COMMENTARY

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

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

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San Francisco District Attorney George Gascon

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

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

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

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

COMMENTARY

San Francisco Parole Reentry Court Judge Jeffrey Tauber (ret.), presents a progoram participant with an award

San Francisco Parole Reentry Court Judge Jeffrey Tauber (ret.), presents a program participant with an award

THE SUCCESS OF CAL.PROP. 47 REFORM WILL NOT IMPACT DRUG COURTS

California’s PROP. 47 did many things and did most of them right. According to Stanford Law School’s “One Year Progress Report”‘ released on Oct 29th, as to PROP 47 cases; recidvism is down, incarceration is down, felony charges are down, and court and
custody costs are down.This is what criminal justice reform looks like.

The whole world should be watching as Prop. 47 is implemented. It reduces drug possession offenses and relatively minor property crimes to misdemeanors. It allows those with felony records to petittion the court to reduce their offenses to misdemeanors (and dismiss the offense where appropriate), opening up new opportunities to those stigmatized with a felony conviction. It saves Caifornia taxpayers hundreds of millions of dollars, freeing jails and prisons for those incorrigible and dangerous offenders who need to be there. It decriminalizes drug possession without legalizing serious drug use. Continue reading

EXCERPT NO. 9: REENTERING THE REAL WORLD; 2001

2001 was a difficult year. The only good part for me was that I was weaning myself away from my 80 hour workweek. I had my music to return to and for that I was grateful. I played my tenor saxophone and harmonica in a number of bands around the D.C. area (and on many a night, played solo jazz saxophone to the seagulls on the Alexandria Pier).

The conflict and duality of NADCP Founding President Judge Jeffrey Tauber

Expressing the duality of law and music in a life; NADCP Founding President Jeffrey Tauber (Photo Art by Frank Tapia)

 

RESIGNATION FROM NADCP/NDCI

NADCP had become the organization I had dreamed of building, an accepted Institution, a part of the Washington Establishment. I intended to develop projects dealing with Reentry from Prison, DUI Offenses, and Sentencing Systems that went beyond the Drug Court idiom. But the reality was that since the 2000 Conference in San Francisco, I was virtually handcuffed by the Board, under constant scrutiny, with almost no opportunity to move ahead on new projects; in essence a lame-duck President.

Before the end of year 2000 it became clear that senior staff members had wrested control of the dialogue with the Board, and were not going to let go until they got what they were after, my resignation. I decided it was best for me to concede the inevitable and accept “early retirement”.

I submitted my resignation from the Presidency of NADCP, to take effect in early 2001. I would remain as President at least in name, until a new President took over. I also co-chaired a committee screening for my successor.

I knew that West needed to stay at NADCP and that his outsized charm and drive would keep NADCP as a major presence in the field, but his possible selection as a successor was never in issue. There were too many fresh accusations floating around about his stewardship of NDCI and he was too young and new to the job to vie for that position. I never did get to the bottom of the rumors swirling around West. At the time, I believed them to be spread by jealous colleagues that were piqued by his quick ascension to crown prince of NADCP.

When I first told West of my intention to resign, he appeared stricken. He argued against it and when I wouldn’t budge, he proposed that the two of us set up our own organization. I was moved by his offer, but I knew that it would be a mistake. I didn’t want to further weaken NADCP by removing its two mainstays, (and truthfully I didn’t want to compete with or diminish the organization I had worked so hard to create). I remained on the Board of NADCP as an Emeritus member, to monitor the organization, and help West stay on his leadership track.

HELPING TO CHOOSE MY SUCCESSOR

My last significant responsibility at NADCP was to assist in the selection of its new CEO (the board decided that my successor would not be a President, but a more malleable CEO). I screened dozens of résumés with members of a Board selection committee. Most of the applicants appeared to be limited in experience, expertise, and background.

We ultimately came down to a single applicant who appeared to have the drug court background required (she had been Gary, Indiana’s first Drug Court Judge), and had a promising low-key managerial style more in keeping with NADCP’s increasingly bureaucratic structure. With Judge Karen Freeman-Wilson’s ascension to the leadership of NADCP, I began to look for other avenues for my energies. Continue reading

EXCERPT NO. 10: THE MEANING OF ONE’S LEGACY

Sometimes life gives a person the opportunity to do something truly extraordinary. I saw an opportunity, took it; accepting the challenge, risking all, sacrificing much, to move the drug court field as far as possible.

