< Previous40 PERSPECTIVESVOLUME 46, NUMBER 2 RISK NEED ASSESSMENT However, despite the best intentions, RAIs have recently come under scrutiny for contributing to mass incarceration and the disproportionate negative impact they have on minority populations as described and cited below. • In 2014, then Attorney General Eric Holder expressed apprehension about the adverse impact of risk assessments on minorities (Department of Justice, 2014). • The Sentencing Project published a report in 2014 titled, Incorporating Racial Equity into Criminal Justice Reform. The report describes sentencing policies that have a disparate impact on people of color: “Some policies disadvantage lower income individuals, who are disproportionately people of color. Examples include risk assessments that require employment for pretrial release, or probation or parole requirements to report at locations where there is little public transportation” (Mauer & Ghandnoosh, 2014). • In 2018, more than 100 civil rights and community- based organizations released a shared statement regarding concerns about risk assessments and money bail reform (Leadership Conference on Human and Civil Rights, 2018). • In the January 2020 publication, The False Promise of Risk Assessments: Epistemic Reform and the Limits of Fairness, Green concludes: “that risk assessments are an ill-advised tool for challenging the centrality and legitimacy of incarceration within the criminal justice system. First, risk assessments fail to provide objectivity, as their use creates numerous sites of discretion. Second, risk assessments provide no guarantee of reducing incarceration; instead, they risk legitimizing the criminal justice system’s structural racism” (Green, 2020, p. 595). In 2020, after many years of advocating for Pretrial RAIs, the Pretrial Justice Institute (PJI) released a statement opposing their use. In the November 2020 publication of the PJI report, The Case Against Pretrial Risk Assessment Instruments, the key takeaways are a condemnation of a process that advises decisions based on a risk score resulting from a biased system (PJI, 2020). According to the PJI report, pretrial risk assessments are perpetuating structural racism in the criminal justice system by measuring areas that contain racial bias such as prior convictions, current charge, employment, drug use, age at time of arrest, and prior sentence to incarceration (PJI, 2020). When I read the PJI report, I recognized that it specified pretrial RAIs. However, based on my experience, the post-sentence instruments used by probation rely on similar metrics to determine part of the composite risk score—leading me to question if the post-sentence tools havewith the same disproportionate impact described by PJI. In addition, the report provided insights on how decision makers use the results of the pretrial RAI that resonated with my experience relative to post-adjudication supervision of for those assessed as high risk, including the following: • The result of a high-risk score can lead to judges adding harsher and more punitive conditions of supervision. The negative collateral consequences of a high-risk score, using some data elements from a racially biased criminal justice system, indicates that often those who possess the fewest resources necessary for compliance with court ordered conditions of supervision (i.e., education, good paying job, child care, transportation) are expected to complete more onerous conditions. Practitioners often describe these additional conditions as a set up for the defendant to fail. • The additional conditions, which may include, but KEY TAKEAWAYS FROM PRETRIAL JUSTICE INSTITUTE “Pretrial risk assessment instruments (RAIs) are constructed from biased data, so the RAIs perpetuate racism. RAIs are not able to accurately predict whether someone will flee prosecution or commit a violent crime. RAIs label people as “risky” even when their odds of success are high. RAI scores inform conditions of release, but there is no proven connection between RAI scores, specific conditions, and pretrial success.” 41 AMERICAN PROBATION AND PAROLE ASSOCIATION RISK NEED ASSESSMENT are not limited to, electronic monitoring, increased reporting requirements, and drug testing, are ordered even though there is no scientific evidence that these stipulations are related to the successful completion of probation or future public safety. • These additional conditions of supervision for those who are least likely to have the resources needed for successful compliance, contribute to a higher likelihood of revocation. Black people are 18-66% more likely than white people to have their probation revoked (The Vera Institute, 2021). In October 2020, the APHA passed a new resolution: Advancing Public Health Interventions to Address the Harms of the Carceral System. The resolution recognizes that structurally marginalized