Abstract
When the Great Recession hit in 2008 and states’ revenues took a nosedive and they began to look to reduce expenditures, attention to prison populations was an early candidate. Incarceration rates had been the fastest-growing expenditure by the states, having quintupled over the previous 30 years. Mark Kleiman was already there with his book, When Brute Force Fails, subtitled ‘How to Have Less Crime and Less Punishment’. Much of the legislative attention in the previous ‘get tough on crime’ era was focused on the choice between increasing certainty (the probability of punishment) or severity (the length of the sentence) as a means of enhancing deterrence. The initial choices paid roughly equal attention to both; when drug offenses were the target, they started with relatively short mandatory-minimum sentences as a substitute for probation, thereby increasing the certainty as well as the severity, but when they found that those short sentences were not doing much good, they kept increasing them and doing more technical parole violation, especially on the basis of failed drug tests, and so the emphasis shifted to severity.
The important feature of Kleiman’s book is his attention to celerity, a long neglected feature of deterrence theory that refers to the speed with which punishment for a crime is delivered. He brings celerity into the discussion through the economic construct of ‘discount rate’, a recognition that an economic benefit delayed by several years is worth less than one delivered immediately, and so a punishment delayed by slogging through the criminal justice process is less painful than one delivered immediately, and so less effective as a deterrent. The economic discount rate will be close to the contemporary interest rates, but the discount rate for delayed punishment could vary considerably across individuals and their varying distaste for the various elements of punishment.
The operational realization of high celerity showed up in Project HOPE (Hawaii’s Opportunity Probation with Enforcement) initiated by Judge Steven Alm, who was faced with probation-officer reports detailing multiple failed drug tests by probationers. The consequence of those failures would typically have involved a return to prison for an extended period, but Judge Alm sought a more appropriate response to those drug users who were unable or unwilling to give up the habit. The response was a requirement to arrive for a drug test once a week on a randomly chosen day; a failure of the test resulted in immediate imposition of a short stay in the local jail, initially about one week and increased for multiple failures. The striking observation was the large fraction of the offenders who became clean after a reasonable duration in this regimen and who stayed clean for extended periods after that. HOPE thus represents high certainty, high celerity, and minimum severity, a striking shift from the many contemporary efforts elsewhere to increase severity without addressing the other two elements. And its impressive success in reducing its clients’ drug abuse provides strong support for its basic approach of efficient and immediate reinforcement against misbehavior.
Much the academic, Kleiman uses the HOPE experience to provide some of his own perspectives on the theory of deterrence, on risk perception, on different valuations of uncertainty, and on the difference between average and variable costs of incarceration. These perspectives do not necessarily follow traditional theoretical constructs but they do represent the kind of perspectives an analytically oriented individual like Kleiman would bring to bear on these topics.
The celerity-driven approach embodied in HOPE—light punishment, quickly administered with certainty—has been a Kleiman theme for a long time and is clearly the issue that seems to motivate the book: much less severity of punishment, thereby reducing the cost, much faster response to wrongdoing and rapid reinforcement of appropriate behavior and thereby reducing crime. With this opening, Kleiman then explores a wide variety of other approaches targeted either at reducing costs or reducing crime. He covers considerable territory here by exploring improved policing, early intervention, guns and gun control, and the connections between healthcare and violence.
The connection between drugs and crime is another issue that has occupied Kleiman for a long time. He is one of the handful of analytic researchers who have explored the issues of drug policy empirically and conceptually. The drug–crime connection has been well established and is reflected in the large fraction of prisoners who report that their drug dependency and its demand for large sums of cash was a major factor contributing to the crimes that got them into prison. This inevitably opens the door to the question of drug legalization, which Kleiman poses as the question of whether crime results from drugs or from drug laws, answers it as ‘both’, and then rephrases the question as ‘What set of drug laws, enforcement practices, and other policies would cause the least crime?’ (p. 151). He then brings his long involvement in the drug-policy arena to addressing the different facets of that issue, bringing different perspectives to control of cannabis compared to cocaine compared to alcohol. These different kinds of drugs operate under different legal and healthcare regimes, warrant different treatments to deal with individual addiction and different kinds of interventions to deal with their illicit trafficking.
The book concludes with a chapter on ‘an agenda for crime control’ that covers a broad array of issues: policing; adjudication that covers persecution, courts, and sentencing rules; institutional corrections involving jails and prisons; community corrections involving probation and parole; pretrial release, including bail or release on own recognizance; juvenile corrections; drug policy; guns and gun control; and concludes with social services and other non-punitive anticrime measures. These contain over 100 short, bulleted suggestions without much elaboration of their costs and benefits or of the difficulty or ease of implementation. They include such simple recommendations as ‘directly communicate deterrent threats’ (p. 175) to ‘shift the burdens of crime and punishment away from otherwise disadvantaged groups, especially poor African-Americans’ (p. 175). Consistent with his enthusiasm about HOPE, he urges that courts ‘punish probation violators systematically and quickly but moderately; punish absconders more substantially’ (p. 178). He invokes the use of GPS trackers by urging development of ‘the capacity to continuously monitor the locations of offenders’ (p. 182). The array of recommendations covers many policy suggestions that have been made elsewhere, many that are already in use in a variety of places, many that have been tried and failed because of implementation difficulties, and many that are quite novel and warrant much further thinking to translate them into something that might become operational.
In sum, the book provides some of the strong logic behind the HOPE innovation, the initial evaluation results of that innovation, Kleiman’s excursion into many aspects of the factors involved in crime and crime control, and then an intriguing array of potential suggestions that might be implemented in the wide variety of operating agencies dealing with crime and offenders. It thereby provides considerable food for thought for practitioners in the agencies concerned with the problem of crime or punishment, some useful introduction to the task of modeling the costs and benefits of a variety of policies, and a rich array of one-sentence suggestions that any number of students might develop into interesting research papers.