No. 7 in a Series: Accomplishing Drug Court Reform without Drug Courts

July 25, 2014

Over the SUMMER, I will be providing you with a series of short pieces I’ve written over the years that advance the theme that drug courts ( including reentry courts and other Problem-Solving Courts) at their best, are an expression of the community’s ability to control its member’s behavior.

Screen Shot 2014-07-21 at 10.38.02 AMMy interest in crime and punishment began early in my career. After graduating from Boston University Law School in 1971, I spent 16 months traveling around the world, visiting over 40 nations. My travels weren’t focused on criminal justice issues, but I found myself drawn to how different cultures dealt with social deviation. In 1988, before taking the bench as a judge, I spent four months in the South Pacific; this time visiting courtrooms, judges, jails and prisons, focusing on how Polynesian and Maori cultures dealt with criminal conduct.

In the 1990’s, one of my priorities as NADCP’s founding President, was to see that the nascent drug court field did not collapse into a more punitive and destructive system than that which had existed before. At the time I was painfully aware of the shortcoming of some of our drug courts. Jurisdictions created drug courts for small numbers of offenders, with minimal or nonexistent drug dependence, and an over-reliance on non-therapeutic custodial sanctions. It was a direction that I strongly opposed and NADCP made a major effort to counter (and did so successfully in 1997 with the publication of “Defining Drug Courts: Key Components”)

These issues were unfortunately magnified at the international level. While the drug court model was adopted successfully in westernized nations based on the english legal system (specifically Canada and Australia), the idea that they could be easily adopted in traditional, third world countries was a somewhat fanciful notion. International Drug Courts provided a level of prestige for the U.S. model (especially before the Congress and state legislatures), but didn’t catch on in a significant way in non-westernized nations. Societies that didn’t have treatment programs, trained clinicians, drug-testing, or probation systems, let alone decent housing or clean water, would have a hard time replicating an American drug court model.

Though I traveled widely in the 1990′s on behalf of NADCP and Drug Courts across the globe, it was with some skepticism about expanding drug courts internationally and an emphasis on what other cultures could devise that would accomplish the goals of drug courts, without actually adopting the model itself.

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This observation is to be part of a book to be published on the History of NADCP and the Drug Court Movement. 

CLICK TO SEE ALL SHORT  PIECES  IN THIS SERIES {AS WELL AS EXCERPTED BOOK CHAPTERS} 

Using Reentry-Drug Court as a counterweight to long Prison Terms

THE BEST OF: The following article, published on Feb. 13,2012, uses a Watertown sentencing as an example of how drug court can be used to keep the prison population down, or increase it.

April 28, 2014

Screen shot 2012-11-19 at 9.19.12 AMSomething caught my eye as I was reading newsclips from around the nation. A small item from the Watertown Daily Times (NY). It read:

A Watertown man was sentenced to state prison Thursday after admitting in Jefferson County Court that he violated his Drug Court contract. Paul L. Arndt Jr., 44, was sentenced to 113 to 4 years in prison for violating terms of the substance abuse rehabilitation program that is designed to serve as an alternative to incarceration. He was referred to the program in April 2009 after admitting he violated probation. He was sentenced to five years’ probation in August 2007 after pleading guilty in May 2007 to fourth-degree criminal possession of stolen property for taking radiators that had been stolen from a Watertown business and selling them at a Syracuse recycling center. Information about how he violated Drug Court was not available.

Putting aside the issue of whether the probation violation in question was a particularly serious or dangerous one, I would suggest that sending a drug court participant to prison for a substantial term is almost never good criminal justice policy, good use of government funds, or good rehabilitation &/or treatment strategies . There are more than a few drug courts, that quickly fail drug court participants and spirit them away for substantial prison terms. It may be time to revisit the rationality behind such scenarios. Unless the new offense is one involving violence or the threat of violence, is prison ever a sensible response to a drug court violation?

I have suggested in a recent article (see:”Front-loading court interventions”)  that “judges may use their jurisdiction to sentence the felon to prison as part of a court-ordered treatment program, with the understanding that the offender is to undergo treatment before being returned to court for re-sentencing”. The idea is an old one, first described in a monograph written in 1999 by myself and present NADCP CEO West Huddleston (see “Reentry Drug Courts”);  Front-loaded prison reentry programs (involving short custodial terms and a return to court supervision and treatment), are a last resort after the offender has committed serious and multiple violations of a drug court’s requirements.