people are overrepresented among those incarcerated in the US, and the number of conditions people on parole or probation are required to meet have increased in recent years. The stress of meeting all these conditions - alongside factors like a lack of resources, unmet health needs, and racism - has a detrimental effect on the health of formerly incarcerated people (APHA, 2020). There is ample research describing the disproportionate representation of Blacks, Latinx and Native Americans in jails and prisons across the country and cannot be ignored. Systemic racial bias has been identified in areas such as educational discipline, employment, over policing of minority neighborhoods, jail population data and sentences to prison. For more context on the assignment of risk level based on biased measurements, consider the research cited below. • Thirty percent of Black men have experienced at least one arrest by age 18, compared to 22% of White males (Brame et al., 2014). • Structural and individual biases in policing practices make it more likely that Black people will be stopped, searched, subjected to force and arrested than white people for the same behavior (Mayson, 2018). • A 2020 Harvard Law School study found that racial/ ethnic differences in the initial charge, accounted for 70% of racial disparities in sentence length. Among those sentenced to incarceration, Black and Latinx people were sentenced to terms approximately 5 months longer than white people (Bishop et al., 2020). • Since 1954, The Bureau of Labor Statistics has consistently shown the unemployment rate for Black people as twice that of white people (Desilver, 2013). • The use and selling of drugs occur at approximately the same rate for Black and White people; however, Black people are 2.7 times more likely to be arrested for drug-related offenses (The Hamilton Project, 2016). • According to the Bureau of Justice statistics, young Black males are nine times more likely than young White males to be imprisoned (Monahan & Skeem, 2016). • In a 2018 report by The Sentencing Project, the author states “5.7 million children under the age of 18 have experienced having an incarcerated parent” (Gotsch, 2018). These children face many challenges that have been documented by a decade of research including psychological stress and future mental health issues, suspension and expulsion from school, and economic hardships. They are also six times more likely to be incarcerated themselves. The racial disparity is clear with one in four African Americans impacted by incarcerated parents (Martin, 2017). • Black students are almost four times as likely to be suspended from school as white students, almost three times as likely to be removed from the classroom but kept within school, and almost three times as likely to be expelled (Morrison, 2019). • The National Institute of Justice’s (NIJ) Recidivism Forecasting Challenge initiative, describes the issues in community supervision related to potential bias in risk assessment instruments (National Institute of Justice, 2021), stating that racial and ethnic minorities continue to be overrepresented in community supervision compared to their representation in the U.S. population. The issues regarding racial bias in actuarial risk assessments may be best summed up by a 2018 Yale Law Journal article titled Bias In, Bias Out (Mayson, 2019). In the article, a hearing by the Pennsylvania Commission on Sentencing in Philadelphia on the newly proposed Pennsylvania Risk Assessment Tool was described: The room was packed. One by one, community members walked to the lectern and delivered impassioned pleas against adoption of the tool.” They argued that reliance on criminal-history factors would have disparate impact, and that the likelihood of arrest is an artifact of racially skewed 42 PERSPECTIVESVOLUME 46, NUMBER 2 RISK NEED ASSESSMENT law enforcement rather than a meaningful measure of risk. Several speakers wondered why the system is so fixated on risk—the prospect of failure—in the first place. (Mayson, 2019, p. 2296) The article asserts that “as long as crime and arrest rates are unequal across racial lines, any method of assessing crime or arrest risk will produce racial disparity” (Mayson, 2019, p. 2296). Conclusion The calls for system reform and justice transformation permeate the criminal justice system around the country. There is no question we can do better in creating a more just system that will advance racial equity. Practitioners and policy makers argue that actuarial assessments of risk are a vast improvement over the past subjective decisions made by individuals. However, the presence of measures that are inherently tied to structural racism, and the potential negative impact they have on people of color is becoming hard to ignore. Criminal justice professionals must increase the awareness of the flaws in the risk assessment