Phil Bowen
At the Leading Justice Conference held in Wellington New Zealand, I was asked to make some predictions about the next decade for court innovation. As a student of history, I know that Clio has a cruel way with such future guess work but one can not go all the way to New Zealand and then wring your hands. So I delivered my 6 minutes, centring on the theme of Severity or Certainty:
“Today, I want to talk about the role courts can play in reducing crime, about how sentencing can work better in the next decade. In short, I suggest that the next decade of court innovation is going to be about severity or certainty. Are we going to experiment with more severity or experiment with certainty?
Why do I say the next decade is going to be about severity or certainty? The two countries I know best, the USA and the UK, have experimented with more severity for the past 30 years. In this period, the American prison population has exploded, tripling in size since 1980. The US now incarcerates around about 716 per 100,000, disproportionately punishing people from its least affluent communities and its citizens of colour. The UK has doubled its prison population over the same period, and now has the 2nd highest prison population per 100,000 in the G7. In the past three years, there has been some modest decline in the US and continuing growth in the UK despite falls in crime, but the two countries I call home still spend a much greater share of our GDP on incarceration than comparable countries.
The obvious question is has it worked? Analysis conducted in 2005 shows that the rise in the British prison population can at best account for about 5% points of the 30% reduction in crime we have seen in the past 30 years. The impact on crime of each additional pound or dollar spent on prison seems to be marginal to say the least.
And severity has produced a strange, dysfunctional justice system. It can, with things like three strikes rules and mandatory minimums, over-punish misbehaviour with no obvious benefits. I t also produces a system which uses chaotically short spells of jail to simply satisfy the desire to be seen as tough. And so, in many cases, short prison sentences, long enough to disrupt employment prospects, access to accommodation and other assets individuals may have but not long enough to keep our communities any safer; well, they make people worse. In short, severity has produced a justice system that acts like a bad parent. As criminologist James Wilson suggests, the justice system tells offenders, “If you don’t clean up your room right now, there is a 40% chance that a month from now, I will ground you for two years.”
But what’s the alternative to severity? I suggest it’s the fairness that comes from dealing with criminal behaviour swiftly and certainly. Take the swift and certain probation movement in the US. The most studied example of this movement is to be found in the Hawaii HOPE project. All probationers are given a full group orientation by the judge, told clear the rules they need to follow and are told clearly the exact consequences of non-compliance. Failure to text negative on randomised drug tests; failure to attend their probation appointments are met with a swift arrest and certain sanction, usually a short jail stint, escalating in length the more infractions. Of the people who go through HOPE, compared to a control group, they are 55% are less likely to be arrested and 72% less likely to be using drugs. We are seeing the growth of this movement to other States, like the WHISP project I had the privilege of seeing in Seattle.
Or take the example of the problem-solving court movement, a US phenomenon now spread across a number of Western jurisdictions. Problem-solving courts recognise that while many criminal court cases are not complicated in a legal sense, they often involve people with complex lives. Problem-solving courts use risk-need responsivity assessments and programmes; encourage pro-social attitudes; and use the courts’ authority to regularly monitor defendants’ progress by rewarding compliance and sanctioning misbehaviour, to ensure that a court case is seen as a window of opportunity to tackle the factors that lead to crime.
Evaluations of community courts in the US have shown they can achieve reductions in re-offending across populations, young, old, white, black and Hispanic. They do this while sending less people to jail and can even do that while increasing the confidence of the local community in the legitimacy of the justice system. Evaluations of drug courts have, for ten to fifteen years, shown that they can reduce drug misuse and recidivism rates. Even domestic violence courts have shown they can increase victim safety and perceptions of security and make some marginal impact on perpetrator re-arrest rates.
But the question is why? Why do these courts seem to work? This gets to the heart of severity versus certainty, of being punitive or of being fair. In drug court evaluations, we are beginning to see that where drug courts have a clear and certain schedule of rewards and sanctions, and effectively communicate these to their clients, they reduce crime and drug misuse more than those that don’t. In domestic violence courts, those that implement rigorous post-sentence monitoring with victim safety at its centre, they increase victims’ safety more than those that don’t.
In the same breath, certainty must be aligned with fairness. The courts’ certainty makes the decisions feel less arbitrary than severity does. Drug court participants that feel more fairly treated by the supervising judge have greater reductions in drug use and crime. Evidence from community courts show they increase compliance with court orders and rectify perceptions of the justice system’s inequality primarily due to the fairness which they perceive they encounter from the judge. This sense of certainty in an atmosphere of procedural fairness seems to make a real difference. Take this from a recent ethnography of the Red Hook Community Court, ‘I went to the Brooklyn Criminal Court before going to the Red Hook court...They should do a tour there...I wouldn’t wish that place on my enemy... Red Hook is 100 times better... (The judge) allows you to speak. I don’t get the feeling that he’s one of those judges who looks down on people. To me, he’s fair... I learned that there’s two different types of ways courts treat people. You have these obnoxious goons and then you have those that look at you like, ok you made a mistake.’
It appears, then, that there is a golden thread in these swift and certain innovations. That the process by which we treat people is more important than whether they win or lose- maybe people know that sometimes they will lose in the justice system, but they are more likely to accept it if the process is fair. That shows us why certainty may trump severity-- that if we deal with people fairly, if we explain the rules and do what we say we are going to do, with respect, neutrality, understanding and benevolence, then people will fell more fairly treated and succeed better.
So that’s why I say the next decade is about severity or certainty; about punishing unpredictably or punishing with certainty and transparency; about punishing harshly or punishing proportionately; about punishing slowly or punishing swiftly. As Professor Mark Kleiman, who evaluated the HOPE project suggests, ‘Make the rules less numerous, the monitoring tighter and the sanctions swift, certain and reasonably mild, the need for severity falls away.’ If we have the foresight and the will, I suggest that we can all make a bet on certainty over severity; on making the next decade about creating a swift, certain and fair justice system. The results of system of a justice system focused on severity urge us to; and, I would argue, the moral and political obligations to our fellow citizens demand it.”