COMMENTARY

WHY DRUG COURT IS NOT A SILVER BULLET

Dr.Doug Marlow,

Dr.Doug Marlow, Chief of Science, Policy and Law, NADCP

If you follow the comments of governors and other state policy makers these days, it appears that they have signed on to the notion that drug courts are the answer to prison overpopulation, high crime rates, and increased recidivism (and that may be the short list). In reading about their support for drug courts, I am cheered by their adoption of an important  innovation that I along with others pioneered some twenty-five years ago. But I am disheartened by their misunderstanding of the significance and applicability of drug court to all criminal offenders.

Drug abuse is a good example of the failure of the “one size fits all” philosophy in the criminal justice world.  As tempting as it may be to lock onto drug court treatment as a silver bullet that works with all offenders, drug court isn’t cost-effective, appropriate, or productive as a treatment alternative for most criminal offenders (or most drug offenders). While drug courts are the most intensive “alternatie to incarceration” available for drug abusers, they should not be the only effective treatment option for the drug abuser.

Optimally, we should think of the drug court as the anchor and the most intensive in a series of  treatment/rehabilitation tracks available for the different levels of drug abuse encountered. A Drug Court System could provide a series of progressively more intensive versions of the Drug Court model, beginning with a face to face encounter with a judge, and possible diversion from the criminal justice system, and culminating at the other end of the spectrum, with a fully implemented drug court program.

As described by Dr. Doug Marlow, Chief of Science, Policy & Law, at the National Association of Drug Court Professionals (see: NADCP argues for Evidence-based tracks), most drug offenders are not drug dependent and shouldn’t be part of an intensive drug court program. Dr.Marlow estimates that 60 to 80% of drug offenders do not need a drug court’s intensive treatment.That means that more than half of drug offenders should be going somewhere else  besides drug court for their treatment and rehab needs.

At the very least, drug courts need to be modified (as Dr. Marlow suggests) to deal with the majority of criminal offenders, who are drug abusers, but not drug dependent. Whether in an expanded drug court system or an existing probation structure, we need to deal with the whole person in a scientific, evidence-based sentencing system (whatever we end up calling it), where individual levels of risk and need are determined, and appropriate supervision and treatment responses apply.

In practical terms, it appears that we over-treat drug abuse and pay too little attention to cognitive behavioral needs and rehabilitative therapies that have proven successful. In essence what Dr. Marlowe and his scientific brethren have been telling us is that traditional Drug Court is not the answer to most offenders’ treatment and rehab needs.

[Note: drug courts reach only about 5% of drug offenders (which is far from what is needed); there continues to be an appalling failure to develop significant and appropriate treatment and rehabilitation tracks for non-dependent drug abusers specifically, and non-drug abusers in general]

 

COMMENTARY

HOW I KNOW PROP. 47 IS THE RIGHT THING TO DO

[One in a series of articles on California's Prop 47; reducing less serious felony offenses,(drug and non-drug) to misdemeanors]

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San Francisco District Attorney George Gascon

 San Francisco District Attorney George Gascon has been quoted as saying, “The [Criminal Justice] System isn’t broke  because of Prop 47, the System was broke before Prop. 47″.  To hear San Francisco District Attorney and former Police Chief  Gascon make such a bold statement is surprising, and more than that, a challenge to those of us working in the Criminal justice System across the nation.

 I agree with District Attorney Gascon. Prop. 47 is a huge change in course for a  criminal justice system that is used to increasing penalties and consequences for drug users for over a century. Over the past forty years, these less serious drug felonies have become a big part of the criminal justice system’s food chain (and we are paying for it with much needed community resources and overflowing prisons and jails).

 Clearly, the courts are a critical tool for getting the drug addicted into treatment and keeping them there. But one dosesn’t need a felony offense and the threat of prison to get it the job done. I have watched from my perch as a judicial officer since 1985, and while drug addiction is a  very serious medical and public health problem, drug possession offenses are being over-charged and over-incarcerated by the criminal justice system, even if its intent is to encourage sobriety.

I developed the Oakland Drug Court in 1990 to try to bring reason to a broken system. I went to Washington D.C. and founded the National Assocaition of Drug Court Professionals, to take that rational approach to the national level. Before returning to California in 2001, I wrote a mongraph, “Rational Drug Policy Reform” ( Center for Problem-Solving Courts, 2001). In it I proposed a simple but critical change in the law; the reduction of drug possssion felonies to misdemeanors (Chapter 2, pp. 7-11). Continue reading

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

August 25, 2014

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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”

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Ohio Prison Reform Not Reducing Recidivism

 

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Ohio prisons director Gary Mohr is concerned that a package of prison reforms passed in 2011 have so far failed to achieve their goal of reducing the number of prisoners.

