent evolution has been to incorporate a more positive approach to the treatment of offenders, which includes strengths-based approaches such as the Good Lives Model. An examination of a more positive approach to offender treatment appears promising.

L. E. Marshall (*) Rockwood Psychotherapy and Consulting, Waypoint Centre for Mental Health Care, and the Department of Psychiatry, University of Toronto, Toronto, ON, Canada e-mail: [email protected] R. Fisico Faculty of Social Science and Humanities, University of Ontario Institute of Technology, Oshawa, ON, Canada e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Jeglic, C. Calkins (eds.), Handbook of Issues in Criminal Justice Reform in the United States, https://doi.org/10.1007/978-3-030-77565-0_21

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Keywords  History of treatment · Therapy · Prisons · Risk Needs Responsivity · Offenders · Crime · Good Lives Model Some believe that those who have committed crimes are real-life villains; that they are cold, evil monsters who should be defined by their criminal record. The above quotation by Terence can serve as a reminder that regardless of how different people seem and how much we may disagree with the choices they have made or the life path they have taken, we all share one thing; we are all human. There is a need to confine and separate those who too dangerous to society to be free. Over time, approaches to incarceration have varied enormously from punishment and segregation, to a more recent rehabilitative focus. For hundreds of years, researchers and clinicians have been on a quest to determine what the best course of treatment is for people in the criminal justice system. This treatment journey has not been straightforward. Approaches to treatment of offenders can rightly be characterized by perpetual change fueled by debates over ethics and morality. This chapter provides a glimpse into what has unfolded over this expedition toward how to best manage and treat offenders. This will be done by outlining particular milestones and trends that have emerged during this multiple century-long and ongoing journey. In order to better understand the origins of approaches to reducing reoffending, this chapter will briefly report on the history and evolution of judicial systems. We then turn our attention to the more recent evolution of rehabilitative approaches in the judicial system during the late twentieth century. As we examine approaches to treating those who are incarcerated, it is important to remember that it takes on average 17 years for the results of psychological research to be incorporated into clinical practice (Morris et  al., 2011), and therefore not all of the modern approaches to reducing reoffending have been incorporated into all judicial systems, even within a single country. We begin this chapter by briefly examining the evolution of judicial systems in the ancient kingdoms of the Middle East and moving into modern-day Europe. The bulk of this chapter however will focus on the evolution of treatment for offenders in the judicial systems of North America. Judicial, or quasi-judicial, systems have existed for millennia. The Babylonian legal text, the “Hammurabi code of laws” (1755–1750 BCE), is recognized as the longest, best organized, and best-preserved legal text of the ancient world. Hammurabi’s code of laws is a collection of 282 rules, established standards for commercial interactions, and set fines and punishments to meet the requirements of justice. The codes have served as a model for establishing justice in other cultures and are believed to have influenced laws established by Hebrew scribes, including those in the Book of Exodus. Many of Hammurabi’s laws included punishments for crimes. Some historians and scholars have described Hammurabi’s laws as cruel and unjust because they called for violent punishments, often death, for nonviolent crimes. Punishment also depended on who had been wronged. If a person put out the eye of a slave, he would not lose his eye but would pay a fine. If that person put out the eye of a nobleman,

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he would lose his eye as punishment. Other Historians see the laws as just and fair because the laws brought order and justice to society. The laws in Hammurabi’s code regulated many different activities, from business contracts to crime. Like most of the judicial systems that came after and were inspired by Hammurabi’s code, these sets of laws and reparations did not include rehabilitative treatments as it was believed that punishments would lead to reduced reoffending. The modern prison system took hold as “best practice” for the punishment of those who had committed crimes in the early 1800s (Foucault, 1977). According to Foucault (1977, 1995), the loss of freedom and equality was the highest form of punishment and would therefore lead to prosocial behavior. Foucault reports that the modern carceral system became complete when the Mettray Penal Colony opened in 1840. This reformatory for young male delinquents was described by Foucault (1995) as the “disciplinary form at its most extreme” (pp. 293). The goal of this institution was to produce bodies that were both docile and capable. In North America, psychological services did not appear in the judicial system until the early 1900s (Lindner, 1955). Initially, psychological assessments were used to determine eligibility for safe release to the community through the detection of “feeblemindedness,” a condition that was believed to lead to a life of crime (Giardini, 1942; Watkins et  al., 1995). Later, educational programs were provided in order to better prepare inmates for release (Lindner, 1955). As the role of psychologists working in prison systems expanded, psychological assessments were conducted to determine security classification, and determine what types of intervention services could be provided that may ameliorate risk for reoffending. Concurrent to the expansion of psychological services in prisons in North America, psychiatrists and psychologists, titled Alienists at the time, were being incorporated into court hearings on the mental capability of accused persons. It is beyond the scope of this chapter to fully explore the development of the forensic mental health system but there are many parallels between the attempts to treat prisoners and forensic mental health patients (i.e., those declared not criminally responsible for their crimes due to a mental illness). Further, the prevalence of mental health issues among men in the criminal justice system has been found to be statistically higher than in the general population (Booth, 2011). In a study examining the rates of mental illness in men in the Canadian federal prison system, 84% were found to have a current Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV; APA, 2000) diagnosis. Not surprisingly, substance-related disorders were found to be most prevalent with 75% of the inmates meeting diagnostic criteria, and after excluding substance problems, 43% were found to have another form of psychiatric disorder. The lifetime prevalence of psychotic disorders was 8% and the suicide rate was found to be 3.7 times higher than in the general population (Description de la population carcérale, 2004).

