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Wednesday, August 3, 2011
Judge Steven Alm: Justice Reinvestment and the future of HOPE Probation
By Andrew Walden @ 11:35 PM :: 15983 Views :: Justice Reinvestment, Law Enforcement, Drugs

by Andrew Walden

First Circuit Court (Honolulu) Judge Steven Alm is the originator of HOPE Probation, an innovative probation system being adopted by numerous states across the country. HOPE probation is credited with sharply reducing the number of new crimes committed by probationers.

From his biography:

In 2004, Judge Alm brought together stakeholders to design and implement HOPE Probation (Hawaii’s Opportunity Probation with Enforcement). The program, the first and only of its kind in the nation, relies on high-intensity supervision to reduce probation violations by drug offenders and others at high risk of recidivism.

Prior to his judicial appointment, Judge Alm served as the United States Attorney for the District of Hawai`i from November 1994 until April 2001. During his tenure, the United State’s Attorney’s Office focused on political corruption, labor racketeering and drug trafficking offenses, and started the very successful Weed and Seed program. Judge Alm made federal, state and local cooperation and coordination his top priority.

From 1985 to 1994, Judge Alm served as Deputy Prosecuting Attorney for the City and County of Honolulu. During that time, he served as a Felony Team Supervisor and as Director of the District and Family Court division and personally handled complex homicide cases.

Hawai'i Free Press editor Andrew Walden interviewed Judge Alm Tuesday July 26, 2011.

Here is the complete transcript, with slight edits for clarity:

* * * * *

Q: Right now, how many people are in HOPE Probation in Hawaii? How many are on probation total?

Alm: Let's talk about Oahu because I have better numbers on that. There are about 8,200 people on felony probation on Oahu. And there are about a little over 1,700 of them are in HOPE. It's about one out of five.

Q: Recently you've expanded geographically into Hilo and Kauai.

Alm: And Maui started a couple of years ago.

Q: Do you see HOPE expanding into new categories such as drug court, family court, and the big one is state parolees as opposed to probationers?

Alm: Hawaii has one of the lowest violent crime rates in the country--we have one of the highest property crime rates. So we probably send 15-20% of people to prison--years in prison--at sentencing. So that means 80-85% get put on probation. So one of the key things that I think some people don't see is--whether they get put on HOPE or regular probation, the decision has already been made by a judge, they're going to be on probation.

So it's not prison or HOPE, its prison or probation. And then if they're going to be on probation, then do we want to watch them closely on HOPE and sanction them every time or not do that on regular probation?

Q: What I'm getting at is are you looking at expanding HOPE to serve other categories besides probationers?

Alm: I'm hoping to in the future, yes. Right now, people are on parole--they do some years in prison and then they get released on parole. So the paroling authority has already decided to release them. I say, because--and we have gold standard research from Pepperdine and UCLA showing that people in HOPE probation are getting arrested for new crimes half as often as those on regular probation.

There has been no criminal justice program like this in decades. And so on parole, if you watch them closely and sanction them every time, you'll get similar benefits for people on parole, that's the hope.

Q: One of the criticisms that I've seen comes from Rosalina Aipopo of the Department of Public Safety. She says, "Corrections Division is required to expand money, manpower and resources to house these short-term offenders taking up needed cell space and the resources for the pre-trial population."

She's referring to people who've been violated (sent back to jail for probation violations) under HOPE rules.

Now what happens if HOPE expands and there is not the commensurate expansion of personnel and the commensurate expansion of jail spaces to violate people?

Alm: The beauty is, what we're trying to do these days is operate based on research, not based on anecdotes. The way HOPE works versus regular probation is with HOPE they get sanctioned every single time. So if they come to the courthouse and test positive, on regular probation nothing happens. They are allowed to leave the courthouse. On HOPE, they get arrested and go to jail for two or three days and then are brought to court.

In Dr. Hawkins research, she found that, anecdotes aside, the actual time in jail was the same for HOPE probation and regular probation. What Ms Aipopo is saying was found by the research to be not true.

If I sentence 52 HOPE guys, say for a week each-- and on regular probation they get convicted of a new crime or they get the probation revoked and the judge gives them a new five year term of probation but a year in jail as a condition of probation--the bed days between those two events are going to be the same, 52 people for a week each, one person for a year. But people down at jail are going to say, "Wow, look at all these HOPE guys coming in and out, right."

