Public defenders are pushing courts in a positive direction
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People file into Behavioral Health Court on Tuesday, June 25. Beacon photo by Derek Firenze [/caption]
While “The Carrot and Stick” approach of motivation is credited to philosopher Jeremy Bentham who wrote it down over 200 years ago, the American legal system still spends enormous amounts of time and money on the sharp sticks of prison, while carrots struggle to receive adequate funding. Local public defenders are hoping to turn that around.
In an attempt to move towards rewards, Attorney Jack Range, a local public defender, has filed a motion and order for the award of incentives in Jefferson County District Court’s Behavioral Health Court system. He said he’s seen resistance to evidence-based solutions from the court and hopes this motion will bring needed change
Behavioral Health Court (BHC) is a therapeutic court that began processing misdemeanor cases in Jefferson County in 2013 after successes with felonies in Drug Court a decade earlier.
“It’s given me a life instead of a life sentence,” wrote one participant in a locally produced publication called “A Little Book About Drug Court: What it is by those who know.”
The primary purpose of these courts is to reduce recidivism and the need for incarceration by offering an alternative to jail and probation through participation in education and treatment for nonviolent defendants suffering from mental health issues like substance use disorders.
“Punishment is one way to do it, but it’s not as effective as incentivizing people’s interest to remain clean and sober,” said senior defense attorney and director of the public defender's office Richard Davies. Davies helped bring therapeutic courts to Jefferson County with the Drug Court in 2003.
What’s been tried
The recent motion for incentives, aka carrots, stems from the fact that positive reinforcements in therapeutic courts have seemed lacking in comparison to sanctions, aka sticks.
Sanctions range from a few hours of community service to a few days in jail. A sanction might be given by a judge if someone arrives late to a meeting with their treatment group or fails one of the twice-weekly random drug tests required by the treatment program. Though individuals will often agree to Drug Court as a way to avoid jail time, sanctions can mean spending a day or two in jail.
On the surface, avoiding significant time in jail and gaining treatment might seem a sharp enough deterrent, but addiction is a cunning, baffling, and powerful disease. In one case Davies recalled, jail time sanctions were used so often on a defendant that, after years of slip-ups, when they left Drug Court and chose to receive traditional sentencing,they had already spent so much time in jail they were released for time served.
“He’d done 217 days in jail. That didn’t count all the days he’d done in in-patient treatment,” Davies said.
Not only can this kind of sanction fail to change behavior, it’s expensive. Based on data from 2022, the average annual cost for a Federal inmate was $116.91 per day.
Incentives, on the other hand, can cost little to nothing.
Verbal praise is the most common incentive used in our local therapeutic courts. It can take the form of affirmation, congratulations, or a round of applause. When done successfully, it can be a powerful motivator.
In Drug Court, Superior Court Judge Brandon Mack sits at the same table with people charged with felonies and treats them as equals. He has unique and individualized conversations with everyone about how their treatment is progressing, digging into the details of both successes and failures with reassurance and humor.
In Behavioral Health Court, where Range has filed for incentives, things look a little different. District Court Judge Mindy Walker sits up high on the dais and calls each individual to a seat below one at a time. She uses pretty much the same scripted questions and the same scripted reply at the end of their conversations, “You are in compliance. Good job.”
Beyond this verbal praise, there isn’t much carrot to sink one’s teeth into.
Solutions in sight
The motion for incentives seeks to change that with a list of what else the court could offer including an achievement certificate for a certain number of days sober, or a waiver of legal financial obligations, or even small tangible prizes like a bookmark, a movie pass, or a book. There are even more creative no-cost options like allowing the defendant to use the judge’s or prosecutor’s parking spot for a day.
All Rise is an organization that provides the definitive guidance used by more than 4,000 treatment courts nationwide. According to All Rise’s evidence-based research, therapeutic courts should be doling out incentives at a rate of four to one for every sanction.
“They’re alway being told what they did wrong, and they clearly responded differently when the judge was telling them all the good things,” said Marie Lane, a project director with Justice for Vets and a former public defender who works with All Rise as an expert on the standards as well as the role of defense in treatment courts.
One example of how the 4:1 ratio might look involved someone who might fail a drug test. She said a judge should start by praising the person just for showing up to court. Then praising them again for meeting the requirements of probation. Even with the failed drug test, Lane recommends praising them for showing up for the assessment itself before asking about why they failed the test and what measures in the future could help prevent that from happening again. After all that, because of the three successes, the individual could receive three tickets for each of their praise worthy acts to be put into a drawing from a fishbowl.
“The research has found that just the chance of winning something out of that fishbowl, being able to put your tickets in, the opportunity to win something even if it has no monetary value, is very incentivizing,” Lane said.
Both judges attended a recent national training by All Rise alongside the county’s elected prosecutor and the new therapeutic court coordinator, Rebecca Marriott. Marriott began working for the county less than two years ago while transitioning out of COVID restrictions.
In an interview with The Beacon, Marriott noted that the court is already doing some of the things recommended by All Rise with regular verbal praise and a gift certificate for those who graduate from the program.
She also noted that the county is in the process of creating a new incentive structure to offer more, while being careful with how incentives are offered.
“Because people get their feelings hurt about anything, if somebody gets one thing and a person doesn’t get the same thing it can cause harm to a client,” Marriott said. “We want to make sure that they’re equitable and that there’s a process behind it.”
She hopes to finalize the new incentive structure by the end of the summer. When asked specifically about the 4:1 ratio recommended by All Rise, however, she noted there is more interest in tracking numbers like recidivism rates to judge the program's success.
What kind of changes the new incentive structure creates will be difficult to tell from the data though, as Marriott noted recidivism numbers haven’t been kept track of before her time.
Despite this lack of local data, evidence-based studies from All Rise have already shown the benefits. Cited in the organization’s best practices manual is a study of 23 drug courts which reported significantly greater reductions in substance use and crime for programs that offered frequent and more consistent levels of praise and other incentives.
Those trained in older law patterns may find it challenging to shift from punishing to supporting those charged with crimes, but the positive outcomes cannot be ignored.
“Some amount of adverse back and forth is built into the system, so then when you’re in a collaborative round-table setting, it’s pretty difficult. But I think it’s difficult for lawyers everywhere,” Davies said.
“It’s a different way of meting out justice, ” he added. “More effective, more useful to the community, but very different.”
