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Law and Courts
Current Perspectives from InfoTrac®
George Ackerman
Florida International University Miami, Florida
Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States
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ISBN-13: 978-0-495-91233-0 ISBN-10: 0-495-91233-6 Cover Image: © Jeff Spielman / Getty Images Wadsworth 20 Davis Drive Belmont, CA 94002-3098 USA Cengage Learning is a leading provider of customized learning solutions with office locations around the globe, including Singapore, the United Kingdom, Australia, Mexico, Brazil, and Japan. Locate your local office at: www.cengage.com/global Cengage Learning products are represented in Canada by Nelson Education, Ltd. To learn more about Wadsworth, visit www.cengage.com/wadsworth Purchase any of our products at your local college store or at our preferred online store www.cengagebrain.com
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Contents Preface
v
About the Author
ix
Part I: Overview of Law and Courts
1
1.
Redefining Criminal Courts: Problem-Solving and the Meaning of Justice JAMES L. NOLAN JR.
3
2.
Conference Report: New York City’s Criminal Courts: Are We Achieving Justice? MARTHA RAYNER
33
3.
The Criminalization of Poverty KAARYN GUSTAFSON
75
Part II: Courts, Crime and Controversy
153
4.
When Procedure Trumps Justice BENNETT L. GERSHMAN
155
5.
Investigating the “CSI Effect” Effect: Media and Litigation Crisis in Criminal Law SIMON A. COLE, RACHEL DIOSO-VILLA
159
Part III: Law and Crime
207
6.
Crime Data THE FEDERAL BUREAU OF INVESTIGATION
209
7.
Internet Fraud on the Rise: Spike in Internet Crime Complaints Concerns U.S. Law Enforcement CYNTHIA G. WAGNER
211
iii
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iv 8.
Deterrence in a Sea of “Just Deserts”: Are Utilitarian Goals Achievable in a World of “Limiting Retributivism?” MATTHEW HAIST
213
Part IV: Federal and State Courts
247
9.
Threats to the Rule of Law: State Courts, Public Expectations and Political Attitudes MARGARET H. MARSHALL
249
10.
Getting Terror’s Number JAMES J. ROTH
259
Part V: Civil Law
265
11.
Charges are Enough to Create Standing LEO STRUPCZEWSKI
267
Part VI: Criminal Courts – Prosecutors and Defense Attorneys
271
12.
Prosecutor’s Errors Bring New Trial on 1993 Verdict JOEL STASHENKO
273
13.
Drawing the Line: Court Looks Again at How Much Immunity Prosecutors Have JOHN GIBEAUT
279
14.
Fashioning a Top Career: Prosecutor’s Memoir Details Work from Watergate to the 9/11 Probe BARBARA ROSE
283
15.
“A Prosecutor is a Lawyer with Convictions” JOSEPH I. CASSILLY
287
INFOMARKS: MAKE YOUR MARK
293
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Preface Law and Courts Law and Courts focuses on several current and fascinating subjects related to the United States legal system. We give special attention to courtroom processes and the individuals who make up our legal system. PART I: Overview of Law and Courts Laws are created by the legislative branch of government and carried out on a daily basis by law enforcement officers. The role of the judicial branch of government is to uphold the laws in the courtroom. These three segments of the criminal justice system, the legislative branch, law enforcement, and the courts, work hand-inhand to create, carry out, and interpret our laws. Various courts exist to hear and rule on cases depending upon the proper venue and jurisdiction of each case. Jurisdiction refers to the authority of a court to hear, preside over, and rule on cases based on the subject matter of the cases. A court’s jurisdiction is limited to the powers vested in them. A significant factor in a court case often is venue, the location in which the case will be heard. The venue of a case is usually determined according to the location where the action or crime took place or where the parties involved reside, but in some cases other considerations particular to the issue at hand might justify moving a trial to a neutral location. Court cases fall into two categories: civil and criminal. Civil cases involve the pursuit of monetary or injunctive remedies for cases involving torts, family members and divorce, or property. On the other hand, the criminal process is a set of procedures governing arrest, indictment, and trial as a result of crime. The criminal process was designed to safeguard the rights of the individual from the state. The criminal process begins when a law is allegedly broken and extends through investigation, arrest, indictment, trial, and appeal. Various courts are assigned to hear particular types of cases. Domestic disputes and other matters of family law can fall under the jurisdiction of a circuit court. Misdemeanors and felonies are usually heard in county courts, with jurisdictions determined state-by-state. A misdemeanor is a crime punishable by less than a year in jail or a fine and can range from traffic violations to assault. Felonies, v
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vi however, are criminal offenses punishable by a year or more in prison for crimes such as burglary, robbery, and rape. In addition, there are state courts and federal courts. State courts hear civil matters and offenses involving state laws. Federal courts hear cases involving civil matters relating to federal law, such as civil rights discrimination cases and immigration matters. Federal courts are also concerned with matters superseding states’ jurisdictions and cases with amounts exceeding the sum or value of $75,000. PART II: Courts, Crime, and Controversy Media attention to celebrity crime and the prevalence of movies and television shows about crime have skewed the public perception of the legal and court systems. In fact, the legal system, on occasion, has changed the manner in which cases are handled in response to the light shining from the camera into the courtroom. Many shows portray the criminal justice system in a glamorous and unrealistic way, ignoring the mounds of paperwork required or overlooking the fact that many criminals are never caught. In these shows the victims always come out on top and the criminals always lose. In reality, police do not spend all their time chasing criminals; lawyers do not always find evidence to prove their cases, Perry Mason style, at the last minute; all cases are not neatly tied up with DNA evidence; and many cases are not even brought to trial. PART III: Law and Crime Law consists of a set of rules created by the government in order to establish a means of civil management which directs people to do what is right and to avoid doing what is wrong. Unfortunately, some individuals choose to ignore laws. Nevertheless, such standards as laws provide are necessary for a flourishing and productive society. They supply the structure around which society is built. Without laws preventing people from doing whatever they want, whenever they want, the world as we know it would be in a constant state of chaos. Unlike that of various other countries, the legal system in the United States is a complex and sometimes difficult compilation of rules, regulations, and laws that are a challenge for even the most brilliant legal minds to comprehend. Public safety personnel, in order to efficiently and effectively deliver service, are thus confronted with the need to remain continually cognizant of the wide variety of legal issues they might encounter.
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vii PART IV: Federal and State Courts The differences between federal and state courts are defined mainly by jurisdiction, the sort of cases a particular court is authorized to hear. State and local courts are established by the individual states. (Within states there are also local courts which are established by cities, counties, or other local districts and which we include in the general discussion of state courts.) State courts have broad jurisdiction, so the cases citizens are most likely to be involved in – such as robberies, traffic violations, broken contracts, and family disputes – are usually handled at the state-court level. Federal courts are established under the United States Constitution to decide disputes involving the Constitution and laws passed by Congress, as well as matters which may not be heard in state courts. The latter consists of lawsuits against the United States and those involving certain specific federal laws: federal crimes, antitrust violations, bankruptcies, patent and copyright cases, and some maritime cases. PART V: Civil Law Civil law seeks to remedy non-criminal disputes such as disagreements over the interpretation of contracts, issues of property ownership, divorce, child custody, personal injury, or property damage. A civil court is a place where people in conflict can resolve their problems peacefully. Individuals that seek monetary damages look to the civil courts to assist them in recovery. The burden of proof in a civil case is the preponderance of the evidence. PART VI: Criminal Courts – Prosecutors and Defense Attorneys A government lawyer who investigates and tries criminal cases is known as a district attorney, state’s attorney, or United States attorney. This person, in the name of the government, prosecutes alleged criminals for the crimes they may have committed. Prosecutors may be public or private. The public prosecutor, appointed or elected, serves as the voice of government to take action against all legal offenses; he or she is the attorney general or deputy attorney general. The prosecutor works on behalf of the state with the burden of beyond a reasonable doubt to prove the defendant at question had the mens rea (guilty mind), actus reus (act) plus concurrence of the three. As an officer of the court, the basic duty defense counsel owes to the administration of justice is to serve as counselor and advocate to the accused, rendering effective, quality representation.
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viii Defense attorneys may also be public or private. Because the United States Constitution insists that all defendants have the right to legal counsel, governments are required to provide representation for indigent people accused of crime. Like all members of the bar, including prosecutors, defense counsel are subject to standards of conduct as described in statutes, rules, court decisions, codes, canons, and other standards of professional conduct. Additionally, defense counsel have no duty to execute any directive of the accused which is not consistent with law and such standards. Finally, the courts play a vital part in the criminal justice and legal process. Each stage of a proceeding can determine the outcome of a case that may change the future and bind tradition and history. The courts, crime, and controversies combine the affect of the media and impact of how society views the legal system. Law and crime bind together in bringing remedies for actions that violate social and legal norms. Federal and State Courts were developed to hold court cases in various jurisdictions. In conclusion, civil and criminal courts provide an arena for justice to prevail, fundamental fairness and a means for citizens to giant he ability to remedy a monetary claim or for a state to incarcerate an offender. Courts are the lifeline of the legal system and will continue to provide exciting and vital outcomes for centuries to come. George Ackerman
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About the Author George Ackerman’s life is dedicated to helping victims. As a reserve police officer in Lantana, Florida, Ackerman protects citizens, helps to protect the rights of citizens, and strives to improve his community. Ackerman formerly worked in a legal setting as part of the State Attorney’s Office in Broward County, Florida, advocating for victims’ rights. Presently, he teaches criminal justice and related law courses nationwide and at the Police Academy at Palm Beach State College, Lake Worth, Florida. His objective is to enlighten his students with regard to victims’ rights. Students of criminology and related subjects will make the difference in the lives of victims they encounter as they move on to professional careers. Students today, the professionals of tomorrow, will demonstrate excellence to see that the rights of victims are not overlooked. Prof. Ackerman thanks Cengage for the opportunity to create this volume. He also thanks his family for their continued encouragement through his education and career. Finally, thanks go to Gloryann Torres, a friend who has been supportive in his continued educational endeavors.
ix
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Part I
Overview of Law and Courts
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1 Redefining Criminal Courts: Problem-Solving and the Meaning of Justice James L. Nolan Jr.
F
ew would dispute that there is considerable frustration with conventional practices in the American criminal justice system. Ubiquitous are complaints about overcrowded jails and prisons; the expense and burden of increasing court case loads; the "revolving door" phenomenon of repeat offenders; the impersonal and assembly-line quality of "McJustice," or expedited case management; fatigue and job dissatisfaction among lawyers; the winat-all-costs mentality of modern trial advocacy; and the adjudicative restrictions of hyper-proceduralism and mandatory minimum sentencing guidelines. (1)To remedy these perceived ailments in the system, legal practitioners and academics have proposed, implemented, and theorized about a number of related innovations. This article considers one of these innovations, namely problemsolving courts, focusing in particular on drug courts, the first and most advanced of this new breed of courts. The paper also analyzes some of the theoretical underpinnings, cultural affinities, and unintended consequences of problem-solving courts in the United States. (2) While noting the frustrations cited above, supporters of problem-solving courts and related legal innovations argue that the need for legal change is heightened by the failure of traditional _______________________________________________________
James L. Nolan Jr., "Redefining Criminal Courts: Problem-Solving and the Meaning Of Justice." American Criminal Law Review, Fall 2003, volume 40 issue 4 p. 15411566. Copyright © 2003 Georgetown University Law Center. Reprinted with permission of the publisher.
3
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4 institutions to handle a growing number of social problems. In other words, because of the failure of "traditional nonlegal dispute resolution mechanisms in society," such as "church, community, neighborhood, friends, and family," the legal system now finds itself in a position where it must directly address various social ills. (3) With the weakening of these support structures, advocates of legal change believe that the courts have no choice but to step into the void. As David Rottman and Pamela Casey see it, "the main push for this change came from the societal changes that placed courts in the frontline of responses to substance abuse, family breakdown, and mental illness." (4) Because "courts cannot restrict the flow of such problems into the courtroom" they have essentially been "pulled ... toward a problem-solving, proactive orientation." (5) These are some of the most common reasons offered for the emergence of problemsolving courts. I. PROBLEM-SOLVING COURTS As defined in a 2000 joint resolution by the Conference of Chief Justices and the Conference of State Court Administrators, problem-solving courts "involve principles and methods grounded in Therapeutic Jurisprudence, including integration of treatment services with judicial case processing, ongoing judicial intervention, close monitoring of and immediate response to behavior, multidisciplinary involvement, and collaboration with community based, and government organizations." Problem-solving courts, therefore, involve both a theoretical reorientation and a concomitant structural and processual transformation. Problem-solving courts have emerged in a number of forms, including mental health courts, domestic violence courts, community courts, and drug courts. The latter are the oldest, most visible, widespread, and influential of the problemsolving courts. (6) As Greg Berman and John Feinblatt observe, "the current wave of problem-solving experimentation can be traced back to the opening of the first 'drug court' in Dade County, Florida, in 1989." (7) The Miami court became the essential model for over 700 drug courts established throughout the United States since. While drug courts vary from location to location, they share many of the central principles of problem-solving courts articulated in the 2000 joint resolution. In particular, drug courts offer drug offenders, as an alternative to the normal adjudication process, an intensive court-based treatment program. Participants or "clients" (as they are typically called in drug courts) return regularly to the courtroom, where they directly interact with the judge. They also submit to regular urinalysis tests, receive acupuncture treatment, and
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5 participate in a variety of individual and group counseling sessions, including Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) twelve-step programs. Progress in these various treatment modalities is monitored by the drug court judge, who, during court sessions, offers praise and prizes for success and admonitions and sanctions for noncompliance. Possible sanctions include increased participation in weekly NA meetings, community service, and even several days of incarceration. Clients agree to participate in drug courts with the promise that successful completion will result in dropped charges or an expunged record of arrest. It's a process advertised to take one year, although it often lasts much longer. Drug courts, in many important respects, depart from the practices and procedures of a typical criminal court. Prosecutors and defense counsel, for example, play much reduced roles. In fact, lawyers are frequently not even present during regular drug court sessions. Instead, the main courtroom drama is between the judge and client, both of whom speak openly and freely in the drug court setting. Often, a treatment provider accompanies the client, advising the judge and reviewing the client's treatment progress. Court sessions are characterized by expressive, and sometimes tearful, testimony about the recovery process, punctuated with applause from those in attendance. Once completing the program, clients participate in colorful graduation ceremonies, which involve emotional speeches from graduating clients, the issuing of graduation certificates, and visits from the media and local luminaries. The various problem-solving courts that emerged in the wake of the drug court movement are similarly team-oriented, multidisciplinary, and non-adversarial in approach. They likewise have adopted a style that involves early, intensive, and regular court supervision and coordination of services, aimed at addressing the defendant's underlying problems. Included among these are community courts, of which there are approximately 30 in the United States. The first community court was established in New York City in 1993. (8) New York's Midtown Community Court targets "qualityof-life offenses such as prostitution, illegal vending, graffiti, shoplifting, fare beating, and vandalism." (9) Defendants are required to do community service (such as cleaning a local park or painting over graffiti) and to participate in social services (such as health care, drug treatment, or job training), all in an effort to address the underlying problems that led to the criminal behavior. (10) The problem-solving features of community courts include an "enhanced and on-going judicial role," the extensive use of "personal
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6 background information related to the offender," and judicial coordination of legal and social services. (11) In 1997, four years after the creation of the Midtown Community Court, the first mental health court was established in Broward County, Florida. Since then, twelve other jurisdictions have established mental health courts, and the federal government has authorized the creation of 125 additional pilot programs. These courts are comprised of clients whose "mental illness" has been determined to have "contributed to the commission of the offense." (12) Defendants, who have typically committed lesser offenses such as trespassing or "spitting at people in the street," (13) are given intensive treatment by a multi-disciplinary team, under the close supervision of a judge. The courtroom is informal and therapeutic in orientation, aimed at treating the underlying problems of "mentally disordered" defendants. (14) Like drug courts and community courts, mental health courts are uniquely problem-solving in their approach in that "they attempt to intervene early in the process," and have "developed multi-disciplinary teams which provide for intensive treatment and supervision under the control of the judge." (15) In 1996 the first "domestic violence" court was initiated in Brooklyn, New York. By the end of 2000 there were more than 200 domestic violence courts throughout the United States. Domestic violence courts are characterized by close monitoring and supervision by a specially trained judge, armed with "a range of creative sentencing options," as well as a variety of counseling and substance abuse programs, specifically developed to address the peculiar problems associated with domestic violence. (16) Defendants face mandatory "batterer's treatment counseling" and community service requirements. They may also be required to attend Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) self-help groups or to spend some time in jail; (17) meanwhile, victims are "linked to a variety of services and counseling." (18) Here, as in other problem-solving courts, the judge engages the defendant in a direct therapeutically oriented encounter, and assumes "multiple roles including acting as authority, motivator, problemsolver, and monitor." (19) In addition to drug courts, community courts, mental health courts, and domestic violence courts, more recent versions of problem-solving courts include re-entry courts (which provide recently released prisoners with intensive court oversight as they attempt to return to life in the community), and homeless courts (designed to provide judicial oversight, drug treatment, and other services for homeless repeat offenders). The first
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7 versions of these more recent problem-solving courts were established in 1999. Though targeting different problems and different populations in the criminal justice system, the various problemsolving courts, as Berman summarizes, "all seek to use the authority of courts to address the underlying problems of individual litigants, the structural problems of the justice system, and the social problems of the communities." (20) That problem-solving courts have become an important development in the American criminal justice system is reflected in the endorsement of the model by the Conference of Chief Justices and the Conference of State Court Administrators. The 2000 resolution encouraged the "broad integration over the next decade of the principles and methods employed in problem-solving courts in the administration of justice." Less than a year later, the American Bar Association (ABA) followed suit, adopting a very similar resolution at its annual meetings. The ABA called for "the continued development of problem solving courts" and went so far as to encourage "law schools, state, local and territorial bar associations, and other organizations to engage in education and training about the principles and methods employed by problem-solving courts." Given such strong endorsements for this legal innovation, John Goldkamp may not be overstating matters when he speaks of problem-solving courts as a "paradigm shift," in the American court system. "It's no longer a question of whether they should have been invented," says Goldkamp, "they're here." (21) As noted in the earlier reference to the 2000 resolution, these courts have also been closely associated with, if not in some instances directly inspired by, new theories of justice developed during the last fifteen years. Specifically, problem-solving courts have been closely linked with both "therapeutic jurisprudence" and "restorative justice." (22) II. THERAPEUTIC JURISPRUDENCE AND RESTORATIVE JUSTICE The ideas generated by proponents of restorative justice and therapeutic jurisprudence have supplied practitioners with important justifications for the expansion of problem-solving courts, thus necessitating a better understanding of the defining tenets of these legal theories. In her discussion of the "comprehensive law movement," Susan Daicoff identifies multiple intersecting "vectors," which, in response to the legal system's perceived ailments, endeavor to make the legal system "more humane, therapeutic, beneficial, humanistic, healing, restorative, curative, collaborative, and
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8 comprehensive." (23) Among these so-called vectors are problemsolving courts, therapeutic jurisprudence, and restorative justice. While it's clear that these are related phenomena, for conceptual purposes it is important to distinguish problem-solving courts (a practical legal innovation) from therapeutic jurisprudence and restorative justice (theories of justice generated within the academic world). In other words, it makes more sense to characterize problemsolving courts as a legal innovation, the philosophical justifications for which are drawn from the principles articulated within therapeutic jurisprudence and restorative justice theories, rather than as vectors on the same conceptual plane. Although there are important differences between therapeutic jurisprudence and restorative justice, the two legal theories also have much in common. First, both have a normative dimension; they are not merely analytical frameworks, but propose to alter legal practices in accordance with new ways of thinking about justice. Second, both are therapeutic in the sense that they place an emphasis on emotions, empathy, healing, and the psychological wellbeing of individuals encountering the legal system. John Braithwaite, a leading theorist of restorative justice, notes these similarities: Therapeutic Jurisprudence instructs us on the enormous impact the justice system can have on people's psychological and physical well-being. Understanding this is also a large part of what motivates Restorative Justice. Both traditions share an interest in how to overcome the problem of criminal offenders denying the pain of their victims, both for the sake of healing the offender and preventing further victimization. (24) As intimated in the above passage, both theoretical perspectives support a problem-solving orientation. Indeed, as Braithwaite argues further, "Perhaps the most solid common ground between Therapeutic Jurisprudence and Restorative Justice is that they are both part of a return to problem-oriented adjudication." (25) In a final area of common ground, both theories rhetorically defer to elements of more traditional theories of justice, even while advocating fairly radical changes in the legal system. For example, restorative justice includes among its "priority list of values" the following: "honoring legally specific upper limits on sanctions" and respecting "fundamental human rights." (26) Regarding the former, it should be noted that, though upper limits on sanctions are typically understood within the limiting principle of "just deserts" theory, Braithwaite (along with Philip Pettit in an earlier discussion on the topic) does not attempt to defend it on these grounds. (27) Indeed, as Andrew Von Hirsch and Andrew Ashworth point out, "no persuasive
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9 reason is offered" in their analysis for "why those limits should exist." (28) Nevertheless, Braithwaite maintains that such limits should be sustained and, more generally, he is "happy to retain various due process protections and other fundamental justice values." (29) He notes that his basic position is consistent with the concerns of therapeutic jurisprudence scholars who wish to avoid "subordinating due process and other justice values" in their promotion of therapeutic consequences. (30) Indeed, Bruce Winick and David Wexler, the two most prominent therapeutic jurisprudence scholars, regularly assert that therapeutic values should not "trump" certain traditional values of justice. As Bruce Winick puts it, "Therapeutic jurisprudence has always suggested that therapeutic goals should be achieved only within the limits of considerations of justice.... [L]aw should be applied fairly, evenhandedly, and non-discriminatorily. Legal actors should seek to apply the law therapeutically but only when consistent with these values." (31) With therapeutic jurisprudence, then, rhetorical deference to "just desert" principles appears even more pronounced than it is with restorative justice. Notwithstanding such similarities, therapeutic jurisprudence and restorative justice differ in several important respects. For one, therapeutic jurisprudence scholars are a little uncomfortable with the emphasis on "reintegrative shaming," a concept John Braithwaite has made central to his understanding of restorative justice. (32) In an April 2000 panel discussion at Western Michigan University among Bruce Winick, David Wexler, and two drug court judges, Winick was asked specifically about restorative justice and reintegrative shaming. He acknowledged some compatibilities between the two theories of justice, but thought the term "reintegrative shaming" was "unfortunate." (33) In particular, he thought the word, "shame... throws a lot of people off track." He also feared that the restorative justice emphasis on reintegration may not give enough attention to rehabilitation, and suggested that "more needs to be introduced into the restorative justice paradigm regarding efforts at rehabilitation." (34) A second difference is the broader scope of restorative justice. As noted earlier, both theories have a normative dimension. For therapeutic jurisprudence, specifically, this means that "therapeutic consequences are good, antitherapeutic consequences are bad." (35) According to Braithwaite, restorative justice, in contrast, "is concerned with a much wider net of consequences" and "involves more concrete commitments to just processes and values."
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10 (36) He seems to suggest that the more restricted analytical focus of therapeutic jurisprudence makes the preservation of traditional justice values more difficult. This analysis prompts an important question: With the focus on promoting therapeutic outcomes and discouraging antitherapeutic outcomes, are other justice values unwittingly ignored or disregarded, in spite of the stated wishes by therapeutic jurisprudence theorists to sustain these values? The remainder of this article explores that question. Given the variety of problem-solving courts, and the varying degrees to which they are informed by one or the other theory, I will necessarily limit the discussion to the relationship between therapeutic jurisprudence and drug courts (the most developed and widespread of the various problem-solving courts), while making occasional references to other kinds of problemsolving courts. (37) Before turning specifically to drug courts, it is helpful to consider a therapeutic jurisprudence interpretation of a legal measure relevant to criminal law, namely the 1984 Sentencing Reform Act. Keri Gould acknowledges that the Act was passed and the Sentencing Commission established at a time when the previously dominant rehabilitative ideal in criminal law had been called into question and replaced by a just desert theory of punishment--the publicly articulated goal of the Act. Without overtly disparaging the just desert model, Gould brings the therapeutic lens to bear on that part of the statute which specifically explicates the retributive perspective: the law's endorsement of "the need to reflect the seriousness of the offense, to promote respect for law, and to provide just punishment." (38) To Gould, the most "intriguing" part of this statutory language is the middle phrase, the stated goal "to promote respect for the law." (39) While she concedes that this phrase, in the context of the statute, is a retributive goal, Gould argues that "it makes more sense to extract this goal from its retributive neighbor-phrases and investigate the internalization of a defendant's moral respect and compliance with the legal system." (40) In other words, she wishes to ascertain whether application of the resultant federal sentencing guidelines are "perceived" as fair by individual defendants subjected to them. In her opinion, the manner in which the laws are currently applied "serve[s] to marginalize defendants and inmates" and "ignore[s] differing perceptions of fairness in the law." (41) Guidelines perceived as unfair, according to Gould, can cause "amotivational responses" by defendant-inmates, leading them to feel "helpless, incompetent and 'out-of-control." (42)
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11 Gould proposes a therapeutic jurisprudential approach that would investigate this perceived unfairness and subsequent psychological dysfunction. If "empirically" demonstrated, the approach would then suggest modifications of "the offending legal provisions" in order "to increase the defendant-inmates' perception of fairness and promote cooperation and compliance with socially desirable goals." (43) Such a change is important, from a therapeutic jurisprudence perspective, because "laws which modify behavior or attitudes in a socially acceptable way should receive greater respect from society than laws which merely satisfy a sense of retribution without the concomitant behavioral adaptation." (44) Having established this more therapeutically acceptable legal condition, according to Gould, the law would then satisfy its stated goal of promoting respect for the law. Gould agrees with Wexler and Winick that therapeutic jurisprudential prescriptions should be limited to "boundaries set by principles of justice." (45) Yet, her own analysis essentially redefines the focus, if not the very meaning, of justice-shifting an understanding of what constitutes fairness to the level of individual subjectivity and encouraging legal actions aimed at eliciting particular behavioral responses from defendants. Recent and classical articulations of just desert, it should be noted, have nothing to do with "behavioral adaptation." Indeed, liberal critics of the rehabilitative ideal were strongly opposed to the correctional focus of coercively modifying attitudes and behavior. Gould concedes that her basic critique of the problematic applications of the sentencing guidelines could alternatively be made according to traditional legal principles. One could, for example, question the legitimacy of the federal sentencing guidelines on the grounds that they are unfair--that the defendant-inmates subjected to them are getting more than their just desert. But this is not how Gould approaches the matter. Instead, she focuses on the "offender's emotional and behavioral responses" to the guidelines, on subjective, individual perceptions of fairness, and on legal prescriptions aimed at achieving "behavioral adaptation." That she can reconfigure the statutory provision of the 1984 Act in this way, while at the same time rhetorically defer to the guiding principles of "justice," raises questions about the extent to which advocates of therapeutic jurisprudence are (or will be) restricted to traditional legal concerns. The next section explores this question in the context of the drug court movement.