I don't know if somebody hasn't explained to them or showed them the research, but the research shows it doesn't take any extra bed days. It's not taking up other space. And the people are doing 48% fewer days in prison--in State prison. So it is saving millions of dollars right now.

That's why the research is so important to look at and that's why I wrote a response to (Jim) Dooley's (April 28th Hawaii Reporter) article saying let's not go with anecdote. In this day and age, let's look at the research....

Q: How would you respond to the criticism that Abercrombie is now working to reduce jail populations and he is using HOPE to do what Carlisle said would be "keep people out of jail who should be in jail"?

Alm: Governor Abercrombie I think supports this whole Justice Reinvestment initiative. And that's going to be a process working with the (US) Department of Justice. They're going to come up with some recommendations later on this year. So nothing is happening right now on that front.

This Justice Reinvestment Initiative is going on all around the country. I was just in Kentucky three weeks ago and they just spent a year doing it and came up with some recommendations for it and now they're looking at putting HOPE models in Kentucky.

I agree with Peter Carlisle that people that should be in prison, the violent and dangerous and those who won't stop stealing absolutely should be in prison. HOPE or any probation is not a substitute for those guys. The violent and dangerous people need to be in prison.

Q: Abercrombie has just appointed a new Paroling Authority which some people would say is a soft on crime Board. I don't know if you want to respond to that or not but you have pointed out that when you get a probationer, the judge has already made his decision and you're stuck with it.

Alm: I get the cases from the other judges now in HOPE. So if another judge puts somebody on probation and either they or the PO think they should be in HOPE then I get the case.

Q: So it's not just your own cases.

Alm: Right. Its everybody else's cases. So you're right, the decision has already been made. Whether I might agree with it or not o an individual case, the decision has already been made to give this guy a shot on probation.

Q: Some of the uglier cases that have given HOPE a black eye--such as RJ Ham and Kelii Acasia --these were people that had multiple felony records and somehow they were out on probation.

Alm: OK, to begin with, the person's first day in HOPE is what we call a warning hearing where I tell the person: "From now if you miss an appointment you go to jail. If you use drugs you go to jail. If you don't go to treatment and you need it you go to jail. And if it keeps up you go to prison for years.

Well, neither one of those two guys you mentioned showed up for their warning hearing. So warrants were issued and then they committed the crime before they (were) picked up on a warrant. So I really take offence to the idea to say those guys were in HOPE probation.

Q: They were assigned to it and they never showed up?

Alm: They were recommended for the program. The PO told them to be in whatever courtroom -- because before we had all ten judges doing this, then we thought it would be more efficient to have one--but they never showed up for the warning hearing. To say they are a HOPE failure, I think is just unfair because they never got the speech, they never got the consequences. And they would have been violating probation anyway.

Now the initial call about whether to put somebody on probation or send them to prison, I think as judges that's something we have to stand behind. That's what we get paid for, to make those decisions.

Q: You mentioned that you don't believe that HOPE is taking up more jail space. Do you think that HOPE requires more manpower out of probation officers?

Alm: No, but it requires them to move faster. If you and I are both probation officers, we both have clients that come see us and yours tests dirty and mine tests dirty.

(If) yours is in HOPE, you have to either drop what you are doing right then or work with a colleague because maybe you're seeing another client at the point. But they have to get taken into custody, sheriff gets called, but we have a new redesigned motion that takes them five minutes to fill out.

Whereas me (not being in HOPE), I talk to my guy and say, "Joe, how come you tested positive again?"

(He says) "Oh, I had a fight with my girlfriend."

I say, "You know it's a violation of probation. Next year you might get referred back to Judge Alm and get five years in prison."

(He says) "OK, I'll quit."

And then the guy leaves the office.

Q: Without being violated.

Alm: Without being violated.

And to me, what kind of message are we sending to that guy?

Q: That's the problem with the old form of probation.

Alm: Exactly. That's exactly right. But I'm not blaming anybody. I'm not blaming POs. I'm not blaming judges. Our old system was like those old Bud Lite commercials during the last football season--too light or too heavy. Because they did not have an in-between thing. They had either talk, talk, talk, or write up the violation report listing every violation. And then they recommend to me (that) I give them five or ten years in prison.

