Drug Court Humonetarianism

Reuters has a fascinating article here on drug courts, empathy, and the monetization of humanitarianism. The author discusses shifting economic priorities in the war on drugs.

Contextually, it begins with Judge Gorsalitz’s drug court in Kalamazoo, MI. The writer’s title, “America’s new touchy-feely war on drugs,” and tone suggest amusement or even contempt for the drug-court approach, but then the litany of drug war harms and legalization benefits belies a different understanding.

The piece favors Judge Aim’s Project Hope in Hawaii, which saves money by making drug treatment voluntary not mandatory, and uses penalties of short jail stays instead of reinstating full sentences. Of course, here in the City&County of SF we have Judge Albers’s Community Justice Center — for its drug court context see Prof. Aviram’s post here.

Two Bites at the Apple: The Power of Suspending Imposition of a Sentence

Dr. Aviram has graciously permitted me to post my thoughts on one aspect of the criminal justice system that I came across in the course of a recent externship. In one particular case before our court, a trial court judge suspended imposition of the defendant’s sentence. Although it was not the subject of the defendant’s appeal, I was fascinated by the process and felt it shed light on a Judge’s role and the power of the criminal justice system. Here is how the process works in a hypothetical where I have changed the facts and names in the case:

Hypothetical

18-year old Adam Smith went out drinking late one night with a friend. After some heavy drinking, they take some cocaine Smith’s friend brought along. Intoxicated and high on drugs, they decided to throw fruit at cars from a walkway on an overpass. One orange seriously dented the front hood of a police officer’s vehicle as the officer was finishing her shift for the night. The two friends began laughing, but realized it was now time to run. When the police officer caught up to them, Smith’s friend immediately gave himself up but Smith defiantly resisted and tried to punch the police officer, striking her left shoulder and forcing the police officer to use her police taser.

On the advice of his public defender, Smith entered a guilty plea before Judge Foltz, known for her cautious leniency towards defendants who admit their crimes and save the taxpayers the expense of a long trial. At sentencing, Smith insisted that his crimes that night were childish indiscretions. He told Judge Foltz that a few days before the evening in question, he found out his father was cheating on his mother and that they would be getting a divorce. Depressed and in need of “self medication” he went out and tried drugs for the first time, and made a series of poor decisions because his friend thought cocaine would make him feel better.

Smith maintained that he was simply rebelling against the situation when he went out and did not know how to handle himself. His acts were the unfortunate byproduct of not being in his right state of mind. He promised it would never happen again. Smith’s parents testified on his behalf, and lamented that really, this incident was all their fault. Judge Foltz was reluctant to take Smith at his word, but she sympathized with his argument that it was a youthful indiscretion and found no evidence that Smith was a “bad apple.” To avoid letting him get off “scott free” for what are serious offenses but also to not unnecessarily institutionalize an otherwise good kid and ruin his prospects of college, she told Smith that she would suspend imposition of his sentence and place him on probation for a period of three years if he made restitution for any damage. Only days before his three year probation was to be over, Smith robbed an elderly woman at gunpoint at an ATM.


Now Smith went before Judge Holmes, known for his no-nonsense approach to criminal defendants. Because Judge Foltz suspended imposition of Smith’s prior sentence, Judge Holmes gets to determine the sentence for all three crimes: the first two crimes (vandalism and assaulting a police officer), as well as the subsequent crime, armed robbery. Holmes throws the book at Smith, giving him the statutory maximum for all of the crimes, including a mandatory 10-year sentence enhancement for using a gun during his robbery, giving him a total of 25 years in jail. Smith now wished he hadn’t gotten off “scott free” in front of Judge Foltz, and simply received a reduced sentence.

Commentary
It’s easy to see the downside to a defendant where a Judge suspends imposition of a sentence. A subsequent Judge will sentence the defendant knowing what crime the defendant went on to commit, and that inevitably colors a Judge’s perception of the defendant’s earlier offense. Judge Holmes looked at the mitigating circumstances of the original offenses differently from Judge Foltz, and rather than seeing them as youthful indiscretions, saw a young man committing crimes of escalating seriousness who did not take advantage of the break Judge Foltz gave him. Holmes likely felt that leniency would not do Smith any favors, who did not seem to learn from his mistake when he avoided prison time following Smith’s first encounter with the justice system. Moreover, Judge Holmes was forced to make his decision about the subsequent crime while carefully examining the details of a prior crime necessary to formulate his sentence, making the Judge less sympathetic about any mitigating circumstances of the subsequent offense as well.

