S W I F T , C E R T A I N A N D F A I R Does Project HOPE Provide a Therapeutic Paradigm for Managing Offenders? L O R A N A B A R T E L S Swift, Certain and Fair Lorana Bartels Swift, Certain and Fair Does Project HOPE Provide a Therapeutic Paradigm for Managing Offenders? Lorana Bartels Head School of Law and Justice University of Canberra, Australia Bruce, ACT Australia ISBN 978-3-319-58444-7 ISBN 978-3-319-58445-4 (eBook) DOI 10.1007/978-3-319-58445-4 Library of Congress Control Number: 2017943471 © The Editor(s) (if applicable) and The Author(s) 2017 This work is subject to copyright. 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Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover image: Pall Jokull Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland This book is dedicated to Tim, Maxie and Amelia Foreword Judge Steven Alm conceived the idea for Hawaii’s Opportunity Probation with Enforcement (HOPE) Program in 2004. The basic premise is that offenders who violate the conditions of their probation should receive a sanction that is modest, but swift and certain (SAC), also known as swift, certain and fair (SCF). I first heard about HOPE in 2013, when one of the program’s evaluators, Prof. Mark Kleiman, came to speak about it at the Australian Institute of Criminology. As soon as Kleiman described the program and, in particular, its impressive results in reducing reoffending and substance abuse,1 I knew this was unlike anything I had heard about before. I am used to reading about programs that result in a 5% or 10% reduction in recidivism, but the figures Kleiman presented were of a different order of magnitude alto- gether. At the same time, much of how the program works contradicted all the things I took to be integral to the criminal justice system, such as judicial discretion and individualized justice, both of which are hall- marks of Australian sentencing law. The potential for net-widening (i.e., sending people to prison who otherwise wouldn’t have been likely to be exposed to it) also loomed large. By the end of the presentation, I was vii viii Foreword buzzing with both excitement and confusion. I had a brief chat with Kleiman, but ultimately dismissed the program as a quirky model pecu- liar to Hawaii, and gave it no further thought. In 2014, I was engaged by the government in the jurisdiction in which I live, the Australian Capital Territory (ACT), to help advise on what form of intensive supervised probation (ISP) it should adopt to replace weekend detention. In my discussions with the ACT Government, I mentioned that I had heard about the SAC model of supervision, and we agreed that my report would include consideration of HOPE. I later expanded the relevant section of the ensuing report2 into a stand-alone article3. I also published a short summary in a widely read online Australian publication, gave an invited presentation to the ACT Bar Association and discussed it on national radio.4 After I had written my report and my 2015 article was in press, the American Federal Probation journal published an article by Duriez, Cullen and Manchak,5 criticizing the model. This was followed in the same issue by a reply by Kleiman, Kilmer and Fisher6 and a rejoinder by the original critics.7 This only served to further pique my interest, and I secured a book contract from Palgrave to explore the issue further. I also decided it would be helpful to see HOPE in action, so I visited Hawaii in January 2016 to observe court hearings and meet with Judge Alm, as well as the lawyers, probation officers and court staff involved with the program.8 Alm also organized for me to speak with a man who had graduated from HOPE and took me to visit a drug treatment center where 70–80% of clients are generally involved in the criminal justice system. What I observed and my discussions with relevant stakeholders indicated that many of the criticisms of HOPE are founded on misun- derstandings about the program. In particular, its therapeutic and reha- bilitative aspects have been undersold to date.9 In order to test the transferability and impact of HOPE in other contexts, the National Institute of Justice (NIJ) provided funding in 2011 for four so-called demonstration field experiment (DFE) sites to implement programs based on HOPE and for these programs to be evaluated by a respected research team. While I was drafting this book, the long-term evaluation of HOPE10 was released. More sig- nificant still was the release of a special issue of the American Society Foreword ix of Criminology’s Criminology and Public Policy in November 2016. Entitled the ‘HOPE collection,’ it included Lattimore et al.’s11 negative findings from the DFE evaluation and O’Connell, Brent and Visher’s12 negative results from another program based on HOPE, Delaware’s Decide Your Time (DYT) program, as well as Hamilton et al.’s13 positive findings of a third program based on the HOPE model, Washington