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12 III. DRUG COURTS: THEORY, PRACTICE, AND CULTURE Judges Peggy Hora and William Schma were among the first drug court judges to recognize the theoretical relevance of therapeutic jurisprudence to the drug court movement. (46) As they observed, the drug court movement and therapeutic jurisprudence theory had "been growing and evolving on parallel courses, yet independently of one another." (47) In May of 1997, Judges Hora and Schma joined David Wexler and Bruce Winick on a panel at the NADCP's annual training conference in Los Angeles. Then, in January of 1999, Hora and Schma, along with John Rosenthal, published in the Notre Dame Law Review a lengthy article relating therapeutic jurisprudence to the drug court movement. Now, as they claim, "these two powerful concepts have been cast together." (48) The Notre Dame Law Review article is relevant to the present analysis in several respects. First, it is the most comprehensive written articulation of the relationship between the drug courts and therapeutic jurisprudence theory. Second, the article anticipates and responds to concerns about drug courts in relationship to more traditional understandings of justice. Third, the article is a celebratory account of drug courts and is recognized by leaders of the movement as a significant and representative work. (49) Finally, the article is widely cited by legal scholars who view it as a classic example of the benefits of therapeutic jurisprudence to criminal law. (50) Not all legal scholars, however, celebrate therapeutic jurisprudence. Some critics question whether therapeutic considerations "should play a dominant (or for that matter any) role in judicial decision making." (51) Therapeutic jurisprudence scholars assume, without explanation, that therapeutic outcomes in the law are necessarily a desired good. As I have argued elsewhere, but will discuss only briefly here, an important reason for the indisputable plausibility of therapeutic jurisprudence is the pervasiveness of a dominant therapeutic sensibility in American culture. (52) This is an aspect of the larger phenomenon that most analysts of problemsolving courts and of therapeutic jurisprudence--in their preoccupation with issues of efficacy--commonly overlook. One exception can be found in a discussion about problemsolving courts held in late 1999 by of group of judges, attorneys, and law scholars. At the gathering, several participants spoke of the difficulties courts face today as a result of the pressures arising from the various social problems discussed at the beginning of this article. In this discussion legal historian William Nelson noted that historically "It]he structures that were there to help these justices engage in improving behavior were family structures, community
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13 structures, and not professional psychiatrists, social workers and the like." (53) Nelson rightly notes a shift in the support systems to which Americans turn to solve their problems. Specifically, drug courts and the other problem-solving courts have turned to the treatment community for support. Yet, deference to the ideas and authority of the therapeutic community is not exclusive to the American judiciary. Indeed, as analyzed by a number of social scientists and cultural critics over the years--including Philip Rieff, Christopher Lasch, Alasdair MacIntyre, John Steadman Rice, Bernie Zilbergeld, and Robert Bellah--a distinctively therapeutic sensibility has triumphed in American culture. (54) Nelson himself seems to recognize this, noting that his comment is "not on the judiciary but a comment on the changing structure of American society." (55) To be sure, this broader acceptance is an important reason why the therapeutic idiom has been readily and thoroughly embraced by some legal scholars. Therapeutic sensibilities are so deeply embedded in American society that therapeutic jurisprudence scholars need not explicitly make the case for the importance of therapeutic ideals. No persuasion is necessary. They need only assert that the law has therapeutic and antitherapeutic outcomes, and expect people to then conclude that the law should be altered in light of these findings. The same kind of reasoning appears to influence the discourse of judicial actors working for change within the system. Thus, common cultural assumptions have influenced both changing judicial practices and the development of new legal theories. In Daicoff's terms, one could argue that both drug courts and therapeutic jurisprudence are vectors generated from the same cultural source, which would explain why they developed simultaneously yet independently (at least initially). Indeed, busy judges and lawyers are not typically inclined toward theoretical ponderings. Judges Hora and Schma, for example, observe that with court calendars overburdened with "drug cases, few early drug court practitioners worried about the jurisprudential theory behind the drug court movement. Drug courts seemed to work, and the absence of analysis or debate coming from the 'ivory towers' of academia ... did not much matter." (56) Nevertheless, both the theory and the practice developed simultaneously within the same broader cultural context. Eventually, the elective affinity between drug courts and therapeutic jurisprudence was discovered, leading both scholars and practitioners alike to see drug courts as a direct application of therapeutic jurisprudence theory. Thus, Judges Hora and Schma observe that
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14 drug courts are a "significant step in the evolution of therapeutic jurisprudence--the evolutionary step from theory to application." (57) Given this archetype of therapeutic jurisprudence, we return to the question of whether the judicial application of a therapeutic perspective can really exist in subjugation to the defining legal principles of rights and justice, or whether, as reflected in Gould's analysis of the federal sentencing guidelines, it ultimately redefines the meaning of justice - rhetorical deference to traditional ideals notwithstanding. Interestingly, when judges actually discuss the notion of justice as it is applied in the drug courts, they express what is clearly a new understanding of the concept. They seem to suggest that within the ether of therapeutic jurisprudence, at least as it is applied in the drug courts, justice has come to mean something altogether new. Consider the comments of one drug court judge, who in conversation with a group of other drug court judges at a national drug court conference in Washington, D.C., conveyed what she saw as the defining qualities of the drug court. She believes that in the drug court "justice is being done." For her, however, "justice isn't imposing punishment and increasing sentences, justice is improving the community, and this [drug court model] is an opportunity to do that." Pointedly, she doesn't argue that the legal goal of "improving the community" should be pursued only inasmuch as it can be achieved within the confines of traditional legal concerns. Rather, she asserts that improvement of the community itself constitutes the essence of justice. This new problem-solving orientation, according to another drug court judge, is "justice in its purist sense." Why so? "Because it is taking a case. It is taking an individual. It is looking at that individual case and it is fashioning a disposition in that particular case that is going to benefit not only society, but that particular individual." The occasional judge who does reflect upon the classical purposes of justice, sees the drug courts as outside the boundaries of these traditional goals. Judge Hora puts it this way: Okay, so traditionally justice is applying the law in an equal and fair manner. Justice is fulfilling sentencing goals such as retribution, rehabilitation, restitution, and so forth. And the way it's redefined [in drug courts] is, the whole idea of this approach, is you have people who have a disease called alcoholism and/or addiction. And what is just is getting them well rather than punishing them for their disease. Significantly, in addition to highlighting the treatment emphasis of the drug court model, she argues that the treatment focus
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15 itself constitutes justice. Healing someone, as it were, is "what is just." Earlier critics of the rehabilitative ideal, it should be noted, would argue that such a position is logically untenable. It is nonsensical, one critic argued, to talk about a "just cure" because "we demand of a cure not whether it is just but whether it succeeds." (58) Drug court judges, apparently, are not constrained by such logic. This is certainly evident in Judge Barbara Beck's take on the matter. Beck poses a question about drug courts by first juxtaposing justice and treatment as if in opposition to one another, "Is it justice or is it treatment?" To which she then answers, "To me treatment is justice." In the drug courts, then, treatment, healing, problemsolving, constitute the very meaning of justice. Given such a redefinition it would not seem that therapeutic jurisprudence, at least as applied in the drug courts, is simply one perspective among others, and one that does not subordinate "due process and other justice values" as therapeutic jurisprudence scholars regularly claim. (59) Instead, it appears to comprehensively reshape the very essence of criminal adjudication and fundamentally redefine the meaning of justice in the process. In such a context, it is now possible to speak of "just treatment." IV. THE CONSEQUENCES OF JUST TREATMENT If justice now means just treatment, what are the consequences of such a radical judicial reorientation? To answer this question, let us consider defenses of the "therapeutic ideal" offered by drug court judges in response to the more theoretically based criticisms previously leveled against the "rehabilitative ideal" in the 1970s. The rehabilitative ideal--commonly associated with the introduction of such practices as probation, parole, and a separate juvenile justice system--came under serious criticism when its characteristic practices of individualized treatment, indeterminate sentences, and unwieldy judicial discretion were increasingly viewed as inconsistent, disproportionate, and unfair. (60) Do drug courts (and problem-solving courts more generally) result in similar unintended consequences --their evident differences with prior rehabilitative practices notwithstanding (61)--and do these consequences challenge fundamental principles of justice? If so, how do judges respond to questions about these possible consequences? Before investigating these questions as they pertain to drug courts, it is worth noting that concerns have been raised by some that problem-solving courts, more generally, might be susceptible to some of the same "abuses" that developed during the rehabilitative
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16 era in such venues as the juvenile delinquency courts. Consider, for example, the reflections of a Minnesota public defender, John Stuart, on this matter: [W]e ought to be cautioned by the example of juvenile court. Juvenile court started off with a lot of the same progressive intentions and a lot of the same kind of happy-faced rhetoric--relaxed procedures, collaboration, seeking the best interests of the youth offender. We know now that the rhetoric did not match the reality. There was a big need for the Supreme Court to announce the decision In re: Gault to cure the abuses that were occurring in juvenile courts. In a sense, juvenile court really was the first problem-solving court. It had good intentions but it also got into some nasty places. (62) And it was precisely because of the "nasty places" it "got into" that the rehabilitative ideal came under such severe criticism in the 1970s and beyond. One of the more important criticisms was the argument that the "helping" emphasis of rehabilitative judicial practices had very coercive consequences. Though supporters of rehabilitative justice spoke of helping, curing, and reforming, the outcomes of such programs and forms were often more severe and punitive than previous practices. Some observers worry that problem-solving courts may have the same tendencies. Richard Cappalli, for example, sees a number of "very serious problems" with problem-solving courts. "One of them is coercion." He adds, "It strikes me that you've got a terrible problem of coercion and consent in problem-solving courts." (63) AS it concerns domestic violence courts more specifically, Wendy N. Davis notes that many defense attorneys fear that "the emphasis on protecting victims has made courts too quick to lock up defendants." (64) Critical assessments of drug courts likewise detect some coercive tendencies. Richard Boldt observes that though defendants in drug court "may receive needed rehabilitative services, they still face potential coercive, even punitive, dispositions." (65) Likewise, William McColl comments that some drug court clients "experience greater criminal justice system involvement than the ordinary nonviolent offender in a like position." (66) Drug court judges do not object to these characterizations. Indeed, the judges themselves highlight the punitive features of the court, and often warn defendants that noncompliance may result in more serious sanctions than would be experienced in a traditional criminal court. (67) How, then, does the drug court judge respond to the argument that such practices are unjust--the basis of earlier critiques of the rehabilitative ideal?
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17 Addressing this question, Judges Hora and Schma acknowledge that drug court "requirements may prove more onerous than the equivalent traditional court sanctions for the same offenses" and that this particular quality of the drug court "tends to disturb defense attorneys." (68) Moreover, they recognize that drug courts "generally obligate a defendant to make more frequent court appearances and force the defendant to undertake forms of treatment which place more burdens on the defendant than normal probation." (69) In response to the criticism that this may be unjust, they simply assert the preeminence of the therapeutic jurisprudence perspective. Accordingly, Hora and Schma maintain that the defense attorney who worries about potentially draconian judicial interventions has "unfounded apprehension" that stems from a "lack of understanding about ... the concept of therapeutic jurisprudence." (70) From the enlightened therapeutic jurisprudence perspective, one understands that the "significant requirements of [the drug court] reflect the court's understanding that drug addiction is a disease and that intense court supervision provides the incentive for the defendant to stay in the program." (71) In other words, the arduous demands of drug court must be considered in the context of the therapeutic benefits it offers the defendant. So complete is this reinterpretation of judicial practices that sanctions themselves get relabeled. As one drug court judge put it, "he did not see himself as 'imposing punishment but as providing help.'" (72) Similarly, Hora and Schma assert that "treatment regimes are not punishment, but the restructuring of the defendant's lifestyle." (73) Notice that these judges do two things. First, they argue that the drug courts are indeed more demanding than the normal court. Second, they assert that these coercive interventions are not really punishment, but a "restructuring of the defendant's lifestyle." One response to this rather remarkable statement is that promoting lifestyle change is not the role of the judiciary. As the American Friends Service Committee argued in their influential 1971 critique of rehabilitative practices, "The whole person is not the concern of law. Whenever the law considers the whole person it is more likely that it will consider factors irrelevant to the purpose of delivering punishment." (74) Furthermore, simply altering the nomenclature (e.g., "lifestyle restructuring" instead of "punishment") does not make therapeutic legal practices any less punitive. Previous critics of the rehabilitative ideal denounced the practice of judicial label changing. Francis Allen, in his 1981 book The Decline of the Rehabilitative
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18 Ideal, derided the rehabilitative relabeling of solitary confinement as "constructive meditation"; of a detention facility as "Cloud Nine"; the disciplinary use of a powerful fire hose on the back of juvenile offenders as "hydrotherapy"; latrine cleaning as "work therapy"; and incarceration as "milieu therapy." (75) Problem-solving courts employ similar euphemisms. One domestic violence court judge uses "constructive intimidation" (i.e., substantial periods in jail) to motivate defendants. In drug courts, short-term incarceration has been called "shock therapy," "motivational jail," and "my motel." The imposition of a "sanction" is not a form of punishment, but a parent-like "response." Indeed, all aspects of drug court are interpreted in terms of their therapeutic effects. Hora and Schma have labeled drug court sanctions, "smart punishment," but even this is qualified. "Smart punishment is not really punishment at all, but a therapeutic response to the realistic behavior of drug offenders in the grip of addiction." (76) Or again, as they put it, sanctions are really just the "restructuring of a defendant's lifestyle." Drug court judges defend compulsory "lifestyle change" on the ground that it is in the best interest of clients, whether or not the client himself realizes it. "These lifestyle changes provide the defendant with the very best chance of avoiding any further contact with the criminal justice system." Therefore, though the drug courts "may appear exhaustive and prohibitive," they "in fact work to ensure that the defendant successfully completes treatment." (77) Because of this benevolent end, defense attorneys should get over their "unfounded apprehension" and embrace their new role of assisting in the "total improvement of the lives of their clients." (78) This, according to Hora and Schma, is defense counsel's "best option," the realization of which simply "requires a therapeutic jurisprudence perspective." Once acquired, they argue, that perspective will enable defense attorneys "to more completely represent their clients." (79) A second and related issue for critics of the rehabilitative ideal was the matter of indeterminate sentences--sentences which varied according to one's performance in rehabilitative correctional settings. Ridding the criminal justice system of indeterminate sentences was one the main goals of the 1984 Sentencing Reform Act. Indeterminacy is also a reality in the drug courts. Most programs are publicly expected to last one year, though they commonly last much longer. In fact, clients are sometimes asked to sign waiver forms permitting the court to keep them in the program for an indeterminate period.
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19 Unlike previous rehabilitative practices, indeterminacy in the case of the drug courts relates not to the length of a prison sentence, but to the amount of time a client spends under the authority of the judge-led drug court program. Therefore, the issue of indeterminacy plays itself out in the adjudicative rather than the correctional setting. This structural relocation may make less apparent and less glaring the issue of indeterminacy in the drug court. Still, recent critics have made the comparison to previous rehabilitative judicial practices. (80) Proponents of drug court have made several responses to criticisms regarding the injustice of indeterminacy. First, as McColl summarizes, "in relationship to the disease theory of addiction, such measures are necessary to break through the mechanism of denial and to institute a feeling of responsibility in otherwise unresponsive defendants." (81) Thus, the therapeutic jurisprudence perspective argues that the length of one's participation in drug court should be evaluated in therapeutic rather than legal terms; under this approach, lengthy participation is justified if it serves to break down denial and contribute to recovery. Additionally, applying the treatment perspective means being patient with relapse. Relapses typically translate into extended periods of program participation. Allowing for relapse, as Hora and Schma argue, represents the "unknowing application of therapeutic jurisprudence in the [drug court] setting." (82) The indeterminate nature of the drug courts is also curiously defended on the zground that indeterminacy and concomitant lengthy periods of participation are evidence that the drug courts are tough on crime. Some prosecutors worry that [drug court] sentencing of a defendant to a treatment program lets the defendant "get away" without accounting for his of her crime. This derivative of the soft on crime idea appears groundless when one compares the length and rigor of traditional incarceration and probation sentences and the length and requirements of [drug court] mandated treatment programs. Recent statistics show that a person convicted of a drug possession offense is just as likely to get probation as jail time and that median length of jail sentence for a drug possession offense is three months, while probation time is twenty-four months. Considering the fact that most [drug court] treatment programs last at least one year, not including recycle periods for relapse, the time commitment for treatment may not be much less than probation and probably will be greater than that of incarceration. (83)
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20 Drug court advocates thus defend indeterminacy by conceding that participation in the program rarely lasts the anticipated one year, and may well include a probation term that lasts two years or longer. This is asserted to fend off potential criticisms that drug courts coddle criminals. William McColl likewise notes that, as with indeterminacy in previous judicial practices, indeterminacy in the drug courts typically leads to longer sentences. (84) Like the drug court judges, he notes that indeterminacy and longer sentences actually provide a defense for drug court activists against the accusation that the drug courts are too easy on drug offenders. "The probability of receiving jail time and years of court-enforced treatment could serve to mollify those who favor punishment over other competing goals." (85) However, while this may assuage the concerns of the "tough on crime" crowd, it also makes the drug court more vulnerable to criticism regarding the unjust nature of indeterminacy--a criticism that plagued previous advocates of the rehabilitative ideal. In this regard, one issue that was taken up by liberal critics of the rehabilitative ideal is that indeterminacy and other features of rehabilitative justice can lead to serious violations of individual rights. Consider, for example, that the defense attorney--whose conventional role is to defend and guard the constitutional rights of his or her client--is compelled, in the context of the drug court's team approach, to put aside some of his or her traditional predilections. The forfeiting of such rights was precisely the kind of thing that bothered earlier critics of rehabilitative justice. These were among the first concerns expressed in opposition to the juvenile courts of the first part of the twentieth century. The lawyers of families involved with the early juvenile courts "questioned the court's right to deprive a child of liberty without due process, to forego trial by jury, to deny the right to appeal, to impose unequal penalties, and to disregard provisions for the equal protection of the law." (86) Recent critiques of the drug court have likewise raised questions about possible violations of individual constitutional rights. Boldt, for example, argues that for many drug court defendants, "the decision to participate in the treatment court process means that they effectively forego the presumption of innocence and the panoply of trial rights guaranteed by the Constitution." (87) In fact, drug court clients typically sign forms waiving a host of constitutional rights in order to participate in drug court, including the right to trial by jury, the right to a speedy trial, the right to a preliminary hearing, and the requirement of probable cause for a search and seizure. (88) Hora and Schma acknowledge that the waiving of "certain legal rights in
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21 order to gain entrance into the treatment program," is "[c]hief among defense attorneys' concerns" with the drug court program. (89) However, they assert that the "preadjudicative model appears most consistent with the therapeutic orientation of the [drug court] concept." (90) This is so because it facilitates the therapeutic goal of getting a client immediately into treatment, even if the client must waive fundamental rights to do so. Another common defense for the drug court's provisional denial of constitutional rights is that participation in the drug courts, at least in preadjudicative programs, is entirely voluntary. In postadjudicative courts, on the other hand, where drug courts can in essence be a rather intensive condition of probation, they are clearly not voluntary. But even in preadjudicative courts, where it is more common for clients to sign waiver forms, there is some evidence to suggest that client participation is not always purely a voluntary decision. Consider one example a drug court judge provided during an interview. Now this morning, for instance, there is this guy who is eligible. I tell him about the program. He says, "Well I'm about to get a job. I'm not interested in that." I said, "Okay, if you want to see a lawyer, that's fine." I said, "If you are going to have a job, you say you want to go through the public defender, well the public defender, unless you are very low income, won't be able to represent you. So do you want to hire a private attorney? Is that what you think you would like to do and then have about 15 pretrials before this finally gets resolved? Or would it be more convenient for you if you are already working and then have to go to jail? Or would you like to come hear about the [drug court] program?" (91) The judge admitted to having pushed this client too hard. "Now I probably pushed too hard on that one. That probably I shouldn't have done, but I felt like doing that this morning. So I did." (92) Consider similar practices in the Washington D.C. community court. As with many drug courts, the D.C. community court is preadjudicative. "In most cases, defendants don't plead guilty. Instead, the charges stand until the court-ordered resolution is completed; then the charges typically are dismissed." (93) Defendants may refuse to participate, but if they are later tried and convicted Judge Noel Kramer takes "their refusal into account at sentencing." (94)
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22 Comments like these suggest that clients may not always have the kind of choice that is commonly asserted by court officials. But the fact that judges help clients to "volunteer" in this manner is actually consistent with the overall therapeutic jurisprudence philosophy and the conviction that treatment is what is best for the client, even if the client doesn't initially realize it. In fact, drug court advocates now have data pointing to the ostensible efficacy of coerced treatment. (95) As reported in one drug court document, "Research indicates that a person coerced to enter treatment by the criminal justice system is likely to do as well as one who volunteers." (96) Coerced treatment is most apparent in postadjudicative assignments to the drug court. According to a 1997 Justice Department survey, in approximately 16 percent of the drug court programs all participating clients are post-plea clients; they enter drug courts before trial, but after a plea of guilty. In another 12 percent, drug court clients participate post-conviction but with deferred sentencing. (97) In the second case, they are simply assigned participation in drug court, with virtually no choice in the matter. Drug court judges admit that "the postadjudicative model does present some problems," and that a client "may also risk waiving certain defenses to charges, as well as the right to a trial." (98) While Hora and Schma see the preadjudicative model as more in keeping with therapeutic jurisprudence theory, they also believe that the postadjudicative model "may have great therapeutic impact." (99) They believe this because having to publicly admit to drug use can force a client out of denial. As they put it, "the court proceedings may force the offender to accept her addiction and may help her overcome denial, one of the hallmarks of drug abuse and addiction." (100) It is admitting to "drug use," not "guilt," that they view as therapeutically beneficial. In fact, inasmuch as the postadjudicative model forces the client to admit guilt, this may be "antitherapeutic because postadjudication [drug courts] which require guilty pleas often meet with resistance." (101) As illustrated in these discussions, the just desert model isn't so much resisted as it is replaced. The judges do not really debate whether certain legal sanctions or methods of adjudication are fair or unfair, too harsh or too lenient, proportional or excessive. Rather, practices are interpreted according to the extent to which they promote or discourage therapeutic outcomes. Inasmuch as therapeutic jurisprudence becomes an increasingly dominant paradigm, debate over the traditional goals of punishment won't so much be resolved as made irrelevant. But will the therapeutic
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23 jurisprudence model ever become that dominant? This question relates to another concern expressed by the earlier critics of the rehabilitative ideal, namely the net-widening tendencies of rehabilitative programs in the judicial system. The net-widening effect has been a defining feature of the drug court movement. Contrary to the typical claims of drug court advocates, drug courts can actually increase rather than relieve the burden of an individual court's heavy caseload. In Denver, Colorado, for example, the number of drug cases grew dramatically after the initiation of drug courts, from 1,135 filed cases in 1993 (the last full year before the implementation of drug court) to 3,223 in 1996 (the second full year of drug court). (102) According to Judge Morris Hoffman of the Denver criminal court, "The very presence of the drug court, with its significantly increased capacity for processing cases, has caused police to make arrests in, and prosecutors to file, the kinds of ten-and twenty-dollar hand-to-hand drug cases that the system simply would not have bothered with before...." (103) The expansion of cases in the Miami drug court led to one of the few critical media accounts of the movement. Reacting to reports on the Miami drug court's inclusion of serious offenders with long criminal histories, Seminole County Circuit Judge O.H. Eaton, Jr., worried that the program was becoming a "dumping ground"; and a Miami drug court prosecutor compared the expansion of the Miami drug court to a "rubber band that is being stretched and stretched and stretched.... [V]ery soon, it may snap." (104) The net-widening qualities of the drug court involve more than programmatic expansion. Therapeutic jurisprudence also allows the court to extend its authority into the lives of drug court clients in unprecedented ways. Consider a discussion among California drug court judges who sought to amend the California penal code so that drug courts might have authority to randomly search drug court clients and their homes. The proposed amendment called for a "requirement that the defendant submit to a search by a probation officer or peace officer of his or her person, personal effects, automobile or home, any time of the day or night, with or without probable cause." Most judges supported the measure. In fact, several admitted to already employing the practice. The one judge who did object to the amendment was offered the following defense of the practice by another drug court judge: I support a search clause for drug treatment court clients because I think a search clause is therapeutic.... Random [urine] testing keeps clients clean and so will a search clause. It also
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24 enables us to do other interventions such as getting a using partner into couples counseling, anger management, etc. and provid[ing] parenting classes if the home situation is not good. It helps keep participants from associating with the "wrong people" and with being in the "wrong place at the wrong time".... I don't see a search clause as a sanction so much as an additional therapeutic intervention that will help them succeed. Notice that the therapeutic perspective not only justifies random searches of the drug court client's person and home without probable cause; it also allows the court to make judgments regarding persons associated with the drug court client, the result of which may be further judicially sanctioned therapeutic intervention (e.g., parenting and anger management classes). V. CONCLUSION In sum, previous critiques of the rehabilitative ideal are relevant to the drug courts in several respects. As with the formerly dominant rehabilitative ideal, the distinction between punishment and treatment "withers away"; (105) participation in the program is of an indeterminate length; individual constitutional rights are waived, albeit "voluntarily," in order to participate in the program; and the model widens the net of judicial oversight. The difficulties associated with these consequences are often addressed by sidestepping the legal issues and asserting the preeminence of a therapeutic jurisprudence perspective. Though therapeutic jurisprudence scholars and drug court judges contend that therapeutic jurisprudence does not trump traditional goals of criminal justice, the application of therapeutic jurisprudence to the drug court setting illustrates how traditional views of justice are marginalized in practice. Thus, though the previous critiques are still logically salient, it seems they have been artfully handled not so much through forceful refutation as through a culturally inspired altering of the terms of debate--a process that portends the eventual dissolution of traditional conceptions of justice. In closing, I wish to take up one final critique of the rehabilitative ideal which, unlike those reviewed above, may not so fully apply to the drug court model. This final issue was anticipated by C.S. Lewis, "an early and forceful proponent of the liberal critique." (106) [O]nly the psychotherapist can tell us what is likely to cure. It will be in vain for the rest of us, speaking simply as men, to say, "but this punishment is hideously unjust, hideously disproportionate to the criminal's deserts." The experts with
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25 perfect logic will reply, "[Blur nobody was talking about deserts. No one was talking about punishment in your archaic vindictive sense of the word. Here are the statistics proving that this treatment deters. Here are the statistics proving that this treatment cures. What is your trouble?" (107) Lewis raises two important points. First, he notes that rehabilitative justice is defended on the basis of program efficacy. Francis Allen similarly identified this tendency as one of the most corrosive features of rehabilitative practices in criminal law. He wrote of the "devastating ... practice of rehabilitationists to seek public support of their agenda by promising savings to taxpayers." (108) Utilitarian concerns have likewise been a consistent justificatory theme legitimizing various forms of drug social control throughout the twentieth century, including most recently the drug court movement. Indeed, drug courts are regularly defended on the grounds of program efficacy and fiscal utility. (109) While the claims of efficacy have proven somewhat dubious, (110) to enter into a debate about whether drug courts are or are not efficacious is to ignore the larger and more important question, which is: What effect does a preoccupation with efficacy have on the meaning of justice? Few, if any, would support a policy of capital punishment for drug offenders. Yet such a policy could conceivably be justified on utilitarian grounds. Such a policy would eliminate all rehabilitation and correctional costs to the taxpayer and it would produce a zero percent recidivism rate. In spite of these utilitarian outcomes, such a policy would be, of course, highly problematic. But it would be so from the standpoint of justice--i.e., because application of the death penalty in such circumstances would not be proportional to the offense. In this light, defenders of classical conceptions of justice might reasonably worry that the continued spread of therapeutic jurisprudence will make less plausible arguments against certain practices that, though less egregious than the example provided here, may be similarly unjust. Consider finally the second point raised by Lewis, namely, the presence, authority, and expertise in the legal setting of those who represent the psychological paradigm. Lewis criticized a legal situation where "only the psychotherapists can tell us what is likely to cure." He anticipated difficulties with objecting to therapeutically justified sanctions because they are classified as "'treatment,' not punishment," and can therefore "be criticized only by fellow experts on technical grounds, never by men as men and on grounds of justice." (111) This was a major concern of other critics of the
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26 rehabilitative ideal, who saw previous forms of rehabilitative justice as providing therapeutic experts greater authority based on their possession of a particular kind of knowledge. Treatment providers certainly play a vital role in the drug courts and other problem-solving courts. Judges regularly employ their services and take their advice in determining how to handle clients. This is an important feature of problem-solving courts and an unprecedented judicial development. However, it is only a small part of a much larger story. More significant than the new role of the therapeutic practitioners in the courtroom is the overall transformation of the adjudicative setting according to the therapeutic paradigm. The roles of all actors in the courtroom drama are being reshaped in accordance with therapeutic themes. As a result, the exercise of power on the basis of specialized therapeutic knowledge is no longer limited to the counselor; instead, it is now available to all actors in the drug court, including the clients. (112) Therefore, while Lewis's skepticism concerning the exclusive and power-granting expertise of the psychotherapist may not be applicable to the contemporary drug court model, his concern regarding the declining salience of protests based "on the grounds of justice" is still a very crucial point. Indeed, in the emerging era of therapeutic jurisprudence, objections rooted in traditional conceptions of justice may be even more difficult to make. Given the cultural dominance of the therapeutic idiom and its widespread accessibility, objections based on classical conceptions of justice become less tenable. Put another way, it is not that arguments based upon justice are refused and ignored by the "experts." Rather, increasingly no one thinks to offer protests on these grounds. They make no sense in a culture and legal world influenced by a therapeutic perspective. Once justice can be plausibly spoken of as "just treatment," any objections based on "just desert" become meaningless. While the pressures on the legal system are undeniably real, and the desire to solve social problems certainly laudable, agents of legal change would do well to understand the substance of the ideological systems they are adopting and the consequences these ideas may have on the meaning and practice of justice. James L. Nolan, Jr., Associate Professor of Sociology, Chair, Dept. of Anthropology and Sociology, Williams College.