And I thought: "That's crazy too, but what would work?"

And I thought: "How was I raised? How were you raised? How do we raise our kids? We tell them what the rules are and then if they misbehaved you give them a consequence immediately. Then they can tie together the bad behavior with the consequence and learn from it."

This is parenting 101. Which is why I really encourage you to come to court because you'll see that it's a very transparent process. I tell these offenders, "You're an adult. I can't control what you're going to do, but I can control what I'm going to do. So if you use drugs, you go to jail. If you want to be outside, go to events on the outside, go to your kids first baby luau, you're not going to use drugs. If you can stop on your own, great. If you can't, go to treatment. If you refuse to go to treatment, I'll send you to prison."

Q: So you believe we are able to do this without substantially expanding manpower?

Alm: Yes. But it requires public servants to work smarter and harder. I think they can do that.

Q: I know what the unions would say if they were hearing this.

Alm: (Laughter) What I would encourage you to do is talk to Cheryl Inouye. She's a hard-ass probation supervisor. She's the one I talked to seven years ago now. And she told her POs. "You guys are doing a good job. Our POs are being successful in some cases, but they're not being successful in others. So from now on, you've got to violate them every single time."

There was an article in the New York Times Magazine, January, 2010--and I told the guy writing it that all we want to do is make our probation system work better, but I'm convinced one of the chief reasons it works is (that) even the offenders think it's fair.

They're told what the rules are. If they violate, they go to jail, but it's proportionate. I use drugs. I come in and admit to it. I get five days in jail. You know that's fair.

And the fact that they came to the courthouse knowing they would test positive for drugs, tells me they're having problems but they are still trying to make it work.

If they run away and we have to use law enforcement resources to pick them up, we are going to give them a lot more time in jail.

Q: Speculating a little bit into the future: How do you think Justice Reinvestment will affect HOPE probation?

Alm: If the idea with Justice Reinvestment is to look at the statutes and come up with what are the biggest drivers for our big State prison system. And what those of in the business know is the size of our prison (population) is based not on judges at initial sentencing, but on failures at probation primarily and then parole secondarily.

So I think if there are recommendations to change the statutes maybe to allow more drug possession charges to be probationable, then that would mean that more people would get put on HOPE probation but it would also mean maybe more people would get put on parole. And I just think you need to have a tight, tough system both in probation and parole. And that's where I see an expansion, I see a HOPE parole down the road.

Q: You had mentioned that about 20% of current probationers are on HOPE probation. What about the other 80%? What's the hold up, why not just put them all on HOPE?

Alm: That's what I say. (laughter) It does require people to work smarter and harder. And one of the things we're doing is trying to focus our efforts on the people most likely to fail. And that's what's different about HOPE from any other program. We are putting people into HOPE that are most likely to fail because they have drug problems or they've had problems in supervision in the past.

Say somebody steals ten videos from Best Buy. They're scared to death. They're never going to do it again. Those guys, you don't need this kind of really tough probation system.

Q: But on the other hand, some people commit their first crime and they see how easy it is. And then they go commit their second crime.

Alm: I agree with you. I look to the day where the 20-year-old driving a stolen car, we arrest him, we put him in HOPE. I agree with you, down the road. I think we're getting there. We're slowly expanding.

I do this most of the time. I’m now the Drug Court judge, too. I do that on Mondays, I do HOPE Tuesday through Friday. We’re looking at getting another judge doing this and getting them started.

The research is so clear. Dr. Hawkins research, they identified 500 people in main branch probation. They all had drug problems, average age mid 30s, 16 to 17 prior arrests. The National Institute of Justice required her to run their names through a computer program that randomly put two out of every three into HOPE. The other third were left in a control group. There’s almost zero research like this in the criminal justice system. A year later she looked at the results and she found the guys in HOPE were getting arrested for new crimes 55% less often than the control group. It is remarkable!

Q: Related to first crimes, do you see HOPE expanding into juvenile?

Alm: I would definitely like to see that because if the swift and certain consequence works with adults, it works even more with juveniles.

Q: How would you respond to the moral hazard argument that says, well since HOPE is working, it’s easier to let people out or easier to sentence them to probation?

