We Need More Evidence in the Courtroom

Julia Laskorunsky
Julia Laskorunsky

We need more evidence in the courtroom. Not the kind of evidence used to convict an offender, but the kind of social science evidence-based practices popular in other areas of the criminal justice system. Criminologists have developed smart policing and evidence-based corrections and community supervision. By most accounts, embracing evidence–based policies in these areas has brought about positive results for state agencies, such as improvements in community safety and reduced recidivism.  But criminal courts have received less scientific scrutiny from the researcher community, and consequently, we see far less evidence-based practices in use there today. For example, we know little about what type of sentences are most effective at preventing recidivism and for which offenders. A review of limited research on the subject points to a criminogenic, or at best a null, effect of incarceration. The relationship between prison sentence length and post-release reoffending is even less clear. Prison use and sentence lengths differs dramatically between states. In the United States, the cost of housing an inmate for one year in prison averages $33,849 – yet, other than incapacitation, there is no proof that offenders receive any rehabilitative or deterrent benefits from their stay. Similarly, in an effort to reduce jail populations states have looked to identify defendants who would do well on pre-trial release – that is offenders who will stay crime-free and show back up at the trial. Yet, these reform efforts have surprisingly few peer-reviewed studies to base decisions on. Limited research on this topic points to actuarial risk assessment as one promising tool. Judges, practitioners, and policy makers would benefit from having more access to digestible social science knowledge about “what works” in the courtroom.

Two practices that are considered “evidence-based” in the criminal court system are the use of adult drug courts and mental health courts. While implementation differs across locations, both problem-solving courts aim to provide specialized solutions not available in the regular court system for drug-involved offenders or those who have mental health issues. Drug courts generally focus on non-violent offenders who have either been charged with a drug offense or who have substance use issues related to their non-violent offense. The goal is on reducing recidivism and drug dependency through close monitoring, accountability, and treatment and education services. Multiple meta-analyses have shown that drug-court participants experience small, but significant, reductions in recidivism compared to traditional criminal court processing and that drug courts present cost saving benefits to taxpayers. Similarly, mental health courts divert mentally-ill offenders away from traditional criminal processing. Participants are generally offered individualized treatment plans, linked to community-based treatment services, and participate in ongoing, regular court monitoring. Multiple meta-analyses show a small to moderate reduction in recidivism for mental health court participants compared to traditional processing, as well as a positive economic value for taxpayers.

One other practice has received considerable scrutiny from the researcher community – the use of actuarial risk assessments to assist judges in making pre-trial and sentencing decisions. Actuarial risk assessments provide the courts information about an offender’s risk of future offending and failure-to-appear risk. The goal behind evidence-based sentencing and pre-trail detention revolves around maximizing public safety and justice system resources, while minimizing offender risk. If risk assessment instruments can help identify offenders who can safely serve their sentence in the community, reducing the use of incarceration would lead to better offender outcomes and government cost savings. The Virginia Criminal Sentencing Commission adopted a statewide sentencing risk assessment for non-violent offenders in 2002 after a positive evaluation of its pilot sites. The Pennsylvania Commission on Sentencing has also delegated a considerable amount of resources to developing a risk assessment instrument - with plans to evaluate outcomes post implementation. Likewise, identifying offender who are good candidates for pre-trial release helps reduce reliance on jail detention and monetary bail. The use of a pre-trail risk assessment has shown promising outcomes at the state and Federal level. Given the local interest in these tools, this is an area of research that could benefit from high-quality evaluation - particularly pre- and post- implementation analysis. Critical scholarship about the use risk assessment in sentencing and the risks of blindly promoting evidence-based corrections, are all steps in the right direction.

The push for smarter criminal justice decision-making reflects a growing reliance on social science analysis to improve the use of scarce correctional resources. States and municipalities have been dealing with the ramifications of mass incarceration for the past four decades. It is unsustainable to continue incarcerating millions of people for long sentences, with most of these sentences decided with little consideration of offender performance. The answer, however, is not to simply place more individuals on probation. Rather, legal professionals and the research community should work together to identify the most effective use of correctional dollars that have the greatest potential for improving offender outcomes. Pre-trail and sentencing risk assessments alone will not improve the rehabilitative potential of criminal punishment, but without taking a harder look at courtroom practices, it is impossible to develop more effective, ethical, and humane punishments.