tools and make improvements to their construction. Until revisions are made to current RAIs, decision makers need to use assessment results as a tool and not consider the score as an absolute determination of a person’s likelihood of failure. References American Public Health Association. (2020, October 24). Advancing Public Health Interventions to Address the Harms of the Carceral System. Retrieved from: Bishop, E.T., Hopkins, B., Obiofuma, C. & Owusu, F. (2020). Racial Disparities in the Massachusetts Criminal Justice System, Criminal Justice Policy Program, Harvard Law School. Brame, R., Bushway, S.D., Paternoster, R., & Turner, M. G. (2014). Demographic Patterns of Cumulative Arrest Prevalence by Ages 18 and 23. Crime and Delinquency, 60(3), 471-486. Davis, M. (2021, July). The Catalyzing Impact of George Floyd’s Death on Criminal Justice. Department of Justice. (2014, March 13.) Attorney General Holder Urges Changes in Federal Sentencing Guidelines to Reserve Harshest Penalties for Most Serious Drug Traffickers. Office of Public Affairs. Retrieved from: Desilver, D. (2013, August 21). Black unemployment rate is consistently twice that of whites. FactTank, Pew Research. Retrieved Gotsch, Kara. (2018, April 24). Families and Mass Incarceration. The Sentencing Project. Green, B. (2020, January 27-30,). The False Promise of Risk Assessments: Epistemic Reform and the Limits of Fairness. In Conference on Fairness, Accountability, and Transparency. Barcelona, Spain. Hansen, H.(2020, (July 1) Harris County Declares Racism a Public Health Crisis. The Texan News. Henderson, H., & Adams, A. T. (2007). The predictive utility of the Wisconsin Risk Needs Assessment instrument in a sample of successfully released Texas probationers. International Journal of Crime, Criminal Justice and Law, 2(1).Martin, E. (2017, March 1) Hidden Consequences: The Impact of Incarceration on Dependent Children. National Institute of Justice. Lovins, B., Latessa, E, May, T. & Lux, J. (2017). Validating the Ohio Risk Assessment System Community Supervision Tool with a Diverse Sample from Texas. Corrections, 3:3, 186-202. DOI: 10.1080/23774657.2017.136179843 AMERICAN PROBATION AND PAROLE ASSOCIATION RISK NEED ASSESSMENT Mauer, M. and Ghandnoosh, N. (2014). Incorporating Racial Equity into Criminal Justice Reform. The Sentencing Project. Mayson, S. G. (2019). Bias in, bias out. Yale Law Journal, 128, 2218. Monahan, J., & Skeem, J. L. (2016). Risk assessment in criminal sentencing. Annual review of clinical psychology, 12, 489-513. Morrison, N. (2019, April 5). Black Students Face Racial Bias in School Discipline. Racial Equity Institute. Forbes. National Institution of Justice (2021). Recidivism Forecasting Pretrial Justice Institute. (2020, November). The Case Against Pretrial Risk Assessment Instruments. Retrieved from The Hamilton Project (2016, October 21). Rates of Drug Use and Sales by Race. University of Cincinnati and Texas Department of Criminal Justice. (2015). Texas Risk Assessment System Interview Guide-Felony. Vera Institute of Justice (October 2021). The Perils of Probation: How Supervision Contributes to Jail Populations. Author Bio Janis Bane, MS, Criminal Justice Management, is currently employed part-time by the City of Houston Health Department working with the My Brother’s Keeper initiative. Prior to joining the Houston Health Department, Janis was Director of the Galveston County Adult Probation Department. She was employed for over twenty years in a variety of management roles at the Harris County Community Supervision and Corrections. Janis is a former adjunct professor at Sam Houston State University’s College of Criminal Justice. She served as a trainer for the Texas Department of Criminal Justice - Community Justice Assistance Division in New Officer Certification and Strategies for Case Supervision. She has completed the certification process for the Texas Risk Assessment System. Janis represented Texas in the Justice Policy Institute’s Young Adult Offender Roundtable in Los Angeles, CA – October 2015 and is a Senior Fellow of the American Leadership Forum Criminal Justice Class 4. 44 PERSPECTIVESVOLUME 46, NUMBER 2 RISK NEED ASSESSMENT IMPLEMENTATION OF THE IMPAIRED DRIVING ASSESSMENT: Lessons Learned BY MARK STODOLA45 AMERICAN PROBATION AND PAROLE ASSOCIATION RISK NEED ASSESSMENT Every year about a million people enter the court system in the United States after being arrested for impaired driving (FBI, 2019). Due to the actions of this population, approximately 10,000 men, women, and children lose their lives annually. Since 1982, over 400,000 people have died in impaired driving crashes (National Highway Traffic Safety Administration, 2019). In 2008, the American Probation and Parole Association (APPA) requested and received funding and support from the National Highway Traffic Safety Administration (NHTSA) to develop an