Alternative Sanctions Research Articles

Cognitive Biases and Procedural Rules: Enhancing the Use of Alternative Sanctions

The practice of short-term imprisonment has been long criticised due to its criminogenic effect and costs. To minimise its use, many countries introduced alternative sanctions such as community service or home confinement with electronic monitoring. Unfortunately, in practice those sanctions are often imposed on non-prison bound offenders, a phenomenon termed “the net-widening problem”. Consequently, instead of reducing the prison population, the alternative sanctions substitute lighter punishments such as fine or conditional imprisonment. The discretion power whether to impose a prison sentence or its alternatives lies in the hands of the courts. Therefore, the way to enhance the use of alternative sanctions as a substitute to short-term imprisonment is to change the behaviour of judges. This paper adopts the unique approach of behavioural law and economics in order to discuss procedural rules that have the potential to achieve the above-mentioned goal. Each of the analysed procedural rules explains the cognitive biases, which judges are subject to when choosing between a prison sentence and an alternative punishment. Following that, this paper analyses how the suggested procedural rules overcome or use those biases in order to promote the use of alternative sanctions.

DUI Countermeasures: Differences between court jail sentences and jail time actually served and available alternative sanctions in select California counties

Introduction and methodsJail sentences and actual jail times were compared for 2006 California driving under the influence of alcohol or drugs (DUI) offenders from select counties using matched data from Department of Motor Vehicles (DMV), court, and sheriff databases. Additionally, alternative sanctions to jail were investigated. ResultsJail sentences reported by courts were consistently longer than actual jail time. Actual jail time percentages across participating counties ranged from 0 to 67% for 1st DUI offenders, 0 to 20% for 2nd offenders, and 0 to 66% for 3rd+ offenders. Median percentages of jail sentences actually served across participating counties were 0%, 7%, and 22% for 1st, 2nd, and 3rd+ DUI offenders, respectively. Alternative sentences were used more often for 1st DUI offenders and less so for 2nd and 3rd+ offenders. ConclusionsCaution is warranted regarding conclusions about jail ineffectiveness as a DUI deterrent from previous studies given that most were based on jail sentence or statutory lengths, which appear to overestimate actual jail times.

CIVIL LITIGATION NEGLIGENCE AND THE MALAYSIAN ADVOCATE

Civil litigation negligence now stands on a surer footingfollowing cases from Canada, England and elsewhere which lay emphasis on theadversarial system rather than the structure of the profession, and immunityhas now been almost completely abolished by judicial decisions. In Malaysia,the basis of legal professional liability is expected to be re-aligned to beconsistent with the other common law countries that have abolished immunity.The questions that necessitate consideration are therefore acts that wouldconstitute negligence and those that are excusable, the relevant defences, and,of course, the alternative sanctions to civil litigation for this type ofnegligence. The fused nature of the profession in Malaysia, perceived to bemore burdensome to its members, raises the question of the appropriate standardof the duty of skill and care.(For the purposes of this article an ‘advocate’ refers to theMalaysian (and Singaporean) lawyer, who as a member of a ‘true fused’ profession,engages in litigation or ‘contentious business’ as defined in s. 3 of the LegalProfession Act 1976.) {The writer is of the firm view that criminal casesshould be considered separately from civil cases because of the difference inthe law of procedure relating to the preparation of a case for presentation incourt and the public policy considerations peculiar to each type of case asseen in the approach taken by the House of Lords in Arthur J.S. Hall vSimons in which separate judgments were delivered for each type of case.And in Rees v Sinclair [1974] 1 NZLR 180, a civil case, in whichthe New Zealand Court of Appeal did not consider the position in criminalcases.}

“Prison Will Either Make Ya or Break Ya”: Punishment, Deterrence, and the Criminal Lifestyle

Although a prison sentence is often considered to be among the worst punishments that the state can provide, previous research indicates that offenders do not necessarily share this view. Some inmates, for example, adjust to prison life with relative ease, do not view their time in prison as severe punishment, and may even prefer prison to alternative sanctions such as boot camp or probation. To help explain such views, we point to the utility of a “criminal lifestyle” perspective. We argue that offenders who are committed to the values of the criminal subculture tend to view prison in a unique way. For various reasons, such offenders are less likely than others to view imprisonment as difficult or severe and they are less likely to be deterred by prison. Drawing on data from a large inmate survey, we find initial empirical support for these arguments. Implications for deterrence and future research are discussed.

