Vision 6: A Last Chance Before Prison

Oct. 27, 2014

Front End Reentry Courts, Pre-Entry Courts or Early Intervention Courts are a hybrid response to long prison sentences. They allow offenders to avoid long prison sentences by completing a short term in a prison rehabilitation program (and in some cases jail or community corrections programs), to return to their communities to be supervised by the same court that sentenced them.

It is often thought that the court’s have little recourse or jurisdiction to affect a prison sentence once that sentence has been announced. The truth is, that most state courts have significant jursdiction to alter, amend or modify a prison sentence. Depending on the state, jurisdiction to recall may exist for a period of one month to one year after sentencing.The most obvious purpose of a “front-loaded intervention”, is to order a convicted felon to state prison for an evaluation, assessment, or other purpose, immediately before or after sentence has been imposed

Jjurisdiction exists in many states to recall the felon, after sentencing, for re-consideration and potential re-sentencing. The intention to recall may be announced at the time of sentence, or the decision to recall may be discretionary with the judge within the statutory period. This form of pre-entry intervention is often used to encourage a serious attitude change on the part of a prospective long-tern prisoner.

While this power is found in most state courts, it is most often used by individual judges on a case by case basis. Some courts, in particular drug courts, will use front-loaded jurisdiction to create what can be called a “court-based reentry system” (often described as a Pre-entry Court). The judge 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 returned to court for re-sentencing. If the felon is found in compliance, the court will return the felon to a court-based probation program in the community.

The above are just some of the existing variations in the courts’ use of a brief and immediate prison term, to be followed by recall to the court for sentencing or reconsideration of a sentence previously imposed. They are considered here because they are generally thought of as a successful rehabilitation strategy, designed to get the offender’s attention, assess their suitability for probation, and give them one last chance to change their behavior before a substantial prison sentence is imposed. It should be seriously considered on the program level as an alternative to prison, and as a way to reach out to large numbers of offenders that otherwise would be on their way to long prison terms.





Vision 5: Longer Sentences = Diminishing Returns

It’s always been assumed that putting criminal offenders away for longer sentences would reduce their opportunities to commit crimes. What that seemingly obvious construct leaves out is that there is a point of diminishing returns. Where those sent to prison ultimately are a greater weight to a free society than those released into the community. Sending more offenders into custody for longer terms often results in a lack of resources for critical community needs such as public health and education. How much more safety do we realize by doubling an auto burglar’s prison term, and what services are being denied the community by doing so.

There is an annolgy to be made to the current panic over the “Ebola Crisis” in the U.S. Three persons have been infected and one has died in a nation of over 300 million. And there are cries to close down schools, work places, and other community gathering sites. Never mind that over fifty thousand americans were killed over the last three years because of the Flu (a more highly contagious illness, airborne, as opposed to Ebola which is contracted only by direct contact with bodily fluids). We panic as a nation and a people and resist logic in favor of an emotional response. I am not a sociologist, but it seems to me that that a new threat no matter how remote, makes us feel that we’re not in control and ultimately not safe in an environment that we have spared no expense to be as safe as humanly possible. (There has been no real, massive threat of illness and death to Americans since the Spanish Influenza Pandemic at the end of World War I).

When I had first begun my Oakland Drug Court in 1990, I had occasion to connect with a number of other professions to get out the word on the Drug Court Initiative. I was at one of the Nationwide Probation Conferences given in the early 1990’s as a speaker. I decided to attend a Legislators’ forum, where experience state legislators talked to their new breathen about how best to deal with  the issue of Crime. The first thing they told the new legislators was to drop a bill in the hopper to increase the term of incarceration for driving under the influence. Secondly they were advises to get on the bandwagon to increase terms of incarceration, to make them invulnerable to attacks from the right that they were soft on crime.

For the offender, longer is certainly not better: As the years go by, inmates often become more distant from their families and communities, less employable, and more deeply ingrained in prison culture, all factors that hamper a successful reentry into the community. And how can it be realistically argued that increasing the length of felony sentences is a rational decision rather than an emotional one (In support of that assertion, research by the Urban Institute found that increases in expected time served contributed to half of the prison growth between 1998 and 2010).

