TO BE PUBLISHED IN 2017: “A Personal History of NADCP and the Drug Court Movement: 1990-2001″

Judge Jeffrey Tauber

Judge Jeffrey Tauber, ret.

EDITING: THE FINAL FRONTIER

The excerpts from the Book.”A Personal History of NADCP and the Drug Court movement; 1990-2001″, by Jeffrey Tauber, is available on this website, directly below this article (and In the box on the right  marked “Book Updates”).

A Final Version is planned for Publication in 2016 (that will be approximately twice the length).  Check in with RCS in the coming months for more information on how to obtain copies.

With the completion of this excerpted version, I am editing the book to make corrections (and additions and subtractions) as appropriate. I would encourage anyone who has a different version of the events described here to contact me at this website to provide information that might make this book more complete and accurate.

[This publication is not authorized by NADCP or any other organization and its contents are the sole responsibility of the author, Jeffrey Tauber. Mr. Tauber's honorific title as NADCP President Emeritus for life, bestows no offical status to this or any other work produced by him].

Vision 3: A ceremony to Honor the Healed

Sept. 22, 2014

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

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

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

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

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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. 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?

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Urban Institue reports on “Justice Reinvestment Initiative”

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The Urban Institute has issued a positive report on seventeen states that have adopted the “Justice Reinvestment Initiative”and issued the following statement,

“Seventeen Justice Reinvestment Initiative states are projected to save as much as $4.6 billion through reforms that increase the efficiency of their criminal justice systems. Eight states that had JRI policies in effect for at least one year – Arkansas, Hawaii, Louisiana, Kentucky, New Hampshire, North Carolina, Ohio, and South Carolina – reduced their prison populations. Through the Initiative, states receive federal dollars to assess and improve their criminal justice systems while enhancing public safety. This report chronicles 17 states as they enacted comprehensive criminal justice reforms relying on bipartisan and interbranch collaboration. The studynotes common factors that drove prison growth and costs and documents how each state responded with targeted policies.”

The Justice Reinvestment Initiative State Assessment Report was written by Nancy La Vigne, the project’s principal investigator, along with a team of researchers from the Urban Institute (click on image on left for PDF).

[See Justice Reinvestment Initiative"Leads Prison Reform]

 

 

 

Life Without Parole for Non-Violent Offenders

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Novemebr 18, 4013

Taken from a Press Release from the ACLU: “In the first-ever study of people serving life without parole for nonviolent offenses in the United States, the American Civil Liberties Union found that at least 3,278 prisoners fit this category in federal and state prisons combined.”

“A Living Death: Life Without Parole for Nonviolent Offenses” features key statistics about these prisoners, an analysis of the laws that produced their sentences, and case studies of 110 men and women serving these sentences. Of the 3,278 prisoners, 79 percent were convicted of nonviolent, drug-related crimes such as possession or distribution, and 20 percent of nonviolent property crimes like theft.

The report goes on to state that the number of offenders sentence to life without parole has quadrupled over the last twenty years, with 65% African-American.

There are now important forces at work to reform this anomaly. Senators Rand Paul and Patrick Leahy, Attorney General Eric Holder and other influential policy makers are coming out for the reduction and /or elimination of the mandatory minimum laws that make these outrageous sentences possible. It’s important to remember the 3000+ offenders presently serving  life terms, when we reform the mandatory minimum laws.

 

 

NIJ Impact Evaluation on Reentry Courts due soon

Sept. 16,2013

Screen Shot 2013-09-16 at 10.31.38 AMJust a reminder: A National Institute of Justice preliminary evaluation of eight reentry courts was published in March of 2013.  It provided an excellent description of the structures and processes developed by the participating jurisdictions and does and excellent job ib comparing their major program characteristics (see article: One Year Process Evaluations of 8 Reentry Courts). Entitled “The National Institute of Justice’s Evaluation of Second Chance Act Adult Reentry Courts: Program Characteristics and Preliminary Themes from Year 1″, can be found in full, by clicking on the image to the left of this text. The evalaution waa the product of RTI International, the Center for Court Inovation, and NPC Research. It’s authors are Christine Lindquist, Jennifer Hardison Walters Michael Rempel, and Shannon M. Carey.