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27 Endnotes (1.) See generally MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994); Susan Daicoff, The Role of Therapeutic Jurisprudence within the Comprehensive Law Movement, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS HELPING PROFESSION 465 (Dennis P. Stolle, et al. eds., 2000); Arie Freiberg, Problem Solving Courts: Innovative Solutions to Intractable Problems?, 11 J. JUDICIAL ADMINISTRATION 8 (2001). (2.) Parts of this article are derived from revised versions of material in, James L. Nolan, Jr., Preface to DRUG COURTS: IN THEORY AND IN PRACTICE, at vii-xiv (James L. Nolan, Jr. ed., 2002); JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 185-208 (2001). Unless indicated otherwise, all quotes from judges and other drug court practitioners are from the author's ethnographic research conducted between 1994 and 1998. See id. at 11-13 for a full description of research methods. (3.) Daicoff, supra note 1, at 466 & note 8; see also Freiberg, supra note 1, at 9 (arguing that the need for new legal approaches has resulted, in part, from "a breakdown in traditional social and community institutions which have supported individuals in the past"). (4.) David Rottman & Pamela Casey, Therapeutic Jurisprudence and the Emergence of Problem-Solving Courts, NAT'L INST. JUST. J. 13, 13 (1999) (tracing the development of the new problem-solving model). (5.) Id.; see also Greg Berman, What is a Traditional Judge Anyway? Problem Solving in the State Courts, 84 JUDICATURE 78, 80 (2000) (comments of Judge Judith S. Kaye) (offering the perspective of a judge on "the breakdown of the family and of other traditional safety nets"). (6.) See Jeffrey A. Butts, Introduction: Problem-Solving Courts, 23 L. & POL'Y 121, 121 (2001) ("Drug courts are the most visible type of problem-solving court."). (7.) Greg Berman & John Feinblatt, Problem-Solving Courts: A Brief Primer, 23 L. & POLICY 125, 126 (2001). Freiberg similarly notes, "The genesis of modern problemsolving courts can be found in the first drug court experiment in Dade County Florida in 1989." Freiberg, supra note 1, at 12. (8.) Arthur Santana, Behavioral Advice From the Bench: D.C. Court Swaps Jail Time for Life Changes in Misdemeanors, WASH. POST, Dec. 2, 2002, at A10. (9.) BUREAU OF JUSTICE ASSISTANCE, COMMUNITY COURTS: AN EVOLVING MODEL 9 (2000). (10.) Berman & Feinblatt, supra note 7, at 127. (11.) Arie Freiberg, Specialised Courts and Sentencing 5 (2002) (unpublished manuscript, presented at Probation and Community Corrections: Making the Community Safer Conference, convened by the Australian Inst. of Criminology, and the Probation and Cmty. Corr. Officers' Ass'n. Inc.), available at http://www.aic.gov.au/ conferences/probation (last visited Nov. 20, 2003). 12. Freiberg, supra note 1, at 16. (13.) Wendy N. Davis, Special Problems for Specialty Courts, 89 A.B.A.J. 32, 37 (2003). (14.) Id. (15.) Freiberg, Specialised Courts and Sentencing, supra note 11, at 4. (16.) Freiberg, supra note 1, at 18. (17.) Carrie J. Petrucci, Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court that Utilizes Therapeutic Jurisprudence, 38 CRIM. L. BULL. 268 (2002).
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28 (18.) Center for Court Innovation, Problem-Solving Courts: Chronology, at http://www.problem-solvingcourts. org (last visited Nov. 20, 2003). (19.) Petrucci, supra note 17, at 288. (20.) Berman, supra note 5, at 78. (21.) Id. at 85 (comments of John Goldkamp). (22.) As Arie Freiberg notes, "the overlay of a philosophical basis on the problemoriented court model came with the development of the concept of 'therapeutic jurisprudence.'" Freiberg, supra note 1, at 11. Rottman and Casey likewise observe: Various approaches are being tested across the country following a variety of principles, including those of therapeutic jurisprudence, which explore the role of the law in fostering therapeutic or antitherapeutic outcomes.... Restorative justice and community justice are related approaches to problem solving that offer the field of therapeutic jurisprudence potential strategies for achieving therapeutic outcomes. Rottman & Casey, supra note 4, at 13. See also John Feinblatt, et al., Judicial Innovation at the Crossroads: The Future of Problem-Solving Courts, 15 CT. MANAGER 28, 30 (2000). Feinblatt et al. note, "Some observers have looked at these kinds of reforms and applied labels like 'therapeutic jurisprudence' and 'restorative justice' to problem-solving courts. And, in fact, problem-solving courts do draw upon some elements of these philosophies." Id. (23.) Daicoff, supra note 1, at 465. (24.) John Braithwaite, Restorative Justice and Therapeutic Jurisprudence, 38 CRIM. L. BULL. 244 (2002). (25.) Id. at 246. (26.) Id. at 247; see also JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 12 (2002). Here Braithwaite asserts, "[I]t should be forbidden for a restorative justice process to impose a punishment beyond that which would be imposed by the courts for that kind of wrongdoing.... Restorative justice processes should be constrained by all the rights that are foundational to liberal legalism." (27.) JOHN BRAITHWAITE & PHILIP PETTIT, NOT JUST DESERTS: A REPUBLICAN THEORY OF CRIMINAL JUSTICE 101-05 (1993). (28.) Andrew Von Hirsch & Andrew Ashworth, Not not Just Deserts: A Response to Braithwaite and Pettit, 12 OXPORD J. LEGAL STUD. 83, 88 (1992). (29.) Braithwaite, supra note 24, at 254. (30.) Id. at 253. (31.) Bruce Winick, The Jurisprudence of Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 665 (David B. Wexler & Bruce Winick eds., 1996). (32.) According to Braithwaite, "reintegrative shaming communicates disapproval within a continuum of respect for the offender; the offender is treated as a good person who has done a bad deed." He distinguishes reintegrative shaming from stigmatization, and sees the former a clearly preferable. An "apology" from an offender to a victim, for example, "is a kind of shaming that is morally preferable to stigmatization." Braithwaite, supra note 24, at 257-8. (33.) Bruce Winick, Remarks at the Western Michigan University Forum (April 13, 2000) (videotape on file with author). 34. Id. (35.) Braithwaite, supra note 24, at 247. (36.) Id. at 244. (37.) The article's findings, therefore, axe particularly relevant to drug courts, and are only applicable to the functions and consequences of other problem-solving courts (which can differ considerably from drug courts) in a more limited manner. (38.) S. REP. No. 98-225, at 50 (1983), reprinted in 1983 U.S.C.C.A.N. 3250.
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29 (39.) Keri A. Gould, Turning Rat and Doing Time for Uncharged, Dismissed or Acquitted Crimes, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 189-90 (David B. Wexler & Bruce Winick eds., 1996). (40.) Id. at 190. (41.) Id. at 181. (42.) Id. at 200. (43.) Id. at 197. (44.) Id. at 190. (45.) Id. at 178. (46.) See Judge Sheila M. Murphy, Therapeutic Jurisprudence: Its Time Has Come, TRIAL JUDGES NEWS, Winter 1997/1998, at 3. (47.) Peggy Fulton Hora et al., Therapeutic Jurisprudence and the Drug Treatment Court Movement." Revolutionizing the Criminal Justice System's Response to Drug Abuse and Crime in America, 74 NOTRE DAME L. REV. 439, 441 (1999). Elsewhere Hora and Schma write that after developing "simultaneously but independently," it was eventually discovered that "they were not only compatible but natural companions." Peggy Fulton Hora & William G. Schma, Therapeutic Jurisprudence, 82 JUDICATURE 8, 10 (1998). (48.) Hora et al., supra note 47, at 537. (49.) It was, for example, purchased by the National Drug Court Institute and sent to all members of the NADCP. The cover letter for this mailing presented the article as a "seminal" work and "'an important contribution to the developing drug court literature." (50.) See, e.g., Daicoff, supra note 1, at 467, 483; John Terrence A. Rosenthal, Therapeutic Jurisprudence and Drug Courts: Integrating Law and Science, in DRUG COURTS: IN THEORY AND IN PRACTICE 145, 71 (James L. Nolan, Jr. ed., 2002); David Wexler, Relapse Prevention Planning Principles for Criminal Law Practice, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION 237, 237 (Dennis P. Stolle et al. eds., 2000); David Wexler, Therapeutic Jurisprudence and the Culture of Critique, in PRACTICING THERAPEUTIC JURISPRUDENCE 449, 462 (Dennis P. Stolle et al. eds., 2000). (51.) John Petrila, Paternalism and the Unrealized Promise of Essays in Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 686 (1996). (52.) See NOLAN, REINVENTING JUSTICE, supra note 2; JAMES L. NOLAN, JR., THE THERAPEUTIC STATE: JUSTIFYING GOVERNMENT AT CENTURY'S END (1998). (53.) Berman, supra note 5, at 83 (comments of William Nelson). (54.) See generally ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985); CHRISTOPHER LASCH, THE CULTURE OF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS (1979); ALASDAIR C. MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed. 1984); JOHN STEADMAN RICE, A DISEASE OF ONE'S OWN: PSYCHOTHERAPY, ADDICTION, AND THE EMERGENCE OF CO-DEPENDENCY (1996); PHILIP RIEFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FARRA AFTER FREUD (1966); BERNIE ZILBERGELD, THE SHRINKING OF AMERICA: MYTHS OF PSYCHOLOGICAL CHANGE (1st ed. 1983). For a review of this literature see NOLAN, THE THERAPEUTIC STATE, supra note 52. (55.) Berman, supra note 5, at 83 (comments of William Nelson).
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30 (56.) Hora et al., supra note 47, at 449. In his assessment of the Baltimore drug court. William McColl notes the same of drug court practitioners. According to McColl, drug court "reform efforts are not guided by theory." Rather, "[p]ractitioners in [drug courts] are guided by what they perceive to be working and they discard what does not work." William McColl, Comment, Baltimore City's Drug Treatment Court: Theory and Practice in an Emerging Field, 55 MD. L. REV. 467,500 (1996). In spite of the lack of guiding theory among drug court practitioners in the early years of the movement, McColl does note that there were "certain underlying beliefs" that informed the drug court movement. And these, according to McColl were primarily therapeutic or medical rather than legal in focus. Id. at 469, 500. (57.) Hora et al., supra note 47, at 448. Also, McColl, though apparently not aware of therapeutic jurisprudence theory, as such, essentially arrives at the same conclusion. He observes that, "more than any other court, [drug courts] are the epitome of a therapeutic or medical approach to crime." See McColl, supra note 56, at 501. (59.) David B. Wexler & Bruce Winick, LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE xvii (David B. Wexler & Bruce Winick eds., 1996). (60.) See generally FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE (1981); AMERICAN FRIENDS SERVICE COMMITTEE, STRUGGLE FOR JUSTICE, A REPORT ON CRIME AND PUNISHMENT IN AMERICA (1971); NORVAL MORRIS & GORDON HAWKINS. LETTER TO THE PRESIDENT ON CRIME CONTROL (1977); ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (2d ed. 1977). (61.) See NOLAN, REINVENTING JUSTICE, supra note 2, 155-84. (62.) John Feinblatt & Derek Denckla, What Does It Mean To Be a Good Lawyer?: Prosecutors, Defenders, and Problem-Solving Courts, 84 JUDICATURE 206, 214 (2001) (comments of John Stuart). (63.) Berman, supra note 65 at 85 (comments of Richard Cappalli). (64.) Davis, supra note 13, at 37. (65.) Richard Boldt, Rehabilitative Punishment and the Drug Treatment Court Movement, 76 WASH. U. L.Q. 1205, 1216 0998). (66.) McColl, supra note 56, at 503. (67.) See Nolan, supra note 2, at 51-57. (68.) Hora et al., supra note 47, at 522. (69.) Id. at 523. (70.) Id. (71.) Id. (72.) Sally Satel, Observational Study of Courtroom Dynamics in Selected Drug Courts, 1 NAT'L. DRUG COURT INST. REV. 43, 52 (1998). (73.) Hora et al., supra note 47, at 523. (74.) AMERICAN FRIENDS SERVICE COMMITTEE, supra note 60, at 147. (75.) ALLEN, supra note 60, at 51. (76.) Hora et al., supra note 47, at 470. (77.) Id. at 523. (78.) Id. (79.) Hora and Schma also state, "The defense counsel should view the DTC process as the best method for 'ending the cycle of drugs and crime [which] is in the best interest[s] of the client.'" Hora & Schma, supra note 47, at 523. (80.) Richard Boldt, for example, observes that "variation in outcomes is entirely consistent with the design of modern drug treatment courts, which tend to link decisions regarding the imposition of incarcerative sentences and length of supervision to the performance of offenders in treatment." noldt, supra note 65, at 1932. (81.) McColl, supra 56, at 497.
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31 (82). Hora et al., supra note 47, at 469. (83.) Id. at 518. (84.) "As in other indeterminate sentencing situations, it is a peculiar phenomenon that the time for treatment can be far longer than the jail sentence normally given." McColl, supra note 56, at 503. (85.) Id. (86.) DAVID ROTHMAN, CONSCIENCE AND CONVENIENCE: THE ASYLUM AND ITS ALTERNATIVES IN PROGRESSIVE AMERICA 232 (1980). (87.) Boldt, supra note 65, at 1255. (88.) See NOLAN, REINVENTING JUSTICE, supra note 2, at 199. (89.) Hora et al., supra note 47, at 521. (90.) Id. at 513. (91.) NOLAN, REINVENTING JUSTICE, supra note 2, at 200. (92.) Id. (93.) Santana, supra note 8, at A10. (94.) Id. (quoting Judge Noel). (95.) For perhaps the most comprehensive discussion of the efficacy of coerced treatment, see SALLY SATEL, M.D., DRUG TREATMENT: THE CASE FOR COERCION (1999). For other discussions of the issue see Sate1, supra note 72, at 53; McColl, supra note 56, at 476. (96.) DRUG COURTS PROGRAM OFFICE, U.S. DEP'T. OF JUSTICE, DEFINING DRUG COURTS: THE KEY COMPONENTS 9 (1997) (citing R. HUBBARD ET AL., DRUG ABUSE TREATMENT: A NATIONAL STUDY OF EFFECTIVENESS (1989)). (97.) CAROLINE S. COOPER, U.S. DEP'T OF JUSTICE, 1997 DRUG COURT SURVEY REPORT: EXECUTIVE SUMMARY 17 (1997). (98.) Hora et al., supra note 47, at 516. (99. Id. at 515. (100.) Id. at 515-16. (101.) Id. at 516. (102.) Morris Hoffman, The Drug Court Scandal, 78 N.C.L. REV. 1437, 1502 (2000). (103.) Id. at 1503. (104.) Jeff Leen & Don Van Natta, Jr., Drug Court Favored by Felons, THE MIAMI HERALD, Aug. 29, 1994, at 1A, 6-7A. For a discussion of this report in relation to the net-widening effect, see also Hora et al., supra note 47, at 519-20. (105.) This terminology cited in McColl, supra note 56, at 493 (citing BARBARA WOOTTON, CRIME, RESPONSIBILITY, AND PREVENTION 169 (1963)) ("Wootton thus recommended that the distinction between criminal justice and the medical system must 'wither away.'"). (106.) Boldt, supra note 65, at 1241. (107.) Lewis, supra note 58, at 226 (emphasis in original). (108.) ALLEN, supra note 60, at 55. (109.) NOLAN, THE THERAPEUTIC STATE, supra note 52, at 101-103. Richard Boldt likewise observes: "Indeed prominent in all of the public efforts to establish and fund [drug courts] has been the rhetoric of utility and savings promised by an approach designed to clear court dockets and relieve prison overcrowding." Boldt, supra note 65, at 1244. (110.) See NOLAN, REINVENTING JUSTICE, supra note 2, at 127-32. (111.) Lewis, supra note 58, at 229.
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2 Conference Report: New York Cityʼs Criminal Courts: Are We Achieving Justice? Martha Rayner
O
n October 18, 2003, at a conference hosted by the New York County Lawyers' Association and the Fordham University School of Law's Louis Stein Center on Law and Ethics, (1) more than one-hundred professionals, having diverse roles, and from the five boroughs of New York City, came together to identify, evaluate, and begin to solve some of the complex problems firmly embedded in the culture, operations, and practice in our City's Criminal Courts. They came together in an effort to enhance justice in New York City's Criminal Courts. In her welcoming remarks, Judge Juanita Bing-Newton, Chief Administrative Judge of New York City's Criminal Courts, (2) emphasized the extraordinary volume of cases that move through the City's Criminal Courts (3) and stressed the importance of justice in any discussion of the Criminal Court as the Criminal Court is where the "Constitution and the public intersect in a dramatic way."(4) Like Judge Newton, Norman L. Reimer, the day's keynote speaker and president of the New York County Lawyers' Association, (5) stressed the overwhelming number of case filings handled by Criminal Court. (6) It is the Criminal Court that forms the _______________________________________________________ This article was originally published in the Fordham Urban Law Journal as “New York City's Criminal Courts: Are We Achieving Justice?” by Martha Raynor. Fordham Urban Law Journal Vol. 31 (2004). Reprinted by permission
33
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34 impression of justice for tens of thousands of our fellow citizens--the accused, the victimized, and their families and friends. Reimer concluded that "all too often it is not a good impression." (7) Addressing prosecutors, public and private defense attorneys, judges, court clerks and administrators, probation officials, policy makers, members of advocacy organizations, academics, and others, he emphasized "our collective responsibility to do something about this" as the Criminal Courts have both the power to "destroy and to save lives." (8) Reimer urged the participants to aim for "a system with all components working at optimum level so that the process of deciding who deserves what result is as reliable as possible, and to see that the proper outcome is available and administered fairly and competently." (9) The conference planners (10) designed the conference to emphasize the collective responsibility each organization has for enhancing justice in New York City's Criminal Courts. The courts do not function in isolation; they are part of a complex system with components parts that are numerous, varied, and often independent of the court. Police, prosecution, defense, probation, and corrections, to name the most prominent, are all integral to the functioning of Criminal Court, yet traditionally, each component takes responsibility for only its own, circumscribed role within the court system. Thus, for example, the persistent, deplorable lack of attorney-client interview space in the courthouses is primarily relegated to defense organizations to solve, while in fact it is a problem that negatively impacts the entire system and is emblematic of the negative impressions formed by at least one sector of Criminal Court "users:" defendants. The conference challenged participants to move beyond their traditional workplace roles in Criminal Court and reflect thoughtfully on difficult, system-wide problems. Though defined by law as "local" courts, (11) New York City's Criminal Courts are commonly referred to as the lower courts or courts with "inferior jurisdiction." (12) Under New York State's "complex, somewhat unique, and in the opinion of many, antiquated" (13) court structure, New York City's Criminal Courts have preliminary jurisdiction over all offenses (14) and trial jurisdiction over misdemeanors and violations. (15) The Criminal Courts in each borough (16) handle the arraignment for all arrests, from subway fare evasion, and the subsequent adjudication of all non-indicted felonies, misdemeanors, and violations. (17) As a result of changes in policing policies, the number of misdemeanor arraignments increased more than sixty percent from 1992 to 2002. (18) In 1993, New York City implemented a policing
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35 strategy that emphasized maintenance of public order, a policy now commonly referred to as quality-of-life policing. (19) The policy mandated zero tolerance for minor misdemeanor crimes (so-called "quality-of-life crimes") and targeted offenses such as turnstile jumping, public drinking, and panhandling. (20) As a result, the number of misdemeanor cases flowing into Criminal Court increased dramatically. (21) At the same time, the number of felony cases decreased significantly. (22) Thus, the Criminal Court caseload has greatly increased with misdemeanor cases accounting for a much higher percentage of the caseload. (23) In 2002, the Criminal Courts handled 327,592 felony and misdemeanor arraignments and the resulting misdemeanor caseload. (24) These massive Criminal Court caseloads present an immense challenge to the achievement of justice. The charge of excessive caseloads has been long leveled at the Criminal Courts. In 1983, the Criminal Courts Committee of the Association of the Bar of the City of New York described the City's Criminal Court as "a system out of control--a crowded, heavily timepressured, continually depressing market place in which the need simply to dispose of cases has overshadowed everything else, and in which it has almost never been possible to use real care in separating out the innocent and imposing sensible penalties on the guilty." (25) In 1989, the Office of Court Administration, in its Annual Report, wrote that the "effect of the incredible caseload pressure in New York City Criminal Court is profoundly troubling." (26) Just over ten years ago, referring to New York City's Criminal Court, a prominent legal ethicist, Harry I. Subin, concluded that the Court was "[h]opelessly awash in a sea of cases" and "unable to administer justice." (27) Presently, the State's Chief Judge has expressed concern about the significant backlogs caused by quality-of-life policing. (28) At the core of this decades-long hue and cry over caseloads is a concern for justice--for individualized justice--and a fear that massive caseloads unacceptably compromise the opportunity for that individualized justice. Implicit in the criticism is the acknowledgement that as case loads rise, court resources fail to rise commensurately. Thus, the equation is simple. Time is limited and higher numbers result in each professional in the criminal justice system having less time to devote to the people involved in each case, whether it be defendant, victim, complainant, or family members. This, in turn, results in professionals having to place a premium on strategies that increase efficiency rather than justice. The
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36 end result: rote, routinized, and perfunctory treatment of people and processing of matters important to defendants, victims, their families, and the public. Yet, individualized justice is a core principle of due process and of our criminal justice system. (29) Judges are required to impose sentences based on individualized assessments of each case. (30) This is also central to the prosecutor's role: "[T]he capacity of prosecutorial discretion to provide individualized justice is 'firmly entrenched in American law." (31) The broad discretion given to prosecutors in deciding who to charge and what to charge allows for individualized justice. (32) And criminal defense attorneys certainly must represent the individual interests of each, client? (33) As to public perception, the terms used to describe that which is antithetical to individual justice--assembly-line justice, wholesale justice--are inherently pejorative and inimical to our system of justice. There is deemed to be a baseline unfairness in a system that does not treat each case individually, thereby undermining public faith in the system's effectiveness. (34) It may be that rapid, efficient case processing is endemic to a system that hears "minor" criminal cases. However, "[t]here will always be too many cases for many of the participants in the system since most of them have a strong interest in being some place other than in court." (35) And this includes defendants who find that the cost, including numerous court appearances, of litigating a criminal case in New York City is simply too high? (36) The traditional attitude that misdemeanors are low-stakes Cases (37) favors a system that values rapid, efficient case processing. After all, thirty percent of misdemeanor cases will result in an Adjournment in Contemplation of Dismissal? (38) In addition, most defendants will not serve additional jail time beyond the twenty-four hour arrest-to-arraignment time. (39) Moreover, it is arguable that the problem-solving courts that have proliferated in New York City in recent years siphon off the case types, such as domestic violence, most in need of individual attention. (40) In considering the calculus between stakes and the individualized attention required on the part of prosecutors, defense attorneys and judges, the growing number of collateral consequences for misdemeanor arrests and convictions must be considered. Collateral consequences have, beginning in the mid-1980s, grown in number and severity, and have continued to impact more and more people as the number of arrests and criminal convictions rose. (41) The consequences of a criminal conviction that in the past were almost exclusively limited to the criminal court sanction now have
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37 the potential to lead to devastating civil consequences, wholly outside the control of criminal court. For example, in 1996 and 1998, Congress passed two laws that gave discretion to local public housing agencies to deny eligibility to anyone with a criminal background. (42) In New York, a person convicted of a simple disorderly conduct violation is presumptively ineligible for public housing for two years. (43) In 1998, Congress passed the Higher Education Act that suspends eligibility for federal student loans, grants, or work assistance to students convicted of a drug-related offense. (44) This includes a conviction for a marijuana violation, a common plea bargain offered by the prosecution and accepted by defendants in the many misdemeanor marijuana cases that are adjudicated in Criminal Court. (45) In New York, pursuant to federal law,(46) a person's driver license is automatically suspended for six months upon a conviction of any drug offense, including misdemeanor marijuana possession. (47) In addition, the impact of misdemeanor convictions on traditional collateral consequences such as immigration has become more severe since passage of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. (48) There is great tension in a criminal court system premised on the ideal of individualized justice that so often simply does not deliver. Whether because of intense volume or the perceived low stakes of misdemeanor cases, Criminal Court and all its contributing players, including the District Attorney and Public Defender offices, have developed policies and practices that value case processing over justice. There is great value in working hard to describe accurately the policies and practices that have developed, some consciously and thoughtfully designed and others patched together haphazardly, and then to evaluate how these policies and practices hinder or further the ideal of individualized justice. The Criminal Courts Conference was a first step in such a process of analysis. The conference planners focused on five problems that have undermined the pursuit of justice in New York City's Criminal Court system for decades. The first group, Arraignment Norms, Practices and Culture, targeted professionalism and justice at the first and often last court appearance for people arrested and charged with misdemeanor crimes in New York City. The second group focused on the collateral consequences of misdemeanor arrests and convictions, as well as the specialized and problem-solving courts becoming prevalent in the Criminal Courts. The third group, The Impact of Criminal Court on the Marginalized Person Who "Use" the System, took on the highly charged, but fundamentally important,
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38 issue of the intersection of race and New York City's Criminal Courts. The fourth group examined the post-arraignment processing of cases, and the fifth group explored standards, evaluation and monitoring of the many professionals who participate in the functioning of Criminal Court. (49) The conference was to be a first step in a longer term endeavor to improve New York City's Criminal Courts. The New York County Lawyers Association is currently in the process of forming a Criminal Courts Task Force to follow up on the discussions and creative ideas that came out of the conference, to work more closely with Court Administration to explore what can be accomplished, and most importantly, to serve as a facilitator for greater communication between the Courts and those who "use" and practice in them. An executive summary and list of conference participants follows. Detailed reports from each of the five working group are attached as addenda.
