COMMENTARY: PRISON CORPS. MOVE IN ON “ALTERNATIVES TO PRISON”

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Daily Beast article; 12/27/15

PARTS II: ARE GPS BRACELETS AN ACCEPTABLE ALTERNATIVE TO INCARCERATION?

This is an introduction  to an issue which has been brewing within the criminal justice system, but only now is reaching the general public: What do GPS bracelets accomplish and should they be a mainstay of “alternatives to incarceration programs”.

One of the two biggest suppliers of GPS bracelets is the Private Prison Goliath, the GEO Group, which is positioning itself to survive any significant reduction in nationwide imprisonment (through its recentky acquired subsidiary, Behavioral Interventions).

For many politicians, GPS bracelets that provide the location of “supervised” individuals are the future of “alternatives to incarceration”. But many observers feel that an alternative to incarceration should have a substantial rehabilitation component, which GPS bracelets themselves do not provide. Civil libertarians argue that before GPS bracelets were available, an individual’s right to privacy was less likely to be compromised (making the point that the government is engaging in classic “net widening”;  ultimately interfering  in the lives of more individuals, and at a  more intense level).

Many argue that leaving individuals in there own homes is no guarantee that criminal activity will not continue or that the individual may remove the device and walk away. My concern has been more limited, that in regards to drug use or sales, leaving an individual at home to use their drugs or supply others, is foolhardy (and certainly provided no incentive in itself to reduce or eliminate drug abuse).

[For a fuller description of the controversy surrounding the use of GPS bracelet devices, see the Daily Beast article, "Here's what the World Will Look Like After Mass Incarceration", by Sarah Shourd".] 


PART 1: PRISON CORPS. READYING SELVES TO PROVIDE “ALTERNATIVE TO PRISON”

There has been a recent outcry from politicians who have only recently joined the “Alternatives To Prison” Movement to close down existing private prisons. The call for closure is based on well-documented cases of abuse and neglect at the two major Private Prison Corporations, Corrections Corporation of America and the GEO Group.

While the call to close private prisons appears to be succeeding, private prison corporations are hardly closing up shop. They are merely moving on to greener pastures in the “Alternatives to Prison’ Reform Movement”.

In an article from Bloomberg Business, Matt Stroud describes What Private Prisons Companies Have Done to Diversify in the Face of Sentencing Reform” Mr. Stroud’s answer is that they are investing in offender rehabilitation services or Alterenatices to Prison Programs. It seems ludicrous for these predator corporations to be making such a move, but it has already begun.

According to the Bloomberg article, “GEO Group in 2011, acquired Behavioral Interventions, the world’s largest producer of monitoring equipment for people awaiting trial or serving out probation or parole sentences. It followed GEO’s purchase in 2009 of Just Care, a medical and mental health service provider which bolstered its GEO Care business that provides services to government agencies.  “Our commitment is to be the world’s leader in the delivery of offender rehabilitation and community reentry programs, which is in line with the increased emphasis on rehabilitation around the world,” said GEO chairman and founder George Zoley during a recent earnings call. Brian W. Ruttenbur, a managing director at CRT Capital Group’s research division, says that neither GEO or CCA will be significantly hurt by sentencing reform in the near future.”

One has to wonder what beneifits will befall our communities if these giant corporations are allowed to do business in what has traditionally been a relatively small scale community-run endeavor. As to whether state or local government will buy into the “Mass Alternative to Prison Industry, is yet to be determined.

 

 

Santa Clara Realignment: A Collaborative Court Model

 

The Santa Clara Realignment Model: This model builds on a comprehensive collaborative court system, well established in Santa Clara County over the past fifteen years.  It probably is closer to an evidence-based “Court-involved Realignment Model” than any other in California. Conceptually, the Model attempts to use the reentry court to separate the high risk offenders (many with histories of violence),  from the felons who pose little threat to the community.[click on image on the left for the 2011 Santa Clara County Public Safety Realignment implementation Plan]

Under the leadership of Judge Stephen Manley, Santa Clara County has  been able to expand and provide coverage beyond drug offenders to veterans,  the mentally ill, parolees and other criminal justice populations, working with over 2000 offenders a year. It was natural for  Santa Clara County’s Probation Department to work closely with the county’s Collaborative Court System to assist both supervision and rehabilitation of AB109 Realignment participants:

1. Offenders sentenced as felons under 1170H, (known as triple nons; non-violent, non-serious, non sex-ofenders) are assessed early in the process,  so that twelve sentencing judges can determine high risk offenders who need the special attention  of the reentry court.

2.Probation often refers parole violators (triple nons released from prison on Post Release Community Supervision; PRCS)  to the Parole Reentry Court for closer supervision and rehabilitation, even before filing a petition to revoke.  Using a retired treatment judge as the AB109  Revocation Hearing Officer, the Court retains PRCS offenders for special attention, while referring others to the Parole Reentry Court or other alternative to jail (if not to jail itself).

3. Finally, parolees supervised by parole officers, are turned over to the Parole Board for revocation hearings and sanctions (to be taken over by the Realignment Revocation Officer come July 2013). Parole currently sends a significant number of high risk parolees to the Parole Reentry Court  for supervision and rehabilitation services.

There are over 200 AB109 participants among the three categories of AB109  offenders presently being supervised by a reentry court (with some estimating the number to double over the next year).

The 2012 Santa Clara County Realignment Implementation Plan is expected to be submitted to the Board of Supervisors shortly.

[published in October, 2012]

 

 

 

 

San Joaquin County: A Hybrid Realignment Model

The San Joaqun Realignment Model: The Probation Department takes the lead in assessing, reporting, monitoring, supervising, and rehabilitating offenders. A probation based system where the court plays a key supporting role. The court  reduces its footprint, by dealing mostly with those cases and individuals where it will have the most impact, only directly involved when the offender has committed a substantial supervision violation [click on image on left for 2012 Report]

 California’s Realignment Mandate (under AB109)  is to move prisoners and prison offenses from state institiutions to county supervision. The Head Probation Officeer of the County, is by statute, Chair of the Communtiy Corrections Partnership, responsible for setting up a countywide AB109 sentencing system.

