Illinois Bar Journal cover story on problem-solving courts
Drug, mental health, and other specialty courts are growing in number nationwide and in Illinois. While they're not without critics, supporters make the case that the therapeutic approach reduces recidivism and helps offenders get control of their lives.
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"The United States incarcerates more people than any country in the world," said the Pew Center on the States, in a report released February 28, 2008, One in 100: Behind Bars In America 2008. According to the report, "America also is the global leader in the rate at which it incarcerates its citizenry, outpacing nations like South Africa and Iran." Id at Page 5. More than one in every hundred Americans is now behind bars, the authors advise, and the 50 states are now spending nearly $1 billion apiece, per year, on prisons and prisoners. (See the report here .)
Even more disturbing than these numbers is the report's conclusion: all that money, and all of those nonproductive person-hours in jail cells, are doing nothing to reduce the crime rate. Instead, the authors say, throwing people in jail is simply "saddling cash-strapped states with soaring costs they can ill afford and failing to have a clear impact either on recidivism or overall crime." Id at Page 3.
Given this dismal conclusion, interest in alternatives to traditional prosecutions and incarceration is understandably increasing. The Pew Center report cites diversion programs for nonviolent offenders with drug addictions or mental illnesses, also known as specialty courts, therapeutic courts, or problem-solving courts, as among the promising alternatives to jail time for Treating the underlying cause
The concept of specialty courts took root in the late 1980s and early 1990s, with the first drug court in Dade County, Florida, where Janet Reno was the chief prosecutor. According to a 2005 interview in Mother Jones magazine with Greg Berman, director of the Center for Court Innovation, Reno subsequently used her position as attorney general to foster a national movement for drug courts.
Separately, in 1993, Berman said, a community court was created in Manhattan to address quality of life crimes such as prostitution, drug possession, and vandalism. Instead of jailing nonviolent offenders, the court worked with community organizations to require restitution of the offenders.
Simultaneously, Berman said, the court used its resources to link the offenders with services such as drug treatment, mental health treatment, job training, and counseling in the hopes that in addressing offenders' underlying problems, they would curb recidivism. Statistics showed that these problem-solving courts were highly successful in achieving compliance with their orders, improving local perceptions of the justice system, and reducing recidivism, Berman said.
Today, there are thousands of problem-solving courts in the country. Most, if not all, are part of state criminal court systems, including community courts, drug courts, mental health courts, and domestic violence courts.
Chief Judge Donald Hudson of Illinois's 16th Judicial Circuit characterizes these courts as "an attempt to bring a collaborative, multidisciplinary approach to effectively deal with the underlying causes of criminal behavior." He said that "unless you treat the underlying cause," which might include mental illness, drug addiction, or anger-management issues, "you're like a doctor who's attempting to cure a disease by only treating the symptoms. We need to reduce recidivism."
Drug courts in 26 Illinois counties
Illinois is in step with the national trend toward problem-solving courts. The legislature has enacted statutes that specifically empower the chief judges of the various judicial circuits in the state to establish drug court programs for minors (705 ILCS 410/25), drug court programs for adults (730 ILCS 166/15), and mental health court programs (730 ILCS 168/15).
The Illinois Association for Drug Court Professionals lists 26 counties in Illinois with drug courts. Cook County has multiple sites with drug courts; Peoria County has both an adult and a juvenile drug court. At least eight counties in Illinois - Cook, Du Page, Kane, Lake, Madison, McHenry, Rock Island, and Winnebago - currently have mental health courts.
Peoria County State's Attorney Kevin Lyons reports that he is participating in the planning stages for a mental health court in his county, which also boasts a domestic violence court. And Tazewell County began a pretrial diversion program through its state's attorney's office in 1974, long before the term "therapeutic jurisprudence" was coined.
Today, according to State's Attorney Stewart Umholtz's web-site, Tazewell's deferred prosecution program "continues to supervise non-violent adult misdemeanor and felony first offenders that are screened by the Taze-well County State's Attorney's Office. Eligible offenders must complete a voluntary period of supervision that may include restitution, counseling, community service, drug testing, etc. Successful completion results in dismissal and failure to comply will result in formal prosecution of the offender."
