Community-Based Sentencing Orders and Parole: A Review of Literature and Evaluations across Jurisdictions
The effectiveness of swift, certain and fair sanctions
Swift, certain, and fair (SCF) punishments for offenders who violate the conditions of their supervised community order involves the immediate imposition of known, modest sanctions. This approach often includes the use of graduated sanctions, with more serious consequences being imposed for offenders who continue to violate their order conditions.
The use of SCF approaches in probation and parole has spread in recent years as a way to mitigate the effects of rising revocation rates and to respond to criticism that inconsistent and/or delayed sanctions in response to order violation does little to deter offenders. According to this thinking, immediate and high-probability threats of mild punishment offer a more effective deterrent than low-probability threats of severe punishment at some point in the future (Hawken and Kleiman, 2009).
A growing body of research suggests that an SCF approach, combined with graduated sanctions, can be an effective tool to increase offender compliance and reduce rates of revocation and return to prison. But while there is ‘considerable evidence to support the efficacy of graduated sanctions in improving community supervision outcomes, little is known about how these sanctions can be implemented to achieve the best results’ (Wodahl, Boman and Garland, 2015, p. 242).
Hawaii’s Opportunity Probation with Enforcement program
The most widely-cited model of SCF responses to non-compliance is Hawaii’s Opportunity Probation with Enforcement (HOPE) program, which focuses high-intensity supervision on probationers with drug addictions who are at a high risk for violating probation.
HOPE begins with a direct and formal warning from a judge, with probationers assigned a colour code at the hearing. Offenders are required to call the HOPE hotline every weekday morning to find out which colour code has been selected for that day; those whose colour code is chosen must appear at their probation office before 2pm, where a drug test is administered. As part of the program, the court also ensures that probationers receive the drug, mental health, or other health treatments that they require. Violations result in an immediate and brief jail stay, with consequences for each subsequent violation escalating, such as with a longer period in jail (McEvoy, 2013, p. 2). Compliance results in lessening of supervision intensity, such as less regular drug testing (Bartels, 2014, p. 19).
An early evaluation of HOPE found that the use of short jail sentences for non-compliance was associated with several positive outcomes, including reduced positive drug tests, fewer missed appointments and lower revocation rates. Compared with a control group of probationers who were not in the program, after one year HOPE participants were 55% less likely to be arrested for a new crime, 72% less likely to use drugs, 61% less likely to skip appointments with their supervising officer and 53% less likely to have their probation revoked. As a result, HOPE probationers served 48% fewer days in prison on average (Hawken and Kleiman, 2009).
On the basis of early positive results, the HOPE program has been replicated throughout the US. Its principles have also been noted in the UK, where the Policy Exchange organisation has advocated for its application (Lockyer, 2014). In Australia, SCF approaches have been adopted for offenders in the Northern Territory398 and Queensland, and have been announced, trialled or considered in relation to community-based orders in NSW and Victoria399 (ALRC, 2017, p. 260).
More recent evaluations, however, have found less positive results. In a four-site randomized control trial that tested the effectiveness and replicability of HOPE programs, more than 1,500 probationers from communities in Arkansas, Massachusetts, Oregon, and Texas were randomly assigned to either HOPE-style probation or probation as usual (PAU). While the study found that SCF probation programs can be successfully implemented to produce greater accountability among probation populations, it found no significant differences between HOPE and PAU probationers in the likelihood of rearrest, the time to re-arrest, probation revocation or new conviction (Lattimore et al., 2016).
The authors concluded that ‘probation based on a model of strict accountability with non-draconian penalties for violations of conditions can be successfully implemented in a variety of settings. But this supervision approach will not reduce recidivism rates or costs’ (Lattimore et al., 2016, p. 8). It is possible that this lack of impact is due to the focus of some SCF programs on compliance in the absence of attempts to address the underlying causes of offending behaviour: the judge who established the original HOPE program has argued that replications have not included efforts to support probationers materially,400 instead adopting a punitive focus on sanctions (Alm, 2016: cited in Phelps and Curry, 2017, p. 19). In such programs, the benefits appear to last only as long as the testing and sanctions, rather than leading to lasting behavioural change (Bartels, 2014, p. 27).
It is also possible that such programs will work only with the leadership of particularly charismatic judges or motivational court officials, or only for probationers who have documented histories of extensive drug abuse (Doleac, 2018).
The underlying principles of HOPE have been tested in numerous jurisdictions around the world. Sydes, Eggins and Mazerolle (2018) discuss two studies of programs for adults based on the HOPE model.
Kilmer et al. (2013) examined the impact of South Dakota’s Sobriety Project, a program that requires individuals arrested for or convicted of alcohol-related offenses to submit to twice daily breathalyser tests or to wear an alcohol monitoring bracelet. Offenders who tested positive for alcohol consumption were subjected to swift and certain, but modest, sanctions. The study also reported favourable intervention results, with a 12% reduction in repeat arrests for driving under the influence and a 9% reduction in domestic violence-related arrests. However, findings relating to subsequent traffic crashes were mixed. In light of those findings, it was concluded, “in community supervision settings, frequent alcohol testing with swift, certain, and modest sanctions for violations can reduce problem drinking and improve public health outcomes” (Kilmer et al., 2013, p. 37).
