Abstract
Reviewed by: Rick Sarre, University of South Australia; adjunct, Umeå University, Sweden
I was drawn to this book by the title. Not only do most people agree that justice should be swift, certain and fair, but there is always a market for a published study that evaluates the effectiveness of an innovative program, in this instance Hawaii’s Opportunity Probation with Enforcement (HOPE) initiative. The book gives the criminological readership an opportunity to see another aspect of ‘therapeutic jurisprudence’ (more commonly referred to now as ‘therapeutic justice’) in action, through what are becoming referred to as ‘solution-focused’ courts.
What is the idea behind HOPE? It is that judges and magistrates will be uncompromising in their response to persons failing to meet their probationary conditions, especially in relation to drug-related crime (where most of the focus has been). If one doesn’t do what one has agreed to do, then the response is swift and certain (and, its proponents would argue, fair). These conditions include submitting to random drug tests. Dr. Bartels became interested in HOPE following a seminar in Canberra in 2013. She has now systematically produced a comprehensive overview of the idea, interspersing a literature review with her own observations of Hawaii’s HOPE court.
In 2004, Judge Steven Alm was becoming increasingly frustrated at a ‘revolving door’ of failed probationary candidates in Honolulu. He decided to do something about it, and set in place a procedural regime that he was able, within his general discretion, to implement without legislative fiat. Such judicial activism has a precedent in Australia. Adelaide Magistrate Chris Vass in 1999 initiated an Aboriginal court after observing the plight of Indigenous offenders at the hands of a ‘one size fits all’ justice system in South Australia. These courts have now successfully spread around the country.
To reduce it to its simplest form, the idea behind the HOPE program is ‘tough love’. Sometimes offenders need to have a line drawn in the sand, say its proponents, and will thereby be deterred from future offending. Thus, probation officers are given less discretion (in responding to breaches). The HOPE project operates on the premise that deterrence is far more effective if it holds out the prospect of an immediate and highly probable (yet relatively mild) punishment as opposed to the prospect of deferred and low probability exposure to more severe punishment.
HOPE (or one of its permutations) has now been widely adopted across the United States. Its implications for desistance theory are important, and while there is reference in Dr. Bartels’ discussion to the work of Shadd Maruna, the writings of Flinders University’s Mark Halsey could probably have been cross-referenced in the arguments about whether a program of this type is transferable to an Australian setting.
So, does HOPE work? One cannot rely simply, of course, on the ‘warm inner glow’ that too many evaluations of innovative justice programs have touted anecdotally as their dependent variable over the years. To answer this question, then, Dr. Bartels reviews the many evaluations that have been conducted in a number of sites. She looks principally at 13 HOPE-style programs in 10 US states that operate a form of HOPE. There are dozens of other HOPE-inspired ‘swift and certain’ approaches across a majority of states, and the literature accompanying these programs, too, is reviewed by the author.
In recent years, in order to answer the critics of so-called ‘what works’ evaluations, a number of policy ‘think-tanks’ emerged. One of the more credible is the Washington State Institute for Public Policy, a leading exponent of the art of determining the cost-effectiveness of specific justice initiatives. According to its analysis, “swift and certain” programs, such as HOPE, per dollar spent, return 88 cents more than drug courts, and $2.58 more than standard case management supervision. Moreover, HOPE probationers perform better than probationers under routine supervision: indeed, they are less than half as likely to return to prison.
There has been a clear attempt in HOPE to ensure that only those candidates who would have gone to prison in any event are given the option to avoid it. All they need to do is to undertake successfully the strict supervision of their probationary officers. That accepted, fears of net-widening, according to the proponents of the program, have not been realised.
Dr. Bartels notes from her visit to Hawaii that Judge Alm is feted by successful probationers whom he meets in the halls of the court, and occasionally on the streets. She witnessed a ‘warm and friendly’ courtroom (p. 70), with sporadic rounds of applause when a candidate’s successes were noted. She observed an Alm-inspired ‘celebratory’ (p. 76) tone to proceedings. From my experience, this is something that one would be unlikely to find in any Australian courtroom.
While reading this particular chapter, my mind went back to the Herald & Weekly Times and Bolt v Popovic defamation case. In 2003, journalist Andrew Bolt was found to have defamed Victoria’s Deputy Chief Magistrate Jelena Popovic when he chided her, in his newspaper column, for her enthusiastic responses to law-breakers who made strides in their drug rehabilitation. Andrew Bolt is unlikely to place Judge Alm on his Christmas card list, although HOPE’s uncompromising approach to failed candidates might have some appeal to him and others who support a hardline approach to sentencing offenders.
What, then, has inspired the reticence of other jurisdictions to follow such an approach? Principally, as Dr. Bartels notes, it is that HOPE may ignore the underlying criminogenic factors that persist in offenders’ lives, such as poor mental health, unfortunate family antecedents, poverty, dysfunctionality, and ethnicity. HOPE does not look at causes. It simply wants to increase attendance by probationers; it wants to reduce probationer denial; and it wants to create an open dialogue with probationers about how best to encourage their desistance from crime and anti-social behaviours.
Dr. Bartels covers well the criticisms that have been levelled at HOPE-like programs, and, while she steers clear of being a rose-coloured-glasses-wearing apologist for them, she does respond to the nay-sayers. She is on solid ground: one can hardly champion a status quo which has so many systematic failures. She is right to point out that judicial decision-making, coming at the end of justice processing, is unlikely to make too much difference to what has happened in probationers’ lives that led to their being the subject of probation in the first place. Nevertheless, she posits the view that any option that reduces probationers’ exposure to the system is better than the one that operates now; one that continually fails vast numbers of offenders on a regular basis.
The book is timely, if for no other reason than that the Victorian government looks at all and any innovative programs to add to its suite of therapeutic justice initiatives. Indeed, it has toyed with the idea of introducing HOPE-like programs, and sought the advice of the Victorian Sentencing Advisory Council in relation to family violence offenders specifically. In October 2017, the Council rejected the ‘swift and certain’ approach for such offenders. Nevertheless, as Dr. Bartels points out, the National Ice Taskforce has modelled its approach on a ‘swift and certain’ response to methamphetamine use (with the Northern Territory running a pilot project), and we await an evaluation of its outcomes in due course.
I compliment the writer on a well-written and easy to read research offering that is superbly footnoted and edited. Desistance theorists and justice practitioners alike will find it a compelling offering.