Taking Smart Justice to Scale
By: Stephen K. Talpins, Chairman of the Board and CEO
In 2010, NPAMC concluded a five part series of meetings where we established national consensus on a variety of issues. We noted that the majority of offenders suffer from alcohol and/or drug misuse issues and recognized that incarceration, while a valuable tool, does not change most of these offenders’ behavior long term. We agreed that community corrections programs requiring offenders to:
- abstain from using alcohol and drugs;
- participate in treatment as needed;
- monitor compliance through advanced technologies; and
- enforce program rules through swift, certain and meaningful sanctions
are critical to facilitating rehabilitation and improving public safety. A complete set of consensus statements can be found on the NPAMC website.
We identified three model programs that show great promise, DWI and Drug Courts, Hawaii’s Opportunity Probation with Enforcement (HOPE) Program and the South Dakota 24-7 Sobriety Program. We have written about these programs extensively, and will not do so again here. We helped developed a fourth model for DWI offenders that incorporates the principles underlying these three models. See Voas, R., DuPont, R., Talpins, S., Shea, C., “Toward a National Model for Managing Impaired Driving Offenders,” 106 Addiction 1205-1377 (July 2011).
The model programs reflect a shift in strategies to address offenders. Instead of focusing on the underlying crime and incapacitating offenders for a finite period of time, they direct attention to the offenders and strive to change their behavior for the long term.
Now we are ready to take the next step. We believe that the methods employed in the various models can and should be taken to scale and employed system wide for serious felony offenders. In some respects, the process already has begun. For example, South Dakota Judge Lori Wilbur presides over a DWI court that uses 24-7 monitoring. Additionally, many DWI and drug courts around the country random urine drug testing, continuous alcohol monitoring (CAM) bracelets, at-home breath alcohol testing, and ethyl glucuronide (EtG) and/or ethyl sulfate (EtS) tests for alcohol.
As many of our partners know, I envision a system in which EVERY felony offender who was charged with or convicted of an alcohol or drug related felony or any significant crime (including all serious felonies and all crimes of violence) participates in a multi-tiered program while on any kind of release, including pre-trial release, probation and parole. The offenders themselves would pay for the system and be assigned to tiers (which they may move through as needed) according to their past and performance while on release. Few disagree with this concept; the devil, of course, is in the details. Still, I believe the system is easier to implement than most people believe. For example, we can implement a program where:
- Scope/Eligibility: Every felony offender (including those required to serve time in prison) with (1) a demonstrated alcohol or drug misuse problem; or (2) who commits a serious felony or violent crime is required to participate;
- Pretrial Release: All participants are monitored with HOPE style drug testing (offenders would be assigned a color and required to call in every morning. If their color was named, they would have to appear and submit a urine sample), and regular random breath testing or EtG/EtS testing. Offenders charged with DWI offenses who have three or more prior DWI convictions are monitored with CAM bracelets;
- Prior to Sentencing: All offenders are evaluated for alcohol, drug and mental health issues using validated tools prior to sentencing;
- Focus: Courts prioritize public safety and rehabilitation over longer term incarceration. They employ evidence-based practices instead of simply sending people to jail or prison to punish them;
- Incarceration: Jail and prison are used to incapacitate offenders for a defined period of time and to “send a message” (as is currently done). However, courts are educated about the value of community corrections, provided with the technology necessary to put the “supervision” in community corrections, and given the treatment tools necessary to make it work (with an effective community corrections system, they surely would be more willing to reduce their reliance on incarceration). Additionally, all offenders sent to jail or prison are required to participate in a re-entry program incorporating the programs and concepts discussed in the following paragraphs;
- DWI and Drug Courts: Every offender who qualifies for and needs a DWI or drug court is required to participate in one that uses HOPE style drug testing and 24-7 style alcohol monitoring (the offender has to report to report to their local sheriff’s department every morning and every evening for a breath test or wear a CAM bracelet). DWI and Drug Court programs are extremely effective and should serve as the “backbone” of any comprehensive program addressing high need substance abusing offenders;
- Other Offender Monitoring: Every eligible offender who commits a violent offender or serious felony who does not qualify for a DWI or drug court is monitored for a period of time to be determined by the court using HOPE style drug testing and regular random breath testing. Research shows that these types of monitoring programs can be effective, even in the absence of treatment, since they deter prohibited usage;
- Warning: Every offender placed on supervised release is warned that EVERY violation results in jail time. Research demonstrates that these types of warnings have a strong deterrent effect (if they are carried out when necessary);
- Abstinence: Every participating offender is required to abstain from alcohol and drugs (other than those prescribed by their physicians) during their time of supervision. While alcohol and drugs do not “cause” crime, research clearly demonstrates that addressing offenders’ alcohol and drug misuse issues reduces recidivism dramatically;
- Treatment and Behavioral Triage: Offenders participating in DWI or drug courts participate in treatment programs as required by their respective DWI or drug courts (they are required to participate in treatment because they are, by definition, high need). All other offenders are offered the opportunity to participate in treatment, but are not required to do so. Those who choose not to participate are required to do so if they fail two or more alcohol or drug tests (behavioral triage). This allows for targeting of limited treatment resources among the lower risk population.
- Victims: Offenders are expected to provide restitution for victims as required by law. In addition, courts and other officials educate victims about how community corrections protects the public;
- Violations: Offenders who violated by failing to report for testing as required or by testing positive for alcohol or drugs would be subjected to swift, certain and meaningful (but proportionate) sanctions including, at a minimum, one night in jail;
- Adaptive Programming: Monitoring and treatment is adjusted in a systematic way based on offender performance (compliance results in fewer burdens and lower intensity; poor performance results in greater intensity);
- Employment/Offender Pay: Offenders are required to obtain and maintain employment and pay for their monitoring in exchange for the privilege of being on community release.
Such a system would be far less expensive than our current system and far more effective. While the justice system is not well-suited for preventing crime, with some adjustments, it can be the best vehicle for addressing those who commit it and break cycles before they start. We call this strategy “Smart Justice.”