What defense attorneys need to know about "evidence-based practices"

The phrase “evidence-based practices” (EBP) is the catch-phrase of the day throughout our criminal justice systems.  But what exactly are these practices, how do they affect our clients, and what do we as defense attorneys need to know and do about them? 

The paper Evidence-Based Practices and Criminal Defense: Opportunities, Challenges, and Practical Considerations is a must-read for every defense attorney.  It was published in August 2008 by the National Institute of Corrections as part of an eight-paper “Box Set” on reducing recidivism.  As the paper explains, whether you like or dislike the idea of evidence-based practices being applied to your clients, what you cannot do is ignore them, because there is a groundswell national movement afoot supported by the federal government to implement EBP throughout the country.

“Evidence-based practices” in the criminal justice system are defined as “those professional practices that have been shown, through rigorous research, to produce” the “desired outcome” of “reduction of recidivism.”  Because reducing the commission of crime is the overall goal, EBP are primarily focused on: the level of constraint or conditions that will be placed on a defendant after arrest and while awaiting trial at a time when the defendant is presumed to be innocent; determining whether a client’s case should be diverted out of or dismissed from the normal criminal prosecution process; fashioning the sentence to be imposed following a guilty plea or conviction; conditions of confinement during a sentence of incarceration; and setting conditions of release on probation or parole and determining appropriate sanctions for their violation.   An effective defense attorney must understand and address the ways in which EBP can aid or harm their client in each of these stages of the client’s case.

The paper explains that there are eight key elements that together make up EBP, i .e. they affect the likelihood of a person offending and/or recidivating.  These are:

-      Target interventions through the use of “Risk and Needs Assessments”

The theory here is that criminal justice systems have limited resources, and so they should focus the resources they have on identifying those defendants who are at the highest risk of offending and then ensuring that the local community has the resources and services necessary to change the specific factors about those specific defendants so they will be less likely to offend.  In order to identify high risk defendants, EBP use an actuarial risk assessment tool that is intended to measure (1) static factors and (2) dynamic factors of an individual defendant, and then “predict the likelihood of” that defendant offending based on “a statistical comparison of the risk factors of [the] particular offender with the risk factors of offenders in a sample population who are known to have recidivated.”

-     Cognitive behavioral interventions

The most effective techniques for changing behavior are “heavily infused with cognitive behavioral and social learning techniques of modeling such as role playing, reinforcement, and extinction.”  In other words, clients should see appropriate behavior from those around them, be encouraged when they act appropriately, and be discouraged from acting inappropriately.

-     Engage support of natural communities

“[T]he most effective way to encourage positive behavior change in defendants is to engage their community support system in appropriate ways in the criminal justice system.”  “[P]rograms that actively support and recruit” a client's positive community influences are the most likely to reduce recidivism.

-     Responsivity

Treatment services that “match the learning styles, motivations, strengths, personalities, and demographics of the defendants served” are the most effective.

-     Reinforcement approach

All services should “emphasize the defendant’s strengths over deficits, employ positive reinforcement, but still hold the defendant accountable for non-compliance.”

-     Balancing surveillance with treatment

Services should be provided with “the least amount of control necessary to ameliorate the identified risk.”  Too much surveillance and control of a defendant “may have a detrimental impact on recidivism.”

-     Program quality

The quality of the program is critical.  There is serious danger that a program will not reduce recidivism unless it is “delivered with fidelity” to a plan that is based on “tested criteria” and “implemented by properly trained staff.”

-     Outcome measures

There must be “a system of measuring outcomes and providing feedback” so that “successes can be recognized and setbacks can be adjusted.”

The author explains each of these elements in detail, discusses the ways in which an attorney’s professional duties to her client are implicated by each, and suggests the critical means by which a defense attorney can carry out those duties in individual client representation and also as a policymaker in criminal justice.  “Counsel should advocate for the adoption of policies and practices that do not infringe upon the defendant’s constitutional rights.”

Potential benefits to clients 

For pretrial release, EBP support the notion that defendants should remain in their communities whenever they can do so without public safety being compromised.  For pretrial diversion, EBP support the principle that prosecutors should divert low-risk defendants from the criminal justice system, thereby reserving criminal justice system resources for higher risk situations.  For sentencing and violation hearings, EBP risk and needs assessments could provide support for defense mitigation arguments.  EBP “requires that there be appropriate treatment interventions in the jurisdiction to which defendants can be referred,” so there is potential for increased availability of and access to treatment programs.

Potential dangers to clients and concerns for criminal defense attorneys  

A client may not want to get treatment or receive rehabilitative services, while EBP may require the client to undergo treatment and be subject to rehabilitation efforts.  In those cases where a client does desire treatment, while the client “may benefit from the successful completion of a treatment program, it is also true that a defendant who is unsuccessful in a treatment program may face harsher penalties than if he or she had not opted for the treatment program in the first instance.”

