Probation in Paradise: More Frequent Jail, but Less of It

Hawaii’s pilot probation program appears to be working: Slate article here.

The essence of the program is “swift, certain and proportionate” responses to probation violations, meaning small probation violations lead automatically to jail sentences, which may be very brief for small violations. In a more standard model like Colorado’s, mistakes (missed appointments or classes, hot UA’s, etc.) are dealt with first by escalating sanctions within the probation department– more probation, essentially. If those internal sanctions don’t work, the probation officer can file to revoke the probation and return the individual to court for sentencing on the underlying criminal conviction.

In practice, the probation officer has a lot of discretion, and some will petition to revoke probation after a single violation, while some will wait until months of failed sanctions. I do generally believe in second chances, and often enough third chances, so this discretion can be beneficial. Many people who are at risk of being revoked on probation are people who are trying very hard but don’t have the money or the time, or the transportation, or the personal discipline to smoothly meet all the demands of probation. Many people have substance abuse problems that are rightfully understood as works in progress, and all the UA’s in the world won’t help them go cold turkey. Life is expensive and hard, life on probation is more expensive and harder.

The discretion is also critical because probation revocation is often treated as an all or nothing proposition. So the violations may pile up, and only then will an officer file to revoke probation. And then, in Colorado, a judge may very well revoke and reinstate a person’s probation rather than impose a jail sentence. But at a certain point, whether the first or the third revocation, the probation officer, district attorney, and judge may all agree “enough is enough.” At that point, a revoked probation may be converted to a lengthy jail sentence, a far harsher one than the person might have received if he had just begged for jail at his original sentencing. In these cases, probation has done a disservice both to the public and to the defendant.

What Hawaii’s pilot program may be getting right is a more meaningful escalation. Far be it from a criminal defense lawyer to say someone should go to jail, but I’d rather have a client who is struggling on probation be sentenced to 2 nights in jail–and learn a lesson– than have him led on by the system, allowing the probation transgressions to pile up until the probation officer, district attorney and court finally hammer him with 1 year of jail. There are other alternatives to jail, of course, but if jail sends a stronger message and is not imposed frivolously, then this Hawaii program is worthy of consideration.

Assuming the model works as touted in the article (and that’s the subject of other discussion and research), the key to the humanity of the program, in my opinion, is proportionality. If “swift and certain” consequences means jail, it is critical to make sure that the consequences are strong enough to deter, and no stronger. Zero tolerance and uniformity are not something I normally support– central to justice is distinguishing one situation from another, and always considering proportionality. But the Hawaii program may find that proportionality in the sentencing. Serious but proportional consequences, issued swiftly after a violation, may strike the balance between the rehabilitative goals of probation and the fairness that the system owes people who are struggling to succeed on probation. The transparency and predictability of small but serious consequences may very well work. Better to bend a man than to break him.