Author: Matt Collinson

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Celebrating Governor Moore’s Historic Clemency Initiative

(Photo Credit: Essence Magazine https://www.essence.com/news/governor-wes-moore-pardons-thousands-of-marijuana-convictions/)  

On Monday, June 16th, Maryland Governor Wes Moore announced the largest single clemency initiative for people convicted of crimes related to marijuana. These convictions largely stemmed from America’s misguided, ineffective and incredibly costly war on drugs. As reported by the Washington Post, the initiative is expected to pardon approximately 175,000 individuals convicted of misdemeanor crimes related to marijuana possession, including some convictions related to possession of drug paraphernalia. Gov. Moore’s office believes these pardons will be granted to almost 100,000 Marylanders, and while demographic data on who is impacted isn’t yet available, most commentators are predicting these pardons will most likely remove convictions and collateral consequences for Black and Brown Marylanders. During the week of Juneteenth, a celebration of freedom from slavery for Black Americans in the south, Gov. Moore is addressing one of the legacies of slavery, Jim Crow, and racialized mass incarceration that haunt us to this day – the permanent underclass comprised of people with a criminal conviction, especially a drug conviction.  

Gov. Moore and others have noted that the pardons issued this week will not let anyone out of prison or jail (MD legalized marijuana possession by constitutional amendment in 2022) and will probably not get anyone off probation early either. But what it does do, is start to address the glaring racial disparities in our legal system and seek to mitigate the “permanent punishment” (to quote the End Permanent Punishment Initiative in IL) imposed on people with criminal convictions (even if they never served a day in jail).  

What Gov. Moore and his administration have done in pardoning 100,000 (likely predominantly Black) people who are not currently in prison, is to release from them a vestige of slavery where people with criminal convictions (especially drug convictions) are relegated to a second-class citizenship, for years or decades after they have served their sentence.  

There are an estimated 44,000 collateral consequences (or examples of permanent punishment) for people with a criminal conviction. These include legal barriers to (often  constitutionally protected) activities and rights such as, owning a firearm, voting, serving on a jury, accessing some affordable housing or welfare, But the bulk of the consequences of a criminal conviction relate to barriers to employment. For example, incarcerated people who fought forest fires for $5 a day while incarcerated, were almost all ineligible to join the fire service, and get paid a fair wage for their work, after their release from prison. These almost 30,000 barriers can be imposed by employers, licensing agencies, or other civil entities that can bar people from professions as diverse as lawyers and barbers.  

Many of these licensing restrictions rely on “good moral character” clauses, which do not specifically say that someone with a criminal conviction is automatically a person not of “good moral character” but in many cases, that’s the de-facto understanding. State Rep. Tarra Simmons had to sue the Washington state bar association to allow her to sit for the bar, after they rejected her for serving 30 months in prison for drug related felonies. Rep. Simmons was able to show the bar associations that her actions were taken under the crushing weight of an opioid addiction, desperate to avoid withdrawal, and not those of a bad person (which having had the opportunity to meet her through a previous job, I can confirm she’s a wonderful and warm individual).  

From a public health perspective, Gov. Moore’s actions make perfect sense, and while we don’t know how many people (if any) who he pardoned this week suffered from a substance use disorder; carcel consequences, lack of access to jobs, and housing insecurity are likely to cause people to use more drugs, not less. It’s also worth noting that many people use marijuana to treat physical and mental health conditions, from migraines to PTSD. All these conditions may be exacerbated by shutting people out of work, housing, education, and access to resources to rebuild their lives.  

The consensus from everyone in the scientific community, the public, and much of law enforcement, is that we cannot arrest our way out of the current drug crisis we’re experiencing. I contend that permanently punishing and locking people out of society for their past struggles with substance use is just as futile. Gov. Moore has made a huge step forward in addressing this and righting a historical and highly racialized wrong. Hopefully, other states follow his evidence-based lead.  

