Many jurisdictions spend significant funds on state prisons and county jails. These costs have been consistently increasing over decades. Although there are offenders for whom incarceration remains appropriate, criminal justice experts have found that much incarceration is often imprudent, resulting in the opposite of the desired effect. There are smarter ways to spend taxpayer money, keep our communities safe, and provide fair outcomes for citizens.
Our nation suffers under a sinister narrative: All people who violate the law do so as a choice that has no other explanation, and this behavior deserves incarceration for a long time to teach those persons a lesson and exact retributive satisfaction. Craig Haney, a leading thinker on understanding the meaning of behavior in the criminal legal system, terms this the “‘crime master narrative’—the widely accepted notion that crime is the simple product of equally free and autonomous ‘bad’ choices made by persons who are acting unencumbered by their past experience and present circumstances.”
Reflecting society’s “crime master narrative,” our criminal legal system has traditionally responded to criminal defendants by sentencing persons to incarceration. Imprisonment as the primary response has proved disastrously ineffective. It steals our resources and our integrity. Stark witness to this sustained systematic failure is mass incarceration at a level far disproportionate to other countries accompanied by massive recidivism and racial disparity.
Complicating this ineffective system is our nation’s trend of declining crime rates and, in too many jurisdictions, increasing incarceration. Many believe that the reduction in the crime rate is a direct result of the increased incarceration. They are wrong. Why has there been an increase in incarceration while the crime rate declines? Because the sinister narrative knows no other responses.
Motivated by either expensive costs, disgust with the ineffectiveness of current practices, or a desire for more humane models informed by empirical evidence, local leaders responsible for corrections budgets are choosing smarter ways to respond to persons in the criminal legal system. The smarter models focus on responding to the person’s behavior in ways other than mere incarceration, ways that better address the social explanations for the behavior, ways that understand the context.
One such model is often termed problem-solving courts. They have been evolving. They include drug, mental health, veterans, homelessness, truancy, family, human trafficking, reentry, domestic violence, and child support courts. “Adult treatment drug courts alone account for over 1,600 of the more than 3,100 [problem-solving courts] in the United States. The problem-solving court model seeks to assist defendants with the contextual causes of their behavior through community-based treatment and support. They often have dedicated staff who are professionals with an expertise in a social discipline. They allow defendants to remain in the community as long as they comply with conditions. Various groups have developed principles for particular problem-solving courts.
While these problem-solving courts have helped many move beyond their criminal action, these courts are not without their complexities. They usually cost more to operate initially because of their use of nonlegal professionals and the services they offer, but they result in long-term savings. Too often, the models are developed and implemented without everyone, especially criminal defense practitioners, at the table. “Even though it has these appealing positive aspects for some, for others it’s making a deal with the devil and you really need to pay attention to the fine print,” warned Kerwin Kaye, an associate professor of sociology at Wesleyan University and author of Enforcing Freedom: Drug Courts, Therapeutic Communities, and the Intimacies of the State. Most require a plea of guilty with incarceration as the result of failure. This plea is often to more incarceration time than the person would have received had he or she not entered drug court. Most of these plea agreements do not offer any sentence credit for the time spent under supervised treatment for a resulting incarceration. This means that a defendant remains under control of a court for more time than if sentenced to incarceration.
Most often, mere diversion into court-ordered treatment does not result in entry into a nonjudicial, therapeutic system with professionals who understand and have an expertise in relapse or noncompliance. Instead, the diversion remains in the court system with judicially imposed penalties for failures and noncompliance. “The continued use of diversion to ‘treat’ individuals in need of behavioral health services in essence punishes the poor and those with mental health and substance use issues,” Aurora Chief Public Defender and former Colorado Chief Defender Doug Wilson said. “Especially those diversion programs run by the prosecution who require a guilty plea for admission into a court-adjudicated ‘treatment’ program.” If the diversion remains under control of a problem-solving court, entering the problem-solving court program should not be conditioned on a plea of guilty.
To foster new thinking that propels better practices, a different concept and characterization than diversion is needed for someone who typically comes into the criminal legal system with a social issue. “We should think of a new way, ‘redirection,’” said Wilson. Redirection indicates an action of a different nature, taking behavior out of being inappropriately brought to the criminal legal system. This relabeling is vital because it is a different concept and contributes to changing how we think about this model. Diversion is leniency at the discretion of the prosecutor and judge. Redirection is society deciding that this behavior should not come to the criminal legal system in the first place.
