Swift, certain, and fair punishment: 24/7 Sobriety and HOPE: creative approaches to alcohol- and illicit drug-using offenders.

Author:Larkin, Paul J., Jr.
Position:Hawaii's Opportunity Probation with Enforcement - II. Two Innovative Approaches to Alcohol- and Illicit Drug-using Offenders B. Hawaii's Opportunity Probation with Enforcement Program through Conclusion, with footnotes, p. 69-94
 
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  1. HAWAII'S OPPORTUNITY PROBATION WITH ENFORCEMENT PROGRAM

    A state trial court judge in Honolulu, Hawaii, independently came up with the idea to try a similar program, focusing on drug use, in his court. Judge Steven Aim decided to try out for a select group of probationers a program using the same swift, certain, and fair punishment theory that underlies the 24/7 Sobriety program. (146) Judge Aim was concerned that he repeatedly saw offenders appear for a probation revocation hearing only after they had committed multiple probation violations. The sporadic and delayed use of the severe penalty of probation revocation was not deterring offenders from violating the conditions of their release. (147) What probationers were learning was twofold: The first dozen or so probation infractions were "free." Probationers might or might not be punished for future violations, but whether, and if so when, the court would revoke probation was entirely unpredictable. Given those realities, Judge Aim concluded that the traditional approach to probation enforcement was not working. After having his own Howard Beale moment, (148) Judge Aim went about fixing the system. His answer was Hawaii's Opportunity Probation with Enforcement, or HOPE, project.

    HOPE resembles the medical model of "triaging" offenders, with Judge Aim serving as the director of emergency medicine. (149) In Hawaii, some offenders go to prison; some are placed on the same type of probation-as-usual historically used; some are sent to drug courts; and some join the HOPE project. (150)

    The first step in dealing with individual offenders in HOPE is to encourage them to succeed and inform them what is expected of them. Instead of letting probationers learn via the offender grapevine how the new system operated, Judge Aim would call every new HOPE probationer into his court and personally tell them how his approach would work. (151)

    Judge Aim also decided to upend the historic approach to probation revocation. Instead of treating imprisonment as the only alternative to continued release for a probation violation, he reserved the right to modify an offender's conditions of release while leaving his probation in effect. Instead of using long-term imprisonment as the only sanction, he would typically impose short terms of confinement in jail for the first infraction, with the severity remaining the same or increasing for a second or subsequent violation. Instead of imposing a sanction randomly and after a long delay, he would remand an offender to jail for an infraction in every case, with the sentence to begin immediately. If the offender had spent time in jail waiting for the hearing, he would be credited with time served. If an offender failed the drug test but immediately took responsibility for his actions, the jail time would be short, just a few days. If an offender absconded, however, the sanction would be at least thirty days in jail. (152) Repeated absconding would result in imprisonment. (153) Instead of considering only whether a probationer violated any one of the full range of release conditions imposed on him, he would require every offender to be frequently and randomly tested for methamphetamine use (and a few other drugs--opiates, cocaine, marijuana, and PCP), given the high correlation in

    Hawaii between methamphetamine use and crime, (154) thereby simplifying and shortening any necessary probation modification hearing. Instead of issuing orders that other criminal justice system participants carried out when it suited them, he enlisted the cooperation of participants in the local criminal justice system--for example, probation officers, public defenders, prosecutors, correctional officials, the United States Marshal's Service, the sheriffs, and the police--to make enforcement of his new approach a priority. Instead of trying to replace the entire probation system at once, he would select a small group of offenders as a pilot project and expand the size of the program over time if it proved successful. (155)

    Judge Aim kept his word. He called into his courtroom for the first Warning Hearing the thirty-four probationers chosen for his pilot program; he explained the HOPE program to them and told them that he hoped they would succeed; he instructed them regarding what was required of them and what would happen if they went astray; (156) and he subjected the offenders to frequent, random drug testing, using on-the-spot testing kits to avoid laboratory delay. (157) Every probationer testing positive, or failing to appear for drug testing, was taken into custody immediately or as soon as possible. The probation officer completed a standardized form containing the offender's name, the details of the violation, and the drug that he had used. Within seventy-two hours, the judge held a brief probation modification hearing, focused only on the test results. (158) And he either sentenced every such probationer to a short term of confinement in the local jail (for example, two or three days), after which the probationer would be released and the process begun anew, or gave the offender credit for time already served pending the hearing. (159)

    Judge Aim's program worked. (160) Evaluations conducted three and six months after the program began revealed a decrease in drug use, missed appointments, rearrests, and probation revocations among the participants.

