Mark Kleiman, who fought to lift ban on marijuana, dies at 68
His purview extended beyond drugs to the broader criminal justice system, which he sought to reform by imposing “swift, certain and fair” punishment through shorter sentences and more resources devoted to probation and parole.
“When politicians say, ‘Let’s hire 5,000 more police!’ everybody cheers,” he told The New York Times in 1990. “Say, ‘Let’s hire 5,000 probation officers and create cost-effective alternatives to prison!’ and everybody yawns.”
Remembering a trailblazer in criminal justice policy
Criminologist Phil Cook writes over email:
From the day I met him, Mark became my model for a policy-engaged scholar. He was an avid consumer of social science research. … For Mark, the science was more than a collection of empirical claims on what works, but more fundamentally a set of ideas that he harnessed to inform his thinking. … “Swift, certain, and fair” emerged from his understanding of basic principles of behavioral economics, combined with his assessment of what was needed to reform the criminal justice system to reflect those principles.
As Michael O’Hare noted in an astute review, Mark understood that crime and punishment both brought their costs. Criminal justice actors, from police departments to the white-collar defense bar, have ample reason to ignore one side or the other in this ledger. Mark sought creative policies that harnessed the tools of organizational analysis, psychology, and behavioral economics to reduce costs on both fronts.
“Swift, certain, and fair” was likely Mark’s most prominent contribution. With Angela Hawken, Mark studied Hawaii’s Opportunity Probation with Enforcement (HOPE) program. HOPE deployed relatively mild and graduated sanctions to reduce drug use and re-offending without draconian penalties. The jury is still out regarding the effectiveness of HOPE itself. The broader “swift, certain, and fair” concept has proved fruitful in many other contexts. Most famously, South Dakota’s 24/7 Sobriety Program has demonstrated striking benefits in reducing alcohol-related social harms.
Mark Kleiman was the nation’s greatest thinker on drug policy
When Brute Force Fails is an important book not just for contributing to a theoretical dispute, but also for its empirical evidence and practical solution: mild but extremely consistent punishments, the opposite of Becker’s approach. Kleiman spotlights the work of Judge Steven Alm, who randomly assigned probationers in his Honolulu courtroom to either traditional probation or his experimental Hawaii’s Opportunity Probation with Enforcement (HOPE). In practice, traditional probation consists of a series of warnings from an overworked probation officer who eventually declares the probationer in violation and recommends that the judge apply the often-lengthy suspended prison sentence. In Judge Alm’s experiment, the probationer, prosecutor, public offender, and probation officer pre-committed to a system of frequent urinalysis, for which a positive or missed test would result in an immediate but brief stay in jail. Although only a third of probationers were in Judge Alm’s court for a drug charge, he made frequent drug testing its focus because two-thirds of probationers had tested positive for methamphetamine at arrest. The experiment was a great success, with dramatically lower rates of rearrest, revocation of probation, and incarceration for the treatment group. Notably, Judge Alm and his probationers achieved this reduction in crime and drug abuse without the court providing drug treatment—the deterrence effect of a minor but swift and certain punishment was sufficient to achieve great improvements.
Kleiman suggests adopting urinalysis for probationers more broadly and extending its logic to other ways of monitoring offenders, such as through GPS ankle bracelets, as a way to impose social order at lower cost. Making detection of recidivism nearly certain and punishment for it swift but mild may finally break the despair of “nothing works“ without the naïveté of pure jailbreak politics. Judge Alm may have named his experiment HOPE in aspiration for the probationers in his courtroom, but it provides a similar promise all of us: that we can end mass incarceration without returning to the “no radio in car” era. Kleiman is no longer with us to advocate for such reforms, but we have the legacy of his work to guide us.