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 ransinstitutionalization of the Mentally Ill and the Explosion T of the Prison Population The “Transinstitutionalization of the Mentally Ill” has been proposed as an explanation of the high rates of mental illness among prisoners (Harcourt, 2000). In the early part of the twentieth century, the institutionalization of the mentally ill was at its peak, with a rate of nearly 500 people per 100,000 being housed in mental health facilities in North America. However, in the 1950s, the advent of effective drug treatments for psychotic illness and the civil rights movement being extended to the mentally ill resulted in deinstitutionalization of those housed in mental health facilities that were deemed to be able to function in the community. Unfortunately, although well intended, these actions were not supported by the provision of appropriate and needed community-based support and this, some theorists believe, led to those who might be better housed in a mental institution being incarcerated due to their illness-driven behaviors. There is no doubt that over-institutionalization in mental health facilities was a significant problem. Konrad (2002) notes that there were inadequate resources in the community to assist those being discharged from mental institutions, few beds available for chronic mental illness which prevented true stabilization, and the lower number of beds being available leading to guarding those beds for “acceptable” patients; that is, those with no history of crime, violence, or homelessness. Slightly later in time to this movement to deinstitutionalize the mentally ill, there was a steady significant increase in the rates of the prison populations, from approximately 150 persons per 100,000 of the population in the 1970s to current levels of over 600 persons per 100,000 of the population. Although the “transinstitutionalization of the mentally ill” explanation for the increase in the prison population over the last 50 years has face validity, it is not without its critics. Prins (2011), for example, suggests that this may be a reductionist explanation as rates of mental illness in prison systems may not have changed. The increasing numbers of inmates in the prison system pushed the limits of these institutions’ ability to house and safely release them back to the community. This led to a desperate effort to better understand and treat what became later known as dynamic risk factors among offenders. Although the treatment had been conducted in prisons for some time, there was a lack of systematic examinations of the effects of treatment for offending behavior problems. This led to the publication of the infamous “Nothing Works” paper by Martinson in the early 1970s.

Nothing Works Prison systems investing in treatment hinges on the assumption that treatment rehabilitates offenders (Cullen, 2013). Based on this arguably reasonable notion, the New York State Governor’s Special Committee on Criminal Offenders requested a literature review be conducted to determine how effective treatment and

