May It Please the Court

Inside a nondescript building on Polk Street in San Francisco's troubled Tenderloin district, an experimental court is trying to sort out the lives of the accused. Known as the Community Justice Center, the court regularly sees prostitutes, thieves, alcoholics, drug users and dealers, and mentally ill and homeless people primarily for nonviolent offenses. The average defendant has been arrested locally eight times. Instead of sending offenders straight to an overcrowded and expensive jail, presiding Judge Loretta Giorgi tries to connect them with social services that might finally end their downward spiral.

On a recent fall day, Giorgi asked a middle -- aged defendant to attend drug-rehab sessions, admonished a young, tattooed man for sleeping through counseling sessions, and ordered another defendant to undergo more frequent urinalysis. The court makes these mandates easy to fulfill: The Polk Street center houses not only the court but also social services, including case-management, housing-assistance, and onsite support groups. The defendants are given highly personalized and structured plans of action designed to distance them from crime, drugs, and alcohol during their time at the court, which can last from months to more than a year. Many are also required to perform community service.

If an offender successfully completes counseling and substance-abuse treatment, Giorgi will often cut the original sentence or probation period, or the district attorney's office will reduce or dismiss the charges. After a graduation ceremony, in which defendants receive a diploma to the applause of the courtroom, some can go on to apply for and emerge from the system with a clean record. Failing the program, however, means that they will likely serve the original sentence behind bars. Since opening its doors in March 2009, the center has seen 2,950 defendants.

"We're taking the hardest-to-serve cases and getting the most success," says Lisa Lightman, director of San Francisco's Collaborative Courts, which oversees 11 nontraditional courts, including the Community Justice Center. In May 2009, her office published a study showing that mentally ill offenders who completed treatment through the city's Behavioral Health Court were 55 percent less likely to be charged with a new violent offense than were their peers who had not been through the program. Overall, BHC clients were 26 percent less likely to be charged with any offense after finishing treatment. Drug-court participants were also far less likely to be charged with new crimes and were arrested fewer times in the three years following their original arrest than were addicts who did not go through the specialized court process. There are cost-saving benefits, as well. The San Francisco court system has calculated that by the third year, the behavioral courts were saving $1 for every 90 cents invested.

"You see folks who have been functioning at a very, very low level for a long time," Giorgi says. "We see victory in even small things. If they're committing crimes once every six months instead of once every month, that's a success. And then there are big things. We see amazing changes in addicts who've turned their lives around."

These nontraditional courts are formally known as problem-solving courts. They have emerged over the past two decades as an alternative to sending habitual offenders to prison or jail yet again. While their institutional origins can be traced back to diversion programs created in the 1960s, their specific carrot -- and-stick approach is more recent, as is their embrace of fairly stringent supervision requirements for clients. These measures include regular urinalysis and sometimes even electronic monitoring; the reliance on evidence-based treatment and rehabilitation means problem-solving courts tend to produce better results.

The idea is to provide a combination of punishment and treatment that lowers recidivism and increases participation in and completion of drug- and mental-health treatment programs. Though experimental in their efforts to reduce recidivism, these courts have the same authority as their traditional counterparts. Critics argue that the courts force some offenders into unnecessary treatment and that at-risk individuals shouldn't have to wait until an arrest to gain access to needed social services. Yet studies have repeatedly shown that these courts save money and prevent future offenses. In an era in which one in 100 adult Americans is incarcerated, advocates of problem-solving courts face an incredible challenge: reproducing those outcomes not just for tens of thousands but hundreds of thousands, if not millions, of offenders nationally.

The first drug court in the country was founded in Miami in 1989 with the intent of diverting low-level, nonviolent drug offenders into treatment. Prosecutors had to approve the diversion, and defendants were told they should expect to spend at least a year in treatment. Four years later, a broader alternative model was pioneered in New York, when the Midtown Community Court began hearing misdemeanor and low-end felony cases, involving crimes like shoplifting, graffiti, farebeating, and prostitution. The goal was to reduce the number of New Yorkers entering jail and prison. In the decades since, the number of specialized courts, including ones that handle domestic -- violence and mental-health cases, has mushroomed. There are now more than 3,000 courts nationwide, according to the New York-based nonprofit organization Center for Court Innovation.

