Bentham's Ideas Working in Hawaii

Bentham claimed that punishment needed to be

swift, sure, and certain to act as a deterrent. In

this article, the author explains how a Hawaiian judge

puts theory into practice with probationers and

parolees and has amazing success.

Steven Alm was no courtroom novice when he started

handling felony cases as a circuit judge in Hawaii. He’d

already been a judge for three years, and U.S. Attorney

for seven years before that. But in his very first week

handling a felony docket, he noticed something that

surprised him. It wasn’t the nature of the felony offenses—

he was prepared for that. It was the way the system dealt

with probationers: offenders who had been placed under

court supervision rather than being incarcerated.

Probationers were supposed to be amenable to correction.

Yet Alm was reading motions that consisted of page after

page of violations: 10 or more missed appointments,

dirty drug tests, failure to show up for treatment. In most cases,

all this misbehavior had essentially been ignored. Yet now,

all of a sudden, he was being asked to send the violator to

prison for five, 10 or even 20 years.

‘‘This is absolutely a crazy way to try to change anyone’s behavior,”

Alm thought to himself. So he tried an experiment. In place of the

existing practice, he proposed a kind of correctional time-out—brief

but immediate punishment. Anybody found violating any term

of his probation would be returned to a jail cell for a few days.

Some 34 probationers were placed under Alm’s supervision.

Eighteen were sex offenders; the others were chronic transgressors

who had been on probation for a variety of felony offenses.

Many had substance-abuse problems: About 40 percent

routinely failed even pre-scheduled drug tests.

That was five years ago. Today, Alm’s initiative, known as Hawaii

Opportunity Probation with Enforcement (HOPE), encompasses

nearly 1,500 of the roughly 8,000 probationers on Oahu. With very

little dedicated public funding, it has achieved extraordinary results:

It claims an 80 percent reduction in missed appointments,

an 86 percent reduction in the incidence of drug use and,

based on the best current estimates, a 50 percent reduction

in recidivism. A randomized evaluation of the program, slated

to appear later this year, is expected to show similar results.

Public-safety experts are hailing HOPE—and the ideas behind it—

as something that could transform the American criminal justice system.

Probation is the forgotten stepchild of the criminal justice system. It’s the

sanction judges use when they don’t want to send someone to jail.

Nationwide, more than 4.2 million people are on probation,

compared with 2.3 million people behind bars. Just over half

the probationers (51 percent) are there for a misdemeanor offense.

Most of the rest are felons. Probation shouldn’t be confused with

parole, which is court supervision following a prison term.

Parolees are a much smaller group: fewer than 1 million nationwide.

Judge Alm noticed immediately, and more recent studies have confirmed,

is that the threat of future punishment employed by the probation

system and most drug courts was ineffective.

In Judge Alm’s court, the swift and certain consequence was jail—

only for a short time, but right then and there. If a probationer

came in on a Friday and failed a test, he could be locked up

by nightfall. If that meant missing a child’s birthday or

graduation two days later, so be it.

Since drug use is a major problem, funds were obtained to

create a drug hotline. Each probationer has number and must

dial in each day. In a random pattern a probationer is told to

go in for a drug test that day. Research shows that for 80% of

probationers it is working to keep them from using.

With such good results, the question of why it is not emulated

in all the states is hard to answer.