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Reentry Court participants congratulate first Reentry Court graduation.

THE IMPORTANCE OF NADCP AND DRUG COURTS TO CRIMINAL JUSTICE REFORM

Drug Courts (and their progeny Problem-Solving Courts) have had a profound effect upon the criminal justice system and the attitudes of those in it, as well as the media, and the public in general

I think it fair to suggest that the reform movements of the past decade, to decriminalize drug use, turn offenders away from prisons towards alternative sentencing, and emphasize reentry resources, all owe their success (at least in part) to the positive environment that drug courts have helped create over the past twenty five years.

There could be no better testimonial as to how far drug courts have come in changing the national dialogue than President Obama’s special reference to “Drug Courts”, in his major criminal justice reform speech of July 14th 2015, “We should invest in alternatives to prison, like Drug Courts and treatment and probation.”

NADCP itself, waxes eloquent when it talks about the progress it and the Drug Court Movement have made over the past twenty years (see: http://www.nadcp.org/learn/about-nadcp) “Today with 2,734 Drug Courts and another 1,122 problem-solving courts (mental health courts, community courts, reentry courts, DWI courts, etc.) in operation, NADCP has forever changed the face of the justice system. As the premiere national resource for Drug Court practitioners, NADCP established a specialized Institute in December 1997. Today, the “National Drug Court Institute” is the preeminent source for comprehensive training and cutting-edge technical assistance to the entire Drug Court Field. Since its inception, the institute has trained 36,641 drug court professionals in all 50 states and U.S. territories as well as seven countries and developed 37 publications, disseminating them to 456,166 professionals worldwide.”

NADCP has admirers in the academic world as well; Professor Kathleen Hale of Auburn University in her book, “How Information Matters (Georgetown University Press, 2011) focuses entirely on NADCP, the “Champion” Non-Profit Organization in Washington D.C. Professor Hale describes the National Association of Drug Court Professionals (NADCP) as “the best among extraordinary organizations; whose structure, initiatives, strategies, and planning define excellence in the non-profit world.”

Continue reading

Vision 7: a Last Chance Before Prison

Oct. 27, 2014

I spent the summer describing alternative justice systems that exist around the world and how they often are community based ( described as “Restorative Justice” in the U.S). I’ve begun a new series on “Alternative Visions of Western Criminal Justice Systems”  that seeks to show how traditional community-based systems can exist alongside current Western systems of criminal justice 061909Prison3_186762f

Front End Reentry Courts, Pre-Entry Courts or Early Intervention Courts are a hybrid response to long prison sentences. They allow offenders to avoid long prison sentences by completing a short term in a prison rehabilitation program (and in some cases jail or community corrections programs), to return to their communities to be supervised by the same court that sentenced them.

It is often thought that the court’s have little recourse or jurisdiction to affect a prison sentence once that sentence has been announced. The truth is, that most state courts have significant jursdiction to alter, amend or modify a prison sentence. Depending on the state, jurisdiction to recall may exist for a period of one month to one year after sentencing.The most obvious purpose of a “front-loaded intervention”, is to order a convicted felon to state prison for an evaluation, assessment, or other purpose, immediately before or after sentence has been imposed

Jjurisdiction exists in many states to recall the felon, after sentencing, for re-consideration and potential re-sentencing. The intention to recall may be announced at the time of sentence, or the decision to recall may be discretionary with the judge within the statutory period. This form of pre-entry intervention is often used to encourage a serious attitude change on the part of a prospective long-tern prisoner.

While this power is found in most state courts, it is most often used by individual judges on a case by case basis. Some courts, in particular drug courts, will use front-loaded jurisdiction to create what can be called a “court-based reentry system” (often described as a Pre-entry Court). The judge may use their jurisdiction to sentence the felon to prison as part of a court-ordered treatment program, with the understanding that the offender is to undergo treatment before returned to court for re-sentencing. If the felon is found in compliance, the court will return the felon to a court-based probation program in the community.

