Swift and Sure

A New Tool for Fighting Crime:

GET SERIOUS ABOUT PROBATION

How do you force criminals to change their behavior?

Over the last 35 years, the US criminal justice system has been
spectacularly bad at answering this question. America is the most
punitive nation in the world, with 2.4 million of its citizens behind
bars and another 5.1 million on probation or parole. Yet according to
the latest national statistics, two-thirds of released prisoners
commit another serious offense within three years. After a generation
of draconian crime policy, America's crime rates are still among the
highest in the Western world. Instead of one costly problem, we now
have two: crime and mass incarceration.

Judge Steven Alm of Hawaii thinks he's found a way to alleviate both
problems: changing probation so that it changes criminals. Across the
United States, most probation violations go unpunished. A judge might
see an offender only after he has slipped up dozens of times, at
which point the judge will have a choice: let the violator off with
another warning or revoke his probation, sending him to prison for years.

"I remember another judge saying, 'I have two options: I can send
them to prison or to the beach,' " Alm says. "It was a crazy way to
change anybody's behavior."

So in 2004 Alm founded a program guided by the idea that probation
should be more strict but less harsh, with faster and surer
punishment. In standard Hawaii probation, drug tests were infrequent
and scheduled long in advance, but in the new program, called HOPE
(Hawaii's Opportunity Probation with Enforcement), probationers were
tested randomly, about once a week. Participants who tested positive
for drugs were arrested on the spot, tried within 72 hours, and
usually sentenced to jail for two to five days.

After just six months, HOPE probationers were 93 percent less likely
to miss an appointment with an officer or to fail drug tests,
according to data collected by Hawaii's Department of the Attorney
General. And since most HOPE participants were able to quit drugs and
hold down steady jobs, many stopped resorting to crime. Compared to
other probationers, HOPE participants were less than half as likely
to be rearrested for a new offense. Though HOPE cost $1,400 more per
probationer than the old system, it saved the state $6,000 per
probationer in reduced incarceration costs, according to the attorney
general's report.

There is no way to know if HOPE's record of success could be
replicated nationally, but if probationer drug abuse and crime rates
fell across the United States as dramatically as they did in Hawaii,
the United States could save literally billions of dollars while
seeing crime rates drop.

"It's a big deal," says Glenn Loury, an economist at Brown University
and an expert on race and incarceration. "Through affecting the
behavior of this population, through getting them more reliably off
illegal drugs, you could have a really substantial impact on their
criminal offending."

Several states, including Nevada and Oregon, are looking at similar
reform measures. And in November, Representatives Adam Schiff,
Democrat of California, and Ted Poe, Republican of Texas, introduced
a House bill modeled directly on the HOPE program. Though probation
reform is not a top legislative priority, HOPE has found support in
both parties. Democrats, especially those from cash-strapped states,
tend to like swift and certain probation because it reduces
dependence on prisons; Republicans like it because it emphasizes
personal accountability. "We're hungry for bipartisan ideas that get
us away from the paradigm we're in, where we're spending more and
more on incarceration and not seeing enough benefit," says Schiff.

Swiftness and certainty have been fundamental principles of
criminology for centuries. Cesare Beccaria, an Italian philosopher
and arguably the first criminologist, wrote in 1764, "The certainty
of a small punishment will make a greater impression than the fear of
one more severe." Several generations of experts reached the same
conclusion: Punishments are more effective when they follow closely
after crimes, and when they are levied consistently. Rather than
spend resources on spectacular sanctions, the state should make the
threat of punishment more credible.

Behavioral psychologists in the 20th century came to the same
conclusion. Randomized experiments with children, for instance,
confirmed that a slap on the wrist every time a child's hand wanders
to the cookie jar is far more effective than a sock to the jaw
delivered sporadically. "There's overwhelming evidence, whether
you're looking at pigeons or people, that we are motivated more by
things that are promptly connected to our behavior," says Dr. Keith
Humphreys, senior policy adviser at the Office of National Drug
Control Policy in Washington.