assessment tool specifically designed to capture the unique risk factors of impaired drivers. Thanks to that support, the Impaired Driving Assessment (IDA) was developed and, in 2014, was made available to community supervision officers with no cost to the users for training or the use of the tool. While the development and release of the IDA was welcome news, training and implementation of this tool presented challenges. We intend to share some of the lessons learned that should be considered when incorporating a new assessment tool. First, however, we will provide some background clarifying why this tool was developed. Why Do We Need the IDA? Research tells us that about two-thirds of the impaired driving population are “one and done.” That is, their first arrest for Driving While Intoxicated (DWI) is their last (Maruschak, 1999, p. 5). We can’t say with any certainty that they stop drinking or drugging, but perhaps the shame and the financial and emotional repercussions are such that they don’t commit a new impaired driving offense. The same cannot be said, however, for the other third of the impaired driving population, as these individuals continue to endanger our roadways while under the influence of drugs and/or alcohol despite multiple arrests and attempted interventions (Maruschak, 1999). These are also the individuals with high blood alcohol levels and who often have other drugs in addition to alcohol in their system. Those in this group make up a significant percentage of the 4.3 million men and women under community supervision. About 15% of those under supervision (645,000 people) have one DWI in their arrest history and approximately 8% (345,000 people) have three or more impaired driving convictions (Maruschak, 1999). The challenge we face in the criminal justice system is determining which of those in the annual pool of over a million impaired drivers we see in our court system annually are at a high risk to reoffend instead of being “one and done.” Truth be known, we in the courts and in the field of community supervision experience wildly inconsistent approaches in how we screen, sentence, and supervise the DWI population. While some jurisdictions screen and assess for risk of DWI recidivism and supervise this population in a fashion that reflects their likelihood to reoffend, impaired drivers often end up receiving minimal supervision or placement on banked or unsupervised caseloads. This often occurs without the benefit of being evaluated for risk with a DWI-specific screening or assessment tool or addressing the needs of the individual rather than the charge. While minimal supervision may be an appropriate outcome for those individuals found to be at low risk to recidivate (commit a new DWI), if we fail to conduct upfront screening and assessment how are we to know who is truly low or high risk? Which One of These Is Not Like the Other? In the age of assessment-driven supervision, we have found that there are some populations within the criminal justice system that have risk factors that are not easily captured with generic risk/needs tools. This would be true of the impaired driving population. Before the development of the IDA, community supervision officers overseeing impaired drivers were quick to note that this population typically scored as being at low risk to reoffend on generic assessment tools. However, their behaviors under supervision often belied these scores. In fact, many of the criminogenic risk factors of impaired drivers are different than other populations under community supervision, typically skewing assessment results and showing them to be at a seemingly lower risk to recidivate. Generally speaking, the impaired driving population tends to have higher levels of education and employment and more stable family situations than others under community supervision (Maruschak, 1999). These along with other unique risk factors that we may fail to capture are likely to produce inconsistencies in assessments of how, or even if, we supervise this population. IMPLEMENTATION OF THE IMPAIRED DRIVING ASSESSMENT: LESSONS LEARNED46 PERSPECTIVESVOLUME 46, NUMBER 2 RISK NEED ASSESSMENT The experts responsible for the development of the IDA determined that there were five major risk factors for DWI recidivism (APPA, 2014). They are: • Prior involvement in the justice system specifically related to impaired driving. The more prior DWI arrests individuals have, the more likely they are to commit a new DWI offense. • Prior non-DWI involvement in the justice system. This includes individuals with numerous traffic citations such as running red lights, speeding, or driving without a license, as well as non-DWI/alcohol-related criminal charges. • Prior involvement with alcohol and other drugs. Research shows that a significant percentage of impaired drivers are polysubstance users. Despite this, most citations for