A new study says a Hawaii criminal justice program praised nationally for improving parole and probation is not a “silver bullet” for reducing recidivism and lowering costs for supervising high-risk probationers.
Hawaii’s Opportunity Probation with Enforcement rewards probationers if they don’t use drugs, meet with their probation officers and complete substance-abuse treatments.
Supported by statistics showing a dramatic drop in recidivism, HOPE has been hailed as a model for other jurisdictions across the country.
But the study published last month in the Criminology & Public Policy journal casts doubt on HOPE’s hope.
Former Judge Steven Alm in his 1st Circuit Court offices earlier this year.
Cory Lum/Civil Beat
Its subtitle, “Is Swift, Certain, and Fair an Effective Supervision Strategy?” uses the very words that characterize the HOPE supervision approach: “swift, certain and fair” oversight of probationers.
The answer to that question, according to the study, is maybe not.
HOPE “seems unlikely to offer better outcomes and lower costs for broad classes of moderate-to-high-risk probationers.” — the Lattimore study
The study is titled “Outcome Findings from the HOPE Demonstration Field Experiment.” It was co-authored by researchers at a North Carolina-based research nonprofit called RTI International and at Pennsylvania State University, involved a field study of more than 1,500 probationers in four counties (one each in Oregon, Texas, Arkansas and Massachusetts).
The probationers were randomly assigned either to a program modeled on the HOPE approach of close supervision, or to standard probation programs.
Based on the experiment, according to a widely circulated article noting the study’s release last month, the authors concluded that the HOPE approach “seems unlikely to offer better outcomes and lower costs for broad classes of moderate-to-high-risk probationers.”
Academics ‘Don’t Understand’
The father of HOPE disagrees.
Former Hawaii 1st Circuit Court Judge Steve Alm said HOPE has had critics since he implemented it in his courtroom in 2004.
“Usually they are academics who don’t really understand HOPE or the probation system itself and how the current system is failing many people,” said Alm, who now works as a consultant in Washington, D.C. on HOPE-type projects. “They tend to think any jail time is harsh. What they fail to see is that many probationers are currently failing at probation-as-usual and going to prison for years. That is harsh.”
When it’s done right, Steve Alm says HOPE reduces crime, helps offenders and saves taxpayers money.
Alm said that when the HOPE model is employed properly — as, he argued, it has been in Hawaii, Washington, Texas, Kentucky, Michigan and other states — it reduces crime, helps offenders and their families by avoiding long prison terms and saves taxpayers millions of dollars.
When the program is not executed correctly — say, focusing too much on sanctioning probationers instead of on effective probation officers and treatment providers “all in a caring and supportive atmosphere, it quite naturally is not going to work,” he said.
Alm concluded, “Given the fact that we know HOPE works well in some places and apparently, when not done right, not in others, the challenge for the future is to help as many jurisdictions as possible to get it right.”
Kaneshiro: Findings ‘No Surprise’
HOPE has been commended by many for its success in improving the parole and probation systems. When Alm stepped down from the bench in September, his work was hailed by the likes of Hawaii Supreme Court Chief Justice Mark Recktenwald and U.S. Attorney Florence Nakakuni.
But HOPE has not been universally embraced, and its critics include Keith Kaneshiro, the Honolulu city prosecutor.
“The study’s findings come as no surprise and reflect what we have long seen in Hawaii,” Kaneshiro said. “Here, HOPE probationers violate conditions of supervision repeatedly and yet are placed back on probation — and remain on the street — instead of being sent to prison.”
In his view, HOPE compromises public safety.
Keith Kaneshiro in his Honolulu office last month.Anthony Quintano/Civil Beat
“Every week, we see more and more HOPE probationers sought on bench warrants listed among Hawaii’s most wanted, which creates added expense and diverts law enforcement resources,” he said. “Tragically, we have also seen several of these HOPE probationers commit violent crimes, including sexual offenses and murder.”