Director Mohr in an interview with members of the Northeast Ohio Media Group and Plain Dealer editorial boards, said “some aspects of that law, which was Senate Bill 86, haven’t worked – such as risk-reduction sentencing, which allows the release of certain prisoners who complete treatment and programming while incarcerated.While about 50,000 people have been sent to prison in the state since the new law took effect, Mohr said, risk-reduction sentencing has been used in less than 400 cases.

“There’s something wrong with it,” Mohr said. “It’s wrong or we haven’t communicated it well enough (to judges)”. Risk-Reduction Sentencing allows judges to issue what are called “risk-reduction” sentences. That means if inmates have a good record in prison and participate in programs, they qualify to get out early. As described in an ACLU article on the Ohio dilemma, “Why did things turn out this way? The short answer is that the bill’s provisions haven’t had the impact that lawmakers expected because its provisions aren’t being fully utilized.”

Interestingly, last year we reported on the conflict between Ohio judges and the Corrections Department’s interest in keeping less serious offenders out of prison (“Judges Upset at Ohio Prisons for Rejecting Commitments”). At the time we were reporting a different aspect of the Reform Package, a section that would prohibit the court from sending non-serious first offenders to prison, if rejected by the Corrections Department. Some judges bridled at what they saw as a loss of sentencing discretion.

The issue is very much the same. And it it exists across the nation. Judges reluctant to use new discretionary powers to keep offenders out of prison or to release them early under new statuary authority. Whether its California judges sentencing offenders to straight jail terms on prison sentences (rather than jail and community supervision), or Ohio judges refusal to use their discretion to keep non-violent offenders out of prison, Judges are reluctant to use scientific evidence-based risk assessments in sentencing non-violent offenders to non-prison sentences.

For the first time in decades, the legislatures, governors, and corrections agencies in a multitude of states are handing judges the tools to use their discretion to keep offenders out of prison and under community based supervision. The shame is that so few are willing to do so.

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A New Grand Bargain on Criminal Justice Sentencing

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I’ve watched the various demographics come together, the political parties spar around it, and religious and community organizations find different purpose through it. It is “Prison Reform” And it means different things to different people with very different agendas. For many its about reducing the number of offenders in prison. How that happens can be less important than getting it done. Others describe it as decriminalization, or legalization of drug offenders or other classes of offenders. Governors often talk about putting offenders into drug courts or other problem-solving courts as a way to reduce drug abuse and criminality.It is hard to understand ho we got to this place where the imprisoned have had their sentences doubled or even tripled  in twenty years, while those sentenced to prison have increased some six hundred percent over the past thirty years. How do we begin to undo the damage we have done over the last generation to our communities.

Twelve years ago I wrote a monograph, “Rational Drug Policy Reform”; A Resource Guide (Center for Problem-Solving Courts, 2001). In it, I tried to lay out the arguments for de-criminalization and legalization, in an attempt to show how different the two were, and how important it was for Drug Reform to support hte former and oppose the latter. At the time, it was clear to me those who possessed small quantities of drugs should only be charged with misdemeanors; that demanding felony convictions would destroy far more lives than it would ever save. I described the criminal law as a public health tool or a means to an end, reduction in drug abuse and criminality. Though some of what I wrote didn’t turn out to be especially prescient, I believe the decriminalization of drugs and the reduction of less serious offenses to non-prison offenses has proven to be sound policy.[click on image on left for copy of "Rational Drug Policy Reform"]

So we’re very much in the place we were then. California’s Proposition 36 was a plan to keep drug abusers out of custody,  (pretty much under any circumstance). I wrote my monograph to address the dangers of a law that neither provided incentives or sanctions to the drug offender. Proposition 36 has been forgotten by many, and there is little scientific data to support declaring it a success or failure; an unfortunate circumstance. Today, the Governor has vetoed a bill that would make possession of more serious drugs (cocaine, heroin,……) a felony or misdemeanor, depending on how the D.A. and judge charge/process the offense. Is the Governor right or wrong. He claims that he isn’t opposed to the legislation; only that it ought to be part of a grand criminal justice agreement, that will settle the many criminal justice issues that remain outstanding.