The courts are free to follow their traditional role of sentencing offenders to prison (even though most will serve their terms in county facilities) and dealing with revocations when they arise. By my reckoning the  majoirty of counties are following that conventional approach (resulting in widespread expansion of jail facilities across the state).  At the other end of the spectrum are counties who are creating comprehensive court-based sentencing systems, that to the extent possible, are involved with the offender from the time of plea through sentencing and community supervision ( Santa Clara County, works with over 2,000 participate in its Comprehensive Collaborative Court System).

Somewhere in the middle of that spectrum, between the conventional hands off approach and the comprehensive court-involved system, is San Joaquin County.  San Joaquin County is in dire financial circumstances, with a population of approx.700,000 (400,000 in the city of Stockton alone) with a serious drug and gang problem. It doesn’t have the financial resources that would allow it to develop a more Comprehensive Court Sentencing System.

Instead San Joaquin county is creating a hybrid sentencing system, that combines the more traditional sentencing/probation model,with intensive court-based interventions when its community corrections system requires it. The conceptual heart of the San Joaquin model is that the court is there to assist, motivate, and serve the community-wide reentry process, not to drive the process.

Under the leadership of newly appointed Probation Chief Stephanie James, the Communtiy Corrections Partnership has taken the  lead in creating a framework for the sentencing system. A county- wide probation-based plan was approved by the County Board of supervisors on Sept.25, 2012. [click here: San Joaquin County Public Safety Realignment Plan]

The Court already has a substantial and successful collaborative court presence, with at least five existing collaborative courts (Parole Reentry Court, Drug Court II/Proposition 36, DUI Drug Court, Dependency Drug Court, among others).  While the court could be involved earlier and more intensively (as with its drug courts), it instead limits its reentry interventions to those cases and individuals where it will have the most impact.

The court receives pre-plea assesssments and sentencing reports from Probation, but in most cases does not become directly involved in the offender’s supervision, until their is a substantial violation. Along with an existing Parole Reentry Court (for parolees with parole violations), a Post-Release Supervision Court  (Compliance Court) is planned for  those felons who have serious drug problems that result in supervision violations, as well as, a Violent Offender Reentry Court for those high-risk violent offenders who have violated their Supervision. This Hybrid Realignment Model is an alternative to a comprehensive Court-Based Sentencing System [see: "A Model Court-Based Sentencing System"].

[published; October, 2012]

San Francisco Realignment : A Well Resourced Traditional Model

The San Francisco Model: San Francisco has adopted a model that places almost all the responsibility for AB109 realignment participants on social services, criminal justice, and community agencies. The courts have almost no role in this model, except for the court’s tradition adjudicatory role of sentencing offenders and hearing revocation petitions.The City & County of San Francisco Public Safety Realignment & Post-Release Community Supervision 2012 Implementation Plan was passed on June 1, 2012. [click on image on the right , for a copy of the plan]

The San Francisco Model is one that clearly takes a community based approach to felon rehabilitation, with the city and county of San Francisco providing special resources to deal with the offender. San Francisco has a large, highly experienced and educated cadre of intervention specialists, both in the community, as well as in social service, public health and criminal justice agencies. They are using the court in a strictly traditional fashion, solely in its adjudicatory role. (Interestingly, as of March 30, approximately 2/3 of felons sentenced for new offenses under 1170H of the Realignment Statute, were sentenced to jail, without community supervision)

Probation has taken the lead in developing the Implementation plan, as is required by statute, with Chief Probation Officer Wendy Still chairing the Community Corrections Partnership. Prisoners returning to the community under Post Release Community Supervision (PRCS) are pre-assessed at their prison facility approximately two months before returning to San Francisco. Once released under PRCS, offenders are screened at Probation’s new Community Assessment and Social Services Center, a one stop hub, where participants have their housing, drug and alcohol treatment, health, psychological, job, education, and other needs assessed and allocated. Probation has also  created a special team to provide supervision and case management to the participants.

The Sheriff’s Department  has the resources to assess and provide additional services to AB109 felons in custody.  A special Realignment Pod is being prepared for participating felons.There are plans for prisoners to be returned to the jail two months before their prison term ends, for a pre-release process to prepare the felon for release into the community..Similarly both the Public Defender and District Attorney’s Offices  have resources to work with this special population. Finally San Francisco has a wealth of non-profit and other community organizations that are enthusiastic about assisting the reintegration of this new population into the community.

The San Francisco Realignment Plan is a traditional realignment plan in regards to the role of the court, relying on the community itself and relevant government agencies to successfully rehabilitate those placed in jail as felons under 1170H,  or those returned to the community under PRCS. What makes this plan noteworthy, is the commitment of the community and the resources available to accomplish their mission.

[published; October. 2012]

 

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.

 

 

 

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.

Cal Prison Report shows Post-Realignment arrests down

May 20, 2013

Screen Shot 2013-05-20 at 3.23.14 PMA new study conducted by the California Department of Corrections and Rehabilitation (CDCR) shows that arrests post-realignment are down compared to pre-realignment. Among the finding released in the report (click on image on the left for PDF of report):

•    Post-Realignment offenders were arrested at a lower rate than pre-Realignment offenders (62 percent pre-Realignment and 58.7 percent post-Realignment).
•    The rate of post-Realignment offenders convicted of new crimes is nearly the same as the rate of pre-Realignment offenders convicted of new crimes (21.3 percent pre-realignment and 22.5 percent post realignment).
•    Post-Realignment offenders returned to prison at a significantly lower rate than pre-Realignment offenders, an intended effect of Realignment as most offenders are ineligible to return to prison on a parole violation. (42 percent pre-Realignment and 7.4 percent post-Realignment)

A Federal Drug Court Funding Restriction

May 6, 2013

Screen Shot 2013-05-06 at 9.52.21 AMA distinctive article, written by Harold Pollack, Eric Sevigny and Peter Reuter, and published in the Huffington Post was reviewed on this website last week (The Trouble with Reentry Courts…). It described how drug courts, while reaching half of U.S. counties, don’t work enough with the  population in greatest need, the high risk drug offender or serious offender with a dependence on drugs and/or alcohol. A recent proposal from the Bureau of Justice Programs (BJA)  and the Substance Abuse and Mental Health Services Administration (SAMHSA) may unintentionally institutionalize that unfortunate circumstance.