The study, whose lead author is Pamela Lattimore of RTI International, was supported by the National Institute of Justice and the Office of Justice Programs, part of the U.S. Department of Justice, though DOJ does not take a position on the report’s outcome.
But the study’s authors do reach conclusions, including this one: “Although additional research is needed to determine whether there are groups for whom HOPE may be more effective (it) seems unlikely to offer better outcomes and lower costs for broad classes of moderate-to-high-risk probationers.”
No ‘One Size Fits All’
The November edition of Criminology & Public Policy that included the study is devoted entirely to the issue.
The titles of some of the articles include: “Confessions of a Failed ‘HOPE-er’” and “It’s Hopeless: Beyond Zero-Tolerance Supervision.”
But there are others, like an article titled “All Implementation is Local” and Alm’s own contribution to the journal, that — taken together — make for a thorough examination of HOPE and similar programs.
Alm’s article pointed pointed to a Washington State University study that concluded that, because of that state’s “swift-and-certain” policy, “participants were found to incur fewer sanctioned incarceration days after a violation, reduced odds of recidivism, possessed greater treatment program utilization, reduced their propensity of committing violations over time, and as a result, imposed lower correctional and associated costs.”
U.S. Marshal Gervin Miyamoto adjusts the balloons in place for Judge’ Alm’s retirement party at the 1st Circuit Court in Honolulu.Chad Blair/Civil Beat
The main takeaway of the journal comes in the introduction by Daniel Nagin of Carnegie Mellon University. He echoes the “no silver bullet” theme of the Lattimore study but also stresses Alm’s argument that HOPE is not merely a “sanctions-only” approach but one that includes, as Nagin put it, “an opportunity arm” that includes a variety of treatment possibilities.
“More generally the commentaries make clear there is no ‘one-size-fits-all’ approach to effective probation supervision. Instead effectiveness requires a nuanced and adaptive application of a multifaceted strategy,” Nagin wrote.
Alm remains committed to defending, improving and expanding his program.
“HOPE strategies are now being done in 31 states because practitioners, judges, probation officers, and treatment providers see that the HOPE strategy can be a useful tool to help them to have more success with their supervision efforts,” he said. “HOPE is obviously not easy to do, but when done right saves people’s lives. As has happened over and over again here in Hawaii.”
The Obama Administration has again challenged the bail system, asserting in an amicus brief in a Georgia case that fixed bail schedules, which don’t account for the ability to pay, are unconstitutional.
This position was most recently asserted in an amicus brief filing in a case in Georgia. A previous blog from the Association of Los Angeles District Attorneys observed that a lawsuit in California is also challenging the bail system, although that lawsuit was denied class action status and an injunction earlier this year by a federal judge who issued a scathing decision.
Setting bail for those facing criminal charges is undoubtedly constitutional, as the 8th Amendment only prohibits “excessive bail.” In addition, the United States Supreme Court approved holding a person pre-trial without bail in a 1987 case, United States v Salerno.
The Obama Administration now seeks to challenge the bail requirement for indigent defendants as a violation of the 14th Amendment. However, as law professor Stephanos Bibas commented to the Los Angeles Times, the Supreme Court has not previously ruled that the equal protection clause forbids policies which may discriminate against the poor.
In California, Penal Code Section 1269c requires judges in each county to meet yearly and set a uniform bail schedule for that county. This schedule is used by police to set bail for persons booked into custody following arrest. If the arrestee does not bail out, he or she must appear for arraignment before a judge within 48 hours. Once the person appears in court, the judge can consider the crime charged, criminal history of the arrestee and any prior failures to appear in setting bail.
The determination of the judge is not final. The arrestee may request an additional hearing at which the arrestee is permitted to provide additional facts to challenge the bail amount.
The need for bail as a means to ensure appearances in court is readily apparent. Some could argue that the current bail system does not penalize the poor, it targets the rich. Judges routinely change bail amounts to reflect the wealth of a defendant. For example, a very wealthy person charged with a violent crime will see bail often increased to reflect the fact that the standard bail amount is a less meaningful incentive to appear in court than it would be to the average person charged with a crime.