Amid this complexity, four hopeful models from Pima County, Arizona; Miami, Florida; Kentucky; and Seattle, Washington, are discussed below, as well as defense-generated models in Knoxville, Tennessee; Kentucky; and the Bronx.
Consolidated Misdemeanor Problem Solving Court: Pima County, Arizona
The Pima County Attorney’s Office in Tucson, Arizona, in collaboration with the Pima County Superior Court, Pima County Consolidated Justice Courts, and Tucson City Court, spearheaded the design and implementation of a new, regional Consolidated Misdemeanor Problem Solving (CMPS) Court. The CMPS (pronounced “compass”) Court, operating since 2018, is a pre- and post-adjudication problem-solving court designed for high-risk, high-need defendants who suffer from mental health and substance use disorders. Most participants have had numerous law enforcement contacts and have been charged repeatedly in multiple cases and/or multiple jurisdictions with misdemeanor crimes.
Judges from the county’s seven separate misdemeanor courts may initiate a referral to CMPS Court, subject to assessment and confirmation of eligibility. The referral process is initiated with a stipulation filed by the parties in the participating court agreeing to suspend prosecution (or, if the case is post-adjudication, agreeing to suspend review hearings) and have the assigned participating court refer the case to CMPS Court for administration of conditions of pretrial release (or post-conviction probation).
Upon receipt of the stipulation, the participating court requests confirmation of eligibility from the CMPS Court team from the standpoint of both criminal history and a clinical assessment and makes a recommendation to the CMPS Court judge.
Upon confirmation of the individual’s eligibility and acceptance, the CMPS Court informs the participating court that it may refer the case to CMPS Court. The participating court issues an order suspending prosecution and refers the case to CMPS Court.
CMPS Court follows the Drug Court Best Practice Standards published by the National Association of Drug Court Professionals. Participants receive an individualized treatment plan, court compliance hearings, drug testing, employment assistance, benefits enrollment (Medicaid, Social Security, food stamps, etc.), transportation assistance, housing assistance, and other wraparound recovery support resources commensurate with their assessed needs.
Participants are required to participate actively and to remain engaged for at least 12 months prior to being considered for successful completion.
Upon successful completion of the treatment plan, the CMPS Court judge will hold a graduation ceremony and issue an Order of Successful Completion in CMPS Court and will refer the case back to the referring court for dismissal.
If an individual fails to participate in CMPS Court, or desires a trial, or desires to enter a plea of guilt, the case is transferred back to the referring court.
“CMPS Court is a win-win-win,” according to former Chief Deputy Pima County Attorney Amelia Cramer, who was instrumental in creating the system. “It is a win for the participant who receives services in lieu of punishment, avoids incarceration in jail, and may avoid a criminal conviction. It is a win for the justice system because it reduces recidivism. And it is a win for taxpayers because it reduces costs of repeated incarceration and multiple case processing, which exceed the costs of treatment and wraparound services,” she said.
One of the first successes of the CMPS Court was a man who had approximately 250 law enforcement contacts in the 18 months prior to his enrollment in CMPS Court, but after the first nine months in the program had only had two more law enforcement contacts.
A woman was admitted into CMPS Court in October 2019 who previously had a number of misdemeanor convictions, including multiple domestic violence cases from 2017, and has a pending domestic violence charge and a drug charge from 2018, as well as a theft charge from 2019. For most of the months prior to entering CMPS Court, she had been living on the streets or “sofa surfing.” Since CMPS Court enrollment, she has advocated for her own housing, including a successful appeal of a negative determination. She was a victim of a shooting close in time to her entry into CMPS Court. She is extremely resilient and is conscious of the challenges of drug use, recently intercepting a planned delivery of drugs to her adult daughter who lives with her, keeping her home drug-free. The case manager is impressed with the strides she has made.
Eleventh Judicial Circuit Criminal Mental Health Project: Miami, Florida
According to the most recent estimates, 16.3 percent of jail detainees experience serious mental illnesses (SMIs) such as schizophrenia, bipolar disorder, and major depression. Considering that in 2018 law enforcement nationwide made 10.3 million arrests, this suggests that more than 1.6 million involved people struggle with SMIs.
