The Bureau of Justice Assistance at U.S. Department of Justice created the Smart Prosecution Initiative to encourage prosecutors to explore new solutions

to public safety problems. Grant recipients work with researchers to document outcomes and develop effective, economical,

and innovative responses to crime. In this podcast, Denise O’Donnell, the director of the Bureau of Justice

Assistance, sits down with Jose Egurbide of the Los

Angeles City Attorney’s Office and Mark Kammerer of the Cook County State’s Attorney’s Office to talk about their Smart Prosecution

programs, which use risk assessment tools to divert low-level offenders from court. The conversation took place while

the three were in Chicago to attend Community Justice 2016.

At Community Justice 2016: Above, Denise O’Donnell, director of the Bureau

of Justice Assistance, delivers her keynote address. Below left, Jose Egurbide of the Los Angeles City Attorney’s

Office participates in a panel on Restorative Justice. Right, Mark Kammerer of the Cook County State’s Attorney’s

Office discusses Risk/Needs Assessments on a panel.

ROB WOLF: Hi. This is

Rob Wolf, director of Communications at the Center for Court Innovation. We are at Community Justice 2016 where 400

people have gathered in Chicago for 3 days to share ideas about justice reform. With me are 3 people who are leaders

of efforts to improve justice systems both locally and nationally: Denise O’Donnell is the director of the Bureau

of Justice Assistance at the Department of Justice; Mark Kammerer is the Supervisor of Alternative Prosecution and

the Sentencing Unit at the Cook County State’s Attorney’s Office; and Jose Egurbide is the Supervising

Attorney in the Los Angeles City Attorney’s Office.

Something you all have in common is a

grant program supported by the Bureau of Justice Assistance called the Smart Prosecution Initiative. Denise O’Donnell,

I thought maybe you could explain what the Smart Prosecution Initiative is and how the Bureau is using it to support

innovation and test new ideas.

DENISE O’DONNELL: Sure. I’m a former prosecutor, and when

I came to BJA I felt we really didn’t have enough focus on prosecutors and the role prosecutors can play in

justice reform. We had a great program called Smart Policing that had been operating for a number of years that actually

funded police practitioner partnerships- research partnerships to look at innovative approaches and collect data,

analyze them and assess the outcomes of the program.

We brainstormed a little about that and thought

it was a great model for prosecutors as well. So prosecutors can innovate. They can try new approaches. They can

work with a researcher, collect data and work on programs like diversion programs, like community justice centers,

and so many other initiatives.

It’s now part of a smart suite of programs at BJA. We now

have 9 programs working in this model to really promote criminal justice innovation.

WOLF: Mark

and Jose, now both of you have grants under the Smart Prosecution Initiative. They’re similar in that they’re

both helping divert offenders from more traditional sentences. Let me ask you both, why would a prosecutor’s

office be interested in diverting people from punishments that would get them more deeply involved in the justice

system?

Mark, do you want to go first?

MARK KAMMERER: Sure. We’ve actually

been involved in diversion for decades. When I came to the office in 2000, there was a drug diversion program that

had been around since the 70’s, but one of the things we found with a lot of our alternative sentencing, basically

treatment courts, is that people had engaged in significant criminal activity before they got to treatment court.

What we wanted to do was possibly intervene with people at an earlier stage, with the hope being we could

interrupt the cycle before they got to the point where they had significant background that would warrant being in

an intensive 24 month probation program. Our office has been, especially in the last 4 or 5 years, very involved

in diverting people out of the system as early as possible. We’ve implemented a medical model that people are

diverted at the earliest point with the least amount of intervention possible, knowing that we have a whole system-

a whole continuum that we could advance to another level if needs be.

The Smart Prosecution process,

the grant that we received with that, was to … We were able to involve risk assessment in our process. One of my

experiences from working in healthcare is you really need to objectify things as much as possible so we know who

it is that we’re working with, and why we’re working with them, and what would be the best interventions.

That was one of the gaps in our system, was we did not have sufficient risk assessment involvement. That was a cornerstone

of the proposal that we made to BJA that was funded.

WOLF: I know, Jose, your initiative as well,

you’re diverting people and you’re also doing risk assessment. Let me just ask you, I thought prosecutors

classically are interested in guilt and innocence. What does a risk assessment tool, like both your programs use,

do for you?

JOSE EGURBIDE: Thanks, Rob. We’re very excited to be here. Of course we’re

very grateful for BJA’s leadership and the opportunities that that’s creating as well as the CCI risk and

needs assessment tool. What that’s doing for us is, it’s giving us an alternative to an already congested

court system where we can focus more on rehabilitation and, as Mark said, looking at it at the front end.

You often see a lot of rehabilitation happening upon reentry.  We also believe that when you talk

about alternative prosecution, when you talk about restorative justice, you need to restore the victim, you need

to restore the community, but you also need to restore the offender to a position where they’ll be a more productive

member of society going forward.

WOLF: Let’s talk a little bit specifically about what a

risk assessment tool is. You both use a similar tool that the Center for Court Innovation developed with Bureau of

Justice Assistance support. It’s evidence based, it’s been tested, but tell me how it actually functions.

What does it tell you and what does it allow you to do?

