Swift, Certain and Fair Sanctions: An innovative new programme or false HOPE?
Policy Adviser, Department of Corrections
Ben Hehir joined the Department of Corrections Strategic Policy Team in 2014. His areas of interest include oversight of the corrections system, and prison network configuration and capacity. Prior to working at Corrections, Ben worked as an adviser for Legal Aid Services.
Imagine a probation programme that reduced sentence breaches, re-offending, and missed probation appointments, and appealed equally to punitively and rehabilitatively minded individuals. Imagine that this programme also saved taxpayer dollars.
Advocates in the United States of America believe they have found such a programme: Swift, Certain and Fair Sanctions (SCF). Introduced as HOPE in the United States in 2004, this approach utilises frequent drug testing and short terms of imprisonment (two days to three weeks) in response to sentence breaches. This approach has spread throughout the United States and is being examined by policy makers worldwide. But would SCF be suitable for New Zealand?
Introduction: Tying misbehaviour with consequence
The first notable SCF programme began in 2004, when the State of Hawaii introduced a programme named HOPE (Hawaii Opportunity Probation with Enforcement). HOPE was initiated by a single judge, Judge Stephen Alm, who was frustrated that the justice system was not encouraging probationers to take responsibility for their actions.
The theory behind HOPE was that many offenders have impulsive tendencies and a short term outlook. The tendency to favour short term rewards over long term benefits is known as delayed reward discounting (DRD). There is an established link between DRD and impulsive behaviours. A 2011 meta-analysis concluded that there was strong evidence of greater DRD in individuals exhibiting addictive behaviour in general (MacKillop et al, 2011).
In the traditional prosecution process for probation breaches, an offender often receives multiple warnings before being prosecuted. Conviction for a breach can then occur months after the actual breach occurred. Accordingly, offenders are either not deterred by the threat of imprisonment, or do not relate their eventual imprisonment to their illegal behaviour.
Judge Alm hoped to better align probation sentences with the short term outlook of offenders. In doing this, he analogised about how he, as a parent, punished his children:
“I thought about how I was raising my son, and when my kid did something wrong you do something about it immediately. You tie misbehaviour with a consequence.” *
Judge Alm aimed to create a system where probation breaches were certain to be detected. This characteristic aligns with traditional views of deterrence, in particular Cesare Beccaria’s theory of deterrence, which states that certainty of detection is the vital element (Nagin, 2013). This view is complemented by studies that show that the severity of sanctions has little deterrent effect on offenders from committing a crime (Gendreau, Goggin & Cullen, 1999).
Under Project HOPE, probation breaches were always prosecuted swiftly and without discretion, according to a definite set of modest, but certain sanctions. Research has shown that a swift response improves the perception that a sanction is fair and that immediacy is vital to changing behaviour (Kleiman, 2001).
Put into practice, the HOPE model, which became known universally as SCF, can be characterised as follows:
- Swift – If a probationer is found to have breached their sentencing conditions then their court appearance and sentencing is within 72 hours.
- Certain – probationers are frequently drug tested (multiple times a week at the start of the programme). This makes it virtually impossible for offenders with drug abstinence sentence conditions to use drugs undetected.
- Fair – probationers attend a hearing where they are told the consequences of breaching their sentence conditions. A zero tolerance or discretion approach means that probationers are always sentenced to a short prison term (typically two nights in prison) for breaching their sentence. The duration of the prison stay varies depending on the number of previous breaches and the offender’s attitude towards the breach.
HOPE initially targeted drug-involved offenders. At the beginning of their sentence, the offender entered into a ‘behavioural contract’ in which Judge Alm outlined what behaviour was necessary for an offender to progress through the programme. An offender’s conduct then determined whether formal drug treatment was needed. If an offender failed multiple drug tests, this was taken to indicate that they have a serious addiction and needed clinical help (Hawken, 2010).
