Responses to ClientBehavior:

Rethinking Incentives and Sanctions

LADCPApril 13th, 2012Hon. Peggy Fulton Hora (Ret.)

Based on Work by Greg Little, Ed.D., Hon. William G. Meyer (Ret.), West Huddleston and Jane Pfeifer for the National Drug Court Institute

Why don’t they just change?

• Why can’t people just change when it is obvious that change is needed?

•Change is hard!

For the alcoholic/addict• Remaining addicted becomes easier than trying to

change• Recovery from addiction is a journey that takes time

and effort and is often filled with false starts and failed attempts

• Our goal is to aid the alcoholic/addict to promote change through incentives, sanctions and motivational interviewing

Target Behaviors

Initial Behaviors and Attitudes:• Defiant, Uncooperative, Suspicious• Positive Tests• Denial• Stage of change: pre-contemplative or contemplative• Withdrawn/ non-communicative• Low self-esteem/confidence

Target Behaviors

Behaviors and attitudes near end of program: Communicative Self-Aware Improved self-esteem Maintenance Stage of change Aim to Please Open Greatest folks in the world

What are our Expectations?• Abstain from drug and alcohol use• Show up to Court• Go to Treatment • Take Random Urine Tests• See Probation and/or Case Manager.• Pay for some of the above• Job• Literacy—GED

• Positive Attitude

Proximal and Distal Behavior

Do we emphasize certain target behaviors during different phases of the program?

• What Behaviors?• Why?• How do we respond to show that emphasis?

The purpose of sanctions and incentives is to keep participants…

Engaged in Treatment

• Length of time is key: The longer a patient stays in treatment, the better they do

• Coerced patients tend to stay in treatment longer

Judicial Toolkit

Back to the future• Researchers have found only nineteen incidents of

incarceration in the roughly 120-year period between 1691 and 1776

Friedman, Lawrence M. 1992. Crime and punishment in American history. New York, NY: Basic Books

• 18th C. America turned to imprisonment because alternative punishments had lost their ability to shame

• 20th C. America turned to alternative punishments because imprisonment has lost its ability to deter and rehabilitate

Kahan, Dan. 1996. What do alternative punishments mean? University of Chicago Law Review 63: 631

Punishment is not the goal in the imposition of sanctions;

Changing behavior is.

Drug Court Participant:

• “It’s a learning experience for me. You just learn what to do. When you see somebody doin’ right and they get patted on the back, you think, ‘I want to be like that next time I come.’ Or when you see someone get the cuffs slapped on them, you thinking like, ‘Oh, I ain’t going to do that. I don’t want to be that person’.”

San Bernardino Drug Court participant focus group

Drug Court responses to participant behavior:

Incentives

Sanctions

Treatment Responses

Types of Sanctions

Punishment“Any consequences of a specific behavior that

reduces the likelihood that the behavior will be repeated, or repeated at the same rate, in the future” (Marlowe, 1999).

Negative Reinforcement“The removal of an earned sanction contingent

on a target behavior, which has the effect of increasing that behavior” (Marlowe,1999).

Negative Reinforcement differs fundamentally from punishment in that negative

reinforcement focuses on increasing desirable behavior rather than on decreasing

undesirable behavior.

Pre-trial or pre-sentencingdiversionary programs exemplifies negative

reinforcement, and not punishment.

Incentives Promote Abstinence• Addiction changes the brain in ways that make

individuals more responsive to short-term rewards and less able to forego them in the interest of longer term benefits

• Incentives weaken over time but can show benefits for 1-2 years

• Adding a “fish bowl” increased success 4xs for stimulant abusers attaining 12 weeks of continuous abstinence. Cost is $200 per participant.

Volkow, Nora D., M.D., “Incentives Promote Abstinence,” NIDA Notes 23:3 (2011)

What Does Advanced Behavioral Research Tell Us About Motivating Behavior Change?