Governor Brown in 1976 reaching a grand Bargain (the Uniform Determinate Sentencing Act) that turned out to be a disaster of the first order. Writing about it’s progeny in the Modesto Bee, “California today has more than 1,000 felony sentencing laws and more than 100 felony sentence enhancements spread across 21 sections in the California Penal Code.” Perhaps we need to move forward toward real criminal justice sentencing reform now, rather than put it off for another day.

Cal allows expungement of some prison felonies

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As reported by the” Lawyer’s Committee”, co-sponsor with the ACLU among others, of the bill signed by the Governor on October 13.

“As a result of the “Public Safety Realignment Act” of 2011, some individuals will now serve sentences in a local jail for lower-level felony convictions that used to have state prison as the only sentence available. Under AB 651, after these individuals serve their time in jail, they will have an opportunity to ask the court to set aside their convictions, subject to a waiting period and a showing of rehabilitation. AB 651 provides a critical step forward for people who have served their sentences, helping them to avoid the stigma associated with prison time and to better access the jobs and housing they need to leave the criminal justice system permanently behind them.”

I agree with the “Lawyer’s Committee”. AB 651 is an important step forward. It allows felony offenders to seek expungement of less serious felonies, where the offender is sentenced to prison (but under California’s “Realignment Reform” serve their term in county jail). It is estimated that as many as half of offenders sentenced to prison in the future, will serve their term under county jurisdiction and post sentence supervision. That means that those offenders can return to the court to request expungement (as post-felony probationers do now), after they have completed their jail and/or court supervision. The D.A may object as they often do now, and the court may ultimately deny the request,  but the jurisdiction is with the court, as to whether a felon sentenced to prison (yet serving under county jurisdiction), may have their offense expunged by the court.

In all, a very good indicator of the direction of the criminal law, placing jurisdiction and discretion with the court as to  the felony offender’s criminal status,reentering the community.

Governor Brown takes next step in Prison Reform

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Governor Brown has somewhat reluctantly taken an important step forward in prison reform. While just a few short months ago, he was insisting that he had done all he could to improve prison overcrowding consistent with community safety, he has with the passing of two important pieces of legislation still made impressive progress.

As noted  in the Press-Enterprise, on Oct. 5, Governor Brown signed into law the Trust Act, which bars police from turning over immigration detainees arrested for non-violent crimes to federal immigration officials for possible deportation. While the impact upon prisons may not be immediately apparent, the fewer immigrants held in custody either in state or county facilities (or in state or county facilities leased by federal authorities), the less the need for new prisons and jails in the state.

More importantly, Governor Brown signed a bill, a compromise hashed out with State Senate President Daryl Steinberg, that allows for the continuing imprisonment of some 9,000 prisoners (with the agreement of the three judge federal panel), while over $300 million is spent on drug and mental health treatment, and  other alternatives to imprisonment over the next three years.

If the Three Judge Federal Panel had refused to modify it’s previous order to reduce Cal prisons by an additional 9,000 by Decemebr 31, Brown would have sent the 9000 to private or out of state prisons. But the Judges seized upon the opening to  move the state toward a more lasting and “durable solution to the prison crowding problem”, and extended the  prison reduction deadline until Jan. 27 to allow the state to meet with inmate lawyers and said that they might extend the deadline even further if progress is being made.”

Importantly, as noted in a Press Democrat article, “the court also gave some directions, saying discussions about reducing prison crowding should cover juvenile offenders serving lengthy sentences, inmates being held for federal immigration authorities [addressed in the Trust Act], elderly and infirm inmates, and three strike inmates eligible for early release under an initiative approved by voters in 2010″.

All of the above is an important intermediate step in a process to reform California’s prison system. As noted in my article of February 2013, “The easy part of prison reform”, found immediately below, we are just beginning the process of reforming our sentencing and prison system.

 

 

 

 

The Troubling Paradox in the Rise of Life Sentences

Screen Shot 2013-09-30 at 12.06.03 PMThe Sentencing Project has released a new report, “Life Goes On: The Historic Rise In Life Sentences in America”, that describes the extraordinary increase in those sent to prison for Life [click on image on left for PDF copy] According to the report, “Last year, 159,520 people were serving life sentences in American prisons, a 12 percent increase from 2008. The number of individuals serving life without parole has increased even more dramatically, from 40,174 in 2008 to 49,081 in 2012 — a 22 percent rise.