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rehabilitation efforts had been with offending populations (Martinson, 1974) Robert Martinson and his colleagues, Doug Lipton and Judith Wilks, were the research team asked to undertake this task (Sarre, 2001). The publication of the original commissioned report had been delayed (later published in 1975, see Lipton et al., 1975), therefore in the interim, under his sole authorship, Robert Martinson, published an article disseminating a portion of the larger reports’ findings. In this influential article, Martinson (1974) focused on how successful treatment and rehabilitation programs had been at reducing recidivism. After taking into consideration the 231 offender rehabilitation and treatment studies published between 1945 and 1967 that he and his colleagues had reviewed, Martinson’s overarching conclusion about offender rehabilitation was jarringly cynical. He asserted that “with few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism” (Martinson, 1974, p. 25). Martinson had potential suggestions as to why this conclusion could have been reached incorrectly. For example, he suggests the possibility that some treatment and rehabilitation programs did work but the research was of such poor quality that it failed to detect any benefits. Similarly, he also proposed the treatment and rehabilitation programs themselves may be of low quality and this inferiority resulted in their reported ineffectiveness. Martinson (1974) also noted that rehabilitation efforts operate under the “theory of crime as a disease,” whereby it is something that can be treated and eradicated (p. 49). Martinson suggested that viewing crime through this lens might not be effective and the reality may be that offenders are beyond help, such that any effort to reduce recidivism cannot outweigh an offender’s innate urge to offend. This seminal article was soon nicknamed “Nothing Works!” (Sarre, 2001) and proceeded to make waves within greater society and the field of corrections. It has been suggested that the impact of Martinson’s 1974 article may stem from the article’s heightened accessibility, both in how it was written in layman’s terms and the far-reaching journal it was published in (Pratt et al., 2010). Furthermore, Martinson went on to share his opinions with the wider masses through other means such as on an episode of 60 Minutes (Pratt et al., 2010) and an interview with People Magazine (Wohlfert, 1976). It has also been suggested that Martinson’s report was so influential because it was published at a time whereby people had begun to question the government and, in turn, the practices embedded within the criminal justice system. The 1960s was a time where crime was at the forefront of people’s minds (Pratt et al., 2010). This preoccupation was due to communities experiencing a dramatic increase in serious crimes, such as property crimes and crimes against persons (Pratt et al., 2010). Some people believed that this upsurge in crime was due to the aforementioned Transinstitutionalization (Abramson, 1972). Others believe it may have been because of a changing demographic in society (Pinker, 2011), with there being more male teenagers—the so-called baby boomers. Regardless of the reason why this rise in crime was occurring, it was deemed critical to determine how best to manage this growing problem (Pratt et  al., 2010). A  noticeable action taken in response to these concerns was that politicians began to declare a “war on crime” (Pratt et al., 2010).

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This declaration led to the practice of the management of offenders to be questioned and criticized by people on both extremes of the political spectrum (Pratt et al., 2010). These criticisms have been hypothesized to stem from society’s inherent mistrust of the government during this era, due to a variety of extenuating circumstances (e.g., Attica Prison riot, Vietnam War; Cullen & Gendreau, 2000). During this era of mistrust, those leaning left felt that any discretion given to those managing offenders would be applied in an unbalanced manner and could facilitate the opportunity to mistreat offenders (Cullen & Gendreau, 2000; Pratt et al., 2010). Whereas those leaning right believed that the way in which offenders were being managed was too lax (Cullen & Gendreau, 2000). This led those from the conservative end of the political spectrum to call for a new focus on, “harsh punishment, deterrence, and incapacitation,” by implementing measures such as determinate sentencing to reduce the level of discretion held by judges (Pratt et al., 2010, p. 77). Martinson’s 1974 article was published at a time that many people had already begun to view rehabilitation efforts with offenders as a misstep, and his conclusions merely served as scientific evidence that helped people confirm what they already believed (Cullen & Gendreau, 2000). Thus, it was not Martinson’s (1974) article that initiated the burial ceremony for using rehabilitation efforts with offenders, but it “nailed the door shut on rehabilitation’s coffin” (Cullen, 2013, p. 329). The “get tough on crime” movement began to take off, with people requesting that the corrections system begin to be focused on strict discipline (Cullen, 2013). With these changes, the focus on the implementation of rehabilitation with offenders fell to the wayside, while the “tough on crime” movement marched on. However, Martinson’s article also inspired clinicians, researchers, and theoreticians who battled the notion that nothing works and that offenders were beyond rehabilitating. Psychologist, W. L. Marshall (1989), spoke to this point at a forensic conference in the late 1980s essentially saying that if current rehabilitation efforts have failed, it is not the fault of the offenders, rather it is a challenge to the field to figure out how to make rehabilitation effective. He continued, if we had such a fatalistic attitude toward eradicating cancer, we would have stopped all research many years ago.

Cognitive Behavioral Therapy In the 1950s, a limited number of behavioral assessments and treatments for offenders appeared, primarily focused on assessing and modifying deviant sexual arousal in men convicted of sexually offending (e.g., Freund, 1957). Over the next two decades, there was a significant increase in the number of centers using and conducting research using behavioral assessments and interventions for sexual offenders. In the 1970s however the influence of cognitive psychology (e.g., Neisser, 1976) began to penetrate the offender field (Kazdin, 1978). There are reports that Albert Ellis, the father of Rational-Emotive Behavior Therapy, engaged in cognitive therapy with sexual offenders in a prison in New Jersey in the early 1950s. Ellis, it is reported, noticed that the sexual offenders he

