Life in the therapeutic state

Heard today in juvenile drug court...

"We're here to support you, even if that means we have to lock you up."

... as my long conversion from drug court agnostic to drug court atheist continues.

Bonus link goes to Drug Court Justice: Experiences in a Juvenile Drug Court, by Kevin Whiteacre, Ph.D.:

Drug Court Justice takes an in-depth look at a Midwestern juvenile drug treatment court. Through observations and interviews conducted while serving as the contracted program evaluator, Kevin Whiteacre investigates how denial, surveillance, coercion, accountability, and definitions of success operate and interact in the juvenile drug court environment, and how they intertwine with institutional needs and authority structures. His findings suggest that some drug court practices may expose participants to potential harms that until now have been largely ignored in studies of drug courts. He concludes with suggestions for reducing the potential harms of juvenile drug courts.

Maybe I can get our court to order a copy.

WA: “drug court saved my life”

From the New York Times:

Courts Give Addicts a Chance to Straighten Out

It was not your usual courtroom scene. For one thing, the judge choked up as he described one woman’s struggle with opiate addiction after her arrest for forging prescriptions...

Now she was graduating — along with 23 other addicts who entered drug court instead of prison. Prosecutors and public defenders applauded when she was handed her certificate; a policewoman hugged her, and a child shouted triumphantly, “Yeah, Mamma!”

ID: drug court gadfly

Long profile of a flinty Drug Court client, from the Boise Weekly:

Head Banger - Paul Rogers' fight against Idaho law, and how it almost worked

Paul Rogers never planned to move to Idaho. He never planned to spend five years bouncing in and out of jail and prison. But then, he never really planned to get so caught up with meth that it would bring his life to a sudden halt.

He also never planned to change Idaho law. But with a ruling (pdf file) from the Idaho Supreme Court last fall, this unlikely source forced a change in the way drug courts around Idaho are run...

And now the "almost" part:

In effect, the decision reversed time. Rogers was granted the hearing he had sought so long ago... At the hearing though, (Judge) Wilper kicked Rogers out of drug court again...

WA: "like a bad Thanksgiving dinner with a drunk relative"

More about a black-robed bully's terrible, horrible, no good, very bad weekend, from the Oregonian:

Colleagues detail 'bad weekend' with judge - conduct, offensive remarks at a conference are among the reasons the state censured Clark County's John P. Wulle

Clark County Judge John P. Wulle was frustrated with the discussion. It's time for the group to move to the next topic, he announced... "No, Judge," Keith Pereira told Wulle. The group needed to work through this topic... That was it. The judge erupted with an expletive directed at Pereira, threw down his pen and walked out the door - leaving behind his stunned, embarrassed and frightened colleagues.

The incident was one in a series of questionable behaviors involving the judge during the five-day conference, including remarks about African Americans, gays and Jews that witnesses reported as demeaning or, at least, inappropriate... But his outburst at Pereira especially shook participants. It frightened at least one member - Cookie Quirk... "I've never seen a man throw stuff, use the F-word, and just act like a kid," Quirk said. "I didn't know what he was going to do next..."

ID: drug court due process and not-so-incorrigible kids

I don't have much occasion to read up on Idaho caselaw since I, well, no longer practice in Idaho, but I liked these recent opinions:

State v Paul Lawrence Rogers, No. 33935 (October 22, 2007) (pdf file here):

In a unanimous decision, the Supreme Court ruled that where a defendant was required to plead guilty in order to enter into drug court, he had a liberty interest in remaining in that diversionary program, and held that drug court participants are entitled to due process rights such as those afforded to parolees in Morrissey v. Brewer prior to termination from the program. The opinion was authored by one of my old TF judges, Justice Burdick.

In the Matter of Doe, No. 33475 (November 1, 2007) (pdf file here):

The Court of Appeals found that raising one's voice a little is not sufficient to bring a youth within the purview of the Juvenile Corrections Act. I'm pleased as punch to send congratulations to the lawyer who argued and won the appeal, Robin Weeks of the Twin Falls County Public Defenders Office - I hired her, you know.

Four squirrels and ten Hail Marys

For our colleague the Bardd, some days in Drug Court are joyful: Drug Court graduation for example. Other days feel like eavesdropping on someone else's confession: bless me, Your Honor, for I have sinned, for instance. The Bardd also has issues with Nature's "scoundrelly little opportunist," the squirrel.

Then there's this from the criminal defense lawyer at The Squirrel's Nest: "It would be totally awesome if we could just dispense with the clients"

One more lawyer, Simba's Mom at Unpublished Opinion (motto: "I will try to talk about something other than the cats") has noticed how squirrels are like cats.