1. Re-State the Principle (What)

2. Explain the rationale/theory and the research behind the principle (Why)

3. Identify at least one way this applies to the Drug Court model (How)

1. Sanctions Need Not Be

Painful Humiliating Injurious

Harrell, A., & Roman, J., (2001); Brennan P., Mednick S., (1994); Murphy et. al., (2001); Sherman, L.W. (1993)

2. Responses Are in the Eye of the Behaver

Not all punishments are painful, and not all painful events are punishing.

Petersilla, J. and Dechanes, E. (1994)

Is incarceration always perceived as the harshest penalty by offenders?

• Contrary to expectations, incarceration is not necessarily viewed as the harshest punishment. Offenders preferred 12 months incarceration to:

• halfway house (6.7%)• probation (12.4%) • day fines (24%)

Wood, P. B., & Grasmick, H. G. (1995). “Inmates Rank the Severity of Ten Alternative Sanctions Compared to Prison.” Oklahoma Department of Corrections: www.doc.state.ok.us/DOCS/OCJRC/OCJRC95/950725j.htm See also Petersilla, J. and Deschanes, E., “What Punishes? Inmates Rank the Security of Prison v. Intermediate Sanctions?” Federal Probation, Vol. 58, No. 1 (March 1994).

Different Strokes for Different Folks

1. Similar sanctions have completely different effects depending upon the social situation and offender type.

2. Different treatment modalities can increase or decrease criminality

depending on offenders’ personality type and the type of treatment. 3. Criminal sanctions may decrease criminality in employed

offenders but increase it in unemployed offenders.

4. Threat of criminal sanctions deters future criminality in people who are older and have more to lose.

See: Sherman, L. W. (1993). “Defiance, deterrence, and irrelevance: A theory of the criminal justice sanction.” Journal of

research in crime and delinquency, 30 (4), 445-473.

3. Responses Must be of Sufficient Intensity

Subjected to punishment at low to moderate intensities, both animals and human beings

can become habituated (accustomed) to being punished or threats of punishment.

Marlowe, B. D., Kirby, K., (1999)

Smart Sanctions

The imposition of the minimal amount of punishment necessary to achieve

program compliance.

Graduated Sanctions

The intensity of sanctions increases with the number and seriousness of program non-compliance.

Although Drug Courts recognize that individuals may relapse, AOD use is never condoned, and there is always a response to both compliance and non-compliance.

Relapse is part of addiction, not recovery

• Threat to public or staff safety • Virtually never appropriate for continued use • Written in policy and procedure manuals

• Drug Courts Make Failure and Expulsion From the Program Difficult for the Participant to Achieve

Program Termination

4. Responses Should Be Delivered for Every Infraction

The smaller the ratio of punishment to infractions, the more consistent and enduring is the suppression of the undesired behavior.

Azrin, N. and Holz, W., (1966)

Outcomes demonstrate that offenders who received sanctions on a continuous schedule evidenced a significantly lower arrest rate than those offenders who received intermittent sanctions.

Brennan, P. and Mednick, S. “Learning Theory Approach to the Deterrence of Criminal Recidivism.” Vol. 103, Journal of Abnormal Psychology, pp. 430-440 (1994).

The Key to Sanctions: Reliable Monitoring• Nothing spells disaster more for a drug court than

failing to detect and redress negative behaviors or failing to recognize and reward positive accomplishments.

• Urine testing that can be trusted• Every behavior receives a response• Off-hours supervision (87% of time not supervised)• “Catch” them doing something right

5. Responses Should be Delivered Immediately

Delay in imposition of sanctions can allow other behaviors to interfere with the message

of the sanction.

Dayan, P., & Abbott, L.F. (2001); Marlowe, D., Kirby, K., (1999); Higgins, S.T., & Silverman, D., (1999)

6. Undesirable Behavior Must be Reliably Detected

Failure to uncover an infraction is, in behavioralterms, functionally equivalent to putting theindividual on an intermittent schedule.

Higgins, S. T., & Silverman, K., (1999); Marlowe, D., Kirby, K., (1999); Torres, S. (1998)

7. Responses Must Be Predictable and Controllable

• Perceived certainly of response has a deterrent affect. Perception is based not only on what does occur but what the participant expects will occur.