“Although most “lifers” have been convicted of homicide or sexual assault, the use of life sentences has expanded over time to include a wider range of offenses, including property crimes (5,416 prisoners) and drug crimes (2,686). In Idaho, prisoners who have not been convicted of homicide comprise more than half the population of lifers, the highest in the country; in Washington, they represent 46 percent.”

These statistics portray a troubling paradox in the current media narrative on prison reform. While prison reform has been embraced by nearly all, those who are sentenced to prison for more serious offenses are spending far longer than they did and in greater numbers than a few short years ago.

In an article I wrote in January 2012, “California prison terms for violent criminals more than double“, I quote from a Center on Juvenile and Criminal Justice (CJCJ) article,  ”California offenders who committed violent crimes can now expect to serve 7 years in prison — in 1990, they would have served less than 3. Looking at people who committed murder, those who were released in 2009 served an average of 16 years; now, they can expect to serve more than 50 years. This lengthening of sentences for violent crimes is a major reason California’s prisons are overflowing and will continue to do so. In 2009, nearly 100,000 of the state’s prison inmates were doing time for violent crimes, a number that will only grow as the exit door continues to recede.”

Lizzie Buchen’s  who wrote that CJCJ article, argues that research coming out of the PEW Center of the States, supports the position that longer sentences are a major reason for the explosion in prison populations and  the enormous cost of keeping prisoners locked up.  (PDF of the PEW article, “Time Served; The High Cost, Low Return of Longer Prison Terms”)

Are we paying attention to the right prison reform statistics, or ignoring one of the most troubling of indicators, the appropriateness and rationality of the priosn terms that serious offenders are required to serve.

 

Review of new Critique of Drug Courts

Sept. 30, 2013

Screen Shot 2013-09-30 at 7.43.46 AMThe Annals of the American Academy of Political and Social Science, published an article in May of 2013, addressing a critical issue, “Can Drug Courts Help to Reduce Prison and Jail Populations?” [click on image on the left for a PDF of the article]. Written by Eric L. Sevigny, Harold A. Pollack, and Peter Reuter, the article was recently analyzed in a University of Chicago Urban Network, issue, which concluded, ” drug courts have significant capacity constraints and so cannot handle the full number of drug offenders; the eligibility criteria for participating is very strict, most significantly barring anyone with a current or prior violent offense; many participants fail to complete their therapy, and so end up in jail or prison anyway; and sentencing laws such as mandatory minimums or habitual offender statutes prevent offenders from participating.”

I have addressed these issues in the past, and believe that it is important to provide a response. I agree with much of the criticism, I also believe that the writers and reviewers miss the main issue concerning the limitations regarding drug court outreach. Drug Courts are not intended to deal with all drug abusers, only the most serious drug users, those with a dependence upon drugs. It is generally understood that they are a small minority of those who use drugs and those who find themselves facing criminal charges involving drug abuse. I have seen estimates of those who use but are not addicted to drugs to be as high as 90% of the drug using population. If we expect drug courts to deal with those who are non-dependent on drugs, to be handled within a drug court we need to rethink the very concept of a drug court.

That is not to say that we should ignore the drug usage of those who are non -addicted, but make sure we are dealing with their dependence as part of a larger response to their criminal behavior. We need to do appropriate risk and needs assessments of all offenders (or at least all felony offenders) and handle their cases in a rational manner, and that means their drug issue, as serious as it is determined to be, by clinical and scientific evaluation. For the vast majority of drug offenders, (who are not drug dependent), that means that drugs are a second tier need, and that issues concerning their attitudes as to criminality, family and friends are far more important.

To repeat a tired phrase; Drug Court has become the proverbial lonely hammer in a tool belt, used because that’s all we have to use in our struggle against drug abuse and criminality. We are unable to develop a more nuanced and effective way to deal with the drug offender and their criminality, so we put them in drug court.Those who have the greatest need, the serious and dependent drug offender (often with a serious criminal history) are refused entrance because they are criminals. Isn’t that the population we were most concerned about providing effective rehabilitation for in the first place.

