SolutionFocused Courts Hon Peggy Fulton Hora Judge of the Superior Court of California Ret Community Legal Centres Tasmania 1415 November 2013 Judge Sonia Sotomayor a judge with empathy and heart ID: 648599
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Black, White or Grey:Therapeutic Jurisprudence and Solution-Focused Courts
Hon. Peggy Fulton Hora
Judge of the Superior Court of California (Ret.)
Community Legal Centres Tasmania
14-15 November 2013Slide2
Judge Sonia Sotomayor, a judge with “empathy” and “heart.”
“The safe thing to do is to sit on the bench and administer justice. The risky thing to do is to balance mercy with justice, compassion with rules.” Judge Juanita StedmanSlide3
Therapeutic JurisprudenceCan we reduce the anti-therapeutic consequences
Enhance the therapeutic ones
Without subordinating due process and other justice values?
Slobogin
, Christopher, “Therapeutic Jurisprudence: Five Dilemmas to Ponder
,”
1
Psychology Public Policy and the Law
193 (1995)Slide4
Therapeutic Jurisprudence (TJ) in the Justice Setting
Can we enhance the likelihood of desired outcomes and compliance with judicial orders by applying what we know about behavior to the way we do business in courtSlide5
Comprehensive Law Movement
Seeks to maximize emotional, psychological and relational wellbeing of those involved with legal matters
Focuses beyond strict legal rights,
responsibilities, duties, obligations and entitleme
nts
Daicoff, Susan, “Law as a Healing Profession: The ‘Comprehensive Law Movement’,”
6
Pepperdine Dispute Resolution Law Journal
1 (2006)Slide6
Collaborative Judges
Judges believe they can and should play a role in the problem-solving process
Outcomes matter--court is not just based on a process and precedent
Adelaide Thinker in Residence
Adapted from Judge Judith S. Kaye, Former Chief Judge, New York Slide7
Collaborative CourtsRecognize the therapeutic potential of the court’s coercive powersFinds “Judicial Leverage” is an appropriate tool
Adelaide Thinker in ResidenceSlide8
Collaborative ChangeSlide9
P-S Principles and Methods
Reduce recidivism in criminal cases
Save incarceration and other costs of social services, e.g., foster care
Have great public support
High participant satisfaction (procedural justice)
High judicial satisfactionSlide10
What’s in a name?Drug courtDrug treatment court
Sobriety court
DWI court
Healing-to-Wellness court
Family treatment court
Collaborative court (CA)
Non-Adversarial Justice (HI)Slide11
Solution-Focused Courts in Australia
The processes the court uses to develop solutions--therapeutic, inclusive of participants and the court team--and in the concept of the solution that is being sought--addressing underlying issues and promoting an ability to lead a constructive, happy and law-abiding life in the community.
Michael
King,“Solution
-Focused Judging Benchbook,” Monash U. ,Melbourne AU (2009)Slide12
Shared Principles of Collaborative Courts (CA)Problem-solving focusProactive judicial role
Less adversarial, team approach
Integration of tx and social services
Enhanced access to informationSlide13
Ongoing judicial supervisionUse of sanctions and incentivesDirect interaction between litigants and judgeCommunity outreach
Adapted from “Components of Collaborative Justice Courts,” Judicial Council of California, Administrative Office of the Courts,
http://www.courtinfo.ca.gov/programs/collab/background.htm
Slide14
“Tough on Crime”
State prison population up 700% over 1970-2010Slide15
Three Strikes in CaliforniaViolent felony“Serious” felony
Third strike =
any
felony including “wobblers”
25 years to life
Modified last year. Change supported by prison guards’ unionSlide16
When jail is the only answer:
U.S. jail and prison population is 2.3 million as of 2008
Four times population of Tasmania
5% of the world’s population; 25-50% prisoners
“Life After Prison Can Be Deadly, a Study Finds,”
The New York Times,
Jan. 11, 2007 p. A23
“Inmate Count in U.S. Dwarfs Other Nations’,”
The New York Times, April 23, 2008 p. 1
“U.S. Prison Population Rises Despite a Drop in 20 States,” NYTimes Dec. 9, 2009 p. A22Slide17
1:133 Americans incarcerated
In 2009, 5.1 million
(1: 45) adults in the United States—was under some form of criminal justice supervision in the communitySlide18
Disparate Impact1:4 young, African American men incarcerated, on parole or probation
91% of Louisiana prisoners serving LWOP
for non-violent
crimes are African AmericanSlide19
Largest mental hospital in U.S.?