The most striking  feature of that proposal is  a restriction that has only been part of the Drug Court Funding Program since 2012: “Note: Applicants must demonstrate that eligible drug court participants promptly enter the drug court program following a determination of their eligibility. A required initial period of incarceration will be grounds for disqualification unless the period of incarceration is mandated by statute for the offense in question. In such instances, the applicant must demonstrate the offender is receiving treatment services while incarcerated if available and begins drug court treatment services immediately upon release (click on image on the left for a PDF of the BJA/SAMSA Request for Proposal).

Knowing that drug courts are intensive programs, specially designed to work with high risk offenders, who often have serious and/or violent criminal histories, the restriction noted above appears ill-advised. We know that the Congress restricts federally funded drug court programs to non-violent offenders (42 U.S.C. 3797u-2).Only Congress can change that ill-advised restriction. To add that, those who serve a term in custody are also prohibited from BJA/SAMSA funding appears to  contradict the RFP’s rationale. From the text at page 7; “Grant funds must be used to serve high risk/high need populations diagnosed with substance dependence or addiction to alcohol/other drugs and identified as needing immediate treatment”.

This may be a classic example of unintended consequences. The relatively new provision, admirably encourages jurisdictions to reduce their reliance on incarceration as a response to drug dependence, by prohibiting drug court participants from being sentenced  to custody. Unfortunately, it may have a far greater impact on the demographics of the offender class entering federally funded drug courts.  Many drug dependent, high risk offenders, will have committed serious offenses (but not violent offenses) and have extensive criminal histories. To most judges, their criminal behaviors cry out for a custodial response. To the more enlightened , they also cry out for involvement in an intensive drug court program. What now appears to be the case, is that that an otherwise eligible drug court participant, if sentenced to drug treatment in custody, may not be transitioned into a drug court program on that same case post custody. Of course, savy, experienced drug court judges will find their way around the restriction. But the principle (so bolded) will have its impact upon the elligibility requirements of a great many drug courts.

Once again, these are the serious, high risk, high need drug dependent offenders that the research says need to be in drug court programs. In the real world, a petty thief, or car burglar, with a long history of similar crimes will almost always receive time in jail as a consequence of their current and/or past criminal behaviors. That might be a day, a week, a month , a year in county jail, or a term in state prison. Under the new grant restriction, an otherwise appropriate candidate would be excluded (unless he met the limited, mandated incarceration exception to the prohibition; see bolded text above).

This restriction will close the door to many if not most serious offenders with drug dependencies, who might face a term of custody. It seemingly  precludes a collaborative and hopefully seamless application of proven drug court practices for those individuals while in custody and upon release and transition to a drug court program through probation or parole services.. It is not an effective approach to reducing recidivism or protecting society (these folks will soon be in your community with or without the intensive supervision and treatment provided by a drug court).

An American University Technical Assistance Project Report, “LOOKING AT DRUG COURTS AFTER TWO DECADES”,  published in July of 2012, provides an important historical context. Drug Courts need to  “continually move to the more difficult populations – defendants whose drug use is fueling criminal behavior and who may have criminal histories that might have barred them from the program in the past.”

[This article is an independent analysis of 2013 BJA/SAMSA grant funding for Drug Courts; it was not written with the knowledge, consultation, or approval of any other persons or organizations]

 

 

 

 

 

Momentum for Prison Reform?

Feb.18,2013

Screen Shot 2013-02-18 at 10.46.15 AMA new article, in “Think Progress”, cites a host of authorites and experts who claIm that a burst of activity in the prison reform field, may signify a change of course in the criminal justice system. The article goes on to cite authorities such as the Wall Street Journal and the conservative website “Right on Crime” , as well as, the National Conference of State Legislatures and the progressive “Sentencing Project”. As a check on over-enthusiam, the Sentencing  Project reminds us, “25 states still had stable or increasing [prison] population” (click on image on left for Sentencing Project’s “On the Chopping Block: State Prison Closings”)

The question I posed at the beginning of the year “A New Year’s Editorial: Has Penal Reform Peaked“, continues to concern me.  The momentum for Prison And Sentencing Reform,  that “Think Progress” reports, is good news that should not be discounted, but the question remains as to whether reform will be substantial and self-susutaining. It’s important to monitor the extent of existing and proposed reform and the quality of that reform.

It should be remembered that we have been here before, and if we do not provide resources, supervision, and assistance as needed, we may find ourselves in a worse place than when this reform process began.

 

Cal satisfied with reform, though 8900 in Private Prisons

Jan. 14, 2013

Governor Brown has made his position clear. He will take the issue of whether additional prisoners should be released, back to the Federal Courts. The question to be answered is whether California has he done enough to satisfy the courts, by reducing the number of prisoners by 43,000 inmates over the last 15 months.

Governor Brown claims that medical concerns, the basis of the federal court order, have been satisfied both by medical facility improvements and  by substantial reductions in the number of prisoners.  Brown has attacked the courts as meddling with the internal affairs of California. Reform advocates on the other hand, argue that California hasn’t done enough to reduce the number of inmates, and that even a reduction by an additional 13,000 inmates as the court order demands, is only a first step in enacting necessary prison reform in California.

A related issue is the number of California prisoners in private prisons. According to a recent article in the Los Angeles Times, “State prison reports show that since November, California has been increasing the number of inmates shipped out of state. Brown last year said he intended to end the state’s contracts with private prison operator Corrections Corp. of America as a way to save money. A July research brief for the Center on Juvenile and Criminal Justice, reports that the state currently spends more than $426 million a year to buy space at prisons operated by the Tennessee-based company. (The California Department of Corrections and Rehabilitation contends the spending is much lower: $316 million.) The number of out-of-state inmates has run from a high of 10,000 in 2010 to a low of 8,500 last October. State prison population reports show it rose to more than 8,900 in late December”

 

This is a “hot button” issue for many prisoner advocates, as private prisons, located outside the state, make contact with family and community difficult at best.It remains to be seen whether the courts will lift their demand that California reduce its prison population further or whether Brown will succeed in staving off further prison reductions. But the issue of whether California has gone far enough to reduce its prison population, will continue to be a highly charged issue.