And on my back porch there's an uneasy detente between the wily eastern gray squirrel (Sciurus carolinensis) and the dapper Steller's jay (Cyanocitta stelleri).

ID: a compassionate judge passes

From the Times-News:

Judge Carlson dies

It's difficult to find a person with something bad to say about Cassia County's 5th District Court Judge Monte Carlson.

Carlson, who died Sunday, is remembered as a compassionate judge who helped start the Magic Valley drug court... With Carlson's help, 177 drug addicts graduated from the 5th District Drug Court since he helped start the program in 1998, said Darrell Roskelley, drug court coordinator. The program boasts about a 60 percent success rate, compared to about 20 percent with other treatments, Roskelley said.

"He (Carlson) could see the potential of these drug court people and what they could become," Roskelley said. "Everything that drug court has become has been (because of) him."

My drug court clients loved Judge Carlson, and I did too. Farewell, Your Honor.

WY: Teton drug court

From the Jackson Hole News & Guide:

Drug court gives people a second chance at life

Will Wise shook hands with a newcomer to the drug court program Monday afternoon and told him not to give up. Wise, 40, speaks from experience... (O)n Monday, after 14 months in the program, Wise was one of three Teton County DUI Drug Court graduates honored at a ceremony...

“Even though it was not easy, I have a life that’s a lot more enjoyable than the one I used to have,” Wise said... "It’s nice to see success," said Greg Blenkinsop, Teton County public defender. "Before, all I saw was failure. I didn’t see people coming back buying houses. It was all negative."

What we talk about when we're talking before drug court

Here's an inside look at the drug court meeting that takes place before anyone says "all rise," from the point of view of a substance abuse counselor:

This your brain. This is your brain on drug court.

I make a case for allowing my relapsed client an extra week of opt in time, based on her maintaining abstinence. The judge agrees with the stipulation that if she is dirty again, she gets remanded to jail. I am a bit taken back by this. For most of my career doing substance abuse treatment, I have worked from a harm reduction approach. My client is med compliant, trying hard in her out patient program, in CalWorks, stable after a 20+ year history of paranoid schizophrenia, heavy alcohol use, and frequent trips to PES and jail - but this does not matter. If she uses again she goes back to jail. Misguided drug policy, ahoy!

ID: two drug court moms

From the Twin Falls Times-News:

Turning lives around - Drug court helped sisters come back from the brink

Cops gawk like they cannot believe what they are seeing. It's hard not to gawk when these two sisters stroll by like human jungle gyms with seven little children hooked under their arms or scrambling over their shoulders and an 8-month-old sleeping in his stroller.

That's Aleecia Moyes and Jamie Labrum now. But rewind their lives to before they attended 5th Judicial District Felony Drug Court in 2004...

ID: voices of drug court

As the Twin Falls Times-News reports,

Some say Drug Court helps; others say it doesn't

Here's a woman who flunked and was sentenced to two years in prison:

"I thought I could get away with it. I tried cheating the system. Yeah, I got away with it at that time but I'm paying for all that now. I got sentenced today for all those screw-ups."

And another woman who's taking care of the kids left behind:

"It's my job to fix what she messed up with those babies. And she gets two to three for ruining the life of those babies?"

Back to the first woman:

"Now there is a glimmer of light. I will make it out. I will be OK. I've come to the realization that if I hadn't done what I did, I wouldn't be where I am today. And every day I'm getting closer to getting out and being with my kids."

Finally, a third woman who's made it and is graduating:

"It gave me a new chance at life. And I'm a mom."

Two years gone from the Magic Valley, and I can still hear clearly each of those voices.

The same paper carries sad news of my judicial tormentor back there. I hope he finds rest.

ID: drug court or due process - choose one

From KTVB:

Drug Court not bound by traditional due process rules

The Idaho Court of Appeals has ruled that drug court defendants can be booted out of the program at the judge's discretion, without evidentiary hearings or other criminal due process procedures...

The opinion, State of Idaho vs. Paul Rogers, is available here (pdf file).

Big A & C kudos go out to Judge Karen Lansing for a dissent which name-checks the phrase that pays:

The majority’s holding that pre-termination due process is unnecessary... is unsatisfactory for a number of reasons. First, by requiring no process before the drug court expels a participant, the majority’s approach allows termination based on nothing more than unsubstantiated allegations or rumors or simple animus. In other words, it allows drug courts to initially terminate participants capriciously, on little or no grounds, leaving it up to the terminated participant to bring a post hoc challenge to the termination. I do not imply a view that the drug court in this case acted arbitrarily or capriciously; I merely point out that the majority opinion imposes no standards or procedures that would protect against it.