Harrell, A & Romen, J (2001); Burdon, W. et al. (2001) Higgins, B.T. & Silverman, K. (1999)

Learned HelplessnessFrequency of Court ContactsExtrinsic Rewards for Intrinsic Motivations

Marlowe, B. D., et al., (2002); Higgins, S.T., & Silverman, K. (1999); Deci, E.L., et al., (1999)

8. Responses May Have Unintentional Side Effects

Learned Helplessness

“Failure to specify particular behaviors that are targeted and the consequences for non-compliance can result in a behavior syndrome known as “learned helplessness where a drug court participant can become aggressive, withdrawn and/or despondent.”

Marlowe, D. B., & Kirby, K. C. (1999). “Effective Use of Sanctions in Drug Courts: Lessons From Behavioral Research.” National Drug Court Institute Review, II (1), 11-xxix.

Response Predictability

• Use of Phase Progression

• Participant Handbook

• Policy and Procedures Manuals

• Courtroom as Theater

9. Behavior Does Not Change by Punishment Alone

Positive Reinforcement

Rewards the client in his/her natural social environment to ‘capture’ positive behavior, (i.e.

payment vouchers).

Most of today’s clinical textbooks conclude that positive reinforcement is far preferable for changing

behavior than punishment.

Marlowe, B.D., 1999; Higgins, S.T. & Petry, N.M. 1999; Higgins, S.T. & Silverman, K.,1999

The Carrot Is Mightier Than the Stick

• Those in reinforcement contingency stayed longer in treatment than those in punishment-based programs

• Effects of punishment are transitory- change ends when punishment ends

• Punishment most effective when used with positive reinforcement

Higgins, S. T., & Silverman, K. (1999). Motivating Behavior Change Among Illicit-Drug Abusers. Washington, D.C.: American Psychological Association, p. 330

The Mighty Carrot

Incentives

• A positive consequence that is the direct result of and is a reward for the offender’s positive behavior.

• Reward productive activities that are incompatible with crime and drug use.

10. Method of Delivery

• Fairness is Key• Empathetic communication can improve

participant satisfaction• Motivational Interviewing

Andreoni, J., et al (2001); Hubble, M.A., Duncan, B.L. & Miller, S.D. (1999)

Effective Incentives/Sanctions:

• reliably monitor participants’ behaviors• apply sanctions and incentives with certainty • hold frequent status hearings to ensure

consequences are imposed with immediacy • administer a gradually escalating sequence of

intermediate-magnitude consequences• ensure procedural fairness in the

administration of all consequences

Judicial Core Competency #2

Core Competency 2. As part of the drug court team, in appropriate non-court settings (i.e., staffing), the judge advocates for effective incentives and sanctions for program compliance or lack thereof.

Incentives & Sanctions• After input from the whole team, the judge should decide on incentives, sanctions and treatment

responses.• The judge must stay abreast of research on

motivational interviewing and behavioral change literature.

• The judge delivers a coordinated response to participants in the courtroom.

Motivating Behavioral Change

1. What is the behavior to be targeted ?2. Does the behavior need an incentive, a sanction or

a treatment response?

5 Steps to Deliver the response

1. Explain the decision and the factors considered by the team

2. Review severity of the participant’s substance dependence

3. Note the behavior being responded to4. How the behavior is important to their recovery5. Why the particular sanction and magnitude were

selected

National Drug Court Institute, Incentives and Sanctions: Rethinking Court Responses to Client Behavior

Practice with a partner

Danny has been in drug court for 3 months. He has gone as long as 3 weeks without a positive test. In staffing, you find out he had a positive test. Your court requires a participant disclose use before testing. Danny didn’t. How do you deliver the consequence to Danny?

What do you say to Danny?• Is Danny’s abstinence a proximal or distal goal?

• Is there a different response to the “dirty” test and the lying?

• What sanctions are available and how do you choose?