Judge Jeffrey Tauber (ret.)

COMMENTARY

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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).

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COMMENTARY

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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.

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Vision 6: A Last Chance Before Prison

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Oct. 27, 2014

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.

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Vision 1: Integrating Traditional Community Justice Into Penal Systems

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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: Drug Court Graduation As Community Ceremony

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June 16, 2014

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

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

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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

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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.

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