WA: Seattle drug war comix

From Reason magazine, via Seattlest, cartoonist Peter Bagge takes a field trip -

The Beast That Will Not Die - Trying to Stop America's Seemingly Unstoppable "War on Drugs" -

- including this visit to Drug Court:

While it may beat going to jail, opting for this program basically means inviting the state to crawl up your ass and live there for two whole years. It's humiliating!

... Personally I find the whole thing nauseatingly paternalistic. Our courts now resemble daytime talk shows! (hyperbole in original)

More Peter Bagge cartoons from Reason here.

Of two minds on "holistic" lawyering

An article from Tucson law professor David Wexler:

Therapeutic Jurisprudence and the Rehabilitative Role of the Criminal Defense Lawyer

In this article, I will identify the potential rehabilitative role of the attorney from the beginning stages -- possible diversion, for example -- through sentencing and even beyond -- through conditional or unconditional release, and possible efforts to expunge the criminal record.

Or perhaps "habilitative" for the percentage of clients who were never habilitated the first time.

In the area of criminal law, the practical side of therapeutic jurisprudence has, to date, been reflected more in judicial activity than among the practicing bar... Since judges are in an enviable position to influence local legal culture and climate, it is likely that courts will encourage the development of a criminal law bar attuned to these concerns. Indeed, even without a push from the judiciary, some lawyers have begun to practice criminal law in a specifically therapeutic key. Mostly, interested lawyers will likely augment a traditional criminal law practice with the more holistic approach suggested by therapeutic jurisprudence, and the present article seeks to point interested practitioners in that direction.

I'm of two minds about this, most decidedly. One side is the therapeutic lawyer, getting my client probation and some programs, suggesting some ways to lift that monkey off his back. Tempermentally, and as for wanting the best outcomes for my clients, that side suits me very well. The other mind, though, belongs to the lawyer sworn to be a zealous advocate, standing in the breach and poking holes in the government's case, finding ways to get the client off, jurisprudentially speaking.

Particularly when it comes to beating substance abuse, I'm almost ready to say, by any means necessary. Ever seen how your clients look healthier when they've been off the street a few days? I've been in the position at the meetings before Drug Court, knowing that it could do a strung-out or spun individual client some good to stay in jail a bit longer, yet advocating my client's desire to get out and be free. I know, possibly free to use again - talk about your "negative freedom."

But it's a problem when the Drug Court offer comes before discovery comes, before the lab test comes, before any meaningful chance to vet the case for defenses and suppression issues, and when the price of admission is a guilty plea. The client has to roll the dice, and if he opts out or washes out of Drug Court, it's case closed.

When the therapeutic authorities come to push, some times clients shove back. Some clients reject Drug Court, which is stickier for them after they've signed up for the program. That's when the iron hand of coercive rehabilitation comes into view, with "graduated sanctions." I'm always going to be skeptical of government officials saying, "we've punishing you for your own good." Paradoxically, though, in the case of problem-solving courts, and with substance abuse, there's some scholarly support for the claim that it works. I want my clients to be free of cops and addiction. What's a criminal defense lawyer to do?

Reminds me of the time the juvenile prosecutor told my juvenile deputy, "you don't get it: we have to convict your client before we can help her!"

(The historian and critical theorist Christopher Lasch had more than a few interesting things to say about the ways that the therapeutic state can override liberty interests and clients' freedom.)

Link via CrimProf Blog.

Mostly saying hooray for our side

As you know, I'm always right there on the cutting edge of criminal justice trends, so Friday afternoon I'm covering Mental Health Court, and Sunday morning I'm reading this in the local paper:

Specialty courts help cut costs - Innovations to break criminal cycle add to system's savings.

(This would also explain why that photographer was following Bob around:

Either that, or that '70's orange upholstery is coming back into style.)

It's a good article about the problem-solving court approach, and other changes being adopted by the justice system here in the South Sound. By lumping the changes in the Office of Assigned Counsel together with Drug Court and Mental Health Court, readers could get the impression that public defenders are problem solvers, innovators and dollar savers too. That's not bad publicity:

While hiring more public defenders and running programs such as the county's drug court and mental health court take money from the general fund, officials say the changes are paying for themselves. A $400,000 investment in new attorneys already has been made up in savings at the Office of Assigned Counsel. The office added five attorneys to its seven-attorney staff this winter, along with two new support staffers.

Including you-know-who.

Here's a graph from the Daily O of the shift in indigent defense spending:

"We're spending less money and giving better service," says OAC director Sally Harrison. How bad can that be?