The Lake County experience
Lake County's drug court and one-year-old mental health court, officially known as Therapeutic Intensive Monitoring (TIM) court, provide a good illustration of how specialty courts work. "Specialized courts are much different from traditional adversarial courts where two sides battle it out for the best result," says Assistant Director of Probation Steve Fabbri. "We use a team approach. Our goal is for the offender to stop committing crimes."
The Lake County TIM team, according to Fabbri and Assistant State's Attorney Christen L. Bishop, consists of two assistant state's attorneys, two assistant public defenders, two judges, probation or pretrial officers, and caseworkers from the county health department. Drug court team members additionally include substance abuse experts.
Team members meet every week to review the files of the TIM or drug court subjects, and all share information and ideas to craft appropriate, individualized treatment plans for each subject. Additionally, participants receive the benefit of services from outside professionals who may include the county jail doctor, a private therapist or counselor, a psychiatrist or psychologist, a job placement counselor, and/or a linkage worker who helps subjects find and participate in other community programs to meet their needs.
Potential TIM court participants, who must have been charged with a misdemeanor or nonviolent felony, come to the attention of court personnel in a variety of ways, according to Bishop. Some offenders may already have been diagnosed with a mental illness.
In other cases, "The police may notice something odd. Or the parents may be calling the police because a child's behavior has finally gotten too out of control." Judges in bond court, public defender personnel, and probation officers, too, may notice behavior that leads them to suspect that an offender may have a mental disorder and, as a result, may be eligible for TIM court, Bishop says.
Drug court candidates are multiple offenders, according to Fabbri. "First-timers have a good chance of not reoffending by going through the conventional courts." The drug court team also looks for offenders who have tried but not responded to conventional treatment. The intense use of resources in drug court, Fabbri says, are appropriate for cases with higher risk. "We provide intensive treatment and services."
Offenders must also be amenable to treatment in order to be accepted into TIM or drug court. "Someone who denies a need for treatment, says she won't take her meds, or doesn't want to be labeled" won't want to be in TIM court - nor would she be accepted into the program, says Bishop. "Acceptance of responsibility is an element of participation in the program. Denial won't work."
Additionally, she and other specialty court team members emphasize, "Nobody is forced into the program." Offenders are free to choose to take their chances in the conventional criminal courts.
In fact, every candidate for participation in either TIM or drug court is counseled multiple times by multiple team members that TIM and drug court are not easy programs. "I tell people up front that TIM court is harder than just going to jail, serving their time, and getting it over with," says Judge Michael Fusz, who, with Judges Victoria Rossetti and John Phillips, presides over TIM court.
Says Fabbri of drug court candidates, "We tell them up front this is going to be difficult, we are going to be in your life for the next 30 months, we will place a lot of expectations on you, we will be in charge. But in return, we will help you to make the necessary changes to become drug-free."
"Our graduates have the tools"
Those who agree to enter TIM or drug court must sign a contract in which they agree to participate in any treatment program or activities recommended by the specialty court team, forego the use of illegal drugs or alcohol, and submit to random testing for drugs or alcohol, among other things. By signing, they also agree to information about them being shared by the team. Depending on their history and offense for which they've been arrested, they may or may not be required to enter a guilty plea before entering the program.
TIM or drug court subjects spend far more time in court than do offenders in traditional criminal courts. Initially, they're required to appear every week in court. As they show that they can comply with the specialty court team's requirements, the time between court appearances lengthens, first to every other week, then once a month.
Bishop and Fabbri note that the requirements as well as the time spent for TIM and drug court participants are generally far longer and more intensive than probation in a conventional criminal court would be. They quote an average length of TIM or drug court probation of between two and three years.
During this time, participants may be required to move out of their homes to live in group homes or halfway houses, may be subject to curfews of up to 24 hours, may face restrictions on who may visit them in their homes, may be required to meet with social workers, physicians, and other service providers, must allow home visits by social workers or probation officers at any time, must comply with physician's orders for medications, must submit to random drug testing, and may not consume alcohol or illegal drugs.
Participants who violate the specialty court's orders or restrictions suffer consequences that are agreed on by the court team. Says Fabbri, "Violations are usually addressed incrementally." Someone may spend a weekend in jail, for example, he says. "Consequences will be a lot swifter and more severe than regular probation violations. These people are on our radar screen more and see the judge more."
