January/ February 2013 A New Role for Parole

African Americans suffer from high rates of incarceration and crime. Here’s how to drastically reduce both.

By Mark A. R. Kleiman

Theory and evidence agree: punishment that is swift, certain, but not severe will control the vast bulk of offending behavior. Severity is not only a poor substitute for swiftness and certainty, it is also the enemy of both. The more severe a sanction is, the less frequently it can be administered. (Prison cells are scarce and expensive, and the steeper the punishment, the more time consuming the processes required to avoid gross miscarriages of justice.)

Consider a longtime cocaine, heroin, or methamphetamine user on felony probation for burglary. Under current standard procedure, he will appear once a month for an appointment with a probation officer and perhaps receive a drug test. If he fails to appear, tests “dirty,” or violates some other condition of probation—of which there are many—he is theoretically subject to having his probation revoked and being sent off to prison for the entire length of his probation term. That threat, if it were genuine, might keep him on the straight and narrow. But in fact he knows perfectly well that his probation officer has a caseload of nearly 200, that many of his fellow probationers are also breaking the rules, and that writing up a revocation notice on each violation would take more hours than the overworked PO has in her workweek. Therefore, he can be confident that the response to a violation will be a warning rather than a punishment. And he is therefore likely to break the rules—typically, by using his favorite drug—again and again.

However, if he keeps it up, the PO may eventually decide that six or eight or ten warnings are enough, and finally write that revocation motion. With such a long list of violations, the probationer may well find himself on his way to (or back to) prison. And all he will have learned from the experience is that it wasn’t his lucky day, or that his PO was in a bad mood or had it in for him personally; after all, he’s going “inside” for something he was doing with impunity before, and that some of his fellow probationers are still getting away with. And that’s consistent with his entire life experience; the random nature of the system simply reproduces the sporadically severe discipline he likely received at home and the chaotic conditions in his social environment. His whole life has been spent having very little control over what happens to him, with only a weak correlation between his current behavior and consequences. If the drug-using burglar doesn’t go back to prison for violating probation, he’s likely to do so the next time he gets caught for one of the burglaries that he commits to support his habit, and that he probably won’t stop committing as long as he keeps using.

It would be hard to imagine a system that could combine more punishment with less effective social control. It’s no surprise that so many people wind up what we could call “doing life in prison on the installment plan.” A parent who acted the way the probation system acts—letting most misconduct go unpunished, and occasionally lashing out with ferocious punishments—would be called both neglectful and abusive.

But it turns out to be possible to make “swift-certain-not-severe” sanctions work, by giving each offender a clear and explicit warning of exactly what’s going to happen every time he gets caught breaking a rule. Ideally, that warning would be accompanied by sincere expressions of goodwill and confidence that the offender can muster the capacity to comply.

The best-publicized program built on this set of principles is the HOPE program in Honolulu, which requires random drug tests of probationers and, for those who fail, an immediate short stint (typically two days) in jail, with no exceptions. The SWIFT program in Texas, the WISP program in Seattle, the Swift and Sure program in Michigan, and Sobriety 24/7 in South Dakota all work the same way, and all have the same results: drastic reduction in illicit-drug use (or, in the case of 24/7, alcohol abuse), reoffending, revocation, and time behind bars.

There’s nothing surprising about the fact that this approach works—it’s simply the application of well-known behavioral principles to a fairly straightforward problem. What is surprising is how well it works. In Hawaii, HOPE clients are mostly longtime criminally active drug users with a mean of seventeen prior arrests. A drug treatment program would be delighted if it could get 20 percent of such a population into recovery—and most would quickly drop out and go back to drug use. But in a carefully done randomized controlled trial with 500 subjects, eight out of ten assigned to the HOPE program finished the first year of the program in compliance and drug free for at least three months, with no rearrest. Most of them either never had a missed or dirty test (which would have led to a forty-eight-hour jail stay) or had only one such incident. That suggests that more than mere deterrence is at work; HOPE clients seem to be gaining the ability to control their own behavior.

But it’s hard to organize a system with many moving parts (judges, court staffs, probation officer, their supervisors, police, prosecutors, defense attorneys, and jailers) to make the threats in a convincing but respectful way and then deliver on them, right away and every time. The temptation on the part of probation officers and judges to cut an erring probationer some slack “just this once” can be disastrous; when consistency is the name of the game, mercy is toxic. That’s part of the reason to make the sanctions mild. The most successful current programs mostly use a couple of days in jail, but it’s possible that home confinement or a curfew might work just as well. What’s essential is making the consequence inevitable and immediate.

Attempting to impose such discipline on all probationers at once is a recipe for failure. The violation rate outstrips the capacity of the system to deliver on its threats, and the result is a loss of credibility and an upward spiral of violation rates. The recipe for success is to start with a limited number of offenders, establish the credibility of the threat, and then increase the number of offenders subject to the system slowly enough that the demand for sanctions, in the form of violations, never exceeds the supply.

The strategy of concentrating on a small group first exploits a central, but poorly understood, phenomenon: positive feedback in rates of offending. In a group of generally well-behaved individuals, enforcement can concentrate on a small number of miscreants, delivering swift and certain sanctions, and the resulting high probability that any offense will lead to punishment will make misbehavior an unattractive option. When punishment becomes sufficiently certain and swift, the level of offending goes down, making the high certainty of punishment (conditional on offending) consistent with low levels of actual punishment.

Mark A. R. Kleiman is professor of public policy at the UCLA Luskin School of Public Affairs and the author of "When Brute Force Fails: How to Have Less Crime and Less Punishment."