Evidence and Sentencing

   Ben Goldacre’s Radio 4 programme on January 2^nd 2013 rightly argued that the outcomes of public policy should be much more rigorously tested in advance of implementation and more thoroughly evaluated afterwards. Ben sees a much greater role for randomised controlled trials in identifying the most effective measures for producing a given outcome and even for checking that certain practices do not in fact aggravate a problem they are designed to alleviate; RCT’s revealed that despite their appeal, Scared Straight programmes which take young people into adult prisons increased rather than reduced future delinquency. 

There is no doubt that RCT’s can show to a high standard of proof of whether something works    and they should be encouraged as a way of  evaluating interventions which have  clear objectives; curing disease or  relieving symptoms in medicine or, teaching children to read and write. In criminal justice RCT’s have played an important role in showing the value of psychological treatment programmes, Restorative Justice and strict enforcement of probation.

Where I consider RCT’s to be more problematic and less useful is in relation to sentencing. By this I mean the decisions made by judges and magistrates to dispose of individuals convicted of criminal offences.  The underlying question is what would RCT’s be testing?

For Ben the answer is simple.   According to a piece he wrote in the Guardian in May 2010 he thinks that a judge is in “the exact same position as a doctor making a decision on a patient’s treatment  ... ...choosing an intervention for an individual in front of them with the intention of producing a particular set of positive outcomes” which Ben sees as reduced crime and reduced drug use.

Were this true, RCT’s might help to identify the best treatment approach for particular types of individual offender- although the record of so called “what works” programmes has been somewhat less than hoped for.  Unfortunately treatment is only one aspect of sentencing. In our legal system, the sentence imposed on an offender must reflect the crime committed and be proportionate to the seriousness of the offence. In reaching their decision courts must have regard not to one but to five purposes of sentencing. Giving effect to one of these purposes – the reform and rehabilitation of offenders- could well be informed by the findings of RCT’s . Ways to achieve another -the reduction of crime- could also be identified through research although this would be complicated by the inclusion of reduction by deterrence. The impact is thus not simply being sought on the individual culprit but on potential culprits of the future.

 As for the other three purposes- the punishment of offenders, the protection of the public and the making of reparation- it might be possible to construct experiments to assess how well particular sentences served them. But we suddenly seem to need an awful lot of RCT’s; but more importantly how useful would their findings be in assisting judges and magistrates to sentence?

 The law does not indicate that anyone purpose of sentencing  should be more important than any other and in practice they may all be relevant to a greater or lesser degree in any individual case. As the Sentencing Council, which gives guidelines to courts says “the sentencer has the task of determining the manner in which they apply”. The key decision is thus a normative one – which purpose or purposes are relevant?   So yes, RCT’s could tell us something important about the relative effects of components of the execution of sentencing. But the big sentencing questions – should I send this defendant to prison or not, should he get three years or five years – would remain relatively unaffected by this kind of evidence.

Even if the results might be useful, there is a more specific problem relating to the ethics of mounting RCT’s in relation to sentencing. For the sake of argument let’s agree that a judge, setting aside the other factors that he or she must consider, wants to impose the most effective rehabilitative sentence on a heroin dependent offender. Surely an RCT might indicate whether this might best be achieved by sending the offender to a community based drug treatment programme or to prison. But how would one mount such a study? According to Ben’s paper for the Cabinet office, the methodology would “assign each unit to one of the policy interventions, using a robust randomisation method”, before introducing the policy interventions to the assigned groups.  I doubt judges would or could agree to different sentences being assigned to defendants in this way. 

Peter Neyroud has suggested that there are several studies in the US and Australia which have used RCT’s to study sentencing.    The one he referenced- the study of HOPE Probation in Hawaii- did involve random allocation of probationers to a special programme with strict enforcement on the one hand and probation as usual on the other.  This was not a decision made by a court however. All of the offenders had been sentenced and were assigned to different modes of probation afterwards. It is hard to see how a judge could ethically impose sentences in the random way required by a RCT. The execution of the sentence can , as in the HOPE example, be varied up to a point for experimental reasons but not in my view where  there is a question about deprivation of liberty . The European prison rules make it clear that “Prisoners shall not be subjected to any experiments without their consent.” The objection is clearer if one thinks about an RCT comparing the effectiveness of short, medium and long prison sentences.

A tetchy exchange with Ben on twitter did not allow us to explore the fact that the disagreement may in one sense be over a narrow point. I agree there should be more research, including RCT’s, on different approaches to addressing offending behaviour. I also think there needs to be much more research about sentencing and in particular the cost- effectiveness of imprisonment. This is a deeply contested question reflecting profound disagreements about the impact which prison has on the future behaviour of individual offenders and on the wider community. A recent review of evidence by the Ministry of Justice found that  “To date there has been no clear consensus from criminologists and commentators about whether there is an incapacitation effect at all, and if so, its scale.” However I am not sure how easy, useful or morally acceptable RCT’s would be either in settling this question or in relation to the specific decisions made by judges.  I quite see the case for trials of programmes and interventions which can be applied in the execution – as opposed to the imposition- of sentences.