Penal theory

January 10, 2010 6:54 PM

The threat of a mild punishment imposed reliably and immediately has a much greater deterrent effect than the threat of a severe punishment that is delayed and uncertain. A state trial judge in Hawaii, was frustrated with the cases on his docket. Nearly half of the people appearing before him were convicted offenders with drug problems who had been sentenced to probation rather than prison and then repeatedly violated the terms of that probation by missing appointments or testing positive for drugs. Whether out of neglect or leniency, probation officers would tend to overlook a probationer’s first 5 or 10 violations, giving the offender the impression that he could ignore the rules. But eventually, the officers would get fed up and recommend that Alm revoke probation and send the offender to jail to serve out his sentence. That struck Alm as too harsh, but the alternative — winking at probation violations — struck him as too soft. “I thought, This is crazy, this is a crazy way to change people’s behavior,” he told me recently. So Alm decided to try something different.

He reasoned that if the offenders knew that a probation violation would lead immediately to some certain punishment, they might shape up. “I thought, What did I do when my son was young?” he recalled. “If he misbehaved, I talked to him and warned him, and if he disregarded the warning, I gave him some kind of consequence right away.” Working with U.S. marshals and local police, Alm arranged for a new procedure: if offenders tested positive for drugs or missed an appointment, they would be arrested within hours and most would have a hearing within 72 hours. Those who were found to have violated probation would be quickly sentenced to a short jail term proportionate to the severity of the violation — typically a few days.

posted by caddis (33 comments total)

This is excellent, thanks.
posted by bowline at 7:05 PM on January 10, 2010

Or, hey, you could just let them be drug addicts.
posted by empath at 7:06 PM on January 10, 2010 [13 favorites]

This is a dupe.
posted by delmoi at 7:10 PM on January 10, 2010

Interesting..

Many of the kids I work with are adjudicated, and often the response to a probation violation is......nothing........

and...of course... behaviors don't change.

over the past 30 years the juvenile justice system has moved from intervention to ...i don't know... throwing water on the hottest flame..... dealing only with those offenders whose behavior is most scary to the community.... as a result...those at the bottom end of the spectrum of "scary" are ignored... until they get to the top...

this won't work with everyone, but it will for a vast majority... and the move back to intervention is WAY overdue.
posted by HuronBob at 7:11 PM on January 10, 2010 [3 favorites]

Or, hey, you could just let them be drug addicts.

They'll still be drug addicts if they show up for appointments and stop doing drugs. So everybody can win!
posted by The World Famous at 7:18 PM on January 10, 2010 [5 favorites]

Reminds me of what a local judge told me a few years ago: Words to the effect of "I've always found it amazing that rehab works 100% of the time whenever I've got a child custody case in front of me, but somehow they always need "just one more time, judge" in rehab when they're looking at jail time on a subsequent criminal or probation violation charge." Myself and the other attorney in the room both nodded and knew exactly what he was talking about. I'm no sociologist/criminologist, but immediate consequences do matter.
posted by webhund at 7:21 PM on January 10, 2010 [2 favorites]

Good piece, thanks. I find it interesting that so much of our thinking about prison and crime is influenced by an unconscious melange of highly social things like group norms (including race, class, etc), attitudes around what is taboo, and highly emotive thinking, as opposed to what actually works.

It's interesting, in that many other (most?) areas of policy development are neither so highly discretionary, or moralistic (not to say the rhetoric isn't, of course). Public policy - despite what a lot of politicians say - is actually far more about number crunching and a basic kind of (albeit quite unbalanced) utilitarianism, and yet public policy around crime seems to me much more fraught than this (at least in Australia). Perhaps it's because of the number of departments - state, federal, criminal, judicial, etc. etc. - involved, but I think it comes back to those social, dare I say regressive, factors mentioned above.
posted by smoke at 7:36 PM on January 10, 2010 [2 favorites]

I can see the appeal of this, and it's possible there's a segment of people on parole or probation that will respond to this, but I worry about both the loss of leniency and the quick hearings.

