Vision 5: Longer Sentences = Diminishing Returns

It’s always been assumed that putting criminal offenders away for longer sentences would reduce their opportunities to commit crimes. What that seemingly obvious construct leaves out is that there is a point of diminishing returns. Where those sent to prison ultimately are a greater weight to a free society than those released into the community. Sending more offenders into custody for longer terms often results in a lack of resources for critical community needs such as public health and education. How much more safety do we realize by doubling an auto burglar’s prison term, and what services are being denied the community by doing so.

There is an annolgy to be made to the current panic over the “Ebola Crisis” in the U.S. Three persons have been infected and one has died in a nation of over 300 million. And there are cries to close down schools, work places, and other community gathering sites. Never mind that over fifty thousand americans were killed over the last three years because of the Flu (a more highly contagious illness, airborne, as opposed to Ebola which is contracted only by direct contact with bodily fluids). We panic as a nation and a people and resist logic in favor of an emotional response. I am not a sociologist, but it seems to me that that a new threat no matter how remote, makes us feel that we’re not in control and ultimately not safe in an environment that we have spared no expense to be as safe as humanly possible. (There has been no real, massive threat of illness and death to Americans since the Spanish Influenza Pandemic at the end of World War I).

When I had first begun my Oakland Drug Court in 1990, I had occasion to connect with a number of other professions to get out the word on the Drug Court Initiative. I was at one of the Nationwide Probation Conferences given in the early 1990’s as a speaker. I decided to attend a Legislators’ forum, where experience state legislators talked to their new breathen about how best to deal with  the issue of Crime. The first thing they told the new legislators was to drop a bill in the hopper to increase the term of incarceration for driving under the influence. Secondly they were advises to get on the bandwagon to increase terms of incarceration, to make them invulnerable to attacks from the right that they were soft on crime.

For the offender, longer is certainly not better: As the years go by, inmates often become more distant from their families and communities, less employable, and more deeply ingrained in prison culture, all factors that hamper a successful reentry into the community. And how can it be realistically argued that increasing the length of felony sentences is a rational decision rather than an emotional one (In support of that assertion, research by the Urban Institute found that increases in expected time served contributed to half of the prison growth between 1998 and 2010).

I would argue that the public’s hunger for safety (in California, 1000 sentencing bills were passed by the legislature over the past three decades), is a serious problem that we need to come to grips with. How long is enough? Why do we have an almost impenetrable web of sentencing laws in most states. State sentencing grids are a constantly changing labyrinth of overlapping, entangling, and bewildering law that are mostly understood by the few. These are unacceptable circumstances that need to be addressed by governors  and their legislatures, through  Sentencing Commissions and other mechanisms, that can rationally and reasonably review, clarify and simplify our maze of sentencing laws. Hopefully when rationality has returned to criminal justice sentencing practices, we will see appropriate terms of incarceration imposes across the nation.. 





Vision 4: Veteran’s Court; a Harbinger of Things to Come

Oct. 6, 2014

I was a new Judge in 1990, assigned to the existing Drug Court, a Reagan Era monstrosity that was designed to get drug offenders from Arraignment to prison as quickly as possible. I was overwhelmed by the level of need for treatment and supervision by drug dependent offenders in the city of Oakland, and decided that we would make treatment the major focus of a new drug court model.

We opened the floodgates and placed 1156 participants in the program over the first full year of the Oakland F.I.R.S.T Drug Court, (with spectacular results, Evaluations of Oakland”s F.I.R.S.T Drug Court: 1991-1993).  Unfortunately the treatment, as limited as it was, was only available to a limited contingent of drug offenders and not at all to those without a drug offense charged or a drug abuse problem. The issue of who is denied treatment because they don’t fit into a predetermined treatment program bothered me then and bothers me today. I am convinced  that Drug Courts and other Community-Based Courts (also called Problem-Solving Courts) are but an intermediate step in the development of a new kind of comprehensive sentencing system that will be the accepted mainstream alternatives model in the future

All serious offenders (whether felons or misdemeanants) need to be engaged in a sophisticated sentencing system that will tailor the offender’s sentence to their need for rehabilitation (i.e. drug and/or mental health treatment, education, job training, etc.) as well as their risk to the community. Rather than categorize the individual, the courts, relevant agencies, and community need to be part of a community-based sentencing process that deals with the individual rather than a predetermined subset of offenders (who may receive intensive treatment in a Drug, Mental Health, Driving Under The Influence, Domestic Violence, or other Problem Solving Court). 

We’ve had the opportunity to test this thesis in the Veteran’s Courts (and to a lesser extent Reentry Courts) that have proliferated across the nation over the past several years. Veteran’s Courts treat veterans charged with criminal offenses, period. They do not reject serious or violent offenders. Offenders are not categorized or rejected for failure to be a drug offender or mentally deficient. They welcome all offenders who are in need of special support, monitoring or rehabilitation. They are assisted by volunteers from the community at large and the Veteran’s Community in particular. They are not  pigeon-holed.They are simply recognized as individuals with problems that need attention.

Of course, we are willing to assist the veteran who has committed a criminal act very differently than we do the common criminal. But the way we approach the veteran’s offense is the key to successful alternatives to incarceration in the future. When we stop putting individuals in boxes, consider them as we do veteran’s, worthy of redemption, and treat them as human beings with critical needs, and ultimately as part of our communities, we will be on our way to a critical systemic change in how we deal with our criminal population.



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





Vision 3: A ceremony to Honor the Healed

Sept. 22, 2014


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)





VISION 2: Rejecting the Conventional Prison

Sept. 15, 2014



America’s willingness to explore new alternatives to prison makes perfect sense, when you recognize that there is nothing especially “traditional” or sacrosanct about the use of imprisonment. Prison as an institution is only a little over two hundred years old. Imprisonment,, while the conventional response to criminal behavior today, was a rare and radical departure from the “Community-Based Sanctions” in place some 200 years ago.