 

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Who’s Missing from our Treatment Courts – Increasing Access and Equity 

In 2023’s edition of Painting the Current Picture, the National Treatment Court Resource Center reported that across the United States, over 140,000 people were served by treatment courts in 2019 & 2020. From humble beginnings in the late 1980s to over 3500 hundred programs currently operating in every state in union is a testament to the success of the treatment court model, and the thousands of dedicated staff and organizations who make treatment court happen day in, day out. The treatment court model is one of the most well-researched, well-funded, and empirically backed justice interventions ever created. Participants who complete treatment court programs are less likely to commit new crimes, show significant reductions in the symptoms of substance use disorder, and higher level of recovery capital, compared to those who fail to complete the program, or those who get standard responses such as jail or probation.  

As we enter National Treatment Court Month, in this 35-year anniversary of the treatment court model, it is important to acknowledge how far we’ve come, how many people we’ve helped, and, how much more we still must do. One of the biggest challenges facing the legal system, including treatment courts, is who is the program working for? At the most basic level, courts serving 140,000 people a year is a significant accomplishment, but, given that there are an estimated 8 million jail admittances each year, and that of those in jail, an estimated 70% have either a substance use disorder (SUD) or mental illness. There seems to be a huge pool of potential treatment court participants being missed.  

In addition, early scholarship suggested that treatment courts were failing to graduate Black and Latino participants at the same rates as their white counterparts, and while more recent data suggests that gap is narrowing, the fact remains that treatment courts are serving mostly white participants, in a legal system that disproportionately incarcerates and supervises Black and Brown individuals. Multiple recent studies have highlighted this disparity, generally, 70%+ of treatment court participants are white, compared to an average of about 40% of those in jails being white. Conversely, Black people make up almost 30% of the jail population, but less than 20% of the aggregate treatment court population. There are numerous reasons for this disparity, many outside the control of treatment court staff. Many decisions in the legal system also suffer from distributed responsibility, it’s rarely one decision that sets the course for an individual’s case processing, but many, small decisions by many different actors which cumulatively impact their experience, and racial disparities within the system. So how should treatment courts respond to these pre-existing disparities, and in compliance with the Adult Treatment Court Best Practice Standard (Standards) II, Equity and Inclusion, to ensure that their intake and eligibility policies and practices promote equity of access?  

At American University, we’ve been working with treatment courts on issues related to equity of access for decades, and we’ve found a few areas where courts can increase equity of access and ensure that courts are serving all eligible participants. Firstly, courts should ensure that they are setting their criteria using evidence, which the Standards require that treatment courts serve High Risk and High Need individuals, and that’s it. Too many courts we’ve worked layer subjective criteria on top of these evidence-based standards. Some refuse to accept those with previous or current violent charges. The limited evidence we have shows people with violent charges do just as well in treatment courts, and a growing body of evidence suggests that those who commit violent crimes are less likely to re-offend than those with drug, property, or public order convictions. Evidence also suggests that most of the disparities in jail admissions can be explained by those charged with violent crimes. For treatment courts, serving those with violent charges is likely to reduce disparities in access, and keep communities safe, while saving significant costs associated with incarceration.  

Treatment court should consider all the factors and not deny access to those who sell drugs. All the evidence we have suggests that almost all people who use drugs also sell some to support their habits. The decision to file a possession charge versus possession with intent to distribute, or other charges associated with drug sales, can derail someone’s access to treatment courts. Obviously, there is a significant difference between someone who is only selling for profit and who has no SUD (but they would likely not screen as High Need), and someone selling to support their habit, but blanket bans on those who sell or have sold drugs severely misrepresent the population of people who use, especially illicit, drugs.  