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was interviewing had distorted ideas about the world and that with challenges, he was able to correct these irrational ideas. However, Ellis’s approach did not make inroads into the treatment of prisoners until more than two decades later. In the 1960s, Cautela had described several cognitive self-control procedures that were used to change various aspects of human functioning and these procedures were also applied to offending. These procedures included covert sensitization (Cautela, 1967), covert reinforcement (Cautela, 1970), and covert extinction (Cautela, 1971). As their name implies, these procedures were simply variations of overt conditioning techniques. Others focused on strictly cognitive methods. Both Mahoney (1974) and Meichenbaum (1974) described an array of approaches that targeted changes in the cognitive mediating processes (i.e., perceptions, memory, attitudes, beliefs, and other thoughts) that directed behavior. From these influences emerged, what became known as, cognitive behavior therapy. The transition from behaviorism to a cognitively based behavioral approach occurred quite rapidly such that by the end of the 1970s practitioners engaging in pure behavioral strategies were rare. The move to a more cognitive approach however was at least initially more to do with the sentiments of the time (i.e., a shift in the conceptualization of human behavior to cognitively mediated actions rather than resulting from simple stimulus-response connections) than to do with the empirically demonstrated value of cognitive behavioral approaches. These sweeping and rapid changes in intervention approach, not surprisingly, had marked effects on the approach to the treatment of offenders. In addition, treatment programs for offenders began a shift in the late 1970s toward targeting specific issues that were thought to be importantly related to offending, such as empathy for victims, low self-esteem, and the perceptions offenders had of others (Laws & Marshall, 2003).

The Introduction of Relapse Prevention In articles on treatment for offenders that began to appear in the 1960s (e.g., Ellis, 1962) and increased in the 1970s (e.g., Meichenbaum, 1977), new concepts and new vocabularies emerged. Some of these concepts included internal dialog (self-talk), self-reinforcement, covert reinforcement, self-instructional training, modeling in various forms, reframing, or cognitive restructuring, to name just a few. The cognitive behavioral therapy approach called relapse prevention (RP) grew out of this movement. RP was developed in the late 1970s and early 1980s by Alan Marlatt and his colleagues who were clinical researchers working on alcoholism and drug addiction. RP is based on a simple premise, treatments could be applied to reduce or, it was hoped, eliminate alcohol or drug abuse. When treatment ended, most clients were abstinent and the likelihood of desistance was high. However, survival curves over the following 12 months (e.g., Hunt et al., 1971) revealed a relapse rate of greater than 80%. Marlatt and colleagues (1982, 2005) proposed that if a follow-up treatment could be designed to maintain the effects of the treatment, then it was at least

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possible that relapses could be prevented. A typical example of RP would be to determine what sort of situations posed a high risk for the client, then train adequate coping skills to meet that threat to abstinence. If this was successfully accomplished, the effects of the cessation-oriented treatment could be maintained. Further, the more coping skills available in the client’s repertoire, the more likely he was to succeed over the long term (Laws, 2016). At a forensic mental health conference held in 1982, Janice Marques, a student of Alan Marlatt, gave the first description of an adaptation of Marlatt’s (1982) relapse prevention model for use with sexual offenders. Shortly thereafter Marques, in collaboration with Pithers, published what became the authoritative account of the application of a relapse prevention framework to the treatment of sexual offenders (Pithers et al., 1983). Relapse prevention was immediately appealing to practitioners as a strategy to provide their clients with ways of combating risks and temptations they faced once incarceration was over and they were placed back in the community. In 1985, the California Department of Mental Health asked Marques to develop the Sex Offender Treatment and Evaluation Project, which was the largest scale implementation and evaluation of sexual offender treatment ever undertaken (Marques, 1984). This project has produced several reports over the years (Marques, 1988; Marques et al., 1989, 1993, 1994a, 1994b, 2000), which have greatly increased our understanding of the value of relapse prevention and the potential benefits of treatment using this approach. However, Laws et al. (2000) noted that the evidentiary status of relapse prevention with sex offenders is not particularly impressive. Marques’ program reported a modest but statistically insignificant effect in favor of treatment (Marques et  al., 2000). A more conclusive analysis of outcome results (Marques et al., 2005) showed no effect on treatment. Since this Random Control Trial study was considered the gold standard of RP-based treatment of sex offenders, both positive and negative criticism were forthcoming (Marshall & Marshall, 2007, 2008; Seto et al., 2008).