Los Angeles County Jail with 3,000 MI inmates every day
Earley, Pete
, Crazy: A Father's Search Through America's Mental Health Madness
(Putnam, 2006)Slide20
Inmates with mental illness30% of California’s prison population has a mental illnessAbout the population of Darwin
Prison costs in California
U.S.$8.6
billion annuallySlide21
Tasmanian prisoners?
They are overwhelmingly young, male, poorly educated, unemployed and have high rates of mental illness, substance abuse, disability and chronic disease.
About 1,700 people per yearSlide22
Australian Institute of Criminology Drug Use Monitoring in Australia
Arrestees with “heavy alcohol” abuse (>5 drinks/day) ¾ men and 2/3 women
Alcohol abusers also tested positive
for other drugs
(65%) and about ¼ (23%) tested positive for two or more drugs
At time of arrest 48% of offenders were positive for drugs and 15% were looking for drugsSlide23
Tasmanian prisoner profile
>60% of those entering prison identify
alcohol and other drugs
as a significant contributor to their offending
~75% of prisoners have a substance abuse and
co-occurring mental health disorder
Ten separate prison admissions is not uncommon
Dr. Frances Donaldson, Risdon Prison ClinicSlide24
ATOD use + MH problems =
98.5%
o
f Tasmanian prisoners
Correctional Primary Health ServicesSlide25
Cost of prison in Tasmania$307 per day$112,000 per year per prisonerSlide26
Daily costsRisdon Prison $307/day
Hotel Grand Chancellor $250/day
Risdon Prison $307/day Henry Jones Art Hotel $289/daySlide27
Disproportionate impact
Indigenous population 13-15% in prison
General population 3.5%
U.S. drug courts credited with reducing the imbalance of African Americans in the prison populationSlide28
What’s the Answer?
“We need to incarcerate the offenders we are afraid of and treat the ones we are just mad at.”Slide29
Recidivism and drugs“…[E]xpectation of post-release drug use was a significant predictor of re-incarceration”
Payne, Jason, Macgregor, Sarah, McDonald, Haley, “Prevalence and Issues Relating to Cannabis Use among Prison Inmates: Key Findings from Australian Research Since 2001 ,National Cannabis Prevention and Information Centre (
NCPIC
), 2013.Slide30
Outcomes of incarcerationExpensiveIneffectiveNot a general deterrent
More than 1/3 (39%) of Australian prisoners re-arrested and re-incarcerated 2 years after releaseSlide31
Conversation is changingThe proportion of Australians who agree that “stiffer sentences are needed” has declined
Little or no confidence in the prison system’s ability to:
Rehabilitate prisoners (88%)
Punish (59%)
Teach prisoners skills (64%)
L.Roberts
, D
Indermaur
,
What Australians think about crime and justice results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology (AIC) 2007Slide32
Costs of misuseTangible costs of alcohol and illicit drugs in AU =
AU$19 Billion
DJ Collins, HM
Lapsley
, The costs of tobacco, alcohol and illicit drug abuse to Australia society in 2004-05, Commonwealth of Australia, 2006Slide33
Little change in prisonEXCEPT:Compulsory Drug Treatment Correctional Centre
Focuses on treatment and recovery
2006 NSW Drug Court, Justice Health Services and Dept. of Corrective ServicesSlide34Slide35
Reintegration planningSupportive environmentClean and sober housing
Outpatient chemical dependence treatment
Ancillary servicesSlide36
Addiction
“When you can quit, you don’t want to and when you want to, you can’t
”
Casper (Geoffrey Rush)
in “Candy” (2006)Slide37
Solution-Focused Courts AUSlide38
International Perspective on Drug Courts
Australia
England Panama