I would argue that the public’s hunger for safety (in California, 1000 sentencing bills were passed by the legislature over the past three decades), is a serious problem that we need to come to grips with. How long is enough? Why do we have an almost impenetrable web of sentencing laws in most states. State sentencing grids are a constantly changing labyrinth of overlapping, entangling, and bewildering law that are mostly understood by the few. These are unacceptable circumstances that need to be addressed by governors  and their legislatures, through  Sentencing Commissions and other mechanisms, that can rationally and reasonably review, clarify and simplify our maze of sentencing laws. Hopefully when rationality has returned to criminal justice sentencing practices, we will see appropriate terms of incarceration imposes across the nation.. 





Vision 4: Veteran’s Court; a Harbinger of Things to Come

Oct. 6, 2014

I was a new Judge in 1990, assigned to the existing Drug Court, a Reagan Era monstrosity that was designed to get drug offenders from Arraignment to prison as quickly as possible. I was overwhelmed by the level of need for treatment and supervision by drug dependent offenders in the city of Oakland, and decided that we would make treatment the major focus of a new drug court model.

We opened the floodgates and placed 1156 participants in the program over the first full year of the Oakland F.I.R.S.T Drug Court, (with spectacular results, Evaluations of Oakland”s F.I.R.S.T Drug Court: 1991-1993).  Unfortunately the treatment, as limited as it was, was only available to a limited contingent of drug offenders and not at all to those without a drug offense charged or a drug abuse problem. The issue of who is denied treatment because they don’t fit into a predetermined treatment program bothered me then and bothers me today. I am convinced  that Drug Courts and other Community-Based Courts (also called Problem-Solving Courts) are but an intermediate step in the development of a new kind of comprehensive sentencing system that will be the accepted mainstream alternatives model in the future

All serious offenders (whether felons or misdemeanants) need to be engaged in a sophisticated sentencing system that will tailor the offender’s sentence to their need for rehabilitation (i.e. drug and/or mental health treatment, education, job training, etc.) as well as their risk to the community. Rather than categorize the individual, the courts, relevant agencies, and community need to be part of a community-based sentencing process that deals with the individual rather than a predetermined subset of offenders (who may receive intensive treatment in a Drug, Mental Health, Driving Under The Influence, Domestic Violence, or other Problem Solving Court). 

We’ve had the opportunity to test this thesis in the Veteran’s Courts (and to a lesser extent Reentry Courts) that have proliferated across the nation over the past several years. Veteran’s Courts treat veterans charged with criminal offenses, period. They do not reject serious or violent offenders. Offenders are not categorized or rejected for failure to be a drug offender or mentally deficient. They welcome all offenders who are in need of special support, monitoring or rehabilitation. They are assisted by volunteers from the community at large and the Veteran’s Community in particular. They are not  pigeon-holed.They are simply recognized as individuals with problems that need attention.

Of course, we are willing to assist the veteran who has committed a criminal act very differently than we do the common criminal. But the way we approach the veteran’s offense is the key to successful alternatives to incarceration in the future. When we stop putting individuals in boxes, consider them as we do veteran’s, worthy of redemption, and treat them as human beings with critical needs, and ultimately as part of our communities, we will be on our way to a critical systemic change in how we deal with our criminal population.



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





Vision 3: A ceremony to Honor the Healed

Sept. 22, 2014


Colonial America, made up of many small, insular and stable communities, relied heavily on community-based or “alternative’ sanctions to enforce a strict social, economic, and religious code of behavior. While it’s true that some of those sanctions may now be considered unacceptable (i.e., corporal punishment), other forms of alternative sanctions are very much a part of the modern criminal justice system. The use of warnings, servitude, and restoring the victim, may be known by different names today (admonitions, restitution, community service), but share similar functions.

The Church and the Court were at the center of community social control. A trial “was an occasion for repentance and reintegration; a ritual for reclaiming lost sheep and restoring them to the flock”…It was a public, open affirmation of the rules and their enforcement; a kind of divine social theater.”(Lawrence Friedman, Crime and Punishment in American History, p.25 (1992).

The parallels to the Drug Court and other Problem Solving Courts could not be clearer. Living in a time when society has substantially broken down, where people lead isolated lives and where societal pressure may be minimal, the drug court provides a group structure for the drug user, providing support, rehabilitation, resources, and “community” where none had existed before.

Within that “community”, “alternative” or community-based sanctions have a new found importance. Sitting in the jury box for a day is the equivalent of wearing a dunce cap.  The admonition from the judge in front of the drug court community is a shaming that all understand. Most importantly,the rehabilitated drug-user is welcomed back into society at a very public graduation ceremony presided over by the judge and other community leaders (see above)





VISION 2: Rejecting the Conventional Prison

Sept. 15, 2014



America’s willingness to explore new alternatives to prison makes perfect sense, when you recognize that there is nothing especially “traditional” or sacrosanct about the use of imprisonment. Prison as an institution is only a little over two hundred years old. Imprisonment,, while the conventional response to criminal behavior today, was a rare and radical departure from the “Community-Based Sanctions” in place some 200 years ago.