There’s an obvious objection to this tool, which is that the subsequent crime cannot be considered as part of the sentencing of the original offense and vice-versa. Strictly speaking, they can’t. But a Judge probably cannot escape what he or she knows about the defendant’s subsequent and prior conduct, and thus whatever mental barriers which have been erected to compartmentalize the analysis are likely to be ineffective. A judge may simply be careful to not articulate her sentence for the earlier offense in terms of what happened in the subsequent crime.

The constitutionality of statutes which authorize judge’s to suspend imposition of a sentence has already been affirmed. Moreover, it’s not clear eliminating such a power would necessarily change the outcome. In Peterson v. Dunbar 355 F.2d 800 (1966), a court affirmed the statute granting the right to Judge’s to suspend imposition of a sentence and noted: “If there be any merit in appellant’s argument, the obvious alternative, still available to the judge, is to start at the top instead of at the bottom– to impose the maximum sentence at the outset, suspend its execution and subsequently vacate it if probation is successful, or, should probation be revoked, reduce it to the extent, if any, then felt suitable.”

From a Judge’s perspective, suspending imposition of a crime is preferable to granting a lesser sentence. Such a tool allows a Judge to distinguish between a “career criminal” and a someone who committed a “youthful indiscretion” while preserving the system’s ability to revisit the issue in light of subsequent conduct. It is likely that the tool allows a Judge to grant mercy more often by reducing the cost of leniency and allows a more accurate sentence in a subsequent proceeding because of superior information. Moreover, with the prospect of an even harsher sentence the second time around, it can serve as a greater deterrent to subsequent crime. Of course, this assumes the criminal mind rationally calculates his or her behavior based upon the length of sentence.

Nevertheless, suspending imposition of a sentence may satisfy both the DA-minded and PD-minded alike by keeping one-time offenders out of jail but increasing the sentence of repeat players. Many lawyers would appreciate the increase in discretion such a tool affords a judge, although others might fear the punitive aspects of its application. But on the whole, the ability to suspend imposition of a sentence increases the discretion of a Judge and therefore reduces the power of other institutional actors like prosecutors who might vigorously oppose leniency under any other circumstance.

It’s unclear whether suspending imposition of a sentence increases prison time on an aggregate basis or reduces it. If I were trying to generate a hypothesis on this point, I would start by determining how many repeat players are in the system. If the numbers of repeat players are extremely high, then suspending imposition of a sentence is likely to increase prison overcrowding on the whole. Additionally, I would look to what kinds of crimes Judge’s typically apply this tool towards to see how much it reduces prison sentences. In my hypothetical the bulk of the defendant’s prison sentence is still coming from the armed robbery and the mandatory sentence enhancement.
In any event, it’s a fascinating tool and has important implications for sentencing, overcrowding, and judicial economy.

Community Justice Center Update

The Chronicle provides a good updated account of how things are going at the Community Justice Center. Among other things, it seems that the attendance rate for drug felony charges is 86%, and for low-level misdemeanors, 22%.

As a comparison, this piece about a probation experiment in Hawaii, and its impact on recidivism reduction, may be of interest.
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Props to Aaron Rappaport for the Chron piece, and to the Collaborative Justice blog for the Hawaii piece.

Sentencing Commission to re-evaluate mandatory minimums

Today’s Wall Street Journal points out that October’s National Defense Authorization Act tasks the U.S. Sentencing Commission with reviewing federal mandatory minimum sentencing. Mandatory minimums, which remove judicial discretion in sentencing, are almost always for drug crimes, and have greatly contributed to the explosion in the federal prison population. This is the first issue I’ve seen the Fraternal Order of Police take a position aligned with Families Against Mandatory Minimums.

When I moved to California from Rhode Island, it had the highest unemployment rate of any state besides Michigan, making sentencing reform a high economic priority. Sure enough, this year the RI General Assembly voted to eliminate mandatory minimum sentencing for drug possession. The state legislature also decided not to return probationers to prison for violations other than the crime of which they were originally convicted. These changes, at the federal and California state level, would take a big chunk out of our corrections crisis.