I. EXECUTIVE SUMMARY A. Volume and Speed All of the working groups discussed the workload of the criminal court. So many cases are processed and at such rapid speed that there is a lack of individualized attention to cases and a risk of premature and inaccurate disposition. Several recommendations resulted, although not all the participants agreed on the best way to implement the recommendations. 1. Reduce the number of cases processed in the Criminal Court, possibly by issuing more Desk Appearance Tickets (50); declining prosecution; or diverting cases into alternative fora. 2. Add resources to the Criminal Court, to allow professionals to pay more attention to each case. This could be achieved by opening more courts or by reallocating resources between Criminal and Supreme Court on the basis of caseloads rather than status, as has been recently proposed by Chief Judge Kaye. (51) 3. Do not assign Civil Court judges, who are unfamiliar with criminal law and procedure, to arraignments B. Lack of Information Communicated to the Accused, Witnesses, and Victims The potential collateral consequences of a criminal court conviction are significant. Convicted persons may be deported, evicted, or prevented from obtaining licenses and loans. Sentencing in criminal court is more complex than it appears. Convictions may require the payment of fines and fees. Individuals who do not pay may be re-
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39 arrested and jailed. When payment is deferred by the entry of judgment, individuals may unknowingly damage their credit rating. 1. Devise ways to ensure that individuals convicted of offenses and crimes understand fully the ramifications of a plea of guilty. Defense attorneys should learn more about the collateral consequences of convictions and counsel their clients accordingly. Courts could shoulder responsibility for informing the individuals who appear before them. Courts could also experiment with informational leaflets, film clips, and kiosks that could inform arrestees, even before they are arraigned, about what happens in criminal court, potential sentences and alternatives to incarceration. 2. Devise mechanism to keep all professionals who work in the system informed about relevant developments. C. Facilities Every group discussed the deplorable physical condition of the criminal courts, which were described as filthy and infested with vermin. These conditions are unpleasant for the people who work in the court, foster unprofessional attitudes towards work, and, perhaps even more importantly, negatively impact the public. There is little or no case conferencing space for defense attorneys to conference with their clients, for prosecutors to prepare witnesses, or for lawyers to have privacy and quiet to thoughtfully discuss case resolution. Judges complained that in some courthouses, they lack personal chambers. 1. Clean the courts. 2. Include the perspective of the people who work in the courts when planning new facilities. 3. Create private interview space for lawyers to meet with defendants, witnesses and each other. 4. Encourage professional and courteous behavior by court professionals who interact with the public. Disrespect and unprofessional treatment by court personnel and lawyers toward defendants and their families was identified as a dehumanizing aspect of Criminal Court. Group Three in particular recommended training for lawyers and court personnel, as well as a well-publicized complaint process. D. Calendar Control Cases move through the courts at a maddeningly slow pace. The accused often plead guilty because they are tired of missing days of work, and not because they have, in fact, committed a crime. The discovery process is ponderous.
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40 1. Experiment with excusing defendants from some court appearances. A reporting part could permit defendants to check in with the court, maintaining court control over the accused, yet granting those individuals some flexibility in their work, childcare and education obligations. 2. Experiment with a night court session. 3. Experiment with a split calendar. Designating morning and afternoon appearance times may alleviate the delays that result from all cases being calendared first thing in the morning but not heard until much later in the day. 4. Re-think discovery practice. Lack of investigation and refusal to disclose the results of investigation slow the process and result in miscarriages of justice. 5. Experiment with alternatives to the current, almost exclusive, use of cash bail. E. Information Sharing All conference participants expressed frustration with the lack of ability to control their workload. Public safety strategies are implemented without discussing the impact any given strategy might have on the courts. When the police implement a new strategy and decide to target a specific criminal element for arrest, that decision immediately impacts the Criminal Court, without warning to its contributing organizations. 1. Re-establish a regular schedule of meetings to share information and ideas. Members of Group One in particular recalled a series of meetings among representatives of the component organizations working in Criminal Court that succeeded in reducing the time between arrests and arraignment. The group endorsed the idea of resuming a regular meeting schedule to meet ongoing challenges and to foster cooperation and coordination among the many stakeholders in the criminal justice system. 2. Create a mechanism for influencing, or at least hearing about policing decisions. 3. Create a mechanism for influencing legislative decisions. F. Status Group Four, in particular, recognized that Criminal Court is not just "lower" to Supreme Court jurisdictionally, but in many other aspects as well. The group was concerned that the lower pay and status awarded to Criminal Court professionals creates the impression that the work of the criminal courts is unimportant and inferior. Thus many Criminal Court judges seek promotion to Supreme Court as
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41 quickly as possible to achieve improved working conditions, status and perquisites. This attitude is reflected in District Attorney and public defender offices, where new lawyers "cut their teeth" on misdemeanor cases in preparation for the glory of prosecuting and defending felonies. Even the police departments relegate criminal court matters to the back burner. Prosecutors have trouble obtaining police offices as witnesses in misdemeanors. The overall effect is to "de-professionalize" the criminal court. G. Standards, Evaluation and Monitoring Members of Group Five believe that standards could: 1) measure and improve the satisfaction of community members who use the court; 2) ensure efficient use of resources; 3) facilitate better communication among the various groups that interact in the criminal court; and 4) more efficiently use the Criminal Court buildings. Participants: Working Group #1: Arraignment Norms, Practices and Culture Facilitator: Michael Pinard, Assistant Professor of Law, University of Maryland Law School Participants: Michael Bachrach, Esq., Richard, Ware & Levitt; Llinet Beltre, Staff Attorney, Legal Aid Society, Criminal Defense Division, Bronx Hon. John Carter, Judge, Criminal Court, Kings County; Catherine Christian, Director of Legal Training, Office of the Special Narcotics Prosecutor, New York County Michael Coleman, Co-Director, New York County Defender Services Rick Costello, Deputy Chief, Trial Division, The Office of the District Attorney, New York County; Rachel Ferrari, Assistant District Attorney, The Office of the District Attorney, New York County; Peter Kiers, Director, Criminal Justice Agency; Hon. Patricia Henry, Judge, Criminal Court, Kings County; Thomas Litsky, Assistant Solicitor General, Office of the New York State Attorney General; Brian Meagher, Assistant District Attorney, Kings County; Vincent Modica, First Deputy Chief Clerk, Criminal Court, New York County; Diedre Moore, Staff Attorney, Legal Aid Society, Criminal Defense Division, Bronx;
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42 Martha Rayner, Associate Clinical Professor of Law, Fordham Law School; Wayne Saitta, Judge, Criminal Court, Kings County; Susan Tipograph, Law Office of Susan Tipograph; Andrea Umlas, Assistant District Attorney, Office of the District Attorney, Kings County. Reporter: Pat Almonrode, Student, Fordham University School of Law Working Group #2: Resolution of Misdemeanor Cases: Non-Jail Sanctions, Collateral Consequences and Specialized Courts Facilitator: Steve Zeidman, Associate Professor, City University School of Law Participants: Elizabeth Bliss, Bronx Borough Manager, Domestic Violence Police Program, Safe Horizon Toni Bullock Tim Casey, Associate in Law, Columbia University School of Law; Joseph DiFlumeri, Staff Attorney, Legal Aid Society, Criminal Defense Division, Queens; Rhonda Ferdinand, Deputy Chief Assistant District Attorney, Office of the Special Narcotics Prosecutor, New York County; Andrew Hassel, Assistant Deputy Chief Clerk, Kings County; Hon. Diane Kiesel, Judge, Criminal Court, Bronx County; Jerry Lettieri, Assistant District Attorney, Queens County District Attorney's Office; Adam Mansky, Director of Operations, Center for Court Innovation; Carol Morrison, Safe Horizon; Tim Mulligan, Court Operations, CASES; Julie Ryan Hon. Laura Safer-Espinoza, Judge, Criminal Court, Bronx County; Lisa Schreibersdorf, Executive Director, Brooklyn Defender Service; Robin Steinberg, Executive Director, Bronx Defenders. Reporter: Rebecca Cross, Student, Fordham Law School Working Group #3: The Impact of Criminal Court on the Marginalized Persons Who "Use" the System Facilitator: Hon. Cheryl Chambers, Justice of Supreme Court, Kings County Participants: John Brancato, Deputy Bureau Chief, New York County District Attorney's Office; Nahama Broner, PhD, Senior Research Psychologist, Research Triangle Institute International; Daniel Conviser, New York State Assembly, Program Counsel;
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43 Michael Fahey, Esq., Chair, Minorities in the Law Committee, NYCLA; Ronald L. Garnett, Esq., Member, Criminal Justice Section, NYCLA; Maxwell Gould, Staff Attorney, Legal Aid Society, Criminal Defense Division, New York County; K. Babe Howell, Acting Assistant Professor of Law, New York University Law School; Jerome McElroy, Executive Director, Criminal Justice Agency; Leonard Noisette, Executive Director, Neighborhood Defender Service of Harlem; Laura Johnson, Attorney-In-Charge, Criminal Appeals Bureau, Legal Aid Society; Peggy Rodriguez, Supervisor for Witness Aid, Office of the District Attorney, New York County; Jeannette Rucker, Deputy Bureau Chief, Office of the District Attorney, Bronx County; Brian Rudner, Assistant District Attorney, Office of the District Attorney, Bronx County; Irwin Shaw, Attorney-In-Charge, Legal Aid Society, Criminal Defense Division, Manhattan; Hon. Ruth Smith, Judge, Criminal Court, Queens County; Kyeomg-sik Somg, Court Interpreter; Serena Springle, Chief Clerk, Criminal Court, Queens County; Peter Troxler, Assistant District Attorney, Office of the District Attorney, Bronx County; Darrin Wizenberg, Attorney, Legal Aid Society, Criminal Defense Division, Bronx; Reporter: Alison Shilling, Student, Fordham University School of Law Working Group #4: Post-Arraignment Adjudication Facilitator: Ian Weinstein, Professor of Law, Fordham University School of Law Participants: Michael Aronowski, Esq., Battiste, Aronowsky and Suchow; Stanford Bandelli, Esq.; Eric Black, Senior Court Clerk, New York County Criminal Court; Breon Peace, Associate, Cleary, Gottlieb, Steen and Hamilton; Robert Mandelbaum, Law Clerk, Chambers of Hon. Judith S. Kaye; Anne Guttman, Executive Assistant District Attorney, Kings County District Attorney's Office; Larry Fleisher, Esq.; William Knisley, Esq.; Member, Criminal Justice Section, NYCLA;
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44 Janette Jurado, Staff Attorney, Legal Aid Society, Criminal Defense Division, New York County; Scott Leet, Assistant District Attorney, New York County District Attorney's Office; Shari Michels, Assistant District Attorney, New York County District Attorney's Office; Vanessa Merton, Associate Dean for Clinical Education, Pace University School of Law; Jenny Roberts, Acting Assistant Professor of Law, New York University School of Law; Hon. Larry Stephen, Judge, Criminal Court, Bronx County; Hon. Deborah Stevens-Modica, Judge, Criminal Court, Queens County; Richard White, Deputy Commissioner, Department of Probation. Reporter: Gabrielle Ruda, Student, Fordham University School of Law Working Group #5: Standards Evaluation, and Monitoring Facilitator: Meryl Schwartz, Special Counsel, Vera Institute of Justice Participants: Paul Battiste, Esq., Battiste, Aronowsky and Suchow; David Straconi (title/affiliation?) Adele Bernhard, Professor of Law, Pace University School of Law Frank Bress, Professor of Law, New York Law School Miya Bryant (title/affiliation?) Lori Cohen, Esq., Cohen and Funk Robert Crotty, Esq., Kelley Brye and Warren; Mary Farrington, Supervising Appellate Counsel, New York County District Attorney's Office Danielle Follet, Attorney, Legal Aid Society, Criminal Defense Division, Bronx County Andrew Hassell, Assistant Deputy Chief Clerk, Criminal Court, Kings County; Robert Hanophy, Deputy Bureau Chief, Queens County District Attorney's Office; Barry Kamins, Esq., Flamhaft, Levy, Kamins, Hirsch and Rendeiro, LLP Tom Klein, Attorney, Legal Aid Society, Criminal Defense Division, New York County Kevin Pogue, Director of Training, New York County District Attorney's Office Vinnie Revellese, Law Clerk, Chambers of Hon. William C. Donnino Reporter: Dana Irvis, Student, Fordham University School of Law
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45
II. WORKING GROUP REPORTS REPORT Arraignment Norms, Practices, and Culture Working Group One CHARGE: This working group was charged with making recommendations to improve misdemeanor arraignment practice. For many defendants charged with misdemeanors, arraignments will be the first and last court appearance; the vast majority of cases will be resolved at this stage. Yet, the outcome of this rapid first court appearance can have significant and lasting consequences for defendants as well as victims and complainants. And for those cases that are not resolved, judges' bail decisions can have equally significant consequences. The planning group recognized that this stage in the adjudication of misdemeanor cases in New York City's Criminal Courts is critical. Significant increases in the number of misdemeanor cases and changes in the kinds of cases arraigned over the last decade prompted the planning committee to identify important issues. Case volume increased considerably over the last decade. (52) Most of that increase is accounted for by a steep rise in misdemeanor arrests. (53) Felony cases now make up less than twenty percent of the caseload flowing into arraignments, while they accounted for half in 1989. (54) These changes have required all components of the court system to devote considerable attention to decreasing and monitoring the time from arrest to when the defendant comes before the court for arraignment, which has resulted in a generally efficient and timely arrest to arraignment system. (55) In addition, more cases are being resolved in arraignments, (56) and the number of routine, low-level offenses such as subway fare evasion, trespass and possession of marijuana has increased. (57) The result is greater volume of misdemeanor arraignments, highly increased repetition in the kinds of misdemeanors being arraigned, and rapid case processing. These significant changes prompted the planning committee to identify important concerns. How does high volume, repetition of case type and speedy processing impact on professionalism and justice? Does it pressure Criminal Court professionals to approach arraignment practice formulaically, resulting in decreased individualized justice? Is there sufficient information concerning the facts of the charges, the defendants, and the victims to mete out
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46 individualized justice--to make fair and just bail and dispositional decisions? Can truth, guilt, or non-guilt be considered at arraignments when everyone has limited information? Should there be such a high rate of dispositions at arraignments when there is limited information about the accusations and the defendants? Are prosecutors, defense attorneys, and judges meeting their ethical obligations in arraignments? Are the resources available at the arraignment stage conducive or detrimental to quality practice? REPORT: This working group agreed that arraignment practice is very difficult for all involved. High volume, inadequate facilities, and minimal information about individual cases and defendants create unprofessional working conditions that challenge professionals to mete out some semblance of justice. Volume was cited as a primary problem in arraignment practice, and the group was concerned that volume led to a lack of information about individual cases and the premature disposition of cases in some instances. It was noted by the group that the court, prosecutors, and public defenders have no control over intake because arrest volume is determined by policing policies. The group spent time considering alternatives to processing arrestees through the Criminal Courts, such as increased reliance on Desk Appearance Tickets (58) or "outsourcing" certain categories of cases to community or more locally based courts. The group did not reach consensus on these issues, however. There was agreement that prosecutors, defense attorneys, and judges would benefit from having more information about the charges and defendants at arraignments. The group acknowledged that the criminal courts are recipients of summary arrests in which investigation, if it happens at all, will occur much later than the arraignment stage. However, the group recognized the difficulty of gathering more information without increasing the arrest to arraignment time. As a result, there is a strong tension between efficiency and sound decision making. There was agreement that some case types, such as domestic violence offenses, required all involved to have more information at the first court appearance. Without reaching any conclusions, the group discussed the possibility of having domestic violence specialists in arraignment parts. There was strong disagreement as to whether any case and what case type could ever be resolved at arraignments based on the limited information that is currently available to the defense, prosecution, and judges.
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47 The group discussed but came to no consensus regarding the amount of information necessary to dispense justice in criminal court arraignments. Defense attorneys suggested, however, that providing an opportunity to interview clients earlier than immediately before arraignment, as is the current practice, would give defense attorneys time to investigate and pursue other sources of information, and thus allow for more informed counseling and the possibility of bringing more knowledge to the arraignment appearance. The lack of information available at the arraignment appearance includes a dearth of awareness about the various collateral consequences that can attach to misdemeanor convictions. Some in the group noted that, given the swiftness of the arraignment process, the system does not focus on alerting defendants to the various collateral consequences--most notably potential deportation consequences--that can attach to guilty pleas. The group easily agreed that the physical conditions of the criminal courtrooms in New York City are woefully inadequate. Lack of cleanliness and the presence of vermin were noted. In addition, everyone agreed that the attorney-client interview spaces provided in the arraignment parts of the Criminal Courts are deplorable. Again, the lack of cleanliness and vermin were mentioned as serious problems, as well as a lack of privacy, adequate lighting and sufficient interview spaces. Defense attorneys noted that they designated their worst suits for arraignments since the conditions are so foul. The group was concerned about the practice of assigning Civil Court judges to arraignments during certain shifts. There was strong consensus that reliance on Civil Court judges to preside at arraignments is problematic and impractical. Lack of experience and knowledge of the Penal Law and Criminal Procedure Law by Civil Court judges resulted in inappropriate decision making and the inefficient use of court time. The group recommended that if reliance on Civil Court judges must continue, there should be increased training. Concern was expressed by some members of the group about the lack of decision-making discretion exercised by Assistant District Attorneys assigned to arraignment parts, who are usually new lawyers and inexperienced prosecutors. The group discussed a proposal to regularly include senior Assistant District Attorneys to work arraignment shifts. Inclusion of senior prosecutors in arraignments would lead to a greater use of discretion on the part of the prosecutor and more individualized bail and dispositional results.
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48 The group noted the inequitable effect of bail on those who simply cannot afford bail. There was concern that defendants unable to post bail usually pleaded guilty rather than pursue litigation because this option resulted in less time in jail. The group, however, recognized this issue was not easily resolved. The group recommended that the future task force explore the feasibility of the increased use of non-traditional, though statutorily based, bail options, such as secured and unsecured bonds. (59) In addition, the group discussed investigating bail diversion programs and supervised release programs that operate in other states. There was a consensus that judges' bail decisions in misdemeanor cases are widely disparate. Everyone was concerned about this reality, but the group did not reach consensus on a solution; while consistency was appealing, there was resistance to reforms that would require uniformity and thus reduce judicial discretion. There was agreement that many of the issues discussed during this day long conference required further study and thought. Members of the group noted that there is fragmentation in the arrest to arraignment process and many of the institutional stakeholders are unaware of the restrictions and burdens each faces in fulfilling their obligations to the system as well as the individual interests they represent such as defendants, victims and the public in general. Some members of the group noted that in the past there had been on-going meetings among the institutional stakeholders for the purpose of reducing the arrest to arraignment time, and progress was achieved. The group endorsed the idea of resuming these sorts of meetings to take up the many issues being discussed by this group, since like arrest to arraignment time, they require thoughtful consideration by all involved in the arraignment process. REPORT Resolution of Misdemeanor Cases: Non-Jail Sanctions, Collateral Consequences, and Specialized Courts Working Group Two CHARGE: 1. Non-Jail Sanctions and Collateral Consequences Most professionals practicing in New York City's Criminal Courts are expert and facile in the law and actual outcome of misdemeanor jail sentences. As to non-jail sentences and the collateral sanctions resulting from contact with the criminal justice system, however, there is less awareness and expertise. The majority of misdemeanor
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49 case dispositions will not result in additional jail beyond the approximately twenty-four hours of detention between arrest and arraignment, and many misdemeanor cases will result in a noncriminal disposition. (60) Defenders, prosecutors, judges, policy makers, and administrators, however, are not adequately considering significant consequences for many defendants. In addition, with the increase in misdemeanor arrests over the last decade, the number of people with misdemeanor criminal convictions has increased, and the conviction rate for those without criminal records has increased fifty percent, from 23,445 in 1989 to 36,262 in 1998. (61) This working group was asked to consider the following issues: What are the consequences of criminal and non-criminal convictions in Criminal Court--from collateral civil actions to the retention of information on certain government databases? Does the Criminal Court system of adjudicating misdemeanors, as we now know it, adequately take into account collateral consequences? Who has the responsibility for assuring that collateral consequences are adequately considered when prosecutors, defense attorneys, and judges determine justice in individual case dispositions? Are defense attorneys, judges, and prosecutors sufficiently aware of the burden, effectiveness, and value of probation, community service, and other alternatives to incarceration? 2. Specialized Courts Through specialized domestic violence, mental health and drug treatment parts, Criminal Court has sought to address persistent social problems that result in involvement in the criminal justice system. Though the planning committee recognized that problem solving and specialized courts are complex and multi-dimensional topics that have attracted attention and debate on a national scale, the planners determined that the growing number of New York City Criminal Court parts devoted to specialized practices required this working conference to give the topic attention. Originally, most specialized courts in New York City were in Supreme Court, targeting felony cases. Now, many misdemeanor specialized courts are in operation or planned. (62) These courts offer treatment and intensive supervision during the pendency of the case or as a condition of disposition. The path of cases in specialized
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50 misdemeanor parts are strikingly different than those adjudicated in traditional parts: they last longer, require more frequent appearances, involve different and more stringent bail conditions, and call for rigorous scrutiny of the daily lives of defendants by the court and court personnel. In return, they offer defendants a chance at rehabilitation and an end to revolving door incarcerations. This group considered the effects of specialized misdemeanor courts: Effect on defendants. Are defendants who enter these courts, especially domestic violence parts, presumed to be guilty? Does the specialized treatment itself effectuate a significant punishment? Is the "success rate" of treatment courts properly measured and publicized? Are defendants afforded sufficient due process during the plea, treatment, and monitoring stages? Effect on counsel. What is the role of defense counsel and prosecutors? Is it ethical for defense counsel to not appear during the monitoring phases? Effect on the criminal justice system Do treatment courts drain funds from other courts? Is there an adequate pool of interested and competent judges to preside over the expanding use of treatment courts? Should all court parts include rehabilitation in their approach to misdemeanor sentencing? Effect on complainants and the public in general REPORT: The variety and enforcement of collateral consequences based on arrests (63) and convictions, appear to be increasing. The group identified collateral consequences ranging from civil matters such as deportation, eviction from public housing, disqualification from student loans and welfare benefits, to loss of licensing privileges (as needed to be a taxi driver (64) or security guard (65)), as well as negative impacts on employment status due to excessive absences for court appearances. In addition, the group also included more traditional, but less recognized, collateral consequences of convictions such as mandatory surcharges, payment obligations attached to alternatives to incarceration (66) and sex offender registration. (67) The group agreed that there is tremendous variation in the level of awareness and knowledge by professionals involved in the criminal justice system regarding the variety and actual impact of collateral consequences. The group expressed concern about whether and to what extent defendants are being advised of collateral consequences.