Because of the contract they sign, he continues, "there are fewer formalities and less notice required" before a consequence issues. And, "when there are problems, they usually crop up quickly, are addressed swiftly, and then subside." Fabbri adds, "Consistency with all of our defendants is important. Everybody is in court at the same time, and they all sit there and see what happens to everybody else."
While there's no hard and fast rule such as "three strikes and you're out," Bishop notes that specialty court participants are free to leave if they wish and take their chances in conventional court. One young woman recently confirmed her decision to do just that in TIM court, saying she'd prefer to serve her time in the penitentiary because she found the TIM court requirements too difficult. At the same time, though, she told the judge and the TIM court personnel how much she appreciated the opportunity she'd had to participate in TIM court.
Fabbri and Bishop, as well as the other specialty court team members, are true believers in the power of specialty courts to help offenders heal their lives. "If not for these programs," says Fabbri, "these people would have gone to DOC. Our graduates now have the tools" with which to deal with their problems. "They know where to get help."
While Bishop acknowledges that her county's young TIM court has yet to see its first graduate (though at press time two graduations were anticipated for the end of March 2008), she echoes Fabbri's views. "TIM court is the last chance for some. They're facing either prison or a guilty plea and conditions of probation.
"The program can help repair relationships with family members and the community," she said. Though participants' terms in the program, with all of its services and support, are finite, she says it's team members' hope that by the time TIM court participants graduate, "they'll have established relationships with doctors, social workers, and counselors," and that they'll have jobs and other legitimate means of support in place so that they will not relapse into recidivism.
Cook County's RAP court
Mark Kammerer, a psychotherapist by training who's director of treatment programs for the Narcotics Prosecutions Bureau of the Cook County State's Attorney, confirms Fabbri's and Bishop's hopes for specialty court graduates. In a memo dated September 6, 2007, directed to presiding judge Lawrence Fox of the Cook County Circuit Court's Rehabilitation Alternative Probation (RAP) Drug Court, Kammerer cites encouraging statistics for Cook County's drug court graduates.
Kammerer first compared the criminal activity of the 443 drug court graduates in the October 1999 through May 2006 classes in the year prior to entering drug court to the year following graduation and found that felony arrests decreased by 92 percent, total arrests decreased by 83 percent, and 87 percent had no felony arrests at all. Further, felony convictions decreased by 86 percent, total convictions decreased by 80 percent, and 91 percent had no felony convictions at all. 91 percent of the graduates had no drug crime convictions and 93 percent had no felony drug crime convictions.
Next, Kammerer conducted a three-year review of the 331 drug court participants who graduated in the October 1999 through May 2004 classes in the same manner. He found that after participation in drug (RAP) court, felony arrests decreased by 84 percent, total arrests decreased by 71 percent, and 75 percent had no felony arrests at all. Felony convictions for those participants decreased by 84 percent, total convictions decreased by 75 percent, and 77 percent had no felony convictions at all.
Finally, 72 percent of those participants had no drug crime convictions and 84 percent had no felony drug crime convictions in the three years following their graduation from drug court. Kammerer said that the statistics for Cook County mental health court participants are similarly encouraging.
Kammerer comments on a similarity between the drug and mental health court populations: "If these people could have gotten their problems under control - could have broken the vicious cycle - by themselves, they would have by now. With the support and coercion
of the court, people who couldn't do it on their own can do it." Specialty courts, he says, "are addressing specific issues that the criminal justice system has not been able to address."
He says the Cook County specialty courts' effect on participants' relationships with their families is similar to what Bishop has found in Lake County: "The people entering our program generally have no contact with their families. Once they're in the program, 30 or 40 percent of active participants reconnect."
And despite the tremendous amount of resources devoted to the rehabilitation and recovery of participants in these specialty courts, Kammerer and the other court personnel interviewed say they make financial sense. In addition to the obvious savings on prison expenses, Kammerer points out that "police officers and victims don't have to spend their time coming in to drug and mental health court."