Cal Probation Chiefs hail Split Sentencing

Jan. 7, 2013

The Chief Probation Officers of Califronia (CPOC), through Marin Probation Chief Michael Daly, issued a press release arguing that the new resources made available to them under AB109, are increasing the effectiveness of sentencing and reducing recidivism while increasing the effectiveness of probation rehabilitation efforts. The press release issued 12/19/12 (escaping my attention during the holliday season). describes a recent study conducted by the James Irvine Foundation, “Mandatory Supervision: The Benefits of Evidence Based Supervision under Public Safety Realignment”

“The good news is that probation departments have been utilizing evidence-based practices before Realignment and that has helped us easily adapt to probation’s greater role in our new responsibilities,” said Marin Chief of Probation Michael Daly, “research has shown that conducting risk assessments, targeting specific needs of each individual and utilizing swift and certain sanctions actually work with this population..” ( CPOC Press Release)

But the Association also points out that  one of the most valuable new tools of the courts and probation, Split-Sentencing is being used sparingly.  The California Realignment Statute requires that a judge sentence an offender (who might have previously been sentenced to prison), to county jail, when the offense is non-violent, non-serious, or non-sexual,  The court can then sentence the offender to straight county jail time or split the sentence between jail and “mandatory supervision” ( akin to probation). This is an opportunity for judges to leverage compliance with education, job training, and cognitive therapy requirements in exchange for reduced custody or other incentives. The Probation Chiefs point out that only 23% of offenders sentenced to county jail on a prison offense were given split sentences, between Oct. 2011 and June 2012. Instead, the vast majority are sentenced  to county jail sentence with no possibility of community supervision.

While the tone of the report ad press release are positive, I believe the “Split Sentencng” issue is  serious. Courts and criminal justice systems are overwhelmed with cases, at a time when funding continues to tighten. As the probation chiefs point out, ” the inconsistent use of split sentences in counties, can limit their ability to reduce overcrowding in their jails and lead to less favorable outcomes using incarceration alone for offenders”. To my mind , the Chiefs are arguing for a more systematic sentencing structure that takes full advantage of evidence-based sentencing processes and maximizes the  leverage provided by “Split Sentencing”.

 

A Model of a Court Based Sentencing System (in full)

Evidence-based Sentencing systems      [PDF]

Judge Jeffrey Tauber; [email protected]: 9/30/12

We have developed evidence based practices for the sentencing of offenders (based on voluminous research), but are still reticent to apply those practices where they will do the most good, in making sentencing decisions. Rational approaches to sentencing that provide different levels of supervision, treatment, rehabilitation, and assistance for felons are attainable and in effect in some states and jurisdictions. [[he Diagram below is used in this article as an example of a basic evidence-based sentencing sysytem]

 Part 1: Evidence-Based Sentencing Practices

In 2009, the PEW Center for the States published an excellent treatment on Evidence Based Sentencing Practices (EBP), authored by Judge Roger Warren (ret.), President Emeritus of the National Center for State courts, “Arming the Courts with Research: Ten Evidence Based Sentencing Initiatives to Control Crime and Reduce Costs”. To summarize, nearly all sentencing courts are in essence, reentry courts (or court based reentry systems), and ought to be structured to facilitate the ultimate return of the offender to the community as a non-recidivist, productive citizen.

According to the PEW Monograph, every sentencing ought to take into account the most recent research, described as Evidence Based Practices (EBP). Those sentencing principles, (as described by the PEW Monograph) state that (1) Reduced Recidivism should be an immediate goal of sentencing, (2) Recidivism Reduction Options be available to the Court, (3) Sentencing be based on Risk/Needs Assessments, (4) Community Corrections be Evidence Based, (5)  Services and Sanctions be integrated, (6) the Court be aware of Available Sentencing Options, (7) Court Officers be trained in EBP, (8) Court responses to probation violations be immediate, certain, consistent and fair, (9) Court hearings be used to provide incentives to motivate Offender Behavior Change, and (10) the Court Promote Collaboration among Criminal Justice Agencies.

Clearly, individual judges and courts will have have difficulty implementing many of the proposed initiatives.  Only a systemic problem-solving approach is likely to successfully implement “Evidence Based Sentencing Practices”. (PEW declares as much on page two of the monograph; “the failure of mainstream sentencing policies….. has motivated  many state judges, prosecutors, and corrections officials to establish specialized ‘problem-solving’ courts over the past 20 years to reduce recidivism”). Expecting individual judges to independently develop the resources, skills, and competencies to become proficient in Evidence Based Sentencing Practices is unrealistic.

That does not mean that every court needs to have the same level of resources, staffing or sentencing options. The question for most jurisdictions is what level of Evidence Based  Sentencing Practices can they incorporate into their court, and that is appropriate for their community. A judge in a rural jurisdiction will have vastly different sentencing needs than a city with dozens of judges. And a low risk offender will have a very different relationship with the court than a high risk offender or an offender with a violent history.

Part 2: The Single Sentencing Court Team Concept:

One common feature that should define the Systemic Sentencing Model, is that the same judge and court team deal with the sentenced offender (to the extent possible), as part of a seamless supervision, treatment, and rehabilitation system, that runs from sentencing, through custody, through community supervision. The first of such systems go back more than 20 years to the dawn o the Drug Court era. It was widely understood that the sentencing and supervision of drug offenders was dysfunctional. There was little coordination in the court’s dealing with the drug offender, the offender rarely saw the same judge or court personnel twice, and there was little system accountability and therefore far too little offender responsibility and compliance ( Drug Courts: a Judicial Manual, J Tauber, California Center For Judicial Education and Research Journal, Summer 1994; click on facsimile on the left to review Section 30; on Structural Accountability)

We still live in a largely uncooperative world of competing government departments, uncollaborative programs and agencies, and weak sentencing follow-through by the courts and relevant agencies. As noted in Part 1, its unrealistic for individual courts to develop the  advanced capabilities necessary to develop evidence-based sentencing practices (“Arming the Courts with Research: Ten Evidence Based Sentencing Initiatives to Control Crime and Reduce Costs”, a PEW monograph, Judge Roger Warren, ret.).