Canada El Salvador
Scotland Ecuador
Ireland Mariturius
New Zealand Netherlands
Costa Rica
Chile Israel
Argentina Italy
Trinidad and Tobago
Caribbean Dominican Republic
Belgium Bahamas
Macedonia Japan
Brazil Vietnam
Norway
Wales
Mexico
PlannedSlide39
UN Office of Drug Control
13 Key Principles for Court-directed Treatment and Rehabilitation Programmes Slide40
Drug Treatment Courts AUFirst in 1999 Parramatta NSW2 more in NSW
4
th
in planning stage in Wollongong
In all states or territories except QLD
2007 Tasmania – Court Mandated Drug Diversion ProgramSlide41Slide42
Other solution-focused courtsMental health list/court
First 2000 Adelaide
Tasmania - Hobart, Launceston,
Burnie
and Devonport
Aboriginal sentencing
Nunga Court in Adelaide
Koori Court in Melbourne
Youth treatment court ACT
Neighbourhood
Justice Centre, VictoriaSlide43
Family Drug Treatment Court VICJanuary 2014Slide44
Specialised Youth Justice Court PilotHobart
Improved timeliness to
finalisation
of youth justice matters
Encouragement of more consistency in the court’s decisions
Greater development and application of expertise in youth justice matters
Better coordination of youth justice support services to the court
Increased collaborative approaches between the agencies involved in youth justice.
Achieved all but first goal
Will expand to Launceston in 2014
No Family Treatment Court in TasmaniaSlide45
Two steps forward, …
NSW closed Youth Drug and Alcohol Court (July 2012)
Queensland closed Murri Court, Special Circumstances and Drug Treatment Courts
(But allowed “Indigenous Sentencing List “)
Claimed fiscal concerns
Drug Court in QLD saved
AU$6
million
yearSlide46Slide47
“Mr Cranny said the court was attempting to fill the gap of the drug and specialised courts, which had been scrapped by the Newman Government.”Attorney-General Jarrod Bleijie
said the program was not offered to serious offenders.
"We are an unashamedly tough Government, but we also support our most vulnerable,'' Mr
Bleijie
told
The Courier-Mail
.Slide48Slide49
Support from the right“Conservatives
favor voluntary drug courts
because they provide options for those people who are sincerely committed to taking responsibility to reform their lives.”
“The reduced recidivism rates that result from the use of drug courts
benefit public safety
, but drug courts can also
reduce the burden of incarceration
on state budgets because they cost less—between $2,500 and $4,000 annually per offender.”Slide50
Drug Treatment Courts in the U.S.Slide51
2,833 Drug Courts in U.S. (1-10-13)
321
Family
127 Tribal
129
State
Vets
221
DWI
600+ hybrid
5
Federal
Vets
459
Juvenile
1,474
Adult
39
Co-Occurring
30
Re-Entry
5
Campus
25
Federal
District
CourtsSlide52
~1,300 Other P-S CourtsSlide53
Characteristics82% criminal courts are post-plea140,000 participants nationwide
1.2 million eligible but not servedSlide54
Efficacy – Adult Drug CourtReduce substance use by >35%Reduce crime by 50%
Reduce recidivism -- 75% graduates are arrest free; crime reduction remains >14 yearsSlide55
Cost Savings11 meta analyses show:$1 = $2.21 - $3.36 savings
Up to $27 per dollar invested if all costs are counted
Family Drug Court saves $10-15,000 per childSlide56
What can you do?
Develop partnerships with the drug diversion court and mental health list
Support and promote their work
Encourage the development of other solution-focused courts:
Supreme court, post conviction, more serious crimes
Community supervision
Drink/drug driving court
Family treatment court
Integrated youth courtSlide57
Comments? Questions?