People on probation or parole need lenient treatment because life on probation or parole is REALLY FUCKING HARD. You have to keep appointments, regardless of what's going on in your life. Parolees often lose jobs because they have to keep parole appointments, and that's ignoring the large numbers who don't have steady employment, but have to miss work opportunities(day laboring mostly) because on certain days they have to report, or be at home for a home visit. Some people don't make this choice; they go to work instead of going to see their PO, and, technically, that's a violation of their parole. The reason parole and probation officers don't immediately report these people is because they don't deserve it. Failing to report occasionally is normal. Even mild punishment for that behavior is counterproductive because it increases the strains of being probation or parole, which is a major part of why released offenders have trouble getting their lives back together.

Obviously, drug violations are a slightly different issue, but even there I find the quick turn around on the hearings to be somewhat troubling. If someone accused of a violation is going to fight it, they need time to put together a defense. If the violation is drug use, there is typically not much of a defense to put on, but in some cases there are and 72 hours is not enough time to put together a defense.
posted by Bulgaroktonos at 7:39 PM on January 10, 2010 [9 favorites]

“If he misbehaved, I talked to him and warned him, and if he disregarded the warning, I gave him some kind of consequence right away.”

He doesn't say what that is, but we can be reasonably certain it would be a violation of child abuse statutes if performed in public.

Or, hey, you could just let them be drug addicts.

Or even, gasp, treat them!
posted by clarknova at 7:48 PM on January 10, 2010

Or, hey, you could just let them be drug addicts.

But that's not really up to judges, that's for legislatures to decide.
posted by Bonzai at 7:58 PM on January 10, 2010 [1 favorite]

When my dog snarls at a child, I grab them and show them that I am the alpha at the very least within 6-8 months.
posted by benzenedream at 7:58 PM on January 10, 2010 [1 favorite]

we can be reasonably certain it would be a violation of child abuse statutes if performed in public.

Really? Lots of non-violent disciplinary measures for children can be carried out in public, and even more in the home: timeout, loss of privileges, going home from something fun, taking a toy away, yadda yadda. I am a loss as to why you jumped to this conclusion.
posted by i_am_joe's_spleen at 8:04 PM on January 10, 2010 [9 favorites]

This is such a better way of dealing with drug crimes for other reasons, too. If you can stay clean *without* treatment and just pass your drug tests, we don't have to waste forced rehab on you. If you *can't*, you can *choose* which treatment you go to-- and by divorcing the drug testing from the treatment program, it means that the program can serve the client, not be just another arm of the prison system.

It also means that the counselors don't have the power to say, send someone to prison for having sex-- like happened to Darryl Strawberry or one of those baseball players-- basically, he broke treatment program rules by having sex and got thrown out, thereby meaning he had to go to jail even though he committed no new crime. Under this system, the person could just go to another treatment center-- whatever, so long as they pass the drug tests.

It also means that if people aren't forced into treatment, the providers don't have an infinite supply of clients who go to jail if treatment fails. I suspect rehab would be a lot more effective if the *counselors* went to jail if the clients failed ;-)

Seriously, it's bad to give providers an infinite stream of forced clients and not have them accountable at all for outcomes-- this system means they have to attract customers, which should make them more user-friendly, which is known to improve outcomes anyway.

Simply giving people treatment options also improves outcomes. So it's win win win.
posted by Maias at 8:05 PM on January 10, 2010 [3 favorites]

Bulgaroktonos, do you have any idea how many probation violations occur the way you cited? I'm not disputing, just genuinely interested.
posted by smoke at 8:12 PM on January 10, 2010

I only have direct knowledge the parolees I've worked with, which is a fairly small number (five). Of those, two had chosen to go work instead of making an appointment. In the end when they got violated, missing those appointments was part of the reason, but both also had more serious issues. Obviously, this is the barest of anecdotes, but the lawyers I was working with said that it was a fairly typical dilemma, although you'll usually only get violated if there are other issues. Part of my point was that this judge wants to change that, which I think is unfortunate.
posted by Bulgaroktonos at 8:18 PM on January 10, 2010

Bulgaroktonos, I think the advantage of a quick hearing is that it's, well, quick. I worked in the revocation unit of the NJ parole board for a summer; this was the group that handled the people who violated the conditions of their parole and what would happen to them.

