As the saga of Judge Brett Kavanaugh’s Supreme Court nomination wears on, I’m thinking more and more about Hawaii. Partly because Sen. Mazie Hirono, D-Hawaii, has been one of Kavanaugh’s chief antagonists. But also because of what I learned there about crime and punishment.
Six years ago, I went to Hawaii to study an emerging crime-fighting strategy known as “swift, certain and fair.” It partly originated in an innovative probation program called Hawaii’s Opportunity Probation with Enforcement.
The probation program offered an interesting revision of the “tough on crime” school of U.S. politics, which had spent decades ratcheting up prison terms and weakening protections for defendants. Judge Steven Alm, the program’s founder, recognized that this strategy wasn’t merely cruel and costly but also didn’t work.
Incarceration in the United States was rising, but the likelihood of getting caught for any given crime remained quite low, resulting in what policy analyst Mark Kleiman has dubbed “randomized draconianism.” Usually when someone committed a crime, nothing happened, and then one day - surprise! - the exact same behavior resulted in a hefty prison term.
As any parent can tell you, harsh punishments unevenly applied don’t effectively curb misbehavior; they seem less a consequence of personal choices than the fickle hand of fate. That’s unlikely to inspire a change of heart. And the harsher that punishment is, the more you resent the authority imposing it. So excessively harsh punishment is less effective at deterring or rehabilitating offenders than it is at perpetuating the poverty and community breakdown in which crime flourishes.
Hawaii’s Opportunity Probation with Enforcement program turned this strategy on its head. Clear rules were laid down, surveillance was increased, and every single violation of terms of probation was punished. But punishment was light, often as little as a couple of nights in jail. By connecting punishment directly to crime, the justice system could be both more humane and more effective at reducing recidivism; these probationers were half as likely as traditional ones to have their probation revoked.
Why would this remind me of Kavanaugh? He’s not facing jail time, making the right’s cries of “beyond a reasonable doubt” rather a non sequitur. But the left’s retort - “This is a job interview, not a trial” - also seems inapt. Kavanaugh is on trial in the court of public opinion, and something like half the country has already convicted.
Kavanaugh is unlikely ever to resume anything resembling his former life. He has withdrawn from teaching at Harvard Law School, endured death threats and undergone a humiliating public inquiry into his high school years. And if Democrats regain control of Congress in November, there may be more and worse to come; progressive activists are calling for his impeachment.
That’s clearly a form of punishment, however informal or extrajudicial. But the punishment seems far from swift, certain or fair, based on decades-old accusations without contemporaneous corroboration, aired solely due to political contingencies, urged on by a left avid to convict him of something.
Which may explain Kavanaugh’s rage during last Thursday’s Senate Judiciary Committee hearing - and why furious conservatives rallied around him rather than tossing him to the wolves and substituting another nominee. The left may still be arguing about the standards for putting someone on the Supreme Court, but the right is now conducting a public referendum on the rules for agreeing to wreck a man’s life over accusations that cannot be corroboratedor conclusively disproven.
About a year after #MeToo began, we still haven’t defined those rules in a rigorous, broadly defensible way. The movement’s proponents tend to seek the social and economic equivalent of extremely harsh sentences, upon the lowest standard of proof - “I believe women.”
It’s an intuitive solution for offenses that generally leave few witnesses and no hard evidence. Those chanting “beyond a reasonable doubt” should recognize that such a high burden of proof inevitably makes punishment too unlikely to effectively curb vile abuse.
Yet so might the vague-but-strict approach. Right now, what counts as a sexual offense rests heavily on subjective reactions and hard-to-ascertain facts, such as exactly how much alcohol an accuser might have consumed. And the allegations could come out immediately or years later, to be publicly adjudicated under shifting standards impossible to predict.
The venomous Kavanaugh fight illustrates one reason that’s unworkable. The harsher the penalty, the more proof people will demand before imposing it. But Hawaii offers another reason to be wary: The element of randomness makes for a weaker deterrent.
If he weren’t a conservative Supreme Court nominee, Kavanaugh would be facing none of this. Knowing that, do men think, “Better treat women well”? Or do they think, “Luckily, I’m not a fancy Republican lawyer”?
Perhaps, as feminists hope, we’ll end up making men hypervigilant about possible offenses. But another response seems at least as likely: If you can’t control your fate, why bother being good?
Megan McArdle is a columnist with The Washington Post.