Numerous states have developed drug court as an alternative sentence of last resort before substantial prison terms are ordered. Governors  such as Christy of New Jersey and Deal of Georgia are calling for special drug courts to give the offender a last chance to succeed. Reentry-Drug Courts, (or simply Reentry courts) need to be put in place for the high-risk offender, where a short prison or other custodial sentence is a last resort (typically one to six months), before a long prison term is ordered.

Remember, the best way to reduce prison recidivism is not to put an offender into prison in the first place. But if there is no viable alternative to prison, use it in a rational and graduated manner, with a brief stay that holds out the promise of rehabilitation and an early return to the community.

 

Reentry Court Myths and Realities

IMG_0999April 14, 2014

Sometimes you need to break away from writing drug court history and blow some Island Jazz. This article was written in 2011 and has received its share of compliments. In case you missed it the first time, here it is again, MYTHS AND REALITIES OF REENTRY COURTS

MYTH #1: There’s not much interest nationally in federal funding for Reentry Courts

Local jurisdictions often have neither the jurisdiction nor the resources to deal with parolees, a traditional state responsibility. However a growing number of states are actively developing state wide, locally run, reentry court systems, as they realize the value of these community-based courts. (IN, OH, MO, TX, and CA have taken the lead in developing state-wide systems). The DOJ can provide resources, information and educational opportunities to assist interested states.

MYTH #2: Reentry Court is just like Drug Court with a different population.

Reentry Court turns out to be a very different animal than Drug Court. Its population is made up of high-risk offenders, who have been institutionalized for substantial periods of time. The most significant realization I’ve made as San Francisco’s Reentry Court Judge, is that parolees require far more services, incentives, and flexibility than traditional Drug Courts; that creating a community among court staff and participants is critical to parolees who have lost most sense of belonging. (over the initial 12 weekly sessions, participants failed to appear for court 1% of time)

MYTH #3: Reentry Courts detect violations, responding with sanctions and return to prison

The purpose of the Reentry Court is to keep the offender from reoffending and returning to prison. We are only peripherally engaged in the creation of model citizens. A heavy-handed approach to technical violations and minor offenses (including drug abuse) does not work well with this population. Encouragement from the bench, incentives, and the creation of court-based communities provide a far more effective approach. This still requires the active engagement of the parolee in community-based activities (job training, education, volunteer service, substance abuse and cognitive behavioral treatments) from the day they enter the reentry court. Professor Ed Latessa of the University of Cincinatti, (Dean of reentry research), warns that parolees need to be engaged in structured activity for 40 to 70% of their day, and that those programs that address 4 or more of the criminogenic needs of the offender do twice as well as those that don’t.

MYTH #4: Reentry Court success means substantially reducing drug abuse among parolees.

If we successfully deal with a criminal’s substance abuse problem, we may end up with a clean and sober criminal. Research suggests that less than 50% of parolees have a substantial drug abuse problem, so dealing with substance abuse as the main focus of Reentry Court may be  a mistake. According to the research, drug abuse is not in the first tier of criminogenic needs for the high-risk offender. Dealing with Criminal Attitudes, Criminal Personality, Criminal Friends and Associates, and Family and Parenting issues are generally considered the most important treatment needs. Unfortunately, the use of Cognitive Behavioral Therapies, that have proved to be most successful in treating these issues, is lacking across much of the nation.

Pew Poll: Overwhelming Support for Decriminalizing Use

Screen Shot 2014-04-06 at 2.52.36 PMApril 6, 2014

A national survey by the Pew Research Center finds that 67% of Americans say that the government should focus more on providing treatment for those who use illegal drugs such as heroin and cocaine. Just 26% think the government’s focus should be on prosecuting users of such hard drugs.

[For a PDF of the report, please click on image on the left]

The survey by the Pew Research Center, conducted Feb. 14-23 among 1,821 adults noted,” As a growing number of states ease penalties for drug possession, the public expresses increasingly positive views of the move away from mandatory sentences for non-violent drug crimes. By nearly two-to-one (63% to 32%), more say it is a good thing than a bad thing that some states have moved away from mandatory sentences for non-violent drug offenders. In 2001, Americans were evenly divided over the move by some states to abandon mandatory drug terms.”

