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“Strategies to Address the Challenges”. Hon. Peggy Fulton Hora Superior Court of California (Ret.) Madison, WI Oct. 2, 2007. Why Problem-Solving Courts?. Large numbers of people incarcerated & jail overcrowding Courts becoming plea-bargain mills

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“Strategies to Address the Challenges”

Hon. Peggy Fulton Hora

Superior Court of California (Ret.)

Madison, WI Oct. 2, 2007

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Why Problem-Solving Courts?

  • Large numbers of people incarcerated & jail overcrowding

  • Courts becoming plea-bargain mills

  • Recycle of people with addictions, mental illness, & status offenders driven by the intersection of social, human, & legal problems

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What’s a judge to do?

  • Jail and prison population is 2.2 million as of 1/11/07

  • 5% of the world’s population; 25% prisoners

  • Cannot incarcerate our way out of these problems

  • They walk out exactly the way they were on the day they walked in

    “Life After Prison Can Be Deadly, a Study

    Finds,” The New York Times, Jan. 11, 2007

    p. A23

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A New Perspective

  • The court system as

    • an interdisciplinary

    • problem-solving

    • community institution

Dr. Alvan Barach, quoted by Bill Moyers in Healing and the Mind, 1993

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The smart question

  • Can we enhance the likelihood of desired outcomes & compliance with judicial orders by applying what we know about behavior to the way we do business in court?

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Slobogin, Christopher, “Therapeutic Jurisprudence: Five Dilemmas to Ponder,”

1 Psychology Public Policy and the Law 193 (1995)

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Problem-Solving Courts

  • …focus on the underlying chronic behaviors of criminal defendants and other court users

  • …recognize the public is looking to the courts to address complex social issues

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“Effective Judging for Busy Judges”

Nat’l Judicial College and the Bureau of Justice Assistance (2006)

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Incentives and Sanctions

  • Timely

  • Consistent

  • Certain

  • Appropriate to hold litigant accountable, move litigant toward desired outcome, protect public

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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

  • High judicial satisfaction

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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

Adapted from Judge Judith S. Kaye, Chief Judge, New York

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Problem Solving Courts in Wisconsin

  • 11 adult drug courts

  • 2 alcohol/OWI courts

  • 1 juvenile court

  • More than 23 teen and peer courts

  • 1 domestic violence court

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Collaborative Courts

  • Recognize the therapeutic potential of the court’s coercive powers

  • Finds “Judicial Leverage” is an appropriate tool

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Collaborative Courts

  • Address complex social issues

  • Understand that collaboration assists with continuum of care

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Drug Treatment Courts

  • DTCs emphasize alcohol and drug treatment services. The two goals of these programs are to reduce recidivism of drug-related offenses and to create options within the criminal justice system that tailor effective and appropriate responses for offenders with drug problems.

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One size does not fit all

  • Key Components – DTCs, Int’l, MH

  • Local needs, community response, legal culture

  • Structure may differ

  • Criteria may differ

  • Funding structures

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Adult DTCs

  • First drug court in Miami in 1989

  • Oakland first drug court in CA in 1991

  • Structure, accountability, responsibility, treatment and recovery


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Retention rates

  • 80-90% of conventional drug tx clients drop out before 12 months of tx

  • DTCs exert legal pressure to remain in tx long enough to realize benefits

  • >66% tx clients who initiate through DTC stay a year or more, 6 xs the rate for programs outside justice system

  • Drug Courts: The Second Decade NIJ Special Report NIJ, OJP, USDOJ (June 2006)

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Family Treatment Court

  • May refer to unified family courts that consolidate all related family cases

  • May include dependency, custody and visitation

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Dependency Drug Court

  • Focus on parents who lose custody due to alcohol and other drugs

  • Higher reunification

  • Reduced stays in foster care

  • Less recidivism

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Impaired Driving Courts (OWI)

  • Screening and assessment of offenders to determine level of intervention or treatment

  • Close supervision by the court

  • May include other initiatives like Ignition Interlock, ankle bracelet monitoring, etc.

