"Swift and Certain" Consequences in Probation and Parole

NIJ Conference 2009
The Honorable Steven S. Alm
Judge, First Circuit Court
Honolulu, Hawaii

I was getting motions to revoke probation, almost always recommending prison, because the probation officer was just unsuccessful in getting the offenders to change their behavior — to stop using drugs, to go to treatment — and I thought, "Now, what would work? What would work to change people's behavior?" And as I thought of it, I thought, "What does a parent do? And what do I do as a parent?" If my child did something wrong, I gave him a consequence right away, whether it was taking away privileges, whatever, but I talked to him about it, but I gave him the consequence right away.

And "swift and certain" is something you hear a lot of talk about, but it's almost never done in the criminal justice system, so that's what we started doing four and a half years ago. If an offender violates a condition of probation, we give them a swift and certain consequence. That means they're arrested immediately, they're held in custody, we have a hearing typically two business days later, and they get a short time of incarceration. That way they can tie together the behavior that's bad — whether it's testing positive for drugs, not going to see their probation officer — with a consequence and learn from it.

Because some of the folks we're dealing with, we're rehabilitating; others we're habilitating. I think they've never had a situation in their life where they actually had a consequence from a behavior and learned from it. Because we want them all to succeed on probation, just like we want our kids to succeed in life. But I think our current probation system, without meaning to, is akin to a parent ignoring what their kid does for repeated things, and then next year, kicking them out of the house.

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