If there is any doubt that not requiring bail leads to failures to appear in court, consider the impact of Proposition 47. In California, those arrested for misdemeanor offenses are rarely held pre-trial, instead usually being cited and released to appear in court at a later date.
When Prop. 47 reduced a significant number of felony offenses to misdemeanors, one of the early impacts was that failures to appear in court soared in 40 of the 58 counties surveyed earlier this year. In Monterey County, there was a 33% increase in failures to appear for misdemeanor offense following the passage of Prop 47. As a newspaper editorial noted, these criminals are not only failing to make their court dates; they aren’t getting drug treatment either.
If the Obama Administration position calling for the abolition of fixed bail schedules were to be adopted, the consequences in California would be significant. No longer could arrestees on felony offenses be booked into jail without appearing before a judge or commissioner.
Instead, those arrestees would have to appear before a judge or commissioner prior to being booked in jail, with a Deputy District Attorney and defense attorney required to be present at that hearing. Since arrests occur day and night 365 days a year, that means courtrooms opens 24 hours a day, 365 days a year, to conduct bail hearings, staffed by a judicial officer, court staff, deputy sheriff’s, a prosecutor and defense attorney. Since arrest reports would not have been written, the arresting officer would have to be present to give a probable cause declaration.
The case study cited by DOJ as an example of abusive practices was based upon an the arrest of an individual for a misdemeanor offense in Calhoun, Georgia — a town so small that court was only in session once a week. Never mind that Calhoun’s practice of holding individuals in custody for over 72 hours most likely violated other constitutional rights. The focus was the $160 bond required for release before the arrestee’s first appearance in court. By contrast, the California Penal Code requires that all arrested persons be brought before the court within 48 hours (weekends excepted).
The Obama Administration’s argument that all pre-appearance fixed bail schedules are unconstitutional on their face is unfounded, and if adopted would impose great financial costs upon California counties, not to mention the public safety implications.
As is typical with “reformers,” the Justice Department’s brief offers criticism, but little in the way of workable solutions. For example, the current bail in Los Angeles for the crime of murder is $2 million. If an indigent homeless person commits murder, is the Department of Justice suggesting that the bail should be reduced to, say, $100 or some similarly insignificant amount?
The assertion that it is unfair to detain a person charged with a crime pre-trial based “solely” on his or her inability to pay bail begs the question: Who would be in custody if they could pay the bond?
Every single person charged with a crime in California who is in custody pending arraignment or trial (other than those charged with capital murder which carries no bail) is there because the bail was set at an amount they were unable to pay.
The use of fixed bail schedules in California post-arrest, and before arraignment, is both respectful of public safety and an arrestee’s constitutional right. We await the decision of the 11th Circuit Court of Appeals and perhaps the United States Supreme Court for the final word.
They’re using charity to set poor defendants free.
The nationwide movement for bail reform is advancing, gradually, through legislatures and courts. Just last week the U.S. Department of Justice filed a friend-of-the-court brief with the 11th Circuit Court of Appeals, arguing for the first time at this level that putting defendants in jail because of their inability to pay bail is unconstitutional. The appeals court is considering the case of a man in Calhoun, Georgia who was kept in jail for six nights on a misdemeanor charge of being a pedestrian under the influence because he could not afford $160 bail.
Meanwhile, bail reform advocates increasingly are taking direct action: raising charitable funds they use to put up bail for defendants too poor to pay their way out of jail.
These funds have sprung up in recent years in cities across the country, including Boston, Brooklyn, Nashville, and Seattle. Similar funds are currently being explored in St. Louis, Miami, Cincinnati, Oakland, Philadelphia, and Austin. Because bail is typically returned as long as a defendant meets his court obligations, bail funds can be used repeatedly to bail out more people.
