Charged: The New Movement to Transform American Prosecution and End Mass Incarceration

(p. 211) A corrupt version of Beccaria’s philosophy was used to justify the country’s turn toward mass incarceration in the 1990s. “When a potential criminal knows that if he is convicted he is certain to be sentenced, and his sentence is certain to be stiff, his cost-benefit calculus changes dramatically,” Senator Phil Gramm of Texas wrote in 1993 to push for mandatory minimum sentences. Gone was Bentham and Beccaria’s emphasis on moderation. And as the rate for solving murders fell, certainty of punishment waned as a reality for perpetrators: the lower their chances of getting caught, the less mandatory minimum penalties would deter them. People also have to know how the law works to be deterred by mandatory minimums. Many don’t.
Severity, nevertheless, was the only element of deterrence that politicians could attain with the stroke of a pen. In a time of rising crime, they overvalued increases in punishment. And, of course, the mandatory punishments didn’t operate on their own. They took discretion away from judges (after conviction) and handed it to prosecutors (at the charging phase). Discretion is stubborn–stop it in one place and it will pop up in another. Otherwise, the law would fall hard on people who don’t seem to deserve it (and who more often happen to be well-off and white).
Is there a better way to use punishment to achieve deterrence? Perhaps the most promising model was created in a Honolulu court in the early 2000s. A judge named Steven Alm started overseeing people on probation for felonies like burglary and drug dealing. As part of their supervision, they had to take drug tests for methamphetamine. According to the rules, one failed or missed test meant their parole [sic] would be revoked and they’d go back to prison for five to ten years.
In reality, as Alm soon learned, the people coming before him could fail or miss a drug test as many as ten times before he learned of it. Probation officers saw the punishment as far too severe for the violation. So when people failed the first or second or even the ninth time, the probation officers didn’t impose the threatened consequences. Judges tended to tacitly go along, presumably because they also weren’t eager to send people to jail [sic] for years for screwing up one drug test.
Judge Alm, a former prosecutor, didn’t think it made sense to look the other way and then arbitrarily crack down. “You wouldn’t bring up a child that way,” he thought. “You’d have clear rules, and clear consequences for breaking them, and those consequences would happen right now, not in the sweet by-and-by.”
Judge Alm set up a pilot project, called Hawaii’s Opportunity Probation with Enforcement, HOPE for short. He came up with a script that he read to people assigned to HOPE: from now on, every time they broke a rule of probation they’d be arrested on the spot and go to jail within seventy-two hours. Not for years, but for days. Smoke meth before your baby’s first luau, the judge said, and you will miss it “because you decided to miss it when you decided to break the rules.”
After receiving Judge Alm’s warning, the HOPE participants were tested for drugs every week, more frequently than they had been before. If they failed a single test, they briefly went to jail, as Judge Alm had promised.
Judge Alm’s divergence from the practice of the other judges created the conditions for a natural [sic] randomized experiment, the gold standard for empirical research. How did his HOPE participants fare compared to defendants with similar convictions who were experiencing probation as usual?
Four years after HOPE launched, the public policy professors Angela Hawken and Mark Kleiman did that study. The results aligned with Judge Alm’s instincts. The HOPE group committed fewer violations with every additional month they were on probation, whereas for the probation-as-usual group, the violation rate rose, “as if they were learning how much they could get away with,” Kleiman wrote. Six months in, Kleiman and Hawken found that the HOPE participants were 79 percent less likely to fail a drug test and 55 percent less likely to be rearrested for a new crime.
Replicating the results of the HOPE study has been tricky, but the implication of the program is this: if punishment is swift and certain, it need not be severe at all. Or conversely, as Kleiman and Hawken put it, “Severity is the enemy of swiftness and certainty, because a severe penalty will be more fiercely resisted and requires more due process to support it.”
The problem is that severity is the weapon prosecutors have come to wield above all others.