The Risk Need Responsivity Model Although pessimistic ideologies about offender rehabilitation may have been dominant at the time, this did not stop determined researchers and clinicians from continuing to work to develop a better understanding of and best practices for effective offender treatment (Andrews & Bonta, 2010). The research team of Donald Andrews, James Bonta, and Robert Hoge viewed criminal behavior through a social learning lens, espousing the view that criminal behavior, like other behavior, is learned (Andrews & Bonta, 2010). This novel perspective on criminal behavior led Andrews et al. (1990) to publish a set of principles that they believed, and research supported, were vital for offender rehabilitation programs to be effective in reducing recidivism. The principles are encompassed in what is now called the risk-­ needs-­responsivity (RNR) model (Andrews & Bonta, 2006; Andrews et al., 1990).

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Although we note the three core principles in this chapter, it is important to note that as the RNR model has further developed, additional principles have been added (see Andrews & Bonta, 2006). There is no doubt that the RNR model has improved the quality of management and treatment of offenders of all types; for example, juvenile delinquents (Dowden & Andrews, 1999a, 2003), violent offenders (Dowden & Andrews, 2000), and female offenders (Dowden & Andrews, 1999b). Research has shown that adherence to each of these principles has a cumulative effect on reducing recidivism. That is, programs that incorporate all three RNR principles have lower rates of recidivism than programs that adhere to two of the principles, which have lower rates of recidivism than programs that adhere to only one of the principles, which have lower rates of recidivism than program that do not adhere to any of the principles (e.g., Hanson et al., 2009). However, the RNR model has also been criticized for its underlying theoretical assumptions, their implications for practice, lack of scope, and focus on offender deficits (for a comprehensive appraisal of the RNR model, see Ward & Brown, 2004; Ward & Stewart, 2003). Recent approaches to psychotherapy with offenders have been focused, in accordance with current research on effective psychotherapy, on a more strengths-based approach (Marshall et al., 2017).

Positive Psychology/Strength-Based Approaches An understanding of what constitutes a “good life” has been pursued throughout human history and can be traced back to the teachings of prominent philosophers, including Socrates, Plato, and Aristotle (Duckworth et al., 2005). This inquiry has been continued within the field of psychology by various prominent figures, particularly those who examined psychology through a humanistic lens with the words “positive psychology” first being used by Abraham Maslow in a chapter published in 1954 (Resnick et  al., 2001). Despite these efforts in the psychological field, a statement written by Martin Seligman in 1998, while acting as the President of the American Psychological Association, is often cited when discussing the roots of positive psychology. In this 1998 statement, Martin Seligman detailed what he deemed “psychology’s forgotten mission” (Seligman, 1998). In this statement, Seligman (1998) explains that after the Second World War, the field of psychology shifted toward viewing humans as passive participants in life and began to primarily pathologize humans by only examining people’s detriments and injuries, rather than better understanding how humans can thrive. Although Seligman did not consider this perspective ideal, he also recognized that the time spent focusing on pathology did indeed lead to invaluable knowledge that should not be undermined. However, it had left those working in the field with a lacking ability to prevent pathology (Seligman, (1998). Seligman (1998) encouraged those working in the field of psychology to change gears and begin to focus on nurturing strengths rather than just focusing on fixing weaknesses. In doing this, people in the field of psychology

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would be working to embrace a new psychological perspective; what became known as “positive psychology.” Positive psychology can be defined as “the study of the conditions and processes that contribute to the flourishing or optimal functioning of people, groups, and institutions” (Gable & Haidt, 2005, p. 104). Positive psychology has been suggested to have three primary levels or domains (Seligman & Csikszentmihalyi, 2000). First, is the subjective level, which encompasses identifying experiences that individuals deem to be valuable and feeling contentment with all parts of one’s life (i.e., “past, present, future”; Duckworth et  al., 2005; Seligman & Csikszentmihalyi, 2000). Second is the individual level, which is about a person embodying positive personal characteristics (Duckworth et  al., 2005; Seligman & Csikszentmihalyi, 2000). Third, is the group level, which is concerned with the qualities that promote positive group-based environments or institutions (Duckworth et  al., 2005; Seligman & Csikszentmihalyi, 2000). Under this view, positive psychology may seem to wish to examine and view the human experience through rose-colored glasses. However, instead, positive psychology strives toward striking a balance between exploring both the positive and negative aspects of what it means to be human (Lopez et al., 2018). By applying this more comprehensive perspective, positive psychology still recognizes that humans can face challenges but also highlights that these challenges are not permanent, such that people can facilitate the development of a healthier, more fulfilling, and enjoyable life (Seligman, 2002). The core ideas about human nature endorsed by the branch of positive psychology are starkly different from the general negative sentiment often held toward offending populations and primarily endorsed by the tough on crime movement (Wormith et al., 2007). Regardless, because positive psychology is a domain interested in better understanding humans and helping them thrive, offenders were not excluded from this movement. Because of this, models grounded in positive psychology principles have emerged, developed, and been applied to offender rehabilitation efforts. Particularly, the two frameworks, (1) self-determination theory and (2) the good lives model, will be explained, as well as why they are relevant to offender treatment.