Finally, courts should avoid broad exclusions which may unintentionally harm Black, Indigenous, People of Color (BIPOC) participants, such as those without access to transportation, those without funds to pay program fees, those who have a “gang association” or those who “don’t seem motivated” etc. Part of the role of treatment court is to get people who have been struggling with addiction and its effect on their lives for a long time, back on their feet and re-integrated into their communities. For many, stopping using drugs is the primary need, and getting out of the gang, getting a job or financial security, access to a vehicle etc., are all goals that can be met after they stop using and start treatment.  

Treatment courts have been serving their communities effectively for 35 years, but to ensure we are reaching all those who are eligible for our services, we need to be sure we’re not excluding people based subjective, or worse, racially biased, character assessments or characteristics. Treatment courts exist to serve those who criminal behavior is driven by substance use and / or mental illness, and it’s important that we don’t add additional, unnecessary, barriers to access.  

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Painting the Local Picture – Understanding Disparities Data in Local Treatment Courts

From the main stage at All Rise 2023, the largest ever gathering of treatment court professionals, participants and supporters, Doug Marlowe, Senior Scientific Consultant for All Rise (formerly NADCP), told the 5000 or so people in the room that, as a field, treatment courts have failed to address disparities in treatment courts. Over the course of the field’s 30-year history, report after report (including our research from this year), has shown that treatment court participants are predominantly white, and that Black, Indigenous, and People of Color (BIPOC) individuals graduate at half the rate (or worse) of their white counterparts.

Twenty-four hours later at the conference, an audience member in our session, who had been working with treatment courts since the late 90s bemoaned this same fact in response to our report on the statewide data we’d collected, “why do we keep gathering data” he asked, we don’t need more data, we need to fix this problem of disparities in courts. In a country with a 400-year history of legally sanctioned racial discrimination, it’s hard to stomach the reality that treatment courts, with our innovative approaches and individualized case planning, are at best not helping address disparities, and at worst, might be upholding them.

But part of the reason we keep telling courts to collect and analyze their racial and ethnic disparities (RED) data is that for 30 years many treatment courts have been bad at it. We do have national or state level reports, but they don’t tell us what’s happening in your court, and more importantly, the high-level data in national reports doesn’t capture the nuance of why people aren’t getting accepted into the program, what’s happening to them on their treatment court journey, and what’s stopping them from graduating.

I agree with the audience member from the conference (and I did tell him so personally), we don’t necessarily need more national data, but we do need courts to track and analyze their RED data regularly. There’s a reason the Adult Drug Court Best Practice Standard Two exists and stands alone, racial equity in courts does not just happen, we must pay attention to it, track data on it, and respond when we see inequalities and disparities. Not regularly and systematically tracking data on disparities is a violation of Standard Two (to paraphrase Dr. Marlowe).

So, if we want to take that warning seriously, what should we be paying attention to? We want to know about the people in the program, but what about those who didn’t make it? Are Black people excluded because their criminal history, where-as white people aren’t? Are Black and Brown men overwhelmingly opting for jail instead of the program while white people are 50/50? Are there specific requirements that are tripping up some folks and not others. Our colleague Anne Dannerbeck-Janku found that requiring participants to have a full-time job to graduate was impeding Black participants graduation much more than white participants. There are several of potential reasons for this, and I don’t have any concrete answers, but we know from employment and hiring research that it is easier for a white man who went to prison to get a job than for a black man with no criminal history to get the same job, so that may have been part of it. This doesn’t mean you should throw out the requirement to have a job completely (as a job is great for both maintaining recovery and reducing future crime), but are there ways to make it more equitable?

The data is the start to a conversation, what phases are people dropping out of / getting stuck in, are there patterns by race or ethnicity, are there consistent reasons participants give during exit interviews for their success (or lack thereof)? We are often beaten over the head with graduation data, but looking for disparities in your programs starts much earlier than that, who is in (and why), who is out (and why), who is dropping out in phases 1 or 2 (and why), etc. There might not be easy answers, but that’s where experts from American University can come in to support you and think about what your data might mean.

If you want to start a conversation with us about how to collect, and understand, data on disparities in your program, reach out to us today at redtool@american.edu

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Can Treatment Courts Serve Those Convicted of Crimes Of Violence?

