The judicial perspective.

• Position: Problem-solving courts - Panel Discussion

FRIDAY, MARCH 1, 2002

AFTERNOON SESSION

PANELISTS

Jo Ann Ferdinand Brooklyn Treatment Court

William G. Schma Kalamazoo County Circuit Court

James A. Yates New York County Supreme Court

Peggy Hora Alameda County Superior Court

John Martin Institute for Court Management

Jo Ann Ferdinand Brooklyn Treatment Court

There was a lot of talk at the conference this morning and yesterday about coercion, and I was thinking that from the judicial perspective, there isn't a day when I do not speak to an audience that is only present because of coercion. The lawyers are there on pain of monetary sanctions. The defendants are there so that they don't get warrants. Even the court staff are there so that they get paid. So it is really quite a treat to be speaking to a voluntary audience and impressive that you all showed up after lunch.

I do want to add my thanks to Fordham University Law School for holding this Symposium on an issue for which I have a great deal of passion.

I preside in the Brooklyn Treatment Court, which is in Kings County here in New York City. We were the first treatment court to open in the City of New York and continue to be one of the largest in the country. Since we opened about six years ago, I have sent over 2000 people to substance abuse treatment programs and have seen over 700 of them successfully complete the Court's long-term treatment mandates.

Our court in Brooklyn was created really in response to the reality of the criminal justice situation, the fact that at least, in New York City, upwards of seventy percent of people who are arrested test positive for drug use, so that a substantial number of people caught up in the criminal justice system are there as a result of their own need to feed their addiction.

We knew that the traditional criminal justice responses to these individuals were simply not working. Whether I sent people to prison, placed them on probation, or ordered them to do community service, if their underlying issue of addiction was not addressed, they would continue to commit crimes and therefore appear back in my court.

The Treatment Court in Brooklyn was developed with a system-wide approach. Our theory is that if people are arrested for crimes and are substance abusers, they should be treated in the criminal justice system with a view towards their disease. They should be offered an opportunity to deal with their addiction and should be rewarded for doing so with a favorable resolution of their criminal case.

From the judicial point of view, I think there are three aspects of presiding in a drug court which are immensely rewarding. The first is that it improves judicial decision-making by allowing me to make informed decisions. That is what I thought the job of a judge was: to make informed decisions. In fact, the reality of the situation in the criminal justice system is that you are making decisions with a minimal amount of information. This information is funneled by people who obviously have inconsistent points of view, while in a drug treatment court you are the recipient of information that comes from defense attorneys, the district attorney, and treatment providers who have exchanged all of the information at their disposal so that, in providing all of the information to the Court, we can together attempt to make a better decision.

Knowledge and sharing of facts really informs my decision, and when you add to that a knowledge of addiction and recovery, it means that the decisions can be that much more logical. A knowledge of addiction and recovery is really a crucial part of it. I heard somebody say earlier today that the lack of knowledge of addiction and recovery really permeates the criminal justice system, and I was a judge who allowed people an opportunity to go to treatment if they begged, if their lawyer pleaded, and if the DA was finally convinced. But I only allowed them a single chance. I thought that was what was appropriate, and I had no idea that recovery was not an event, but a process.

Therefore, a part of a problem-solving court is learning about things that go beyond the traditional knowledge of a judge--learning about the social science of treatment, learning about the hard science of addiction.

The other way in which decision-making is improved in a drug treatment court is that you get the opportunity to make decisions that are not only legally correct but fair. I have never heard myself say in the six years I have been in the Treatment Court something that I said on many, many occasions in the past: "I am constrained by the law not to grant that motion" or "I am unable to reach some conclusion despite the obvious fairness of that result."

Well, that doesn't happen in a drug treatment court because we operate under a framework which is legally correct and then we are able to make decisions that are appropriate, fair, and take into account people's lives and the effect of the criminal justice system on their lives.

An amazing thing happens in a drug treatment court and that is when we all share the same goal; that is, the successful completion of a treatment mandate, you find that parties freed from their traditional constraints can really work together, so that you have defense lawyers who no longer ask you to release someone from jail to go live with a drug-abusing spouse. You have defense attorneys who work with the treatment providers to ask that the person be released from jail to live in a drug-free environment.

You have police officers who come into court and no longer say, "This person gave me a hard time. I'm just waiting for you to put him in jail, judge." You have police officers who come into court and say, "Excuse me, judge. I picked this person up from his treatment program, and I promised I would bring them back." You have DAs who stand up in court, as I had on one occasion, and say, "Today I am dismissing twelve felonies and feeling that this is a job well done." By freeing people from their traditional roles, it allows us to make better decisions.

I think the third way in which the decision-making for a judge is improved is that the outcomes are satisfying, and by that I mean the outcomes make sense. As I said before, traditional sentences don't always make sense. It does not make sense to place someone on probation knowing that they are going to continue to use drugs. It does not make sense to put someone in jail because they have a disease, knowing that it is not going to be dealt with.

In my court I have found that at least eighty-eight percent of the people I have sent to treatment have completed four months of treatment. I have found that even the people who are unable to complete the mandate have improved outcomes.

The recidivism rate in a traditional court is, I think, somewhere between thirty and fifty percent of people released from jail are re-arrested within a year. Recidivism among drug court graduates in my court is about ten percent.

There are clear cost savings to a drug treatment court. The savings of prison cost is obvious, but there are health savings, drug-free babies, and children who can live with their parents and are not left in the foster care system.

In conclusion, I just want to go back for a moment to that notion of coercion. You know, most of us thought before drug treatment courts that people would not go to treatment unless they had hit bottom. When I took a look at the people I have seen in my court, fifty percent of them have a severe addiction and fifty percent of them have previous criminal convictions, and the median number of years they have been using drugs is eighteen years.

If those people haven't hit bottom, I am not sure who has. Of those people, fifty percent never sought treatment before they found their way into my court. And, when offered an opportunity to go to treatment, ninety percent of them have accepted that offer. Although there is coercion, in fact it is a decision made by people who, when offered a real opportunity to get help and salvage their lives, have taken advantage of the opportunity.

From my perspective, having sat in this court, it is better for decision-making, better for the court system, and clearly better for society.

William Schma Kalamazoo County Circuit Court

I am a circuit court judge in Kalamazoo County, Michigan, and that is our general court of jurisdiction comparable to your supreme court here.

I came at this issue from the drug treatment court perspective and started that about eleven years ago now, in 1991. In Kalamazoo, we began with the first court in the country that was gender-specific, that was for women. After that we started a court for men, and we've kept them separate, gender-specific, since then for a lot of reasons, and have also added a court for juveniles.

After some time spent with the drug treatment court movement, I got involved with and interested in therapeutic jurisprudence because of its wider applications, which then led to notions of problem-solving courts. And so that is kind of what brings me here.

I go to the theme of the conference, I guess, starting out, and note that it is talking about the movement from adversarial litigation to innovative jurisprudence. In my little spiel here, I will try to emphasize what I consider to be the innovative aspects of what it is that we are trying to do with problem-solving courts, limited not just to drug courts, I hope, but other ideas as well.

I would suggest that this is an evolving science and an evolving practice, and we are far from where we will be ten years from now, probably far from where we will be five years from now. A lot has happened in ten years, when I look back at the things that people have done in that period of time.

But with that all being said, I would like to risk some copyright infringement of Mr. Covey and give you my seven highly effective traits of problem-solving courts. If I run out of time, it may be only four or five.

First of all, these traits...