Getting Inside the Judges' Mind - Empirical Evidence on Conduct-Based Cost Shifting in Civil Procedure

Several jurisdictions allow courts to allocate the litigation costs to the party responsible for unnecessary costs or undue delays. Previous research, conducted in the U.S., shows how frequently conduct-based cost shifting is sought and ordered. Additionally, it found that judges frequently disagree over what actions constitute a violation of the rule, that judges did not comply with the rule, that judges inaccurately evaluated other judges’ willingness to impose sanctions, and that judges neglected alternative sanctions that could be imposed. This study analyzes and compares how often conduct-based cost shifting is sought and awarded under Dutch law and U.S. law. Additionally, it is examined whether Dutch judges have similar concerns as their U.S. counterparts in case of conduct-based cost shifting. The results of this study suggest similar cost-shifting activity in The Netherlands compared to the, perceivably, more litigious U.S. The findings further show that legal certainty, satellite litigation, and difficulties in determining what qualifies as improper conduct cause judges to exercise restraint when shifting litigation costs to litigants who displayed disruptive behavior. Judges reported preferring other ways of responding, suggesting conduct-based cost shifting is not the preferred way to reduce or prevent disruptive behavior. This paper discusses the implications of the findings for regulation on conduct-based cost shifting.

Probation Measures and Alternative Sanctions in Europe: From the 1964 Convention to the 2008 Framework Decision

In 2008, the Council of the EU adopted the Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, subsequently amended by the Framework Decision 2009/299/JHA of 26 February 2009. It replaces the 1964 Council of Europe Convention on the supervision of Conditionally Sentenced or Conditionally Released Offenders between Member States. This article observes how the new instrument will be more effective than the Convention on the supervision: a more efficient procedure would better achieve the objective of rehabilitation and should reduce discrimination in the granting of conditional measures to foreign sentenced persons. Furthermore, the article identifies some other interests of sentenced persons in the procedure and examines whether the Framework Decision takes these interests into account.

A Dark Figure of Corrections

Given recent fiscal issues and the continual struggle to reduce the nation’s overuse of incarceration, a renewed focus has been placed on the efforts of community corrections and alternative sanctions. Halfway houses represent a common and, until recently, infrequently evaluated intervention for inmates returning to the community. Although the model has advanced over the years, often providing an array of treatments and services, scant research has examined the impact such programs have on participants’ success in the community. These and other interventions like them, although providing a needed service, create additional avenues for failure and recidivism. However, failures that result in a return to prison are rarely disentangled, representing a “dark figure” of corrections. The current study explores failure types, prevalence, and competing risk predictors for a sample ( N = 580) of halfway house participants. Findings both explore and describe the added and varying risks associated with participation community corrections interventions.

Assessing the Differential Impact of Contextual Factors on School Suspension for Black and White Students