In Miami-Dade County alone, the local jail serves as the largest psychiatric institution in the State of Florida and contains as many beds serving inmates with mental illnesses as all state civil and forensic mental health hospitals combined. On any given day, 56 percent of jail inmates (2,400 individuals) are classified as having mental health treatment needs. Based on a daily cost of $265 per bed, the county spends $636,000 per day, or more than $232 million per year, to house inmates with mental illnesses.
Over time, the impact of failing to provide adequate community-based treatment is considerable. Over a five-year period, 97 individuals with SMIs who were identified as “heavy users” of acute care and institutional services accounted for 2,200 bookings into the Miami-Dade County Jail, 27,000 days in jail, and 13,000 days in crisis units, state hospitals, and emergency rooms. The cost to taxpayers was estimated at nearly $14 million with little impact on reducing recidivism.
The 11th Judicial Circuit Criminal Mental Health Project (CMHP) was established in 2000 to divert individuals with SMIs who do not pose public safety risks away from the justice system and into comprehensive community-based treatment and support services. The program provides Crisis Intervention Team (CIT) training to teach law enforcement officers to respond more effectively to people experiencing mental health crises in the community, as well as post-booking diversion serving individuals booked into the jail and awaiting adjudication.
To date, CMHP has provided training to more than 7,500 law enforcement officers countywide. Since 2010, CIT officers from the Miami-Dade and City of Miami Police Departments have responded to 91,472 mental health calls resulting in 17,516 diversions from jail, 55,013 individuals assisted in accessing treatment, and just 152 arrests. Across all law enforcement agencies in the county, it is estimated that CIT results in approximately 3,757 fewer jail bookings of people with SMIs annually. With an average length of stay of 29.2 days per booking at a cost of $265 per bed/day, this reduction in jail admissions results in 109,704 fewer inmate jail days (300 years) annually and a cost avoidance of more than $29 million per year.
Recidivism rates among participants charged with misdemeanors have decreased from 75 percent to 20 percent annually. Among participants charged with felonies, jail bookings and days spent in jail decreased by 59 percent and 57 percent, respectively, resulting in 31,000 fewer jail days (nearly 85 years). Since 2008, the number of annual jail bookings has decreased from 118,000 to 53,000. The average daily population in jail has dropped from 7,200 to 4,200 inmates today, and the county has closed one jail facility at a cost savings to taxpayers of $12 million annually.
While existing diversion programs and community partnerships are producing remarkable results, there remain many individuals whose needs continue to be unmet because adequate treatment and service capacity in the community simply does not exist.
To address this, CMHP is working with stakeholders from the county, the state, and the community to develop a first-of-its-kind mental health diversion and treatment facility that will divert individuals into a seamless continuum of community-based treatment that leverages local, state, and federal resources. The purpose is to create a comprehensive and coordinated system of care for individuals who are frequent and costly recidivists to the criminal justice system, including a continuum of care for the homeless and medical and mental health care.
The building—expected to become operational early in 2022—encompasses 181,000 square feet and has capacity for 208 beds. Features include a central receiving center, an integrated crisis stabilization unit and addiction receiving facility, various levels of residential treatment, day treatment and day activity programs, outpatient behavioral health and primary care treatment services, vocational rehabilitation and supportive employment services, and classroom/educational spaces. The facility will also include a courtroom and space for social service agencies, such as housing providers, legal services, and immigration services that will address the comprehensive needs of individuals served. Capital funding for the project is provided by Miami-Dade County and the Jackson Health System–Public Health Trust.
“The CMHP offers a smarter way to address the needs of this vulnerable and underserved population while enhancing health and safety in the community. Once engaged in treatment and services, individuals have the opportunity to achieve successful recovery and break the cycle of recidivism,” said Judge Steve Leifman, Associate Administrative Judge, Miami-Dade County Court, 11th Judicial Circuit of Florida, and founder of CMHP. “By taking a targeted approach to addressing this public health need, many of the barriers and obstacles to navigating traditional community mental health and social services are eliminated, and the need for a public safety response is diminished.”