For his part, Fabbri observes "This is much less costly than sending offenders to DOC. There, they're surrounded by antisocial people who are not interested in changing their behavior and are just waiting to get out." And, he adds, the latter are only too happy to teach new inmates more ways of behaving badly. "You develop the mindset of the culture you're in," he comments.
James Doyle and the Kane County drug court
Judges' personalities can have as much of an impact on the matters they decide as their grasp of the facts and law. John Keilman's article in the Chicago Tribune magazine section from July 29, 2007, described the impact of Kane County Circuit Judge James Doyle's personality on the drug court he was responsible for developing - and on his judicial career, which ended abruptly with his resignation in 2006, as a lengthy complaint based in large part on his behavior in drug court was pending with the Judicial Inquiry Board. The Tribune article quoted people in the Kane County community - including Doyle himself - with divergent views of the former judge. "To some, he was a visionary whose dedication liberated hundreds of drug users from the hell of addiction. To others, he was arrogance personified, a jurist who shredded the Constitution to play the redeemer." Paradoxically, the article continued, "both views might be true." Tribune article, page 12. In addition to discussing Doyle's behavior and community perceptions, the article quotes former Chief Judge R. Peter Grometer, who, the article relates, researched therapeutic courts in the mid-1990s, visiting others elsewhere in the country. "Grometer liked the concept but was uneasy with some of the judges, who appeared disturbingly casual about their legal obligations." Id.
"They've worked better than we thought they would"
Presiding Judge Paul Biebel of the Criminal Division of the Cook County Circuit Court is a strong supporter of therapeutic courts. "They've worked better than we thought they would." And even when participants don't complete the program, Biebel believes, "they still have a much better chance of staying out of trouble."
Kevin Lyons observes that "the persons who complete the program are better persons. It's almost palpable. They look better, they smile, their families come, there are lots of tears" at the graduation ceremonies. "If I notice it, imagine how their sisters and brothers notice it," he adds.
Chief Judge Donald Hudson of the 16th Judicial Circuit concurs with Biebel and Lyons. "Those who have been exposed to the principles and efficacy of problem-solving courts tend to support them," comments Hudson.
Hudson believes that those worried about the costs of therapeutic courts should consider their positive and priceless effects on society in the form of reduced recidivism and enhanced protection of the public. Adds Lyons, "Without these programs, the successful graduates would have crashed and burned. And they always take someone with them."
Expanding the concept
Might therapeutic jurisprudence be expanded into other areas, including the civil courts? The Illinois Judicial Conference's Committee on Criminal Law and Probation Administration observed in its 2006 report "The resolution in support of problem-solving courts passed by the Conference of Chief Justices and the Conference of State Court Administrators calls for the integration of problem-solving court principles and methods into court processes more generally." 2006 Report of the Illinois Judicial Conference, pp. 70-71. Following up this idea, Cook County Circuit Judge Patrick T. Murphy proposes extending the concept of specialty courts to elder law.
In an op/ed in the September 2007 issue of the CBA Record, Murphy noted that "[m]ore of us are living longer. More of us are living alone as we grow older. More of us have additional assets as we live alone and grow older. Finally, more of us are slipping into the abyss of age-related dementia." With this depressing background, Murphy suggests that the Circuit Court of Cook County set up a special division to focus on such age-related issues.
Murphy elaborated on why elder courts would be helpful in any jurisdiction. "The factual situations by which the elderly are compromised are endless." And not all involve classic cases of purposeful exploiters, he notes: persons in the early stages of dementia may forget to pay their real estate taxes or mortgages on time and end up in foreclosure or in tax deed proceedings and be forced to move out of their homes.
There's no type of dispute, and no division of the court system, Murphy continues in conversation, in which the elderly are not involved. Age-related disabilities may complicate any type of legal proceeding, for, he said, "The elderly become easily confused."
Further, while some elderly demented individuals may hide their dementia and seem perfectly rational for the few minutes that a professional such as a judge is interacting with them, Murphy says, "The elderly person who's losing it makes stuff up." And the more intelligent that person, using his own mother as an example, the more convincing she may be, even when telling a fantastic tale.
For these reasons, Murphy would like all judges to have training in issues involving the elderly. In his vision of an elder court, social services agencies would be involved and cases would be screened for alternatives including, but not limited to, guardianship.
