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Criminal Justice Institutions and Community Resources

ROLE OF THE COURTS

As policy makers struggle with the challenges of prisoner reentry, attention has increasingly focused on what role the courts might play. In the current allocation of responsibilities for prisoner reentry, courts traditionally play a marginal role. Usually a court’s responsibility ends when a defendant is found or pleads guilty and is sentenced by the judge. Appellate courts may hear issues on appeal, but the trial judge’s responsibility usually ends when the trial ends. Judges typically have no role in the broad array of activities that carry out the terms of the sentence, prepare the inmate for release, or transition the returning prisoner back to his status as a member of the community (Office of Justice Programs, 1999). However, in the last 15 years, courts have begun to play a more active role in overseeing the sentences they impose, and there is growing interest in a new form of jurisprudence whereby judges oversee “specialized” or “problem-solving” courts with the goal of assisting in offender rehabilitation.

Some seven years ago, Court Review, the official journal of the American Judges Association, devoted an entire special issue (Vol. 37, No. 1) to the theme of therapeutic jurisprudence, an interdisciplinary perspective that seeks to augment the law by bringing to it insights from psychology, criminology, social work, and related behavioral sciences. The special issue of Court Review is significant because it evidences a movement of therapeutic jurisprudence from an academic perspective to a tool for actually changing practice. The special issue was introduced by Judge William Schma (2000)



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5 Criminal Justice Institutions and Community Resources ROLE OF THE COURTS As policy makers struggle with the challenges of prisoner reentry, at- tention has increasingly focused on what role the courts might play. In the current allocation of responsibilities for prisoner reentry, courts tradition- ally play a marginal role. Usually a court’s responsibility ends when a de- fendant is found or pleads guilty and is sentenced by the judge. Appellate courts may hear issues on appeal, but the trial judge’s responsibility usually ends when the trial ends. Judges typically have no role in the broad array of activities that carry out the terms of the sentence, prepare the inmate for release, or transition the returning prisoner back to his status as a mem- ber of the community (Office of Justice Programs, 1999). However, in the last 15 years, courts have begun to play a more active role in overseeing the sentences they impose, and there is growing interest in a new form of jurisprudence whereby judges oversee “specialized” or “problem-solving” courts with the goal of assisting in offender rehabilitation. Some seven years ago, Court Reiew, the official journal of the Ameri- can Judges Association, devoted an entire special issue (Vol. 37, No. 1) to the theme of therapeutic jurisprudence, an interdisciplinary perspective that seeks to augment the law by bringing to it insights from psychology, crimi- nology, social work, and related behavioral sciences. The special issue of Court Reiew is significant because it evidences a movement of therapeutic jurisprudence from an academic perspective to a tool for actually changing practice. The special issue was introduced by Judge William Schma (2000) 6

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6 PAROLE, DESISTANCE FROM CRIME, AND COMMUNITY INTEGRATION in an article titled “Judging for the New Millennium.” Applying a thera- peutic jurisprudence perspective in practice, Judge Schma advocates that judges become active “problem-solvers” in their courtrooms. Therapeutic jurisprudence has been most readily brought into play in judicial proceedings of specialized treatment-oriented courts, or “problem- solving courts.” Therapeutic jurisprudence recognizes the reality that the legal system may not have the expertise to solve social and behavioral problems, but that courts can lead a multidisciplinary team to promote behavioral change. The most mature example of the judiciary’s involvement in specialized courts the involve offender rehabilitation is the drug court. First imple- mented in 1989, the growth of drug courts has been unprecedented: there are now more than 1,550 drug courts now operating in the United States (National Institute of Justice, 2006). In a drug court, judges use a case management approach to identify and coordinate local services that help offenders refrain from drug use. When violations of the drug court contract occur, the judge usually administers a predetermined set of graduated, par- simonious sanctions for violations. Studies suggest that recidivism rates are lower for drug court partici- pants (and have been reported to be as low as 4% for program graduates), although the recidivism statistics vary by the characteristics of the specific drug court and its target population (National Institute of Justice, 2006). Unfortunately, many of these studies are not empirically rigorous; therefore, it is uncertain whether the drug court alone was responsible for the low recidivism rates. Nonetheless, the evidence does show that the best adult drug courts are effective at reducing system costs, crime, and drug use (U.S. Government Accountability Office, 2005). Urban Institute researcher John Roman (2005, available: http://www.urban.org/publications/900803.html.) recently summarized the available evidence noting: There have been more than 100 research studies about adult drug courts and if you look at the best, most rigorous 25 of those, you probably come to the conclusion that drug courts reduce criminal offending by 15 to 20 percent. So this is not a panacea but represents a real reduction in offend- ing levels. Judge Cindy Lederman of the 11th Judicial Circuit Court in Florida noted at the workshop that the essential component needed in a reentry court is some sort of motivation for a litigant to change. For example, in dependency courts, where therapeutic jurisprudence concepts have always been used and are even part of the law, people’s children can be taken away, and yet many defendants are not motivated to do what is necessary to get their children back. Providing incentives for releasees to change may require fundamental changes in the law and in judicial and criminal justice