The normal course of a violation would be something like this:
1) Parole officer arrests the person for violating the conditions of their release. The person is put into a county jail.
2) A Hearing Officer from the Parole Board comes to the jail to hear out the PO and the parolee.
3) The Hearing Officer dictates an opinion, culminating with a recommendation. (This could be anything ranging from no action to total revocation of parole status; in the middle was stuff like shorter periods of time to be served in custody, inpatient or outpatient treatments, or to spend a period in a halfway house).
4) The opinion gets typed up and the appropriate forms filled out with the recommendation, and is presented to the members of the actual board. Most of the time the Hearing Officer's recommendation is accepted without question.

This can all take a while. Hearing Officers would have something like a 'territory', usually at the county level, and they'd have to handle all of the cases in that area. They might only be out holding these hearings once or twice a week at any given facility, and they need to match up their schedule with that of the Parole Officers. Then they dictate the opinion and turn it in; this usually happens on the one or two days of the week when the officer is back in the office. Then it's typed up; depending on how many other opinions there are to be done, this can take a week or more. Then it's presented to the board, which only considers revocation cases something like once every week or two (I forget what the exact frequency is).

My point in explaining the process is so that you can understand that things don't move quickly; it can be a week or two to even get a hearing, and then it may take up to a month for anything to come of it. In the meantime, that person is still locked up in a county jail. While the Hearing Officers usually tried to expedite cases where they recommended release, it didn't always end up being a quick thing. So you might have someone who, for example, missed an appointment with their PO because they had to work; the PO arrests him¹ and he goes into county jail. The ultimate outcome is that the Hearing Officer recommends release, but there's probably a week or more that this person is there.

The advantage of a quick hearing, and perhaps more importantly of quick processing of the outcome of that hearing, is that if the person is going to get released, they can do it without missing a week of work. Missing three days could still cause some problems, but missing a week or two is almost certainly going to make it hard/impossible to keep a job.

As far as I know, if a parolee is arrested for a violation, and they want more time to put together a defense, they can request a delay and will almost certainly get it. So I don't think that accelerating the process would hinder anyone's ability to defend themselves.<sup>2

1</sup> From what I noticed, most of the POs generally seemed to let things of that nature slide, as long as they weren't continual. If the person kept missing appointments, for example, the PO might decide that 'enough was enough' and violate them, and all the previous incidents would end up weighing against the parolee.

² Only in very rare cases was an attorney involved in a revocation hearing, though the right was certainly there.
posted by Godbert at 8:20 PM on January 10, 2010 [1 favorite]

You have to keep appointments, regardless of what's going on in your life.

In working fairly extensively counseling parolees and people on probation, a common thread seemed to be that very few of them really had internalized that "you have to keep appointments, regardless of what's going on in your life" is one of the primary rules by which everyone - parolee or not - must live in order to thrive as an adult.
posted by The World Famous at 8:27 PM on January 10, 2010 [3 favorites]

“If he misbehaved, I talked to him and warned him, and if he disregarded the warning, I gave him some kind of consequence right away.”

He doesn't say what that is, but we can be reasonably certain it would be a violation of child abuse statutes if performed in public.

Good grief, what a hasty judgment, clarknova!
posted by ArisingMutually at 8:35 PM on January 10, 2010

benzenedream: When my dog snarls at a child, I grab them and show them that I am the alpha

That seems terribly cruel to the child...
posted by hincandenza at 8:37 PM on January 10, 2010 [16 favorites]

Godbert, as a law student I represented parolees at revocation hearings; I'm quite familiar with how long things currently take (actually, our system took longer than that). My point was that the article talks about shortening that time significantly (the article references both parole and probation, although this judge only has jurisdiction over probationers). Specifically, the judge wants hearings done in 72 hours.