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51 The group noted that collateral consequences can be especially problematic in a system of adjudication that resolves the vast majority of misdemeanor cases early, rapidly, and with a minimum of information. Also noted was that, though many cases are resolved at the arraignment stage, defense counsel has very limited time during arraignments to counsel clients about collateral consequences. Civil collateral consequences can work to undo or undermine rehabilitation goals of a criminal case disposition. In addition, the group recognized that the consequences resulting from misdemeanor arrests and convictions are sometimes never intended nor even contemplated by any of the players involved in resolving the case. Thus the group explored the idea of ceding more control over civil consequences with the Criminal Courts. Could Criminal Court judges be given power to remove the risk of certain collateral consequences? The group did not reach consensus on the issue of from whom and how information about collateral consequences should be conveyed to defendants. Judges and prosecutors encouraged defense counsel to take responsibility for educating defendants about collateral consequences because defense counsel is in the best position to access the potential for consequences. For example, defense counsel is best situated to learn of a defendant's immigration status or future goals that could be impacted by ultimate disposition in a criminal case. The group strongly recommended that all professionals in the criminal justice system become better educated in the variety and actual risks of collateral consequences. The group recognized that public defenders, prosecutors and judges could obtain training through their respective institutions, but noted that attention should be paid to providing training to members of the 18-b panel (68) on the topic. The working group also strongly recommended that empirical research be conducted to determine the actual impact of collateral consequences on misdemeanor defendants. It is difficult to access civil collateral consequences because many civil matters take place months or even years in the future and the risk of actual harm is difficult to access. While anecdotal information is enlightening, all agreed that it would be tremendously helpful to obtain concrete and solid information to assist professionals in predicting the future risk of a collateral consequence.
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52 The group noted the hidden problems associated with the imposition of mandatory surcharges upon defendants convicted of noncriminal and criminal offenses. (69) Since judges can no longer waive the surcharge (70) and many indigent defendants cannot pay the surcharge, defense counsel routinely request that judges enter a civil judgment in lieu of actual payment, and judges routinely do so. (71) The impact of such a civil lien on a person's credit report is unknown. Will such people ever be able to obtain loans? Will increased interest rates be imposed? Again, the group expressed the need for concrete answers as to how this actually affects defendants. For defendants who are required to pay the surcharge and are delinquent in doing so, the group expressed concern about the cost of sending warrant squads to arrest defendants for delinquent payments and the wildly disparate treatment accorded to those returned on such warrants. (72) By engaging in political lobbying, this working group recommended that the criminal justice community become involved before additional civil collateral consequences are legislated and consider becoming involved in advocating for changes in those consequences that are already a matter of law. The group challenged a future task force to explore whether Criminal Court prosecutors, defense attorneys and judges might in fact have areas of agreement allowing the criminal justice community to join forces in lobbying efforts. A. Specialized Courts In general, there was vigorous debate about the specialized misdemeanor parts in New York City's Criminal Courts. The group acknowledged that there is much to be valued in problem solving courts; however, defense attorneys expressed concern with the decrease in hearings and trials that challenge police practices and the merits of the prosecution's case. The group also discussed the parallels between specialized courts and quality of life policing. A consequence of quality of life policing is increased citizen police contact. Specialized courts are similar in that there is a closer connection between courts and defendants, i.e. more court appearances, closer court supervision, and increased obligations on the part of defendants The group recognized the Criminal Courts' specialty parts are separate and distinct from borough to borough and even within boroughs. It is important that monitoring and evaluation of the specialized courts and the related therapeutic programs provide solid information to evaluate the goals and effectiveness of these courts.
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53 REPORT The Impact of Criminal Court on the Marginalized Persons Who "Use" the System Working Group Three CHARGE: The vast majority of the people who "use" New York City's Criminal Courts--from defendants, to witnesses, complainants, and family members--are marginalized people in our society, including racial minorities, immigrants and the economically underprivileged. The connection between race and criminal justice in our nation has been much documented and the connection between race and New York City's Criminal Courts is particularly strong. In 1998, those who were arrested for non-felonies were overwhelming African-American and Latino men. (73) The planning committee recognized that the socio-economic identity of non-felony arrestees in New York City, and therefore the identity of those brought into the Criminal Court system, is largely determined by policing initiatives, patterns, and policies--topics beyond the purview of the conference. The perception that racism and indifference plays a role in creating a Criminal Court system that is "used" almost exclusively by those at the edges of our society, however, could not be ignored by the conference planners. This working group was charged with examining the impact that this reality has on the level of professionalism and quality of work performed in the Criminal Courts. The conference planners asked this working group to consider the following: Does the strong connection between race and non-felony arrests undermine the legitimacy of the criminal justice system in New York City and if so, how has this affected the level of professionalism and quality of work in Criminal Court? Do the culture and norms of arraignment and Criminal Court practice perpetuate the perception of racism and indifference in the criminal justice system? Does Criminal Court exacerbate or perpetuate the marginalization and criminalization of large numbers of men of racial minorities?
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54 How do the practices and culture of Criminal Court deal with cultural, sexual, and racial differences? More specifically, how do we as professionals treat, for example, immigrants, the mentally ill, and those of alternative sexual orientations? How are misdemeanor crimes that are so routinely processed in Criminal Court connected to poverty? How sensitive are we to cultural, sexual, and racial differences? Is there a need to increase diversity among the professionals who work in Criminal Court? If so, how could this be achieved? Do we have sufficient numbers and quality of interpreters in the Criminal Courts? What is the impact on a user of the system who does not speak English? Should professionals working in Criminal Court respond to the perception of racism; if so, how? How can individual instances of racism, sexism or indifference occurring in Criminal Court be reported, considered and addressed? What training do Criminal Court professionals, from court personnel to judges, prosecutors, and defense attorneys, receive in connection with issues of race, class, and gender? Is there a need for training? REPORT: This working group agreed that, though they were not there to discuss New York City's policing policies, they could not wholly ignore the issue since the "users" of Criminal Court are largely determined by non-felony arrest policing policies. The group recommended that the future task force consider addressing the issue of New York City's policing policies and how they impact on the City's Criminal Courts. The group agreed that the "dehumanizing" aspects of the Criminal Court system certainly perpetuate the perception that the criminal justice system is one of racism and indifference. The group recommended paying close attention to these dehumanizing parts of the system. In general, there was agreement that improvement in the overall functioning of the system would go a long way in creating a system better poised to deliver justice. Overwhelming volume was identified as one of the dehumanizing characteristics of the City's Criminal Courts. The
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55 group noted that the sheer number of cases required professionals to value speed and efficiency over individualized justice. The "conveyer belt," "factory-like" operation of the courts means "no one looks up to see the person who is standing there." The group expressed concern that the emphasis on speed can result in the rapid resolution of cases without judges, prosecutors and defense lawyers having enough information. The group noted that with the rise in collateral consequences, the need for careful deliberation and individualized attention is even more necessary. In addition, the group noted that the problems associated with lack of information are exacerbated for defendants who are mentally ill and immigrants who have little familiarity with United States' system of criminal justice. The group discussed allowing earlier and increased discovery in non-felony cases to enhance well-informed decision making, but no consensus was reached. The group agreed that a future task force should explore the issue further. To ameliorate the routine processing of cases and to enhance individualized treatment of non-felony cases, the group recommended that case volume be reduced. The group suggested several ways to reduce volume, such as encouraging prosecutors to decline prosecution in more cases at the early case assessment stage, before charges are filed, and increasing the use of Desk Appearance Tickets, (74) at least in approved categories of non-felony offenses that would be amendable to an Appearance Ticket alternative. Another troubling feature of the Criminal Courts, identified by this group, was the burden on defendants to make numerous mandatory court appearances to resolve cases. Some group members urged system to recognize this burden on defendants and their families. The group noted that the duty of many court appearances results in pressure on defendants to plead guilty to end the court appearances. Some group members recommended that a future task force consider the feasibility of spacing out court appearances over the course of each day rather than requiring all defendants to appear in court at the same time, as is the current practice. The group discussed but did not agree on a greater use of judicial discretion in excusing defendants from calendar calls at which it is clear there would be no resolution of the case. Disrespect and unprofessional treatment by court personnel and lawyers toward defendants and their families was identified as another dehumanizing aspect of Criminal Court. To address this problem the group recommended training for lawyers and court personnel. The group also recommended clearly posting information about how to make
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56 complaints that invited comments about treatment by court personnel. The conditions of confinement and attorney-client interview space for incarcerated defendants were deemed to be yet another dehumanizing aspect of New York City's Criminal Courts. Once again, the group concluded that this communicated disrespect and disregard for the people who must use the facilities. The group agreed that the prevalence of unsanitary courtrooms communicated the same message. As one group member stated: "How can the court be respected if it is not a respectful place for those who use it?" The group agreed that another way to improve the overall atmosphere and functioning of Criminal Court was to increase "users" access to information about the system and how it functions. The Group recommended increased use of technology to provide information to "users" of the system. This working group suggested a future task force explore the current use of bail in misdemeanor cases and how it impacts on economically underprivileged defendants. REPORT Post-Arraignment Adjudication Working Group Four CHARGE: In New York City, misdemeanor cases that are not resolved at arraignment, the first court appearance, are adjourned to later dates and other courtrooms for a variety of purposes: possible disposition, motion practice, obtaining a sufficient accusatory instrument, (75) and even, at times, trial. Many Criminal Court professionals find, however, that these adjournments are in practice the beginning of a post-arraignment process that is a game of endurance--which side can endure the numerous and mostly pointless court appearances-and thus a trivialization of the process. The conference planners posed a number of questions for the working group to consider. Has the endurance game so infected the post-arraignment process that the resolution of cases on individual merits is the exception rather than the rule? Do the numerous court appearances necessary to resolve a misdemeanor case post-arraignment essentially constitute a defendant's punishment? Is the post-arraignment adjudication system meeting the needs of law enforcement, the public and the constitutional guarantees of defendants? How can professionals, invested in the
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57 system, enhance the quality of justice meted out in the postarraignment adjudication of misdemeanors? The conference planners asked this working group to address a host of issues under the broader topics of Facilities and Resources, Ethics, and Volume: A. Facilities and Resources Are there enough courtrooms, judges and attorneys to handle the volume of misdemeanor cases? Is the use of Judicial Hearing Officers an effective use of resources? Is there an inferior status to all professionals working in the Criminal Courts from interpreters to judges? Is the adjudication of misdemeanors less important than the adjudication of felonies? Should the need for "Acting Supreme Court Judges" be reevaluated if justice is truly delayed by volume in Criminal Courts? (76) Are police officers following through on the prosecution of the "quality of life" arrests by responding to prosecutors' requests to appear in court? B. Ethics Is it appropriate to use Criminal Court as a training ground for new attorneys? What impact does the perceived use of less experienced attorneys have on the perception of justice by defendants, juries and complainants? Are prosecutors and defense attorneys carrying inappropriate caseloads? Is this monitored? Should it be, and how? Are misdemeanor cases being investigated and prepared for trial by prosecutors and defense attorneys?
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58 C. Case Volume Has volume eradicated the opportunity for a timely jury trial? Is the routine reduction of charges to B misdemeanors an appropriate tool to facilitate trials? What is the goal of this practice and is it working? (77) Should greater attention be given to persistent misdemeanor offenders? (78) REPORT: The working group identified several core problems: inadequate space and poor physical conditions of the Criminal Courts; disparity between Supreme Court and Criminal Court in the status of personnel, space and resources; and the multiple court appearances in which little substantive legal work is accomplished leading to a trivialization of the post arraignment adjudicative process. Inadequate conditions include a lack of case conferencing space both for prosecutors and defense attorneys as well as defendants and defense counsel to consult. It was noted that Criminal Court judges do not have their own chambers in some boroughs. There was agreement that there is an overall lack of cleanliness and neglect of maintenance in Criminal Court. Finally, the group agreed that more courtrooms should be devoted to the hearing of misdemeanor cases. An insufficient number of courtrooms were one outcome of what the group characterized as the subordination of criminal court facility management to supreme court facility management. It was noted that in Queens, for example, the Supreme Court takes up six floors of the courthouse, while the Criminal Court is relegated to two floors. Other group members asserted that the boroughs in which they work face similar inequities. The group recognized that Criminal Court is not just "lower" to Supreme Court jurisdictionally, but in many other aspects as well. The group was concerned that the lower pay and status that is awarded to Criminal Court professionals creates the impression that the work of the criminal courts is unimportant and inferior. The group noted that many Criminal Court judges see their work as inferior to Supreme Court judges, and their main goal is to be
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59 "promoted" to Supreme Court and thus move up within the hierarchy of the court system. This career path is similar within District Attorney Offices and public defender offices, where new lawyers are required to "cut their teeth" on misdemeanor cases in preparation for the "big time" of prosecuting and defending felony matters. In addition, it was noted that this attitude is prevalent even in the Police Department as demonstrated by the difficulty faced by prosecutors in obtaining the court appearances of police offices in misdemeanor matters. The overall effect is one in which those who work and practice in Criminal Court are not perceived or even expected to be full professionals and thus many do not behave as such. The large, daily dockets in most Criminal Court courtrooms prevent meaningful progress on individual cases. This leads to multiple, often unnecessary, adjournments forcing defendants and their lawyers to make time-consuming appearances in court. Though the burden of multiple appearances may be less on prosecutors, it still takes a toll since several prosecutors must staff the many criminal court parts for long parts of the day creating numerous "institutional" burdens on prosecutors' time. (79) The same is true for judges. Handling large dockets takes time away from focused and thoughtful attention to deciding substantive legal issues. The burden of court appearances contributes to the fact that investigations into the merits of cases are the exception rather than the rule for both the defense and prosecution. The working group noted that this practice continues while the volume of cases on the docket in Criminal Court far outnumbers the volume of cases in Supreme Court. This working group cited four goals that informed their recommendations: create more opportunities for trials, increase the likelihood that cases will be resolved on the merits rather than through the endurance game, decrease the time period it presently takes to resolve cases post-arraignments, and in general increase the perception and reality of justice in Criminal Court. This working group sought out solutions to these central problems with the above goals in mind by dividing their discussion into two categories: resources and docket control. A. Resources The working group suggested moving some misdemeanor cases to Supreme Court to ease the volume in Criminal Court. Group members queried whether this would require the "unification" of Criminal and Supreme Court and the feasibility of such a plan. (80) In the alternative, the group recommended a reallocation of court
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60 facility resources between Criminal and Supreme Court on the basis of need driven by case loads rather than status. This reallocation should lead to space for conference rooms, Criminal Court judges' chambers and, perhaps, child care areas. The group recommended equalizing the salary scale between personnel working in Criminal and Supreme Court, including judges and other employees such as court officers and stenographers. This would allow increased interchangeability between court employees working in both court systems. This may allay some of the emphasis on the unspoken hierarchy that exists, and allow for increased respect between and among personnel of both courts. The practice of assigning Civil Court judges to arraignment parts was cited as a concern due to the judges' lack of experience in criminal law and procedure. The group suggested supplemental training for Civil Court judges if this practice continues. The group strongly recommended improved cleaning and maintenance of Criminal Court. B. Docket Control Several solutions were offered by group members to combat the problem of caseload volume and unnecessary court appearances. Offering the option of evening court appearances was one suggestion. This would help ease overcrowded calendars during the day and accommodate working defendants and defendants who are full time students. Another idea considered by the group was to excuse defendants from routine, non-substantive appearances. The group proposed limiting the number of cases on each Criminal Court Part calendar to decrease the time devoted to calling cases and to increase the time available to take action on each case thus promoting the accomplishment of meaningful work. To achieve this, the group suggested that court administrators explore the feasibility of establishing "monitors" to allow for off-calendar, administrative adjournments when it is clear no substantive progress will be made during a court appearance. Other ideas discussed, but not agreed upon by this working group, included setting a fixed number of court appearances that would force both parties to either achieve disposition or go to trial and exploring avenues to achieve more effective case screening within the District Attorneys offices. There was discussion about the need for increased judicial control of the post-arraignment process to alleviate unnecessary court appearances, the waiting time involved in calling a case in Criminal
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61 Court and overall delay. Without reaching any consensus, ideas proposed included limiting the number of appearances made by defendants and scheduling cases to be heard at specific times during the day rather than scheduling the entire calendar for 9:30 A.M., as is the present practice. There was lengthy discussion about the range of discovery policies utilized by prosecutors in each borough. The focus was on whether or not the provision of early, open file discovery could alleviate the need for some court appearances and contribute to earlier resolutions of cases based on the merits. Some prosecutor's offices provide early discovery, others do not. The group did not reach any consensus on this controversial topic; however, the group urged a future task force to continue exploring the topic and create an open dialogue regarding the problems and barriers to instituting early, open-file discovery in misdemeanors cases city-wide. REPORT Standards, Evaluation, and Monitoring Working Group Five CHARGE: Criminal court is a complex creature. Many organizations participate in the operation of the court and each works in connection with the others, sometimes in opposition and other times in support. The court's effective functioning depends on the collaboration of multiple groups, employed by different entities, each with its own separate goals. Any change implemented by one organization often impacts all the others. The planning committee was interested in learning whether standards are used by any of the organizations involved and how useful standards might be in an effort to improve the performance of the Criminal Courts. Businesses use standards as a yardstick against which to measure performance. The American Association of Law Schools, for example, accredits law schools by comparing the school being evaluated to a set of standards. In the wake of scandalous revelations about the incompetence of crime laboratories, (81) the relevant community is writing standards that will be used to fund and evaluate laboratories. With this in mind, the planning committee charged the working group with exploring standards, evaluation, and monitoring. This included considering what standards exist for defense attorneys, prosecutors, judges, and other professionals working in Criminal
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62 Court such as court officers, interpreters, and probation officers, both within each professional's own organization and within the profession as a whole. The group was also asked to consider how the different standards are used and to what effect. In addition, the group was asked to consider models of evaluation. Finally, the planning committee requested the group to consider how the entities that make up the Criminal Court system hear and take into account the opinions of the "users" of the systemBthe accused, victims, witnesses and their families. REPORT: In retrospect, the planning committee probably should have asked the working group to bifurcate its discussions: to begin by looking at how individual professions and organizations use standards and how each conducts internal monitoring and evaluation. Exploring how the Court, as an independent organism made up of separate and distinct parts, uses standards and whether it engages in monitoring and evaluating should have been tackled only after a review of the entities that make up the whole. That was not done and, as a result, the group struggled with its mission, lurching between a consideration of internal standards and a broader perspective. Few of the participants wanted to discuss their own organizations' internal procedures for monitoring and evaluating staff. The subject seemed private and off limits for a general public discussion, especially with traditional adversaries in the room. Yet, it became clear over the course of the day that there is no meaningful way to evaluate the operation of the Court separate and apart from an evaluation of each of the participant organizations. For example, when members of the group focused on the operation their own organization, representatives acknowledged the importance of internal standards. Everyone was comfortable with standards that would require training for new lawyers, new judges, and new judicial hearing officers, for example. When the group tried to address ideas relating to standards, monitoring, and evaluation that might improve the overall functioning of the court, however, each organization's sense of autonomy and resistance to collective decision-making derailed any progress. For example, it was thought that returning experienced lawyers to the arraignment and misdemeanor parts where currently only very new attorneys work might improve the functioning of the arraignment parts--ensuring sufficient attention to all accused individuals. This suggestion was resisted by prosecutors and
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63 defenders who maintained that their offices did not have sufficient resources to meet this goal. Members of the working group expressed their belief that standards could be useful in: 1) measuring and improving the satisfaction of community members who use the court; 2) ensuring efficient use of resources; 3) facilitating better communication among the various groups that interact in the criminal court; and 4) more efficiently using the Criminal Court buildings. Each category will be discussed in turn below. 1. User satisfaction. A majority of group members discussed their belief that user satisfaction standards should measure the satisfaction of all those who use the courthouses, including lawyers, court personnel and the parties. Members disagreed about how satisfaction would be measured. Several individuals suggested using surveys, while others suggested that lawyers question their clients directly about their satisfaction with the courthouse and the adjudication process. 2. Better communication among court players. There was a great deal of concern over how slowly cases are resolved in the Criminal Court. Members of the working group contemplated whether mandatory, thorough reviews of cases might weed out those that can be adjudicated quickly, and permit greater attention to those than can not be easily resolved. A thoughtful review would necessitate early open file discovery, and some mechanism to facilitate conversation between adversaries. 3. More efficient use of the Criminal Court buildings. Many group members expressed frustration over the lack of available trial parts in the Criminal Court. Members believed, however, that the difficulty results from a lack of funding rather than a lack of standards. A majority of members agreed that it is essential for the Criminal Court to have standards set in place--standards that can be created or improved upon through a consensus of court personnel, the attorneys, and the individual parties. Many members, however, expressed the belief that this undertaking is doomed to fail if the state is unwilling, or unable, to dedicate the appropriate resources to achieve, and maintain, these standards. 4. Better utilization of lawyers' and parties' time. A majority of group members expressed a need for better scheduling of cases,
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64 especially during calendar calls. Suggestions included implementation of a system of morning and afternoon calendar calls, which would assist lawyers and parties. Group members acknowledged that because of volume, this suggestion may not be feasible at the present time. Because no consensus developed on any particular issue, the working group was unable to formulate resolutions or recommendations, apart from the recommendation that a future task force agree to meet regularly to discuss issues raised during the day's conversation and that this group be comprised of people who have the power to effect change within their offices. It was also suggested, but not agreed, that in preparation for those follow-up meetings, representatives of the various organizations encourage their own offices to undergo self-reflection and return to the group having identified specific areas within their organization where improvement is necessary. Overall, the group had little faith in the helpfulness of standards. They agreed that standards exist, but felt that they do not address the realities of practice, and, furthermore, attorneys cannot meet whatever standards are relevant to their practice due to a lack of resources. Hence, group members asserted that changing practice standards is not going to alter the Criminal Court system. Members agreed that, yes, there are numerous problems within the Court system and that if these problems were fixed, then we--the collective "we"--could expect lawyers and court personnel to perform at a higher level. As the system is currently set up, however, performing at that "higher level" would, as one group member put it, "bring the Criminal Court system to its knees" in less than a week. Because individual players are unable to perform at this higher level, group members agreed that trying to institute a system to monitor and evaluate standards would be counter-productive. Martha Rayner Associate Clinical Professor, Fordham University School of Law. This report is based on the very hard work of the conference planning committee, facilitators, speakers, reporters, and participants. Thank you to Professor Bruce Green, Fordham University School of Law's Louis Stein Center on Law and Ethics, and the New York County Lawyers' Association's Justice Center and Criminal Justice Section. I am very grateful for the research assistance provided by Cassandra Abodeely, Diana Rubin, and Alison Shilling.
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65 Endnotes (1.) The event was co-sponsored by City University of New York School of Law, Columbia University School of Law, New York Law School, New York University School of Law, and Pace University School of Law. (2.) Judge Juanita Bing-Newton addressed the participants via video due to a conflict. See Judge Juanita Bing-Newton, Welcome Address at New York City's Criminal Courts: Are We Achieving Justice Conference (Oct. 18, 2003) (on file with the author and the New York County Lawyers Association ("NYCLA")). Welcome remarks were also provided by John Feerick, Chair, NYCLA Justice Center and Professor, Fordham University School of Law, and Susan J. Walsh, Co-Chair, NYCLA Criminal Justice Section. Video recordings of the proceedings are available from the author and the NYCLA. (3.) The Criminal Court oversees 325,000 docketed cases, 500,000 summons cases and has a backlog of approximately 100,000 cases. See id. (4.) Id. (5.) He was President-elect at the time. (6.) See Norman L. Reimer, Keynote Address at the New York City's Criminal Courts: Are We Achieving Justice Conference (Oct. 18, 2003) (copy of speech on file with the author); see also supra notes 2-3 and accompanying text (Bing-Newton indicating that Criminal Court handled more than 325,000 docketed cases and 500,000 summonses in 2002). (7.) See Reimer, supra note 6. (8.) Id. (9.) Id. The conference's afternoon speaker was Freda F. Solomon, Ph.D., author of The Impact of Quality of Life Policing: How the NYPD's New Policing Strategy of the 1990s affected Arrests, Defendant and the Criminal Courts, CJA RESEARCH BRIEF (N.Y. Crim. Just. Agency, Inc., New York, N.Y.), Aug. 2003 [hereinafter CJA RESEARCH BRIEF]. (10.) The Conference Planning Committee consisted of Adele Bernhard, Associate Professor, Pace University School of Law; Joel Copperman, Executive Director, CASES; Catherine Christian, Director, Legal Training, Special Narcotics Prosecutor, New York County; Mike Fahey, Esq., Chair, Minorities & the Law, NYCLA; Ronald Garnett, Esq., NYCLA, Criminal Justice Section; Florence Hutner, General Counsel, New York City Department of Corrections; Laura R. Johnson, Attorney-In-Charge, The Legal Aid Society, Criminal Appeals Bureau; Nathaniel Kiernan, Assistant District Attorney, Queens County; William Knisley, Esq., NYCLA, Criminal Justice Section; Michele Maxian, Director, Special Litigation, Criminal Defense Division, The Legal Aid Society; Shari Michels, Assistant District Attorney, New York County; Deidra R. Moore, Attorney, The Legal Aid Society, Criminal Defense Division, Bronx County; Tim Mulligan, Court Operations, CASES; Martha Rayner, Associate Clinical Professor, Fordham University School of Law; Susan J. Walsh, Co-Chair, Criminal Justice Section. (11.) N.Y. CRIM. PROC. LAW [section] 10.10(3) (McKinney 2003). (12.) Quintin Johnstone, New York State Courts: Their Structure, Administration and Reform Possibilities, 43 N.Y.L. SCH. L. REV. 915, 916 (2001). [t]here are eleven different types of trial courts in the New York State court system, some of general jurisdiction, some with jurisdiction of only a specialized field of law, some with broad but inferior jurisdiction.... Courts of inferior jurisdiction, those that may generally hear only what are considered less serious matters, are the ... New York City Criminal Court.... Id. (13.) Id.