Alm: I would still say that, for the violent and dangerous and those who won’t stop stealing—no probation is a substitute for that (prison). To protect public safety, we’ve got to send those people to prison.

But again, when you look at it, I think that’s a relatively small percentage—I think 20%.

Right now, if you’re on probation for possession of a small amount of crystal meth or cocaine, and you are arrested for anything and they search you and they find a pipe with residue, right now I have to give that person five years in prison.

In many cases, that may not be the most appropriate thing—to send that guy to Halawa Prison.

Q: You have a minimum sentencing requirement that tells people just on possession of methamphetamines they have to go five years?

Alm: If it’s the second time. The statute is a repeat offender (statute). If you’re on probation for one offense—for example drugs, but it could be other things. But let’s say you’re on probation for one offense: If you get convicted of a new offense—and I give the example of a possession of a small amount of drugs—and you get convicted of a new one, right now we have to give them the five years maximum. The Paroling Authority will set the minimum, but we set the five years maximum and we can give them up to a year (and) eight months as a mandatory minimum.

We can reduce the minimum if they cop and don’t make the State put the case on, but we can’t (convert the sentence) from prison to probation.

That’s something I know the Legislature has looked at in the past. As somebody in the Judiciary, I wouldn’t take a position on it. But if such person were probationable, with HOPE now we have a place to monitor them.

Q: Often we see somebody who is out on the streets and they’ve got a rap sheet with 20 felony convictions—rape, manslaughter, burglary, and so forth and they’re still out on the street. And you’re talking about somebody with some meth residue who gets five years.

Alm: Right (laughter). I think partly I think the press could be more careful, because when they talk about people’s priors, often they’re talking about arrests, not convictions.

Q: Sometimes.

Alm: And if somebody hasn’t been convicted of something, that’s a different story. If they’ve had prior convictions, then presumably they were sanctioned for that conviction. Whether they got the right sanction, we have to look at each case.

I’m not trying to excuse. If people should have been sent to prison, they should have been sent to prison. But sometimes you do have somebody who does have a record and he just got out of prison after doing several years—we’ve got to find a better way to monitor that person.

And I was probably the hardest sentence in this building.

The last case I did as a (Honolulu) prosecutor was the murder of a police officer. And then I was a United States Attorney for 6 ½ years under President Clinton. So I’m a very law-and-order tough guy. But I think we’ve got to be tough on crime, but at the same time we’ve got to be smart on crime. And that’s why there’s a movement across the country to really try to separate out those two. And that’s why people like Grover Norquist (President of Americans for Tax Reform), people like David Kean, the President of the National Rifle Association, love HOPE probation because of the accountability involved and the stark contrast to business as usual.

Q: So how do you prevent HOPE from being swamped?

Alm: You make sure, if we’re going to put more and more people on HOPE probation, we’re going to need another judge doing this. And the Paroling Authority is busy as heck. Now the paroling authority has one full time member and two part time members.

Q: Which one is full time?

Alm: Bert Matsuoka. He’s the new guy. The other two positions are part time. All three of those positions should be full time. As you know, in our system, if I give somebody five years in prison, that’s the maximum they get. After a few months in prison, they go before the Paroling Authority (where) they set the minimum.

It is an incredibly important job. I think we’re the only state with this system. They should be three full time positions, in my personal opinion, not speaking on behalf of the Judiciary.

If they’re asking the Paroling Authority in the future to do HOPE Parole, then I think (that’s) even more of a reason why you’d have to have all three be full time positions.

Q: It seems like the Hawaii Paroling Authority is one of the reasons for the revolving door. And I don’t mean necessarily the three people who are on it now, although some people have said that Michael Town, Bert Matsuoka, and Joyce Matsumori are soft on crime.

Alm: Each case, you’d have to look at it and decide how much time are we going to give this person? And that’s going to be a decision that they’re going to have to stand behind for each one and decide how long should somebody serve and are there programs. The problem is that when budgets are cut, programs are the first things that are cut.

One thing that we will clearly need as HOPE expands--whether it is probation and/or parole—is we’re going to have to have more funding for our treatment programs. Because we have some excellent drug treatment programs in Hawaii—but there are waiting lists for them.