 

 

Obamacare may be path to drug treatment as prison alternative

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The Justice Department estimates suggest that with the expansion of Medicaid, millions of ex-offenders could get the health care they need. They claim is predicated on the exoffender accessing the medical services now available to them.

A Newsweek Cover Article states that  ”President Ronald Reagan defunded federal mental health programs, dropping total mental health spending by over 30 percent. As a result, many of the nation’s mentally ill lost what was essentially their home and place of work, and many ended up on the street.Today, a good portion of those make their beds in prisons and jails. The last major study on mental health in prisons, conducted by the Bureau of Justice Statistics, found that 64 percent of inmates in state and federal prisons met the criteria for mental illness at the time of their booking or during the twelve months leading up to their arrest. For comparison, the rate of mental disorders among U.S. citizens stands at around 25 percent, according to the NIH. Sixty-nine percent of the country’s prison population was addicted to drugs or alcohol prior to incarceration.”

Grim statistics, but the article argues that the Obamacare expansion of Medicaid will reach those with mental health and drug abuse for the first time as an alternative to incarceration.

“Essentially, Medicaid left out poor, single, male adults without dependant children. – the same demographic most likely to end up arrested and incarcerated. Starting in January 2014, however, the categories have been eliminated (at least in the states that have chosen to take the medicaid expansion – it is an optional aspect of the ACA). “That means that a lot of people who are going to jail for mental illness or substance abuse related crimes could potentially avoid jail,” says Marsha Regenstein, a professor of health policy at George Washington University.

 

 

Prison Numbers Drop while Crime Rates Drop!.

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Recent statistics from across the nation suggest that criminal justice reform has become a win-win proposition. The Pew Trust, a highly respected authority, has examined data from all fifty states and concluded that morel than half of the states have reductions in both rates of imprisonnmet and crime over the past five years.

Breaking the data down further , PEW  shows even more impressive results:

  • The crime rate went down in all but four of the 31 states that reduced their imprisonment rates. It went up in one of the 15 states that increased their imprisonment rates.
  • The 10 states with the largest decreases in imprisonment rates had a 12 percent average reduction in their crime rates, and, in the 10 states with the largest imprisonment rate increases, crime rates fell an average of 10 percent (see table below).
  • Crime was down in states that continued with (and paid for) rapid prison growth, as well as those that did not. For example, crime rates in both Arizona and Maryland fell 21 percent from 2007 to 2012. Over the same period, Arizona’s imprisonment rate grew 4 percent while Maryland’s declined 11 percent.

PEW claims that the results reflect several factors; bipartisan support for reduced imprisonment and accompanying reduced prison budgets; strong public support for elimination of imprisonment for non-violent offenders; and evidence based alternatives to prison that have had significant success.

The success of reducing imprisonment and reliance on evidence based alternative to imprisonment are srong indicators that we’re moving in the right direction, and need to increase our embrace of criminal justice reform.

[The PEW article that this story is based on can be found by clicking on the Table above]

 

DOJ: small drop in fed. prison pop.

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According to the Department of Justice Prisons Director Charles Samuels, there has been an “unprecedented” fall in prison numbers. He made the statement to a meeting of the US Sentencing Commission in Washington this week to consider across-the-board cuts to penalty guidelines for drug crime.

The Guardian reported this week “ The commission projects that downgrading the lengths of sentences in this way will eventually allow the Bureau of Prisons – the largest corrections department in the country – to reduce its population by 6,550 inmates at the end of five years.

“Though the numbers are small relative to the federal prison population of 216,000, and the 1.3m in state prisons, they suggest that shifts in prosecutions policy are already bringing an end to the long-running boom in prison numbers, particularly for more serious crimes tried in federal courts. There are more than 2 million Americans behind bars when county jails are included. While the total prison population has been declining for three years, the federal prison population had continued to grow.”

Federal prison populations going down is obviously good news. But it would be a mistake to view a onepercent drop in federal prison numbers as a substantial movement toward reform  when the number of federal prisoners has increased astronomically over the past thirty years.

According to a new report by the Congressional Research Service (CRS), the federal prison population has jumped from 25,000 to 219,000 inmates, an increase of nearly 790 percent over that thirty year period.

That is not to denigrate this adminstration efforts towards reform, but it points to the difficult path required to have a major impact on the number of federal prisoners..