As one commentator put it, “It is ironic and yet oddly appropriate that although eighteenth century America turned to imprisonment because alternative punishments had lost their ability to shame, late twentieth century America is turning to alternative punishments because imprisonment has lost its ability to deter and rehabilitate.” (Dan Kahan What do Alternative Punishments Mean; 63 U.Chi.L.Rev.591, p.631)

Even the prestigious Conference of Chief Justices, (made up of all fifiy State Supreme Court Justices) have passed unanimous resolutions in 2000, 2004, and 2008 acknowledging as much, “drug court and problem-solving court principles and methods have demonstrated great success in addressing certain complex social problems, such as recidivism, that are not effectively addressed by the traditional legal process”.

Living in a time when society has substantially broken down, where people lead isolated lives and where societal pressure may be minimal, community based courts have the potential to provide a structure for the rehabilitation of the offender, providing guidance, support, resources, and control where none had existed before.

In other words, the overuse of  “imprisonment” is a choice that we have made, but can unmake, returning to our historical and traditional community-based responses to criminality.







No.11: A Drug Court Judge; the First Among Equals

August 18, 2014

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About  twenty years ago, I described the role of the Drug Court Judge in the first Drug Court manual to be published (J. Tauber, Drug Courts: A Judicial Manual, CJER; 1994). I wrote, “A drug Court provides direction and focus through the leadership of a single judge”.  A statement writ large, and in retrospect, an overstatement of the importance of the drug court judge. For while the drug court judge is an important reason for the success of the drug court, he or she acts more as an enabler than director.  The major actor is “community” itself.

In effect, the drug court judge creates an environment in which successful drug court “communities” can thrive; where a “drug court team” comes together to institutionalize community-based structures for long-term success, and where a “community” of drug court practitioners and participants themselves exert systemic control over substantial numbers of serious drug offenders. So I suppose, if I were to write a definition of a Drug Court Judge today, it might simply read, ” a judge is the first among equals in a “drug court community”.

I believe that The Community-Based Drug Court is already in place, to a substantial extent, in every Drug Court and Problem-Solving Court in this country. We don’t always recognize the characteristics that define these court programs as community-involved, institutionalized, or systemic, but they are there. And while not all have moved rapidly towards this Community-Based model, I am convinced that the most successful are doing so.



No. 9: The Dangers of a Disinterested Bar and Judiciary

August 4, 2014

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Sometimes it’s easy to forget what it’s like to be on the other side of the bench. I remember appearing as a defendant in a minor traffic matter (speeding I think) while still in college. I watched as other defendants approached the judge, who seemed callous and quick tempered to me. When it came my turn I shook with anxiety and barely got out my story and my plea of guilty.

I had a much better learning experience some years ago while I was the new president of NADCP. I was driving home from a music gig in Maryland and was stopped by the Maryland highway patrol on the Interstate for driving twenty miles over the speed limit (78 in a 55 zone).  Maryland defined  that offense as “reckless driving”,  and a misdemeanor. I was chagrined at the fact that I was charged with a misdemeanor and more than a little upset at a system that would charge a misdemeanor for a relatively minor offense (I was otherwise driving appropriately  on Maryland’s major multilane  highway with no other vehicle in sight in the middle of the night).

I knew only a few real criminal lawyers in the D.C. area. I had presented at  an “Other Bar” function (AA for lawyers), and met several local attorneys. Contacting one, he agreed to go to court with me to resolve the matter. I remember being nervous but also being confident that the case would be reduced to an infraction.

It turned out to be an exhausting morning. My attorney was late, talked to me quickly, and went off to talk with his fellow lawyers. After a time, I approached him. He was visibly irritated and went off to talk to the D.A. Returning some time later, he informed me that the D.A. was insistent that I plead to the misdemeanor reckless driving and accept a substantial fine. Now I was upset.  I asked him why I should plead guilty to a misdemeanor if there was no reduction in the offense or fine. He said something about my not understanding how the process worked, though he knew I had been a trial lawyer, traffic commissioner and  trial judge for over twenty years.

And then it occurred to me. This is what defendants too often deal with every day. Bored Judges and lazy D.A.’s who make the easy deal and disinterested lawyers who force it on their clients because that’s the way the system works. He came back once more to push me to take the deal and I told him that I wanted my trial. Finally before the lunch break, he returned to tell me that I was in luck as his friend, the deputy D.A was handling the case, and the judge would reduce the offense from a misdemeanor to an infraction, but that I should say nothing and let him do all the talking. I did as he said, and a very bored looking judge took the plea without even looking up once to see who I was or ask me for my plea. In the final analysis, this was why Drug Court and Problem-Solving Courts were created; to counter the lack of human connection between the criminal justice system and the individual standing before it.



Byrne Grant Funding; Then and Now

June 3, 2013

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

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

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

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

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


NADCP Introduces Resource Center: “Reentry Court Solutions”

The National Association of Drug Court Professionals (NADCP) made this important announcement in an email yesterday to thousands of its drug court and  related practitioners/subscribers. “Designed to provide critical information to those interested in effective Reentry Court strategies, Reentry Court Solutions is a new national resource center dedicated to all things Reentry Courts.”  Judge Jeffrey Tauber (ret.), Director of “Reentry Court Solutions” described his satisfaction with the the Resource Center’s first days. “I would like to thank NADCP for their collaboration and support in getting “Reentry Court Solutions” off the ground. We’ve had hundreds of contacts from all over the country and across the world. I believe that the launching of a “National Reentry Court Resource Center” marks the beginning of a new focus on the importance of the reentry court model in the criminal justice system”.

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