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The COVID-19 pandemic is, to date, responsible for over  91,000 US fatalities and levels of unemployment not seen since the great depression. National Social Distancing Guidelines and State Stay-At-Orders in nearly all 50 states have upended many social norms and have led to deserted streets, empty shopping malls, empty schools and college campuses, and entire companies working from home.

However, one system where the need for social distancing, large scale testing, and enhanced medical care have been largely ignored is the justice system where the dangerous conditions in prisons and jails has led to uncontained outbreaks in several facilities. Some prisons and jails have released people in attempt to allow for social distancing, but those released have primarily been those convicted of non-violent crimes.

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Honoring Unique Identities in JDTCs

diverse group of hands put togetherAt almost every decision point in the US justice system, disparities of gender, race, and ethnicity can be observed. Even in the juvenile justice system, which is meant to be rehabilitative, black youth are locked up at almost five times the rate of white youth for the same crimes. It is also estimated that as many as 39% of incarcerated girls may identify as LGBTQ. Upstream in the justice decision-making process, black youth are far more likely to be arrested and charged compared with white youth, and white youth are more likely to be offered diversion (an intervention or alternative to incarceration) programs. Sadly, Juvenile Drug Treatment Courts (JDTCs) are no different, a 2016 study found that minority youth are underrepresented in JDTCs, and even if they are offered the opportunity to participate, minority youth have a lower rate of graduating JDTCs than white youth.

Of all the interventions in juvenile justice, JDTCs, with their explicit dedication to individualized case planning, engaging the participant’s family and community, and individualization of programming and responses to behavior, should, in theory, be equipped to support all youth in their access to, and graduation from, their programs. But, despite the incredible potential in the JDTC model, and the deeply committed and caring staff who work in JDTCs nationally, something isn’t quite working for all the young people they serve.

I don’t claim to have all the answers, but I would like to offer one suggestion. We must avoid falling into the trap of treating everyone equally, rather we must ensure we are treating everyone equitably. Equitable treatment means we must acknowledge differences in experience and culture and incorporate those differences into the case plans we develop for our young people.

Our nation has a history of mistreating and subjugating people based on race, gender, sexual identity, indigeneity, and a myriad of other identities, and people get understandably nervous when we start talking about acknowledging and giving the space for racial and gender differences. But in the context of a young person seeking recovery, this may not just mean recovering themselves, but also recovering and grounding themselves back in their identity within their community, ancestors, family, or tradition. As we recognize Global Diversity Awareness Month this October, with its explicit call to recognize and honor diversity and cultural differences, it seems timely to reflect on the services JDTCs provide, and how we can ensure cultural traditions and diverse racial experiences are honored in our programs.

Despite our commitment to honoring the individual experience, JDTCs may not offer therapy targeted at addressing generational trauma, or the historical impact of racism on people of color, despite research showing that these traumas manifest themselves in both physical and emotional ways. This is not to say that all black children experience, or internalize, racism in the same ways, but a holistic approach to recovery must include the opportunity to acknowledge, process, and begin healing from scars inflicted as a result of one’s race. Normal Cognitive Behavioral Therapies do not focus on this, but there are programs, such as the HEAT program, that do. HEAT was designed by black men, for black men, to help them rediscover themselves through spirituality, community, and family. This program goes beyond the idea that to engage in therapy it helps young black men to have someone who looks like them, and instead demands that the therapist and the curriculum help them process all their experiences, including those directly related to race, in order to begin to recover.

Not every JDTC can access the HEAT Program, but all JDTCs can think critically about the populations they have; or, based on demographics in their systems, the populations they should be targeting, and what needs or programming might aid the recovery of those populations. I was in a JDTC a while back that had an influx of refugees, and aside from the standard issues with finding translators and interpreters, the team had made very few adjustments to their program to help youth and families cope with the trauma of fleeing home, seeking asylum, or adjusting to life in the US. Skilled therapists would be able to help these young people process some of the trauma, but they should also consider what community or spiritual practices the family holds dear that would aid them in their healing process. JDTCs should consider how they might be a partner with the community to facilitate this healing (without being appropriative).

