Probation That Works

Swift and certain punishment reduces crime. Parolees love it.

Inmates welcome the sun in celebration of the Makahiki season, the ancient Hawaiian New Year, at the Sahuaro Correctional Center in Eloy, Arizona November 9, 2011.

Inmates welcome the sun in celebration of the Makahiki season, the ancient Hawaiian New Year, at the Sahuaro Correctional Center in Eloy, Ariz., on Nov. 9, 2011.

Photo by Samantha Sais/Reuters

Angela Hawken is a criminal justice researcher, and the subject of her daily toil is one of America’s most intractable problems: its bloated prison population. In the spring of 2006, she flew to Hawaii to investigate the latest in a long line of miracle cures; it would, she had no doubt, fail to live up to expectations, like the others.

Five years after receiving her doctorate in policy analysis, Hawken felt uncertain that the American penal system could be reformed—much less that it ever would be. The United States, with 5 percent of the world’s population, accounts for 25 percent of the world’s prisoners. Extraordinarily long sentences and a high recidivism rate have put more than 2 million people behind bars in the United States, with 4.5 million on probation or parole.

Over the years, one innovative reform program after another has materialized and then quickly receded from memory. So Hawken was skeptical when she heard that participants in a yearlong pilot program in Hawaii were 50 percent less likely to be arrested for a new crime and 70 percent less likely to use drugs. “In this line of work, when you hear something that sounds too good be true,” she said, “it’s because it is too good to be true.”

Hawken’s first inkling that she might be wrong came when an official from the judiciary picked her up at the Honolulu airport and drove her directly to the local jail. Customarily, she said, such visits are brief and carefully orchestrated. Her second inkling came when, upon arrival, she was told she had unlimited access to the prisoners. “That never happens.” But it wasn’t until she began speaking with the prisoners themselves that the moment of revelation came. “When I interviewed the inmates, that’s when I really knew: This is different.”

The program, called Hawaii’s Opportunity Probation with Enforcement, or HOPE, is based on simple precepts that the judge who created it likened to “Parenting 101.” It immediately jails, for no more than three or four days, offenders who miss a probation appointment or fail a drug test. Operating under the theory that judicial punishment should be “swift, certain, and proportionate,” it seeks to turn around behavior that the system ordinarily, though inadvertently, seems to perpetuate. A proffered meth pipe attains a new significance, the thinking goes, when it comes attached to the prospect of an immediate three-day tour behind bars. Moreover, such brief, predictably enforced jail stays are congenial to prisoners used to a more unpredictable and, to their minds, arbitrary system.

“Ordinarily, when you ask an inmate why he’s behind bars, it’s always someone else’s fault,” Hawken said. “ ‘I’m in jail because the judge is an SOB’; ‘I’m in jail because my probation officer had a bad day.’ ” But in Honolulu she encountered men and women who, unbidden and unpressured, praised the system that put them away, and told her they were locked up because they had “messed up”—something so unusual, she said, that it made her skin tingle. “That language of personal responsibility is unimaginable if you’re a criminal justice researcher.”

HOPE’s creator is an unrelentingly sunny and vigorous man named Steven Alm. He became a judge in 2001 after serving as Hawaii’s U.S. attorney. During his first week in office, he encountered rampant recidivism and a probation system that struck him as “crazy”: Probation officers would let slide up to 10 or 15 probation violations before they recommended to a judge that offenders be sent to prison. This practice is common in the rest of the United States, and because there are so many Americans on probation, its ramifications are enormous.

After his first, frustrating week on the job, Judge Alm began thinking about how he disciplined his kids. Children punished under a system that is consistent, predictable, and prompt, he knew, are less likely to misbehave than children who face delayed, arbitrary, and unpredictable punishment, and it was his insight to see that these parenting truisms could be applied to the incarceration system he oversaw. “I thought about how I was raised and how I raise my kids. Tell ’em what the rules are and then if there’s misbehavior you give them a consequence immediately. That’s what good parenting is all about.”

A skeptical probation officer suggested they keep statistics when the program was launched. A year later members of the Hawaiian judiciary surveyed the results with amazement: Participants in HOPE were 55 percent less likely than members of a control group to be arrested for a new crime, 72 percent less likely to use drugs, and 53 percent less likely to have their probation revoked. As a result, they served 48 percent fewer days of incarceration.

After Hawken visited Hawaii, she conducted a separate National Institute of Justice study, a randomized control trial on a group of new HOPE participants. Her data replicated the original HOPE numbers. “I was optimistic it would work,” says Alm, “but I had no idea it would work as well as it did.”  

More than a dozen states are now experimenting with pilot programs based on HOPE. Last June, legislators in Washington decided to enshrine “swift and certain” as law, immediately applying it to 70 percent of the state’s 15,000 offenders. The move distressed Hawken, who felt they were moving too fast—“I thought Washington would be the state that killed HOPE.” She was wrong: One year in, jail stays are down by two-thirds statewide. A researcher at John Jay College has estimated that HOPE could halve America’s prison population.

“There’s no reason HOPE should work only in Hawaii,” Alm said, “because it appeals to basic human psychology.” You don’t need to recall jargon-filled lessons about B.F. Skinner’s reinforcement theory from Psych 101 to see why swift and certain sanctions should work so well. There’s something thrillingly common-sensical about the concept. And research in cognitive psychology suggests that such a straightforward approach may apply with particular acuity to people who have become addicted to drugs or have fallen into lives of crime. As Alm put it, “The future is a nebulous enough concept for most of us, but for the guys we’re dealing with, you might go fly to the moon next year, or win the lottery. HOPE gives them something to think about when they’re considering whether to smoke ice tonight.”

HOPE’s two most important results are that it reduces crime, and it reduces the number of people in prison, Hawken said. “But to me the most exciting thing about it is its power to alleviate drug addiction.” Mark Kleiman, a drug policy expert at the University of California, Los Angeles, agrees. He said that HOPE is the best single solution to drug addiction he’s ever seen. “HOPE actually gets people to change their behavior by setting up a circumstance where their natural behavior moves in the right direction,” he said. “They don’t want to be arrested and go to jail, so they stop using. That’s a profoundly rehabilitative thing to do.”

The American prison population has doubled in the past two decades, and the penal system has become effectively retributive, not rehabilitative. (In a recent essay, former Supreme Court Justice John Paul Stevens used the word “disturbing” to describe the system’s severity. Harvard professor William Stuntz’s book The Collapse of American Criminal Justice takes an in-depth look at the problem). HOPE offers something for everyone: Liberals like it because it reduces time behind bars; conservatives like it because it strikes a no-tolerance attitude toward law-breaking; offenders like it because, compared with the normal system, it seems fair and consistent; and everyone can like it because it can potentially reduce the amount of money we spend putting and keeping Americans behind bars. It offers another great benefit for everyone: It dramatically reduces crime.

In early May Harvard’s Kennedy School of Government included HOPE in its annual list of the top 25 innovations in government, a decision that carries with it a certain irony: The theory of swift, certain, and proportionate punishment originated, as it happens, in the first book ever written about criminal justice reform. In On Crimes and Punishments, the Milanese philosopher Cesare Becerria argued that the surest way to deter crime was to enact clear, fair laws, and enforce them immediately and predictably. On Crimes and Punishments was published in 1764; two and a half centuries later, a small Pacific island 8,000 miles from Italy appears to be proving him right.