What is necessary, is for a jurisdiction to focus a single judge and court team (or in a larger jurisdiction, a dedicated cadre of judges and staff) to the task of applying evidence based practices to sentencing courts. There is no reason to use a different approach or rationale than that developed and successfully applied to drug courts and other problem-solving courts across the nation. A sentencing court’s effectiveness ultimately depends on a jurisdictions willingness to provide a rational, system-wide, coordinated  approach to sentencing (It could be argued that much of the success of Hawaii’s PROJECT HOPE, rests on its systemic approach to felony probation supervision).

Some may feel it unnecessary for all felony sentencing and/or supervision to be handled by a problem-solving court. The advantages already described in such a system make it a very attractive alternative to the current somewhat haphazard process. What may be more surprising is the potential for savings to the court. Because the sentencing system will look to a validated risk/needs assessment tool to assist its sentencing decisions, it will be possible to create sentencing tracks for low risk/low need offenders that involve minimal resources and staff, allowing what limited resources that exist to be applied to high risk offenders with the greatest need and potential for harm.

In fact, low risk offenders may not be actively supervised by the court at all, after the individual makes a single supervision appearance before the judge after sentencing. On the other hand, a high-risk offender with a history of violence may be required to have weekly contact with the court and extensive contact with supervisory agencies  and rehabilitative programs, over an extended period of time.

Part 3: The ‘Specialty Sentencing Court” as a Problem-Solving System

 The idea that sentencing courts ought to be special and distinct entities is not a new one. There are and have been many urban jurisdictions that deal with sentencing and/or probation violations with full time specialty courts. As with the early drug courts of the 1980s, the purpose of special sentencing/probation courts is often to streamline the process and move the offender through as quickly as possible. Concern for how the offender can be best prepared for a return to community with appropriate supervision and/or treatment was and is often overlooked (“Reentry Drug Courts”, National Drug Court Institute Monograph Series, No. 3, “Reentry Drug Courts”, JTauber, circa 1999).

Existing sentencing or probation courts should have the responsibility to do more. Like other problem-solving court systems, Sentencing and/or Probation Courts need to create a bond between offender and the court, that among other things, reminds both of their obligations, one to the other. Special Sentencing Court Systems need to deliver evidence-based sentencing practices, processes too complex and demanding for even the most dedicated individual judge. ( “Arming the Courts with Research: Ten Evidence Based Sentencing Initiatives to Control Crime and Reduce Costs”, a PEW monograph, Judge Roger Warren, ret.)

The best Problem-Solving Sentencing Courts will supervise through separate tracks, as do most problem-solving courts in large urban jurisdictions. The Drug, Mental Health, and DUI Courts, though often presided over by the same judge, separate out the offender by the nature of the problem that the offender faces. Though the offender may have more than one serious issue, different problems call for different resources, information, staffing and treatment.

The Veterans Court provides a particularly good model for the Sentencing judge. The Veterans Court is able to deal with the “Whole Person”. An individual is directed to the Veterans Court because he or she is faced with a criminal case, not because they have a particular issue or problem. The Veteran’s Court is prepared to deal with any and all issues facing the Veteran. To that extent, the Veteran’s court is a particularly good model for a “sentencing court”. The Veterans court mets out appropriate responses, as  a sentencing courts should,  dealing with many different issues, and providing the appropriate supervision and services as required.

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.

Court Monitoring of Sentence Tracks: Part 5

Courts can deal effectively with all their sentenced felons, by developing comprehensive “evidence-based sentencing systems” (see Arming the Courts with Research: , Roger Warren, Pew, 2009). Traditionally, we classify, categorize, and sort felons into appropriate groupings at every step of sentencing process. The Sheriff decides an inmate’s housing category. The probation departments recommends whether a probationer should be intensively monitored or placed in a banked case load. The court determines whether a felon is to be placed on probation or sent to prison.( Development and Implementation of Drug Court Systems, JTauber, NDCI,1999)

Today’s problem-solving courts have led the way in in the use of assessments (and other evidence based sentencing practices)  to improve our sorting or categorizing and thereby our sentencing outcomes. The court and its systemic partners determine if an offender needs special rehabilitation, treatment, or education as part of the sentencing process. So a DUI offender with a third offense might require a residential alcohol treatment program, the domestic violence offender, an extensive series of violence reduction classes, and the drug offender, completion of an appropriate drug treatment program. In each instance, the court will continue to monitor the offenders at progress report hearings until the relevant conditions of probation are completed.

To optimize the effectiveness of a sentencing court’s monitoring of all felony sentences (see:Systemic Approaches to Sentencing: Part 3), we now use a more comprehensive process, a validated risk/needs assessment, to sort the offenders into appropriate tracks.  A felon is  determined to be a low, medium, or high risk offender. Depending on that determination, an individual is placed in different probation, treatment or rehabilitation tracks, with  the court actively monitoring those tracks on a regular schedule over the term of probation (and in some cases parole).  In effect, a “special sentencing team”, led by the sentencing judge, follows all offenders placed in sentencing tracks,  as they move seamlessly through sentencing and custody (where ordered)  and into the probation process.

It should be remembered, that though all felons are categorized and placed in tracks, that very process is intended to increase the court’s effectiveness, by limiting the court’s contact with the low risk/low needs offenders. If the sentencing court is to effectively deal with all felons, it will need to distinguish between those who require the court’s attention and those that are best left alone. Substantial savings in time, staffing, and resources lie in the court’s effective and appropriate tracking of  sentenced offenders.

