A new book by Dr Lorana Bartels, Head of the School of Law and Justice at the University of Canberra, explores the therapeutic potential of Swift Certain Fair approaches…
In a review of the book Professor David Wexler, one of the founders of the concept of Therapeutic Jurisprudence, writes:
This is an excellent work that demonstrates how the HOPE probation program, though often thought to be structured solely around the goal of “deterrence”, can and should be administered in keeping with much broader criminological objectives.
In fact, Bartels writes convincingly about how such matters as “dynamic risk factors” are attended to, and how “strength-based” approaches are effectively used to animate probationers.
In other words, although there is a strict deterrent mechanism underpinning the HOPE project, Bartels notes how commentators and critics often fail to consider how HOPE draws criminological clout from the wider perspective of therapeutic jurisprudence: judges and other actors are encouraged to embrace an ethic of care in their interaction with probationers, to apply the law therapeutically and, to avail themselves of legal provisions (i.e. allowing for early termination of probation for worthy participants) expressly designed to further therapeutic and rehabilitative ends.
Readers should surely be deterred in the future from mischaracterizing HOPE!
In this blog Dr Lorana Bartels provides an overview of Project Hope and her findings…
This book examines Hawaii’s Opportunity Probation with Enforcement (HOPE) program/ HOPE commenced in 2004 as a pilot program, conceived of by Judge Steven Alm and developed by him and Cheryl Inouye. Alm was at that stage a judge for the First Judicial Circuit in Honolulu, Hawaii, and HOPE was implemented as a means of reducing probation violations by drug offenders and others at high risk of recidivism.
The key principle underlying HOPE is that sanctions for violations should be swift, certain and (i.e., proportionate). HOPE relies on swift and certain, but modest, sanctions to improve compliance. Probationers are warned in open court that if they violate probation rules they will immediately go to jail. During this warning hearing, probationers are assigned a color. Probationers are required to call a hotline each weekday morning to hear whether their color is being called for a random drug test that day. Random drug testing occurs at least six times a month for the probationer’s first two months in the program (testing frequency is reduced in response to good performance).
The following sanctions model is in place:
- Cell-block sanctions (ie, a few hours in a cell-block at the courthouse) where probationers are late for or miss an appointment with their probation officer, or are late for a drug test but later that day or the next day and test negative
- 2–day sanctions: where probationers test positive for drugs and admit to using drugs, they will be arrested immediately and taken into custody for two business days
- 15-day sanctions: where probationers return a positive drug test, but deny use, their urine sample is sealed and sent off for further analysis, and a court date set for 10 days later. If the analysis confirms the initial positive result, the probationer is arrested and required to serve 15 days in custody. The same approach is adopted where probationers miss an appointment or test and does not see their probation officer for several days, or where they fail to provide a sample within 30 minutes of attending for a urine test; and
- 30-day sanctions: if probationers miss a probation appointment, a warrant will be issued for their arrest five days later. The probationer will be required to serve 30 days in custody, with scope to make this longer for subsequent instances of absconding. This sanction is also imposed on probationers detected trying to tamper with the urine sample or who do not attend the warning hearing.
Drug treatment is provided for those who request it or who cannot stop using drugs or alcohol on their own. In practice, HOPE participants who request treatment will be referred to treatment, while those with two or more violations in quick succession are mandated to intensive treatment services, generally on a residential basis.
In 2010, Alm introduced the possibility of probationers having their order terminated early for good behaviour. If probationers can go for two years without any violations, they can apply to have their probation terminated. By 2015, over 100 HOPE probationers had been granted early termination of their probation, none of whom had subsequently been arrested.
Variations on the program (collectively often referred to as Project HOPE) have expanded to 31 states across the USA. In September 2016, Alm retired from judicial office and moved to Washington DC to work as a consultant on HOPE projects, thus heralding a new era in HOPE’s evolution.
This book draws on observational research conducted in 2016 to present an in-depth insight into the operation of HOPE. This is situated in the context of therapeutic jurisprudence (TJ) and solution-focused courts, especially drug courts. The observations focus in particular on three features of the program:
- the warning hearing,
- the consequences of non-compliance; and
- early termination.
The issue of procedural justice is also examined. These observations indicate that HOPE exhibits many features of solution-focused courts and likewise adopts many of the key components of drug courts. In particular, Alm displayed the qualities the National Drug Court Institute described as the necessary skills for a drug court judge:
- a leader,
- community collaborator; and
- institution builder.
The observations also tell some of the stories behind the statistics, giving important insights into HOPE’s operation and providing an opportunity for offenders to be rendered visible in the court process.
The book provides a detailed overview of the evaluations of HOPE and programs purportedly based on it. However, it emerges from this analysis that some of the key features of HOPE, especially those that relate to TJ, were not replicated in some of the later programs. The evaluation findings must therefore be interpreted in this light.
The book also presents a critical evaluation of the principal criticisms of HOPE. This demonstrates that there is significant misunderstanding about the program, which has been erroneously described as focused entirely on deterrence and punishment, without adequately recognising its therapeutic and rehabilitative features.
Although many of HOPE’s critics appear unwilling or unable to see the role programs like HOPE may play in assisting people in the criminal justice system to lead a different kind of life, Judge Alm always stated that the goal of HOPE is to help probationers lead better lives.
The book concludes by arguing that HOPE can play a significant role in bringing about a long overdue and more caring and therapeutic revolution in criminal justice.
Link here to buy Swift Certain Fair: Does Project HOPE Provide a Therapeutic Paradigm for Managing Offenders? (Receive 40% off the e-book until 30 August – use Coupon Code: PB2S17 at checkout)
Read a previous blog written by Judge Alm on Project HOPE here.