You should go talk to Alan Johnson, he’s the President of Hina Mauka. They have a waiting list. They’ve had to lay people off. We have more people in treatment from HOPE than from Drug Court because HOPE is so big.

Some guys can stop using on their own. Some need to go to treatment.

We can separate out the groups…. Then we only send to treatment the people that need it. But the Legislature has given us a more than a million bucks for (each of) the last five years, and we use most of the money for drug treatment slots.

But, in spite of that, they’re going to need more. And we do have some excellent treatment.

I travel around the country talking about HOPE all the time, on somebody else’s dime. And I’ve discovered a bunch of communities don’t have any good drug treatment. It’s crazy.

Q: Do you think that future judicial appointments should be contingent on judge’s pre-agreement to participate in HOPE?

Alm: I don’t think it has to get to that. Our Chief Justice totally supports HOPE. And I think judges are frustrated by a system which doesn’t work which is why we’ve had a lot of judges who are very supportive of HOPE.

We had six judges doing this when the prosecutors and public defenders requested (to have) it in one courtroom. Logistically it was a challenge and it’s probably easier and more consistent to have it in one (courtroom). That’s when I agreed to take all the cases—about a year and a half ago.

Q: Abercrombie has pledged to bring all the prisoners back from the Mainland. There aren’t any prisons being built except that jail at Puunene. And the jail at Puunene is a question mark. Is HOPE Parole the solution to fill that gap?

Alm: I don’t want to … since the Justice Reinvestment initiative is ongoing-- and I think there is a team from the Justice Department that is meeting with Public Safety, with the prosecutors, with the courts, with everybody—they’re going to come up with some recommendations. I’m just going to let that process take it’s course.

Q: What other alternatives, besides HOPE Parole, are there, that don’t involve incarceration?

Alm: I think they will probably look at our statutes. The way this process works as they explained it to us: the first step is get data. Do research to find out what are the drivers for our system. And I think one of them they will find is that people fail at probation or parole. And will they make appropriate recommendations regarding some of those statutes?

Again, if somebody’s not going to be incarcerated, they’re either going to be on probation or parole. It is not like the crimes are going to go away or the people are going to go away.

Q: So this would require a substantial increase in parole officers?

Alm: We haven’t added a bunch of probation officers. They’ve just have had to operate differently. And I take my hat off to them that they have stepped up and work in teams. Because if you and I are both POs and you’re meeting with a client and one of your guys violates, I will step in do the motion immediately. It takes five minutes. Call the Sheriff, they’ll come in and arrest the guy, boom he’s off to OCCC. But it takes teamwork. It takes working harder and smarter and people, if challenged, will step up and do that.

Q: You mentioned a simplified motion to violate a probationer, what other simplifications are out there that could speed up the process and make them more effective?

Alm: The police department. When I talked to Chief Correa like six years ago I wanted to ask for his help in serving more warrants. And he said so the idea is if we spend some upfront effort serving warrants, down the road we won’t have to spend the multiple hours investigating the burglaries and the car thefts. That’s exactly what we’re hoping for.

And so, when Dr Hawkins results came out showing that the guys in HOPE were getting arrested 55% less often, (Correa) was the first guy I called. I said, “Chief, what you were hoping for is exactly what’s happened.”

And so that’s why you’ll see out there warrants for HOPE all the time. That’s the way it works and it’s a lot less labor intensive for law enforcement to serve warrants than it is to spend the hours investigating the burglaries the car thefts, and everything else.

This is why the Police Chief is supportive of HOPE, the Sheriff is supportive of HOPE, the US Marshall (Erwin?) Miyamoto—they’re all supportive of HOPE. It’s a different way to operate. It is doing up front a little bit rather than a lot down the road.

Q: Does that mean that police transfer more officers to go after fugitives?

Alm: No. They just kind of heighten the level of it. So people think about it. So they send the warrants to the different groups. You know each district has a crime reduction unit—plainclothes officers that work in support of parole. They get a list of all the warrants. And they know who the crooks are in their neighborhood. And they say, “I know where that guy is” and, boom, they go arrest him.

Q: You said you’re going to let the process go forward with Justice Reinvestment and see what happens. What would be a warning sign that would tell you that they’re just going to open the prisons and let a bunch of people out that they shouldn’t let out and overload your program?