IntroductionThe purpose of the current study is to examine the differential impact of contextual factors for school suspension on Black and White youth. Although, school suspension is the direct result of decisions made at the school level, understanding contextual factors that influence the process would have implications for policies and programs for students who are suspended and who are atrisk for suspension. More specifically, this study examines a comprehensive list of factors simultaneously. Previous studies have examined limited factors to include neighborhood and school factors, which do not offer a comprehensive understanding of the problem of school suspension and race. In addition, limitations on juvenile research are often due to the data available, many studies use small data sets that are not nationally representative of the population. This present study uses nationally representative data, which reduces issues related to data quality.Literature ReviewBrown v. Board of Education of Topeka Kansas (1954) started the process of equalizing education opportunities for all people in the United States regardless of race. Since then, there have been increased legislation aimed at expanding opportunities for others including students with disabilities. During the George W. Bush presidency, No Child Left Behind became the governing legislation regarding equality in the classroom, especially for poor children. However, research shows that the education system in the United States continues to struggle with the notion of education equality regarding race and other socioeconomic factors. The issue of equality is prevalent in the statistics regarding dropouts and school discipline with respect to race and other socioeconomic factors (Costenbader & Markson, 1998; Gregory, 1997; McCarthy & Dean, 1987; McFadden et al., 1992; Skiba et al., 2000; Skiba, Peterson, & Williams, 1997).The Children's Defense Fund of 1975 was one of the first studies that showed that Blacks were suspended at higher rates than their White peers (Washington Research Project, 1975). Since that time, the vast majorities of studies are consistent and reveal the same disparity (Costenbader & Markson, 1998; Gregory, 1997; McCarthy & Dean, 1987; Raffaele Mendez et al., 2002; Morrison et al., 2001). Research suggests the frequency by which Blacks and Whites are suspended from school is generally high overall. Blacks, not including any other minorities, make up 32% of all suspended students. Moreover, Blacks are suspended at a rate that is 2.3 times higher than White American students (Brooks, Schiraldi, & Ziedenberg, 2000). Research also suggests that Black students are less likely than White students to receive less punitive alternative sanctions once they are referred for disciplinary action (McFadden et al., 1992).One explanation for the disproportionate suspension rates is due to the socioeconomic differences among Blacks and White American students. However, most of the data do not support this hypothesis. The disproportionate representation of minorities in school suspension is the same after controlling for socioeconomic status (Skiba et al., 2000; Wu et al., 1982). Another hypothesis is that Black students and minorities do engage in more severe and violent behaviors. However, research that controls for the severity and violence of the offenses committed by students still show disproportionate treatment of Black students (Advancement Project/Civil Rights Project, 2000; McCarthy & Dean 1987; Skiba, Peterson, & Williams, 1997; Townsend, 2000).Individual Level Factors and School SuspensionPeer delinquency. Delinquent peer association has always been associated with poor academic performance. The characteristics of friends influence the motivation and attitudes of adolescents (Bemdt, 1999). Associating with juveniles who have problems in school may discourage school engagement. …

Putting Parolees Back in Prison

As the prison population in the United States has ballooned over the past 30 years, people entering prison for parole revocation have come to constitute an increasingly large percentage of all prison admissions (35% in 2006). As a result, researchers have begun to turn their attention toward this criminal justice decision-making point to examine the factors that relate to why an individual is returned to prison. Notably, this developing body of research focuses almost entirely on one decision maker: the parole board who ultimately determines whether or not an individual on parole stays in the community, receives alternative sanctions, or returns to prison. Notably, this ignores the fact that parole revocation is a process beginning with the parolee who commits a violation behavior, turning next to the parole officer who uses his or her discretionary power to determine whether or not to file a complaint, and ending with the decision of the parole board. In this article, we examine each stage of this revocation process using structured qualitative interviews with 35 parole officers as well as quantitative data on 300 individuals on parole in Colorado between 2006 and 2007, who we followed for an 18-month period. We find that parolees with mental health needs commit significantly more technical violations; that race, gender, age, and measures of parolee effort affect whether a parole officer files a complaint; and that the decision made by the parole board is either largely random or driven by variables unspecified in our models.

CIVIL LITIGATION NEGLIGENCE AND THE MALAYSIAN ADVOCATE

Civil litigation negligence now stands on a surer footing following cases from Canada, England and elsewhere which lay emphasis on the adversarial system rather than the structure of the profession, and immunity has now been almost completely abolished by judicial decisions. In Malaysia, the basis of legal professional liability is expected to be re-aligned to be consistent with the other common law countries that have abolished immunity. The questions that necessitate consideration are therefore acts that would constitute negligence and those that are excusable, the relevant defences, and, of course, the alternative sanctions to civil litigation for this type of negligence. The fused nature of the profession in Malaysia, perceived to be more burdensome to its members, raises the question of the appropriate standard of the duty of skill and care.(For the purposes of this article an ‘advocate’ refers to the Malaysian (and Singaporean) lawyer, who as a member of a ‘true fused’ profession, engages in litigation or ‘contentious business’ as defined in s. 3 of the Legal Profession Act 1976.) {The writer is of the firm view that criminal cases should be considered separately from civil cases because of the difference in the law of procedure relating to the preparation of a case for presentation in court and the public policy considerations peculiar to each type of case as seen in the approach taken by the House of Lords in Arthur J.S. Hall v Simons in which separate judgments were delivered for each type of case. And in Rees v Sinclair [1974] 1 NZLR 180, a civil case, in which the New Zealand Court of Appeal did not consider the position in criminal cases.}

Sentencing white-collar criminals: when is shaming viable?