SCF programme for offenders with drug conditions
An initial evaluation of HOPE showed promise
A randomised control study of HOPE in 2009 looked at 500 probationers with drug conditions, two thirds of whom were enrolled in the programme (Hawken and Kleiman, 2009). The remaining third were a control group whose sentence was carried out under Hawaiian probation-as-usual (PAU) terms. The progress of both groups was tracked for 12 months. The study found that, compared to the control group, during the 12 month period, HOPE probationers were:
- 72% less likely to use drugs (HOPE probationers had a 13% failure rate for drug tests, versus 46% for the PAU group);
- 61% less likely to miss probation appointments (9% rate of ‘no-shows’ for probation appointments for HOPE probationers, versus 23% for PAU);
- 55% less likely to be arrested for a new crime (21% of the HOPE probationers were re-arrested, versus 47% for PAU);
- 53% less likely to have their probation revoked (7% for HOPE versus 15% for PAU); and
- Incarcerated for 48% fewer days (138 days for HOPE versus 267 days for PAU), despite the use of short sentences of imprisonment. This was due to the reduction in probation revocations, and saved approximately $4,000-$8,000 USD per offender.
In total, only 40% of HOPE probationers failed a drug test after a year in the programme. Of those offenders, only half (20% of total participants) had multiple failed tests. The purported benefit of this is that by ‘triaging’ offenders who could abstain from drug use due to the SCF programme, treatment resources could be targeted at offenders with genuine problems.
A small Hawaiian experiment becomes Swift, Certain and Fair Sanctions
HOPE started with 36 offenders and received no additional government funding. Probation officers originally selected participants for HOPE from those who had a high risk of re-offending and who were identified as substance users. Following the implementation in Hawaii, and the positive evaluation, it has now grown to over 1,500 participants and received $4 million (USD) in state funding to further expand. The initiative has also grown to include sex offenders and offenders on parole.
HOPE-style programmes have become known as SCF programmes. The ‘Swift, Certain and Fair Resource Centre’, a partnership of the United States Department of Justice and Pepperdine University, has been created to promote the programme and support implementation. SCF programmes are now used throughout the United States and have been introduced in at least 21 states (Bartels, 2015). Notably, all of community corrections in the State of Washington has transitioned to a SCF model (including 17,000 high-risk offenders on parole and probation). In a 2013 study that compared 70 offenders on PAU sentences against 70 on a SCF programme, SCF offenders:
- were 73% less likely to have positive drug tests
- spent 64% less time in prison
- had a third fewer new arrests, convictions and imprisonments (Hawken, 2011).**
‘24/7 Sobriety’ is another notable SCF programme. 24/7 Sobriety operates in South Dakota and targets recidivist drink drivers. Offenders are tested for alcohol consumption, either twice daily through a breathalyser or continuously with an ankle bracelet. Offenders who fail tests are taken into custody immediately and violations result in one night in custody. This programme has resulted in a 50% reduction in the re-offending rate of offenders who participate in the programme, versus offenders on PAU sentences (Kilmer, Nicosia, Heaton & Midgette, 2013).
Other countries are exploring implementing SCF programmes. In the United Kingdom (UK), implementing SCF was part of the Conservative Party’s 2015 election manifesto, and, in a recent speech, Prime Minister David Cameron called for HOPE to be introduced into the UK, calling it “perhaps the most successful community sentence anywhere on the planet.”*** SCF programmes are being discussed and considered in Australian jurisdictions as well. †
SCF programmes have been criticised
Although SCF has received significant support, some commentators have cautioned against the spread of the programme. Duriez, Cullen & Manchak (2014) have warned that there has only been one comprehensive study about the effect of SCF programmes (the 2009 study by Hawken and Kleiman). They argue that other studies that produced similarly positive results can be considered quasi-experimental at best, due to either the methodological limitations of the study, or the size of the samples. The programme can only be conclusively called a confirmed success with one group of prisoners (drug-involved offenders), in one specific location (Hawaii).
