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.







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”.



Prosecuting Attorney Lauds Historic Collaborative Courts

THE BEST OF: First published in February of 2012, John Tunheim, the Thurston County District Attorney described the “Drug Court Model” as one of the “one of the most remarkable innovations in criminal jurisprudence since trial by jury [emphasis addded].


The article, “Drug Court turned justice system on its head – and it worked”, published in the Olympian on Feb. 29, 2012, by Chief Proscuting Attorney Jon Tunheim for Thurston County Washington, came across my desk some months ago. I was stunned by the force and conviction of the writer, And while plaudits for Drug Court and its progeny, collaborative courts, are not unique, the clarity of his vison and the historic nature of the statement make it very special. I commend this article to you and encorage you to make copies and share it with friends and colleagues. It is a reaffirmation of the historical importance of the probelm-solving court, as we look to expanding it into the realm of sentencing systems:

Drug Court turned justice system on its head – and it worked

Jon Tunheim, Prosecuting Attorney, Thurston county, Washington; 2/29/12

Sometimes, I wonder how the idea for a drug court originated. I wonder about this because the creation of drug courts in the United States is, in my opinion, one of the most remarkable innovations in criminal jurisprudence since trial by jury[emphasis addded].

Why was this idea so revolutionary? One of the cornerstones of our justice system is that it is adversarial. In other words, it resolves disputes by allowing parties to present evidence and argue their case in an adversarial setting. In the end, legally speaking, someone “wins” and someone “loses.” The adversarial system, in my view, continues to be the best way to resolve legal conflicts, particularly when the conflict is about facts.

But many years ago, when Janet Reno was a district attorney in Florida, she or someone in her office suggested that perhaps we don’t need to use the adversarial system for cases where the facts aren’t really in dispute and the criminal behavior is linked to addiction. Instead of using a slow and expensive adversarial system, perhaps we create a court that is collaborative – where everyone is working together to help the person overcome their addiction and thereby prevent future criminal behavior. This idea was revolutionary because it challenged one of the fundamental principles of our justice system. I can only imagine the reaction of some lawyers to the thought of abandoning the traditional adversarial process and creating a collaborative court.

I wonder if the person who first had this idea had any notion of how successful and how important drug courts would become in the criminal justice system. The data gathered over the years is remarkable. In our own Thurston County Drug Court, only 13 percent of those who have graduated later committed another felony. In comparison, 72 percent of those who were eligible but declined to go through Drug Court went on to commit another felony. Even more surprising, those who start Drug Court but are terminated are also less likely to commit a new crime. We estimate that Drug Court has saved Thurston County taxpayers well over a million dollars of jail costs and several million dollars in societal costs for drug-free babies born to participants in the program.
Nationally, experts estimate the return on investment for an average drug court is about $2.23 for every dollar spent. Even more remarkable is the return on investment increases to as much as $3.36 for participants who are at the highest statistical risk of committing more crime. Drug courts are not just an effective way of lessening addiction-driven crime; they are also a significant long-term budget saver.

The success of drug courts over the years led us to try this collaborative model of justice for cases involving other issues that contribute to crime. Examples include mental health, veterans courts, and DUI courts to name a few. We continue to look for other new ways to use this problem-solving court model as a way to reduce recidivism.

I wonder if the person who first thought of collaborative problem-solving courts had any idea how many lives would be saved. I wonder if they considered how many people would see loved ones pull themselves out of addiction and into recovery. I wonder if they even considered how much money would be saved over the years. It truly was an idea that changed the criminal justice system forever.

Early Conservative Support for Drug Courts

June 11, 2013

Screen Shot 2013-06-11 at 11.00.53 AMRichard A. Viguerie, a leading conservative figure, argues for Prison Reform, in an OP ED piece in the New York Times  (click on image on the left for article). He argues that “Conservatives known for being tough on crime should now be equally tough on failed, too-expensive criminal programs. They should demand more cost-effective approaches that enhance public safety and the well-being of all Americans”.

While it’s wonderful that the conservative movement appears to support Prison and Sentencing Reform, the law enforcement community and its conservative allies provided key support for alternatives to prison (read: Drug Court)  as early as the mid 90’s.

