BY JUDGE STEVE ALM – In Jim Dooley’s “HOPE Probation Strains Hawaii’s Criminal Justice System,” he raises three issues as “problems” with HOPE Probation. First, HOPE violators occupy too much prison space; second, HOPE probationers occupy too much jail space; and third, HOPE warrants are adding substantially to the warrant backlog.
He is wrong on all three issues and underestimates our law enforcement community on the third. By citing a few high profile cases and implying those are the norm and ignoring the objective vetted research, Mr. Dooley’s sensationalistic type of journalism does a disservice to our citizens. Public policy needs to be based on facts and evidence, not anecdotes.
At sentencing, judges generally have two choices: either send the defendant to prison for several years, or place him or her on probation (or a deferral with a chance to keep their record clean) to be supervised in the community for five years, with up to a year in jail as a condition of probation. Jail is also used for pre-trial confinement.
First, Mr. Dooley asserts that HOPE probationers stretch the state=s criminal justice system by occupying limited prison space. That is simply not true. Dr. Angela Hawken of Pepperdine University conducted a gold standard randomized controlled trial study of 500 felony probationers. The research showed that those in HOPE served or were sentenced to 48% fewer days of incarceration in prison than those on regular probation (probation-as-usual). At a cost of $50,000 to incarcerate an offender per year in Hawaii, and between $27,000-$30,000 on the mainland, HOPE is saving taxpayers millions of dollars a year in prison costs.
Second, how does HOPE Probation actually compare to probation-as-usual in terms of jail space used?
HOPE is based on swift and certain consequences for violating the terms of probation. That means that HOPE probationers go to jail at the Oahu Community Correctional Center (OCCC) for every violation of probation. Those on probation-as-usual do no jail time for violating those same conditions of probation. They aren’t even brought before a judge for a long time. With no mechanism for swift and certain sanctions on regular probation, offenders are allowed to rack up 20, 30 or more violations of probation before finally being brought back to court on a Motion to Revoke Probation. This is not a criticism of our probation officers. Hawaii has dedicated, highly educated probation officers and caring judges. It’s the regular probation system itself that is broken.
Where probation-as-usual is delayed, uncertain and, when action is finally taken, often overly harsh, HOPE is swift, certain and proportionate. Given that HOPE Probationers go to jail at OCCC from a few days to a week to months for every single violation, and those on regular probation don=t, what did the research reveal about actual jail days served at OCCC (comparing HOPE Probation with probation-as-usual)? Dr. Hawken’s research found that the days actually served in jail were the same for both groups (with probation-as-usual actually slightly higher). How is that possible?
When those on regular probation are finally brought back to court for a Motion to Revoke Probation (after the 20, 30 or more violations). The Motion to Revoke is frequently granted, but rather than sentencing the offender to years in prison, the offender is frequently placed back on another 5 years of probation, often with six months or a year in jail as a condition of probation. Because the research found that those on probation-as-usual were arrested for new crimes and had their probation revoked substantially more often than those on HOPE probation, those six month and one year jail terms accounted for the same number of jail bed days at OCCC as all of HOPE=s shorter, but more frequent, sentences.
There is no question that HOPE=s proven strategy of swift, certain and proportionate consequences for each and every probation violation requires more intake processing effort and may contribute to the perception by OCCC jail personnel that HOPE probationers are, in fact, occupying more bed space. For example, 52 HOPE offenders sentenced to a week in jail each may well appear to be a lot more noticeable than revoking an offender’s probation and sentencing him or her to a year in jail as a condition of a new 5-year term of probation. But the overall jail bed days are the same. Dr. Hawken’s research proved that.
As I am so proud of the Judiciary’s probation officers and drug testers working smarter and harder to act on every HOPE violation at the front end, I am confident the state employees of the Department of Public Safety, with the right leadership, can rise to the occasion and process the more frequently appearing HOPE probationers as well.
Finally, Mr. Dooley asserts that HOPE absconders substantially add to law enforcement’s long list of unserved arrest warrants. And, he implies that our law enforcement community is not up to the task of serving the HOPE warrants.
As a matter of fact, Hawaii’s law enforcement officers tasked with warrant service (Honolulu Police Department, Sheriffs, U. S. Marshal’s Service) have risen to the occasion admirably. Back in 2004, they realized, as I had, that probation-as-usual wasn’t working for many offenders. That’s why all those entitiesB city, state, and federal B made the courageous decision to try something new (without any extra funding): HOPE Probation.