As one commentator put it, “It is ironic and yet oddly appropriate that although eighteenth century America turned to imprisonment because alternative punishments had lost their ability to shame, late twentieth century America is turning to alternative punishments because imprisonment has lost its ability to deter and rehabilitate.” (Dan Kahan What do Alternative Punishments Mean; 63 U.Chi.L.Rev.591, p.631)

Even the prestigious Conference of Chief Justices, (made up of all fifiy State Supreme Court Justices) have passed unanimous resolutions in 2000, 2004, and 2008 acknowledging as much, “drug court and problem-solving court principles and methods have demonstrated great success in addressing certain complex social problems, such as recidivism, that are not effectively addressed by the traditional legal process”.

Living in a time when society has substantially broken down, where people lead isolated lives and where societal pressure may be minimal, community based courts have the potential to provide a structure for the rehabilitation of the offender, providing guidance, support, resources, and control where none had existed before.

In other words, the overuse of  “imprisonment” is a choice that we have made, but can unmake, returning to our historical and traditional community-based responses to criminality.







Vision 1: Integrating Traditional Community Justice Into Penal Systems

September 8, 2014

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An article in the Huffington Post proposes a novel alternative to the existing prisons system, prisons that are run by non-profit organizations (Huffington Post, “Nonprofit Floats Unusual Alternative To Private Prison”). The author, Saki Knafo, describes how “Citizens United for the Rehabilitation of Errants, or CURE, a prison reform group comprised mainly of former inmates, wants to convert a private jail in D.C. into what they say would be the first nonprofit lockup in the country, if not the world.”

The idea is not so farfetched. Making offenders accountable and responsible for each others conduct and behavior is very close to what is done in traditional societies that control misbehavior with community based responses. There are courts across the country that are experimenting with offender communities making criminal justice decisions. In San Francisco, I was part of a nascent, but very successful Reentry Court (responsible for reintegrating high risk prisoners back into society). Our Reentry Court Team was able to enlist “honor role” participants’, as well as their ideas and recommendations, in setting up court procedures and developing appropriate responses to minor program violations (unfortunately the pilot program was discontinued due to fiscal constraints; New York Times, Oct. 8, 2011)

While many consider prisoner decision making the provence of prison gangs, I would suggest that if structured right, a Prison administered by a Non-Profit Corporation could play an important part in building traditional community responsibility and accountability into both our prisons and prisoner rehabilitation. (San Francisco Reentry Court: 87% Fewer Return  To Prison)

No. 12: Why a Drug Court is not called a Community Court

August 25, 2014


Early on, I came to see the drug court as just a part of the solution to misbehavior and criminal conduct. I saw community generated and sustained programs as being at the heart of real criminal justice reform, and drug court being the first true “Community Court”. By the time I got to Washington to set up NADCP in 1996, a small offshoot of drug court, called “Community Court” had been established in the heart of Manhattan, as part of a campaign to clean up the Times Square area. Organized by a New York State sponsored reform organization, the Center for Court Innovation, and with the support of financial institutions in the Times Square area, it had adopted the community court label for a court dealing with minor infractions and misdemeanors, that were committed mostly by derelicts and homeless people (whose very presence discouraged family tourism, a major goal of the programs backers). The program worked and remains a thriving and effective neighborhood based variation on drug court with fifty “Community Courts” or more across the nation.

Knowing the importance of names and the meaning we give them, I belatedly attempted to establish the broader community roots of drug courts by dedicating the 2nd Annual NADCP Conference in 1997 to an all inclusive concept of “Community Courts’, that included drug courts and other community based programs being developed across the nation. I wrote and distributed  a concept paper entitled “Introducing The Community Court Institute”, (an early precursor of the hugely successful “National Drug Court Institute”) that was distributed at the national conference.  I argued in a letter to Shay Bilchik, on September 26, 1996, (the Administrator of the Office of Juvenile Justice and Delinquency Programs) who was leading the Justice Departments project to define “Community Court”, that they should be described as a “Neighborhood Court” since they “are designed to reflect neighborhood concerns”