The above are just some of the existing variations in the courts’ use of a brief and immediate prison term, to be followed by recall to the court for sentencing or reconsideration of a sentence previously imposed. They are considered here because they are generally thought of as a successful rehabilitation strategy, designed to get the offender’s attention, assess their suitability for probation, and give them one last chance to change their behavior before a substantial prison sentence is imposed. It should be seriously considered on the program level as an alternative to prison, and as a way to reach out to large numbers of offenders that otherwise would be on their way to long prison terms.

………………………………………..

These observation are to be part of a book to be published on the History of NADCP and the Drug Court Movement. 

(CLICK TO SEE EXCERPTED BOOK CHAPTERS} 

 

 

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. 2 in a Series: Drug Court Graduation As Community Ceremony

June 16, 2014

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

Screen Shot 2014-06-15 at 10.00.05 PMCOMMUNITY AS THE MOST POWERFUL BEHAVIOR MODIFIER

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

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

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

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

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

 

Reentry Court Myths and Realities

IMG_0999April 14, 2014

Sometimes you need to break away from writing drug court history and blow some Island Jazz. This article was written in 2011 and has received its share of compliments. In case you missed it the first time, here it is again, MYTHS AND REALITIES OF REENTRY COURTS

MYTH #1: There’s not much interest nationally in federal funding for Reentry Courts

Local jurisdictions often have neither the jurisdiction nor the resources to deal with parolees, a traditional state responsibility. However a growing number of states are actively developing state wide, locally run, reentry court systems, as they realize the value of these community-based courts. (IN, OH, MO, TX, and CA have taken the lead in developing state-wide systems). The DOJ can provide resources, information and educational opportunities to assist interested states.

MYTH #2: Reentry Court is just like Drug Court with a different population.

Reentry Court turns out to be a very different animal than Drug Court. Its population is made up of high-risk offenders, who have been institutionalized for substantial periods of time. The most significant realization I’ve made as San Francisco’s Reentry Court Judge, is that parolees require far more services, incentives, and flexibility than traditional Drug Courts; that creating a community among court staff and participants is critical to parolees who have lost most sense of belonging. (over the initial 12 weekly sessions, participants failed to appear for court 1% of time)

MYTH #3: Reentry Courts detect violations, responding with sanctions and return to prison

The purpose of the Reentry Court is to keep the offender from reoffending and returning to prison. We are only peripherally engaged in the creation of model citizens. A heavy-handed approach to technical violations and minor offenses (including drug abuse) does not work well with this population. Encouragement from the bench, incentives, and the creation of court-based communities provide a far more effective approach. This still requires the active engagement of the parolee in community-based activities (job training, education, volunteer service, substance abuse and cognitive behavioral treatments) from the day they enter the reentry court. Professor Ed Latessa of the University of Cincinatti, (Dean of reentry research), warns that parolees need to be engaged in structured activity for 40 to 70% of their day, and that those programs that address 4 or more of the criminogenic needs of the offender do twice as well as those that don’t.

MYTH #4: Reentry Court success means substantially reducing drug abuse among parolees.

If we successfully deal with a criminal’s substance abuse problem, we may end up with a clean and sober criminal. Research suggests that less than 50% of parolees have a substantial drug abuse problem, so dealing with substance abuse as the main focus of Reentry Court may be  a mistake. According to the research, drug abuse is not in the first tier of criminogenic needs for the high-risk offender. Dealing with Criminal Attitudes, Criminal Personality, Criminal Friends and Associates, and Family and Parenting issues are generally considered the most important treatment needs. Unfortunately, the use of Cognitive Behavioral Therapies, that have proved to be most successful in treating these issues, is lacking across much of the nation.

“Discussion on Reentry Courts ” Published

Practitioners, Academicians and Policy makers met at  a seminal “Focus Group”, at the National Association of Drug Court Professionals Conference in Boston, in June of 2010, to discuss critical issues surrounding the implementation of Reentry Courts in the U.S. Sponsored by the Bureau f Justice Assistance (BJA),the focus group itself, was  planned and co-facilitated by NADCP President Emeritus Judge Jeffrey Tauber (ret.), Al Siegel, Deputy Director of the Center for Court Innovation (CCI), along with BJA staffer, Jacqueline Rivers. The most experienced reentry court practitioners from around the country were brought together in an effort to discuss the effectiveness, feasibility, limitations, obstacles, and successes  of Reentry Courts. The Publication itself, a Conversation about Strategies for Offender Reintegration, was writen by Robert Wolf and published by CCI.