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6 CRIMINAL JUSTICE INSTITUTIONS AND COMMUNITY RESOURCES philosophy. For these models to work for the more than 600,000 people who are released from prisons and return to local communities each year, a fundamental change in the use of judicial resources will almost certainly be required. The question becomes one of cost effectiveness: Is it worth it? Are these problem-solving courts better, more effective, than traditional courts that function well? REENTRY COURTS Due to the perceived success of drug courts, judges have become more receptive to new problem-solving approaches to adjudication, and the drug court model has now been extended to domestic violence courts, family treatment courts for dependency proceedings, mental health courts, and DWI offenses (driving while intoxicated or, in some jurisdictions, driving under the influence) (for an overview, see Casey and Rottman, 2003). Jeremy Travis1 urged the application of the specialized court model to prisoner reentry in 2000. As with drug courts, Travis proposed that active judicial authority could be applied to a “reentry court” to provide graduated sanction and positive reinforcement and to marshal resources for offender support. Drug courts usually operate prior to a prison sentence (e.g., as a diversion program); reentry courts would operate after prison (Travis, 2000). In his book, But They All Come Back, Travis (2005) noted several benefits to reentry courts, saying that they cut across organizational bound- aries, making it more likely that offenders are held accountable and sup- ported in their reentry attempts. Reentry courts can also involve family members, friends, and others in a reentry plan. He also noted that judges command the public’s confidence while, in contrast, the parole system is held in low public esteem. Moreover, judges carry out their business in open courtrooms, not closed offices, so the public, former prisoners, and family members and others can benefit from the open articulation of reasons for a government decision. Travis also believes that a judge is in a unique position, given the pres- tige of the office, to confer public and official validation on an offender’s reform efforts. Public ceremonies are thought to be critical to long-term suc- cess (Maruna and LeBel, 2003). Ideally, the judge who originally sentenced a prisoner would be the same judge who serves as that person’s reentry manager. Most importantly, reentry courts explicitly give recognition to the fact that an offender will come back to live in the community. 1 Then a senior scholar in residence at the Urban Institute in Washington, D.C., he had formerly been director of the National Institute of Justice; he is now president of John Jay College of Criminal Justice.

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66 PAROLE, DESISTANCE FROM CRIME, AND COMMUNITY INTEGRATION The core elements of both a drug court and a reentry court are similar (Office of Justice Programs, 1999): • Assessment and planning: Following assessment of inmates’ needs, corrections officials—working in conjunction with the reentry court judge—establish linkages to social services, housing, job training and work opportunities to support successful reintegration. • Actie oersight: Reentry court clients are seen frequently, prob- ably once a month, beginning right after release and continuing until the end of their parole. • Management of support serices: A case manager brokers an array of resources. • Accountability to the community: A mechanism exists for incorpo- rating community perspectives, such as a citizen advisory board. • Graduate and parsimonious sanctions: A predetermined range of sanctions for violations of parole conditions would be swiftly, pre- dictably, and universally applied. • Rewards for success: Milestones in the reentry process trigger recognition and rewards through positive judicial reinforcement (for example, graduation ceremonies and early release from parole supervision). Operationally, a reentry process would start at the time of release from prison, when a “contract” would be drawn up between the court and a parolee.2 The contract would list the conditions the parolee must follow, and the parolee would be required to appear in court every month to dem- onstrate how well the contract is working. The court appearances need not be long; they are designed to remind the parolee of the conditions in the contract. If the judge determined that a parolee needs more help, she or he could quickly mobilize the necessary resources. If a parolee failed to abide by the contract, the judge could use a variety of intermediate sanctions to encourage compliance. At the end of the period of supervision, the judge would oversee a “graduation ceremony.” These ceremonies are designed to celebrate the individual’s successful reentry into the community. Petersilia (2003) also endorsed the reentry court model and suggested that it incorpo- rate goal-oriented parole, where the length of time in a reentry court would be reduced as an offender met or exceeded court expectations. In February 2000 the Office of Justice Programs began the Reentry Courts Initiative (OJP-RCI), designed to provide technical assistance to jurisdictions interested in developing reentry courts. Nine pilot sites were 2 Althoughwe limit the discussion to parolees, in principle released prisoners who are not on parole could also fall under the jurisdiction of a reentry court.