Alm: If recommendations are made that would release people that are violent or dangerous you’re going to hear screams from probably Keith Kaneshiro first—because all the prosecutors are part of this. (But) I would be shocked at that. I really would be.

Texas was one of the first states to really buy into this Justice Reinvestment concept and they were faced with the prospect, I think, of building 17 new prisons or coming up with a new way to try to be both smart and tough. And it was a Republican in the (State) House or Senate and a Democrat on the other side—the head of the Public Safety Committee that got together.

And so that’s one of the real early pioneers in doing this whole (Justice Reinvestment) concept. Let’s look at exactly who we’re sending and is there a way -- keep sending the violent, dangerous person—people wouldn’t get reelected in Texas if they started letting out the bad guys. But maybe the drug users who are non-violent—that’s I think what they looked at in Texas.

But I can tell you, people will be screaming if recommendations are made this fall to let out people who are violent or dangerous. And I’ll be opposed to that.

Q: The Hawaii Paroling Authority’s structure on sentencing—where they establish the minimums, unlike the other 49 states: Does that take fingerprints off of sentencing so a judge can say, “Well I sentenced him to 20 years. I didn’t know he was going to get out two years from now.”

Alm: No. Because I think judges will probably think he’s probably likely to do a bunch of this time. And that’s what gets the publicity when the judge gives the sentence.

Q: That’s what I’m talking about. The judge gives a long sentence and then quietly the HPA gives a short minimum.

Alm: Once in a while I’ll give consecutive sentences. To keep them in as long as possible. Because some people if they are violent and dangerous and keep victimizing people, we’ve got to remove them from society for often decades.

Q: That's what the dispute over consecutive versus concurrent (sentencing) was earlier this year?

Alm: Whether it was clear in the statutes or whatever, judges are very--when we give consecutive sentences--and it doesn't happen that often--and I've probably given more than anyone, we know we're doing it. It's really public safety, that's the whole idea. If people are violent or dangerous, they need to get removed from society.

I once sent a 19-year old, who would lead police on multiple high speed car chases, I gave him 25 years. I ran a ten, a ten, and a five consecutive because he put everybody on this island at risk repeatedly, having fun. That kind of person you just have to remove. And age is one of the biggest things that will cause recidivism to get reduced. When people get older, they don't commit as many crimes.

Q: Going back to the workforce side of the equation: Are there other big efficiency improvements you see that could be implemented that haven't been?

Alm: I'm trying to brainstorm on this and I will be fascinated to see what the Justice Reinvestment folks come up with. Since more people go to prison from probation or parole, the more effective we can make those systems (the better).

That's true across the country. More people go to prison--there are 4.3 million people on probation across the country and about 800,000 on parole. That's the biggest driver of our prison systems. So that's why all these other states are interested in HOPE because we've all got the same problem.

You may have looked at the latest copy of or Hawaii Business Magazine. We're trying to get all these folks on probation or parole to be employed. Because they probably owe court fees, they owe restitution. It keeps them busy, gets them tired. It was a great article. The cover says "Some of my best workers are ex-cons." A great story.

Q: I thought it was an article about a Legislator.

Alm: (Laughs) You know we sent a bunch of those guys to prison when I was a US Attorney.

Q: Yes. The Feds do that. The State doesn't do that.

Alm: I was very happy with that. We prosecuted (former UPW President) Gary Rodrigues.

Q: Yes. I drive by his log cabin (UPW HQ) every day in Hilo.

Alm: I was very proud of that prosecution. It was important.

Q: It was good to get him off of the Judicial Selection Commission also.

Alm: We had already indicted him, we were waiting for trial when the Presidential election came along and all the US Attorneys had to put in their resignations. I applied for a State judgeship. When I went to the Judicial Selection Commission to be interviewed, he was still on the Commission--even though I'd just indicted him.

He had the good grace not to show up. His name tag was there. Then the following week he resigned, saying this is untenable. It was amazing.


NYT Magazine: Prisoners of Parole

HR: Hope Probation Strains Hawaii Criminal Justice System

HR: HOPE Probation Works: Why Choosing Research and Facts Over Sensationalism and Anecdotes Make for Better Criminal Justice Policy

VIDEO: HOPE Probation Introduction


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