Self-Determination Theory Self-Determination Theory (SDT) was conceptualized by Edward Deci and Richard Ryan in the 1970s and officially introduced to the scientific community in the mid-­1980s (Deci & Ryan, 2008a). This theory embodies some of the fundamental theoretical underpinnings of positive psychology, such as viewing humans through a more encouraging lens. More specifically, SDT adopts an organismic perspective (Ryan & Deci, 2000a) that understands organisms as active participants in life, who share an innate propensity to pursue “reproduction, growth, self-regulation, and agency” (Ryan, 1995, pp. 399–400). Like positive psychology, instead of ignoring the more undesirable features humans can display, SDT suggests that when people

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do behave in an inappropriate manner, this is due to the conditions in which they are living, rather than being due to the characteristics of the person themselves (Sheldon & Ryan, 2011). Motivation is described as the “energy, direction, persistence and equifinality- all aspects of activation and intention” and is a fundamental concept encompassed within SDT (Ryan & Deci, 2000a, p. 69). Although motivation is not a novel concept in psychological literature, how SDT conceptualizes it is. Traditionally, emphasis has been placed on the amount of motivation a person exhibits; in comparison, SDT emphasizes different types of motivation (Deci & Ryan, 2008b). Mainly, SDT has differentiated between intrinsic motivation and extrinsic motivation (Deci & Ryan, 2008b). When someone is intrinsically motivated, they are driven to act based on forces originating within themselves, such as finding a task interesting or enjoyable or that it promotes feelings of self-fulfillment (Ryan & Deci, 2000b). In contrast, when someone is extrinsically motivated, they are compelled to act due to external forces, such as a reward or punishment (Ryan & Deci, 2000b). Notably, SDT suggests that within the overarching concept of extrinsic motivation people can operate at four different levels (i.e., external regulation, introjected regulation, identified regulation, and integrated regulation), whereby each level of extrinsically motivated behaviors can differ in regards to how autonomous or self-driven a behavior is (Ryan & Deci, 2000a). Understanding the differentiation between and implications of intrinsic and extrinsic motivation is important, as research suggests that the type of motivation someone endorses can influence how a person performs and how valuable they deem an experience (Ryan & Deci, 2000b). Furthermore, in theory, intrinsically motivated behavior is likely to be more persistent when compared to extrinsically motivated behavior, as often changes or behaviors motivated by extrinsic means will only persist while the extrinsic pressures are present (McMurran, 2003). Since intrinsic motivation is considered ideal, encompassed within SDT are a set of psychological needs that are believed to foster intrinsic motivation within individuals. Particularly, SDT suggests that when the psychological needs of (1) autonomy, (2) competence, and (3) relatedness are present within people’s lives, this can help to foster intrinsic motivation (Ryan & Deci, 2000b; Deci & Ryan, 2012). Autonomy refers to a person’s capacity to make decisions that they feel are in line with their desires and have not been swayed by external influences (Deci & Ryan, 2008b; Ryan & Deci, 2017). Competence refers to a person feeling that they are proficient at tasks or skills that they deem to be valuable and that they have opportunities to demonstrate their capabilities (Ryan & Deci, 2002, 2017). Relatedness refers to a person’s need to feel a sense of connection to other humans (Ryan & Deci, 2017). Thus, according to SDT, self-determined behavior is characterized by being intrinsically motivated and is strengthened and maintained through having the needs of autonomy, competence, and relatedness satisfied (McMurran, 2009). Knowing what can help to foster intrinsic motivation is particularly relevant to offender treatment, because offender treatment is in some way extrinsically motivated, typically by issues of early release (McMurran & Ward, 2004). Therefore, in this model, an objective of offender treatment is to have offenders work to