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6 CRIMINAL JUSTICE INSTITUTIONS AND COMMUNITY RESOURCES selected: California, Colorado, Delaware, Florida, Iowa, Kentucky, New York, Ohio, and West Virginia. The programs operated rather similarly except for their target populations (see http://www.ojp.usdoj.gov/reentry/ communities.html [accessed August 2007]): • One of Iowa’s programs focused on offenders with dual diagnoses of mental health and addiction problems), that is, the drug addic- tion disorder co-occurred with their mental health disorder. • Delaware’s Reentry Court focused on offenders who had served particularly long prison terms. • The Kentucky programs focused on nonviolent drug offenders who had served a portion of their sentence in prison and were then re- leased to an outpatient drug treatment program for 1 year (Hiller et al., 2002). • Ohio’s reentry court created an expanded presentence report for prison-bound defendants, which was translated into a reentry plan. The Ohio Department of Rehabilitation and Corrections then pro- vided the program services indicated on the reentry plan, and a newly created court-based position of “reentry liaison” visited the prisoner once a month while they were in prison. When the pris- oner was released, he or she was brought back to the sentencing judge at the time of release for aftercare services and supervision (Wilkinson and Bucholtz, 2003). A process evaluation of the reentry court pilot projects was done early in the program (Lindquist et al., 2003). The authors found that most reen- try courts did offer comprehensive services to their program participants, including substance abuse treatment, family counseling, employment and vocational assistance, and housing assistance. Judges who participated in the reentry courts continued to be supportive of the model, although numerous obstacles were identified with program implementation. The most common obstacle noted was the difficulty in finding employment and affordable housing for parolees. The researchers also noted difficulties in interagency cooperation, particularly among parole authorities, treatment providers, and the judiciary. The researchers urged an outcome evaluation of the reentry court model, but it was never carried out. At present, reentry courts are largely experimental, and neither their impact nor their costs and benefits have been rigorously evaluated. A 4- year study of inmates returning to Allen County, Indiana, found significant cost savings from the reentry court programs, but the offenders were not randomly assigned to program conditions (Lombard et al., 2004). Given the importance of the reentry problem and the success of handling other offender populations through the problem-solving court model, the costs

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6 PAROLE, DESISTANCE FROM CRIME, AND COMMUNITY INTEGRATION and benefits of reentry courts is a subject that begs for more rigorous research. It is critical to understand the impact of reentry courts on reoffending in comparison with traditional services. Without that information, one can- not determine how traditional parole agents can best interact with reentry court judges, whether the public will accept and community-based organi- zations will give priority to services for parolees when other needy popula- tions need those same services, or whether state legislators will be willing to pay for the costs of reentry courts. As is the case for other specialized courts, it is necessary to determine whether it is the charismatic leadership of a judge and the interaction with the client that leads to desistance and other positive outcomes or a strict adherence to a sanctioning protocol. Another possibility is simply that clients are getting more substance abuse treatment and other services than they would have otherwise had. If the last situation is the case, then couldn’t those enhanced services be provided by traditional parole agents rather than sitting court judges? These are all important questions in need of more rigorous research. COMMUNITY CAPACITY As a society, the United States has devoted relatively little thought and resources to helping people make the transition from the very structured system that characterizes prisons to freedom of movement and independent decision making in communities. And although the capacity of communities to which releasees return vary, most of them are inadequately prepared to assist formerly incarcerated people in making prosocial decisions, acquiring needed skills, and having the kind of opportunities (e.g., substance abuse treatment, employment counseling, and family reunification) that support successful reentry. A high proportion of releasees go to communities that are actually negative environments, with high crime rates or extensive drug markets that represent real threats to successful reentry. In some instances, communities have been fundamentally weakened in three ways: by indi- viduals’ criminal activities, by their absence due to incarceration, and then by the burden of their return (Kubrin and Stewart 2005; Clear et al., 2005, Travis, 2005). Community capacity for prisoner reentry refers to two types of capac- ity—social capacity and resource capacity. The role that communities can play in fostering successful reentry and desistance has been underestimated in most public policy discussions about former prisoners. Communities can facilitate behaviors that contribute to desistance when neighborhoods and broader communities try to reintegrate former prisoners into law-abiding roles. Success is more likely when releasees can readily find places to live, have supportive families, are offered employment or educational opportu-