While the authors are right in complaining that drug courts are not reaching the vast majority of drug abusers, they are wrong to suggest that that is the population that drug courts need to engage. We need to develop evidence-based sentencing systems that provide appropriate responses to criminogenic needs, not dump all drug users into the same dumpster [See: A Model Court-Based Sentencing System]

ONDCP Director Announces Expansion of Drug Courts

 

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The Best Of: First described in April, 2013, the “ARK” project has now been confirmed to be a fully funded ONDCP sponsored initiative, hopefully providing a systemic approach to the sentencing of offenders that will be applied across the nation

[EDITOR'S NOTE::The "ARK" program described in the press release below, is not fully defined, but seems similar to an evidence based sentencing system, described in a 12 part article, "A Model Court Based Sentencing System" published on this site last year. Specifically, its reference to "a reform framework to assess offenders and sort them into a systemic continuum of evidence-based sentencing options" would be a wonderful new initiative for drug courts and sentencing systems, in general]

The following press release is from the National Association of Drug Court Professionals (NADCP):

The White House Office of National Drug Control Policy Director, Gil Kerlikowske (see photo image on left of Director Kerlikowski) announced today that NADCP will receive a $1.4 million grant to expand the reach of Drug Courts and the groundbreaking justice reform model, the Annuals of Research and Knowledge on Successful Offender Management (ARK). Based on the Risk and Need Responsively theory, the ARK was designed as a reform framework to assess offenders and sort them into a systemic continuum of evidence-based sentencing options.  Today’s announcement represents a groundbreaking step towards significant justice reform across all points of the adult justice system.

The National Press Club speech was attended by justice leaders and policy experts from across the criminal justice spectrum. Representing NADCP was an incredible group of treatment court pioneers covering over twenty years of alternative sentencing innovation and leadership. Joining NADCP CEO West Huddleston were Board Chair Judge Robert Rancourt, Board Member Judge Pamela Gray, and former Board Chairs Judge Lou Presenza, Judge John Schwartz, and Judge Chuck Simmons.

“Drug Court is what real drug policy reform looks like,” said ONDCP Director Gil Kerlikowske. “By giving non-violent drug offenders a chance to reclaim their lives through treatment, we can finally begin to break the cycle of drug use, crime, and incarceration in America. Every dollar we spend on supporting this type of drug policy reform pays dividends in safer and healthier communities later on.”

“Today, our vision of a solution-oriented justice system is significantly closer to becoming reality,” said NADCP CEO West Huddleston. “This funding will allow NADCP and its partners to put the ARK into practice. We remain grateful that through this funding, Congress and the Administration continues its commitment to expand the reach of Drug Courts and ensure that they remain a cornerstone of much needed criminal justice reform.”

“We look forward to taking the ARK to scale,” said NADCP Board Chair Judge Judge Robert Rancourt. “In doing so, NADCP commits to collaborating with leaders from the law enforcement, corrections, probation, prosecution, defense, substance abuse and mental health communities. Working together, we will build a comprehensive system that will forever change the delivery of effective justice in this country.”

To learn more about the ARK, watch NADCP Chief of Science, Law and Policy and ARK co-creator Dr. Doug Marlowe present during the NADCP 18th Annual Training Conference.

 

 

 

Brazilian Judge creates a new incentive for prisoners

 

The Best Of: This article first appeared on this website September 10, 2012, describes the efforts of a Brazillian Judge to develop prisoner incentives that work for the community, and the prisoners themselves

 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 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).

This story is a reminder of why work (and education) incentives should be a part of every offenders rehabilitation plan. Some call it restorative justice, but whatever the name, its efficacy has been understood for a very long time. Scientists tell us that incentives are four times a s effective in reducing recidivism as sanctions. If you think about it, it makes sense. Those who have a chance to earn a reward are far more likely to appreciate an incentive and be encouraged to correct their behavior than someone who is punished to achieve the same end.

It also suggests that we in the courts ought to be looking for incentives wherever we can find them as a way to turn offenders away from crime. It’s not a panacea, but it is an important tool that the court and criminal justice system need to pay attention to. It is used by many correctional institutions, but rarely by judges. Why shouldn’t there be court progress reports, incentives, and certificates of accomplishments, to encourage those in custody to work toward both their successful release from custody and rehabilitation in the community. Judge Henrique Mallman figured out it could be done, and so should we.

 

Realignment Boosts Sentencing System Reform

 

 

 

The Best Of: This article, first published on September 24, 2012, describes how Realignment , a reform that requires counties to keep less-serious offenders in-county to serve prison sentences, is being modeled in California.

