The Promises and Perils of Evidence-Based Corrections

ABSTRACT 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. INTRODUCTION 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. …