By Rory Fleming
Last month, a woman won $7 million in a federal court in Hawaii against the state’s Department of Public Safety, its former director Nolan Espinda, and Honolulu Deputy Sheriff Freddie Carabbacan. She accused Carabbacan, whose behavior had been subject to scrutiny in the past, of sexual assault when she was incarcerated at the local jail. According to her testimony, she had told her fellow prisoners: “Who would believe me? I’m an addict.”
Far from being in jail for committing a serious crime, she was there because of a violation of probation under Hawaii’s Opportunity Probation with Enforcement program, or HOPE Probation for short.
Steve Alm, a former judge who now serves as the elected top prosecutor of Honolulu County, Hawaii, invented HOPE Probation in 2004. He explained in 2015 that his philosophy sees probation and parole like child-rearing. “You tell your child you care but families have rules,” he said. “All misbehavior results in a swift, certain, consistent and proportionate response.”
Since 2014, the federal government has issued nearly $15 million to more than 30 states to develop similar programs. In recent years, the Ohio Department of Rehabilitation and Corrections and the Pennsylvania Department of Corrections both looked to bring HOPE to their states. It has even been the subject of debate in parliamentary bodies in Australia.
The Hawaii State Judiciary’s website explains that HOPE Probation seeks to issue “swift, predictable, and immediate sanctions—typically resulting in several days in jail—for each detected violation, such as detected drug use or missed appointments with a probation officer.”
HOPE is different from other court supervision programs. The typical probation set-up involves a probation officer watching for behavioral slip-ups and reporting to a judge if someone significantly breaks the terms. By the time the judge hears the violation, it may have been weeks or months. A stay in prison measured in weeks or months is a frequent result.
HOPE prioritizes heightened monitoring and speedier, but less severe, consequences. In theory, it gives people a better chance to remain free in the community longer term, rather than threatening long-term incarceration for small, technical violations. On the flip side, a person on HOPE Probation is even less free than someone on normal probation. Being formally cited and brought to court for a violation is not like a lightning bolt, rare but devastating. Rotating between jail and the outside world is more like a certainty, unless someone is able to adapt their behavior all at once.
Keeping people who use drugs in long-term limbo between jail and freedom feels decidedly “tough-on-crime.” Yet the program has been embraced by some criminal justice reform proponents. The American Constitutional Society, a “leading progressive legal organization,” posited in 2009 that HOPE Probation could be part of the solution to mass incarceration. Leading liberal magazine Slate ran an article in 2013 with the dubious subheading, “Swift and certain punishment reduces crime. Parolees love it.”
Alm wrote in a 2015 Minnesota Law Review article that HOPE Probation is one prong of his two-part strategy to “make court-ordered community supervision more effective.” The other is expanding drug courts and redirecting their focus to a “higher-risk probation population.”
Similar to drug courts themselves, HOPE Probation seems to set probationers up to fail, while relying on the fallacious concept that drug criminalization is necessary in the first place. When the program is implemented, resources that could otherwise go to addiction treatment programs and other services end up going to zero-tolerance enforcement.
Jesse Zortman, a forensic psychotherapist in Pennsylvania, spent years interviewing men who were assigned to HOPE Probation in Pennsylvania. He did not find that they “loved” it.
“HOPE is a deterrence-based paradigm,” he told Filter. “Unfortunately, this correctional model ignores empirically-known causes of recidivism, favoring certainty of punishment over treatment. Simply put, rehabilitation is not the goal.”
“Sure, you might get some short-term compliance,” he continued. “But when you ignore over 40 years of criminological research and do not address things such as antisocial attitudes and cognitions, these underlying factors will continue to develop and lead the individual into future crime. Just like programs such as ‘scared straight,’ specific deterrence simply does not work.”
Zortman also pointed to an evaluation of HOPE Probation published in Federal Probation magazine. It predicted that, “when jurisdictions exhaust their ability to improve swiftness and certainty, they will seek to reduce violations and recidivism with the only component of punishment remaining in their arsenal: severity.”
Other evidence suggests that HOPE does not succeed even according to its architects’ framing. When the Justice Department encouraged the implementation of HOPE via grant funding in four pilot counties in 2012, under the name Honest Opportunity Probation with Enforcement, researchers found that “HOPE probationers had a statistically significant greater number of probation violations,” when compared with the probationers in the control group. On that basis, the National Institute of Justice’s CrimeSolutions portal rates HOPE “no effects.”
A different result from the DOJ study perhaps shows the real purpose behind the program: abstinence from drugs, including alcohol, and never mind if it’s achieved coercively. HOPE probationers had “statistically significantly lower odds of a positive drug test.”
In its original Hawaii context, early HOPE proponent Mark A. R. Kleiman previously counted an increase in abstinence as part of its success. Despite his lukewarm opposition to the War on Drugs, Kleiman, a professor of public policy at the University of California at Los Angeles before his death in 2019, still believed that “D.A.R.E. is a wonderful tool for police-community relations, particularly, in poor neighborhoods.”
None of the objections to HOPE have curbed Alm’s popularity in a state that virtually always votes Democratic.
After allegations against Alm’s predecessor as Honolulu prosecuting attorney, Keith Kaneshiro, damaged public confidence in the office—Kaneshiro is subject to an ongoing FBI probe for corruption—Alm took it upon himself to leave retirement to run for the seat.
His victory might as well have been preordained. He won first place in the nonpartisan top-two primary in August 2020 by a landslide, then dispatched Megan Kau by 11 percentage points in the general election that November. Jacquie Esser, a progressive candidate in the mold of Philadelphia District Attorney Larry Krasner, who received backing from national social justice icon Shaun King, received less than 20 percent of the vote in the primary, coming in third.
The program itself, which some local politicians cannot imagine doing without, remains intact despite concerns. In 2018, the Hawaii legislature’s Task Force on Prison Reform recommended that “the state stop using incarceration to sanction HOPE probation violators,” despite short-term stays in jail for all probation violations being the point of the program. It does not appear that this recommendation became law, while other recent bills in Hawaii seek to expand HOPE further.
Meanwhile, local leaders told Filter about how Steve Alm is approaching his current role. Both Nikos Leverenz of the Hawai’i Health & Harm Reduction Center and Kat Brady of the Community Alliance on Prisons sounded the alarm about his support of the “Weed and Seed” program, which he oversaw an earlier iteration of during his tenure as US attorney of the District of Hawaii during the Clinton administration.
Weed and Seed is supposed to strategically use law enforcement resources to ferret out criminal activity in specific neighborhoods, then replace it with community building initiatives.
Leverenz said that what Alm’s Weed and Seed program really constitutes is “dozens of arrests for drug possession and sending people experiencing homelessness elsewhere.” The drug possession arrests then lead to bloated terms of probation; Hawaii leads the country in probation term lengths, with an average duration of 59 months. Brady said that “prosecutors and the courts are just sending people, who are struggling to survive, into the petri dish [of COVID-19 in the local jail].”
Ultimately, Alm’s legacy seems to be the creation of a “prison without walls” for people who use drugs, a harmful and increasingly antiquated strategy as major cities across the country move away from criminalization and toward a public health approach.
Rory is a writer and licensed attorney. Originally published by Filtermag