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internalize and incorporate initially extrinsic into intrinsic motivations (McMurran & Ward, 2004). Because of this, the primary concepts embedded within SDT have been applied to offender treatment. One example of this application is through the use of motivational interviewing (MI) with offenders. MI is a mode of treatment that is often used in the correctional system to help offenders commit to goals and help facilitate change (McMurran, 2009). MI is concerned with facilitating intrinsic motivation in clients (Miller & Rollnick, 1991) and operates under the belief that once a client is committed to change, they are a central feature in facilitating the desired change (Rollnick & Allison, 2004). An example of the application of SDT and MI in the treatment of offenders is a motivational enhancement preparatory program described by Marshall et al. (2008). In this treatment program, techniques informed by both SDI and MI were used in an attempt to enhance motivation for and engagement in subsequent full treatment. Research on the outcomes of this treatment from a psychological and systems point of view demonstrated the program to be highly effective. Pre- and post-testing revealed statistically significant improvements in the participants’ sense of hope for the future and self-efficacy, and positive movement through DiClemente and Prochaska’s (1998) stages of change. Further, although it was not the goal of the program, compared to a matched comparison group, the treated offenders were more likely to be placed in a lower security institution, moved through the system more quickly, and were less likely to reoffend.

The Good Lives Model In the early 2000s another model that endorsed characteristics of positive psychology was introduced to the scientific community (e.g., Ward, 2002a), the Good Lives Model (GLM). The GLM employs a strengths-based approach to offender rehabilitation (Ward, 2002a). The GLM is unique in that it shifted treatment focus away from being solely on risk management and recidivism reduction. In contrast to RNR-based approaches, the GLM works to encourage clients to engage in behaviors that may reduce recidivism by primarily being concerned with promoting behavior that enhances well-being (Ward & Stewart, 2003; Ward et al., 2012). The primary goal of the GLM is to aid offenders in developing particular skills that facilitate their ability to obtain primary goods (Ward, 2002a). In the context of the GLM, primary goods are fundamental human needs including, “states of affairs, states of mind, personal characteristics, activities, or experiences” that a person pursues due to their innate value, and when obtained can enhance a person’s health in a variety of domains (Ward et  al., 2007, p.  90; Ward, 2002a). According to this model, there are 11 primary goods, including, (1) life, (2) knowledge, (3) excellence in play, (4) excellence in work, (5) excellence in agency, (6) inner peace, (7) relatedness, (8) community, (9) spirituality, (10) pleasure, and (11) creativity (Purvis et al., 2011). Primary goods, it is suggested, help the treatment provider to identify what a person believes a good life entails by the way they actualize or prioritize the

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components of the GLM (Ward, 2002b). In addition to primary goods, there are secondary or instrumental goods, which are the strategies and means a person uses to obtain primary goods (Ward, 2002a). Secondary goods can include a person taking part in work opportunities, relationships, and having particular skill sets (e.g., language; Ward, 2002b). Although obtaining primary goods are considered positive additions to a person’s life, the GLM suggests that certain circumstances can arise when attempting to pursue primary goods that can become problematic and lead to criminal behavior. First, criminal behavior can arise when a person employs inappropriate or antisocial means to achieve primary goods (e.g., an adult pursuing a relationship with a child to fulfill the primary good of relatedness; Purvis et al., 2011). Second, criminal behavior can happen when a person does not work toward obtaining a diverse set of primary goods, resulting in primary goods that are too narrow in scope (Ward, 2002a, b). Third, criminal behavior can occur when a person does not work to pursue the full array of primary goods needed to promote a healthy life, making them deficient in coherence (Ward, 2002a, b). Criminal behavior can also ensue when there is an absence of critical internal and external conditions needed to facilitate their ability to pursue and attain primary goods in a prosocial manner, which is considered a problem with capacity (Purvis et al., 2011; Ward, 2002b). Particularly, the GLM differentiates between internal conditions or capacities and external conditions or capacities (Purvis et al., 2011). Internal conditions or capacities are embodied explicitly within an individual, whereas external conditions or capacities are circumstances that are outside of a person (Purvis et al., 2011). Problems with internal and external conditions are considered akin to criminogenic needs, but under the GLM, these are termed as internal or external obstacles (Purvis et al., 2011). Thus, GLM does not do away with the importance of attending to criminogenic needs, and actually believes that they “must be given at least equal weight as goods promotion” (Ward et al., 2012, 98), but instead conceptualizes these risks differently. The GLM also notes that criminal behavior can arise through direct or indirect pathways (Barnao et al., 2016). Direct pathways to offending occur when an offender engages in criminal behavior to pursue a primary good, whereas indirect pathways to offending occur when a person is struggling to obtain a primary good and due to these difficulties, an offense occurs unintentionally (Barnao et al., 2016). The GLM is unique as it recognizes offenders as individual people, who like anyone else, has different life aspirations and proclivities and believes it is important to draw on these individual characteristics in treatment (Barnao et al., 2016). Thus, when applying treatment in an individual offender context, a primary goal of treatment is to determine what a client deems to be a good life (Willis and Ward 2013). This is done by inquiring about a client’s daily life by asking questions about what they need to do and what they enjoy doing, as well as examining what objective or values a client was to fulfill either directly or indirectly when the criminal behavior arose (Willis and Ward 2013). Once it can be determined from these conversations what the client believes is the basis of a good life, the treatment provider and the client then work together to establish secondary goods. These secondary

