Pubdate: Sun, 10 Jan 2010
Source: New York Times Magazine (NY)
Copyright: 2010 The New York Times Company
Note: The New York Times Magazine is a section of the Sunday edition 
of the New York Times
Author: Jeffrey Rosen
Note: Jeffrey Rosen, a law professor at George Washington University, 
is a frequent contributor to the magazine. He is at work on a book 
about Louis Brandeis.


IN 2004, STEVEN ALM, 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.

Alm mentioned his plan to the public defender, who suggested that it 
was only fair to warn probationers that the rules were going to be 
strictly enforced for the first time. Alm agreed, and on Oct. 1, 
2004, he held a hearing for 18 sex offenders, followed by another one 
for 16 drug offenders.

Brandishing a laminated "Wanted" poster, he told them: "I can 
guarantee that everyone in this courtroom wants you to succeed on 
probation, but you have not been cutting it. From now on, you're 
going to follow all the rules of probation, and if you don't, you're 
going to be arrested on the spot and spend some time in jail right 
away." He called the program HOPE, for Hawaii's Opportunity Probation 
With Enforcement, and prepared himself for a flood of violation hearings.

But they never materialized. There were only three hearings in the 
first week, two in the second week and none in the third.

The HOPE program was so successful that it inspired scholars to 
evaluate its methods. Within a six-month period, the rate of positive 
drug tests fell by 93 percent for HOPE probationers, compared with a 
fall of 14 percent for probationers in a comparison group.

Alm had stumbled onto an effective strategy for keeping people out of 
prison, one that puts a fresh twist on some venerable ideas about 
deterrence. Classical deterrence theory has long held that 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.

Recent work in behavioral economics has helped to explain this 
phenomenon: people are more sensitive to the immediate than the 
slightly deferred future and focus more on how likely an outcome is 
than how bad it is. In the course of implementing HOPE, Alm 
discovered another reason why the strategy works: people are most 
likely to obey the law when they're subject to punishments they 
perceive as legitimate, fair and consistent, rather than arbitrary 
and capricious. "When the system isn't consistent and predictable, 
when people are punished randomly, they think, My probation officer 
doesn't like me, or, Someone's prejudiced against me," Alm told me, 
"rather than seeing that everyone who breaks a rule is treated 
equally, in precisely the same way."

Judge Alm's story is an example of a new approach to keeping people 
out of prison that is being championed by some of the most innovative 
scholars studying deterrence today.

At its core, the approach focuses on establishing the legitimacy of 
the criminal-justice system in the eyes of those who have run afoul 
of it or are likely to. Promising less crime and less punishment, 
this approach includes elements that should appeal to liberals (it 
doesn't rely on draconian prison sentences) and to conservatives (it 
stresses individual choice and moral accountability). But at a time 
when the size of the U.S. prison population is increasingly seen as 
unsustainable for both budgetary and moral reasons -- the United 
States represents 5 percent of the world's population and nearly 25 
percent of the world's prison population -- the fact that this 
approach seems to work may be its biggest draw.

The HOPE program, if widely adopted as a model for probation and 
parole reform, could make a surprisingly large contribution to 
reducing the prison population. In many states, the majority of 
prison admissions come not from arrests for new crimes, as you might 
think, but from probation and parole violations. Nationwide, roughly 
two-thirds of parolees fail to complete parole successfully. Todd 
Clear, a professor at John Jay College of Criminal Justice in New 
York, estimates that by eliminating imprisonment across the nation 
for technical parole violations, reducing the length of parole 
supervision and ratcheting back prison sentences to their 1988 
levels, the United States could reduce its prison population by 50 percent.

Some in government are beginning to take notice.

In November, invoking the HOPE program as a model, the Democratic 
congressman Adam Schiff of California and his Republican colleague 
Ted Poe of Texas introduced legislation in the House that would 
create federal grants for states to experiment with courts that 
deliver swift, predictable and moderate punishment for those who 
violate probation.

There also appears to be a national audience for a broader 
conversation about new ways to shrink the prison population. Last 
year, a three-judge panel in California ordered the overcrowded state 
prison system -- the largest in the country, with more than 170,000 
prisoners at its peak -- to reduce the inmate population by tens of 
thousands of prisoners within two years in order to comply with 
constitutional standards for medical and mental health care. Facing a 
tightening budget crisis in September, California legislators added 
to the pressure by demanding a reduction in the prison budget of $1.2 
billion. In the U.S. Senate, Jim Webb of Virginia is leading a 
crusade for prison reform, insisting that fewer jail terms for 
nonviolent offenders can make America safer and more humane, while 
also saving money.

And in the Obama administration, Attorney General Eric Holder is 
questioning the value of relentlessly expanding prisons. In July, he 
declared that "high rates of incarceration have tremendous social 
costs" and "diminishing marginal returns."