I want to see people who are going to get released back on the street as soon as possible, but the referenced 72 hours is simply not enough time to prepare anything resembling a proper defense. Also, for the record, I do not believe that parolees currently have an absolute right to counsel. Certain states choose to grant it to them, and under certain circumstances, the parole board is supposed to consider whether or not the parolee should be granted the right to counsel. The fact that we allow people to proceed unrepresented into a legal proceeding which ends with them getting incarcerated is a travesty only slightly related to the issues this article raises.
posted by Bulgaroktonos at 8:41 PM on January 10, 2010 [1 favorite]

This is Behaviorism 101. You don't change behavior with delayed rewards or punishments, but immediate ones.

I guess it's a positive thing. In the year 2010, one judge has finally reached the level of sophistication in attempting to control behavior that psychologists had achieved with lab animals in the 1950s.

If your goal is to control behavior via reward/punishment, this is a much better way to do it than the other way.

But as other commenters have pointed out, since we're talking about human beings, we might want to get beyond that whole "controlling behavior with reward/punishment" thing and see if we can address their real needs and problems.

Maybe we'll get that down in another 60 years.
posted by edheil at 8:49 PM on January 10, 2010 [4 favorites]

From my experience with people in the system Bulgaroktonos has a valid point. They are hard ass on the appointments because these people need rules, hard rules, to help them move forward, just like three year olds. Those rules sometimes clash with the real world. The whole point of Alm's program is to impose those sort of three year old appropriate conditions on the probationers. Nevertheless, if your three year old has a very valid reason for missing the timeline you have imposed you are not putting him back into the joint for a few days (time out). I like the predictability which aids the probationers, but you also need some small, very small, measure of flexibility to protect jobs etc. Good probation officers already provide this, the system per se does not. Bulgaroktonos is right, probation is really hard. It would be hard for you and me and all the regular people in the world, but for the fuck ups, and this is what gets most people convicted, it is beyond hard, and the 15 violations to get sent back to the joint? Well, that might be Hawaii but in some places it is only one.

Alm's process seems more suited to getting results. I remember a friend of mine from China saying that he was amazed how we over punished the stupid criminals who were not dangerous like drug users and sellers and on the other hand gave light sentences to scary criminals like armed robbers and murderers. Drug dealers will often do much harder time than murderers. Anyway token fast and reliable punishment is far more effective than the nuclear option doled out randomly. Deterrence is the product of harshness of the punishment and the likelihood of it being administered with a much higher facter being applied to the latter component. This is nothing new to students of penal theory, what amazes me is how widely ignored it is. Politics prefers crucification of criminals etc. but even with that in mind those in the know seem to willfully ignore the importance of quick and sure over harsh.
posted by caddis at 8:55 PM on January 10, 2010 [3 favorites]

This logic relates to the (ignored) fact that cruel and unusual punishments, like mandatory minimum jail sentences or the death penalty, do not effectively deter criminals. They just cost the state a lot of money.
posted by mek at 9:06 PM on January 10, 2010

Some people don't make this choice; they go to work instead of going to see their PO, and, technically, that's a violation of their parole. The reason parole and probation officers don't immediately report these people is because they don't deserve it. Failing to report occasionally is normal.

That's not true, at least in my state (Massachusetts). And please understand that I'm a fully indoctrinated child of New Left parents who sneers when he sees a police cruiser and generally thinks that cops are purely agents of the class system.

According to my wife's friend who supervises people on parole, if you are a parolee and call your supervising officer before your scheduled appointment to say "hey, I have to work and won't be able to keep the appointment," the PO will verify this (or even take your word for it) and allow you to reschedule or even miss it. If you get rung up for having to work (or any other excuse that can be confirmed), it's your failure to pick up the phone. I realize that people in the penal system often have trouble with basic life skills, but this is so basic that the blame can fall on no one but the violator.

This might not be the case everywhere, but we still have loads of people who manage to violate their parole despite this.
posted by Mayor Curley at 9:15 PM on January 10, 2010 [3 favorites]

For those people interested, this subject (and this judge specifically) has been researcher Mark Klieman's bailiwick. I cannot urge anyone enough to watch him speak in over 10 episodes at bloggingheads.tv. He recently put a book out, which I haven't picked up yet, but also is about this subject called When Brute Force Fails.
posted by Hypnotic Chick at 10:20 PM on January 10, 2010 [6 favorites]

Argh...I was so excited I didn't finish reading the article which completely talks about this. Sorry eveyrone.
posted by Hypnotic Chick at 10:22 PM on January 10, 2010

You have to keep appointments, regardless of what's going on in your life.
You have to show up for work, regardless of what's going on in your life.