Most proponents of bail funds see their work as a form of political resistance, using charity to chip away at a system they believe should not depend on money. “Our overall goal is to end money bail,” said Sharlyn Grace, co-founder of the Chicago Community Bond Fund, which has paid roughly $160,000 for the release of over 30 people, including $35,000 for a woman charged with killing her allegedly abusive husband. “One thing we’re clear about is that we don’t want to exist,” she said.
That is not what motivates the most recent potential entry into the bail fund world. The American Bail Coalition, a trade group for insurance companies that underwrite bail, is considering setting up a charitable bail fund of its own. This represents a change of tune for an industry that has repeatedlydenied that bail often leaves poor people languishing in jail while the well-to-do go home. “It does happen, so I think we need to admit that,” said Jeff Clayton, policy director for the industry coalition, although he insists the inequities aren’t as widespread as bail reform advocates claim. “We can do some good if we put our mind to it.”
Critics of bail suspect the insurance companies’ fund, if it materializes, is part of a public relations campaign to soften the industry’s image and slow the pace of serious reforms.
“The insurance companies think if they do a bail fund, that will slow down the progress of eliminating money, because then they can say, ‘Look, we don’t need bail reform, we’re making progress through bail funds,’” said Tim Schnacke, a bail critic who has analyzed and written extensively about bail systems.
“A national bail fund sponsored by the bail bondsman?” said Cherise Fanno Burdeen, the executive director of the Pretrial Justice Institute. “That’s like a free sample of heroin from a drug dealer.”
Burdeen said bail funds — whether run by the industry or its critics — are unlikely to interfere with bail reform efforts, because lawmakers around the country are more concerned about the other end of the bail system: dangerous people with the means to buy their way out, who may commit new crimes.
“The public safety element of this is more important to stakeholders than poor people who can’t post bond,” said Burdeen.
Bail funds, proponents say, are serving as laboratories of sorts, testing the long-held belief that defendants are more likely to behave themselves and show up for court dates if they have money at stake. The Bronx Freedom Fund, which is an outgrowth of a public defender office, says it has bailed out more than 600 people charged with misdemeanors since 2007. Although they had none of their own money on the line, the vast majority, 96 percent, returned for their court dates, in some cases as many as 15 appearances. Fifty-five percent had their charges dismissed entirely; many of them probably would have pled guilty if the fund had not freed them.
“Anybody will plead guilty to go home, and everybody knows it,” said Robin Steinberg, co-founder of the Bronx fund. “This model allows us to prove that point while freeing people in the meantime.” Steinberg said she is working to establish a national bail fund, called the Bail Project, that would provide seed money and technical assistance in communities across the country. They hope to launch in the fall.
Bail funds have an array of origins and structures. The Massachusetts Bail Fund was started in 2013 by a group of defense attorneys and social workers. The fund uses a scoring tool to help assess each applicant’s potential to appear in court and caps charitable bail at $500 per defendant. The Connecticut Bail Fund, expected to launch this September, was organized by a group of Yale students who are now working on getting their state bondsman licenses (a requirement to post bail in some states). The Lorena Borjas Community Fund in Queens works to raise bail money for transgender women of color, mostly sex workers. And New York City Council Speaker Melissa Mark-Viverito is also working to establish a bail fund. Other funds were started by local activists protesting police violence, including bail funds in Baltimore, Oakland, Ferguson, Cleveland, and most recently, Baton Rouge, where nearly $300,000 was raised to help bail out protesters after Alton Sterling was shot by white police officers.
Laws in some states and cities make it far more difficult to sustain bail funds. When Just City, a nonprofit in Tennessee, tried to establish a bail fund in Nashville and Memphis, the group encountered an obstacle: in some parts of Tennessee, courts deduct fines and fees directly from a person’s bail deposit, regardless of who posted it; this threatened to slowly drain the fund. Nashville officials agreed to make an exception and return money to bail funds without deductions, but Memphis was less accommodating, and Just City has suspended its plan for a bail fund there.