CJC Town Hall Meeting

Yesterday, October 28th, the CJC held a town hall meeting at 134A Golden Gate Ave. in an effort is to facilitate communications with the community and get some feedback. Unfortunately only about 10 to 11 people showed up including Tomiquia Moss, CJC head coordinator, and Judge Albers, everyone else was an interested party (members of the community court – not to be confused with the CJC, former CJC clients there to give a presentation, myself and one other Hastings student).

Presented at the meeting was an array of statistics about the past 6 months of the CJC. I will try to find out if the stats are posted online, but I will lay out some of the more interesting ones. Since its inception, the CJC has engaged over 400 clients in treatment services, 500 hours of community service have been served, 60% of the caseload is felony cases, there is an average of 24 in-custody defendants per day and 57 out of custody defendants per day. The attendance rate of felony drug offenders is 86% while the attendance rate of low-level misdemeanors remains at 22% (if you have been following the CJC you will remember that the first few weeks were slow because so few defendants showed up, as it turns out that is still the case for low level offenders). There are currently 250 active clients in the CJC, 98% of whom are compliant with treatment.

The most interesting aspect of the discussion revolved around the completion of the holding cells at the CJC. As stated above the court is averaging 24 in-custody clients per day, however the holding cell only has a capacity of 9. The court is now involved in trying to figure out how to continue to work with the same number of in-custody defendants because, according to Judge Albers, these clients are often the ones who benefit most from the services that the CJC has to offer. There is a suggestion that the sheriff may be able to bus the defendants back and forth, but this raises serious cost issues. Judge Albers states that this is “A problem that I am happy to have.”

The topic of this town hall meeting was how to break down barriers to employment in which two former clients of the CJC shared their experiences with fighting addiction and the lure of making quick money by selling drugs while trying to find employment with a criminal record. Ms. Moss then asked for any input from the audience, which did bear some good suggestions including mentorship programs between current and former CJC clients.

Regardless of what you think of the CJC, statistics show that it is growing quickly and may soon need another Judge. Apparently 575 Polk has two courtrooms, one of which has not been used in a long time, and the CJC coordinators are talking about adding another judge to help Albers with his growing caseload. It should be interesting to see how the in-custody matters will work when the holding cell is finally opened within the next few weeks.

NACDL Publishes Report on Drug Courts

(drug court graduation image courtesy SF Collaborative Justice blog)

It seems that Jeff Adachi’s reservations about the Community Justice Center (as expressed here and here), which are not unrelated to the Public Defender’s Office’s dramatic budget cuts, are not an isolated phenomenon. Yesterday, the National Association of Criminal Defense Lawyers released its report on drug courts.

The NACDL’s broader concerns address the basic model through which we address drug crime. The report advocates shifting our perception of drug addiction from a criminal justice problem to a public health issue, which implies decriminalization (in the spirit of these trying times, the budgetary implications of legalizing marijuana are mentioned). However, the report realistically acknowledges that wholesale decriminalization is unlikely in the near future, and therefore turns to discuss policies in drug courts, which have gained increasing support and momentum since the establishment of the first drug court in 1989.

Within that context, the review raises various concerns about disparities and violations of constitutional rights in the drug court processes. The report points out the jurisdictional variation in admission criteria. The concern is that non-systematic criteria are being used, or that systematic criteria, such as excluding violent offenders altogether, might lead to the exclusion of mentally health offenders. NACDL protests this practice, which they call “skimming”, and which leads to a preference for the easy cases. They are particularly concerned with the underrepresentation of minorities and indigent defendants. There is particular concern with the fact that prosecutors act as gatekeepers in many jurisdictions (a practice forbidden here in CA, through Prop 36). As to concerns about accessibility, mechanisms should be put in place to ensure the availability of drug courts to minority and poor defendants, including transportation to and from the court, and avoiding deportation of immigrants who have successfully completed the program.

NACDL also takes issue with the way criminal processes are handled by the court. The court sabotages discovery proceedings and suppression motions. Any arguments against police behavior, egregious as they may be, lead defendants out of the courts and into the “real” court for litigation purposes. The report raises the classic defense attorney’s concern: the privilege against self incrimination. Defendants, the report argues, should not have to plead guilty before accessing treatment; there is nothing lost by adopting a pre-plea, pre-adjudication model. The court must insist that the state have a triable case, and immunity should be granted to all information divulged in drug courts. Ex-parte communications should be diminished. Also, the judge supervising the treatment should not be the judge hearing the case after termination.