These things are in conflict. That's the part of the problem. Perhaps there is an additional issue, that the parolees are not the sort to feel they can just phone and say "My boss will fire me if I'm not on the job!". And of course, loosing your job is often a parole violation of itself.

A part of this problem is that parole officers are seldom seen as potential positive source of assistance. Instead, they are The Enemy. The adversarial relationship can be a burden. Some parole/probation officers are good people who can sort out the bullshit, and want to. Other times they don't give a damn, and take pride in being hard-asses. Still other times their main goal is to not put themselves through any trouble.
posted by Goofyy at 11:32 PM on January 10, 2010 [2 favorites]

In my work as defense counsel, I can say that one of the most common, and most troubling, dilemmas I come across is that of needing to keep a client out of jail until trial, and yet knowing that they'll almost certainly screw up again during that time, and hurt their chances at trial.

I'd like to see more data, but if this can keep defendants from violating their parole in ways which hurt them exponentially more down the line, I might be in favor of it.
posted by Navelgazer at 12:29 AM on January 11, 2010 [1 favorite]

And by parole, I mean probation there. Sorry.
posted by Navelgazer at 12:29 AM on January 11, 2010

empath: "Or, hey, you could just let them be drug addicts."

Unless Hawaii is radically different from other states where I've lived, I doubt most of the people were there for simple possession. The people who are on probation and actually get 'randomly' tested tend to be ones who actually screwed up and have, as a condition of their probation, to stay clean or go to jail — generally because whatever they were arrested for was done while under the influence of something, or was somehow otherwise drug-related.

A friend of mine worked as a parole officer and used to run around collecting urine samples; the majority of his cases seemed to always be DUI or assault/battery while under the influence. The drug war is stupid (and I think he'd probably be the first to agree, frankly), but most of the people he talked about seemed to be doing a rather poor job of just being quietly addicted.

Also, he told me once that the most common probation violation was testing positive for alcohol. I guess it shouldn't be surprising — there are probably orders of magnitude more alcohol users (and alcohol-dependents) than drug users, because it's so much easier to get, but I thought it was interesting at the time. I assume most people on alcohol bans get there because of DUIs.
posted by Kadin2048 at 5:27 AM on January 11, 2010

So my sample size for this is exactly one, but the threat of quick punishment seems to have been the one thing that will deter my brother from wasting his life and my family's money on drugs. He was arrested last summer for, among other things, possession, and spent a night or two in jail until he was bailed out. He's on a sentence deferment program instead of probation but to me it seems to be a similar theory. He now has to go in to get drug tested as part of a random (theoretically) sampling program where he has to call in every day to see if he's been selected. He was rather lax about this at first, and one of his drug screens came back diluted. They immediately (don't not pass go, don't go home, here's your jumper, my parents had to go get his car from the parking lot) sent him to jail for the weekend. The next time he tests positive or diluted, it's jail for a week and so it progresses until they just take him out of the deferment program. Now apparently the general population jail terrified him, and he actually seems to be following the straight and narrow path for the first time in 10 years.

And while this is a huge burden for him, and he hasn't been able to find a job yet (not that he had one when he was using), and he's living with my parents when he's about to turn 31, it's nice to see the (however small) possibility of having my brother back when I was sure we'd lost him.
posted by This Guy at 7:04 AM on January 11, 2010 [2 favorites]

since we're talking about human beings, we might want to get beyond that whole "controlling behavior with reward/punishment" thing and see if we can address their real needs and problems.

Since addiction is largely a result of a reward/punishment system, I don't think it's particularly out of line as a method of treatment.
posted by rocket88 at 1:02 PM on January 11, 2010

Interesting read...
posted by ph00dz at 5:01 PM on January 11, 2010