Duriez and her colleagues also expressed concern about other aspects of the 2009 study, stating that the findings potentially over-rely on the claims about the deterrent effect of swift and certain punishments, and there are other possible explanations for the results achieved in Hawaii.††
It is likely that these concerns will either be confirmed, or repudiated, in the near future. The US Department of Justice has funded replication projects in Arkansas, Massachusetts, Oregon, and Texas. The results of these projects will form a comprehensive evaluation of SCF programmes, and has the potential to show whether they can be successful in varied locations, among different groups of offenders. The study is due to be completed in March 2017. †††
Would SCF work in New Zealand?
In New Zealand, approximately 87% of prisoners have had identified alcohol or other drug (AOD) issues in their lifetime, and 60% of community based offenders have an AOD issue. SCF programmes, which have so far primarily targeted offenders with AOD issues, could have a significant impact targeting this group of offenders.
Concerns about the close relationship between AOD misuse and offending have already resulted in changes in the criminal justice system. For example, it is likely drug testing of community-sentenced offenders will soon be possible:
- The Drug and Alcohol Testing of Community-based Offenders and Bailees Bill, which is expected to be passed by Parliament this year, will introduce drug and alcohol testing for selected high-risk bailees and community-based offenders with abstinence conditions. The planned legislation would make it possible to introduce a testing regime similar to those used in SCF programmes.
- Alcohol detection bracelets allow for near continuous testing for alcohol consumption and have been used in the New Zealand Drug Court.
These changes may enable a testing regime similar to those used in SCF programmes and show the willingness to intensively drug test offenders on community sentences.
However, there is reason to pause. The profile of the US justice system, in particular the significantly harsher tariffs for drug offences, means a significant number of offenders may be able to be safely managed in the community under a diversionary scheme such as SCF – and be rehabilitated relatively quickly once they gain control of their AOD use. In contrast, in New Zealand imprisonment tends to be more of a last resort for those who have repeatedly failed on other lesser sentences or who have been convicted of very serious offences. It is unclear if there is an offender group who would similarly benefit from SCF in New Zealand.
Despite this uncertainty, the idea behind SCF programmes - that swift, certain and fair sanctions can be more of an influence on behaviour than any other form of punishment - can be assumed to have some value. How might this model be applied in New Zealand? And what obstacles might prevent this programme?
Would a SCF programme be possible?
Proponents of SCF programmes have stated the importance of implementing SCF programme key features with fidelity (Pearsall, 2014). Accordingly, a SCF programme requires prompt prosecution of sentence breaches, as well as a non-discretionary approach to sentencing. It would also require imprisonment for any breaches.
Under the Criminal Procedure Act 2011, it would be very difficult for New Zealand’s court system to prosecute a breach within 72 hours. Even with close co-ordination of the courts, corrections, police and legal aid, it would likely still take a week to prosecute a breach and impose a sentence. Theoretically, judicial creativity in using unorthodox sentencing practices such as ‘come-up-if-called-upon’ or suspended prison sentences could be used to compress breach prosecution times. However, this would require judicial enthusiasm for such a scheme, and this approach would not be considered ethical or just.
There are also practical issues that need to be addressed before a SCF programme could be implemented in New Zealand. For example:
- For a nationwide programme, there would need to be appropriate AOD screening capability. AOD screeners would be required at most district courts to determine if an offender’s AOD issue means they are suitable for a SCF programme.
- Another notable issue is the muster pressures being experienced by the prison network. While a proponent of SCF programmes would say that the programme ultimately reduces imprisonment, in the short term at least, this programme has the potential to exacerbate this muster issue.
- There are other issues around how small terms of imprisonment would be implemented. If an offender fails a drug test in a remote town, for example, Queenstown, would they then be taken to Dunedin or Invercargill (which have nearby prisons) for sentencing? How would they then return to Queenstown after completion of their small imprisonment sentence? This would have been an issue in the United States as well; however, it would have been mitigated by the prevalence of local county jails.