Realignment, as prison reform, is having an major impact in the development of countywide evidence-based “sentencing systems”. No where is that effect greater than California, where the state is heavily relying on realignment to comply with the U.S. Supreme Court  order to reduce severe prison over-crowding (see NYT: In Califronia, County Jails face bigger load)

California’a AB109 Realignment Strategy has two important aspects:

1) Those sentenced to prison on less serious offenses (typically called triple nons; non-violent, non-serious, non-sex offenses), will be housed in county jails (when sentenced to prison) and supervised by county probation departments on LCS (Local Community Supervision). These individuals may not be sent to prison. Instead, they may be sentenced to a straight jail sentence (equivalent to the term they would have served in prison) or they may be sentenced to a split sentence term.  This is where the enormous potential of California’s realignment (AB109) comes into play. The court has the discretion to split the sentence between jail and LCS in ways it determines to be appropriate. The court maintains jurisdiction over the offender and may monitor the offenders progress over the course of the entire sentence; reducing a jail sentence and releasing the offender into the community to be supervised under LCS, or returning the offender to jail to complete part or all of the term upon substantial LCS violation. The degree of court discretion and involvement in the monitoring and supervision of the felon can be extraordinary, perhaps greater than that of any other state. Counties are required to develop collaborative strategies with probation, sheriff’s departments and other agencies and community based organizations, with the potential to maximize the impact of the court, while utilizing the resources and involvement of all collaborating organizations.

2) Starting in July, 2013 , those released from prison will be retained in the community, under Post Release Community Supervision (PRCS),  while under the jurisdiction of the County Superior Court, supervised by probation, to be returned to jail rather than prison when there are violations of parole. Unless they come under a very limited exception for dangerous and violent offenders, they will not be place on parole, revoked under the authority of the state parole board or returned to prison (a limited program currently exists statewide).

These two provisions provide a major opportunity for communities to create evidence-based sentencing systems, that utilize the courts, as part of a comprehensive and seamless sentencing system. Eveyone should be paying attention to what California Courts are doing with their new jurisdiction and sentencing discretion. (see:“A Model Court Based Sentencing System”)

Court-Based Realignment Recommendations

THE BEST OF: The following article,  originally posted on September 9, 2012, describes how California Counties can make the best use of the state’s new realignment reform process.                  PDF

POTENTIAL SENTENCING SYSTEM REFORM IN CALIFORNIA COUNTY

I have set out possible sentencing reforms, based on the “Twelve Part Series on Evidence-Based Sentencing Systems” that may be relevant to a California County’s Realignment Process.

SENTENCING AND MANDATORY SUPERVISION UNDER PC 1170(H)

  1.  Start the risk assessment and classification process at plea or sentencing if possible, so the judge can make the most appropriate sentencing decisions.
  2. Create a seamless process for offenders, with a designated sentencing judge and staff monitoring and supervising offenders through the entire sentencing period.
  3. Develop court tracks that reflect probation classifications based on risks/needs assessments, and tailor appropriate court involvement and contacts to that data.
  4. Where appropriate, hold court hearings for in-custody offenders to encourage compliance with a rehabilitation plan through continued court monitoring.
  5. Use the court’s jurisdiction to motivate offenders to do well in their program by providing substantial incentives keyed to an incentives guideline.
  6. Have all newly released offenders, on “mandatory supervision”, meet with the judge for a brief interview, to set goals and remind the offender of program rules.
  7. Use custody as a sanction of last resort, relying on increased rehabilitation and treatment requirements, as well as, community service to correct misbehavior.
  8. Take advantage of the latest scientific findings, using evidence based sentencing practices to engage the offender in pro-social activities and cognitive therapies.
  9.  Create a technology system able to share data and information, reducing the need for team member’s personal presence, but maintaining court’s presence/influence.
  10. Look to probation, other government agencies, and community for partnerships.
POST RELESE COMMUNTIY SUPERVISON
  1.  Involve the court early, if only as a symbol of the system’s new found solidarity and commitment to work together, with the judge assisting in the process.
  2. The court should be considered an important resource in the reentry process, and while not directing the rehabilitation plan, assisting probation and the community.
  3. The court should  briefly interview the offender returned to the county, to remind the offender of the court’s interest, support, and concern.
  4. A Reentry Court. authorized by statute at the time of the revocation hearing,  may become involved as a community and probation based option even before a violation occurs, in a way, similar to the process defined above under 1170 (H).

 

An Overview of a Court-Based Sentencing System

THE BEST OF:The Following Article , published on September 3, 2012, describes how a systemic sentencing model based on evidence-based principles might be structured   

 Find below a diagram and descriptive analysis of an Evidence-Based Sentencing System.