We can expect an initial impact evaluation, focusing in the effectiveness of the eight  reentry courts at reducing recidivism and improving other reentry outcomes early in 2014.

 

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).

 

California prison terms for violent criminals more than double

In an article published by the Center on Juvenile and Criminal Justice, the Center disputes Governor Brown’s argument that all those who could safely be released from prison had already been released. The Center relies in part on a recent study by the Pew Center for the States (click on image on the left, to obtain a PDF of the PEW article, “Time Served; The High Cost, Low Return of Longer Prison Terms”)

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

It would appear that Governor Brown’s suggestion to the rest of the nation, that they consider California as a model for Penal Reform, may be a bit premature. While the Governor’s realignment plan and funding are an important start in California’s Penal reform process, it would appear that we have a long way to go before we can describe the California Penal System California as a model.

 

An Overview of a Court-Based Sentencing System

The following  diagram and descriptive analysis of an Evidence-Based Sentencing System were published in September  as a development tool for California Counties building realignment sentencing structures. 

(A 12 Part Series on Sentencing Systems, can be found to under “SENTENCING SYTEMS” (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.

Court-Based Realignment Recommendations

 

Published on September 9, 2012, 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.  PDF

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).

 

 

 

Reentry Court Judge Receives Judiciary’s Top Honor

Nov. 20, 2012

For those who have questioned the efficacy and ultimately the relevance of Reentry Courts in the criminal justice system, the following news should be of great interest. I present the following News Release from the National Center for State Courts:

Williamsburg, Va. — Indiana Superior Court Criminal Division Judge John F. Surbeck Jr. has been named recipient of the 2012 William H. Rehnquist Award for Judicial Excellence from the National Center for State Courts. One of the most prestigious judicial honors in the country, the Rehnquist Award is presented annually to a state court judge who exemplifies the highest level of judicial excellence, integrity, fairness, and professional ethics. Chief Justice of the United States John G. Roberts Jr. will present the award to Judge Surbeck during a ceremony at the U.S. Supreme Court in Washington, D.C. on November 15.

“Judge Surbeck is an inspiration and an example to everyone who works in the justice system. He has accomplished what most of us set out to do with our lives – he’s making a true difference in the lives of others,” said NCSC President Mary C. McQueen. “Those who work with him, refer to Judge Surbeck as a pioneer and a trailblazer in the field of reentry courts. I would add that he’s also a proven leader for the nation’s court community when it comes to integrity and judicial innovation.”

Judge Surbeck is the founder of reentry courts in Indiana and considered a “trailblazer” nationally in this field. Through the progression of his career – a public defender for 16 years before becoming a judge in 1988 – he became aware of the need for reentry courts. As a public defender, Judge Surbeck realized he represented one generation of individuals, then as a judge he saw those individuals’ children and grandchildren appear before him in criminal court. He was determined to change that cycle. Judge Surbeck took a map of the city and tracked the addresses to which prisoners returned after release. His map revealed that prisoners overwhelmingly returned to the neighborhoods where drugs and other illegal opportunities are in abundance. This was evidence to Judge Surbeck that once released, prisoners had no chance of success without a solid support system.  

In 2000, Judge Surbeck worked with others to design the Allen County Reentry Court, which helps transition offenders on early release back into the community by providing counseling, mentoring, and help with finding a job. Five years after establishing the reentry court, statistics showed that the program had reduced the rate of prisoners reoffending to 34 percent, compared to nearly 60 percent nationally. Since opening in July 2001, more than 600 offenders have completed the program.

“Judge Surbeck has made a tremendous and long-lasting impact on the courts of Indiana and elsewhere and has brought fresh ideas and a proven track record to the seemingly intractable problem of recidivism,” Indiana Chief Justice Brent E. Dickson and Lilia Judson, Executive Director, Division of State Court Administration, said in a letter of reference for the award.

Before being appointed a Superior Court judge in 1988, Judge Surbeck served as an Allen County deputy public defender from 1972 to 1988. He has been named Judge of the Year by the Indiana Correctional Association and in 2002 was named Fort Wayne Journal Gazette Citizen of the Year. He received his law degree from Indiana University.

I provide this press release mid-week as it is of  some importance. I will have more to say about this seminal event next week.