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66 (14.) Pursuant to New York Criminal Procedure Law ("N.Y. CPL") [section] 10.30(2), the New York City Criminal Court may arraign all felony matters and retain jurisdiction until the matter is indicted and transferred to Supreme Court. See N.Y. GRIM. PROC. LAW [section] 10.30 (2). (15.) In New York State, "'Violation' means an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed. 'Misdemeanor' means an offense, other than a 'traffic infraction,' for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed." N.Y. PENAL LAW 10.00(3)-(4) (McKinney 2004). (16.) According to data provided by the Office of the Court Administration, on file with the author, there are nineteen Criminal Court Parts in Manhattan, seventeen in Bronx County, twenty-three in Kings County, thirteen in Queens, and one in Richmond County (Staten Island). (17.) This includes summons tickets issued by the police, the bulk of which are adjudicated in "Summons Appearance Parts." For 1998, New York City Criminal Courts had 309,261 summons cases filed with 273,009 dispositions; for 1999, 392,348 summons cases fixed with 324,591 dispositions; and for 2002, 505,331 summons cases filed with 339,792 dispositions. See N.Y. State Unified Ct. Sys., New York City Criminal Court Caseload Statistics 2002, at http://www.courts.state.ny.us/courts/nyc/criminal/caseloadstatistics.shtml (last visited May 17, 2004); OFF. OF CT. ADMIN., N.Y. STATE DIV. OF GRIM. JUST. SVCS., CASELOAD ACTIVITY REPORT FOR 1999, available at http://criminaljustice.state.ny.us/crimnet/ojsa/cja_99/oca.pdf (last visited May 17, 2004); OFF. OF CT. ADM1N., N.Y. STATE DIV. OF CRIM. JUST. Svcs., CASELOAD ACTIVITY REPORT FOR 1998, available at http://criminaljustice.state.ny.us/crimnet/ojsa/cja_98/oca.pdf (last visited May 17, 2004). Though commonly referred to as "summons cases," a summons may only be issued by a local criminal court, N.Y. CRIM. PROC. LAW [section] 130.10 (McKinney 2003), not the police, and thus despite its name, such tickets are in fact appearance tickets, N.Y. GRIM. PROC. LAW [section] 150.50 (McKinney 2003), and commonly referred to as Desk Appearance Tickets ("DATs"). An appearance ticket must be replaced by a local criminal court accusatory instrument, Id. [section] 150.50(1); simplified information is permitted only in cases charging traffic offenses, parks offenses or environmental conservation offenses. N.Y. CRIM. PROC. LAW [sub section] 100.10, 100.25 (McKinney 2003). (18.) According to data provided to the author by the New York State Office of Court Administration, a total of 144,124 misdemeanor cases were arraigned city-wide in 1992; the number increased sixty-four percent, to 236,916, in 2002. (19.) See Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, The Broken Windows Theory, and OrderMaintenance Policing New York Style, 97 MICH. L. REV. 291, 292 (1998); see also James Q. Wilson & George L. Kelling, Broken Windows, ATLANTIC MONTHLY, Feb. 1989 ("sometimes 'fixing broken windows' does more to reduce crime than conventional 'incident-oriented' policing."). (20.) Harcourt, supra note 19 at 292; Wilson & Kelling, supra note 19. (21.) Harcourt, supra note 19 at 298-99, 340 (describing that quality-of-life policing resulted in a fifty percent increase in misdemeanor arrests, from 133,446 in 1993 to 205, 277 in 1996, while the number of misdemeanor complaints remained relatively stable: 421,116 in 1993 as compared to 424,169 in 1996). (22.) As to whether quality-of-life policing was responsible for the decrease in the felony crime rate, see id. at 292 (scrutinizing and critiquing the widely accepted theory that the quality-of-life initiative was the cause of the precipitous drop in New York City's crime rate since 1993). Compare Dan Hurley, Scientist At Work--Felton Earls;
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67 On Crime As Science (A Neighbor At a Time), N.Y. TIMES, Jan. 6, 2004, [section] F, at 1 (quoting James Q. Wilson, one of the two original architects of the Broken Windows theory as saying "'I still to this day do not know if improving order will or will not reduce crime,' ... 'People have not understood that this was a speculation.'"), and Gordon Witkin, The Crime Bust, U.S. NEWS & WORLD REP., May 25, 1998, at 33 (finding that new police tactics were probably not "not the key factor nationwide" and that the settlement of crack turf battles probably played a much larger role in reducing urban crime), with Dan M. Kahan, Between Economics and Sociology: The New Path of Deterrence, 95 MICH. L. REV. 2477, 2488 (1997) (order maintenance policing "has been used with startling successful results in New York City"), and William J. Bratton, Editorial, New York's Police Should Not Retreat, N.Y. TIMES, Aug. 19, 1997, at A27 (Former N.Y. City police commissioner crediting quality of life initiatives for failing crime rates in New York City). (23.) According to the Office of the Court Administration, misdemeanors accounted for fifty-four percent of all cases arraigned in 1992 and rose to seventy-one percent in 2002. The Office of the Court Administration is on file with author. (24.) Adjudication of summons, as compared to online arrests, constituted approximately 61 percent of the criminal filings citywide (505,331 of a total 830,010 filings) and approximately 51.1 percent of the dispositions citywide (339,792 of a total 664,985 dispositions). See N.Y. State Unified Ct. Sys., supra note 17. (25.) ASS'N. OF THE BAR OF THE CITY OF N.Y., SAVING THE CRIMINAL COURTS: A REPORT ON THE CASELOAD CRISIS AND ABSENCE OF TRIAL CAPACITY IN THE CRIMINAL COURT OF THE CITY OF NEW YORK 2 (1983) [hereinafter SAVING THE CRIMINAL COURTS] (26.) Harry I. Subin, The New York City Criminal Court: The Case for Abolition, 12 N.Y.U. CTR. FOR RES. IN CRIME & JUST. 9 (1992) (citing the Office of Court Administration's Annual Report). (27.) Id. at 8. Subin saw the New York City Criminal Court as so overburdened with cases that the only solution was to abolish the Court: "Hopelessly awash in a sea of cases, the Court is unable to administer justice. Recognizing that, it has redefined its mission. The measurement of success is the disposition rate, how many cases can be moved in and out of the court, without regard to how they are moved." Id. Subin reported that approximately 213,000 cases were processed in the New York City Criminal Court in 1990 at an average of five minutes for each case. Both prosecutors and defense counsel have almost no time to investigate the facts of cases and instead end up relying upon the facts as set forth in the police reports. See id. at 6-7. "The perAssistant [District Attorney] investigative caseload is nearly 1,700 cases a year .... This comes to 7 cases a day, or little more than an hour or so that can be devoted to the investigation of any case." Id. at 1. The defense side is confronted with similar time constraints: The initial, and often only, interview of the defendant is conducted under great time pressure, and in conditions not conducive to learning the client's name, let alone whether he or she might have a defense. And with so many pending cases to deal with, and so little ability to predict which will survive long enough to require investigation, a minimal amount of out-of-court work is undertaken." Id. at 1, 6-8. (28.) Judith S. Kaye, The State of the Judiciary (Feb. 9, 2004), in JUDITH S. KAYE, THE STATE OF THE JUDICIARY 7 (2004), available at http://www.courts.state.ny.us/ctapps/SO J04.pdf (last visited May 17, 2004). In her remarks, Judge Kaye had this to say: Nowhere is the misdemeanor backlog more apparent than in New York
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68 City. In part because of the continuing emphasis on prosecuting quality-of-life offenses, thousands of defendants and crime victims face long delays in our criminal courts. Despite herculean efforts of our judges and staff, tens of thousands of misdemeanor cases remain pending for months, even years, while felony filings decline. Id. (29.) See McClesky v. Kemp, 481 U.S. 279, 311-12 (1987) (quoting 2 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE [section] 13.2(a) (1984)); United States v. Williams, 65 F.3d 301,310 (2d Cir. 1995) (noting that "district courts should not hesitate to use their discretion in devising sentences that provide individualized justice"); United States v. Willoughby, 27 F. 3d 263, 268 (7th Cir. 1994) ("This is the essence of our system of individualized justice."); Rachel E. Barkow, Recharging the Jury: the Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 127 (2003) (discussing the ramifications of mandatory sentencing as they relate to individualized justice); Debra Lyn Basssett, In the Wake of Schooner Peggy: Deconstructing Legislative Retroactivity Analysis, 69 U. CIN. L. REV. 453, 53031 (2001) ("Our government is built on a system of individualized justice"); see also PHILOSOPHY OF LAW 51 (Joel Feinberg & Jules Coleman eds., Wadsworth 7th ed. 2004) ("A principle of our liberal tradition justice, fairness and equality"). (30.) See Republican Party of Minn. v. Kelly, 63 F. Supp. 2d 967, 977 (D. Minn. 1999) ("The judicial system is based on the concept of individualized decisions on challenged conduct and interpretations of law enacted by the other branches of government." (citing Stretton v. Disciplinary Bd. of the Sup. Ct. of Pa., 944 F.2d 137, 142 (3d Cir. 1991))); see also Lockett v Ohio, 438 U.S. 586, 602-03 (1978) ("individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country."); William v. New York, 337 U.S. 241, 247 (1949) ("Highly relevant--if not essential--to [a judge's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics."); United States v. Flores, 336 F.3d 760, 76568 (8th Cir. 2003) (Bright, J., concurring) (critiquing failure of Federal Sentencing Guidelines to provide sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors); Leslie Eaton, Panel Urges Judge's Removal, N.Y. TIMES, Apr. 6, 2004, [section] B, at 8 ("The State Commission on Judicial Conduct has recommended that an upstate judge be removed from office, saying that he meted out what it called assembly-line justice."). (31.) McClesky v. Kemp, 481 U.S. 279, 311-12 (1987) (quoting 2 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE [section] 13.2 (a) (1984)). (32.) Peter Krug, Prosecutorial Discretion and Its Limits, 50 AM. J. OF COMP. L. 643, 645-46 (2002) (describing the concept of individualized justice as justification for courts and legislatures not interfering with prosecutorial discretion) (33.) See Suzanne E. Mounts, Public Defender Programs, Professional Responsibility, and Competent Representation, 1982 Wis. L. REV. 473,489-500 (1982) (describing the various theories of jurisprudence regarding defendant representation and detailing the necessary individualized treatment); see also Symposium, Impact of Problem Solving on the Lawyer's Role and Ethics, 29 FORDHAM URB. L.J. 1892, 1920 (2002) ]hereinafter Symposium, Impact of Problem Solving] (transcribing Susan Hendricks of The Legal Aid Society as saying: "Defense attorneys have an ethical duty to zealously advocate on behalf of individual clients, and this duty particularly requires them to defend their client's liberty interest, that is, their desire to remain in the community in lieu of a jail sanction."). See generally Richard Klein, Eleventh Commandment: Thou Shalt Not Be Compelled to Render The Ineffective Assistance of Counsel, 68 IND. L.J. 363 (1993) (examining potential remedies for counsel
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69 working within a system that fails to provide enough funding to ensure constitutionally mandated effective assistance of counsel); Richard Klein, The Emperor Gideon has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel, 13 HASTINGS CONST. L.Q. 625 (1986). (34.) See Ronald Wright & Marc Miller, The Screening/bargaining Tradeoff, 55 STAN. L. REV. 29, 34 (2002); Charles Levin, County OKs $1.25 billion budget with cuts for most; Sheriff and district attorney get increases; 267 jobs slashed, VENTURA COUNTY STAR, June 17, 2003 at A1 (country district attorney complaining that county budget cuts to his office would result in assembly-line justice that undermines public safety). But note that though typically pejorative, "assembly-line justice" is a system affirmatively, endorsed in a crime control model of criminal case processing. In his landmark book, Packer describes two models of the criminal process: the "Crime Control Model" and the "Due Process Model." See HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 153 (1968). The "Crime Central Model" assumes large caseloads and limited resources, is administrative and managerial in nature, and values efficiency (which requires informality and uniformity) and finality (which requires minimizing the occasions for litigation or challenge). See id. at 158-59. Whereas, Packer explains, "[i]f the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course." Id. at 163. The Due Process Model consists of many underlying pressures to get at reliable truths and the appropriate formal proceedings used to do that. See id. at 163-65. Moreover, Packer notes that this model's "values can be expressed in "the concept of primacy of the individual and the complementary concept of limitation on official power." Id. at 165. (35.) MALCOLM FEELEY, PROCESS Is THE PUNISHMENT: HANDLING CASES IN A LOWER CRIMINAL COURT 261 (1992). In his study of criminal courts, Feeley challenged the widely-held belief that the perfunctory processing of criminal cases is due to heavy caseloads. He compared a high volume urban court to a light caseload suburban court. Both courts processed their cases in a rapid and perfunctory manner, spending approximately the same amount of time per case. Id. (36.) See Feeley, supra note 35, at 277 (noting that the "cost of invoking one's rights is frequently greater than the loss of the rights themselves"). (37.) See Kirsten Howe, Note, Criminal Nonsupport and a Proposal for an Effective Felony-Misdemeanor Distinction, 37 HASTINGS L.J. 1075, 1091 (1986) (stating that "[m]isdemeanors are given low priority by overburdened law enforcement agencies. One investigator, commenting on the low priority given child support investigations by an understaffed district attorney's office, said, 'After all, it's only a misdemeanor. It's not in the same class with a burglary.'"). (38.) See CJA RESEARCH BRIEF, supra note 9, at 5. (reporting that in 1998, thirty percent of misdemeanor cases were disposed of by ACDs, compared to eleven percent in 1989). An adjournment in contemplation of dismissal is "an adjournment of the action [for six or twelve months] . . . with a view to ultimate dismissal ... in the furtherance of justice." N.Y. CRIM. PROC. LAW [section] 170.55 (Mckinney 2004). Note that many ACDs have an accompanying order of protection requiring the defendant to refrain from certain conduct for the duration of the adjournment. In addition, many ACDs require the performance of community service or completion of a rehabilitation program as a condition of the ultimate dismissal. (39.) Id. at 6 (reporting that fifty percent of convicted defendants received a jail sentence with a median length of seven days compared to fifty-eight percent in 1989 with median length of twenty days). (40.) For a discussion of how these problem-solving courts deliver the special attention some defendants require, see generally Jeffrey Fagan & Victoria Malkin, Theorizing
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70 Community Justice Through Community Courts', 30 FORDHAM URB. L.J. 897, 930 (describing Redhook Community Court in Brooklyn, N.Y. as "a more responsive Court built on individualized justice and provision of social services.); The Effectiveness of the Broward Mental Health Court." an Evaluation, POLICY BRIEF (Louis de la Parte Fla. Mental Health Inst., Tampa Fla.), Nov. 2002 (reporting that defendants appearing before Broward County, Florida's Mental Health Court are more likely than regular defendants to describe the court as fair and non-coercive and are more likely afterwards to obtain social services), available at http://www.fmhi.usf.edu/ institute/pubs/newsletters/policybriefs/issue016.pdf (last visited May 18, 2004). In addition, Judge Judy H. Klugers has noted that: There are over 500 drug courts nationwide, as well as domestic violence courts, mental health courts, community courts, parole reentry courts, all focused on doing more than just adjudicating the facts of the individual case, but rather trying to address the underlying problems that brought the defendant, this particular individual, before the court. Symposium, Impact of Problem Solving, supra note 33, at 1893. (41.) See Jeremy Travis, Invisible Punishment in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 15, 18 (Marc Mauer & Meda Chesney-Lind eds., 2002). New laws enacted by congress since the 1980s, coupled with the fact that 47 million people--approximately twenty-five percent of the nation's adult population--have criminal records, means that collateral consequences, or "invisible punishments" as Jeremy Travis calls them, "reach deep into American life." See also Debbie Mukamal & Paul Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30 FORDHAM URB. L.J. 1501, 1502 (2003). (42.) See Housing Opportunity Program Extension Act of 1996, Pub. L. No. 104120, 110 Stat. 834 (1996); Veteran Affairs and HUD Appropriations Act, Pub. L. No. 105276, tit. V, 112 Stat. 2461 (1998); see also Mukamal & Samuels, supra note 41, at 1506. (43.) See N.Y. CITY HOUS. AUTH., DEPARTMENT OF HOUSING APPLICATIONS MANUAL (2003) (the Manual's "Standards for Admission: Conviction Factors and End of Ineligibility Periods--Public Housing Program" details this two-year bar); OFF. OF N.Y. CITY COMPTROLLER WILLIAM C. THOMPSON, JR., AUDIT REPORT ON THE NEW YORK CITY HOUSING AUTHORITY'S PROCESS FOR DETERMINING TENANT ELIGIBILITY 6, 20 (2003), available at http://comptroller.nyc.gov/bureaus/audit/PDF_FILES/MG03_080A.pdf (last visited May 18, 2004). (44.) 20 U.S.C. [section] 1091(r)(1) (2004) ("A student who has been convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance shall not be eligible to receive any grant, loan, or work assistance...."); 21 "); 21 U.S.C. [section] 812(c) (2004) (defining a controlled substance as including marihuana). (45.) 20 U.S.C. [section] 1091(r)(1); 21 U.S.C. [section] 812(c). (46). See 23 U.S.C. [section] 159 (2004) (requiring the federal government to withhold a portion of a state's federal highway grant if the state does not suspend state-issued driver's licenses for controlled substances convictions); see also Mukamal & Samuels, supra note 41, at 1515 (describing the operation of this federal law and the states' response to it). (47.) See N.Y. VEH. & TRAF. LAW [section] 510(2)(b)(v) (McKinney 2004) (suspending a driver license for any violation of the Controlled Substances Act, 21 U.S.C [section] 801 (2004), including marijuana possession).
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71 (48.) See Nora Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL'Y REV. 153, 154 (1999). ("The number and scope of such adverse consequences tend to be unknown even to participants in the criminal justice system, often because they are scattered throughout different bodies of law."); Lea McDermid, Deportation is Different: Noncitizens and Ineffective Assistance of Counsel, 89 CAL. L. REV. 741 (2001); see also Margaret Colgate Love, Deconstructing the New Infamy, 16 CRIM. JUST. 30, 30-35 (2001) (explaining why collateral consequences should be a concern to prosecutors and the criminal justice system). (49.) Before the conference, participants were assigned to a working group and provided with the group's "charge" and background reading, which included SAVING THE CRIMINAL COURTS, supra note 25; Subin, supra note 26; statistics from the Office of Court Administration, supra note 17; and CJA RESEARCH BRIEF, supra note 9. Participants, led by a facilitator, met in a morning and afternoon session. Everyone reconvened at the end of the day for oral reports from a member of each working group. (50.) See supra note 17. (51.) Since the conference, Chief Judge Kaye has announced a pilot project in Bronx County that will combine the Criminal Court with the Criminal Term of Supreme Court into a single consolidated criminal trial court. See Kaye, supra note 28, at 8. (52.) Arrest volume increased by twenty-two percent from 1989 to 1998. See CJA RESEARCH BRINY, supra note 9, at 1. (53.) Twice as many people were prosecuted for non-felony arrests in 1998 than in 1989 (176,432 versus 86,822, respectively). CJA RESEARCH BRIEF, supra note 9, at 2. That number increased to 189,703 in 2002. (54.) In 1998, one third of arrests were for felonies; in 1989, fifty percent of all arrests were for felonies. CJA RESEARCH BRIEF, supra note 9, at 1. In 2002, less than twenty percent of all arraignments contained felony charges. Crim. Ct. of the City of N.Y., Executive Summary for Judicial Year To Date Ending Sunday, December 29, 2002 (2003). (55.) See N.Y. CRIM. PROC. Law [section] 140.20 (Mckinney 2004); People ex rel. Maxian v. Brown, 570 N.E.2d 223 (N.Y. 1991) (holding that a delay in arraignment of more than twenty-four hours is presumptively unnecessary and unless explained, requires an arrestee's immediate release). (56.) In 1998, seventy-three percent of non-felony cases had a determinative outcome in the Criminal Court arraignment, compared to sixty-two percent in 1989. CJA RESEARCH BRIEF, supra note 9, at 5. But note that there has been an increase in Adjournments in Contemplation of Dismissal in arraignments. In 1998, thirty percent of all misdemeanor cases resolved by a prosecution offer and defendant acceptance of an ACD, with eighty percent of those at the arraignment stage. In 1989, this was true in eleven percent cases and slightly more than half at arraignments. Id. at 5. (57.) See id. at 2. N.Y. CRIM. PROC. LAW [section] 150.10(1) (Mckinney 2004) authorizes the issuance of an appearance ticket by the police "directing a person to appear in a ... local criminal court at a ... future time in connection with his alleged commission of a designated offense," thereby allowing for release from a police precinct and eliminating the additional incarceration time involved in waiting to being arraigned in Criminal Court (usually twenty-four hours). Id. An appearance ticket may be issued to a person charged with misdemeanors and certain class E felony offenses. [section] 150.20. The use of DATs has diminished significantly: in the first half of 1998, there were a total of 39,045 docketed DAT arraignments, in the first half of the next year, there were only 7,395. Since then, the number of docketed arraignments in the first half of any year has not risen above the high of 11,362 in 2003. This
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72 calculation of docketed arraignments is derived from the New York Criminal Justice Agency, Inc.'s Semi-Annual Report series covering the period from 2003 to 1998. All of the reports are available online at http://www.cjareports.org (last visited May 18, 2004). (58.) See supra note 57. (59.) See N.Y. GRIM. PROC. LAW [sub section] 510.10, 520.10(1)(h) (Mckinney 2004). (60.) In 1998, thirty percent of misdemeanor cases were disposed of by an Adjournment in Contemplation of Dismissal compared to eleven percent in 1989. In 1998, forty-three percent of those convicted of a misdemeanor served jail time beyond the twenty-four hour arrest to arraignment time, compared to thirty-seven percent in 1989. See CJA RESEARCH BRIEF, supra note 9, at 5. (61.) Id. at 6. (62.) There are a total of twenty-six specialized, or "problem-solving," courts throughout the five boroughs of New York City: nine adult drug courts; two family drug courts; five misdemeanor domestic violence courts: two felony domestic violence courts; three integrated domestic violence courts (Bronx, Queens, Staten Island); three community courts; two mental health courts. See Telephone Interview with Aubrey Fox, Associate Director of Special Projects, Center for Court Innovation at the Center for Court Innovation (facts on file with the author). (63.) An arrest without a subsequent conviction can trigger significant civil consequences. For example, defendants residing in public housing can be evicted for conduct underlying a misdemeanor arrest even when the criminal case is dismissed or resolved with a plea to a non-criminal offense. See, e.g., Pearl White Place, HDFC v. Clinkscales, N.Y.L.J., Apr. 10, 2002, at 21 (Bronx County Hous. Ct.). In this case, the New York City Housing Court judge held that illegal use--in this case, tenant's son's plea of disorderly conduct arising from his possession of a controlled substance inside a Section 8-subsidized home--terminates lease as a matter of law, obviating need for notice of termination. See id. (64.) See N.Y. CITY CODE, CHARTER & R. tit. 35, [sub section] 2-02, 2-63 (2001) (requiring "good moral character" of taxi license applicants and for taxi license holders to report any criminal convictions to the N.Y. City Taxi & Limousine Comm'n). (65.) N.Y. GEN. Bus. LAW [section] 72 (Mckinney 2004). (66.) See infra notes 69-71 and accompanying text. (67.) See Sex Offender Registration Act, N.Y. CORRECT. LAW [section] 168 (Mckinney 2004) (68.) See N.Y. COUNTY LAW [section] 722 (McKinney 2004) (requiring each county to have a plan for providing counsel to indigent defendants). The indigent defense plan must either provide for representation by a public defender, representation by a private legal aid bureau or society, representation by private counsel which is rotated and coordinated by a county or city bar association, or a combination thereof. Id. (69.) See N.Y. PENAL LAW [section] 60.35(1)(b)-(c) (McKinney 2004) (requiring a mandatory surcharge for a defendant convicted of a violation of $75 and a crime victim assistance fee of $20; further requiring a surcharge for a misdemeanant of $140 and a crime victim assistance fee of $20). (70.) Compare N.Y. CRIM. PROC. LAW [section] 420.35(2) (McKinney 1995) (effective July 1, 1995) ("Under no circumstances shall the mandatory surcharge or the crime victim assistance fee be waived."), with [section] 420.35(2) (repealed 1995), stating that: In any case where a person is guilty of any offense for which a mandatory surcharge shall be imposed ... the judge or hearing officer may waive all or any part of the mandatory surcharge where, because of the indigence of the offender, the payment of
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73 said surcharge would work an unreasonable hardship on the person convicted or his or her immediate family. (71.) N.Y. CRIM. PROC. LAW [section] 420.40 (Mckinney 2004) (Allowing a judge to defer the obligation to pay all or part of the mandatory surcharge.) Subection 5 provides: "Any unpaid balance of the mandatory surcharge may be collected ... in the same manner as a civil judgment." [section] 420.40(5). (72.) Participants reported that police warrant squads bring in dozens of delinquent defendants per day; some judges immediately enter civil judgment and release defendants, while other judges incarcerate defendants for up to two weeks. (73.) Eight-three percent were male and eighty-four percent were African-American or Latino. CJA RESEARCH BRIEF, supra note 9, at 4. (74.) See supra note 51. (75.) The accusatory instrument filed at the arraignment appearance is frequently a complaint sworn to by the arresting police officer based on hearsay. Absent waiver by a defendant, a sufficient accusatory instrument is an information containing nonhearsay factual allegations. See N.Y. CRIM. PROC. LAW [section] 100.40 (Mckinney 2004). (76.) In all counties of New York City except Staten Island, many Criminal Court judges were elevated to Acting Supreme Court Judges to handle the large volume of felonies that once existed. As of January of 2004, fewer than twenty percent of all arraigned cases are felonies, yet, city-wide, there are seventy-five percent more judges hearing felony matters than misdemeanor matters (seventy-five in Criminal Court and 125 in Supreme Court). In Bronx County, where only eighteen percent of the caseload is felonies there are hundred percent more judges hearing felony matters (seventeen in Criminal Court, thirty-three in Supreme Court). N.Y. State Off. of Ct. Admin., Judges Sitting In Courts Of Criminal Jurisdiction (Jan. 8, 2004). (77.) A defendant has a right to a jury upon trial for a class A misdemeanor, but no such right exists for a class B misdemeanor. N.Y. CRIM. PROC. LAW [section] 340.40 (Mckinney 2004). (78.) In 2002, New York City instituted Operation Spotlight, which would focus attention on "chronic misdemeanants" through specialized courts in all five boroughs solely to hear "Spotlight cases." Press Release, Off. of N.Y. City Mayor Michael R. Bloomberg, Mayor Michael R. Bloomberg Outlines Public Safety Accomplishments In 2003 (Dec. 17, 2002). "Since the launch of the initiative, there have been more than 18,000 arrests and the percentage of defendants receiving jail sentences has increased forty-eight percent, with sentences of more than thirty days increasing seventy-five percent. The percentage of defendants detained on bail has increased nearly twenty percent." Id. (79.) Most assistant district attorneys do not appear in court to "cover" their cases; rather, the day's docket is handled by ADAs assigned to a courtroom part who rely on written instructions provided by the ADA assigned to each respective case. (80.) Since the October 18, 2003 conference, Chief Judge Kaye has proposed just that. See Kaye, supra note 51. (81.) See, e.g., OFF. OF INSPECTOR GEN., U.S. DEP'T OF JUST., THE FBI LABORATORY: AN INVESTIGATION INTO LABORATORY PRACTICES AND ALLEGED MISCONDUCT IN EXPLOSIVES-RELATED AND OTHER CASES (1997) (investigating and substantiating some of a whistleblower's claims that personnel at the FBI Laboratory mishandled evidence and provided inaccurate testimony, including evidence used in the 1993 World Trade Center Bombing and Oklahoma City bombing), available at http://www.usdoj.gov/oig/special/9 704a/index.htm (last visited May 20, 2004).