Given our history, and contemporary fears around racism and sexism, it is understandable that JDTC staff become nervous when discussing race or gender-based interventions for young people. However, it is important to understand that the way to help young people recover is to allow them to connect with all areas of their identity, and that requires us as staff to acknowledge them, honor them, and provide services based upon their unique needs, including needs related to race and/or gender.

By recognizing these different identities and experiences in our case plans, JDTCs may finally be able to live up to their true, individualized, potential.

 

Want to know more about addressing racial and ethnic disparities (RED) in your JDTC? Check out the NDCRC’s new RED Program Assessment Tool, or email jdtc@american.edu to learn more about our RED focused TTA.

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Building Blocks to Success – Celebrating Achievements in Your Drug Court

A sea of graduating students

Almost seven years ago, New York Times columnist Allina Tugend wrote an insightful column on redefining success, quoting author Katrina Kenison: “There’s a beauty in cultivating an appreciation for what we already have.” This National Drug Court Month, I wanted to congratulate all Juvenile Drug Treatment Court (JDTC) practitioners on your tireless work and encourage you to cultivate an appreciation of what you have accomplished; to think beyond the traditional measures of success, specifically the expectation we place on our participants to graduate.

Almost every time I travel to work with a JDTC, I end up telling this same story. It’s not even my own, it’s Dr. Jaqueline Van Wormer’s, but it’s a good one, so I’m going to share it with you:

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Modest Reform: How JJDPA matters and why it is still not enough

On December 21, President Trump signed H.R.6964 – Juvenile Justice Reform Act of 2018. This law reauthorizes the Juvenile Justice Delinquency Prevention Act (JJDPA) Reauthorization Act. First authorized in 1974, the act ensured certain minimum standards for the treatment of youth in the justice system, banning incarceration for status offenses (such as drinking, which is prohibited only based on the age of the accused) and adopting a requirement that youth incarcerated in adult facilities have sight and sound separation from adult inmates. Since 1974, reauthorizations of the law have included provisions that require states address racial and ethnic disparities in the justice system and incentives for states to use evidence-based interventions to reduce juvenile delinquent activity.

However, despite seeming longstanding federal commitment to the idea that all young people deserve a second chance, the JJDPA had languished, pending reauthorization, for more than ten years. So, when Trump signed the reauthorization act on the coattails of the much anticipated Second Chance Act, juvenile justice practitioners everywhere (myself included) were relieved and elated.

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Validate Me!! In Defense of [Properly Utilized] Risk Assessments

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How do you know whether the young person in front of you in court is likely to commit another crime? Historically the American justice system has looked at somewhat subjective factors like, “what crime did you commit?” or “have I seen you in court before?” In the past twenty years, the justice system has attempted to standardize the assessment of an individual’s likelihood of recidivism, reduce subjectivity, and target intentions at those who need them most. Continue reading “Validate Me!! In Defense of [Properly Utilized] Risk Assessments”

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In Re Gault – Progress or Regression

“The Road to Hell is paved with good intentions.” – Unknown

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As I walked into my first (and only!) law class in grad school, there was a quote written on the whiteboard. Our professor looked at us and asked, “How does this apply to our case today?” The case in question was “In re Gault,” the landmark US Supreme Court case which established the right to counsel for juveniles in delinquency cases in 1967. That may have been my only law class, but I continue to grapple with the issues raised by this case through my work training and providing technical assistance to juvenile drug treatment courts. In the 51 years since Gault, we’ve come a long way to ensure justice for youth, but there are still steps we need to take, especially when it comes to the right to counsel.

Continue reading “In Re Gault – Progress or Regression”