When does shaming work as an alternative to incarceration and fines in sentencing white-collar criminals? In the light of recent economic downturn and highly publicised instances of white-collar crime, public opinion has demanded harsher sentences for white-collar criminals. In order to appease this demand, as well as consider the pressing problem of prison overpopulation, alternative sanctions, such as formal shaming, have been increasingly studied. Through examination of the costs and consequences of incarceration and shaming, this article will explain that since the costs of shaming sanctions are largely fixed, shaming sanctions are most viable when used in conjunction with alternative sanctions so that courts can impose sanction bundles of costs commensurate with the level of offense committed by an offender.

THE POWER OF DIVERSION: INTERMEDIATE SANCTIONS AND SENTENCING DISPARITY UNDER PRESUMPTIVE GUIDELINES*

Fiscal constraints and shifting political climates in corrections have recently led to a renewed interest in intermediate punishments. Despite their growing prevalence, though, relatively little empirical research has examined the judicial use of alternative sanctions as a sentencing option. By using 3 years of data from the Pennsylvania Commission on Sentencing (PCS), this study investigates little‐researched questions regarding the use of sentencing alternatives among offenders and across contexts. Results indicate that male and minority offenders are the least likely to receive intermediate sanctions, both as a diversionary jail or prison sentence and as a substitute for probation. The probability of receiving an intermediate sanction also varies significantly across judges and court contexts and is related to county‐level funding for these programs, among other factors. Findings are discussed as they relate to contemporary theoretical perspectives on the perceived suitability of intermediate punishments and on the unique role that offender agency plays in the sentencing of these cases. Directions for future research are discussed.

Contemporary Models for Convict Resocialisation

The purpose of this article is to analyse the peculiarities of resocialising convicts sentenced to imprisonment, alternative sanctions or community corrections, to identify the model of resocialisation developing in Lithuania, to consider its advantages and disadvantages and to assess the potential within local communities for participation in the re-entry process. The article analyses the attitudes of public officials, NGO experts, local community representatives and individuals with experience of imprisonment and resocialisation. The qualitative research revealed that the attitude of public officials tends to fit with the main principles of risk models, while NGO experts tend to emphasise the importance of individual welfare and social ties. The experience of convicts indicates that the involvement of NGOs in the process of re-integration has a meaningful impact on offenders’ succesful re-entry. Interviews with local community representatives showed that they are not yet ready to participate in the resocialisation process.

Step by steppe - progressing probation in Russia

This article seeks to trace the development of probation services in the Russian Federation in recent years. It illustrates those developments by reference to two contrasting projects involving collaboration between Russian and European Probation Services. The first is a pilot training project for probation officers organized by a Human Rights NGO in Russia, whilst the second is an EU led policy and practice initiative with the Russian Ministry of Justice to strengthen alternative sanctions and to introduce electronic monitoring on a pilot basis.

An Analysis of Prisoner Reentry and Parole Risk Using COMPAS and Traditional Criminal History Measures

The California Department of Corrections and Rehabilitation has adopted Correctional Offender Management and Profiling Alternative Sanctions (COMPAS), an actuarial risk- and needs-assessment instrument, as part of its reentry supervision and parole planning procedure. A large-scale 3-year prospective study was conducted to assess the instrument with regard to how well it predicted whether a parolee would be rearrested for (a) any crime and (b) a violent offense. This study followed, for up to 2 years, a total of 91,334 parolees who had been assessed with COMPAS prior to reentry into the community. The instrument achieved an acceptable level of predictive validity in general rearrests with an area under the curve value of 0.70, but its predictive power for subsequent violent offenses fell short of this conventional threshold. Moreover, a parsimonious model using four known risk factors from existing official records (i.e., gender, age, age of first arrest, and the number of prior arrests) performed just as well in predicting subsequent arrests. Findings from this study illustrate the challenges in applying group-based attributes to predict individual criminal behavior and suggest that, although COMPAS has other attractive features such as case management capability, existing official records may offer a lower cost alternative for assessing the risk of reoffending for community reentry purposes.