A 12 Part Series on Sentencing Systems, can be found under “SENTENCING SYSTEMS” (or by clicking on the diagram below)

 

AN OVERVIEW OF A SYSTEMIC SENTENCING MODEL   PDF

The diagram above can be thought of having two separate phases. The first (from “Plea” arrow to “Custody” arrow) focuses in on the need to effectively categorize, sentence, and track offenders, with a minimum of staff and resources. Tracks are essential to the system as the court will sentence and monitor offenders with very different risks and needs. A sentencing team with a different skill set is required to deal with low risk and diversion participants than with high risk and violent offenders (as a different team skill set would be required for Drug Court as opposed to Domestic Violence Court).

We know from the scientific literature that mixing low and high-risk offenders is counter-productive at best. That same dynamic works in the courtroom. Where possible, it’s best to keep participants with different risk levels apart. It’s also more cost-effective. Why have full staff at every session when you can substantially reduce the number of staff by sorting offenders by risk and need. When you create a participant track with few housing, job, or family issues, experienced staff in those areas can best use their time elsewhere. The savings would be substantial if case managers are designated to be in court once a week for a single track, rather than required to attend daily sessions

The second part of the diagram (from “Front End Jurisdiction” through Front End Reentry Court”) focuses on the potential for an “Early Intervention”. We focus on the front end because almost all states give their courts a window to recall the felon from prison within a relatively short time period  (typically 4 to 12 months).  Where courts are willing to use their statutory authority, serious and/or high-risk offenders can complete a rehabilitation program over a short jail or prison term and avoid a long prison sentence. The opposite is true for felons sentenced to long prison terms (or even medium terms of 1 to 3 years). In most states, there is relatively little opportunity for a court to exercise authority over the “Back End”, as the felon, typically returns to the community under state supervision.

Decision Making in a Sentencing System

Offender Tracks are normally the province of Probation or other supervisory agencies. When used at all, they reflect internal decisions in determining the level of supervision and treatment appropriate for a probationer.  With validated Risk/Needs Assessments available, the final decision as to court related tracks ought to be left to the court, based upon the recommendations of the full sentencing team.

Court tracking is essential to keep offenders with similar risk and needs together, maximizing the opportunities for building positive relationships with the court and participants and limiting the negative consequences of mixing offenders with different risk levels.  The court will need to schedule tracks when required staffing and resource personnel are present. Optimally, the only personnel present at all sessions will be the judge, clerk, and court manager. Review below the process and procedures:

a. A risk assessment is completed even before sentencing and optimally before a plea is taken so all parties will have an understanding of the sentencing issues early on. (Ideally, the level of treatment/rehabilitation or appropriate track designation should not be the subject of a plea agreement).

b. An individual may be given the opportunity to accept pre-plea Diversion (often called District Attorney’s Diversion). Once a complaint is filed, the court has substantial control over pre-plea and post-plea felony Diversion, as well as pre and post-plea Problem-Solving Courts. A Diversion or Problem Solving Court judge typically takes a plea, sentences the offender, monitors the offender over the course of the program (including in-custody progress), and presides over their graduation from the program.

c. The lead judge (or a designee) takes the plea in most other felony cases, reviewing the risk/needs assessment already completed, and sentences the felon either to probation or prison (if the offense is violent or the offender a danger to the community). If the offender is appropriate for probation , the sentencing judge will decide whether the felon should be placed in a low, medium or high risk supervision track. Depending on the number of offenders and resources available, there could be sub-tracks within each risk category (when offender’s needs differ substantially in criminogenic attitudes and beliefs, gender concerns, drugs or alcohol problems, mental health issues, housing, job and/or education needs, and family/ parental issues)

1. Low risk offenders; Probation (banked file): Where the offender is neither a risk to society or has special needs, the court might see the offender once, shortly after probation placement, focusing the offender’s attention on probation compliance, and only see the felon again, if there is a substantial change of circumstances (note: Diversion contacts are often as minimal).

2. Medium risk offender, Probation (straight community corrections); Where the offender has a medium risk of re-offending and has special criminogenic needs, the felon would be placed in a track on a regular court schedule. Compliance in this track would require completion of cognitive behavioral and other rehabilitation services, with compliance resulting in substantial incentives and rewards. Compliance will allow the court to back off from contacts with probationers (unless changed circumstances or graduation)

3. High Risk offender, Probation (often a substantial jail term); Intensive supervision requirements might include attending court sessions on a weekly basis (remaining in court until all participants have been seen), a minimum of twice weekly contacts with a case manager, intensive cognitive behavioral therapy sessions, and pro-social activities for at least 40 hours per week (for at least 90 days)

Reducing Prison terms through Front-End Sentencing

 The second half of the diagram represents the use of alternatives to prison terms, allowing us to use an evidence-based sentencing system as a means to keep serious (but non-violent) offenders from serving long prison terms.