"Separate is not equal"
Not all advocates are as enthusiastic about therapeutic courts as the Illinois court personnel interviewed for this article. Susan Stefan, an attorney with the Center for Public Representation, a nonprofit public interest law firm in Newton, MA providing mental health law and disability law services, views these courts critically.
"Any time a minority of people in the country are treated badly and a separate system is set up for them, you have cause for concern whether the separate system will meet their needs. Separate is not equal when you're a poorly treated minority."
Stefan cites examples of law enforcement personnel in states other than Illinois arresting persons who would not have been arrested but for looking odd, or marching to the beat of a different drummer, in order to funnel them into mental health courts for treatment. "That's not a system that produces benefits for people with serious disabilities."
Stefan also questions the extent to which the pros and cons of entering a therapeutic court program are meaningfully reviewed with subjects by someone with no stake in the decision. She also calls it "hypocrisy" to use mental health courts only for those charged with misdemeanors or nonviolent felonies and not those charged with more serious crimes.
An Illinois advocate for the mentally ill, however, Professor Mark Heyrman of the University of Chicago, supports mental health courts as they are being used in Illinois. "The motivation [for Illinois's mental health courts] is not 'lock 'em up, throw away the key' - it's reducing the number of people in the system. That's a laudable goal."
As Lake County's Judge Fusz muses, "Nobody really comes up with ideas to keep people out of the system in conventional court." Without mental health courts, says Lake County State's Attorney Michael Waller, "The mentally ill get lost in the shuffle."
Even their strongest partisans recognize that therapeutic courts aren't the answer for all offenders. Illinois's and the nation's move toward expanding them, though, could provide some hope that the Pew Center will not have to repeat in its next report that this country continues to be the foremost jailer of its population.
Helen W. Gunnarsson, a lawyer in Highland Park, is an Illinois Bar Journal contributing writer.
Sources and additional reading
The Illinois Judicial Conference's Committee on Criminal Law and Probation Administration has included reports on problem-solving courts in the Conference's annual reports. Of particular interest is the committee's 2006 report, The Efficacy and Trends of Specialty Courts, found at page 63 of the conference's 2006 report and available on the Supreme Court's website here.
Illinois Attorney General Lisa Madigan maintains a fact sheet on drug courts on her Web site here.
The Illinois Association of Drug Court Professionals maintains a Web site here.
A press release from the Pew Center on the States describing and linking to its February 28, 2008 report, One in 100: Behind Bars In America 2008 is here.
Good courts: An interview with Greg Berman is available on the Mother Jones Web site here.
The Center for Court Innovation is "a non-profit think tank that helps courts and criminal justice agencies aid victims, reduce crime and improve public trust in justice." Among the projects for which it provides technical assistance are specialty courts. Its website is here.
The Bureau of Justice Assistance is a branch of the U.S. Department of Justice that funds and coordinates efforts to combat crime and achieve safer communities, including problem-solving courts. Its Web site is here.
The National Center for State Courts maintains a Problem-Solving Court Resource Guide here.
The Public Policy Platform of the National Alliance on Mental Illness, available here, endorses therapeutic jurisprudence.
An article, Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Abuse and Crime in America, by Hon. Peggy Fulton Hora, Hon. William G. Schma, and John T. A. Rosenthal, is available here
Teen or youth courts are also considered specialty or problem-solving courts. An article describing Perry County's Youth Court appeared in the March 2, 2008 issue of The Southern Illinoisan, available here.
For articles in ISBA publications referring to teen courts, see Michele Jochner, An Overview of the Juvenile Justice Reform Provisions of 1998, 87 Ill Bar J 152 (March 1999); Cindy Nelson, Establishing teen courts in local communities, ISBA Juvenile Justice newsletter, v. 14, no. 1 (October 2001); Terence M. Madsen, The youth court option: now that's a young prosecutor, ISBA General Practice, Solo, and Small Firm newsletter, v. 30 no. 7 (May 2002); Teen courts on the rise in Illinois, LawPulse, 91 Ill Bar J 273 (June 2003); and Station adjustments: not-so-rough justice for kids, LawPulse, 95 Ill Bar J 510 (October 2007).