Would a pilot help?
The timeliness (swiftness) and consistency (certainty) required by SCF programmes require co-operation from the courts, probation, prisons, police and legal aid. For this reason, advocates of SCF programmes have consistently advised that implementation efforts should “start small”. This enables programme operators to manage and respond to any logistical issues that can be sorted out before the programme is expanded on a larger scale (Fox and Gold, 2011).
The idea of piloting a SCF programme would need to be explored with the judiciary. One concern may be that no judge would be willing to conduct a pilot within a discrete location. This practice would involve sentencing certain individuals in a particular geographic area differently than individuals in another area, which might be considered to be unfair, and have rule of law issues. The fairness issue would be heightened by the use of imprisonment in SCF programmes.
Another concern would be that SCF programmes use mandatory sentences (albeit on a small scale). The lack of discretion that the judiciary is meant to exercise in these schemes may be problematic for some judges, who usually sentence according to all of the circumstances of each particular case.
One way to either enable a pilot, or introduce a detailed sentence framework to enable a consistent scheme, would be legislative change. The Policy Exchange (Lockyer, 2014), a UK think-tank, has recommended using SCF programmes for community-based offenders and has proposed changes to the UK justice system to make this possible, including:
- Creating conditional behaviour orders which would set out abstinence conditions and testing guidelines, as well as clear sanctions for non-compliance; and
- Establishing specialist breach courts for priority offenders who have been charged with a sentence breach, so they can be sentenced within 24 hours of pleading guilty.
HOPE for the future
While SCF has had positive outcomes in US jurisdictions, successfully replicating this system in New Zealand would require significant upfront investment, as well as close co-ordination from all justice sector actors, and probably legislative change.
The best approach for New Zealand may be to maintain a watching brief as SCF programmes are implemented worldwide. In the interim period:
- The National Institute of Justice evaluation will be completed in March 2017
- SCF will be implemented in the UK and Australian jurisdictions
- The Drug and Alcohol Testing of Community-based Offenders and Bailees Bill will allow AOD testing of individuals with abstinence conditions on community sentences. Corrections will also become more familiar with the practical issues of AOD screening and testing.
These findings will help determine whether SCF programmes should be applied to New Zealand.
It may be that HOPE’s initial success cannot be replicated without the United States’ unique circumstances. Furthermore, policy makers must be mindful of the tendency of intensive community-based sentences to result in net-widening. However, if the comprehensive evaluation reports similar results as the 2012 HOPE evaluation, then justice-sector decision makers should seriously consider adopting a SCF approach for community probation. In the world of correctional treatment – where programme effect sizes of 10% are considered world leading – a programme that reduces arrests and probation revocations by half must be seriously considered.
*Quote can be found at http://www.huffingtonpost.com/jason-tashea/swift-certain-hawaii-prob_b_7171554.html [accessed 10 March 2016.]
**These positive results should be tempered by the sample size (140 offenders) which, as acknowledged by the study author, means the results are less precise.
***A transcript for the speech can be found here: https://www.gov.uk/government/speeches/prison-reform-prime-ministers-speech [accessed 10 March 2016].
†For example, in Victoria - http://www.smh.com.au/national/booze-bracelets-effective-at-keeping-repeat-drinkdrivers-sober-advocates-say-20160304-gnagvu.html, the Australian Capital Territory- http://www.abc.net.au/news/2015-03-29/weekend-detention-alternatives-unclear-in-act/6357054 and the Northern Territory [all accessed 10 March 2016].
††For example, Hawaiian probation staff also utilised the Risk-Needs-Responsivity (RNR) model for HOPE probationers (as well as PAU offenders).
†††The status of the study can be found at https://clinicaltrials.gov/ct2/show/results/NCT01670708.
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