Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
The cover story of this issue highlights the release of NACDL’s report on problem-solving courts: “America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform.” First and foremost the report seeks to foment a much-needed national conversation concerning the misuse of the criminal justice system to address public health issues. Recognizing that this goal may be elusive in the foreseeable future, however, the report analyzes the problem-solving court phenomenon that has swept the nation in the past two decades. With a particular emphasis on drug courts, the report provides an in-depth look at how these courts function, noting that while they often offer a way to avoid draconian penalties, many impair the traditional relationship between attorney and client, and denigrate fundamental rights. It also offers a comprehensive set of recommendations for reform designed to ensure that the problem-solving approach comports with ethical practice and constitutional standards of fairness and due process.
The article by Steven Yermish (page 14) examines the findings and recommendations of this landmark report.1 Defense lawyers who are grappling with these new kinds of courts may be interested in the process that led to this report and the personal impressions of those who are responsible for it. Eight criminal defense practitioners — two of whom are also full-time law professors — set out on a journey of discovery that crisscrossed the country. Along the way they met some of the most dedicated professionals and caring judges, but also uncovered some of the most disturbing practices ever to afflict the adversarial system.
The process began in June 2007 when NACDL’s leaders considered a proposal to study the problem-solving court movement. Immediately, profound disagreements emerged over the fundamental question of whether this is a valuable innovation. It quickly became evident that the views of these seasoned defense attorneys were colored by their unique experiences — and their experiences varied widely depending upon location. In some cases, clients could opt for treatment and thereby avoid a prosecution altogether. In others, the price of admission to treatment was a guilty plea and a waiver of virtually all rights to contest the charges or the police action that led to arrest.
To try to figure out just what is going on in these courts, and to assess them from a defense perspective, NACDL’s Executive Committee decided to recommend the creation of a Problem-Solving Courts Task Force. Thus began a unique volunteer effort conducted by a remarkable group of defense lawyers: Adele Bernhard (New York), Jay Clark (Ohio), Rick Jones (New York), Elizabeth Kelley (Ohio), Marvin Schechter (New York), Gail Shifman (California), and Vicki Young (California).
Soon after the task force began to delve into the prodigious research, it became clear that the original study plan was inadequate. There was simply too much to learn and too many variations in practice. With support from the Foundation for Criminal Justice, the Ford Foundation and the Open Society Institute, a more ambitious plan emerged. Rather than visit a few sites, the task force would travel throughout the country, and conduct formal hearings, inviting a wide range of witnesses embracing every aspect of the criminal justice system, including defense lawyers, judges, prosecutors, treatment professionals, and program participants.2 Their voyage of inquiry took them to San Francisco, Miami, Tucson, New York (twice), Milwaukee, Austin, and Washington, D.C. As the sheer volume of information grew to unmanageable proportions, the task force sought the assistance of a project reporter, Professor Joel M. Schumm, who assumed primary responsibility for digesting and evaluating the testimony. He eventually became a full task force participant and the principal drafter.
What was most unique about the process was the preeminent role played by each commissioner. To be sure, considerable staff support was essential. To conduct hearings on this massive scale required extensive planning to identify and invite witnesses, and handle the myriad logistical requirements.3 Throughout the project, however, the task force members guided the inquiry, identified the most knowledgeable witnesses, and ultimately deliberated upon every finding and recommendation. This process entailed endless teleconferences to discuss process and witness selection, countless hours of preparation for the hearings, including review of thousands of pages of materials and draft testimony, participation in the hearings, and extensive post-hearing deliberation, writing and editing. It is unlikely that a group of bar association volunteers has ever contributed so much to a public policy study. While many groups have a lot to say about problem-solving courts, none base their pronouncements on such an extensive testimonial record.
What was it like to participate in a project of this magnitude? Here’s a profile of NACDL’s Task Force on Problem-Solving Courts, and some of their reflections on their work.
Joel M. Schumm, is a clinical professor of law at the Indiana University School of Law — Indianapolis. He has litigated more than 75 appeals, largely for indigent defendants through the Marion County Public Defender Agency. He teaches courses in Legal Analysis, Research and Communication, as well as Criminal Procedure, Juvenile Justice, and Legal Process. Among his many prior bar activities Joel served as the Indiana Team Leader of the American Bar Association’s Death Penalty Moratorium Implementation Project.
