Vision 4: Throw Out Violent Offender Limitations

Sept. 30, 2014

I spent the summer describing alternative justice systems that exist around the world and how they often are community based ( described as “Restorative Justice” in the U.S). I’ve begun a new series on “Alternative Visions of Western Criminal Justice Systems”  that seeks to show how traditional community-based systems can exist alongside current Western systems of criminal justice and improve our current systems by doing so.Screen Shot 2014-09-29 at 3.00.33 PM

IT was May of 1996, and NADCP was having its first annual Conference in Washington D.C.  As NADCP’s founding President, it was a very big deal, and we had some of the top politicians in D.C. attending. Among them was Senator Joe Biden, now Vice President (then former Chairman of  the Senate Judiciary Committee). I remember talking to him about the federal legislation recently passed by the Congress while he was Judiciary Committee Chair (The Violent Crime Control and Law Enforcement Act), that limited Drug Court funding to nonviolent offenders.

I tried again (this had been a running dialogue with the Committee) to convince Senator Biden that restricting drug court participants to non-violent drug offenders would unnecessarily exclude those who need intensive supervision and treatment the most, who otherwise were on their way to prison or a long jail sentences. His response was that I was pushing too hard, that we would get there eventually, but that we should be content with getting help for those whose “rehabilitation the public will support”.

The need to go slow, and avoid violent offenders remains a serious weakness in many Community-Based Courts across the nation. It can be upsetting to visit or sit in as a visiting judge in a Problem-Solving Court made up substantially of middle class, educated, mostly white offenders, when others who are high risk/high need are passed over because of a prior conviction for a  violent offense. What’s worse is that while many in a drug court program are drug involved, the scientific research suggests that a majority would not be assessed as drug dependent (or addicted).

It’s hard to accept the notion that serious drug-dependent offenders are denied access to the highly structured and monitored Community-Based Courts because they have some history of violence . They are  exactly the demographic that would gain the most from intensive alternatives to prison. The scientific research (particular, out of the University of Cincinatti) all point to a slight increase in criminality for low risk offenders, while high risk offenders reduce their recidivism substantially, when provided with intense supervision and rehabilitative services. We need to take the next step and accept the challenge of making high risk/high need offenders primary participants in our  community-based court programs, without regard to their history of violence. As then Senator Biden suggested, we need to make the serious drug dependent offender a new population whose “rehabilitation the public will support”.


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. 10 in a Series: 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. 8 in a Series: Finding Success in the English Based Court Systems

July 28, 2014

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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 in a Series: Accomplishing Drug Court Reform without Drug Courts

July 25, 2014

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

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

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

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



No. 5 in a Series: Village Based Restorative Justice; Ifoga

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July 7,2014

Above, a Somoan Matai (or family elder) makes a supplication to the victim’s family to accept the wrongdoer’s apology and the family’s restitution in the form of food and valuable mats.

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

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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?




No. 3 in a Series: Primitive Communities Rely on Community Control

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From the article, “BUILDING TODAY’S COMMUNITY BASED DRUG COURTS”, (first published online, 2005), this observation  discusses the success of the drug court in terms of its ability  to emulate “traditional community”.


Primitive Communities rely on Community Control

Since the beginning, humans have lived together in “communities”. Primitive communities relied on ”Customary Law” (or what is sometimes called the ”living law”, as it was recognized and accepted by all those living in that community). The ‘norms of conduct”, “were enforced not by any leadership of the community but rather by the whole.” (H.Stuart Madden, The Cultural Evolution of Tort Law, 37Ariz St LJ 831, p835).

Those early communities provided the tools to support acceptable behavior, using affirmation, status, and other tangible and intangible rewards to encourage conformity to societal norms.  And the community also relied heavily on what we would today call “alternative sanctions”, to correct an individual’s anti-social behaviors. This “traditional” sanctions” approach to misbehavior included admonitions, shaming, restitution (often the family’s responsibility), corporal punishment, shunning and finally banishment from the “community”.

To this day, Aboriginal communities use shunning and in extreme cases banning from the group, when persons refuse to follow community norms, resulting in destabilization in the community.  [It’s interesting to note, that as in the drug court model, the Aboriginal community is more interested in the restoration of a peaceful community than the strict identification of the party at fault.] (Id, at p.836).

Finally, the group typically welcomed the reformed miscreant back into the community when the behavior was corrected.  The “community” couldn’t afford to waste an individual’s contribution to the community.  Keeping the individual stigmatized created an unhealthy separation from others and prevented a healing within the community. It made far more sense, to return the outcast to the bosom of the community as soon as possible.



No. 2 in a Series: Drug Court Graduation As Community Ceremony

June 16, 2014

From the article, “BUILDING TODAY’S COMMUNITY BASED DRUG COURTS”, (first published online, 2005), this observation  discusses the success of the drug court in terms of its ability  to emulate “traditional community”.


Community or its absence pervades everything we do.  It controls our behavior through a socialization process that begins almost from birth.  Where it seriously deteriorates, “niche communities” fill the void, and can prove to be as destructive as the gang cultures of L.A., as uplifting as the church choir or as potentially beneficial as the “drug court community”.

Envision this scene.  Somewhere in a courtroom in America, a Drug Court Graduation is being televised. The full complement of judges sitting en banc; the county sheriff, the mayor and city council members shaking hands with former addicts who a year before had been selling drugs on city streets; a celebrity speaker at the dais; sheriffs deputies rubbing shoulders with the families of drug court participants; graduates sharing a non-alcoholic beverage and cake with police officers at a post graduation party.

At least in part because of media exposure to Drug Court (and graduations in particular), the general public and the media in particular have come to see the drug abuser as worthy of compassion and, when successful in treatment, even something of a heroic figure. In packed courthouses across the United States, mayors, police chiefs, governors and chief justices, stand shoulder to shoulder with former substance abusers and applaud the graduates of their community’s drug court. We can view such a scene as an example of the media’s penchant for happy news, or it may be something more…

I was one of the judge’s sitting as a guest of the Boston court in the scene described above.  I couldn’t help but feel the power in the human drama unfolding before me.  There was more here than a simple ceremony dramatizing the reform of a drug abuser. Although I had seen similar ceremonies in many courts across the United States, and felt the same sense of awe, inspiration and hope, this time I sensed something different.

I felt like I was observing a primitive ritual, as old as the hills. Today, I understand I was witnessing the power of community to effect change in the individual (and help heal the community itself). Drug courts may be tapping into a powerful human need, to be accepted by one’s community, as well as the community’s need to make itself whole by reintegrating the reformed outcast back into society. After that experience, I began to look for other signs of community behavior in Drug court and other problem solving courts. As you read on, you will realize, as I have, they aren’t hard to find.