HOPE holds probationers responsible for every violation of probation. It’s Parenting 101. Many offenders I see in court were not raised to be held accountable and are therefore unable to relate bad behavior with an immediate consequence and learn from it. HOPE provides that structure. Even though most HOPE probationers comply with the conditions of probation (e.g., seeing their probation officer, going to drug treatment, paying restitution), there are always some who do not. That means there are always going to be warrants to be served. The bigger the program, the more warrants will be issued and served.
I currently supervise more than 1,700 (out of the 8,200 felony probationers on Oahu) in HOPE and have ordered (and had served) thousands of warrants over the last 6-1/2 years. That there are only 184 felony offenders with current outstanding warrants is remarkable. It shows just how effective and hard working our law enforcement community is. Rather than criticizing them, they should be applauded.
Our local media has been very helpful in this regard as well. Midweek has felony probation absconders on their cover once a year, and it and TV stations KHON and KGMB highlight outstanding warrants from Hawaii’s Most Wanted every week.
Why is law enforcement working smarter and harder to serve these warrants, and why is our local media helping to publicize their efforts? Because the research has also shown that HOPE probationers are much less likely to be arrested for new crimes than those in the control group on probation-as-usual. That means that fewer Hawaii residents and visitors are being victimized; it also means that law enforcement resources can be better spent elsewhere. For example, by spending more effort on the front end serving warrants, HPD won=t have to spend time and money investigating (and later testifying in court on), the new crime, such as a burglary, assault, or car theft. The “downstream savings” doesn’t end there, either. For every new crime not committed, the prosecution and defense don=t have to work on it, the court doesn=t have to try it, and probation or prison won=t see the case. Just ask the Police Chief, the Sheriff or the United States Marshal and see what they think about HOPE Probation.
Mr. Dooley highlights that offenders on HOPE are being charged with new crimes. Is that a surprise? No, nor should it be. HOPE Probation is tougher than regular probation in holding offenders accountable as swiftly as possible. To be placed in HOPE to begin with means that a judge has already made the decision to put someone on probation rather than sending him or her to prison. Whether you agree with that judge’s sentence or not, the decision has been made. Thus, it=s not prison or HOPE. It’s prison or probation. Then, if an offender is placed on probation, do we want to watch (and sanction) them closely in HOPE or not closely on probation-as-usual?
Will some offenders in HOPE be charged with new crimes? Of course. They are convicted felons. That is why they are on probation to begin with. And, following the best-practices research, we are placing into HOPE those who have been sentenced to probation and who are most likely to have problems on probation. Will offenders on probation-as-usual be charged with committing crimes, too? Of course. They too are convicted felons. The only way to ensure probationers won=t commit crimes is to sentence everybody to prison. Do we, as a society, really want that? The vast majority of offenders will be released from prison in several years in any event. Will they be better or worse at that point? And do we, as taxpayers, really want to spend several hundred million dollars a year to imprison all of these offenders?
The fact is that those on HOPE probation are committing substantially fewer new crimes than those on regular probation. That means less victimization, better outcomes for the offender and his or her family, and a saving to taxpayers of millions of dollars a year in prison costs.
Mr. Dooley references the highly publicized cases of RJ Ham and Kelii Acasia. They had both been sentenced to probation and referred to HOPE. Neither showed up for their HOPE Warning Hearing (the HOPE Warning Hearing is the offender=s first day in HOPE. The judge encourages offenders to succeed, but also warns him or her that unlike probation-as-usual, they will go to jail for every probation violation. That if they run away, they may well end up in prison for years). As neither Ham nor Acasia appeared for the Warning, warrants were issued and both were arrested for their new crimes before the warrants could be served.
In spite of Mr. Dooley’s efforts to imply they were actually in HOPE Probation, the fact is that they were not. They didn’t show up for the Warning Hearing, so they never started in HOPE. Whether they would have behaved any differently if placed in HOPE will never be known, of course. But the fact is, while a judge chose to place them on probation and recommend them for HOPE, they were never in HOPE.
I am confident that Hawaii’s citizens would prefer facts, research and civil servants working smarter and harder to drive criminal justice system policy decisions. The public should rightfully expect the criminal justice system to provide close and effective supervision of felony probationers who are released into the community. With HOPE , we have achieved that. And it’s not based on speculation, anecdote and headlines about a recent arrest. HOPE is an example of smart criminal justice policy, backed by solid research.
The majority of criminal justice proceedings are open to the public, and any and all are invited to observe HOPE probation hearings in action in my courtroom at Circuit Court every Tuesday-Friday mornings at 8:30 a.m.
Hawaii First Circuit Court Judge Steve Alm is the founder of HOPE.