Unfortunately, the community court definition as  a neighborhood court dealing with minor offenses was too well established to be dislodged. The result; many drug courts and their progeny never saw their programs as community based, relying on community participation, or being responsible to their communities;  a problem that continues in many drug courts and similar programs to this day. In time I settled for the designation of Community-Based Court as being a substitute  for the all inclusive Community Court label. But I have always regretted the  lost opportunity to stamp Drug Court and its progeny as “community courts”



No.11: A Drug Court Judge; the First Among Equals

August 18, 2014

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About  twenty years ago, I described the role of the Drug Court Judge in the first Drug Court manual to be published (J. Tauber, Drug Courts: A Judicial Manual, CJER; 1994). I wrote, “A drug Court provides direction and focus through the leadership of a single judge”.  A statement writ large, and in retrospect, an overstatement of the importance of the drug court judge. For while the drug court judge is an important reason for the success of the drug court, he or she acts more as an enabler than director.  The major actor is “community” itself.

In effect, the drug court judge creates an environment in which successful drug court “communities” can thrive; where a “drug court team” comes together to institutionalize community-based structures for long-term success, and where a “community” of drug court practitioners and participants themselves exert systemic control over substantial numbers of serious drug offenders. So I suppose, if I were to write a definition of a Drug Court Judge today, it might simply read, ” a judge is the first among equals in a “drug court community”.

I believe that The Community-Based Drug Court is already in place, to a substantial extent, in every Drug Court and Problem-Solving Court in this country. We don’t always recognize the characteristics that define these court programs as community-involved, institutionalized, or systemic, but they are there. And while not all have moved rapidly towards this Community-Based model, I am convinced that the most successful are doing so.



No. 10: Drug Court as Guidepost to Community-Based Reform

August 11, 2014

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During my presidency of the newly founded International Association of Drug Court Professionals (1999-2001), I visited a number of South American and Caribbean Countries. One country that appeared especially interested in the Drug Court Model was Brazil. I was encouraged to go on a State Department tour of several Brazilian cities in 1998 and again in 2001 and spoke to assemblies of Criminal Justice Professionals, and consulted with government officials in Rio de Janeiro, San Salvador, and San Pablo. Although I did my best to get the concept of Drug Court across to those officials, the huge numbers of drug users and the lack of substantial resources was discouraging. I’m not sure what the status of Drug Courts in Brazil is today, but would be surprised to find anything more than a Drug Court demonstration project in place.


That is my feeling about  Drug Court in Brazil and other developing Countries (as I described in “No.7 in a Series”).Then again, I read a CNN News story in 2012 about a Brazilian Judicial Innovator that turned my head (commented on in a 2012 article in Reentry Court Solutions).

“Jose Henrique Mallmann, a Brazilian Judge in Santa Rita do Sapucai was looking for a way to encourage prisoners to give back to their community. In a Google search he came across a story of an American gym that used the energy from exercise bikes to power  the club’s lights. Today there are four bicycles that require 10 hours of pedaling to fully charge one battery. The energy is enough to power 10 street lamps, out of 34 lamps that provide light for the plaza. Prisoners earn one day off their sentence with every 16 hours of pedaling” (CNN News story).

It reminded me of the obvious. You don’t need to import foreign programs and structures to develop innovative reform programs. What’s important is the willingness of judges and others in power, to break away from conventional western thinking and embrace those critical concepts of behavior modification that work in every culture and community in the world. Incentives, of course,  are one tool that can be used to turn offenders away from crime. It’s not a panacea, but it is important that the court and criminal justice system pay attention to all the elements of successful community-based reform.

Drug Court has a role to play in the International Community, as a  guidepost to successful community- based reform in modern societies, but its not the only model for other cultures to follow.  Communities need to create their own structures and programs, and when appropriate, adapt drug court concepts to their own circumstances.

Finally, I’m more in awe of judicial innovators like Judge Mallman than I am of his more conventional drug court brethren in the U.S. In fact, It may be that looking outside the U.S. will ultimately provide us with the important community-based reforms we will need in the future.



No. 9: The Dangers of a Disinterested Bar and Judiciary

August 4, 2014

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Sometimes it’s easy to forget what it’s like to be on the other side of the bench. I remember appearing as a defendant in a minor traffic matter (speeding I think) while still in college. I watched as other defendants approached the judge, who seemed callous and quick tempered to me. When it came my turn I shook with anxiety and barely got out my story and my plea of guilty.

