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.  

 

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.  

Court Chat: Enhancing Employment for Treatment Court Participants

Join advocate and 2014 treatment court graduate Carrie McCoy as she explores the benefits of enhancing employment opportunities for treatment court participants, and how employers can improve the hiring process to overcome systemic barriers to employment for individuals in recovery. This edition of Court Chat is proudly presented by the Racial and Ethnic Disparities Initiative (REDI) at American University, in Washington, DC.

New Publication! An Equity and Inclusion State of Mind: A Statewide Approach to Addressing Racial and Ethnic Disparities in Treatment Courts

The criminal legal system has a well-documented history of racial disparities and mistreatment of minoritized racial and ethnic groups. Treatment courts are a part of this same system and unfortunately, have not been exempt from racial and ethnic disparities in its programs. American University and the Center for Justice Innovation collaborated to assist treatment courts in several states in tackling racial and ethnic disparities. This report outlines results and policy recommendations derived from American University’s and the Center for Justice Innovation’s racial and ethnic disparities statewide training and technical assistance collaboration.

Read the report here.

If you’d like additional information, please reach out to Karen Otis (otisk@innovatingjustice.org) or Zephi Francis (zfarncis@american.edu). 

Revelations from a Research Article on Racial and Ethnic Disparities in Treatment Courts

I’m excited to announce the publication of the article Color in the Court: Using the Racial and Ethnic Disparities (RED) Program Assessment Tool to Promote Equitable and Inclusive Treatment Court Practice published in Alcoholism Treatment Quarterly. This study was conducted by a team from American University (AU) and Morgan State University (MSU). This commentary will provide a concise summary of the article’s key findings and implications for treatment courts. 

Instead of the typical punitive model in the criminal legal system, treatment courts address the root causes of substance use disorders (SUDs) and mental health disorders that often lead to incarceration or other forms of involvement in crime. Treatment courts have gained traction for their restorative and rehabilitative approaches. These courts reduce criminal recidivism rates, assist people on a path of recovery, and save communities money.

Nonetheless, it’s vital to acknowledge and address the racial and ethnic disparities that exist within the criminal legal system, including treatment courts. This is where the Racial and Ethnic Disparities Program Assessment tool (RED Tool)  plays a vital role in rectifying RED in treatment courts. The RED tool provides a comprehensive evaluation of RED in treatment courts to promote equity and inclusion within courts. The tool narrows in on distinct goals as part of its foundational design, which includes raising awareness about RED, highlighting existing inequities within courts, and offering recommendations on alleviating racial and ethnic inequities in programs. The tool sorts data into 8 different sections allowing for a thorough analysis of treatment court practices. 

The sample for this study consisted of about 13% of treatment courts in a Midwestern state. Below are several key findings from the study.

  • The completion rates reveal that minoritized participants, including African American, Biracial, and Hispanic participants had completion rates of less than 30%. In contrast to their White counterparts, who attained a completion rate of 64.9%.
  • Data from the study suggests that only 37% of courts have reviewed their graduation rates to examine disparities among different racial and ethnic groups. 
  • On the topic of mandatory training, only 6% of courts required staff to complete cultural competency training. 
  • Further data reveals that merely 47% of courts agreed with the statement, “our team is racially and ethnically diverse.”
  • Within this study, it’s important to note that none of the treatment courts mentioned racial equity within their mission statements.

For more findings, please read the full article here

There is no doubt that treatment courts work, however, there is always room for growth. When treatment courts complete the RED tool and implement its recommendations, they should see improvements in access, retention, and overall program satisfaction for minoritized participants, which should lead to participants finding their path to recovery. According to SAMHSA, National Recovery Month is celebrated each September to promote and support new evidence-based treatment and recovery practices. We want to thank the treatment court professionals involved in providing prevention and treatment. Lastly, we celebrate those who are moving forward on their recovery journey.

A Vital Takeaway from 2019: Collaboration May Be Our Strongest Tool

People walking on a calendar

As 2019 comes to a close, we reflect on the year’s accomplishments. 2019 is my first year working at the Justice Programs Office and on the Right to Counsel National Campaign (R2C), and I’ve been surprised by the level of collaboration I see between criminal justice stakeholders on the issue of the right to counsel. Perhaps I had low expectations—when your justice system model is called “adversarial,” common goals don’t sound easy to come by—but as I learned more about the repercussions of poor public defense, I began to understand the imperative for collaboration. An effective public defense delivery system helps other parts of the criminal justice system function properly, and many of those who work in this system every day understand that. In terms of meaningful, systemic change, I’m aware that an interest in working together is just the tip of the iceberg, but it’s a key start. I’d like to touch on a couple of highlights from 2019 that can inspire us as we move forward.

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Changing Course: Counteracting the Criminalization of Trafficking Survivors

Young african american with his head down

Over the past decade, there has been an increased public awareness that sex trafficking survivors are being arrested and prosecuted for prostitution. Accordingly, many jurisdictions have opened specialty courts for these survivors. This is progress, but in the grand scheme of things, we have only scratched the surface of the problem.

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Investing in Equal Access to Quality Public Defense

Stacked office filesLast month, California congresswoman and Democratic presidential candidate Kamala Harris introduced the Ensuring Quality Access to Legal Defense (EQUAL Defense) Act. If passed, the bill would create a $250 million grant program aiming to establish workload limits for public defenders and pay parity between public defenders and prosecutors. The bill would also authorize $5 million to provide training to public defenders.

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How Human Trafficking Myths Hurt Survivors

person standing in the darkDisclaimer: Possible sensitive material. The author discusses the nature of human trafficking situations and means of control.

During my undergraduate years, I embodied the enthusiastic student suddenly emboldened by the idea that I could do something to change the world. When at a campus event, I was shown a video that detailed the (fictional) story of a young woman from Eastern Europe who was kidnapped and brought to the United States for forced work in the sex industry. The woman was moved around the country and was locked in various homes, hidden away from everyone except for her captors and clients. She only managed a dramatic escape by breaking free of her chains and running towards good citizens for help. Like most Americans, this was my introduction to the issue of human trafficking.

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Civil Legal Aid Offers a Second Chance and Keeps Americans Working

A person in the shadows.

April is Second Chance Month and, with that, we celebrate the important role legal aid organizations and public defense providers can play in helping people with criminal records. There are tens of thousands civil collateral consequences of having a criminal record, such as having to disclose prior convictions on job applications, difficulty securing an occupational license, or losing one’s drivers’ license. Receiving legal services can help stabilize housing and reduce barriers to employment for the almost 75 million, or one-in-three, American adults facing these consequences.

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