Restorative Justice: Kentucky
In 2011, Restorative Justice Louisville, Kentucky (RJL), began collaborating with Jefferson County District Court, Louisville Metro Government, the Louisville Metro Police Department, Jefferson County Public Schools, and other community agencies to implement restorative justice practices in Jefferson County, Kentucky. The primary restorative practice incorporated in this work was Family Group Conferencing (FGC). On January 1, 2020, Volunteers of America Mid-States (VOA), a private nonprofit agency, merged with RJL to expand restorative justice practices throughout Kentucky, becoming Volunteers of America Mid-States Restorative Justice (VOA RJ).
The purposes adopted by the community partners for the implementation of the restorative justice practices are threefold:
- to divert the offender from the criminal justice system while at the same time providing victims and community members, including law enforcement officers, an active, direct voice in the resolution of the case;
- to hold the offender accountable and assist the participants in the conference process in identifying and addressing the underlying factors related to the problematic behavior to develop plans to reduce recidivism; and
- to address the disproportionality of youth of color in the criminal justice system by involving more youth of color in the process pre-adjudication.
The model is straightforward. Each defendant and his/her support group (family members and/or others closely connected to the youth) are required to meet with VOA RJ staff or facilitators prior to meeting with the victim or victim representative. This meeting ascertains whether the youth is able to take responsibility for his or her behavior, the youth’s ability to meet respectfully with the victim(s), and the youth’s willingness to take steps to make amends for the harm caused by his or her behavior.
The meeting with the victim or victim representatives is to determine the impact of the behavior and what the victim needs from the youth to make amends, and to see if the victim is willing and able to meet face-to-face with the youth and his or her support group.
During the final conference meeting, the conference participants focus on what harm was caused, what may be the underlying, contributing factors, and how the harm can be repaired. An individualized agreement is negotiated between the parties based on discussion of the following questions: How can the harm done to the victim be repaired? How can the harm done to the community be repaired? What needs to be done to reduce the risk of the youth doing this again?
The defendant is expected to complete the specific activities or to engage in certain programs outlined in the agreement to be successful. VOA RJ assists in coordinating or referring the defendant and his or her family for appropriate services and monitoring compliance with the agreement. Significant efforts are made to ensure that the services and supports put in place to address the underlying factors related to the youth’s behavior will continue once the VOA RJ case is no longer active.
The program has important support from prosecutors and judges. “Restorative justice has the opportunity to have a positive impact in our community and supplement current procedures in our criminal justice system in a compelling way,” said Mike O’Connell, Jefferson County Attorney, who prosecutes juvenile and misdemeanor cases. “It is a new and proven effective way of thinking about our justice system and the outcomes we are trying to achieve. It is a practice that needs to grow.” Jefferson County Circuit Court Judge Angela McCormick Bisig, who presides over felony cases, values the healing nature of the project, “Handling crimes using restorative justice allows the offending youth to see their victim as a person and realize the full impact of their actions. Allowing them to be part of the plan to fix the harm they caused empowers them to rejoin the community as a productive member.”
An evaluation of this restorative justice project was quite positive. Ninety-seven percent of the participants felt heard and respected and felt the process allowed them to find resolution. The difference in the recidivism rates of the people who completed the restorative justice conference process versus those who did not complete the process was 50 percent. Additionally, this process costs one-third less than the traditional justice system response.
One example of how VOA RJ works is Daryn, who was charged with stealing $8 from a restaurant tip jar. Instead of going through the regular court system, Daryn, his family, and the restaurant owner, Mr. Lowe, were invited to participate in a conferencing process, and everyone agreed. After meeting with trained facilitators in separate preconference meetings, Daryn, his family, Mr. Lowe, and his family all met together at the restaurant. Mr. Lowe shared how the restaurant had been robbed several times and how the incidents led to fear and anxiety for his family. Mr. Lowe expressed that the money taken by Daryn was not the big concern; it was the intangible feeling of safety and pride being taken from him and his family. As part of the restorative justice process, everyone is asked to discuss what can be done to make things right. When the conference came to this concluding point, Mr. Lowe explained that he did not need anything else from Daryn. He wanted to be heard and a chance to rebuild the community circle that had been broken. Daryn gave him that by being willing to participate and take responsibility for his action.