Another source of concern is the price paid by defendants who try the program and fail. The price of unsuccessfully attempting to treat oneself should not be vindictive sentencing.

One of the NACDL’s main beefs with the administration of some drug courts is with what the report sees as a misperception of the defense attorney’s role. Zealous defense, they argue, is often viewed as obstruction of the therapeutic goal and an inability to “think outside the box”. This problematic approach stands no only in the way of zealous and creative advocacy, but also in the way of attorney-client privilege (particularly problematic when counsel has information on drug relapses). Two problematic practices are resorting to limited-retainer agreements, in which the lawyer handling the case in drug court is shut out from the other aspects of the case, and having “stand-in counsel” in these courts rather than one committed to the specific client. The Defense Bar must have a more active role in shaping drug courts.

The report argues against a misallocation of public resources. Drug courts are an expensive option, which should be reserved for high-risk defendants facing long jail terms. Low-risk defendants should be diverted to less costly options, such as “under the radar” programs and case dismissals.

NACDL make their recommendations in this video, as well. All administrative materials used for the report, as well as the hearing transcripts, are online.

The report is rather concise and methodical, and it represents, of course, the perspective of defense attorneys. One possible argument I would raise is with the selection of defendants for the court. While access to all regardless of class and race is a must, I think that the likelihood of success is a legitimate criterion for selection. In a therapeutic program, therapeutic, rather than criminal, concerns, should guide admission. However, we should ensure the therapeutic nature of the program. Not an easy thing when our approach to substance abuse is entangled with criminal law inflation and moral hysteria.

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props to Lisa Faigman for sending the report my way.

Forum to Discuss Drug Dealing in the SF Tenderloin

In lieu of a September Town Hall, [held periodically by the CJC personnel – H.A.], there will be a forum discussing the drug dealing problem in the Tenderloin and how the Criminal Justice System is handling this situation. Judge Ron Albers from the Community Justice Center and Assistant DA Sharon Woo, who heads the District Attorney’s Narcotics Unit, both will be speaking on how the courts and DA’s office are addressing this plague on our community.

Meeting: September 29th Tuesday 6:00pm Tenderloin Police Station Community Room, 301 Eddy St .

This will surely be a fascinating evening, especially in light of the new agressive police tactics in the tenderloin, propagated by new police chief Gascon but met with skepticism by the neighbors.

Community Justice Center Picks Up

We now take a break from the State’s budget woes – though not entirely, as you’ll see – to report on the news at the San Francisco Community Justice Center.

A quick bit of background: as some frequent readers may recall, the Community Justice Center was formed to address misdemeanors and non-violent felonies committed in the Tenderloin area. Its beginnings were difficult, with politically-charged budget struggles and a high percentage of non-appearances; it later received some publicity due to the personal appearance of the SF Public Defender, who was trying to make a point about budget difficulties.

Recently, the court has been getting some media attention. The Examiner reported on the Public Defender’s Office’s objections to the court, which included, as it turns out, the argument that many of the services it offers duplicate services available elsewhere.

“Other than being able to sign up for [social security insurance] and in some cases get shelter, the services at the CJC were essentially the same type of outcomes as at the Hall of Justice,” said Adachi, who has tried to pull his staff out of the center, which he views as a waste of scant public resources. “This court was set up to provide different outcomes than what would happen at the Hall of Justice.”

A study commissioned by Adachi’s office found that 90 percent of justice center clients — the percentage served by a public defender — were found to be eligible for drug court and several other drug diversion programs already in place.

Much of the study, which was prepared by UC Berkeley Ph.D. candidate Melissa Sills using public defender data from March to June of this year, is disputed by the justice center. Measuring duplication of services requires further analysis, said the center’s coordinator, Tomiquia Moss.

Nathan Ballard, a spokesman for Mayor Gavin Newsom, also disagreed with Adachi.

“He’s wrong,” Ballard said. “A similar program transformed Midtown Manhattan in the 1990s and we need to give it a chance to succeed here in San Francisco.”

