The changing face of justice: the evolution of problem solving.

• Position: Panel Discussion

PANELISTS

Joseph E. Gubbay Kings County Criminal Court

Morris B. Hoffman Denver District Court

Martin G. Karopkin Kings County Criminal Court

Marilyn Roberts Department of Justice

Bruce J. Winick University of Miami School of Law

Lisa C. Smith Brooklyn Law School

Joseph E. Gubbay Kings County Criminal Court

The theme of today's program is the court as problem solver. For the judge, this is not a new role. The extent to which a judge immerses him- or herself in problem solving is only limited, in my view, by their individual personality and how each particular judge personally views the judicial role, rather than the limitations of the judiciary as an institution.

That being said, you have heard, and will continue to hear, of judges who preside over or are developing treatment courts specializing in the treatment of defendants who are chemically addicted or mentally ill. These specialty courts, indeed, are a relatively new phenomenon.

For nearly a year now, working with the New York State Office of Court Administration, the Kings County District Attorney's Office, the Legal Aid Society, Brooklyn Defender Services, we have been developing a treatment court for persistent misdemeanant substance abusers.

Presently, Brooklyn is the base of the Brooklyn Treatment Court, which addresses substance abusers charged with felonies. That court, which serves as a national model, differs from the contemplated Kings Criminal Treatment Court in that each defendant will not be exposed to lengthy upstate jail time in the event of noncompliance.

Developing a treatment court for misdemeanants, therefore, tests the model of coercive treatment insofar as the heavy hammer of jail time, traditionally thought to be the main motivating element for compliance, no longer is as significant a factor.

When the threatened coercive effect of incarceration is removed from the equation, how effectively can the court compel treatment? This, of course, frames the critical challenge for judge, prosecutor, defense attorney, and treatment case manager in the misdemeanor context.

The answer, I believe, lies in the effects of long-term treatment, judicial monitoring, and engagement between the judge, the defendant, and the treatment case manager. Once a defendant is engaged in long-term therapy and experiences the rewards of a life not driven by chemical addiction, the defendant herself will be motivated to complete treatment. This, of course, is an optimistic view.

I am not a statistician. I cannot tell you how many addicted who have graduated from treatment courts have been re-arrested. I am sure there are people here who can give you those numbers.

But what I am able to tell you is that treatment is our best hope. It may not result initially in a life of abstinence, but it does work, and the longer and more frequently one is exposed to therapy, the better the chances are of recovery. The first several attempts at therapy may not result in abstinence, but once the defendant is engaged, once effective therapy takes hold, the person's chances of recovery are dramatically improved.

It is obvious to any judge who hears these kinds of cases that an addict who is sentenced to prison generally upon release remains an addict and the criminal cycle continues to repeat itself. Treatment, while there is no guarantee for success, at least gives society and the individual a chance to break the cycle of addiction.

I have met with judges across the country who believe that treatment works, and certainly works better than incarceration as a first resort. And these are judges from the country's most conservative jurisdictions, including Georgia, Florida, Kentucky, Oklahoma, Arkansas, Colorado, Idaho, Tennessee, Utah, Virginia, and Wyoming. Judges in each of these states are creating drug treatment courts or adding to those which have already been developed.

I would like to tell you a true story. It happened about three weeks ago. My daughter and I were in Home Depot and I was approached by a forty-year-old man who looked familiar to me, but I did not know exactly how I knew him. He found himself in the same predicament, of recognizing my face but not being able to place it. He asked me how we knew each other. My first words were, "120 Schermerhorn Street?" with a question mark at the end, the address of Criminal Court in Brooklyn. I figured my chances were good, since 100,000 people pass through those halls every year.

"You're my judge," was his first response, followed immediately by the words, "I'm still clean." Here was a man who was in residential therapy for nearly a year, who had battled his cocaine addiction and was now back to work as a building contractor.