The most effective way to shrink the prison population, of course, is 
not just to reform probation and parole but also to deter groups of 
potential lawbreakers from committing crimes in the first place.

If, in addition to bringing down the numbers of probation and parole 
revocations, police officers and judges could also address the core 
problems of drug arrests and street violence, the United States might 
even be said to have solved its notorious prison problem.

Is such an ambitious goal possible?

While it might sound too good to be true, the HOPE-style thinking 
about deterrence offers a promising road map for addressing all these 

ALTHOUGH HE ACTED on his own, Judge Alm did not design the HOPE 
program without inspiration. In the mid-1990s, when he was a U.S. 
attorney in Hawaii, Alm heard a presentation by David M. Kennedy, who 
is considered the patron saint of the new thinking about deterrence. 
Kennedy, who now teaches at John Jay College of Criminal Justice, 
spoke about Operation Ceasefire, a program he was designing to reduce 
youth violence in Boston. Along with his colleagues Anne M. Piehl and 
Anthony Braga, Kennedy worked with the head of the Youth Violence 
Strike Force, a division of the Boston Police Department. The police 
officer explained that while conventional deterrence hadn't worked, 
he had begun to persuade gangs to behave by issuing a credible 
threat: namely, that when a gang attracted attention with notorious 
acts of violence, the entire gang -- all of whose members likely had 
outstanding warrants or probation, parole or traffic violations -- 
would be rounded up.

Kennedy recalls this today as a breakthrough moment in his thinking. 
Ever since the days of Cesare Beccaria, the 18th-century philosopher 
and death-penalty opponent, classical deterrence theorists had 
focused on credibly threatening individuals; Kennedy's first 
innovation was to focus on increasing the legitimacy of law 
enforcement in the eyes of groups. "The legitimacy element has risen 
in my mind from being an important element of the strategy to the 
most important element," Kennedy told me. Convinced that the best way 
to increase legitimacy was to enlist what he calls the "community's 
moral voice," Kennedy set out to deter the most dangerous young gang 
members by persuading their friends and neighbors to pressure them 
into obeying the law.

In May 1996, Kennedy, Piehl and Braga helped to design the first of 
what came to be known as "call-in" sessions, intended to put gangs on 
notice that they would face swift and certain punishments. Working 
with Kennedy, probation and parole officers ordered gang members to 
attend face-to-face meetings with the police.

The gang members were given three warnings.

First, they were told that if anyone in their group killed someone, 
the entire group would suffer consequences. Second, the gang members 
were told that if they want to escape from street life, they could 
get help and job training from social service agencies and churches.

And finally, they heard from members of their community that violence 
was wrong and it had to stop. The results of the forums were striking 
and immediate.

Within two years, youth violence in Boston fell by two-thirds and 
city homicide rates by about half.

Why was Operation Ceasefire so effective?

One reason was that the warning hearings gave the gang members a 
sense of what to expect. Increasingly draconian sentences don't 
always reduce crime, and sometimes increase it. (After increasing in 
the 1980s, crime fell by 25 percent in the 1990s, but states that put 
more people in jail had a smaller decline than states that imprisoned 
fewer.) In part, this is because many people actually don't know the 
punishments they face.

In addition to offering knowledge, Operation Ceasefire provided 
certainty. The small numbers of gang members singled out meant they 
could trust that the police would be able to follow through on their 
threats. "If you can get people to behave by threatening them 
credibly, you'll need less actual punishment than if you let them run 
wild and punish only occasionally," says Mark A. R. Kleiman, author 
of the new book "When Brute Force Fails: How to Have Less Crime and 
Less Punishment." Kleiman, whom Alm consulted soon after initiating 
the HOPE program, became interested in swift, certain and moderate 
punishment when he was a colleague of Kennedy's years before.

Lastly, Operation Ceasefire gave gang members an incentive to obey 
the law by promising that they would get positive reinforcement from 
their families and neighbors for changing their behavior.

In all of this, Kennedy's insights were supported by a variety of 
recent research suggesting that people are more likely to obey the 
law when they view law enforcement as fair and legitimate. Tom Tyler, 
a psychology professor at New York University, has found that 
compliance with court orders is highest for offenders who perceive 
that they have experienced a fair process.

And in a recent book, "American Homicide," the Ohio State University 
historian Randolph Roth argues that throughout American history, the 
homicide rate has decreased when people trust that the government is 
stable and unbiased and believe in the legitimacy of the officials 
who run it. Similarly, the legal scholar Paul Butler argues in his 
new book, "Let's Get Free: A Hip-Hop Theory of Justice," that 
widespread incarceration in the 1980s and '90s undermined the 
legitimacy of law enforcement in the eyes of the affected communities 
by converting a prison term into something heroic rather than stigmatic.