The Components of the Sentencing Track: Part 6

Diagram 1 represents two separate segments. The first ( “Plea” arrow to “Custody” arrow) focuses on the need to 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/diversion participants than with high risk/violent offenders (as a different team skill set would be required for Drug as opposed to Domestic Violence Court).

We know from the scientific literature (“Understanding the Risk Principle”), that mixing low and high risk offenders is counter-productive at best. That same dynamic works in the court room. 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 corollary to that proposition is that it may be more economical to work with offenders from different sentencing categories (probationer, parolee, divertee, etc.) where the more important and relevant issue is there problem issues and reasons to recidivate, and/or criminogenic needs.

The second part of the diagram (from “Front End Jurisdiction” to 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 (see: Front Loaded Court Based interventions).

Decision Making in a Sentencing System: Part 7

The diagram a the beginning of this article, represents the first half of a sentencing system envisioned, allowing us to take a closer look at decision making in an evidence based  sentencing system (Systemic Approaches to Sentencing: Part 6):

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.

 As described in the demonstrative Diagram, the following evidence-based tracking system is offered for your consideration:

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 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 to  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 or graduation (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 prosocial activities for at least 40 hours per week (for at least 90 days)

On the far right is an article regarding an election between three candidates competing for Drug court judge in Fayetteville Arkansas (click on: Washington county).  When I started the Oakland F.I.R.S.T Drug court in 1990 (Fast Intensive Rehabilitation, Supervision and Treatment), there was no one to compete with because no one knew what a drug court judge did. When they learned what the job entailed, few were particularly interested in being one.  Today there are over 2,644 Drug Courts (and drug court judges) and an additional 1099 Problem-solving courts in the U.S.

From those numbers, it would appear that we’re on our way to a future dominated by Problem-Solving courts. While it’s true that states are building new Problem-Solving Courts, but they’re also severely limiting the number of participants. It is estimated that no more than two percent of all felony offenders who are sentenced enter into a problem-solving court.

To have a real impact on the criminal justice system, we will need to deal with all sentenced felony offenders (and perhaps some misdemeanors). Doing that will require a very different sentencing model than exists today. All convicted felons would need to go through a validated risk/needs assessment to determine their level of risk to recidivate and consequently the intensity of supervision and treatment required. Because we can predict with greater accuracy who are the high risk offenders, we can concentrate our resources on those individuals. Of course, the corollary is that the low risk offender would receive little or no supervision or treatment, as science tells us that the alternative would only increase their level of recidivism.

I am referring to an ”evidence-based sentencing system” that would engage those offenders that require it and leave alone those who do not. A very selective and cost-effective model that has been tried in a very few jurisdictions, and has the promise of revolutionizing the sentencing process. We are entering  new era, ultimately far more important than the one begun 20 years ago.   It will be critical to keep our eye on the goal of systemically working with all felons and not just drug-offenders. And to accept the challenges posed of providing  evidence-based sentencing systems for all.

Reducing Prison terms through Front-End Sentencing: Part 8

The diagram at the beginning of this article, also represents the second half of a sentencing system envisioned, allowing us to use an evidence-based sentencing system as a means to keep serious (but non-violent) offenders from serving long prison terms  (Composition of a Sentencing Track: Part 6).

As described in previous articles (see: Front-Loaded Court Based interventions), 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 a non-systemic fashion, with individual judges operating on their own.

“Front-End Systemic Approaches” to long prison terms described here, (compare: Decision Making in a Sentencing system: Part 7)  presents 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 described. The flexibility inherent in a three tier front end/early intervention system is impressive, as is its ability to respond to the safety of the community and the needs of the offender:

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.

Evidence-Based Sentencing Systems are Cost-Effective: Part 9

The previous eight articles in this series are testimony to the potential of evidence based sentencing systems. Scientific and technological advances now make these systems cost-effective as well. The most cost intensive aspect of any evidence-based system are the court hearings for felons sentenced to local custody and/or supervision. There is a misconception, that in an evidence-based sentencing system, all felons would be seen in court on a regular basis (as most problem-solving courts tend to do). But science and technology has provided us with strategies and solutions that allow us to substantially reduce the need for additional court sessions and staff (the “Risk Principle”).

Validated risk/needs assessment tools developed over the past ten years allow us to determine a felon’s risk levels and how to best deal with the offender ( see “University of Cincinnati Study on Risk Principle”) We now know that intensive supervision for low to medium risk offender (involving multiple appearances before the court) actually increases their levels of recidivism. In some jurisdictions, that understanding may actually reduce the total number of court appearances, as only those who have been determined to need intensive supervision and court monitoring would receive it. Felons who are traditionally “banked” as low-risk probationers would almost certainly be excluded. Those offenders who are considered medium risk offenders might be seen by the court on a very limited basis (perhaps one court appearance after beginning their jail sentence, with a second at the start of active probation supervision and a third at the completion of successful probation supervision). Depending on criminal background, history of violence, extent of imprisonment and other relevant factors, high-risk felons would be placed in an appropriate supervision and court monitoring track. (see video at bottom of article, for interview with Reentry Court judge Jeff Tauber, on the intensity of supervision and rehabilitative track required by serious and/or violent high risk parole violators)

A more universal fiscal concern relates to the over-staffing of problem-solving courts. The fact that many courts have more than a dozen employees attending staff meetings and court sessions is a major financial obstacle to the expansion of evidence-based sentencing systems (and other problem solving courts as well).  My experience as both a drug court and reentry court judge suggests problem-solving courts are often over-staffed ( see: A Minimalist Reentry Court for Recessionary Times).

My Drug Court staffing in 1990 (admittedly a long time ago) had two persons present, the probation officer personally responsible for offenders to be reviewed, and myself. In a more recent experience on the Bench (2010-2011) , the San Francisco Parole Reentry Court operated with a staff of five; judge, program coordinator, case manager, defense attorney, and parole officer. It should be acknowledged that every problem-solving court has its own staffing requirements,  but the tools described above can also help keep court personnel to a minimum.