    Three years after the judge started the HOPE program, Professors Angela Hawken and Mark Kleiman conducted a randomized control evaluation of the project. The report found that HOPE participants were successful in several ways:

    * There was an 80% decrease in positive drug tests among participants;

    * Participants were 55% less likely to be arrested for a new crime;

    * 72% less likely to use drugs;

    * 61% less likely to skip appointments with their supervisory officer; and

    * 53% less likely to have their probation revoked. (161)

    In addition, because Judge Aim sees probationers only for an initial warning or a later violation hearing, he is able to supervise a large number of felony probationers--currently, he supervises 1,900. (162) Various other scholars have also analyzed the HOPE program or similar programs adopted in other jurisdictions, (163) and they too have touted the model's successes. (164)

    On the whole, the HOPE program has been cost-effective, even though it is more expensive in the short run than traditional probation. (165) The average yearly cost for someone on probation is approximately $1,000. The comparable cost for offenders in the HOPE program is higher, roughly $2,500, which includes the costs of any treatment. (166) As Hawken put it, however, HOPE should be seen as "behavioral triage." (167) HOPE costs less than mandatory drug treatment and does not use up treatment slots for offenders who can kick their habit without the intensive supervision of inpatient drug care or a drug court. (168) Moreover, the success rate of the HOPE project can save the considerable costs of unnecessary incarceration, which have skyrocketed over the last four decades as an ever-larger number of offenders have been imprisoned. (169) And those results do not include the ancillary savings from decreased drug use by offenders: smaller drug markets, individuals spared from becoming victims of crimes committed by drug-seeking criminals, and reduced suffering by the family members of otherwise-imprisoned offenders.

    What may be particularly noteworthy about the HOPE program is that, in Judge Aim's words, "HOPE targets the toughest offenders." (170) Participants in the HOPE program have included violent offenders, sex offenders, and offenders with a history of noncompliance with the terms of ordinary probation. (171) That is an unusual feature of community corrections programs. Including the "toughest cases, the ones most likely to fail on probation," (172) would be deemed risky because it likely would reduce the success rate. Drug courts, for example, often exclude such parties from their programs, (173) which renders them susceptible to the criticism that successful results do not fairly represent the likely outcome of a large-scale implementation of that approach. HOPE also may not work for every offender, but it does appear willing to assume a greater risk of failure than drug courts, and it has a success rate of approximately eighty percent. (174)

    1. THE NEXT STEPS

  2. THE REASONABLENESS OF THE OPTIONS

    The 24/7 Sobriety and HOPE programs appear to be reasonable, measured steps toward a sensible solution to the complementary problems of substance abuse and crime. The programs avoid the risks involved in the extreme positions that some advocates propose: either ratcheting up the punishment for drug use to an even more severe level or completely jettisoning the current approach toward drug use by legalizing all or most controlled substances. Those proposals are unsound and unattainable, theoretically and politically.

    As a policy matter, neither position would be a wise choice. We increased the penalties for drug crimes nearly three decades ago in the Anti-Drug Abuse Act of 1986; (175) we have built new penitentiaries and outsourced that function to private parties; (176) we have sent thousands of offenders to prison for those offenses; (177) and we lack the ability and willingness to underwrite even more punitive sanctioning of drug use than we have witnessed for the last four decades, even assuming that stiffer penalties would make a difference. (178) Atop that, we lack the foresight to confidently predict the consequences for society that could result from the radical change in direction that large-scale decriminalization, to say nothing of across-the-board legalization, could have, especially in a brief period of time, for drugs like heroin or cocaine. Such policies, as Stanford Law Professor John Kaplan argued, could lead to a considerable increase in the number of drug users, perhaps reaching the point at...

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