I had a much better learning experience some years ago while I was the new president of NADCP. I was driving home from a music gig in Maryland and was stopped by the Maryland highway patrol on the Interstate for driving twenty miles over the speed limit (78 in a 55 zone).  Maryland defined  that offense as “reckless driving”,  and a misdemeanor. I was chagrined at the fact that I was charged with a misdemeanor and more than a little upset at a system that would charge a misdemeanor for a relatively minor offense (I was otherwise driving appropriately  on Maryland’s major multilane  highway with no other vehicle in sight in the middle of the night).

I knew only a few real criminal lawyers in the D.C. area. I had presented at  an “Other Bar” function (AA for lawyers), and met several local attorneys. Contacting one, he agreed to go to court with me to resolve the matter. I remember being nervous but also being confident that the case would be reduced to an infraction.

It turned out to be an exhausting morning. My attorney was late, talked to me quickly, and went off to talk with his fellow lawyers. After a time, I approached him. He was visibly irritated and went off to talk to the D.A. Returning some time later, he informed me that the D.A. was insistent that I plead to the misdemeanor reckless driving and accept a substantial fine. Now I was upset.  I asked him why I should plead guilty to a misdemeanor if there was no reduction in the offense or fine. He said something about my not understanding how the process worked, though he knew I had been a trial lawyer, traffic commissioner and  trial judge for over twenty years.

And then it occurred to me. This is what defendants too often deal with every day. Bored Judges and lazy D.A.’s who make the easy deal and disinterested lawyers who force it on their clients because that’s the way the system works. He came back once more to push me to take the deal and I told him that I wanted my trial. Finally before the lunch break, he returned to tell me that I was in luck as his friend, the deputy D.A was handling the case, and the judge would reduce the offense from a misdemeanor to an infraction, but that I should say nothing and let him do all the talking. I did as he said, and a very bored looking judge took the plea without even looking up once to see who I was or ask me for my plea. In the final analysis, this was why Drug Court and Problem-Solving Courts were created; to counter the lack of human connection between the criminal justice system and the individual standing before it.



No. 8 in a Series: Finding Success in the English Based Court Systems

July 28, 2014


As the newly elected President of NADCP, I presented at  the United Nations Headquarters as well as the U.N. Headquarters in N.Y.C. and the Vienna Campus on several occasions in the 1990’s (publishing a paper on the development of International Drug Courts, American Drug Courts: A Common Sense Approach to the Drug-using Offender” distributed by my U.N. hosts).  I had the good fortune to be invited to a Conference in New Delhi, where U.N. policy was to be drafted for the year 2000 “United Nations Conference on the Global Drug problem”. Though the drafting of the resolution was difficult (and even undemocratic), it ultimately included a section in the policy statement approving court-ordered treatment as an alternative to incarceration (including drug courts).

In 1998, I was asked to assist in the formation of Drug Courts in the Pacific region. I flew to Guam to make a series of presentations to Asian and Pacific Islander criminal justice leaders at a Conference on Drug Abuse, and met with judges who were considering the development of local drug court models. After visiting Guam, I continued on to Australia, where I spent a week meeting with officials from relevant criminal justice and public health agencies, (including the New South Wales Prime Minister and his Cabinet). I can say that the Australians picked up on the drug court idea quickly and instituted drug courts with remarkable speed and effectiveness.

What was in many ways unique about the Australian approach to Drug Courts was their extraordinary collaborative approach and their understanding of the drug court’s role as an adjunct or tool of the  public  health  system in dealing with drug  addicted offenders charged with serious criminal offenses. There was little reluctance to engage heroin  addicted  home burglars in the Sydney Drug Court nor to see the process as mainly a therapeutic rather than a punitive system (something we still struggle with in the U.S.).

The New South Wales Drug Court Act of 1998, was  passed shortly after my initial trip to Australia, and  the Sydney Drug Court was the first drug court of its type initiated in Australia. When I returned for further consultations and a conference in Western Australia the following year, I found a thriving drug court in Sydney, working with the high risk offenders that drug courts are designed for. The Australians were so pleased with their drug court, that other drug courts were already being planned. It has occurred to me that the Australian criminal justice system was as successful as it was because the Australians shared a common english criminal justice tradition, a similar western culture, and the technical, treatment and rehabilitation resources required by an American Drug Court, (something we would not see in many other Asian nations).



No. 7 : Accomplishing Drug Court Reform without Drug Courts

July 25, 2014

My 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.