Statistics from both the CJC and the Public Defender’s Office show that about 55 percent of cases handled by the justice center are dismissed. But supporters say that even in those cases, people are referred to critically needed services. About 55 percent of offenders showed up to court in the first four months, compared to 25 percent at the Hall of Justice, according to CJC data.

That attendance rate is steadily improving, and is currently at more than 60 percent, Albers said.

At the Chron, C.V. Nevius, whose previous pieces on the subject were quite supportive of the court, offers sharp criticism of Adachi’s objection, arguing against his disappearance from the scene precisely when the court is starting to show promise.

It took five months, but the CJC is finally making progress.

Now where is Jeff Adachi? The public defender complained that defendants at the Tenderloin court never showed, and that the court was a waste of time and resources. But now that it is seeing results, Adachi’s office is AWOL.

“If I had the staff, I would definitely staff it,” Adachi said. “Certainly these are cases our office would handle if they were filed in the Hall of Justice, but we barely have enough staff to cover the Hall.”

Look, either you’re the public defender or you’re not. Your mandate is to fulfill every citizen’s right to legal representation – not every defendant whose case is heard in the building where your offices are located.

Frankly, exasperation is building.

“What are our over 400 clients supposed to do?” asked CJC coordinator Tomiquia Moss. “At what point do the numbers become important enough to be worth a lawyer’s time?”

The lack of PD jobs is affecting the system in a variety of ways and exacerbating the existing pathologies (not to mention leaving quite a number of newly minted lawyers, who have a huge potential to be phenomenal public defenders, with no position to apply for). I understand the need not to stretch defense resources too thin to the point that quality of representation decreases. A decline in quality would be what we called elsewhere “the dark side of Gideon”. Nevertheless, it is disappointing to see an important venture, which emerged from a holistic perspective aimed at solving problems from the root, go unsupported by the very people who should be sensitive to openminded solutions to street crime in the Tenderloin. What do you think?

The Community Justice Center Celebrates 100 Days of Existence

Taking a break for a moment from the budget woes, the San Francisco Community Justice Center reports on its first 100 days.

In the first 100 days since the CJC opened, the program has been able to reduce delay for misdemeanor citations from 45 days to 2 days for the first court appearance. The court has taken most “out of custody” misdemeanor cases, and is increasing its felony cases. The court has successfully engaged people in treatment plans under our diversion laws immediately upon program entry. Of the 160 clients who have engaged in services, 60 accessed care under a justice mandate, 60 defendants voluntarily engaged in services and 40 ‘walked-in’ or were referred from other agencies. There is already a cost-savings story to tell. An estimate of jail bed savings of only 5 CJC defendants totals $23,000. In tracking 2 clients identified as high users of multiple systems (repeated hospital visits, emergency psychiatric treatment, police and fire in a 6 month period), the CJC’s centralized services coupled with court accountability reduced these costs by 50 percent.

While enjoying strong support from the Mayor and District Attorney, and some publicity due to the personal appearance of the SF Public Defender, the CJC has also been criticized during its inception. Recently, the court has not been on the news; some of this may be due to the fact that one of its more vocal critics, Supervisor Chris Daly, is currently occupied with other matters.

Proposed GPS Monitoring of Domestic Violence Offenders

(GPS tracking device image courtesy Slate Magazine)

Violators of domestic violence protective orders are increasingly subjected to GPS monitoring in several States, as reported by the NY Times and by the Chronicle. Implementing such legislation in CA, as opposed to Illinois and Texas, is somewhat of a challenge. The Chron elaborates:

Without GPS, police have been lax to follow up on complaints that partners are ignoring protective orders, said Tara Shabazz, executive director of the California Partnership to End Domestic Violence.

However, Shabazz and her organization oppose California’s proposed GPS legislation because it would require the state to order GPS tracking for an offender without providing details on how to implement it.

. . .

In California, the cash-strapped government can’t pay for the program, said Alexis Moore, the president and founder of Survivors in Action, a California-based advocacy group. Similarly in Texas, no money was appropriated for GPS implementation.

Given our financial situation, relatively inexpensive alternatives to incarceration or confinement can and should be considered, which does not mean we should not examine such technologies with a critical eye. How is the GPS system managed and monitored? And, should we rely on it to the exclusion of community programs to treat abusive partners, of which we have several in CA?