After Operation Ceasefire, Kennedy turned his attention from gangs to 
open-air drug markets.

He set out to change how the criminal-justice system was viewed from 
the perspective of the offenders and their communities -- and how the 
offenders and their communities were viewed by the police.

As Kennedy told me, "I saw law enforcement believing plausible but 
untrue things about the communities they police" -- namely, that the 
communities were corrupt and didn't care about the violence that was 
destroying them -- "and the communities believing untrue things about 
the police" -- namely, that the cops were part of a racist conspiracy 
to lock up black offenders while overlooking white ones.

To correct what he calls a "corrosive and tragic mistake," Kennedy 
came up with the idea of a kind of truth-and-reconciliation 
commission in which offenders would talk to the police accompanied by 
the people they trusted the most: their mothers.

In 2003, working with James Fealy, the police chief in High Point, 
N.C., Kennedy arranged some preliminary meetings.

Although Fealy had been shocked to learn that the community thought 
he and his officers were almost as bad as the drug dealers, Fealy, in 
turn, surprised community members by declaring that no one in law 
enforcement thought the drug war could be won.

These meetings prepared the groundwork for the strategy that 
followed. After identifying 16 active drug dealers, Fealy arrested 
four and then prepared warrants for the other 12 that could be signed 
whenever the police chose.

He then called in the other dealers, nine of whom arrived accompanied 
by their mothers and other "influentials" like grandmothers, and 
delivered the following message to them as a group: "You could be in 
jail tonight.

We don't want to do that, we want to help you succeed, but you are 
out of the drug business." The mothers and grandmothers, seemingly 
impressed by the decision not to arrest, cheered on the police.

In subsequent meetings, the "influentials" shouted down naysayers, 
including a conspiracymonger who accused the C.I.A. of having created 
the crack epidemic to oppress black people.

The drug market in the area dried up.

IN ADDITION TO influencing Judge Alm's probation reform, Kennedy's 
efforts to rethink deterrence have also inspired one of the most 
powerful recent models for national parole reform, which comes from 
Tracey Meares, a law professor at Yale. (Unlike probation, which 
involves a sentence instead of prison, parole involves supervision 
after part of the prison sentence has been served.) In 2002, Meares, 
who was then a law professor at the University of Chicago, was asked 
by the U.S. attorney in Chicago, Patrick Fitzgerald, to analyze how 
best to address crime in the city. She concluded that they should 
begin on the West Side, in West Garfield Park and the surrounding 
area, where rates of murder and gun violence were more than four 
times the city average.

Fitzgerald suggested that they might implement a version of Project 
Exile, a controversial program in Virginia that sought to deter gun 
violence by threatening federal prosecutions -- and a five-year 
mandatory minimum sentence -- for repeat offenders convicted of 
illegal gun possession. But Project Exile had experienced only mixed 
success: federal prosecutors could prosecute only a small proportion 
of the gun cases submitted by the Richmond police.

The threat of a severe sentence was, in effect, something of a bluff.

Meares told Fitzgerald that threats of zero tolerance wouldn't work 
because they simply weren't credible.

Instead, Meares argued that law-enforcement officials should 
concentrate on specific groups of wrongdoers in ways they could 
accept as both reasonable and fair. Using Operation Ceasefire in 
Boston as a model, Meares identified everyone who had committed 
violent or gun-related crimes and had been released from prison and 
recently assigned to parole.

She gathered them in random groups of no more than 20 for call-in 
sessions in what Meares calls "places of civic importance" -- park 
buildings, local schools and libraries -- where they sat at the same 
table as the police in order to create an egalitarian, 
nonconfrontational atmosphere. They then heard a version of Kennedy's 
three-part presentation. The results of the program were drastic: 
there was a 37 percent drop in the average monthly homicide rate -- 
the largest drop of any neighborhood in the city. Violent crime in 
Chicago today is at a 30 year low. "All these strategies are a way of 
signaling to groups of people that government agents view them with 
dignity, neutrality and trust, which is the best way of convincing 
them that the government has the right to hold them accountable for 
their behavior," Meares told me.

 From Kennedy and Kleiman to Alm and Meares, the judges and scholars 
developing new deterrence strategies are changing the way we think 
about parole, probation, gang violence and drug markets.

But the strategies also present a rare opportunity to persuade the 
nation's policymakers that the most urgent case for prison reform is 
not only economic but also moral and practical.

Yes, it's an outrage that the United States locks up citizens for so 
long with such uncertain effect; but it's also self-defeating, 
because long sentences give rise to a crisis of legitimacy that can 
lead to more crime, not less.

A crisis of legitimacy may sound like a huge, perhaps intractable 
problem, but the tantalizing promise of the new deterrence thinking 
is that the crisis can actually be solved, practical step by 
practical step. The relative simplicity of the solutions, it turns 
out, is at the core of their radical potential.
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