The development of risk/needs assessment tools allows us to better categorize probation/parole offenders, placing them in customized court tracks, limiting the court time of program specialists, to sessions where their skills are truly needed. Similarly, technology allows us to share information and communications between program personnel and staff, limiting  the need for those present in court.

Finally, even problem-solving courts with significant operating cost, have shown themselves to be cost-effective (see California Study), substantially reducing custody and other criminal justice costs, and providing enormous savings to the community as a whole. This will undoubtedly be the case for evidence-based sentencing systems as well.

Dealing with the whole person in sentencing: Part 10

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 over twenty years ago. And I am disheartened by their misunderstanding of the significance and applicability of drug court.

As described by Dr. Doug Marlow, at the 18th Annual NADCP Conference in Nashville  (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. In fact, according to Dr. Marlow, 60 to 80% of drug offenders do not need  a drug court’s intensive treatment. The majority of criminal offenders need to be treated as a whole person (not just a drug abusing person). As tempting as it may be to lock onto drug treatment as a silver bullet that works with all offenders, it isn’t an effective or cost- efficient tool for most criminal offenders (or even most drug offenders).

However that should not conclude our analysis. If you look at the scientific literature on evidence based sentencing practices, you’ll find that medium to high risk offenders have substantial criminogenic needs that need to be addressed, even if they’re not drug related.

“Criminogenic Needs” are functional impairments that if not treated, will increase the risk of further criminality. The top four such needs are a history of anti-social behavior, anti-social personality factors, anti-social cognitions/attitudes, and anti-social peers. Surprisingly, drug abuse is a second tier criminogenic need that only becomes a central concern if the offender is truly drug dependent or addicted., Otherwise, substance abuse treatment ranks  behind such second tier criminogenic needs such as family and/or marital stressors, employment and/or education deficiencies, and lack of pro-social leisure activities.

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 success in dealing with them. In essence what Dr. Marlowe and his scientific brethren have been telling us is Drug Court is not the answer to most offenders’ crimonogenic needs (although the better drug courts do not neglect them).

Certainly drug courts can be modified (as Dr. Marlow suggests) to deal with the majority of criminal offenders, whose drug usage is not a primary criminogenic need. But it should be clear to all, that doing so may negatively impact drug courts and appropriate participants  As the old saw goes, if you just treat a criminal offender’s drug abuse, you might just create a healthier criminal. Better to deal with the whole person, in an evidence-based sentencing system, where their individual levels of risk and need are determined, and the appropriate supervision and treatment responses applied to them..

Dr. Doug Marlowe, NADCP Director of Science and Law is a clinical psychologist and attorney, widely acknowledged, as the foremost authority on the science behind Drug Courts and evidence-based Drug Court systems. At the NADCP conference in Nashville, he spoke at a number of workshops, attended by hundreds of attendees and moderated a plenary panel session whose participants were a who’s who of the drug court and drug treatment field (“Reconstruction After the War on Drugs”). His two part Drug Court Practitioner Fact Sheets, Targeting the Right Participants for Adult Drug Courts  and Alternative Tracks in Adult Drug Courts: Matching Your Program to the Needs of your Clients, were the only documents included along with the conference agenda, provided to nearly 4500 attendees.

In his presentations and two part Fact Sheets he laid out a clear message for the drug court and the criminal justice field in general. Drug Courts are not for everyone. Only those individuals who are drug dependent ought to be placed in a drug court. According to Dr. Marlowe, sixty to eighty percent of drug offenders in the criminal justice system, are drug abusers, not drug dependent, and don’t belong in a drug court.

In Fact Sheet II, Alternative Tracks in Adult Drug Courts: Matching Your Program to the Needs of your Clients, Dr. Marlowe further explains that developing alternative tracks in drug courts for non high-risk offenders probably make good sense. “In some communities the drug court may be the most effective, or perhaps only, program serving as an alternative to incarceration”. He concludes, “If a drug court has such compelling reasons to serve low-risk or low-need individuals, it should consider making substantive modifications to its program to accommodate the characteristics of its participants”. The document then describes “a conceptual framework and evidence-based practice recommendations for designing alternative tracks within a drug court to serve different types of adult participants”. All of this information should be of great interest, not only to the drug court practitioner, but to those interested in evidence-based sentencing systems, that provides appropriate tracks for different offender populations. In fact, both documents ought to be closely read for their import to sentencing in general.

Evidence Based Sentencing as a Hybrid System: Part 11

Evidence-Based Sentencing Systems have been described in this series as problem-solving structures. More accurately they are hybrid courts that share the characteristics of traditional  sentencing courts as well as rehabilitative problem solving courts. While they emphasize the need for collaboration, they often start off in a traditional adversarial proceeding. This is particularly true when individuals are convicted of serious or violent offenders.

In those cases, the court correctly views their primary responsibility as protector of the victim and community. Evidence-Based Sentencing Systems, as well as more traditional sentencing courts, incapacitate the violent and/or serious felon so they cannot continue their criminal activity, sentence to deter others from committing similar acts, and provide retribution against the offender who has done serious harm to the victim and community. Prison is a probability and even a necessity for many of these serious and violent offenders.

Evidence-Based Sentencing Courts move into problem-solving mode as the felon prepares to reenter the community. In Evidence-Based Sentencing Courts, judges and their teams develop effective structures that apply to all offenders sentenced in their jurisdiction (not just the non-violent). In fact, the structure inherent in an evidence-based sentencing team is designed to hold the offender, as well as collaborating agencies and community programs accountable for their effectiveness or lack of same. At the time Drug Court and Problem-Solving Courts were first  being developed, it was noted that, “In a “structurally accountable system”, participating agencies share program responsibilities and are accountable to each other for program effectiveness, with each participant directly linked to, dependent on, and responsible to the others (J Tauber, California Center For Judicial Education and Research Journal, Drug Courts: a Judicial Manual, Summer 1994).

In other words, If evidence-based sentencing practices are employed, coordination among relevant agencies and community organizations remains essential. Sentencing tracks are required to more effectively sentence and monitor offenders with very different risks and needs. While the sentences may be very different, the same level of coordination and collaboration is required when sentencing, monitoring, and rehabilitating the serious and/or violent offenders, as it is for the non-violent offender.