DWI note only a single substance, usually alcohol. This population may use multiple drugs in addition to or instead of alcohol. Supervising officers should not assume that alcohol is the only substance of choice with this population (Governors Highway Safety Association, 2018). • Mental health and mood adjustment issues. Research shows that 33% of men and 50% of women with multiple DWIs have a diagnosable mental health condition. This includes post-traumatic stress disorder as well as other conditions which may actually be the primary factor related to the DWI (Shaffer et al., 2007). • Resistance to and non-compliance with current and/ or past involvement in the justice system. Individuals who have failed to comply with court- ordered treatment, community supervision, or electronic countermeasures are at increased risk of DWI recidivism. Non-compliance with ignition interlock devices is a strong predictor of DWI recidivism (APPA, 2014). The IDA was developed to capture these risk factors through the use of a Convergent Validation Model. The tool includes a client self-report consisting of questions that identify the client’s perception of the DWI and an evaluator report consisting of questions that capture static information including the client’s arrest, treatment, and intervention history. By comparing the information in both reports, the evaluator is able to determine the best estimate of client risk and preliminary information on treatment needs, level of defensiveness, and acceptance and motivation to change. Since 2014, jurisdictions in 27 U.S. states and territories, including the District of Columbia and Guam, have completed certification training to conduct the IDA, with several states using the tool to assess all DWI cases under consideration for community supervision. It is being used at the pre-trial, pre-sentence, and post- sentence levels to guide supervision and to determine the appropriateness for client placement in a DWI/Hybrid Drug Court setting. What Have We Learned? In the seven years since the IDA was released, community corrections staff have learned (often the hard way) some important lessons on how to implement the tool and train staff on its use. We now recognize there are numerous obstacles that can result in a failure to maximize the effectiveness of the tool. Here are some of the considerations to address before and during the implementation phase: Answer the “Why” Given the myriad of obligations facing community supervision officers, they expect an explanation as to why this assessment tool has value. More often than not, the first question asked in IDA trainings is how long it takes evaluators to administer the assessment. If conducting the IDA is an additional responsibility for the officer, consideration should be given to reduce their workload. At the same time, it should be clearly explained that the use of an assessment tool that is incorporated into a case plan may save officers countless hours by proactively determining risk and need priorities. Use the Right IDA Summary for the Right Population There are two IDA summary forms: the normative form for individuals with one or two DWI convictions and minimal involvement with non-DWI criminal activity and the repeat form for individuals with multiple DWIs and a more extensive criminal history. Using the wrong summary may result in clients scoring as artificially high or low risk.47 AMERICAN PROBATION AND PAROLE ASSOCIATION RISK NEED ASSESSMENT Don’t Change the Client Responses When clients with multiple prior DWI convictions indicate in the IDA self-report that they have never been drunk in their life, it is understandable that the evaluator might “suggest” that they change the answer. Don’t do it! Every question in the IDA tells us a story. In addition to evaluating mental health and drug and alcohol use, we are also measuring defensiveness, motivation, acceptance, and criminal thinking. Changing answers skews these responses. Case Plans Should Incorporate both Assessment Findings and the Expertise of the Evaluator/Supervising Officer In the course of providing training on the IDA, some jurisdictions were of the belief that assessment results should be the sole driver of sentencing and supervision. Until we develop assessment tools with eyes and ears, officer judgment must play a part in decision making. For example, if a client scores as low-medium risk to recidivate but life circumstances (relapse, homelessness, mental health, etc.) place that individual and the community at greater risk, the officer must adjust the extent of involvement with this individual. Do Your Legwork Before Going Live with the IDA Notify all the individuals who play a role in DWI sentencing and supervision of your intention to use the assessment before you begin implementation. This includes obvious partners such as judges, defense attorneys, and prosecutors as well