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75
3 The Criminalization of Poverty Kaaryn Gustafson
T
he welfare system and the criminal justice system in the United States are becoming ever more tightly interwoven. Scholars, however, have not yet examined the processes involved in these developments and what these developments mean for both the welfare system and for criminal jurisprudence. Many people, including welfare recipients, treat the welfare and criminal justice systems as analytically distinct. As a practical matter, however, the systems now work in tandem. This Article maps the criminalization of welfare. First, this Article describes the social construction of welfare fraud, tracing how "welfare queens" and welfare cheating came to be the targets of much governmental attention and resources. The Article then describes the various ways that criminal justice goals and strategies have become embedded in the welfare system, as well as the ways that the welfare system has become a tool of law enforcement. Next, the Article examines the treatment of welfare recipients in the courts, where the poor have been relegated to an inferior status of rightsbearing citizenship, a status on par with parolees and probationers. In the end, the Article encourages more careful policy analysis of these criminalizing practices, proposes a de-coupling of the economic security and crime control functions of the state, and offers recommendations for ensuring the constitutional rights of welfare _______________________________________________________ Kaaryn Gustafson. "The Criminalization of Poverty." Journal of Criminal Law and Criminology, Summer 2009 volume 99 issue 3 p. 643-717. Copyright © 2009 Northwestern University, School of Law. Reprinted by special permission of Northwestern University School of Law.
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76 recipients. Specifically, administrative and criminal procedures must adapt to the transformations in welfare law to ensure that welfare recipients enjoy basic constitutional protections. More research is suggested to measure the unmeasured and the externalized costs associated with the criminalization of welfare.
I. INTRODUCTION The word welfare is now commonly used pejoratively--as in "welfare mother" or "welfare queen." We often hear the word welfare used to describe a bureaucratic mess or to describe economically and socially marginalized populations. Lost in these contemporary understandings of welfare is the association of welfare with wellbeing, particularly collective, economic wellbeing. Many of the current welfare policies and practices are far removed from promoting the actual welfare of low-income parents and their children. The public desire to deter and punish welfare cheating has overwhelmed the will to provide economic security to vulnerable members of society. While welfare use has always borne the stigma of poverty, it now also bears the stigma of criminality. This change in perspective has under-examined implications for both welfare law and criminal law. This Article examines those implications. Over the last several decades, criminal law enforcement goals, strategies, and perspectives have grown entangled with the welfare system, a putatively benevolent arm of the state. Government welfare policies increasingly treat the poor as a criminal class, and the treatment of low-income women as criminals has occurred at all levels of government--federal, state, and local. The 1996 federal welfare reform legislation required states to implement measures to control welfare fraud. (1) While states have approached the policing of welfare fraud with varying levels of zeal, there is a clear trend toward toughness on welfare recipients who run afoul of regulations or who fail to comply with welfare rules. (2) Perhaps no state has been tougher on welfare fraud than California. California is one of the most aggressive states not only in investigating and prosecuting welfare fraud cases, but also in welcoming law enforcement into the welfare system. (3) Even before receipt of a first issuance of a grant, an applicant for welfare is reminded of the welfare system's punitive rules and undergoes state scrutiny otherwise limited to criminal offenders. A welfare recipient has likely signed documents informing her that her welfare grant will be reduced or terminated if she has a boyfriend move in without informing the state, if she fails to vaccinate her children, or if she is convicted of a drug charge. She has probably signed a document
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77 stating that any child she conceives and gives birth to while on welfare will be excluded from calculations of household financial need. Her Social Security number has been matched against state and national criminal records to make sure that she is not someone who should be incarcerated, that she does not have an outstanding arrest warrant, and that she has not been convicted of a drug-related crime. The financial information she has provided has been matched against various employment databases, IRS records, and Franchise Tax Board records to see that her lack of income is verifiable. Her personal information has been entered into the welfare system's database, which may be accessed by law enforcement officers without any basis for suspicion that she has engaged in any wrongdoing. She has been photographed and fingerprinted. And all of this has occurred before she has received a single welfare check. Particular California counties are especially zealous in policing welfare fraud. San Diego, for example, takes a more proactive approach to welfare cheating than other California counties. In 1997 the County established a program known as Project 100%. (4) Under the program, all individuals who apply for California's welfare program, known as CalWORKs, are subject to an unannounced home visit by a plain-clothed welfare fraud investigator, who is deputized and employed by the local prosecutor's office. (5) Home visits occur before benefits are issued, and consist of an interview and a walk-through of the home. Investigators may, and do, look inside closets, bathroom cabinets, laundry baskets, and trash cans during the walkthrough. (6) Welfare applicants are informed that the home visits are designed to verify their eligibility. (7) Anyone who refuses consent for the interview or walk-through will automatically have her welfare application denied. (8) If the home visit and walk-through reveals any evidence of criminal activity, the county investigator may make a referral for criminal investigation. (9) San Diego County's practices, some of the most aggressive in the country, are emblematic of the broader trends in both welfare provision and the intermingling of the welfare and criminal justice systems. Nationwide, welfare applicants are treated as presumptive liars, cheaters, and thieves. Low-income families find their lives heavily surveilled and regulated--not only by welfare officials, but also by the criminal justice system. And low-income individuals may not be aware of the complex rules and regulations that take effect when applying for government benefits or of the many ways the government surveilles their actions. Policing the poor and protecting taxpayer dollars from misuse have taken priority over providing for
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78 the poor. Regulating the behavior of the poor and deterring fraud are now the objects of political attention and government resources, even when the goals of such regulation are unclear and the methods of deterrence are unevaluated and costly. More than forty-five years ago, Professor Charles Reich wrote that it would undermine the fundamental purposes of welfare provision to "violate the sanctity of the home and degrade and humiliate recipients." (10) Yet today, some of the key purposes of welfare policies are to regulate the home and to degrade welfare recipients to such a degree that they are deterred from using welfare. (11) The term criminalization is used in this Article to describe a web of state policies and practices related to welfare. (12) There are several different kinds of criminalizing policies and practices. First, there are a number of practices involving the stigmatization, surveillance, and regulation of the poor. (13) These practices are historically embedded in aid programs to the poor. As Part II of this Article describes, the welfare reforms implemented near the end of the twentieth century raised these practices to a new level. Second, many of the policies written into the federal and state welfare reform laws assumed a latent criminality among the poor. The welfare reform measures were aimed at excluding welfare recipients who had engaged in illicit behavior (such as drug use or possession) in the past, and were aimed at imposing harsh penalties on welfare recipients who engaged in illicit behavior while receiving government benefits. (14) These policies engaged the get-tough-oncrime approach used by the criminal justice system. The third type of criminalizing practices involved the growing intersection between the welfare system and the criminal justice system. This intersection includes not only overlapping goals and attitudes toward the poor, but also collaborative practices and shared information systems between welfare offices and various branches of the criminal justice system. Both these systems are now preoccupied not with addressing social ills, but rather with reducing the risks associated with social ills. Very concrete examples of this criminalization exist in the welfare system--most notably, aggressive investigations into and increasing prosecutions for welfare fraud. (15) These government practices, which involve both the welfare offices and the criminal justice system, are leaving a large and growing number of parents with criminal records and paying criminal penalties. More troubling, the policing of welfare fraud typically occurs at the local level, so that dramatically disparate rates of investigation and prosecution appear to exist among counties, even those in a single state. (16)
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79 The following Part of this Article describes the historical and political progression through which welfare fraud and welfare cheats became such a concern in the United States. Part III then details some of the federal programs and state and local practices that have in recent years contributed to the criminalizing trends. That Part also examines the movement away from civil penalties for welfare cheating and the increasingly aggressive pursuit and punishment of welfare cheating as a felony crime. Part IV examines the tenuous and troubling state of constitutional protections for the poor under recent case law. Finally, Part V proposes some policy changes to address the problematic convergence of the welfare and criminal justice systems. It also considers why legal scholars should become more attentive to the intermingling of government programs and strategies and, more specifically, attentive to the poor.
II. THE HISTORY OF THE CRIMINALIZATION OF POVERTY A. FROM 1935 THOUGH THE 1960S: CHANGES IN WELFARE DEMOGRAPHICS AND THE RISE OF MIDNIGHT SEARCHES The criminalization of welfare recipients entails a long historical process of public discourse and welfare policies infused with race, class, and gender bias. (17) State and federal government aid programs developed in the first half of the twentieth century supported white, male workers and the white women and children dependent upon their wages while they excluded a huge segment of poor women of color and their children. (18) The Social Security Act created Aid to Dependent Children (ADC), a program specifically designed for poor mothers and their children and originally intended to support the widows of working men. (19) After World War II, the ADC rolls grew--from about 900,000 individuals in 1945 to approximately three million in 1960. (20) The proportion of families headed by divorced or unmarried mothers grew, while the proportion of families headed by widows declined. (21) In addition, the number of African-American families receiving welfare rose, especially as poor African-American families, seeking economic opportunity, migrated from southern agricultural areas to the industrial hubs of the North. (22) Welfare offices in many states and locales adopted "suitable home" and "substitute parent" rules, which were essentially morality standards, and which were arbitrarily and discriminatorily applied, and commonly excluded women of color from the welfare rolls,
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80 especially in the South. (23) Notwithstanding a 1961 rule issued by the Secretary of Health, Education and Welfare barring the arbitrary application of suitable home requirements, many welfare offices continued to engage in midnight raids on the homes of ADC recipients in order to police "man in the house" rules. (24) The stated reason for surprise visits was to catch men sleeping in the homes of women receiving welfare. Unmarried women with men in their beds were deemed morally unfit and their households therefore unsuitable for assistance. (25) In addition, the men discovered in the homes were considered household breadwinners who had hidden their income support from the aid office. (26) The unstated but underlying goals of the rules were to police and punish the sexuality of single mothers, to close off the indirect access to government support of able-bodied men, to winnow the welfare rolls, and to reinforce the idea that families receiving aid were entitled to no more than neardesperate living standards. Midnight raids on welfare recipients continued for most of the 1960s. (27) During that time, a number of publicized cases of welfare fraud charges resulted from the raids. (28) In many of those cases, though, the men, not the women, were charged with fraud. Men found residing with women receiving welfare aid were treated as the welfare cheats. (29) The prosecutions of men, rather than women, suggest that the welfare and law enforcement officials considered women to be easily manipulated by the men, but ultimately blameless in the cheating. This view of the innocence of women, however, changed over time. By the mid-1960s, low-income women of color were being blamed for all sorts of social problems. An oft-cited 1965 report by Daniel Patrick Moynihan promoted the idea that the problems of inner cities--poverty, joblessness, and crime--could be traced to a "tangle of pathology" perpetuated by unmarried black mothers. (30) The Moynihan Report identified family disorganization and disintegration among poor African Americans as a source of social, moral, and economic instability in the United States. (31) The report stated that "[a]s a direct result of this high rate of divorce, separation, and desertion, a very large percent of Negro families are headed by females. While the percentage of such families among whites has been dropping since 1940, it has been rising among Negroes." (32) Even worse, according to the report, many of the children in femaleheaded households received Aid to Families with Dependent Children (AFDC, formerly ADC), a program originally designed for widows and orphans. (33) In Moynihan's popular portrayal, lowincome African-American mothers were a social threat because they
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81 gave birth to and raised sons who became the criminal, urban underclass. In 1968, the Supreme Court handed down a decision that halted the "substitute father" rule, which had stipulated that any man cohabiting with a mother should be considered a substitute father and should be held responsible for supporting the entire family. (34) While the decision lifted the stigma of welfare cheating from fathers and boyfriends, it also intensified the stigma on mothers. The Supreme Court held in King v. Smith that the substitute-father presumption was inconsistent with the intent of the Social Security Act to provide for needy children. (35) The plaintiff, Sylvester Smith, was an African-American widow and mother of four whose welfare case had been closed when the welfare department found that a man (who was married with nine children of his own) sometimes spent the night in her house. (36) As a result of King v. Smith, welfare offices devoted markedly less attention to the men involved in the lives of women receiving welfare. Policymakers instead turned their full attention to welfare mothers. B. THE 1970S: GROWING CONCERNS ABOUT GOVERNMENT WASTE AND ABOUT CRIME Beginning in the 1970s, it became more difficult for welfare recipients to live on their welfare grants. Throughout the 1970s, '80s, and '90s, the value of the welfare grant, adjusted for inflation, declined dramatically. The weighted average maximum benefit per three-person family was $854 in 1969 (in 2001 dollars), but plummeted to $456 by 2001. (37) It became increasingly hard for welfare recipients to cover their most basic expenses--food, clothing, and rent--with their welfare grants. Unable to survive on welfare checks and facing barriers to employment, many welfare recipients turned to other sources of income, whether help from kin or participation in underground labor markets, and attempted to hide those sources from the welfare office for fear of losing the small checks they received. (38) Also in the 1970s, as a part of welfare reforms under President Richard Nixon, the AFDC system became more bureaucratic. (39) The practice of social workers visiting the homes of welfare recipients and verifying financial need ended. (40) Office caseworkers, hired to replace the social workers, processed the routine paperwork that welfare recipients regularly submitted to the office to document their continuing financial need. In a process known as "churning," the federal government increased the amount of information and paperwork required to determine welfare
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82 eligibility, and denied benefits to low-income families who failed to keep up with the paperwork. (41) Income-eligible families were removed from the aid rolls for their failures to provide verification documents in a timely manner. (42) Home visits by welfare caseworkers, particularly unannounced visits, virtually stopped during the 1970s. (43) During that period, welfare recipients gained greater expectations of privacy in their own homes. Governmental scrutiny of administrative records, however, increased. Particularly during the Carter Administration, the news media brought greater attention to fraud in government spending, a concern that first arose in the context of military contracts after glaring examples of waste and abuse were exposed. (44) Congress passed, and President Carter signed, the Inspector General Act of 1978, which authorized the President to appoint Inspector Generals to twelve federal administrative agencies. (45) Data collection and analysis were increased throughout government programs. (46) In the 1970s, the image of low-income mothers took a particularly negative turn. As discussed below, California Governor (later President) Ronald Reagan used the symbol of the "welfare queen" to propel his ideas on limited government and increased crime control. (47) Reagan used references to the welfare queen to portray an image of widespread depravity and criminality among low-income women of color. (48) Despite the factual inaccuracies of Reagan's descriptions, the symbol of the welfare queen resonated with the public. Welfare cheating had always been an issue in poverty politics. Senator Robert Byrd made a highly publicized investigation of welfare fraud in Washington, D.C. in 1962. (49) In 1972, when President Richard Nixon was considering an overhaul of the welfare system, Senator Russell Long of Louisiana declared that "the welfare system, as we know it today, is being manipulated and abused by malingerers, cheats and outright frauds." (50) While distrust of those low-income adults unattached to the wage labor market had always existed in the United States, it appeared to grow throughout the 1970s. Concerns about welfare cheats, in particular, began to rise. Beginning in 1977, those who applied for food stamps had to disclose their Social Security numbers to receive benefits. (51) This marked the first use of an extensive data exchange using Social Security numbers among government agencies, and the beginning of computer data tracking of the poor. That is not to say that there were not individuals who defrauded the welfare system. In the late 1970s and early 1980s, there were a few particularly notable cases of welfare fraud in large U.S. cities. (52) It was not happenstance that a number of welfare
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83 fraud cases involving double-dipping crooks were uncovered in the late 1970s, as it was then that the AFDC system was computerized and that identifying and documenting cases of fraud became much easier for welfare officials. (53) What may have appeared to the public and to policymakers to be a spike in cases of welfare fraud was actually a sudden improvement in the ability of officials to root out fraud effectively. And while this transformation--the computerization of the system--might have been heralded as a means of both providing aid more efficiently and policing fraud more effectively, the transformation marked instead a period of zealous attacks on welfare recipients and a public perception that welfare cheating was on the rise. C. THE 1980S: THE RISE OF THE WELFARE QUEEN The election of Ronald Reagan as President in 1980 marked a significant transition in public opinions towards the poor and in government services for the poor. From the first moment of his bid for presidential election, Ronald Reagan used anecdotes about welfare queens to exemplify everything he believed was wrong with government programs--excessive spending on domestic programs and misuse of government money. (54) Reagan apparently merged the identities of two well-known women convicted of welfare fraud-Linda Taylor, the Chicago "welfare queen," and Barbara Jean Williams, the Cadillac-driving "Queen of Welfare" from Compton-into a single persona who starred in an often-used anecdote. Reagan regularly exaggerated the number of aliases used by these women so that his welfare queen had 100 of them. (55) The welfare queen played a prominent role in Reagan's presidential campaign. Programs providing assistance to the poor changed after Reagan took office. Whereas Nixon, during his 1973 State of the Union Address, proudly stated that federal spending on food assistance programs had tripled during his presidency, Reagan regarded those same programs as government waste. (56) Under Reagan's direction, the federal government cut funding for food stamps in 1981. (57) The federal government also tightened the eligibility requirements for the federal school lunch program, eliminating 2.6 million children from the program. (58) Reagan also began a government crackdown on "waste, fraud and abuse"--a phrase that became a dominant theme in his second campaign. The crackdown, however, was targeted rather than universal. Upon taking office, Reagan abruptly fired all of the Inspectors General. (59) Rather than focusing on waste and fraud throughout federal government, President Reagan focused instead on
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84 welfare fraud, particularly on fraud committed by welfare recipients. In Reagan's view, the poor, and not the welfare bureaucracies, were the sources of fraud and waste. In the 1980s, some Democrats began accusing Republicans of using "[w]aste, fraud and abuse" as code words for "a budget-cutting program that would take more money away from poor blacks and Hispanics, and relatively less from middle-class whites." (60) Republicans replied that the disparate racial effects of the policies were not intentional. (61) Despite the congressional concern about welfare fraud by recipients, the Washington Post reported that an audit of the Department of Health and Human Services (formerly Health, Education and Welfare) released shortly before Reagan fired its Inspector General found that "[t]he greatest cheaters ... are not individual welfare or health care recipients, but doctors and pharmacists and other providers of services who overbill the government." (62) Again, that is not to say that cheating welfare recipients did not exist. (63) But rather than treat a few exceptional instances of criminal activity as the exceptions they were, politicians--and the media and public, as well-adopted these cases as typifying poor, African-American women on welfare. These "welfare queens" were treated not merely as stereotypes of poor black mothers on aid, but as archetypes--perfect examples of what welfare recipients become over the course of years on the dole. (64) And Ronald Reagan's re-election campaign was spearheaded by an attack on waste, fraud and abuse in welfare programs. (65) Just as in President Reagan's first bid for the White House, the welfare queen became a powerful symbol in the 1984 presidential campaign. (66) Where the welfare queen stereotype was accurate was in its characterization of poverty and welfare as women's issues. Indeed, in 1984, two-thirds of the adults living below the poverty line were women, and households headed by single mothers were five times more likely to live in poverty than two-parent families. (67) Moreover, with rising divorce rates and an increasing number of nonmarital births in the United States, the disproportionate representation of women and their children would become a growing trend. D. THE 1990S: WELFARE REFORM AND THE CONVERGENCE OF THE WELFARE SYSTEM AND THE CRIMINAL JUSTICE SYSTEM Vilifying the low-income mothers receiving welfare became a bipartisan project in the 1990s. Survey research revealed that Americans associated welfare with African Americans and viewed the welfare system as a program that rewarded laziness among
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85 African Americans. (68) "Welfare dependency" became a keyword associated not only with economic risk and social disorder, but also with crime. (69) In the 1990s, states began to attack welfare recipients through aggressive welfare fraud investigations and criminal prosecutions. (70) California again became a leader in these new punitive approaches to welfare reform. (71) By 1993, twenty-six other states had joined California in establishing pre-eligibility fraud investigation units, which conducted investigations of individuals applying for cash aid. (72) The pre-eligibility fraud investigation units checked on welfare applicants' assets, sources of property, household composition, and address. (73) Investigators conducted their investigations by interviewing relatives, friends, neighbors, employers, and landlords of welfare applicants; visiting and conducting surveillance of applicants' homes; investigating financial resources through database searches; and interviewing the welfare applicants themselves. (74) In 1995, all of the states that had established welfare fraud investigation units housed them separately from the eligibility workers in order to avoid conflicts of interest between government employees trying to provide for the poor and those focused on deterring and capturing welfare fraud. (75) California continued its leadership on "get-tough-onwelfare" reforms. California's Republican governor, Pete Wilson, reduced the welfare grants to needy families and increased the number of welfare fraud investigators in the state. (76) In 1994 Governor Wilson authorized the electronic fingerprinting of welfare recipients, even though legislative analysts, state budget officials, and welfare officials said doing so was both costly and unnecessary to address welfare fraud. (77) In 1996, California legislators stiffened the penalties for welfare fraud. Legislators passed bills that would permanently disqualify individuals convicted of welfare fraud from ever receiving welfare again. (78) At the same time, they voted to reduce welfare benefits. (79) California also began shifting the investigation and punishment of welfare cheating from the welfare office to district attorneys. Beginning in July 1996, district attorneys rather than staff from public social services agencies assumed the role of conducting welfare overpayment investigations. (80) Functionally, California-like many other states--made it increasingly difficult for welfare recipients to survive on their welfare grants alone, and shifted state money from aiding low-income women to policing and punishing them through the criminal justice system when they sought unreported income.
