Opioids and the Criminal Justice System: New Challenges Posed by the Modern Opioid Epidemic

Alternatives to Incarceration
Swift, certain, and fair. Mark Kleiman (2009) argues in his influential book When Brute Force Fails that consequences that are swift, certain, and fair (SCF) are the most effective in reducing drug use and associated crime. SCF is the opposite of many current probation practices, in which sanctions are delayed, unpredictable, and overly punitive.
The SCF concept is relevant to but not restricted to offenders with OUD. Perhaps its most famous implementation pertained primarily to methamphetamine-involved offenders in Judge Alm’s Project HOPE (Hawaii Opportunity Probation with Enforcement). This program does not require that participants partake in drug treatment but does require they abstain from drug use as confirmed by frequent and random testing. If a participant tests positive, they are subject to immediate and moderate sanctions, such as an overnight stay in jail. Unlike drug courts, only those participants who have violations appear in front of a judge, making the approach cheaper and easier to scale than drug courts.
Hawken & Kleiman’s (2009) initial evaluation found that HOPE reduced drug use, new crimes, and incarceration both for the high-risk probationers included in the initial pilot program and a randomized controlled trial of general population probationers. Later evaluations have been less favorable. In a demonstration field experiment of the HOPE program in four US counties selected through a competitive process, among more than 1,500 probationers randomly assigned to HOPE or probation as usual (PAU), Lattimore et al. (2016) found that HOPE/SCF enrollees were no less likely to be rearrested, with the exception of drug-related arrests at one site. An evaluation of a similar Delaware program also found no effect on recidivism (O’Connell et al. 2016), but Washington State’s program fared better (Hamilton et al. 2016). South Dakota’s 24/7 Sobriety is another SCF-type program, originally for repeat DUI offenders but later extended to drug offenders, that has very favorable evaluation results (Kilmer et al. 2013, Nicosia et al. 2016).
Hawken (2018) argues that the conflicting outcomes suggest that SCF can work, but implementation can be challenging [Lattimore et al. (2016) note mediocre achievement of the swift part of the SCF formula] and suggested that it may not be appropriate for all offenders; e.g., the Arkansas site involved primarily low-risk offenders for whom such close scrutiny may have been unnecessary and counterproductive.