National Pulse

Parole programs find benefit in swift-and-certain approach

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Judge Steven Alm

Judge Steven Alm. Photo courtesy of Judge Stephen Alm.

America's founders believed in creating a criminal justice policy that was swift and certain—yet at the same time less harsh than England's "bloody code," which favored capital punishment for many crimes.

The inspiration came from Cesare Beccaria, a 26-year-old jurist from Milan, who felt that justice improved when criminal sanctions were proportional and expedient. Doing so, he argued in his 1764 treatise, On Crimes and Punishments, “spares the criminal the cruel and superfluous torment of uncertainty.”

Now, 250 years later, Beccaria’s views are being embraced across the country through community release programs that take a “swift, certain and fair” approach to criminal justice.

Anne Milgram, formerly the vice president of criminal justice at the Laura and John Arnold Foundation and now a senior fellow at the Center on the Administration of Criminal Law at New York University School of Law, says that while much has been made about the 2.2 million people in American jails and prisons, there are 4.7 million on parole and probation who are at risk of further imprisonment for technical violations of their release.

For this reason the foundation — a Houston-based philanthropic group focusing on criminal justice, education and public accountability — is investing in the swift-and-certain approach to community supervision that got its start in Hawaii. The Arnold Foundation is partnering with the Bureau of Justice Assistance and other organizations.

Parental inspiration

The model’s proliferation coincides with a bipartisan push to reduce America’s reliance on incarceration. Since the start of Hawaii’s experiment 12 years ago, this simple idea has been tried in 31 states.

Hawaii Circuit Judge Steven Alm, the model’s architect, says the idea came from being a parent. “I thought about how I was raising my son, and when my kid did something wrong you do something about it immediately. You tie misbehavior with a consequence.”

Probation violators used to come through his Oahu court after multiple probation infringements. Alm had two disparate and subjective options to choose from: either talk to the person and provide support or send the violator to jail. This approach to probation was uncertain, disproportional and not standardized. It often resulted in long, prescribed jail terms.

Now the handling of technical violations is, as the name implies, swift and certain. Called Hawaii’s Opportunity Probation with Enforcement, or HOPE for short, it’s a deterrence model that, in the vein of Beccaria’s philosophy, applies a quick and predetermined sanction at the moment a violation is noted, usually in the form of a short one- to three-day jail term.

A 2009 National Institute of Justice study found the program works. HOPE participants were 55 percent less likely to be arrested for a new crime, 72 percent less likely to use drugs and 61 percent less likely to skip mandated appointments. In an ironic twist, this model uses jail to decrease incarceration.

Changing behavior

Mark A.R. Kleiman, a professor of public policy at NYU’s Marron Institute of Urban Management, says a short sanction is sufficient to create a positive behavior change: “You don’t have to hit people with a hammer to change their behavior.” The other factor is swiftness. Philip Miller, the chief U.S. probation officer for the Eastern District of Michigan and a co-chair of the ABA Criminal Justice Section’s Parole and Probation Committee, says that swift-and-certain is working because the sanction “happens so close to the violation.”

Taking the largest and quickest leap into the model was Washington state. After a 60-day pilot in Seattle in 2012, the Washington legislature scaled the program statewide and applied it to the more than 10,000 people on community supervision.

Alm does not recommend such a rapid expansion of the model. He believes it’s better to “start small and work out the bugs.” However, a recent study from Washington State University, funded by the Arnold Foundation, provides a positive assessment of the program’s impact.

“We were skeptical coming out of Hawaii, but we are excited about what we found,” says Zachary Hamilton, a co-author of the report and an assistant professor.

Before swift-and-certain came to Washington, a violation of community supervision resulted in 30 to 120 days in jail. Now an individual will be in jail for only a couple of days. The shorter punishment is less disruptive, explains assistant professor Jacque van Wormer, the report’s other author: “It’s easier to explain away a missed day to your employer than 30.”

In Washington, swift-and-certain participants are 20 percent less likely—compared to those on non-swift community supervision—to be convicted of a new crime, including felonies and property crimes, and 30 percent less likely to be convicted of a new violent felony. “Our study shows proportionality matters,” Hamilton says.

Swift-and-certain also improves the use and length of mental health treatment by participants. The report found that participation in cognitive behavioral therapies doubled among those jailed for probation violations. While not affecting the number of people in chemical dependency treatment, swift-and-certain participants spent 25 percent more time in treatment once enrolled.

Saving money

For the Washington Department of Corrections, this policy not only creates better outcomes but also saves money. The department reports it has saved more than $40 million since 2012, which represents $16 saved for every dollar spent on swift-and-certain. But even with these positive outcomes, there are still hiccups. While her clients speak positively about swift-and-certain, public defender Jill Gannon-Nagel of Spokane County notes that there have been evidentiary issues.

Under swift-and-certain, a DOC officer can arrest a participant for a technical violation of probation, such as a failed urine analysis, or a new offense. For the most part, this new authority does not create a problem. However, Gannon-Nagel has seen new charges where the evidentiary chain of custody was not handled appropriately.

Because of this problem of handling evidence, Benton County Prosecuting Attorney Andy Miller does not allow the DOC to book and charge people with new offenses. His concern, similar to Gannon-Nagel’s experience, was that DOC officers did not have the training to build a case or handle evidence properly. While his is the only county with this policy, it has not affected the implementation of swift-and-certain, which Miller says is “working very well.”

Each jurisdiction’s experience with this new approach creates unique hurdles and issues. The Washington report shows the need to follow the model’s core tenets in order to work best. Kleiman lists clear rules, clear warnings, immediacy and fairness as factors that are necessary for it to succeed. To help jurisdictions implement this model, Alm and the Institute for Behavior and Health, a Rockville, Maryland-based nonprofit that promotes drug policy reform, produced a swift-and-certain blueprint in 2015.

With this effort to share best practices, and the further spread of the model, Kleiman believes that swift-and-certain has become a national trend. However, the evolution of the program is ongoing. Kleiman, Miller and Alm feel the sanction-based model needs more rewards, such as granting days for good time or providing less supervision the more a participant succeeds.

With the specter of Beccaria quietly looming in the background, Alm strikes a hopeful, but realistic, note. “HOPE is not perfect. People in HOPE get charged with new crimes. But is this better than probation as usual? I think the answer is yes.”

This article originally appeared in the May 2016 issue of the ABA Journal with this headline: “Swift Consequences: Sending probation violators directly to jail could help reduce longtime incarceration.”

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