Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years. After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed. Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called "evidence-based practices" designed to reduce prison populations and their associated fiscal and human costs. These practices--which broadly include the use of actuarial risk assessment tools, the development of deterrence-based sanctioning programs, and the adoption of new supervision techniques--are based on criminological research about "what works" to reduce convicted individuals' odds of committing future crimes.
Because evidence-based practices focus on reducing crime and recidivism, they are usually promoted as progressive tools for making the criminal justice system more humane. And while many have the potential to do just that, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state. In their reliance on aggregate data and classification, many such practices have as much in common with the "new penology " that enabled mass incarceration as with the neorehabilitationism they are ordinarily thought to represent.
Without denying the contribution that such practices are making to current reform efforts, this Article seeks to highlight the unintended ways in which evidence-based tools could be used to expand, rather than reduce, state correctional control over justice-involved individuals. It explains what evidence-based practices are, why they have gained traction, and how they fit into existing paradigms for understanding the role of the criminal justice system in the lives of those subject to its control. Finally, it calls on policymakers and practitioners to implement these practices in ways that ensure they are used to improve the quality and fairness of the criminal justice system and not to reinforce the institutional constructs that have sustained the growth of the penal state.
The criminal justice system has long been in the business of trying to prevent crime by controlling the behavior of known past offenders. Methods of control have varied over time, from execution to banishment to forms of "rehabilitation" ranging from mentoring and job counseling to forced psychosurgery. Always, system actors have justified their methods by reference to a mix of values and science, which change over time.
In recent years, the American conversation about punishment is again changing, and with it the forty-year trend of ever-increasing correctional populations. Every year from 1970 to 2008 saw an increase in the number of convicted people under the control of the penal state, whether on probation, in jail, or in prison. (1) Beginning in 2008, however, the United States saw five consecutive years of reductions in the total number of people confined in state and local correctional institutions, and in those serving terms of community supervision on probation and parole. (2) While those national statistics mask significant regional variations, they speak to a notable shift in the way punishment is being imposed and executed in the United States today.
The recent reduction in the U.S. prison population has been facilitated by laws and policies designed to stem the growth of custodial populations. These include the decriminalization of some drug and traffic offenses, (3) repeal of mandatory sentencing provisions for many lower level drug offenses, (4) increases in pre- and post-charge diversion programs, (5) and the expansion of early release mechanisms, such as "good time" credit. (6) In addition, recent years have seen a surge in the popularity of new correctional techniques, loosely classified as "evidence-based practices," that courts, community supervision agencies, and correctional institutions are rapidly adopting in their efforts to deliver more targeted (and less expensive) services to individuals under state control. These practices include the use of actuarial risk and need assessment instruments, motivational interviewing and counseling techniques, deterrence-based sanction programs, and incentives to probationers and parolees for successful compliance with court orders. (7)
These new policies and practices have been promulgated at every level of government through both grassroots efforts and organized coalitions of established nonprofits seeking systemic criminal justice reform. (8) In an effort to capitalize on the opportunity for reform provided by historically low crime rates (9) and the 2009 U.S. financial crisis, (10) proponents of these new policies aim to solve many problems at once. They want to reduce the number of people behind bars, improve the fairness of sentencing and supervision, decrease the financial cost of punishment, reduce recidivism, and improve public safety. While reform efforts have taken many forms, many of the most influential recent efforts have been spearheaded by the National Institute of Corrections (NIC) and by the Justice Reinvestment Initiative (JRI), a joint public-private coalition of the U.S. Department of Justice, the Pew Charitable Trust, the Center for State Governments, and the Vera Institute of Justice. JRI's advocacy has reached thirty-four states (11) and involves millions of dollars in public and private expenditures. (12)
Despite the massive scale of these national efforts to change correctional practices, relatively little attention has been paid by legal scholars to the sub stance of the practices being labeled as "evidence based" outside the context of sentencing, (13) or to their implications for the practical and theoretical functioning of the criminal justice system more broadly. Although scholars and policymakers have reached a broad consensus that mass incarceration has come at too high a price, (14) the legal mechanisms by which overly punitive policies should be undone is a matter that has been largely undertheorized. Methods matter.
This Article responds to a gap in current legal literature by examining the proliferation of "evidence-based practices" in correctional settings--particularly in the context of community corrections--and exploring the ways in which these practices and the risk management framework they embrace fit into existing conceptual frameworks for understanding the criminal justice system. Although most proponents of evidence-based correctional practices frame them as rehabilitative tools designed to reduce the use of incarceration and make correctional interventions more modest and humane, these tools are capable of doing the very opposite. Actuarial risk assessment instruments, electronic monitoring and other forms of surveillance for high risk populations, and even cognitive-behavioral interventions designed to increase compliance with conditions of supervision can all be used to expand and enforce the scope of state control over the lives of people entangled in the justice system. Unless such tools are implemented with conscious attention to their limits and with appreciation for their potential for abuse, these new practices have the potential to thwart long-term efforts to decrease mass incarceration by inadvertently expanding the scope of state control over the lives of justice-involved individuals and their communities. This Article is not intended to derail efforts to bolster criminal justice decisionmaking (and decrease bias) through the use of better data, research, or programs. It is, however, a call for reflection about the limits and potential misuses of popular evidence-based correctional practices. It is also a call for practitioners and policymakers to monitor the implementation of evidence-based practices to ensure consistency between the ways they are being used and the purposes they are intended to advance.
Part I very briefly recounts the escalation of punishment and several of the tools that enabled it, emphasizing the contributions of what Feeley and Simon have dubbed the "New Penology," which prioritized control of the underclass through mass surveillance and use of the police power. Part I also explores recent changes that are now driving states to reconsider their commitment to sustaining high rates of incarceration. Part II examines the growing popularity of evidence-based correctional practices as a way to reduce overreliance on incarceration as a response to crime. It describes the institutional structures through which evidence-based correctional practices have been widely promulgated, explores the reasons why they have gained so much traction among lawmakers and policy advocates, and provides a basic explanation of a few of the most popular practices being implemented in the field. Part III places these new practices into a larger conceptual framework. Without denying that many evidence-based practices arise out of a neorehabilitative tradition that seeks to make criminal justice more humane, it also observes that many evidence-based correctional practices are embedded with features of the control-orientated culture they are designed to disrupt. Part IV contemplates the future of evidence-based practices as a tool for reducing reliance on incarceration. It concludes that while advocates and policymakers should not reject the potential of these practices to improve the quality and effectiveness of correctional interventions, they must be equally alert to their potential for coercion and abuse. Jurisdictions embracing evidence-based practices should therefore consciously monitor such practices to ensure they are being used in ways that reduce the reach of the penal state, rather...