Some critics of drug-law reform argue that the courts are coercive. The National Association of Criminal Defense Lawyers has blasted the model, calling the courts "conviction mills" for forcing defendants to plead guilty to charges simply to access treatment programs. Judges and attorneys, critics say, are also aggressive about securing pleas and enrolling offenders in treatment programs, including medication regimens and drug rehab, which potentially infringe on a defendant's due process and personal rights.

These are legitimate concerns, and many in the field are trying to address them both by engaging defense lawyers and counselors more actively in discussions about what to do with clients who aren't succeeding in the program and by emphasizing the use of short stints in jail rather than sending offenders back to prison for noncompliant behavior.

While advocates remain sensitive to such criticism, they can also point to consistent research showing that the alternative model, at least on the small scale at which it is currently employed, is successful at reducing recidivism and saving taxpayers' money.

To develop viable and safe alternatives to incarceration for a range of offenders, the courts use risk-assessment models to gauge the most appropriate approach. The model generally evaluates education level, age, drug addiction, and when the criminal behavior first began. Most states have their own risk-assessment tools for a range of defendants, including for juvenile and domestic-violence cases. In mental-health courts, offenders are diagnosed, and their history of medication compliance is reviewed.

The assessment is an evidence-based method of achieving the best outcome for the offender and the system, and as in San Francisco, many of the courts have impressive track records in reducing recidivism as well as trial and incarceration costs. A 2007 study from the RAND Corporation showed that defendants in Allegheny County, Pennsylvania's mental -- health courts re-offended at a lower rate than their peers and that the savings associated with this increased over time, suggesting graduates weren't staying away from crime only in the short term but were changing their behavior long-term.

There's no average cost to creating and running a problem-solving court; some have minimal expenses while others require hundreds of thousands of dollars to maintain annually. Greg Berman, director of the Center for Court Innovation, says the costs depend on existing courtroom infrastructure and supervision needs.

Even with those expenditures, cost-benefit analyses by the National Institute of Justice have concluded that problem-solving courts save taxpayers about $1,300 in treatment and other costs and between $6,000 and $12,000 per participant in reduced costs associated with recidivism and victimization. There are other convincing studies, including a 2004 report from the National Drug Court Institute that found treating drug-court clients was significantly cheaper than incarcerating them.

In the wake of such research, the Conference of Chief Justices, a national group comprising senior state-level judges, has endorsed expanding state networks of problem-solving courts to make them an integral part of the court process rather than an on-the-margins experiment.

And that's what they are at the moment. Data show that the courts reach only a sliver of the offenders who could benefit from such an intervention. A 2008 Urban Institute study found that only 55,000 individuals had been to drug court out of an estimated 1.5 million who might be eligible.

Berman believes in spreading the successful practices of problem solving courts, including through the conversion of traditional courts. Of course, this requires providing judges with the right training -- a daunting task since the curriculum for standard skills-based seminars is determined state by state. Jane Spinak, a Columbia University professor of law and co-chair of the Task Force on Family Courts in New York City, also worries about the role of judges in problem -- solving courts. Many judges, she says, don't have the background to act as de facto social workers to drug-addicted, mentally ill, and otherwise troubled defendants who come before their benches.

Another obstacle to expansion, Berman says, is the wildly varying eligibility guidelines. These are decided county by county and often after local judges, defense attorneys, and prosecutors have debated the terms. Berman doesn't want to stifle local innovation but said the federal government, through the Bureau of Justice, could use its influence in funding projects and providing technical assistance as well as its power to issue new regulations to encourage local courts to be as broad-minded as possible in determining eligibility.

Despite these challenges, problem -- solving courts remain essential to reforming the justice system. The Bureau of Justice set aside $45 million for drug courts in fiscal year 2010 and offers technical assistance to fledging and established mental-health courts. "There's a real hunger for alternatives to incarceration," Berman says. "There's a real hunger for programs that can marshal data for their efficacy. There's a moment to be seized."

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