All persons are equal, but the members of the task force would uniformly agree that but for Joel’s participation as reporter, the project would have stalled. The job of analyzing the testimony and developing a draft report to reflect the task force’s conclusions fell largely upon his shoulders. Joel estimates that he devoted more than 500 hours to the project, candidly acknowledging, “I knew there were a number of hearings and lot of reference material, but I still underestimated.” Although the project was “pretty overwhelming,” he would do it again, “provided I knew I would have people of similar caliber to work with.”
Joel’s personal thinking in many ways mirrors the consensus view that emerged. Much of the testimony supports the view that “drug courts are hopelessly broken and could not be fixed,” but “it seemed necessary to give recommendations [for improvement] because it is unlikely that the courts will be abolished.” He believes “decriminalization would be a big step in the right direction,” but, in the interim, “the ‘staffings’ should be opened up or go away.” Reflecting upon his overall experience, which was his first involvement with NACDL, Joel observes, “I knew little about NACDL, but this project has certainly instilled a very positive impression with me. This was not just recycling reports and articles. Most of the reports comes from the hearings, which is a novel but ideal way to tackle the issue.”
Adele Bernhard, has been a criminal defense attorney throughout her career, which began as a staff attorney for the Legal Aid Society in New York. She currently serves as associate professor of law at Pace University Law School in White Plains, New York, where she teaches a Criminal Law Clinic. Adele accepted the opportunity to serve on the task force because for a long time she has been interested in the difficulties of defending clients in problem-solving courts. One of the most fascinating things she learned from the process was to see how pervasive they are: “I was surprised to learn just how many [problem-solving] courts exist, and how much money and resources are being devoted to drug courts. I was amazed to see how invested the criminal justice community is in them.” Her overriding hope is that “the report will start conversations about treating drug addiction as a health problem not as a criminal justice problem. I would like to see conversations about the role of the courts in solving behavioral issues and in the role of the defense attorney.”
Jay Clark, one of the three co-chairs, is a sole practitioner based in Cincinnati, Ohio. He practices throughout Ohio in both state and federal courts, devoting a substantial portion of his practice to the representation of the indigent. He contributes substantial time to bar activities, including service as an NACDL director and member of the Counsel of Affiliates. He also has a long record of service to the Greater Cincinnati Criminal Defense Lawyers Association and the Ohio Association of Criminal Defense Lawyers.
Rick Jones, another co-chair, is executive director of the Neighborhood Defender Services of Harlem (NDS) of which he is a founding member. Rick previously served as deputy director and chief of litigation at NDS. He is also a lecturer in law at Columbia Law School, a director of NACDL, and a co-chair of NACDL’s Indigent Defense Committee. Rick says that when he was asked to serve as co-chair, he had little direct experience with problem-solving courts, but “my staff lawyers [at NDS] all roundly criticize these courts, and I continue to believe that these are public health, as opposed to criminal justice, issues.”
When asked to reflect upon the impact he hopes the report will have, Rick said, “My three hopes for this report are that it advances the campaign for decriminalization and the movement to a public health paradigm; that admission criteria are made objective, transparent, and open to the high-risk client; and that studies are commissioned on the availability and fairness of the programs to people of color, the poor, and immigrant communities.” In fact, with respect to this last aspiration, Rick says, “I hope someday to chair a similarly large, equally impactful and thoroughly groundbreaking NACDL task force on race and the criminal justice system.” He thinks that “this project, in conjunction with the Misdemeanor Report,4 has given NACDL a stature, voice, and level of credibility on indigent defense issues that has been missing. Combine that with the good work we are doing around national security and white collar issues, and I am excited about the future and the possibilities it holds for meaningful change.”
Elizabeth Kelley, is private practitioner in Cleveland, Ohio. Her practice is exclusively devoted to criminal defense at the trial and appellate level in state and federal courts. She emphasizes the representation of people with mental retardation and mental illness. Elizabeth is active in many bar groups and many civic groups, notably serving as a director of NACDL and president of the Arc of Greater Cleveland, which advocates on behalf of people with intellectual disabilities.
