Evidence-Based Sentencing

by

James C. Oleson

• LAST MODIFIED: 21 April 2021
• DOI: 10.1093/obo/9780195396607-0296

Introduction

The evidence-based practice (EBP) movement can be traced to a 1992 article in the Journal of the American Medical Association, although decision-making with empirical evidence (rather than tradition, anecdote, or intuition) is obviously much older. Neverthless, for the last twenty-five years, EBP has played a pivotal role in criminal justice, particularly within community corrections. While the prediction of recidivism in parole or probation decisions has attracted relatively little attention, the use of risk measures by sentencing judges is controversial. This might be because sentencing typically involves both backward-looking decisions, related to the blameworthiness of the crime, as well as forward-looking decisions, about the offender’s prospective risk of recidivism. Evidence-based sentencing quantifies the predictive aspects of decision-making by incorporating an assessment of risk factors (which increase recidivism risk), protective factors (which reduce recidivism risk), criminogenic needs (impairments that, if addressed, will reduce recidivism risk), the measurement of recidivism risk, and the identification of optimal recidivism-reducing sentencing interventions. Proponents for evidence-based sentencing claim that it can allow judges to “sentence smarter” by using data to distinguish high-risk offenders (who might be imprisoned to mitigate their recidivism risk) from low-risk offenders (who might be released into the community with relatively little danger). This, proponents suggest, can reduce unnecessary incarceration, decrease costs, and enhance community safety. Critics, however, note that risk assessment typically looks beyond criminal conduct, incorporating demographic and socioeconomic variables. Even if a risk factor is facially neutral (e.g., criminal history), it might operate as a proxy for a constitutionally protected category (e.g., race). The same objectionable variables are used widely in presentence reports, but their incorporation into an actuarial risk score has greater potential to obfuscate facts and reify underlying disparities. The evidence-based sentencing literature is dynamic and rapidly evolving, but this bibliography identifies sources that might prove useful. It first outlines the theoretical foundations of traditional (non-evidence-based) sentencing, identifying resources and overviews. It then identifies sources related to decision-making and prediction, risk assessment logic, criminogenic needs, and responsivity. The bibliography then describes and defends evidence-based sentencing, and identifies works on sentencing variables and risk assessment instruments. It then relates evidence-based sentencing to big data and identifies data issues. Several works on constitutional problems are listed, the proxies problem is described, and sources on philosophical issues are described. The bibliography concludes with a description of validation research, the politics of evidence-based sentencing, and the identification of several current initiatives.

General Sentencing Resources

The literature on traditional sentencing is immense, even when restricted to the United States, but numerous professional associations and nongovernmental organizations (NGOs) have produced materials that can help to understand sentencing processes in both state and federal jurisdictions. The American Bar Association, for example, makes freely available its seminal ABA Standards for Criminal Justice: Sentencing. Moreover, American Bar Association 2004 outlines a number of recommendations—including several related to sentencing—to improve the criminal justice system. The Sentencing Project is another indispensable source of information. Although it has not entered the debate on evidence-based sentencing, its annual fact sheets and its materials on sentencing policy, incarceration, racial disparity, and other topics are key to understanding the wider contexts of sentencing. Additionally, two government resources and one academic journal stand as especially valuable sources. The Washington State Institute for Public Policy is a nonpartisan research unit known for its practical assessments of policy initiatives; Lee, et al. 2015 provides a cost-benefit analysis that can underpin evidence-based sentencing policies. The National Institute of Corrections, located within the US Department of Justice, maintains a library of materials on evidence-based practices in criminal justice (including sentencing and evidence-based decision-making). Lastly, the Federal Sentencing Reporter is a journal of use to academics and practitioners, publishing five issues per year, with terrific content related to sentencing.

• American Bar Association. 1994. ABA standards for criminal justice: Sentencing. 3d ed. Washington, DC: American Bar Association.

  A seminal formulation of recommended standards for US jurisdictions. The standards consist of nine parts: scope of chapter and sentencing authority, policy and legislation, types of sentences, implementation of policy (“the intermediate function”), procedures, discretion, change of sentence, appellate review, and disputed terms of total confinement. The resource is useful for scholars, including advanced students with legal foundations, as well as policymakers, jurists, and lawyers.

• American Bar Association, Justice Kennedy Commission. 2004. Reports with recommendations to the ABA House of Delegates. Washington, DC: American Bar Association.

  A response to Justice Anthony Kennedy’s 2003 ABA address, in which he concluded, “Our resources are misspent, our punishments too severe, our sentences too long.” It addresses four broad topics: punishment, incarceration, and sentencing; racial and ethnic disparity in criminal justice; clemency, sentence reduction, and restoration of rights; and prison conditions and prison reentry. This critical diagnosis of criminal justice remains germane to current discussions of sentencing and criminal justice.

• Federal Sentencing Reporter. 1988–.

  For more than thirty years, the Federal Sentencing Reporter has published work at the intersection of sentencing law, legal policy, and criminal justice reform. As a general resource on US sentencing, it is exceptional. The April 2015 special issue, edited by Sonja Starr, was titled “The Risk Assessment Era: An Overdue Debate,” and contained ten items directly relevant to evidence-based sentencing.

• Lee, S., S. Aos, and A. Pennucci. 2015. What works and what does not? Benefit-cost findings from WSIPP. Doc. No. 15-02-4101. Olympia: Washington State Institute for Public Policy.

  The nonpartisan Washington State Institute for Public Policy produces many reports with relevance to evidence-based sentencing. What Works and What Does Not? calculates the reduction in recidivism for a range of justice initiatives, assesses the cost of their implementation, and provides a meticulous cost-benefit analysis. An accessible read for students, but especially valuable for scholars and policymakers.

• National Institute of Corrections. Evidence-based Practice (EBP).

  Although its focus is on corrections, not sentencing, the NIC’s evidence-based practices page contains a wealth of resources for persons interested in evidence-based sentencing. In addition to materials related to the eight principles of EBP (assess risk/needs, enhance motivation to change, target interventions, skill train with directed practice, increase positive reinforcements, engage ongoing community support, measure relevant practices, and measurement feedback), there are materials on policy, implementation, and resources.

• The Sentencing Project.

  The Sentencing Project website contains a wealth of current news, publications, and stories on sentencing and sentencing-related issues, including collateral consequences, drug policy, felony disenfranchisement, incarceration, juvenile justice, racial disparity, sentencing policy, and women. There are fact sheets and state-by-state data. The website should be an initial port of call for any students attempting to understand US sentencing, and is an indispensable resource for scholars and practitioners working within the field.