Positive results for the use of swift and certain sanctions were also reported in a recent quasi-experimental evaluation of the Swift and Sure Sanctions Probation Program (SSSPP) (DeVall et al., 2017). The Michigan-based program was designed to reduce recidivism among high-risk probationers by ensuring swift responses to probation violations. A comparison of SSSPP participants with a group of offenders who received standard probation revealed that SSSPP participants were 36% less likely to reoffend upon program completion (DeVall et al., 2017) (Sydes, Eggins and Mazerolle, 2018, p. 89).
Most of the studies on SCF approaches and graduated sanctions have focused exclusively on the effectiveness of graduated custodial sanctions, while few have included community sanctions – such as electronic monitoring, written assignments, or increased treatment participation – into their analyses. To address this gap in the research, Wodahl, Boman and Garland (2015) examined whether community-based graduated sanctions were as effective as custodial graduated sanctions in increasing offender compliance.
Using violation data of a random sample of 283 probationers and parolees401 in Wyoming, the authors found that jail sanctions did not perform significantly better than community-based sanctions in extending the time to the offender’s next violation event, reducing the number of future violations or facilitating successful program completion. They concluded that the lack of additional deterrent effect of custodial graduated sanctions, and the financial, social and potentially criminogenic effects of jail, ‘calls into question the use of jail as a means of punishing persons on community supervision’ who fail to comply (Wodahl et al., 2015, p. 248).
Swift, certain and fair sanctions for vulnerable offenders
In addition to mixed results on the effectiveness of the SCF model, concerns have been raised about its impact for specific cohorts and the implications of short periods in custody. The Victorian Sentencing Advisory Council (2017b) noted that some cohorts might be disproportionately affected by an SCF approach to family violence offending (Sentencing Advisory Council, 2017b, pp. 77-79):
• Low-risk offenders might be drawn away from pro-social factors such as employment and education, and into contact with higher-risk offenders.
• Offenders with cognitive disabilities may fail to adhere to conditions of orders due to difficulties with understanding and meeting the demands asked of them.
• Short terms of imprisonment pose an acute risk for Aboriginal and Torres Strait Islander offenders, who are already overrepresented in Australian prisons.402
• Female offenders are often themselves victim survivors of family violence and are also more likely to have primary care responsibilities.
No other research is available on the effectiveness of SCF approaches with vulnerable offenders.
Cost-effectiveness of swift, certain and fair sanctions
The Washington State Institute for Public Policy has undertaken two separate benefit-cost analyses of SCF supervision. One analysis found benefits minus cost of $9,229 per participant, with an 87% chance that the program would produce benefits greater than the costs. With the meta-analysis of program effects finding significant effects on technical violations and illicit drug use, benefits would arise from changes to crime, labour market earnings associated with illicit drug abuse and health care associated with illicit drug abuse (WSIPP, 2017g).
A second analysis of SCF case management for drug-involved offenders found even larger benefits. The benefit minus cost estimate was $15,422, with a 100% chance that the program would produce benefits greater than the costs. The meta-analysis found significant effects of the program on crime, illicit drug use and technical violations (WSIPP, 2017h).
These analyses suggest that SCF approaches work best when focused on drug-involved offenders, for whom case management goals include improved collaboration between correctional staff and treatment staff and increased participation in substance abuse treatment (WSIPP, 2017h, p. 1).
398 The approach was expanded to include parolees after a successful trial with offenders on suspended sentences.
399 The Victorian Sentencing Advisory Council (2017b) considered and rejected the SCF approach for family violence offenders, but did find broad support among stakeholders for greater use of judicial monitoring as a condition of CCOs for this cohort to provide greater flexibility to respond to concerns about the escalation of risk. The SAC also recommended fast-tracking of charges alleging a contravention of a family violence-related CCO.
400 In her submission to the ALRC (2017) Pathways to Justice review, Bartels noted that the original HOPE program ‘adopted the principles of therapeutic jurisprudence…the judge provided extensive encouragement, praise and support to participants’ (ALRC, 2017, p. 262).
401 While this is a single study with a small sample of offenders, it is unusual in its comparison of community-based and custodial-based graduated sanctions, so is included in this review.
402 While there appears to be no research on the effectiveness of probation for Aboriginal and Torres Strait Islander offenders, the ALRC (2017) noted the potential of the HOPE model of probation. In her submission to the ALRC, Bartels suggested that ‘the program model may hold significant promise for Aboriginal and Torres Strait Islander populations if it is implemented as intended, that is, as a therapeutic program that supports and encourages participants’ (ALRC, 2017, p. 262).