  • Frequent testing

  • License restrictions

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Re-Entry Drug Court

  • Facilitates the reintegration ofdrug-involved offenders into communities upon their release from custody.

  • The offender is involved in regularjudicial monitoring, intensive treatment, community supervision, anddrug testing.

  • Reentry drug court participants are provided withspecialized ancillary services needed for success.

Tauber, J., & Huddleston, C.W., “Reentry Drug Courts: Closing the Gap,” Monograph series 3. Alexandria, VA: National Drug Court Institute, (1999)

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National OverviewDecember 2005

  • 2,500+ problem solving courts in the US

  • 985 adult drug courts

  • 386 juvenile drug courts

  • 196 family drug courts

  • 74 DUI courts

  • 44 re-entry drug courts

  • 65 Tribal Healing-to-Wellness courts

  • 4 Federal District drug courts

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National Overview, cont.

  • 16 other re-entry courts

  • 23 community courts

  • 111 mental health courts

  • 393 teen courts

  • 141 domestic violence courts

  • 2 campus drug courts

  • 937 other problem-solving courts

  • 1 Urban Native American drug court

Huddleston, C. West III, Hon. Karen Freeman-Wilson, (Ret.) and Donna L. Boone, Ph.D., “PAINTING THE CURRENT

PICTURE: A National Report Card on Drug Courts and Other Problem-Solving Court Programs in the United States, “ NDCI (May 2004)

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International Overview

  • Canada

  • Jamaica

  • Barbados

  • Macedonia

  • Tobago

  • Chile

  • Scotland

  • Australia

  • New Zealand

  • Ireland

  • England

  • Bermuda

  • Brazil

  • Norway

  • Italy

  • Pakistan

  • Israel

  • Cayman Islands

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New Role for Judges

  • Problem-solving courts are those in which judges participate in resolving the underlying problems that led defendants to appear in court

  • Judges are more proactive

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Judicial Issues

  • Increased time in the docket?

  • Selling the idea to the administration

  • Lack of training about AOD, DV and mental health treatment of all players

  • Legal and ethical concerns

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Judicial Issues

  • Remaining objective & impartial

  • Ensuring confidentiality, privacy, & dignity

  • Crafting appropriate rewards and sanctions

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  • Legal rights such as due process and equal protection are never “trumped” by therapeutic concerns even though the court’s action may be anti-therapeutic

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“I am not a social worker”

  • Jane Addams, founder of Hull House, the consummate “social worker.”

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Arguments Against

  • “[Working therapeutically] cheapens the judicial office, placing the judge at the level of a ringmaster in a judicial circus.”

  • Bean, Philip, “Drug Courts, the Judge, and the Rehabilitative Ideal,” DRUG COURTS in Theory and in Practice, James L. Nolan, Jr., Ed.,Aldine de Gruyter (2002)

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  • 50:0 Chief Justices voted to support “Problem-Solving Courts”

  • Will develop Best Practices

  • Recognizes collaboration and interdisciplinary training

    Resolution22, adopted 8-3-2000

    Reaffirmed, July 29, 2004

    Support for MH Courts, Feb. 21, 2006

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Judges' Criminal Justice/Mental Health Leadership Initiative

  • JLI is coordinated by the Council of State Governments (CSG) Criminal Justice/Mental Health Consensus Project and the GAINS/TAPA Center for Jail Diversion

  • CCJ committed to join

Jan. 18, 2006. 50:0

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CCJ Resolution

  • Urged state supreme court chief justices to "take a leadership role to address the impact of mental illness on the court system through a collaborative effort involving stakeholders from all three branches of government.”

  • JLI is coordinated by the Council of State Governments (CSG) Criminal Justice/Mental Health Consensus Project and the GAINS/TAPA Center for Jail Diversion.

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Lord Coke, Chief Justice King’s Bench, England, 1600s

“A court must never engage in a vain act, lest the courts become laughingstocks.”

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  • Supported by both sides of the aisle

  • Federal and International support

  • Saves money

  • Reduces recidivism

  • Improves life of the individual, the family and the community