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86 Then came an overhaul of the welfare system at the federal level. In the debates leading up to the votes on the welfare legislation, federal lawmakers employed dehumanizing rhetoric to describe welfare recipients. (81) In a particularly vivid example of the dehumanization of welfare recipients, John Mica, a Republican Congressional Representative from Florida, held up a sign during a congressional debate that read, "Don't feed the alligators." (82) On the House floor, Mica argued that providing aid to poor women would do nothing but spur them to reproduce, entice them to return for more free handouts, and threaten the general public safety. (83) Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act in 1996. (84) The legislation eliminated the broad, federally-governed AFDC program and ended cash aid as a federal entitlement to all income-qualified families. (85) Replacing AFDC entitlements, the federal government distributed state block grants through a federal program known as Temporary Assistance for Needy Families (TANF). (86) The new welfare policies threatened that those who failed to play by the rules--by meeting mandatory work requirements, by abiding by behavior reforms, and by reporting all details of income and household composition--would be harshly punished with new penalties. (87) In addition, states were allowed to place their own conditions upon receipt of welfare and could establish time limits even shorter than the federal ones. (88) Those welfare recipients who failed to meet their obligations under the new system would be excluded from benefits and have the safety net pulled out from under them--in some cases permanently. E. ESCALATING ADMINISTRATIVE SANCTIONS During the welfare reform debates of the mid-1990s, politicians and the public repeatedly championed the "carrot and stick" approach to welfare. (89) The new welfare system would not only include incentives, but would also create a new system of disincentives and punishments. The approach was designed to coax welfare recipients who were not participating in the formal wagelabor market to seek steady employment and leave the welfare system. (90) There were a few incentives: increased earnings disregards, increased availability of child care subsidies, and an increased Earned Income Tax Credit for the working poor. The true underpinning of reform, however, came in the form of sanctions. A welfare recipient's failure to comply with welfare rules and regulations can result in a reduction or termination of the family's welfare benefits; this is known as a sanction. Failing to comply can mean violating welfare-to-work requirements, failing to
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87 fulfill the number of work hours required, or merely missing a scheduled meeting at the welfare office. (91) One study of the sanctions imposed in three major cities found that such missed appointments were the most common triggers for sanctions. (92) In California, the result of a sanction is a reduction of the adult's portion of aid from the grant check; in 2008, this reduction amounted to $139 for a family of three--a significant sum for a family living in poverty. (93) While many people assume that transitions from welfare to work account for dramatic decreases in welfare caseloads, a number of studies indicate that sanctions actually account for much of the decline. (94) Research by Sanford Schram found evidence that "gettough policies, especially strict sanctions, have contributed to the roll declines and may have done so in ways that forced people off even while they still needed assistance." (95) Like most policies under welfare reform, the policies regarding sanctions vary dramatically from state to state. While some states, like California, only reduce the adult's portion of aid under a sanction (known as a "partial sanction"), thirty-six states implemented "full family sanctions," meaning that if a parent fails to meet his or her work requirement, cash aid to the entire family is cut off. (96) In seventeen of these states, full-family sanctions are immediate upon noncompliance with the welfare rules; in the remaining nineteen states, full-family sanctions are only instituted after multiple instances of non-compliance (referred to as a "gradual full-family sanction"). (97) Wisconsin determines sanctions based on the number of hours a welfare recipient has failed to perform. (98) In addition, nineteen states eliminate food stamp benefits if an adult is non-compliant, and twelve states eliminate Medicaid benefits to noncompliant adults. (99) Sanctions are a routine occurrence. Researchers estimate that between 33% and 52% of TANF recipients have been sanctioned. (100) More than half of a million families were subject to full-family sanctions from 1997 through 1999. (101) Schram has shown that those states that have instituted the punitive full-family sanctions are those with the largest populations of African Americans. (102) Other researchers examining TANF sanctions found that "limited education and being African American predict sanctioning when [one] control[s] for a wide range of other personal and demographic characteristics." (103) In short, it appears the "carrot and stick" approach is overwhelmingly being used as a stick against some of the most marginalized and vulnerable populations-women of color and their children.
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88 As troubling as the effects of sanctioning practices are, the sanctions raise other concerns. For example, a study conducted by Yeheskel Hasenfeld found that approximately half of the sanctioned adults surveyed did not know they had been sanctioned. (104) For these families, the welfare system may seem so complex, arbitrary, and mystifying that they cannot determine why their benefits are fluctuating. This suggests that rather than creating a set of incentives that will "make work pay," the current welfare system is simply punishing people who cannot figure out how the system works. (105)
III. THE CRIMINALIZATION OF POVERTY TODAY Welfare reform not only produced punitive policies, but also established a system that blurred the boundaries between the welfare system and the criminal justice system. Until the 1990s, the welfare system was relatively simple and self-contained. The rules of AFDC and Food Stamps were handed down by the federal government, and eligibility rules and violations of welfare rules were consistent from state to state. If families were found ineligible for aid, they were given notice and their benefits ended. If they were found cheating-for example, underreporting their income or failing to report a change of household composition--but were still income-eligible for aid, then the penalties were civil: their welfare benefits would typically be reduced by a certain percentage each month until any overpayments were recouped by the state. (106) As a result of the reforms, the federal government and the states instituted policies and practices that burdened welfare receipt with criminality; policed the everyday lives of poor families; and wove the criminal justice system into the welfare system, often entangling poor families in the process. David Garland notes that the "themes that dominate crime policy--rational choice and the structures of control, deterrents, and disincentives, the normality of crime, the responsibilization of individuals, the threatening underclass, the failing, overly lenient system--have come to organize the politics of poverty as well." (107) The welfare reform policies were designed to punish the poor; to stigmatize poverty, particularly poverty that leads to welfare receipt; and to create a system of deterrence aimed at the middle class. A vast regulatory and punitive system developed under welfare reform. The welfare policies the states instituted after welfare devolution included a broad range of punitive approaches to the poor designed not only to punish poor adults who failed to transition from welfare to work, but also to punish entire families where the head of
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89 the household failed to live up to governing standards of morality. (108) The reforms not only ended aid to families as a federal entitlement, they allowed states to develop their own rules about who was entitled to aid and their own regulations and practices around removing families from the aid rolls. More importantly and less wellknown, however, the reforms of 1996 produced a system that blurred the boundaries between the welfare system and the criminal justice system. The welfare system is increasingly used by the government to police crimes, both those involving welfare and those unrelated to welfare. As the next Part illustrates, the welfare system is now being used to catch criminals, and restrictions on aid are being used to punish individuals who have been convicted of crimes. A. THE WELFARE SYSTEM AS A TOOL OF LAW ENFORCEMENT The fugitive felon prohibitions, Operation Talon, and the drug felony lifetime ban have little to do with aid to the poor. These rules and programs are essentially new ways for the criminal justice system to make use of welfare administrative data to capture poor individuals who are also wanted by the criminal justice system. Through changes in statutes and practices, then, the welfare system has become an extension of the criminal justice system. 1. Fugitive Felon Prohibitions The federal welfare legislation of 1996 included a provision that prohibited any individual who is wanted by law enforcement officials for a felony warrant or for violating the terms of parole or probation from receiving government benefits, including not only TANF benefits, but also food stamps, SSI, and housing assistance. (109) The fugitive felon provisions allow the criminal justice system to side-step privacy protections that apply to government and financial information belonging to citizens who are not receiving welfare. According to a 2002 report by the then-General Accounting Office (GAO) (now the Government Accountability Office), "about 110,000 beneficiaries [were] identified as fugitive felons and dropped form the SSI, Food Stamp, and TANF rolls." (110) While government officials claim that fugitive felon rules remove dangerous criminals from the streets, (111) it is not clear that dangerous criminals are those who are ensnared by the effort. According to the GAO report, more than one quarter of the SSI recipients excluded from aid under the rule were dropped because of parole or probation violations; in more than 37.4% of the cases, the
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90 offense on the warrant was not indicated in the data. (112) Not all parole or probation violations, however, are direct threats to public safety. An individual may have a warrant issued for arrest for parole or probation offenses that, while they may be violations of parole, are not criminal acts. For example, an individual may have a warrant issued for missing a meeting with a parole or probation officer, missing a substance abuse meeting, or being determined to be psychologically unstable. Thus, it is not clear whether this rule is reining in threatening criminals and keeping public housing safe, or instead merely reducing the government's costs for providing aid to individuals with outstanding warrants. Excluding felons--even those who have served their sentences--from the full benefits available to citizens without felony convictions certainly draws upon precedents under some state laws. A number of states exclude convicted felons, including those who have completed their sentences, from voting. (113) However, the drug felony exclusion and the fugitive felon rules extend beyond political disfranchisement to encompass deprivations of economic citizenship. While withdrawing the right to vote may have little impact on an individual's daily life, economic disfranchisement can substantially and detrimentally affect not only daily life, but also physical well-being. In short, the fugitive felon provisions raise several concerns: first, the denial of benefits to needy adults and their children; second, the suspension of procedural rights within the welfare system for individuals who have been involved in the criminal justice system; and third, the denial of economic citizenship. 2. Operation Talon The federal welfare legislation also loosened the confidentiality that once protected poor families' personal and financial information. (114) Before 1996, law enforcement officers could only access welfare records through legal process, but now welfare records are available to law enforcement officers simply upon request--without probable cause, suspicion, or judicial process of any kind. (115) The scope of an individual's rights to financial privacy under the U.S. Constitution is narrow, (116) but California protects individuals who are affluent enough to have bank accounts from state actors conducting fishing expeditions in their financial records. (117) Under the federal regulations, both welfare offices and public housing agencies are required to "furnish any Federal, State, or local law enforcement officer, upon the request of the officer, with the current address, Social Security number, and photograph of any recipient of assistance." (118) This exchange of information is not merely available to law enforcement officials when the welfare
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91 recipient herself is suspected of violating the law, but rather more generally when an officer believes the aid recipient, or anyone in her household, "has information that is necessary for the officer to conduct an official duty." (119) The information exchange between welfare offices and law enforcement, however, has expanded beyond mere investigatory use. Under a program titled "Operation Talon," food stamp offices are used as the sites of sting operations for arresting individuals with outstanding warrants. (120) People with warrants who receive food stamps typically receive a call telling them to report to a welfare office at a designated time to resolve a problem with their benefits or receive some kind of bonus. (121) When they show up, an officer from the sheriff's department is waiting to do the arrest. Thousands of low-income citizens have been rounded up under the program. Operation Talon was a program developed under the Office of Inspector General to expedite enforcement of the fugitive felon rule. (122) Then-Vice President Al Gore served as spokesperson for the program. (123) As a result of the 1996 federal rule changes, law enforcement officers now actively use the food stamp records of local social service agencies to locate and apprehend individuals with outstanding arrest warrants. (124) Operation Talon transformed food stamp offices into the sites of sting operations for arresting aid recipients with outstanding arrest warrants and facilitated use of welfare administrative data to capture low-income individuals who are wanted by the criminal justice system. Through this program the welfare system has become an extension of the criminal justice system, transforming the welfare system into a trap for hungry lawbreakers. Between early 1997 and September 2006, Operation Talon led to the arrest of 10,980 individuals across the country. (125) While the Inspector General's Year 2000 Update on Operation Talon indicates that some individuals arrested under the program faced charges for violent or serious crimes, many others did not. For example, 31% were for offenses known as "Group B offenses," such as writing bad checks, which are considered less serious. Many of the Group A arrests were for non-violent offenses: 11% were for fraud charges and 10% were for larceny/theft offenses, categories which may include welfare fraud; 23% were for drug-related crimes. (126) Various states seem to have targeted different types of felony offenders under the program. For example, while two-thirds of the individuals caught in the Illinois program instituted under Operation Talon had outstanding warrants on drug-related charges, more than three-fourths of the California offenders had fraud
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92 warrants (which include but are not limited to welfare fraud charges). (127) Thus, it is not clear whether this program is protecting public safety by reining in violent criminals or simply providing law enforcement officers a new tool in carrying out arrests. Government costs--and any cost savings--associated with administering the program are unclear. In testimony before the U.S. House of Representatives Committee on the Budget, Inspector General Phyllis Fong stated that: "It is difficult ... for most States to determine costs savings because even though fugitives are removed from the food stamp eligibility roles, they may be only one member in an entire household that continues to be eligible." (128) Researchers have yet to explore the effects of this program on the families who receive food stamps and other benefits. The big value for the federal government and for localities seems to rest in the numerous press releases celebrating the number of arrests made through use of Operation Talon. 3. The Drug Felony Lifetime Ban The federal welfare legislation encourages states to adopt rules excluding adults with drug felony convictions from receiving aid. As of December 2001, forty-two states had adopted the drug felony ban either in part or in full. (129) By 2005, the number of states that adopted the drug felony ban had dropped to thirty-two. (130) The states themselves chose the criteria they use to determine whether an individual is ineligible for government aid based on a past drug conviction. These criteria vary dramatically. In fifteen states, all drug related charges--from possession of small quantities to major trafficking--disqualify an individual from welfare receipt for life. (131) Poor adults in these states may receive neither cash aid nor food stamps. The other states that exclude convicted drug felons from public assistance have modified their exclusions in various ways. For example, some of the states disqualify individuals convicted of manufacturing or distributing drugs, but allow those who have been convicted of using drugs to remain on aid. (132) Some states allow parents who are participating in or who have completed drug treatment programs to re-qualify for aid. (133) In some states adults are ineligible for aid for the first twelve months after incarceration, but are eligible thereafter. (134) Only fifteen states bar those convicted of drug offenses from receiving food stamps for life. (135) As well as anyone has been able to measure, approximately 92,000 adults had been removed from the welfare rolls because of their felony drug convictions between 1997 and 2002. (136) According to data analysis by Patricia Allard at the Sentencing Project, California disqualified 37,825 adults from welfare receipt
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93 under the felony drug exclusion between 1996 and 1999. (137) (Thus, as the numbers above show, California accounted for more than one-third of the families excluded under the felony drug exclusion nationwide.) California modified its food stamp ban in 2004, (138) but maintained its ban on TANF benefits. While California's TANF program was supposed to make substance abuse treatment available to individuals who needed it in order to become work-ready, it is unlikely that mothers with substance abuse problems who know about the felony drug exclusion would reveal this to their caseworkers given the penalties. Rather than deterring welfare recipients from drug use, these rules-assuming they are known and understood by welfare recipients--may have the counter-effect of discouraging mothers with drug problems from inquiring about or seeking out help with their problems. It could be argued persuasively that the drug felony ban is unfair--that it punishes not only parents, but also their children. (139) It is also a harsh punishment for first-time petty drug offenders. (140) Furthermore, as others have noted, it is arbitrary to target drug offenders when individuals convicted of other crimes, such as homicide and rape, can receive benefits after serving their sentences. (141) Given the limited knowledge of the elements of welfare reform among welfare recipients, (142) most recipients are likely unaware of the felony drug exclusion. This lack of knowledge and the diversity of rules nationwide make it difficult for the felony drug exclusion to serve as a clear, unwavering deterrent to drug use. In some states the rules are so complex that it is unlikely any welfare recipient knows or fully understands them unless or until she finds herself subject to them. The drug felony lifetime ban again makes the welfare system an instrument of the criminal justice system. Here, again, the policies push those who are already economically marginalized to the periphery of society. B. CONFLATING POVERTY AND CRIME 1. Biometric Imaging and Data Sharing Between the Welfare and Criminal Justice Systems To prevent fraud, welfare administrators collect vast amounts of information about welfare recipients and their families. (143) Those who want to receive welfare have to fill out extensive paperwork at the time of their initial application and again every twelve months for their annual renewal of aid. In addition, they have to submit monthly and quarterly forms describing any changes in
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94 their income or household circumstances. Problems with paperwork routinely tie up assistance payments for recipients. (144) In the late 1990s some federal studies began to examine welfare cheating and welfare overpayments. Studies found that there were some individuals receiving food stamp benefits in more than one state and that it was possible some individuals might be collecting cash aid in multiple states. (145) There were also reports that government benefits were flowing to men and women who were incarcerated. (146) The 1996 federal welfare reform legislation required states to institute fraud prevention programs. (147) The legislation did not, however, specify what the fraud prevention programs should look like. The three most populous states--California, New York, and Texas--as well as some other states instituted biometric imaging, in most cases fingerprint imaging programs, as part of their welfare fraud control measures. These biometric data collection requirements have been applied, depending on the state, to recipients of food stamps, TANF grants, and General Assistance grants (available to indigent adults without children). Individuals who apply for cash aid or food stamps in these states are required to submit fingerprints--and sometimes photographs--through an electronic imaging system. New fingerprints are cross-checked with those on record to identify cases where a person might have tried to apply for aid in two different welfare offices. The stated goals of these programs are to deter and catch individuals who might attempt to "double-dip" by using aliases to open welfare cases. While there were several well-publicized California and Illinois cases of double-dipping welfare fraud between 1975 and 1983, discussed in Part II, infra, in all of those cases the welfare recipients had first signed up for aid before applicants were required to submit Social Security numbers and before extensive computer verification systems existed. With computerization in place, individuals would have great difficulty opening multiple cases: even if they used fake Social Security numbers, computer checks on the numbers would be likely to reveal earnings or assets associated with those numbers. The fingerprint imaging systems, then, are largely superfluous to existing efforts to reduce fraud. (148) But fingerprint imaging serves another purpose: the collection of biometric data scrutinizes and stigmatizes low-income adults in a way that equates poverty with criminality. In states with biometric imaging, applying for welfare mirrors the experience of being booked for a crime: after being interrogated about family and finances, individuals are photographed and fingerprinted. The fingerprint images are entered into statewide
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95 computer systems and then used to check for duplicate applications. Few duplicates--indicating one person submitting more than one welfare application--are found. In California, for example, the state identifies only three matches per month and typically refers only one of these cases per month for more extensive fraud investigation or prosecution. (149) A report by the California State Auditor in 2003 berated the Legislature for the fingerprint imaging system, stating it was impossible "to determine whether SFIS [State Fingerprint Imaging System] generates enough savings to cover the estimated $31 million the State has paid for SFIS or the estimated $11.4 million the State will pay each year to operate it." (150) Policymakers claim that the real motive behind fingerprint imaging is deterring, not merely catching, acts of fraud. There is, however, evidence that procedures deter not only fraudulent applications, but also legitimate applications by needy families, particularly eligible immigrant families. (151) The fingerprint imaging requirements create another hurdle that poor adults must clear in what is an otherwise demanding application process. In some counties in California, fingerprint imaging is done only on certain days, sometimes requiring aid applicants to make an additional trip to the welfare department and delaying the time between initial application and first day of aid receipt. (152) Individuals who apply for welfare but who choose not to follow through with the applications by providing their finger images may do so as an act of resistance to government authority, but may unwittingly be opening themselves up to additional government scrutiny. (153) While lawmakers and the public seem unwilling to devote tax dollars to providing cash benefits to the poor, there seems to be great willingness to spend money to police the poor--even when doing so appears economically inefficient or ineffective. Separate audits of the fingerprint imaging systems in New York, (154) Texas, (155) and California (156) determined that the systems were costly, caught few (if any) cheats, and served as both a hurdle and a deterrent to poor families in need of aid. In each case, less than onehalf of 1% of the new and recertified cases triggered a match--0.44% in Texas. (157) By instituting these programs, states signaled that crime control--specifically preventing the receipt of excess government benefits--takes priority over relieving poverty, relieving food insecurity, and containing state administrative costs. The fingerprinting programs, which contribute to the stigma of receiving government aid, may also deter needy families from applying. (158) It is generally true that only a fraction of those families eligible for food stamps receive them. (159) Still, most of
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96 the states with fingerprint imaging requirements in 2006 had fewer eligible families receiving food stamps than the national average. (160) Nationwide, in 2006, 67% of those individuals eligible for food stamps participated in the food stamp program. (161) The only states that employed fingerprint imaging and had a higher-than-average food stamp participation rate were Illinois, with a participation rate of 79%, and Pennsylvania, with a participation rate of 75%. The other five states that that required fingerprinting for food stamp participation had participation rates between 50% (in California) and 65% (Connecticut). (162) As the following Part illustrates, fingerprinting is by no means the most invasive proposal for regulating welfare recipients. 2. Drug Testing The welfare system is moving beyond efforts to punish drug use when it comes to the attention of law enforcement officers. Some states are becoming invasive in their search for drug-use among the welfare poor, and penalties against drug-users do not apply only to those actually convicted of drug-related offenses. Michigan, for example, instituted "a pilot program of substance abuse testing as a condition for family independence assistance eligibility in at least [three] counties, including random substance abuse testing." (163) Under the plan, all adults who applied for welfare were to be tested as part of the application process. In addition, every six months 20% of the recipients would be randomly tested. According to the Family Independence Program's Eligibility Manual: [A]pplicants who refuse to take the drug test without good cause and applicants who fail to complete the assessment process or do not comply with a required treatment plan within two months will be refused benefits. Aid recipients who refuse to submit to the random drug testing will lose a percentage of their benefits each month; after four months of failure to cooperate in the testing, such recipients will have all benefits withheld. (164) The drug testing pilot program was challenged even before it was implemented. A federal district court in Michigan preliminarily enjoined implementation of the pilot program in 1999 as constituting an illegal search, a violation of Fourth Amendment rights, because the testing was done even where there was no "particularized suspicion" of illicit behavior. (165) Between 1999 and 2002, however, the Supreme Court issued a ruling allowing suspicionless drug testing in public schools and broadening the category of "special needs" that might justify suspicionless searches. (166)
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97 In 2002, the Sixth Circuit lifted the district court's injunction, allowing Michigan to proceed with its drug testing program. (167) The Sixth Circuit extended the definition of a "special need" justifying suspicionless searches by grouping a number of social concerns into a special need among welfare recipients. (168) These concerns included "the safety of the children of families" receiving aid, "the risk to the public from the crime associated with illicit drug use and trafficking," and the need to insure that cash is "used by the recipients for their intended purposes and not for procuring controlled substances." (169) The Sixth Circuit decision declared that the drug testing did not intrude into welfare recipients' privacy interests because "it is clear that the plaintiffs have a somewhat diminished expectation of privacy.... [W]elfare assistance is a very heavily regulated area of public life with a correspondingly diminished expectation of privacy." (170) Indeed, welfare recipients have had very little privacy under U.S. welfare policies. Still, using these past government refusals to recognize the privacy rights of welfare recipients as justifications for further invasions placed the argument on a shaky legal foundation. The Sixth Circuit opinion stood in stark contrast to the welfare rights cases from the early 1970s, which suggested that the poor do not lose their fundamental rights even when their "brutal need" leads them to seek government aid. (171) Judge Batchelder's majority opinion in Marchwinski made clear that the government's desire to "get tough on drugs" outweighs both the needs of the poor, who will be dissuaded from seeking aid merely by the humiliation of the experience, and their privacy rights, as they lack the full rightsprotections of other citizens. When the Marchwinski case was reheard en banc, the panel of the Sixth Circuit Court judges evenly split on the decision. (172) By default, the original injunction granted by the federal district court was reinstated. Michigan's drug testing program was enjoined. (173) The possibility exists, however, that other states may attempt to develop such programs. The drug testing of welfare recipients particularly highlights the conflation of poverty and crime and the widespread assumption that poor women of color are the causes of crime. There is some dispute as to whether welfare recipients have higher drug use and dependence than the population at large. (174) Drug use among welfare recipients appears to be higher than drug use in the general population, but drug dependence, which interferes with relationships and work, may not be higher. (175) Further, even if some welfare
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98 recipients use drugs, statistics indicate that the vast majority of those who might be subjected to drug testing do not. (176) C. WELFARE FRAUD INVESTIGATIONS AND PROSECUTIONS Unlike sanctions and family cap rules, which are policed by welfare administrators, welfare fraud prosecutions rest mainly within the domain of the criminal justice system. For this reason, welfare fraud policies stand apart. Poor families usually turn to the welfare system only when they are in desperate need and cannot find employment to provide their most basic needs. However, the cash benefits available under TANF are too low to sustain a family. The gap between resources and need often leads welfare recipients to seek income to supplement their welfare benefits and to hide that income from the welfare office. In all states, a family who receives TANF and food stamps as its only source of income will find itself living well below the poverty threshold. In California, the maximum aid payment available to a family of three living in a high-cost county is $723 in TANF cash assistance and $361 in food stamps, for a total of $1,084. (177) These amounts would place the family at only 73% of the poverty threshold. (178) Because welfare recipients are required to work, many combine earnings and welfare benefits. In November 2007, the average TANF cash aid grant to California families was $528 and the average food stamp amount $126. (179) When it comes to violating the welfare rules, most welfare recipients are damned if they do and doomed if they don't. In short, the U.S. system both produces and punishes lawbreakers. As several studies have found, families relying on the welfare system cannot live on their cash aid alone. Because welfare benefits are so low, most welfare recipients have to rely on other sources of income to make ends meet. (180) As a result, almost all recipients engage in some kind of income-generating activity that they hide from the welfare office, and that could therefore be deemed fraud. This difficulty--perhaps impossibility--of living on welfare grants alone means that for many families receiving government assistance, their everyday activities of making ends meet amount to crime. California county welfare agencies are given the duties of identifying and reclaiming overpayments from recipients, whether those overpayments are due to recipient error or office error. The federal regulations require welfare offices to notify clients within forty-five days of becoming aware of a likely overpayment, (181) though this notice rule has regularly been violated by the counties.
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99 An overpayment to a family still on aid results in a 10% reduction of the family's future grants until the overpayment is reclaimed by the county. (182) The counties pursue cash repayments from individuals who are no longer receiving aid. When those repayments are not forthcoming, the counties may pursue a collections process, sometimes leading to wage garnishment for newly-employed former welfare recipients. Welfare cheating typically takes one of several forms. (183) The first involves working at a legitimate job, but failing to report all of the earnings to the welfare office. The second type involves "side jobs": under-the-table employment for cash that is not reported either to the welfare office or to tax authorities. A third type of fraud occurs when welfare recipients fail to report to welfare officials the presence of wage-earners in their household. Other fraudulent activities may include receiving aid for a child no longer in the household or, in rare cases, establishing false identities to collect aid for non-existent persons. 1. Welfare Fraud Investigations Welfare agencies aggressively investigate fraud before and after applicants receive benefits. Alameda County, like other California counties, conducts what is known as Early Fraud Prevention (EFP) by screening welfare applicants for possible fraud before a case is even opened and a check issued. Alameda County, however, engages in fewer EFP measures than some other California Counties. Orange County California, for example, has aggressively investigated applicants through EFP policies since the early 1980s. The county's fraud prevention efforts set the standard for the rest of the country. In fiscal year 1992-1993, 21% of the applicants for AFDC and food stamps in Orange County were referred for fraud investigation. (184) Welfare fraud investigations occurring after a case is open can be triggered in one of several ways. First, an investigation may be triggered when a data exchange based on a recipient's Social Security number identifies an inconsistency in information. Second, an investigation may be initiated by a welfare caseworker who suspects a problem. Third, an investigation may be triggered by an anonymous call to one of the state or county welfare fraud hotline numbers, or by any other form of tip provided to the welfare office. Most investigations in California are triggered by either a flag in the quarterly income verification done through the income eligibility database or by tips to the state or local welfare fraud hotlines. Welfare fraud investigations are commonplace. California investigated 2.44% of its TANF aid caseload each month between
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100 October and December 2007, though in some counties the rates of investigation were much higher. (185) Investigations may delve deeply into the lives of welfare recipients. While overstepping the welfare rules is a common practice among welfare recipients, welfare fraud investigators cast their nets broadly, routinely investigating welfare recipients who are not determined to be engaged in fraud. A 1999 Los Angeles Grand Jury Report found that "the statewide rate for the number of completed investigations with a
