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Cecilia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. 101 (2015).

To build coalitions on controversial issues where worldviews collide, you have to search for common or at least less contentious ground. Disagree on the rights and wrongs of the death penalty? Rather than moral head-butting over abolitionist legislation, let’s talk instead about the millions of extra taxpayer dollars spent on trying to attain capital sentences that may never be carried out. Disagree on whether mass incarceration is a moral and humanitarian crisis or sound safety protection? Rather than shouting past each other, let’s talk instead about a common denominator of concerns over the crippling costs to taxpayers of paying for overstuffed prisons. Money talk may bridge impasses and offer a seemingly more neutral way out of the morass of competing worldviews.

Similarly, now that there is a historic convergence of interests around decarceration, concerns over the perils of releasing prisoners and recidivism risks are addressed by the promise of scientific selection. Evidence-based is a hot buzzword in everything from medicine to corrections. The appeal and authority of the notion of evidence-based practices is the promise of an objective rigorously evaluated foundation to justify decisions. Evidence-based corrections reassures communities and the nation that risks will be managed scientifically and costs and benefits meticulously balanced.

Cecilia Klingele’s new article offers an excellent guide to the proliferation of evidence-based practices in the correctional context. She argues that while many evidence-based approaches aim to offer smarter alternatives to mass incarceration and reinvigorate rehabilitationism, the practices may also perpetuate and extend a culture of control. Most intriguingly, Klingele calls for a return to values and normativity.

Klingele notes the strategic decision to get buy-in from states by offering a technical rather than normative pitch about the merits of evidence-based correctional practices in lieu of human warehousing. While the strategy has been successful, Klingele calls attention to the sacrifice about confronting deeper values questions. She writes:

[P]olicymakers from across the political spectrum have adopted evidence-based correctional practices because they promise financial savings, increased efficiency and “scientifically proven” results – not necessarily because they believe current correctional practices are morally unjustified. . . . The problem is that the cost of maintaining buy-in from a broad range of policymakers has been neglect of a deeper conversation about the goals of the correctional system, and the uses to which new evidence-based tools will be put. . . . But there are no shortcuts to cultural change. (P. 133.)

Fundamentally, evidence-based correctional practices decide the fate of human beings, not “depersonalized ‘risks.’” Klingele argues that we should openly acknowledge moral values such as fairness and kindness and not obscure or try to recharacterize them as evidence-based.

Klingele terms the revival of rehabilitation neorehabilitation and identifies two strains: humanitarian and scientific. Scientific neorehabilitationism supplies the evidence base to identify effective interventions. Humanitarian neorehabilitationists value rehabilitative efforts even if they do not yield measurable lasting indicia of effectiveness because of the signaling about human dignity, worth and the need to mitigate penal harshness. At bottom, Klingele appears to be a humanitarian neorehabilitationist.

She values the dignity of the individual human and worries that the discourse of evidence-based practices will simply be the preservation by transformation of what Malcolm Feeley and Jonathan Simon termed the new penology in the early 1990s. This approach deploys data about populations to better “identify and manage unruly groups” and sort people. Klingele argues that we should aim higher, beyond building better algorithms for managing and sorting people. We should judge the worth of innovations by moral and normative criteria, not just scientific measures for effectiveness.

Klingele’s call to bring values back into the evaluation is all the more noteworthy because she serves as an Associate Reporter on the American Law Institute’s Model Penal Code Sentencing revision. She has an excellent vantage point to help shape future corrections policy. We are fortunate that someone able to elegantly navigate and translate between the worlds of scientific and normative evaluation is playing such an important role in helping chart the future.

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Cite as: Mary Fan, Bringing Values Back, JOTWELL (May 3, 2016) (reviewing Cecilia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. 101 (2015)),