I had the opportunity to observe this phenomenum up close. While I found limited local law enforcement and conservative support for Drug Court in the early 1990’s, the environment began to change by 1994. When I returned to D.C., as the President of the newly formed National Association of Drug Court Professionals (NADCP), the political climate had changed, but not necessarily for the better.

The Republican party had taken over the Congress in 1994, and it wasn’t clear that funding for drug courts written into the budget by the Clinton administration would survive. It would take support for drug courts from key republican committee chairs and  members, to fund the nascent drug courts. This could be described as  a critical point in the drug court movement’s development, when this new innovation could have easily faltered without adequate funding.

I saw my job, as NADCP’s President, to encourage and provide support to drug court judges, D.A.s and others who were willing to visit their Congressional members, both in D.C. and at home. It was their job to convince those Congressional leaders that drug courts worked and deserved federal funding. I contacted Drug Court judges from key states with Republican Chairs or influential congressmen, I encouraged drug court judges to visit D.C.and meet with  congressional members, and I made sure that visiting judges had talking points and other information to rely on in private conversations.  I had no idea how successful a strategy that was to be.

It turned out that the judges (especially) liked to work the halls of congress and were more than willing to move to the fore in supporting drug court funding and visiting with their members of Congress. Many a judge went to school or belonged to the same social circle or clubs as our state and congressional  leaders. Drug Court Judges invited their congressmen and local political leaders to visit their drug court (preferably at a graduation, when they would be given the opportunity to speak at the ceremony, before the media).  Many of the important Committee Chairs had drug courts and drug court judges from their jurisdictions advocating for drug court funding. And it didn’t matter much whether they were democrat or republican, liberal or conservative.

While many a new program died that political season, drug courts received there first ever federal funding from a Republican controlled Congress.






Byrne Grant Funding; Then and Now

June 3, 2013

circa 1990“The Justice for All Reauthorization Act of 2013” (further described in the Facebook article on the right), would, if enacted, require localities to include representatives of a number of different professions, besides traditional police and custodial agencies,  in distributing the largest federal grant earmarked for public safety, known as Byrne JAG grants. As part of the Omnibus Crime Control and Safe Streets Act, Byrne Jag grants provide funds to state and local governments for criminal justice purposes.

Byrne Grants have been around for a long time. As an example of how important these funding streams can be to nascent (and even an established specialty court program), I will describe my personal experiences with the state-wide California Criminal Justice Task Force, tasked with distributing Byrne grants statewide (on the left, a much younger me; circa 1991)

In 1991, I was casting about for funds to support the nascent Oakland drug court. I learned that the federal government distributed hundreds of millions of dollars to California through Byrne grants, and that rehabilitation and treatment of criminal offenders came under one of the discretionary purposes of the Act. I also learned that both local and state wide law enforcement were  committed to keeping the funding for themselves. I began to attend yearly hearings held by the statewide Criminal Justice Task Force to request that drug courts be funded. At that time, the Task Force was made up almost entirely of law enforcement professionals The first time I stood to speak at a hearing held in Oakland, I got a puzzled look from the members of the Task Force. But I went back the next year and the next, and encouraged others to speak for drug courts at similar hearings held around the state.

Finally, the Director of the Governor’s Office of Criminal Justice Planning (OCJP), who also chaired the Criminal Justice Task Force nominated me to be a Task Force member (perhaps as a means of keeping me away from the podium). At that time, few, except those in law enforcement seemed to know  when or where the meetings were to be held (although I am sure the official notices of the meeting could be found in some obscure publication). I sent my own notices to those who supported drug court: judges, legislators, county officials, criminal justice and treatment professionals, and many who were interested in starting a drug court in their jurisdiction.

As you can imagine, there was a flood of speakers over the next several years appearing and speaking out for drug courts. As a matter of fact, I would venture to say that at least half of the speakers attending meetings while I was on the Task Force, were there to support drug courts. What followed was a $500,000 grant to statewide drug courts in 1995 and two  one million dollars grants to follow.  When I returned to California from D.C. in 2002, the number of California drug courts had increased from four to over 150. While there were obviously other reasons for the explosion of drug courts in California, the start up Byrne funding was clearly an important funding source to the nascent field, and also a symbol to all that drug courts were here to stay.


