IN 2004, STEVEN ALM, a state trial judge in Hawaii, was frustrated with the cases on his docket. Nearly half of the people appearing before him were convicted offenders with drug problems who had been sentenced to probation rather than prison and then repeatedly violated the terms of that probation by missing appointments or testing positive for drugs. Whether out of neglect or leniency, probation officers would tend to overlook a probationer’s first 5 or 10 violations, giving the offender the impression that he could ignore the rules. But eventually, the officers would get fed up and recommend that Alm revoke probation and send the offender to jail to serve out his sentence. That struck Alm as too harsh, but the alternative — winking at probation violations — struck him as too soft. “I thought, This is crazy, this is a crazy way to change people’s behavior,” he told me recently.
So Alm decided to try something different. He reasoned that if the offenders knew that a probation violation would lead immediately to some certain punishment, they might shape up. “I thought, What did I do when my son was young?” he recalled. “If he misbehaved, I talked to him and warned him, and if he disregarded the warning, I gave him some kind of consequence right away.” Working with U.S. marshals and local police, Alm arranged for a new procedure: if offenders tested positive for drugs or missed an appointment, they would be arrested within hours and most would have a hearing within 72 hours. Those who were found to have violated probation would be quickly sentenced to a short jail term proportionate to the severity of the violation — typically a few days.
Alm mentioned his plan to the public defender, who suggested that it was only fair to warn probationers that the rules were going to be strictly enforced for the first time. Alm agreed, and on Oct. 1, 2004, he held a hearing for 18 sex offenders, followed by another one for 16 drug offenders. Brandishing a laminated “Wanted” poster, he told them: “I can guarantee that everyone in this courtroom wants you to succeed on probation, but you have not been cutting it. From now on, you’re going to follow all the rules of probation, and if you don’t, you’re going to be arrested on the spot and spend some time in jail right away.” He called the program HOPE, for Hawaii’s Opportunity Probation With Enforcement, and prepared himself for a flood of violation hearings.
Alm had stumbled onto an effective strategy for keeping people out of prison, one that puts a fresh twist on some venerable ideas about deterrence. Classical deterrence theory has long held that the threat of a mild punishment imposed reliably and immediately has a much greater deterrent effect than the threat of a severe punishment that is delayed and uncertain. Recent work in behavioral economics has helped to explain this phenomenon: people are more sensitive to the immediate than the slightly deferred future and focus more on how likely an outcome is than how bad it is. In the course of implementing HOPE, Alm discovered another reason why the strategy works: people are most likely to obey the law when they’re subject to punishments they perceive as legitimate, fair and consistent, rather than arbitrary and capricious. “When the system isn’t consistent and predictable, when people are punished randomly, they think, My probation officer doesn’t like me, or, Someone’s prejudiced against me,” Alm told me, “rather than seeing that everyone who breaks a rule is treated equally, in precisely the same way.”
Kennedy recalls this today as a breakthrough moment in his thinking. Ever since the days of Cesare Beccaria, the 18th-century philosopher and death-penalty opponent, classical deterrence theorists had focused on credibly threatening individuals; Kennedy’s first innovation was to focus on increasing the legitimacy of law enforcement in the eyes of groups. “The legitimacy element has risen in my mind from being an important element of the strategy to the most important element,” Kennedy told me. Convinced that the best way to increase legitimacy was to enlist what he calls the “community’s moral voice,” Kennedy set out to deter the most dangerous young gang members by persuading their friends and neighbors to pressure them into obeying the law.