Yes, he may in the future lose another round in his lifelong battle with addiction, because an addict is never completely cured. Rather than reaching a state of cured, the addict is able to learn a healthy and lawful response when a cue in his environment triggers a craving for the drug.

Of important note: while an addict may have an incurable disease, she is still capable of learning how to cope with her disease and to take steps to manage it. That remains the responsibility of the addict. Treatment Court forces the addict to take responsibility for managing their disease, and failure to accept these responsibilities may result in either a treatment response, a punitive response, or both.

Every case is not as successful as the man from Home Depot. Many, frankly, are not. There was the young man, not even twenty when he appeared before me for drug possession, whose father had first introduced him to heroin. After pleading guilty to misdemeanor drug possession, he was released to a city-wide not-for-profit organization, actually the TASK organization that Lisa Schreibersdorf mentioned earlier. I monitored his compliance biweekly, every two weeks. After several weeks of compliance, he absconded from the program, was re-arrested for drug possession, and was returned to me.

After being incarcerated for nearly six weeks, another residential program was found. He still wanted treatment and I was determined to try to help him. He complied with the second program for about two months and absconded again.

Brought back to me on his third round of misdemeanor possession. At this point, he was thoroughly discouraged and asked for me to simply sentence him to prison. Before me was a non-violent, young man who was in fact--and I say this without any naivete--a compelling, bright kid with a lot of potential. In my mind, jail was the easy way out, and typically jail is the easy way out.

I persuaded him to try therapy again. He was released to a halfway house until a residential therapy community could be found. He seemed to be doing very well for nearly two months. He was testing clean. He made all his court appointments. He looked well. Then he disappeared. I was told he died from an overdose.

This is a business that has its measures of success and failure. What standard one uses to measure each is subjective and open to enormous discussion. I hope today will inform that debate.

This I can tell you: Even if there is repeated failure, it is not a sufficient justification to give up, to turn to incarceration as a first resort rather than to offer treatment.

You will next hear from Judge Hoffman. He has a very different philosophical approach with respect to courts interceding in the lives of addicted defendants. Judge Hoffman raises serious and important questions about the risks involved when the judiciary seeks to strongly encourage--and, indeed, compel--treatment. I understand these risks, but see greater consequences in the failure to act in this context.

Morris B. Hoffman Denver District Court

I am a state trial judge in Denver, Colorado. I first want to start by apologizing for my oratory skills. When one spends one's day saying nothing more complicated than "sustained" and "overruled," those skills sometimes atrophy. I also want to thank the Urban Law Journal, and especially Subha Dhanaraj, for inviting me here today.

I feel a little bit like an atheist at a revival meeting. When you read the article that I submitted for this Symposium, you will see that I think there are lots and lots of problems with problem-solving courts, starting with the fact that there is no reliable data, in my view, that they accomplish anything other than making judges feel warm and fuzzy about what we are doing, and going all the way to some deeper philosophical and criminological issues that include an improper retreat from retribution and what I think is an unfortunate compromise of 200 years' worth of judicial independence.

But because you can read that article, and because I do not want you to start throwing tomatoes at me here today, I have decided not to talk about the article. You can read that.

What I want to talk about instead, especially since the topic of this session is "The Evolution of Problem-Solving Courts" and we started off talking about "The Birth of a Problem-Solving Court," I want to talk to you about what has happened to the Denver Drug Court, what has happened since its birth to today, where it is on life support.

I want to talk about that evolution because I think what happened to our court--I am not entirely sure what general things we can conclude from our experience, but I think that there may be things symptomatic of what happened in Denver that tell us something about what is wrong with the drug court movement in general, and with the therapeutic jurisprudence movement also.

Those of you who are more interested in some detail, because I have some limited time, can read a piece that I am doing for the Federal Sentencing Reporter that should be coming out later this spring, called "The Rehabilitative Ideal and the Drug Court Reality."

Our Drug Court is a felony-level drug court. In Colorado our felony courts are called district courts and our misdemeanor courts are called county courts.

Our Drug...