“We can and should do better. But “doing better” doesn’t mean simply focusing on social services and systemic reforms and ignoring the need for punishment. It means using punishment intelligently, which means using it as sparingly as possible but also as much as necessary.”
Punishment in Hawaii
Punishment in Hawaii is heading the wrong direction, is an opinion I’ve long maintained. So when I woke up today to an article talking in-depth about punishments that largely mirror my own views I was excited. Everyone I know in the system who takes time to talk to criminal defendants comes to one conclusion early on: To a person in prison, there’s not much difference between ten years and twenty years. It is all an unforeseeable time for them. Quite frankly many of them are surprised to live as long as they have. When you grow up surrounded by gang members, prison is simply a stop on the road to expected early death.
So why do we insist on keeping our children in prisons until they become our fathers? Grandfathers?
No one is denying crime exists. Or that real crime deserves real corrective punishment. No one disagrees that when other people on our island hurt or steal or trespass against us they need to be taught, or re-taught, that such a thing is not allowed. Whether by fine, by community service, through classes and counseling, or through incarceration, talking softly only works when someone is carrying a big stick. A few days in the judicial system and you realize talking loud never works.
`“Viewed from the perspective of deterrence, long prison terms are a bad bargain: The last 15 years of a 20-year prison sentence start five years from its beginning, a period distant enough to be beyond the planning horizon of the typical armed robber. And those long prison terms are no better viewed from the perspective of incapacitation—the purely mechanical effect of preventing crime by keeping the criminals locked up… Thanks to “three strikes” laws and absurdly long terms for drug dealing, the average prisoner is now in his (or, much more rarely, her) mid-30s while the average new crime is committed by someone in his early 20s. That’s a very costly mismatch.”
Inherent Worth in the Criminal
The first thing we have to agree upon is that there is some inherent worth to the society of these incarcerated people. Let’s be very clear, we’re keeping them alive for a reason. If there is no inherent value to society in our inmates, they need to be killed. Period. We’re investing our time and dollars because we want something back from them. Maybe work, maybe intelligence, maybe just love and support for their families. So there is something there. And if there is something there, our next question is, how can we maximize the utility of whatever we want from them. How do we do that for punishment in Hawaii?
Is it locking them up until forever and a day? Well, there are different thoughts, let’s look at a couple:
Prostitution and Punishment in Hawaii
Men: I’ve talked all of us blue in the face with what I see as the problems with the proposed prostitution amendments and how they will over-punish for prostitution. About how they take a crime, being a John, and want to increase the punishment ad nauseum. I’m slightly surprised no one has suggested thumbscrews yet for men so brash as to ask a woman, dressed for prostitution, how much she charges. Part of the question is what is the social utility of not only branding these men with the criminal seal, but also requiring them to miss 30 days of work, lose their job, lose their means of supporting their family, and have to explain to their children where they went.
Understand, this is not a deterrent unless they know about this. Know about this before they got drunk and stumbled back to a hotel and on the way back an attractive female dressed in sex approaches them and turns out to be an officer. And yes, that is quite a few cases, not the exception.
Women: Remember equal protection and women’s rights? Every time you raise the penalty for men, guess what, you raise the penalty for women. And there is one thing law cannot do, erase the 2000-year-old social stigma in Christian societies on the prostitute. These laws will have, at the top of every resume forever, a brand that says she carries a prostitution charge. And, when she gets out of jail, and the pimp is waiting, do we think he’s going to give her credit on 30 days of payments. She gets beaten to make up the money.
No one who asks to increase the penalty for prostitution has any compassion for prostitutes. Period.
New Marijuana Law and Easing Punishment in Hawaii
Let’s talk about the opposite issue. Currently, the debate in Hawaii is whether we decriminalize marijuana. The argument is that somehow people “getting away with” smoking marijuana is “getting one over” on society. But the question goes back to the basic utility of what should be allowed in America. Or more importantly, what should be allowed to stop your growth for the future. As if people who smoke marijuana, as minors, cannot grow up to be anything important.
Of course, they can. But should the failure to avoid arrest be enough to stop your admission to college, Harvard Law School, even the Presidency? Hawaii’s movie in the right direction. Stop ending lives prematurely by marking people with a criminal conviction for something so manini.
The secret about most crimes:
“The progressive tendency is to fixate on the plight of those punished rather than the plight of those victimized, though of course, these are often the same persons under different labels or at different moments.”
Ready for the secret? Almost all felony trials in Hawaii are over drugs. Very rarely do we see a case where the complainant is virgin white. People learn to be bullies by being bullied. People learn how to steal cars because someone who is successful in stealing cars shows them how to better their life. I became a lawyer because I watched a lawyer save my father's life.
The Right Direction: HOPE in Honolulu
At this point in the essay, I was thinking, Mark Kleiman would really like J. Alm’s HOPE program. And then I read the next paragraph:
“HOPE: The obvious (but hard-to-administer) common-sense alternative is to make the rules less numerous, the monitoring tighter, and the sanctions swift, certain, and reasonably mild, and to clearly tell each probationer and parolee exactly what the rules are and what exactly will happen, every time and right away, when a rule is broken. Mildness—or proportionality, if you like—is essential to making the threat credible, and severity turns out to be unnecessary. Experimental evidence from the HOPE program in Hawaii showed that two days in jail is as good a deterrent to drug use as six weeks, as long as the two days actually happen, and happen every time. We don’t know yet whether a day in jail, or a couple of hours in a holding cell, or a weekend of home confinement, or a week of a 9 p.m.-6 a.m. curfew, would do the trick, but we ought to learn.”
I wholly disagree with the idea that it is hard-to-administer less rules. In fact, the situation is much easier than having every violation require a long complicated penalty. But then we can’t argue with the facts and science. If we can get the same punishment from two days of jail that we can with six months of jail, keeping someone in jail for six months is not only inhumane, it minimizes social utility. With luck, HOPE will increase use across the island.
Let Me Close With a Story
Whenever we talk about proportionality and punishment in Hawaii I tell this story. Now, it’s a story about a loss, and I don’t normally tell those, but I’m honest as much as you can expect from a lawyer so I’m going, to be honest about this one:
It was a harassment case, short, one hour trial that resulted from a domestic violence situation between a couple with two kids. In the State of Hawaii, think of harassment like an “assault” where no one gets hurt. Just someone touches another person in a way they shouldn’t, pushes them out of the way, or pokes them annoyingly. Like that.
Well, the basic defense was, the guy just wanted to get into his car. The female wouldn’t move, he moved her out of the way. There was a question about how hard it was and whether it was warranted or not, but when the judge brought down the gavel he said “GUILTY”. Man, I hate that word when I’m the defense attorney. And I was angry, I didn’t think he was guilty!
But then the judge said something else, very quickly. “SENTENCE: $100.”
“WHAT!” the Prosecutor and I both yelled out. A conviction for a case like this comes with jail time. He harassed the mother of his kids. We’ve been trained to expect at a minimum a week.
The Prosecutor went in “Judge, we need jail. At minimum anger management and domestic violence!”
“Nah,” the Judge said, “He feels bad. It’s not going to happen again. It was just that one particular situation.”
And I thought to myself wow, I guess he is about one hundred dollars worth of guilty!