EGURBIDE: A needs and risk assessment

tool … and now there are some tools that are just risk assessment. The Center for Court Innovation tool that we

use was selected specifically because it also focuses on a needs assessment. So again, when you talk about restorative

justice, our program, the Neighborhood Justice Program, intercepts those individuals at the pre-filing stage, before

a case- a criminal case is ever filed against them.  That allows us to take a look at needs responsivity,

take a look at what are some of the dynamic risk factors that this individual exhibits and be able to fashion out

either resources or obligations that will address those needs and that risk.

I think when you’re

talking about, as Denise was mentioning, Smart Prosecution, this is an evidence based approach that will lead to

better outcomes. It will lead to a lower level of recidivism.

WOLF: So Mark, what do you do? You

get the results of the assessment and then what kinds of sentences, or I guess they’re not formal sentences

because it’s diversion, but what kind of services are you linking the offenders to?

KAMMERER:

One of the things that we were able to do with our Smart Prosecution grant program was to give specific types of

interventions to people based on the level of their risk. What had happened in the past, we had a misdemeanor diversion

program without risk assessment and everybody that was eligible for other reasons, all received the exact same intervention

with the exact same expectations.

Now with this program, we divide- the CCI tool divides people

into low, medium and high risk levels and so we have a different expectation of people, what they need to do in order

to have their case dismissed based on the level of their risk. What we do is, people at the lowest levels have an

intervention and maybe an assessment and a referral to services; at the high end, are required to be engaged in a

cognitive behavioral therapy program. We’re looking at changing criminogenic thinking for people that are higher

risk.

A side benefit for us has been the ability… is to show that people with a higher level

of risk can be just as successful in a program like this as the people with a low level of risk. We’ve actually

been able to expand our eligibility criteria in terms of charging within the time period that we’ve been with

this grant funding. People who would not have been eligible when we started this program, now are eligible because

we’ve been able to show people with a little higher risk are not really a higher risk, they just need a different

intervention.

WOLF: Just for people who are listening who might not be familiar with the risk

needs responsivity theory, which is what this whole model is based on, that a response or treatment in order for

it to be effective, it needs to match the offenders risk of re-offending. Someone at a higher risk of re-offending

should have a higher intensity intervention.

KAMMERER: I’m sorry to interrupt, but that’s

exactly what we designed. People with a higher level of risk have a higher expectation. You’re exactly right.

O’DONNELL: You know, I just want to add from BJA’s perspective, risk needs assessment tools have been

around for a long time, but what CCI did was develop a tool specifically for low level and misdemeanor offenses which

tailors the kind of response to fit the offense since individuals might normally face a couple days in jail or a

week or two in jail, so do the interventions or the alternatives match that level of accountability. Referrals to

services instead of spending 2 days in jail hopefully has a much better return on our investment.

WOLF:

Let me ask you, Denise O’Donnell, the Bureau of Justice Assistance, as you said, this program links the prosecutors

also with a research [partners 00:10:29] and you’re encouraging prosecutors and other justice practitioners

to use evidence based tools. Obviously, there’s a theme here that using evidence based strategies is important.

Maybe you could talk a little bit about why it’s important and you think, obviously these guys here and their

offices have gotten that message, but is that message getting out as far and as wide as you’d like it to get

out to prosecutors and courts and such?

O’DONNELL: Well, it’s always a struggle to reach

everyone, but I think this conference is a good example. 400 people here participating in community justice programs.

We had a recent grant solicitation for community justice programs and had 70 different jurisdictions want to establish

those programs. We can only fund 10 of them. The demand is certainly increasing but what we see in Smart On Crime

solutions is that you have to really have pilot programs. Like we see, beyond pilot programs, but you have to have

programs that you evaluate and look at the outcomes. I think that is what convinces people that a) we can expand

the model because we have some really good results or other jurisdictions become interested in trying to replicate

what has been successfully done in Los Angeles or here in Cook County.

WOLF: Jose, you wanted

to say something?

EGURBIDE: I just wanted to say that, just to echo Denise’s comments, that

through our City Attorney, Mike Feuer, who really embraces restorative justice and transformational as opposed to

transactional approach to addressing these offenses, I think that we’re really changing the way that our traditional

criminal justice system works. We’re alleviating an already congested system, but we’re doing it in a way

where, as Mark said, we’re able to fashion out specific engagement strategies for each individual because we’re

using Smart Prosecution, because we’re using a risk and needs assessment tools that’s specifically designed

for low level offenders. I think it’s great and I think that the tool, for those listeners that may not be familiar

with it, allows you to identify either housing issues, education issues or other challenges that an individual might

have and be able to link them to those services. At the end, what you have is a person who’s being held accountable

but also comes out of the process a little bit better without the negative consequences of a conviction or something

that’s going to hinder them from going forward in a positive way.

WOLF: I think that nicely

summarizes what the Smart Prosecution Initiative is all about. I want to thank you, all 3 of you, for taking the

time out from the Community Justice 2016 to speak with me.

EGURBIDE: Thank you, Rob.

O’DONNELL: Thank you.

KAMMERER: Thanks for asking us.

WOLF: I’ve

been speaking with Denise O’Donnell who’s the Director of the Bureau of Justice Assistance at the Department

of Justice, Mark Kammerer, Supervisor of Alternative Prosecution and the Sentencing Unit at the Cook County State’s

Attorney’s office here in Chicago and Jose Egurbide who is the Supervising Attorney in the Los Angeles City

Attorney’s office. I’m Rob Wolf, Director of Communications at the Center for Count Innovation. Thanks

for listening.