Keep it short.

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What's Fair? Swift, Automatic Consequences

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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Sometimes, you have to be cruel to be kind.

That's the insight of an innovative criminal justice movement called Swift, Certain and Fair. The probation system had long had a problem: An astonishing number of people flunked out and ended up going to prison, because they simply failed to comply with the terms. They tested dirty on drug tests, or skipped appointments with probation officers, or otherwise violated the conditions of their sentence. Because they did not submit to supervision by the criminal justice system, they had to submit to the much worse horrors of prison.

In substantial part, this was because the justice system was practicing what researcher Mark Kleiman calls "randomized draconianism." You got on probation with the understanding that if you violated, you were liable to be sent to prison. But no one wants to send someone to prison for years simply because they missed an appointment or flunked a drug test. So probation officers and judges flinched. They issued warnings. They threatened. And then one day, after the violations had racked up to an absurd level, they pulled the trigger and took people into custody after one more trivial offense. They had no choice, of course; the alternative was to make probation a sort of optional program that you could do if you felt like it, but otherwise run along and try not to get into trouble.

The judges and the probation officers were trying to be kind when they offered second, and third, and eighth chances. But from the point of view of the criminal, it made the system arbitrary. Usually, when you offended, nothing happened. And then sometimes, suddenly, you ended up with a long prison term. There was at best a very tenuous connection between behavior and outcome.

This has two effects. First, it makes the system feel unfair -- after all, you did the same thing five times before and nothing happened, so why did the sixth land you in prison? This judge must not like you. Or maybe your probation officer is having a bad day. The arbitrary exercise of power, no matter how kindly meant, does not make people respect the system.

But this also robs people of "self-efficacy": the feeling that you can reliably make things happen through your own agency. Nothing you do seems to make much difference in this system; the only thing that matters are the whims of powers above.

Needless to say, a system that alienates the people in it while sending a lot of them to a very bad place is not a good system. So a judge in Hawaii tried an innovative approach: he punished people every time for violating, no matter what the excuse. If you missed your drug test, you'd better be able to provide a copy of your hospital records, because otherwise you were going to jail.

Notice that I said "jail," not "prison." Because he wasn't permanently revoking their probation; he was sending them to jail for a few days. Dramatically reducing the punishment allowed it to be consistently applied. Probationers knew what would happen if they violated; there was no guessing whether they might get away with it. And like magic, this court cut the number of times it had to impose those long prison sentences. People got the message after short stints in jail, and complied with the terms.

This approach has been tried with drunk drivers, as well, and is now being explored for people on parole (probation is what you get instead of prison time; parole is what you get after prison time).  A few days ago Lowry Heussler asked if we shouldn't think about expanding Swift-Certain-Fair outside of the criminal justice system, to other contexts where this sort of dynamic operates. Specifically, evictions from public housing.

Heussler describes an eviction process that looks a lot like the old probation system. You miss your rent. The agency sends written notices of the arrears. You miss it again. There's a meeting with someone, followed by more reminders. A notice to vacate, followed by a grievance procedure. At all these steps, the tenant is offered the opportunity to cure the debt on a payment plan. Only after these steps is a case filed in court. But even then, judges frequently balk at evicting someone. These are, after all, needy families with few resources to negotiate a housing crisis. Then one day, the judge finally gives up, because the tenant is not complying, and they're evicted. And said tenant is shocked to find themselves out on the street.

If you've ever seen an eviction, you know the awfulness of it: broken belongings out on the street, a stunned family trying to figure out where to go. Why not try to avoid this, Heussler asks, by making the process less all-or-nothing? Follow the jail approach: Lock people out for a few hours, or a day, every single time they miss their rent, instead of waiting until you have to do something catastrophic.

There's a poignant moment in the essay when Heussler describes a tenant explaining why they didn't pay their rent (which is calculated as a percentage of income). "I realized the system was completely nuts when one honest tenant told me why she didn’t have the rent. 'If you don’t pay the cable bill they cut you off,' she said.  I tried. I told her that cable TV wouldn’t be much good without a roof over her head. She looked at me with pity, quite sure eviction was not on the horizon."

The private market has figured out how to solve this problem: If you don't pay the bill, the service goes away. There is no uncertainty that might tempt people to stop paying their bills. But government benefits are girded round with thick layers of procedural protections that make it hard to predict the outcome of any particular action.

Of course, the stakes are so much higher. There's a big difference between sleeping on the street and missing the latest "Game of Thrones." In order to protect people from catastrophic risks, we've raised the bar higher for depriving people of electricity, or their homes. But in doing so, we have actually made it more attractive to run the risk. The way to fix it is to make the risks clearer and more immediate -- and less catastrophic.

This probably doesn't stop at public housing, either. These kinds of procedural protections surround all sorts of government programs, and undoubtedly often have the same undesired result: encouraging people to make decisions that are defensible in the short term and disastrous in the long term. Now that we've seen the success of Swift-Certain-Fair in one context, we should be looking for other places where we need to be a little more cruel, to be a lot more kind.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Megan McArdle at

To contact the editor responsible for this story:
Philip Gray at