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6 CRIMINAL JUSTICE INSTITUTIONS AND COMMUNITY RESOURCES nities, and have a way to participate in noncriminal networks. Successful reentry is not something a former inmate achieves alone, but in the context of and with the support of personal and community institutions, such as families, churches, and employers. Communities can also facilitate a return to criminal behavior by being unable or unwilling to provide support for releasees. Some communities can be characterized as disorganized, that is, social integration in them is low. The people in such communities are not closely connected by work, fam- ily, and institutions, so releasees are unlikely to receive the kind of support that facilitates successful reentry. Rather, such neighborhoods are likely to have crime-conducive activity and networks that a former prisoner can too easily return to—the same or similar activity and behavior that led to the person’s incarceration. The importance of an “integrated,” strong community as a regulator of behavior is an old idea in the social sciences (Bursik and Grasmick 1993; Shaw and McKay, 1969). In the last decade or so, renewed consideration of this idea has focused on collective efficacy—the capacity of a group of people in a neighborhood to work together to solve problems or otherwise take actions that affect their collective circumstances (Sampson et al., 1997). That is, a community uses its collective “social capital”—the links and networks between residents—for collective good. An important facet of collective good is social control, of both residents and visitors or newcomers to the community. Neighborhood collective efficacy reduces neighborhood crime (Sampson, Raudenbush, and Earls, 1997). Residents in these communities actively participate in the informal social control that is a vital part of crime control. In some instances, such efforts support the efforts of police. Residents may take note of strangers and problematic behavior and situations, such as abandoned cars or drug dealing, and they take action. The police, in turn, respond to and support such efforts. The behavior and actions of releasees who return to such a community should be positively affected by these kinds of informal social control, as well as formal social controls. When collective efficacy is weak, new releasees, like other people in the community, are less regulated by informal social controls, and their chances for reinvolvement in criminal behavior are likely to be higher. The impact of collective efficacy on the criminal behavior of returning prisoners, as distinct from crime generally, is an important topic for future research. Many releasees return to the same or similar communities as those they lived in prior to incarceration (e.g., Visher and Farrell, 2005). They choose to live there because those are the places where their families and friends live and where they can find housing. In many cases, those communities are disorganized ones. Even when releasees choose to live in new neighbor- hoods to avoid the people or situations that led to their incarceration, the

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0 PAROLE, DESISTANCE FROM CRIME, AND COMMUNITY INTEGRATION new neighborhoods are generally similar to the old ones, disorganized and with low collective efficacy (Visher et al., 2004). Moreover, when large numbers of former prisoners live close together in a community, they contribute to low collective efficacy because they are less likely to be employed, have lower incomes, and have fewer networks of people and institutions to support law-abiding behaviors (Clear et al., 2005). Ironically, the communities that may be the most accepting of releas- ees may also be the places that are the least likely to exercise social control. They are often communities with high rates of crime and substance use, which limit the possibilities for releasees’ successful reentry. Releasees who report living in neighborhoods in “unsafe” or disorganized communities or where drug dealing is common are more likely to report using drugs after release, are less likely to be employed, and are more likely to return to prison than other releasees (Visher and Farrell, 2005). Most people—including parole agents and corrections officials—believe that releasees who are employed have a higher probability of successful reen- try, and research shows that employment does reduce recidivism (Bushway and Reuter, 2002). Yet people with prison records are much less likely to be offered jobs (Pager, 2003; Pager and Quillian, 2005) and are more likely to live in neighborhoods where others are out of work (Clear, 2007). At the same time, communities with more unemployed or marginally employed people have lower collective efficacy than other communities (Crutchfield et al., 2006; Fagan et al., 2006) and higher crime rates (Crutchfield, 1989). There is also some evidence from research on restorative justice and the involvement of victims in mediation conferences and other participatory activities that the involvement of citizens in the criminal justice process has positive effects on participants and may be therapeutic for releasees. Given opportunities to interact positively with others in activities that benefit the community, former prisoners begin to see themselves as part of something, a community (Maruna, 2001). Often overlooked in reentry policies and practices are the institutions— including police, business sector, and health and human services—that can play important roles in successful reentry. The business community is not often involved in local discussions about the problems of crime and reen- try, yet business is the source of money and jobs that could contribute to supporting communitywide reentry programs. Through a communitywide strategic planning process, Baltimore and Chicago have brought the busi- ness community into these discussions, and business leaders have responded by offering jobs to former prisoners (see, e.g., http://www.oedworks.com/ whatsnew/pr0912202.htm [accessed June 2007]). Of particular concern is how these institutions coordinate hiring poli- cies, on-the-job or other employment training, eligibility for services, and decision making about parole revocation. Often these institutions are un-

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 CRIMINAL JUSTICE INSTITUTIONS AND COMMUNITY RESOURCES aware of one another’s policies and practices, which create inefficiencies and obstacles for former prisoners. In addition, some of these institutions may not have the institutional capacity to provide services to releasees, or they may not be familiar with the special problems of this population. This gap in the capacity of service providers is difficult to address, but it is a complaint often voiced by community residents when asked what should be done to support former prisoners in their transition from prison to local community (Visher and Farrell, 2005).