In fact, Elizabeth’s keen interest in mental health issues is what motivated her interest in serving on the task force. “I have a special commitment to representing people accused of crimes who have either a mental illness or some sort of intellectual disability.” She notes that these people “often commit crimes when they are off their medication or have not been properly diagnosed, and do not have the same culpability as other individuals.” Reflecting on her task force experience, Elizabeth notes that “mental health courts, as we discovered during our hearings, recognize this and strive to distribute individualized justice, giving the accused the support they need and, at the same time, trying to keep our communities safe. But the tragedy is that all too often, those with mental health issues or intellectual impairment are swept into the criminal justice system.” As a result, Elizabeth emphatically believes that “we as a society must adequately fund and support community-based programs so that persons suffering drug addiction and mental illness or intellectual disability are kept out of the criminal justice system where collateral consequences will follow them for the rest of their lives.”
Marvin Schechter, the third co-chair, is a sole practitioner in New York City. Marvin has been a criminal defense attorney throughout his career. He is beginning his third term as an NACDL director, currently serves on NACDL’s Executive Committee, and has a long and distinguished history of bar service in New York State. He currently serves as the vice chair of the New York State Bar Association Criminal Justice Section. Marvin, who came to the project with no previous experience with problem-solving courts, said that his views changed several times during the course of the study. He says that “the most fascinating thing I learned was how life-altering the work in a drug court was for all participants — the clients whose lives were changed, cynical career prosecutors who became believers and changed their perceptions of our clients, and judges who also realized the virtues of providing help as opposed to punishment.”
Marvin expresses his goals for the project by noting, “I hope that the drug court model will be changed to permit defense attorneys to advocate without the angst of potential ethical violations, and that prosecutors will end their gateway function so that we get people into these courts who have serious problems.” His says the project also changed his view of NACDL: “I always knew we could do fabulous things to help clients and attorneys, but this project has taught me that we can also soar to even greater heights in taking on issues and meaningfully contributing to change.” He points out that this project has contributed to the well of knowledge surrounding this area, identifying problems and proposing solutions to improve the system. “Most importantly, we have been honest, forthright, and acted according to principle, which is no small matter in this day and age. We have brought honor to NACDL, and set a standard for the future.”
Gail Shifman, is founder and principal of Shifman Attorneys, based in San Francisco. Gail has a broad-based practice, ranging from complex white collar and environmental crimes to state court misdemeanor and juvenile delinquency proceedings. She also devotes considerable time to representing the indigent accused. Gail is a director of NACDL, and is active in the International Bar Association, where she is a leader of the Business Crimes Committee. Gail expresses great pride in her work on the task force, even though “the commitment required to produce the report was enormous.” She was particularly impressed by the passion and commitment of her colleagues, noting that “everyone on the task force came to the table with differing views and experience about problem-solving courts, yet worked together seamlessly to produce a report encompassing the wide scope of these courts and the differing and sometimes troubling outcomes produce by them.”
In reflecting upon the testimony, Gail was heartened that “individual successes can be achieved within the overarching systemic failings of problem-solving courts.” She says that the process “made me proud to be part of NACDL and is a testament to the breadth of the work that the organization can achieve through the efforts of its volunteer members.” Interestingly, Gail also says that the experience has personally impacted her own approach in practice. “I now approach cases differently when clients have (or have had) drug problems. I now weave in a discussion during negotiations, pointing out the drug history and the criminal justice system’s missed opportunities to alleviate the problem. I point out the societal failures and talk about the need to treat the underlying problem with treatment rather than incarceration.”
Vicki H. Young, a criminal defense attorney throughout her career, is of counsel to the Law Offices of Ephraim Margolin in San Francisco. She has a broad criminal defense practice in both federal and state courts, and also devotes significant time to the defense of the indigent. Her practice experience runs the gamut from capital defense to post-conviction litigation to attorney discipline matters. Vicki has served as a director of NACDL and has a long record of service to many other bar groups, including the California Attorneys for Criminal Justice.
Notes
- Read the report at http://www.nacdl.org/drugcourts. Scroll down the page and click America’s Problem Solving Courts: The Criminal Costs of Treatment and the Case for Reform.
- The transcript is on the NACDL Web site. Go to http://www.nacdl.org/drugcourts. Scroll down the page and click Hearings Transcript.
- Many members of NACDL’s staff contributed to this project. The three without whom the project would not have been possible are NACDL’s Director of State Legislative Affairs Angelyn Frazer, her predecessor in that position, Scott Ehlers, and former National Affairs Assistant John Cutler.
- Read Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts at http://www.nacdl.org/misdemeanor.