By: Marcus Alan McGhee, M.P.A., 2014 Summer Intern, Health Law and Policy Clinic
Prison or Treatment? This is a question not posed to most citizens, but one becoming more prevalent to offenders as courts attempt to reduce the size of their dockets. Courts are now offering offenders the opportunity to participate in diversionary programs, which would help them avoid the trappings of the criminal justice system all together. But, with the advent of any new program there are going to be periods where courts attempt to implement different methodologies to determine which are the most effective.
As mental health courts emerge throughout the Commonwealth, some judges are debating whether adopting the strict punishment standards of the Hawaii Opportunity Probation with Enforcement (H.O.P.E.) model will actually reduce reoffending. In the context of a mental health court the question becomes: does the H.O.P.E. approach comport with the less adversarial and more treatment guided focus of mental health courts? The answer is no.
The Hawaii Opportunity Probation with Enforcement (H.O.P.E.) model, created by First Circuit Judge Steven Alm of Hawaii in 2004, is an experimental probation program that emphasizes the delivery of “swift and certain” punishment when a probationer violates conditions of probation. This model provides a definite, but proportional, jail term for each violation of probation. The main focus is on reducing drug use and missed appointments. Judge Alm asserts that this certain and exact punishment method fosters greater compliance with program participants because of its uniform and consistent application.
In the context of probation this program is a practical alternative to traditional probation. Traditional probation requires the offender to report to the probation office on varying days and times. Typically, this is with little regard to the offender’s access to transportation or funds to finance said transportation. As a result, an offender can obtain a violation for a relatively minor incident. Conversely, the H.O.P.E. model requires daily phone reporting where offenders are chosen randomly to appear at a predetermined time and location for drug testing.
The H.O.P.E. model would expand on the theory of traditional probation by allowing more offenders to participate in probationary programs while having fewer restrictions. This model, when coupled with existing probation programs, offers an additional option to those one-time, non-violent offenders who require less supervision. Instead of expending resources on excessive monitoring this program advocates for fewer restrictions unless, and until the offender violates probation (which is typically through a positive drug test).
Under traditional probation, minor infractions such as failing to call in at a specific time or arriving late to an appointment might be grounds for a violation. While the H.O.P.E. model does not expressly suggest such actions would give rise to a violation the contextual nature of the program suggests said restrictions would not be in place to begin with – thereby eliminating the possibility of that infraction. Consequently, this alternative program would expand the supervisory ability of the court, which is evident with Judge Alm’s court as he is able to monitor over 2,000 offenders at once.
However, in the context of a mental health court, the application of H.O.P.E. is not advisable. Traditionally, the court system operates as an in-and-out-system – you commit a crime, you are processed, charged, you either plead guilty or go to trial, and the case is done. Should you commit another crime, you are sent through the same process again. Mental health courts, however, were created to address the underlying causes of criminality, which in this case would be a mental illness, in an attempt to treat those issues and reduce recidivism.
The therapeutic approach assumed by a mental health court appear better equipped to offer treatment options that may uncover driving forces behind the repeated criminal offenses. Therefore, attempting to fuse a strict no-questions-asked kind of punishment system and a psychoanalytical model is oxymoronic. Although following poor behavior with negative reinforcements has proven effective, it is wholly inappropriate in a mental health setting where relapses need to be essentially built in to the program. This is especially true if you are dealing with a person who has been prescribed medication. What if the offender has a negative reaction to the medication? What if the dose is too low? What if it is too high? All of these questions must be factored into whether the offender had the ability to remain compliant, because only then is a court able to adequately determine whether the offender’s behavior is congruent with program objectives.
Moreover, the H.O.P.E. model is not focused on treatment. This program is more focused on conditioning the offender to behave in a certain manner or suffer the consequences. While treatment is an option to those who request it, it is not at the forefront of the programs purposes. Therefore, any efforts to combine the H.O.P.E. model of punishment with the therapeutic aims of a mental health court should be avoided; as such an action would be an affront to public policy.
Nevertheless, the H.O.P.E. model is not completely without a home; it can find refuge in traditional probation systems. However, this model should not be considered with specialty court models – especially mental health court programs. Adding the draconian punishment doctrine of the H.O.P.E. model to the more remedial goals of a mental health court extends H.O.P.E. beyond its original scope. Nonetheless, adding the H.O.P.E. model onto preexisting probation systems seems a natural progression in the fight toward prison overcrowding.
The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.
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