State’s Swift and Certain program. These evaluations were accompanied by several commentary pieces on the three evaluations and ‘Project HOPE’ more generally.14 This book attempts to distill the principal lessons from the evalua- tions and analyses, but as Nagin acknowledged in his introduction to the HOPE collection, there is no easily implementable “silver bullet” whether in the form of a punitive tactic or a treatment program that can materially reduce recidi- vism…an effective strategy for managing probationers cannot be reduced to a 30-second elevator pitch.15 Nevertheless, the evolution and rapid uptake of HOPE across the USA, as well as interest from policy-makers in Australia, New Zealand and the UK, suggest that the HOPE model is here to stay and there- fore warrants detailed discussion. Properly understood, it also offers the potential for a hopeful and therapeutic future in offender management. Canberra, Australia Lorana Bartels Notes 1. A . Hawken and M. Kleiman (2009), Managing drug involved proba- tioners with swift and certain sanctions: Evaluating Hawaii’s HOPE, National Institute of Justice (NIJ). 2. L . Bartels (2014), Literature review on intensive supervision orders: A report prepared for the ACT Justice and Community Safety Directorate, University of Canberra. x Foreword 3. L . Bartels (2015c), ‘Swift and certain sanctions: Is it time for Australia to bring some HOPE into the criminal justice system?’ Criminal Law Journal, 39: 53–66. 4. S ee L. Bartels (2015a), ‘Swift and certain sanctions—A new HOPE for Australia?’ (Paper presented at the ACT Bar Association Annual Conference, 7 March, Canberra); L. Bartels (2015b), ‘Swift and certain sanctions: Does Australia have room for HOPE?’, The Conversation, 16 June https://theconversation.com/swift-and-certain-sanctions-does-aus- tralia-have-room-for-hope-40158; See also A. Barraud (2015), ‘Hawaii shows the way in swift and certain justice’, The Law Report, Australian Broadcasting Corporation, 30 June http://www.abc.net.au/radiona- tional/programs/lawreport/swift-and-certain-justice/6581718; J. Story Carter (2015), ‘Could Hawaii’s ice solution give Australia hope?’ Radio National Law Report, 2 July http://www.abc.net.au/radionational/pro- grams/lawreport/could-hawaii-chrystal-meth-program-give-australia- hope/6586738. 5. S . Duriez, F. Cullen and S. Manchak (2014), ‘Is Project HOPE cre- ating a false sense of hope? A case study in correctional popularity’, Federal Probation, 78: 57–70. 6. M . Kleiman, B. Kilmer and D. Fisher (2014), ‘Response to Stephanie A. Duriez, Francis T. Cullen, and Sarah M. Manchak: Theory and evi- dence on the swift-certain-fair approach to enforcing conditions of community supervision’, Federal Probation, 78: 71–74. 7. F . Cullen, S. Manchak and S. Duriez (2014), ‘Before adopting Project HOPE, read the warning label: A rejoinder to Kleiman, Kilmer and Fisher’s Comment’, Federal Probation, 78: 75–77. 8. Th is project has approval from the Human Research Ethics Committee of the University of Canberra, Australia (HREC 15–264). 9. L . Bartels (2016), ‘Hawaii’s Opportunity Probation with Enforcement (HOPE) Program: Looking through a therapeutic jurisprudence lens’, QUT Law Review: Special Issue on Therapeutic Jurisprudence, 16: 30–49. 10. A . Hawken et al. (2016), HOPE II: A follow-up to Hawaii’s HOPE evaluation, NIJ. 11. P . Lattimore et al. (2016a), ‘Outcome findings from the HOPE Demonstration Field Experiment: Is swift, certain, and fair an effec- tive supervision strategy?’ Criminology and Public Policy, 15: 1103– 1141. Foreword xi 12. D . O’Connell, J. Brent and C. Visher (2016), ‘Decide your time: A randomized trial of a drug testing and graduated sanctions program for probationers’, Criminology and Public Policy, 15: 1073–1102. 13. Z . Hamilton et al. (2016), ‘Impact of swift and certain sanctions: Evaluation of Washington State’s policy for offenders on community supervision’, Criminology and Public Policy, 15: 1009–1072. 14. S . Alm (2016), ‘HOPE Probation: Fair sanctions, evidence-based principles, and therapeutic alliances’, Criminology and Public Policy, 15: 1195–1214; P. Cook (2016), ‘Behavioral science critique of HOPE’, Criminology and Public Policy, 15: 1155–1161; F. Cullen, T. Pratt and J. Turanovic (2016), ‘It’s hopeless: Beyond zero-toler- ance supervision’, Criminology and Public Policy, 15: 1215–1227; A. Hawken (2016), ‘All implementation is local’, Criminology and Public Policy, 15: 1229–1239; M. Kleiman (2016a), ‘Swift-certain-fair: What do we know now, and what do we need to know?’ Criminology and Public Policy, 15: 1185–1193; J. Oleson (2016), ‘HOPE springs eter- nal: New evaluations of correctional deterrence’, Criminology and Public Policy, 15: 1163–1183; V. Schiraldi (2016), ‘Confessions of a failed “HOPE-er”’, Criminology and Public Policy, 15: 1143–1153. 15. D . Nagin (2016), ‘Project HOPE: Does it work?’ Criminology and Public Policy, 15: 1005–1007, 1006.