The Massachusetts Bail Fund had early success, bailing out hundreds and documenting a 60 percent case dismissal rate for their clients. But the money ran out. “The need seems to be bottomless,” said Atara Rich-Shea, the fund’s operations director. She said getting the money back has been a challenge because the organization isn’t always notified when a case has concluded. They anticipate reopening in September.
This summer, the Chicago Community Bond Fund temporarily limited the number of new clients it accepts to focus on replenishing the fund. The fund is relying on success stories to help them raise that money. One recent client was Steven Cordon, 23, who was accused of having 1.6 grams of crack cocaine and was booked into Chicago’s Cook County Jail this April because he didn’t have $2,000 to bail himself out. He pleaded not guilty to drug possession and sat behind bars for a month awaiting trial before the Chicago fund was alerted to his case. The fund paid for his release on May 1, and four days later, a judge dismissed the charges, citing a lack of probable cause.
Cordon’s lawyer, Borjan Kovacevic, said the case could have gone much differently if Cordon hadn’t been bailed out. As a defense attorney, he has had numerous clients who pleaded guilty against his advice, he said, because they are desperate to be free. “I knew for a fact they were innocent, but they’re scared, they’re getting beat up, and all they can think about is getting out of there,” Kovacevic said.
THE U.S. JUSTICE DEPARTMENT’S INVOLVEMENT IN LOCAL BAIL POLICY IS NOTHING NEW—THE DEPARTMENT HAS TO REFORM SOMETHING SINCE IT CHOOSES TO DO NOTHING TO REFORM THE BROKEN FEDERAL BAIL SYSTEM
News media outlets around the Country are reporting on the recent filing of an amicus brief by U.S. Justice Department officials, in what one outlet called a “landmark” decision to file an amicus brief in a case challenging the use of monetary conditions of bail. That suit is pending before the U.S. Court of Appeals for the 11th Circuit, entitled Walker v. Calhoun, GA.
Instead, this is far from a “landmark” decision. In reality, this is an obvious and not particularly newsworthy decision by the U.S. Justice Department. The Department, led by then-Attorney General Eric Holder started the very anti-money bail movement eighteen months ago, when the Justice Department intervened in the City of Clanton case in February, 2015. That was a “rare move,” as the Wall Street Journal described it at the time. This set off a wave of copy-cat cases, several of which are now pending around the Country, the Calhoun case being the first to test the “cannot afford” bail equal protection theory. If the Justice Department’s theory was the law, then certainly they wouldn’t need to file an amicus brief on behalf of the “United States” to counter the arguments made in favor of the City by former U.S. Solicitor General Paul Clement.
Further, the Justice Department makes mention in the brief of the intervention it filed in the Clanton case, although the Department glosses over a critical point. The Clanton case settlement is nearly identical to the municipal court’s order in Calhoun that is now in effect, which the Plaintiffs and the District Judge believe is unconstitutional. The settlement order in Clanton sets bail in all offenses in a monetary amount, but all such conditions must be reviewed by a judge within 48 hours. In fact, Paul Clement informed the U.S. Court of Appeals for the 11th Circuit that the right to bail could not attach before the right to arraignment, which is 48 hours after an arrest pursuant to the City of Riverside case.
Finally, anyone who wants to follow the lead of this U.S. Justice Department on criminal policy may want to first review the facts. It is particularly ironic that this Justice Department would now cite U.S. v. Salerno for the proposition that “liberty is the norm” and detention the exception. Certainly the ACLU warned that adopting the federal risk-based detention system would increase incarceration—that is why the ACLU opposed the federal bail reform legislation and similarly joined the suit to call the federal bail reform act unconstitutional. True to form, this Justice Department now incarcerates, with no bail, 64 percent of all persons charged with a federal crime, which is up by 48 percent over the last 15 years.
Before the Justice Department officials continue their march into federal courts to force small cities like Calhoun, Georgia to run a bail policy endorsed by the Department, the same officials may want to realize they entirely lack credibility on this issue because in the very system over which they preside, detention is indeed the norm and liberty most certainly the exception.