In Beccaria's day, most punishment was corporal and could be doled
out immediately. In the modern American system, where the primary
mode of punishment is imprisonment after a trial, swiftness and
certainty are harder to achieve. Juries take time to assemble, legal
appeals can take years, and the sheer size of the system dwarfs
anything Beccaria could have imagined. The result is more humane in
many ways, but it does not reflect the consensus among psychologists.

"Most criminal justice is kind of like a parent saying to their kid,
'If you don't clean your room today, there's a 50 percent chance that
a year from now I'm going to ground you for 10 years,' " says
Humphreys. "And the way of course you get your kid to do stuff is you
say, 'If you don't clean your room now, you will not get to that
movie tonight, and tomorrow will be a new day.' "

When Judge Alm took up his current post as a felony trial judge in
2004, the probation system he inherited looked like most probation
programs in America. Probationers repeatedly failed their drug tests
and officers usually looked the other way; given the paperwork
involved, there were not enough hours in the day to write up every
infraction. When repeat violators were finally punished, it was
usually with a prison sentence of 5 or 10 years.

Alm rounded up all his probation officers and announced a new set of
rules. No more benign neglect; all infractions would lead to arrest.
Alm rewrote the paperwork so that officers spent minutes, not hours,
writing up infractions. He also designed a new hearing that would
take an average of only seven minutes, vastly increasing the number
of hearings he could hold. Drug tests, Alm told his officers, would
no longer be scheduled weeks in advance, giving probationers time to
cheat or clean up at the last minute. Rather, HOPE participants would
be tested randomly. They would call a hot line each night that would
tell them whether they had to show up for a test the next day.

"That swiftness and certainty are valuable no one has ever doubted;
the question has always been how to make the actual criminal justice
system embody them," says Mark Kleiman, a public policy professor at
UCLA. "Steve Alm and the HOPE crew have demonstrated techniques that
put those principles into practice."

The new approach also provides a new way to fight drug abuse. Judges,
police, and probationers all agreed: Drug users had the hardest time
leaving crime behind them. The drugs that were popular in Hawaii,
notably methamphetamine, tended to cloud users' judgment, and they
created a constant need for money that was often sated illegally.
Treatment worked for some drug addicts, but others found ways to keep using.

"I used to give speeches about 'We can't arrest our way out of our
drug problems,' " says Alm. "Now, we may be actually getting to the
point where arresting people may be the best way to help them deal
with their drug problems and other problems. It's so ironic."

One such person, Jerry Lum of Honolulu, first went to prison when he
was 14. He was released three years later, but he violated the terms
of his probation and served seven more years. He has spent nearly
half of his 42 years behind bars and has smoked meth most of his life.

Though he was put on probation and ordered to give up drugs, Lum says
he slipped through the cracks. "I could game the system," he says. "I
used to be late to see my probation officer -- sometimes, if I knew
my drug test was going to be dirty, I wouldn't even show up. Now,
with HOPE, you know there are consequences."

President Obama's drug czar, Gil Kerlikowske, says it's time the
nation's top policy makers seriously considered swift and certain
sanctions, along with other evidence-based alternatives to
incarceration. "I believe -- and if I'm wrong, I'm sure I'll be
finding other things to do in a year or so -- that the American
public is more than ready to have a more detailed discussion about a
really complex problem, and that a bumper sticker answer to drugs or
to criminal justice is not sufficient anymore."

Jerry Lum agrees. He now lives with his brother in the Kalihi
neighborhood of Honolulu, where he works at an auto detailing shop
and spends time with his daughter. Every night Lum calls the hot line
and, when it's his turn, shows up promptly for his drug test. He has
been in the HOPE program for two years, and so far he has not tested
positive for drugs, missed an appointment, or in any other way
violated his probation. After years in and out of prison, Lum has not
spent a day in jail since joining HOPE.

"I hate to say it," he says, "but I'm the type of person that -- when
I wasn't supervised -- I kept screwing up. If I'm supervised, no problem."