Family Honor Killings: Between Custom and State Law

In this paper I will review some attitudes and perspectives regarding family honor killings, mainly in the Arab/Bedouin population in Israel, Sinai, and the Middle East in general. What is the difference between sharaf and 'ird? What deviant sexual behavior is considered a capital offense? How widespread is the use of honor killings, and what alternative sanctions are employed? Under which circumstances are compassion and mercy exercised? What kinds of solutions exist for such cases? The research also analyzes the conflicts that exist between custom and state law vis-a-vis family honor killings, and examines how court systems in Israel and elsewhere relate to murders committed to save family honor. The research illuminates the role of sheiks and the police in defusing tensions and saving lives, and explores how Arab leaders in Israel view and address honor killings.

Punishment and Crime in Scandinavia, 1750–2008

Denmark, Finland, Norway, and Sweden have collected criminal justice data since at least the first half of the nineteenth century. These data can be used to describe basic trends in criminal justice interventions as regards violent and property offenses. They can also be used to screen the potential effects of criminal justice interventions on crime compared with more basic structural factors such as urbanization, industrialization, migration, and control of substance use. The marginal effects of changes in criminal sanctions appear to be negligible for the development of recorded crime. These changes include use and abolition of the death penalty, the gradual replacement of imprisonment with alternative sanctions, and the shifting use of fines. The influence of urbanization and industrialization appears to be insignificant, but measures to control alcohol use have had a great effect on violence, as have changes in the opportunity structure on theft. Viewed over the long term, criminal justice interventions during the twentieth century were inefficient in controlling the development of crime and criminals in Scandinavia.

First-time DWI offenders are at risk of recidivating regardless of sanctions imposed

Objective Research demonstrates that punitive approaches to DWI employed by the judiciary have failed to significantly reduce recidivism. However, little is known about the deterrent effects of administrative and diversion sanctions. We examine whether such sanctions deter first-time DWI offenders. Methods We grouped combinations of administrative, judicial, and diversion sanctions routinely employed in the state of Maryland for processing drivers arrested for DWI into one of eight mutually exclusive disposition sequences. We applied this classification to Maryland drivers who had been licensed in the state and had precisely one DWI on their record prior to January 1, 1999. We then used a proportional hazards model to estimate the probability of remaining free of a new DWI during a 6-year period (January 1, 1999 – December 31, 2004) as a function of the disposition of the index violation, and of selected factors that could affect that probability. Results Drivers with a prior DWI were at relatively high risk of recidivating regardless of how they were sanctioned. Those who received administrative and alternative sanctions had a risk of recidivating similar to that of drivers who were convicted. Conclusion All dispositions sequences, not just convictions, indicate that first-time DWI offenders are at high risk of recidivating.

A Preliminary Examination of Offender Needs Assessment: Are All Those Questions Really Necessary?

Criminologists generally agree that offender recidivism can be reduced by addressing the criminogenic needs of this population. Two prominent assessments of offender risks and needs are the Level of Service Inventory-Revised (LSI-R) and the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS). Both predict recidivism, but they are largely based on data from records. In contrast, the determination of inmates' service needs is based on lengthy (and costly) offender interviews. In light of evidence that many correctional systems have not adopted standardized assessments of service needs—and that time burden and costs are typically cited as barriers, the present study examined whether interviews involving complex scales improve the accuracy of offender needs assessment relative to a few single-item measures. To test this, 75 California prison inmates were administered the LSI-R, COMPAS, and a set of four yes/no items asking if they needed help with substance abuse, vocational training, housing, and education. Approximately 70% to90% of inmates identified as needing these services according to the LSI-R or COMPAS could have been identified using these four supplemental items, though specificity rates were low for the financial and housing domains. The results suggest that simpler, less costly approaches to offender needs assessment might be achievable.

Reforming Federal Sentencing Guidelines: A Modest Proposal

This article examines the use of community-based sentencing options within federal sentencing guidelines and offers specific recommendations for expanding the use of these sanctions. We begin by describing how the types of offenders and types of crimes prosecuted in our federal court system have changed since the passage of the Sentencing Reform Act of 1984. We then examine how various types of alternative sanctions—probation, probation and confinement, and prison/community split sentences—are currently being used in conjunction with federal sentencing guidelines in the sentencing of this new generation of federal offenders. We consider the issue of whether specific changes in sentencing guidelines are needed to increase the use of alternative sanctions and reduce post-Booker guideline departures. We conclude by estimating the impact of both sentencing guidelines reform and community-based program reform on public safety and the cost of corrections.