The front-end of a prison sentence provides the only substantial opportunity a court has to effect a prison term, once a felon is sentenced. Few courts use that statutory authority to return the felon from prison. When used at all, the authority is often applied in by individual judges in a non-systemic fashion.

“Front-End Systemic Approaches” to long prison terms described here present an opportunity to use graduated sanctions rather than immediate prison sentences for serious, but not-violent offenses. Such Front-End Systems can be structured in different ways. Some courts may include non-prison sentences (typically county jail or community corrections programs) as part of an “alternatives to prison” system.

Systemic approaches to “Front-End Alternatives to Prison” might start with a Community Corrections level alternative sentence. With new offenses and/or serious violations of probation, they might move up to a county jail alternative, and finally to a short-term prison sentence in lieu of a long-term prison sentence. Depending on the seriousness of the offense, an offender might start a  ”Front-End” Intervention at any of the three levels.

A.  Community Corrections Sentence in lieu of Prison: Less often used than other alternatives, this community based alternative to prison (typically residential treatment or correctional housing while an offender receives education, job training or employment), allows the judge to closely follow the offenders participation in a community based program, providing incentives or sanctions as appropriate. With successful program completion, the participant is returned to the community to continue supervision and rehabilitation under court authority. [Note: this alternative can be the first of two used before the offender is ordered to serve any prison sentence]

B. County Jail Alternative: This second tier “Front End Prison Alternative” can better emphasize the risk that the felon has of being sent to prison. Like the “Community Corrections Alternative, the County Jail Alternative allows close monitoring by the sentencing judge, appropriate incentives and sanctions, and a return to the community for further court supervision.

C. Front-End Prison Term: This ought to be thought of as a felon’s last opportunity to avoid a long prison term. Depending on the seriousness of the offense, some jurisdictions will start the Front-End Sentencing process with a prison term (skipping over possible Community Corrections and County Jail level interventions), hopefully reducing a long term sentence to a relatively brief 4 to 12 months in prison, and returning the felon to the community to complete the sentence under court supervision.

High Risk Offenders Do Better IN Half-Way Houses

THE BEST OF: The following article, initially published on April 4, 2010, makes clear the “Risk Principle”, that establishes that high risk offenders do significantly better in correctional programs than low to medium risk offenders.

 Reentry Courts, like other problem-solving courts, suffer from the reluctance of criminal justice practitioners and government leaders, to accept empirically established Evidence Based Practices. For example, some criminal justice practitioners have long been resistant to working with difficult high risk offenders that many programs are designed for, and  instead use “risk assessments” to  limit their programs to less challenging low risk offenders. Professor Edward Latessa of the University of Cincinnatti, a national expert on residential correctional programs, has been at the forefront of the struggle to move criminal justice professionals and government leaders toward the adoption of Evidence Based Practices. To that end, he has written of the difficulties of changing criminal justice practices and policies  to reflect established Evidence Based Practices (see Prof. Latessa’s comments).

Now comes a  University of Cincinnati study, finding that low risk offenders have comparatively higher recidivism rates coming out of Ohio’s Residential Corrections Programs (such as half-way houses) than moderate to high risk offenders.  The new data confirms  their previous 2006 study (and the work of many other researchers). Their research reflects the well established “Risk Principle”, that offenders should be provided with supervision and treatment that are commensurate with their risk levels.

Professor Latessa points out that it is a waste of scarce resources to put low risk offenders into programs when they don’t need them, and when they would often do better and offend less at home, on probation or other limited monitoring protocols. [It should be noted that risk is not necessarily related to the seriousness of the offense committed, but the risk that the offender will reoffend].

Professor Lessora explains that  low risk offenders have the connections to home, school, job, family and friends that define them as low risk, and enterring a  residential corrections program can damage those connections, increasing their chances of reoffending.   Further, that when housed together in residential corrections programs, high risk offenders often corrupt and influence the low risk offenders, once again increasing their recidivism rate. On the other hand, the recently released data shows moderate to high risk offenders often take advantage of the services and treatment offered at residential corrections programs, significantly lowering their recidivism rates; a good reason to challenge  conventional wisdom, and carefully examining the applicability of Evidence Based Practices to your reentry court.