Back to the Future: Evidence Based Sentencing Systems

The 12 part series on Evidence Based Sentencing Systems (see: Evidence Based Sentencing Systems) concludes as it  began, with an admonition to recognize that technology and science have changed the nature of the sentencing process, What is needed is a more comprehensive and systemic approach that recognizes the advances made in sentencing, from risk/needs assessments and cognitive behavioral therapies, to the development of hybrid sentencing sysems that employ traditional as well as  problem-solving practices.

We need to look beyond conventional responses to criminal behavior, acknowledging that our over-reliance on imprisonment  has been a tragic mistake. The science and research advances of the past ten years should inform the sentencing decisions we make. But we should also look back into history.  The prison system in this country is little more than 200 years old. Up until that time, custody as a response to criminal behavior was largely unknown and community control exerted extraordinary influence over the individual. We need to reestablish the primacy of the community through our sentencing and rehabilitation models, in essence going “Back to the Future” (The Drug Court judicial Bench Book, Chapter 1, Drug Courts: Back to the Future; J Tauber, NDCI, 2011)

We are confronted with new evidence-based sentencing practices that demand a fresh look at a very old paradigm.  We need to acknowledge the central idea of evidence-based sentencing, that sentencing demands a systemic team based approach, and ultimately more effort and time than a single judge can provide. Problem-solving courts provide the structure for a hybrid system, where team based sentencing systems are capable of providing  continuing sentencing  processes, probation and court tracks, risk/needs information, and rehabilitative capabilities that protect the community, yet address for the offenders criminogenic needs.

We will be  challenged in ways that we never expected. Our concepts regarding the treatment of  non drug using offenders,  drug abusers versus drug dependent offenders, low risk offenders versus low to medium risk offenders, all demand that we rethink basic sentencing and rehabilitative concepts. For those willing to open their eyes, Evidence Based Sentencing Practices can open the door to  better and more cost effective sentencing.

Part 12; Systemic Approaches to Sentencing: The Conclusion

June 25,2012

Back to the Future: Evidence Based Sentencing Systems

The 12 part series of articles on Evidence Based Sentencing Systems (see: Evidence Based Sentencing Systems) concludes as it  began, with an admonition to recognize that technology and science have changed the nature of the sentencing process, What is needed is a more comprehensive and systemic approach that recognizes the advances made in sentencing, from risk/needs assessments and cognitive behavioral therapies, to the development of hybrid sentencing sysems that employ traditional as well as  problem-solving practices.

We need to look beyond conventional responses to criminal behavior, acknowledging that our over-reliance on imprisonment  has been a tragic mistake. The science and research advances of the past ten years should inform the sentencing decisions we make. But we should also look back into history.  The prison sysytem in this country is little more than 200 years old. Up until that time, custody as a response to criminal behavior was largely unknown and community control exerted extraordinary influence over the individual. We need to reestablish the primacy of the community through our sentencing and rehabilitation models, in essence going “Back to the Future” (click on image on the left: The Drug Court judicial Bench Book, Chapter 1, Drug Courts: Back to the Future; J Tauber, NDCI, 2011)

We are confronted with new evidence-based sentencing practices that demand a fresh look at a very old paradigm.  We need to acknowledge the central idea of evidence-based sentencing, that sentencing demands a systemic team based approach, and ultimately more effort and time than a single judge can provide. Problem-solving courts provide the structure for a hybrid system, where team based sentencing systems are capable of providing  continuing sentencing  processes, probation and court tracks , risk/needs information, and rehabilitative capabilities that protect the community, yet address for the offenders criminogenic needs.

We will be  challenged in ways that we never expected. Our concepts regarding the treatment of  non drug using offenders,  drug abusers versus drug dependent offenders, low risk offenders versus low to medium risk offenders, all demand that we rethink basic sentencing and rehabilitative concepts.For those willing to open their eyes, Evidence Based Sentencing Practices can open the door to  better and more cost effective sentencing.

 

 

Systemic Approaches to Sentencing: Part 11

June 17,2012

Evidence Based Sentencing as a Hybrid System : Part 11

Evidence-Basd Sentencing Systems have been described in this series as problem-solving structures. More accurately they are hybrid courts that share the characteristics of traditional  sentencing courts as well as rehabilitative problem solving courts. While they emphasize the need for collaboration, they often start off in a traditional adversarial proceeding. This is particularly true when individuals are convicted of serious or violent offenses. In those cases, the court correctly views their primary responsibility as protector of the victim and community. Evidence-Based Sentencing Systems, as well as more traditional sentencing courts, incapacitate the violent and/or serious felon so they cannot continue their criminal activity, sentence to deter others from committing similar acts, and provide retribution against the offender who has done serious harm to the victim and community. Prison is a probability and even a necessity for many of these serious and violent offenders.

Evidence-Based Sentencing Courts move into problem-solving mode as the felon prepares to reenter the community. In Evidence-Based Sentencing Courts, judges and their teams develop effective structures that apply to all offenders sentenced in their jurisdiction (not just the non-violent). In fact, the structure inherent in an evidence-based sentencing team is designed to hold the offender, as well as collaborating agencies and community programs accountable for their effectiveness or lack of same. At the time Drug Court and Problem-Solving Courts were first  being developed, it was noted that, “In a “structurally accountable system”, participating agencies share program responsibilities and are accountable to each other for program effectiveness, with each participant directly linked to, dependent on, and responsible to the others (J Tauber, California Center For Judicial Education and Research Journal, Drug Courts: a Judicial Manual, Summer 1994; click on facimile on the left to review Section 30; on Structural Accountability).

In other words, If evidence-based sentencing practices are employed, coordination among relevant agencies and community organizations remains essential. Sentencing tracks are required to more effectively sentence and monitor offenders with very different risks and needs. While the sentences may be very different, the same level of coordination and collaboration is required when sentencing, monitoring, and rehabilitating the serious and/or violent offenders, as it is for the non-violent offender.