Risk and Needs Assessments pose numerous dangers against which attorneys must protect their clients.  “[T]hey may perpetuate racially disparate impacts on minority defendants.”  More than 98% of correctional psychologists use inappropriate tools to assess risk – often using inappropriate clinical assessments rather than appropriate actuarial instruments.  The lawyer must guard against an assessment tool being used to predict an outcome that it is not validated to predict.  Risk assessments should not screen for characteristics that are not shown to correlate to recidivism, so attorneys should advocate for all risk assessment tools to be “normed and validated on the actual defendant population in which recidivism is sought to be predicted.”  Assessments must be administered by trained staff, else validity “is significantly compromised,” and lawyers must guard against the excessive use of override mechanisms by the assessor, where the assessor substitutes his own professional judgment for the actuarial score of the tool.  Finally, the use of a Risk and Needs Assessment at all implicates the right to counsel, the presumption of innocence, and the privilege against self-incrimination. 

The factors that are considered by various risk assessment tools are of two types, and different tools measure one or the other or both in varying degrees.  Static risk factors are those that cannot be changed, “such as race, age, prior criminal history, offense characteristics, age of first conviction.”  These are the type of factors that can be determined from publicly available information without interviewing the client.  But because they are unchangeable factors about a client, they are not amenable to treatment or rehabilitation.  In other words, they may predict the risk of a client offending and thus militate toward greater restrictions being place on a client, but they cannot identify the needs a client has which can be addressed through treatment or rehabilitation.  Dynamic risk factors are those that are changeable – things like “antisocial thinking, low-self control, or substance abuse” (the very fact that these tools use terms like antisocial should be of concern to defense attorneys) – and can only be determined by interviewing the client.  These are the factors that indicate where a client’s needs are and that show the types of help from which a client might benefit, but in order to obtain them the client will have “to undergo an interview in which he or she will be called upon to incriminate him or herself, if not by disclosing facts of the charged offense, by disclosing personal information that may have a detrimental impact on the dispositional outcome of the criminal case.”  “[D]efense counsel should be prepared to argue that compelling a defendant to undergo a dynamic risk assessment prior to conviction implicates constitutional protections against self-incrimination and the presumption of innocence.”

Defense attorneys must protect against “’net-widening.  This term describes the phenomenon seen in diversionary programs in which criminal justice decision-makers divert a defendant into the criminal justice system . . . to enable the defendant to benefit from an available program.”  Clients should not have to be arrested or prosecuted or convicted in order to avail themselves of needed treatment and community resources.   “Defendants who would otherwise fall outside the ambit of the criminal justice system must not be drawn into the system because of the development of effective criminal justice interventions.”

“[D]efense counsel must be prepared to advocate for full protections of a client’s due process rights if the client so desires.”  This sometimes means that counsel must fight against the clinical social science maxim “that criminal sanctions are most effective at deterring future non-compliance when imposed in a swift and certain manner,” giving rise to the common practices in expedited drug court violation hearings and problem-solving courts.  Similarly, counsel must carry out a client’s legal right to pursue all defenses available to her, even in the face of the treatment setting that demands a client to take responsibility for her conduct.

Defense counsel’s role as an EBP policy-maker

Here, we quote an excerpt directly from the paper:

“[O]ne issue that defense counsel must be prepared to address is the reality that the duties and obligations of defense counsel as policy-maker are often in conflict with the goals of other criminal justice stakeholders in an EBP implementation initiative.  It is true that in policy-making, counsel is not bound by a duty to a particular client and can relax her adversarial posture.  With this said, the ethical and legal duties to clients must continue to govern the conduct of defense counsel as policy-maker if defense counsel is going to be an effective voice for defendants in the policy-making process. . . .

“The first ethical principle worth bringing to the awareness of other criminal justice members because it is core to criminal defense is the duty to provide zealous advocacy for one’s client. . . .

“A companion standard worth sharing with other stakeholders states that it is defense counsel’s duty to “develop a plan which seeks to achieve the least restrictive and burdensome sentencing alternative that is most acceptable to the client,” again making clear that the client’s role is to define the most favorable case outcome and defense counsel’s role is to zealously advocate for that result. . . .

“There is nothing inherently incompatible between defense counsel collaborating on policy-making efforts while still remaining vigilant to the duties and obligations of defense counsel. The key is for stakeholders to recognize and accept that there is a natural difference between the goals of ethical and legal representation of clients and the goals of EBP.  With this said, there is nothing that should dissuade the parties from maintaining a focus on the common ground between them: the integrity and continued improvement of the system.”

Evidence-based practices may be coming soon to a criminal justice system near you

In June 2008, a cooperative program called the Evidence-Based Decision Making Initiative was begun.  The initiative has three phases.  Phase I produced the document A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems.  The National Institute of Corrections is partnering with DOJ’s Office of Justice Programs in Phase II, where they have selected seven jurisdictions that will serve as pilot sites to implement the Framework: Grant County, Indiana; Mesa County, Colorado; Milwaukee County, Wisconsin; Ramsey County, Minnesota; Eau Claire County, Wisconsin; Charlottesville, Virginia; and Yamhill County, Oregon.  The kickoff workshop for these “seed sites” will be held October 5-6, 2010, after which they will receive technical assistance for approximately one year.  Then, in Phase III, they will implement “full pilot testing and rigorous impact evaluation.”  You can learn more about the Initiative at the NIC website.  And you can read the papers on evidence-based practices and theory as applied in other components of the criminal justice system, to learn how it is all intended to fit together:

Forewarned is forearmed, so educate yourself about evidence-based practices, how you can use them for the benefit of your clients, and how you can protect your clients from any detrimental effects.

Author/Organization: Phyllis E. Mann
Publication Date: 09/22/10