Security September 2010

Prison Without Walls

Incarceration in America is a failure by almost any measure. But what if the prisons could be turned inside out, with convicts released into society under constant electronic surveillance? Radical though it may seem, early experiments suggest that such a science-fiction scenario might cut crime, reduce costs, and even prove more just.

Criminals typically differ from the broader population in a number of ways, including poor impulse control, addictive personality, and orientation toward short-term gratification rather than long-run consequences. More than a fifth of all incarcerated criminals are in for drug offenses, and a large portion of the others abuse legal and illegal substances. If one were to design a criminal-justice system from scratch with these characteristics in mind, it would be difficult to come up with something less effective than what we have today.

Take the world of supervised release, for example. With some exceptions (BI clients prominent among them), parolees and probationers know that if they violate the terms of their release, they are unlikely to be caught—and even less likely to be punished. So, impulsive as many of them are, they will transgress, perhaps modestly at first, but over time with growing recklessness, until many have resumed the criminal habits—drug use, theft, or worse—that got them arrested in the first place.

This prevailing condition is something Mark A. R. Kleiman, a professor of public policy at the University of California at Los Angeles and a leading advocate of non-prison alternatives, calls “randomized severity”: some transgressors will be punished for violations, sometimes quite harshly, but others will not be punished at all, whether because their delinquencies go undetected or because judges, police, and parole officers decline to pursue the severe penalties that could apply. In his 2009 book, When Brute Force Fails, Kleiman argues that such capricious enforcement undermines efforts to reduce crime, and moreover that tough penalties—such as the long sentences that have contributed to clogged prisons—don’t do much to help, despite their high cost. The alternative, Kleiman suggests, is a paradigm called “swift and certain” justice, first proposed by Cesare Beccaria in the 18th century: immediate, automatic penalties—though not necessarily severe ones—doled out by credible, identifiable figures.

One way to achieve this result is through monitoring devices like those supplied by BI. But a pioneering judge in Hawaii has demonstrated that it can also be accomplished without the technological assist. In the early 2000s, Steven Alm, a circuit judge in Honolulu, grew increasingly frustrated with what he viewed as a farcical probation system. The majority of the cases he saw were drug-related offenses, including property crimes such as burglaries and thefts from tourists’ rental cars. Many of the defendants in his court received probation, but once they were back on the street, they might as well never have been convicted. Drug tests, for instance, were scheduled a full month in advance, even though the test could detect meth use only within the previous three days. Despite this, probationers still tested positive about half of the time, indicating that they couldn’t stay clean for even that short interval.

One reason for the backsliding, presumably, was that violators knew that in practice they had little to fear. Probation officers had limited time and resources, and to ask for a convict’s probation to be revoked would require a great deal of work. Moreover, officers weren’t always eager to send someone to prison for five years just for getting high. Since the probationers viewed the enforcers of their probation as lenient, overworked, and somewhat unpredictable, they correctly assumed there was a good chance they could get away with toking up at will.

Then, in 2004, Judge Alm decided to test the “swift and certain” paradigm. “It’s something we always talk about in the sociology classes,” he told me. “It just never happens in the criminal-justice system.” Alm, a former U.S. attorney who was born in Hawaii, instituted what academics such as Kleiman describe as one of the most innovative and successful alternatives to incarceration in recent years. The basic tenet will be familiar to anyone who has ever trained a puppy: punishment must be consistent and immediate, in order to maintain a clear linkage between transgression and consequences. Alm began by assembling 34 probationers chosen because their profiles suggested they were especially incorrigible. He told them: “Everybody in this courtroom wants you to succeed on probation. But for you not to be in prison means you are making a deal with me to follow the rules. If you don’t want to follow the rules, tell me now, and I will send you to prison.”

The rules were simple: each probationer had to call in to the courthouse every weekday to find out whether he was required to come in for an observed urine test. These tests occurred frequently, and if a probationer ever failed a test or failed to report for a test or a meeting with his probation officer, he was locked away for two days and hauled before the judge for immediate continued sentencing. The justice system under Alm was a consistent and unforgiving machine, dispensing instant punishment for every transgression. The effect was to make life on the outside a little more like life on the inside, with strict, regular monitoring of everyone in the system. If you used illegal drugs, you would be caught.

Alm worked with Kevin Takata, a supervisor in the prosecutor’s office, to come up with a form that reduced the paperwork time for demanding a probation modification from hours or days to minutes. And rather than require a complete overhaul of the terms of a violator’s probation, the judge simply handed down jail time. In practice, the sentences were not especially long—days or weeks, in most cases—but, as Kleiman argues, it was not the duration of punishment but the certainty that was crucial.

The results of Alm’s program, called Hawaii’s Opportunity Probation with Enforcement, or HOPE, astonished everyone. The probationers shaped up quickly, and over time they showed remarkably little inclination to go astray. The urine tests came back dirty a tenth as often as before. “We discovered that most of these guys can stop using on their own,” Alm explained, given the discipline imposed by HOPE. For most probationers, the strict observation was as good as, or better than, any drug-treatment program. It generally took no more than one stint in jail before an offender realized that the consequences of a relapse were real; second violations were unusual. And according to a study co-authored by Kleiman, recidivism—that is, arrests for the commission of new crimes, rather than just violations of probation—dropped by half.

Alm was inherently skeptical that prison is the appropriate remedy for many types of offenses. “You don’t want to send a 20-year-old who’s driving a stolen car and has a little dope on him when he’s caught to prison,” he said. “He’s not going to come out better. I belong to the school of judge-thought that says we should be sending to prison the people we are afraid of, or who won’t stop stealing.”

Probation officers started volunteering their problem cases to Alm’s court, and now all of his cases—more than 1,300—are HOPE probationers. Still more remarkable, the demands of the program—constant testing, appearances before the judge—have not overwhelmed the court system. Violators come in to see the judge, and attorneys complain about having to show up for hearings over even the smallest violations of probation. But overall, the court’s volume of work per offender has declined, as has the cost to the state. “You can get someone out working, versus having the state lock them up at a cost of $35,000 per year,” explained Myles Breiner, the president of Hawaii’s association of criminal defense lawyers. “Who wants to spend more money on the Corrections Corporation of America?”

Outside Hawaii, prison analysts are cautiously optimistic. “Certainly it should be tried in other jurisdictions,” said Gerald Gaes, a social scientist and former director of research at the Bureau of Prisons in Washington, D.C., though he was quick to caution that certain aspects of Hawaii may make the state unique in the U.S. criminal-justice system, and therefore its experience may not be generalizable to the country at large. To date, no other state has attempted a program as streamlined as HOPE, or as capable of meting out swift and certain punishment. But Alm is evangelizing aggressively. This year, he met with Attorney General Eric Holder and testified before a House subcommittee on crime about the possibility of expanding HOPE nationwide. “Down the road, I’m convinced: probation, pre-trial, parole,” he said. “We try to use best practices. Well, this truly is the best practice.”

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Graeme Wood is an Atlantic contributing editor.

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