as the not so obvious players such as treatment providers and advocacy groups like Mothers Against Drunk Driving (MADD). Determine who will be responsible for conducting the IDA, and be sure they have received adequate training and have the time to complete the IDA. It takes anywhere from 30 to 45 minutes to conduct this assessment. In a high-volume court, that can be a considerable increase in workload. Where We Are Today The NHTSA and the APPA have made significant technical advances to support the use of the IDA. The IDA Resource Center (IDARC) was created in 2019. It offers updates about the IDA, available training, research opportunities, and information on jurisdictions using the tool. The online resource page can be found APPA launched a web-based version of the IDA assessment in 2021. The web application has the same functionality as the paper and pencil IDA assessment widely used since the tool’s inception but adds the convenience of a web application. It is accessible from any device with internet access. Agencies can more easily share information, assess individuals, access past results, and evaluate agency-level data. to start using the web-based IDA. Where We Need to Go Evaluation Jurisdictions that have used the IDA for a number of years have compiled enough data to begin evaluation of the tool and to norm it for their population. This process will assist in our research of the IDA and potential revisions to the tool. Development of an IDA Reassessment Tool At present, the IDA is conducted only once for the duration of the client’s supervision. The results drive the supervision level and guide treatment decisions. Consideration is being given to developing a reassessment tool that will help determine what, if any, progress the client has made under supervision. Additionally, the development of a screening tool that can quickly determine whether further assessment is needed would help jurisdictions more efficiently evaluate DWI clients Further Evaluation of the IDA and Drug- Impaired Driving A percentage of the normative group who served in the development of the IDA were polysubstance users. The legalization of recreational and medical marijuana and the opioid epidemic coupled with a better understanding of the polysubstance-abusing driver has necessitated that we take a closer look at this population and better evaluate their risk to reoffend. Conclusions The Impaired Driving Assessment helps inform decision- making in the management, supervision, and treatment of impaired drivers. For tools such as this to reach their maximum impact, it is essential that the handoff from researcher to practitioner be well thought out. However, regardless of how we envision going live, circumstances will require that we build in some degree of flexibility to 48 PERSPECTIVESVOLUME 46, NUMBER 2 RISK NEED ASSESSMENT allow for unforeseen circumstances such as changes in laws, staffing adjustments, or, as recently occurred, a global health crisis. Additionally, there needs to be an ongoing dialogue between the IDA trainers and the practitioners who will be implementing the tool. Officers need the assurance that they will receive support while using the tool, be it answering questions on outlier cases or dealing with technical issues related to scoring. Finally, we need to be mindful of the big picture. Our efforts are ultimately to prevent future DWIs and the misery they create for our communities. References American Probation and Parole Association (2014). Screening for risk and needs using the Impaired Driving Assessment. Lexington, KY: Lowe, Federal Bureau of Investigation. (2019). Crime in the United States Table 69 FBI — Table 69 Governors Highway Safety Association. (2018). Drug- impaired driving, marijuana and opioids raise critical issues for states. Washington, DC: Hedlund, J. Maruschak, L. M. (1999). DWI offenders under correctional supervision. Washington, DC: Bureau of Justice NHTSA Traffic Safety Facts 2019. (2020). US Department of Transportation DOT HS 813 060 NHTSA Releases 2019 Crash Fatality Data | NHTSA Shaffer, H. J., Nelson, S. E., LaPlante, D. A., LaBrie, R. A., Albanese, M., & Caro, G. (2007). The epidemiology of psychiatric disorders among repeat DUI offenders accepting a treatment-sentencing option. Journal of Consulting and Clinical Psychology, 75(5), 795-804. Author Biography Mark Stodola has served as the American Probation and Parole Association’s Probation Fellow for over eight years. He brings over 30 years of experience working in the field of court management and adult probation in Arizona. Mark has presented training on topics surrounding high risk impaired drivers at national, regional and state conferences throughout the country. Mark received his undergraduate degree in History from the University of Wisconsin-Madison and his Master’s Degree in Education from Northern Arizona University. Next >