UN Conference On Drugs Planned for 2016

November 27, 2012

 The UN General Assembly Approves Resolution Presented by Mexico on International Cooperation Against Drugs

from the Mexican Foreign Ministry’s Press Page:

  • The resolution incorporates the proposal from the President of Mexico to hold a UN General Assembly Special Session on drugs
  • It was co-sponsored by 95 countries including various countries in Latin America and the Caribbean and in the European Union, as well as Japan, China, Australia, and the United States

The Foreign Ministry is pleased to inform that the 67 UN General Assembly unanimously adopted the resolution presented by Mexico on international cooperation on the global problem of drugs.

Ninety-five United Nations member countries sponsored the draft resolution including various countries in Latin America and the Caribbean and in the European Union, as well as Japan, China, Australia, and the United States.

The proposal of the President of Mexico had the support of the presidents of Guatemala, Colombia, Costa Rica, Belize and Honduras and was supported by the Ibero-American Summit, which recently took place in Cadiz.

The resolution incorporates the proposal of President Felipe Calderon, formulated during his speech in front of the UN General Assembly this September, on the necessity of holding a General Assembly Special Session to review current policies and strategies to confront the global drug problem. The session will take place at the beginning of 2016 after an intense preparatory process which will begin next year.

The last UN General Assembly Special Session addressing the issue of drugs took place 14 years ago, in 1998, also at the initiative of Mexico.


Systemic Approaches to Sentencing: Part 4

 April 23.2012

Judge-Driven Sentencing Systems: Part 4

Sometimes it’s important to restate the obvious. The courts are the traditional place for sentencing and monitoring the supervision of offenders under their jurisdiction. Judges have husbanded those powers like no others. It’s therefore somewhat disquieting to find some states turning sentencing jurisdiction over to other agencies of government, even ones that are considered partners within the criminal justice system.

Nearly twenty years ago, when “Drug Courts: A Judicial Manual”, was published (JTauber, California Center for Judicial Education and Research,1994), it was noted that future drug courts (and ostensibly other courts modeled after drug courts) would need  to create fully integrated systems centered on the court, to create  the next generation of effective drug courts.

But even in a system built on collaboration and partnership, it was noted that “The courts stand in a unique position among service agencies; they are at the fulcrum, where agencies meet. Participating agencies are used to working closely with or under the supervision of the courts” (p.29).

Two decades later, whether applied to drug abuse or recidivism, those words hold true. Drug Courts and other special courts have proven the efficacy of judge-driven problem-solving courts.  Handing over sentencing and/or monitoring of community supervision to probation or parole, custody or community-based agencies, isn’t smart or efficient, or cost-effective. Special Sentencing Courts need to work closely with their criminal justice and community partners, but also need to remain the focus of that circle of intervenors, retaining final control over the sentencing and supervision of the felon.

The next segment will look at the importance of creating  sentencing tracks.

Cal Parole Reentry Courts Start-Up

Dec. 14th

The California Parole Reentry Court Project is an exciting California pilot program offering court –based rehabilitation, monitoring, and reintegration services to parole violators. It is a state wide statutory pilot project, set up in six counties, working with parole violators, with histories of substance abuse and/or mental illness, who are at high risk of reoffending.

In 2009, the legislature passed, and the governor signed Senate Bill 18, Sec.49 granting Superior Court Judges jurisdiction over parole violators for the first time. (Penal Code 3015).

The actual structure of the six pilot projects, has been the subject of extensive negotiations by the California Administrative Office of the Courts (AOC) and the California Department of Corrections and Rehabilitation (CDCR) over the past six months. Those negotiations resulted in an MOU between those state agencies on December 1, 2010. Even so, counties  have major discretion to develop their own individual programs. For example,  parole officers may refer parole violators to the program, but the Parole Reentry Court Judge may reject them if they do not meet eligibility criteria set  by that county.

The six county projects  funded through a Federal Recovery grant administered by the California Emergency Management Agency (Cal EMA) receive approximately $10 million for for the project, slated to end September 30, 2012.

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