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goods will help the client obtain primary goods in a prosocial manner and this ultimately informs and acts as a basis to a client’s good lives treatment or intervention plan (Willis and Ward 2013).

Efficacy of a Strengths-Based Approach There have now been a number of Strengths-Based Approaches (SBA) described in the literature on offender treatment, most of which are derived from the Good Lives Model (GLM) but cannot be said to be comprehensive applications of that model. These programs have been applied to adults (Marshall et  al., 2011), to juveniles (Ayland & West, 2006; Bremer, 2006; Gilgun, 2006; O’Callaghan, 2002), and to both adults and juveniles (Beech & Print, 2008). Rather than consider each of these programs in detail, we will describe the primary elements of the Rockwood Treatment Program (Marshall et al., 2011) as an illustrative. The Rockwood program is explicitly described as a SBA and was considered by Willis et al. (2014) in their evaluation of the implementation of the GLM, as one of the few North American programs that had explicit elements of the GLM. In fact, the GLM elements in Rockwood’s program are restricted to an initial presentation of an adaptation of a GLM wheel (i.e., a circle divided into wedges for each of the GLM goods). This is simply meant to encourage clients to recognize their potential for a better life and to make it clear to them that this is one of the goals of treatment. This is important because Mann et  al. (2013) showed that most offenders who refused treatment did so because they believed it would not help them to better their lives. Throughout the rest of the treatment, the Rockwood program addresses all known criminogenic factors and only reintroduces the GLM in the final sessions as a way of identifying posttreatment goals (e.g., leisure pursuits, job and educational upgrading). What primarily determines the strength-based aspects of Rockwood’s program are two features of the intervention: First, from the outset of treatment, and throughout the program, the therapists assist clients in recognizing their strengths. Initially, these strengths are incorporated into a self-esteem enhancement strategy. Next, clients are taught coping skills, which they are encouraged to put into practice between treatment sessions. The second set of features that is essential to an SBA model of treatment that is also in accordance with the responsivity principle is for the therapists to display empirically-based characteristics that facilitate an effective therapeutic alliance (e.g., empathy, warmth, encouragement, respect) and to form of an effective group climate (i.e., cohesive and expressive). Along with these features, a strongly motivational orientation is adopted throughout (see details in Marshall & Marshall, 2017), that is, attention is paid and encouragement is given to the participant to enhance and maintain motivation for change continuously throughout the treatment program. Rockwood’s overall approach is also consistent with, but had its origins much earlier than, the more general Positive Psychology movement.

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The Rockwood program was operated under contract to Correctional Service of Canada (CSC) in a medium security federal prison from 1991 to 2013, graduating 50–66 offenders per year. This has allowed the implementation of a long-term recidivism study of a substantial number of clients. Canada’s comprehensive and complete national database of convictions and reconvictions (Canadian Police Information Centre) provides the opportunity to complete such a study with confidence in the outcome data. The most recent evaluation of our SBA program is embodied in a report by Olver et al. (2020). This research examined the long-term (fixed 8-years at risk) rates of reoffending among three groups of Canadian federally incarcerated sex offenders. Olver et al. compared sexual recidivism rates between a group of 107 untreated sex offenders, with 625 treated by CSC’s Standard Program, and with 579 clients treated in the Rockwood Sex Offenders Strength-based program (Marshall et al., 2011). In this outcome study, we compared the fixed 8-year sexual recidivism outcome for the Rockwood program (N = 381; recidivism rate = 4.2%) with the two matched for risk for recidivism and time at risk groups, namely the untreated group (N = 104; recidivism rate  =  20.2%) and CSC’s regular sex offender treatment program (N = 616; recidivism rate = 10.7%). In this study, the Rockwood treatment program was found to have statistically significantly lower recidivism rates than either of the two other groups, Regional Psychiatric Centre RPS program versus CSC, OR = .37, p