No. 6 : “The Prison that Shuts Down for the Weekend”

July 14, 2014

Samoa provided one of those comedic moments that are rare in the world of criminal law. I visited a prison seemingly built into the side of  a mountain. Huge cauldrons (the kind that they cook tourists in on T.V.) were being stirred. The prisoners were in cells that resembled caves, while the weather was unbearably hot and humid.

I asked the prison commander about the almost inhuman conditions and he replied in a friendly manner, that the prison guards basically close the prison down over the weekend and everyone, including serious prisoners, go home to return the following Monday to continue their prison terms. I found that explanation to be a wonderful insight into another culture’s approach to incarceration. The Samoan Islands prison system reminded me of the song, “Hotel California” by the legendary country rock band, the “Eagles”. They sang,”you can check out anytime you like… but you can never leave”.

At that point in time, offenders charged with an offenses had little opportunity to escape nor much impetus to do so. They were fully part of their Samoan Family and Village Culture, and would find it almost impossible to leave their homes to seek sanctuary anywhere else.Their’s was a  sense of belonging, as well as isolation from the rest of the world, that prevented the Samoan prisoner from leaving the Island.

P.S…..For years I enjoyed telling that story as an example of how different punishment can be in different cultures. That is until I read a recent story in the newspapers about how Samoa had been cited by FreedomWorks as a nation whose prisons violated the basic human rights of prisoners. To this day, I’m inclined to believe the Prison Warden’s narrative of the “Prison that shut down on Weekends”.



No. 5: Village Based Restorative Justice; Ifoga

July,6, 2014

I went to several courts in Fiji, Western Somoa (Somoa today) and Tonga. All had foreign magistrates (to the best of my recollection, New Zealanders), who presided over their courts at the time. I remember thinking that using foreign judges or even judges from the next village was a problem where communites were so insular, and conflicts so localized that they needed community based solutions.

I had read about the custom among the Polynesians that involved a wrongdoer’s family making amends to the victim and the victim’s family by bringing food and gifts to the  family as informal family based justice, called Ifoga. It was understood that the offender’s family would take whatever measures were necessary to control the offender in the future. I was told that a family would literally camp on the neighbor’s steps until they would accept the proposed restitution. A wonderful concept and one that makes sense when the malfeasor is known and the damages relatively minor.

I was in a Somoan Court when the New Zealand magistrate was asked to accept this form of restituion in the case before him. He rejected the offer out of hand, and I cannot say I disagreed with him. The defendant had thrown a rock at a girl and blinded her in one eye. Something more than restituion was clearly called for. But the idea of bringing peace to the community by making restitution and even more importantly relying on the family itself to control the miscreant had an authentic ring to it.



No. 4 in a Series: Invited to a Fijian Prison’s Kava Ceremony

June 30, 2014


I had always wanted to visit the South Sea Islands. When elected to be an Oakland Judge, I had over six months before I took office in January 1989. I decided to take advantage of the opportunity to travel somewhere I had always wanted to, the south sea islands. Fiji was my first destination, as it was pretty much all I knew of the south seas. I thought of the trip as a busman’s holiday, with the idea that I would visit the courts and jails and learn something about how the islander’s meted out justice., before I took the bench.

In Fiji I was granted the opportunity to visit the main jail facility by the Chief Justice of Fiji. I was treated with respect and deference, and as a special honor, I was invited to the guards own housing unit , to participate in a traditional Kava ceremony. [ The root of the Kava pepper plant is  used to produce a drink with sedative and anesthetic properties, highly valued throughout Polynesia, but banned in many western counties for its mild addictive and toxic qualities]

I also visited other  communities  where Kava was used in the traditional fashion, with the Kava ceremonial experience, a rare religious and/or community celebration. But with the modern world intruding into village life, it had become endemic to many communities and used everywhere and much of the time. That explanation was brought home to me when I met a fellow traveller on a bus. He invited me to his home to drink Kava. He said he drank it every day, as there were no jobs , no money for a wife, and nothing to do but drink. He was a drug dependent, with no obvious way out of his dilemma.

Which is what I sometimes think is happening across the world; people using drug to anesthetize themselves from boredom, lack of opportunity and community.  No job, prospects of one, money to start a family, or marry, and nothing much to do. Within a generation, a ceremonial substance, admittedly hallucinogenic and addictive had become an acceptable part of the life of an entire region of the world.

It was on my south seas journey that I began to seriously think about the value, nature and consequences of drug use around the world. It gave me a new perspective on legalization  and the endemic use of marijuana and other soft drugs in the U.S.and other western nations?




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