ABA Commission on Effective Criminal Sanctions March 3 Hearing -Notes –

Arkansas

Witnesses:

David Guntharpe, Director. Department of Community Correction

Didi Sallings, Executive Director, Public Defender Commission

Milton Fine, Counsel to Governor Huckabee.

The Department of Community Correction (“DCC”) is a separate entity from the Department of Corrections, including for funding purposes.  The goal of the Program is to change behaviors and reduce the likelihood of recidivism.  The driving force behind the creation of the various diversionary programs described below was the rising cost of corrections.

The DCC was established in 1993 as the “Department of Community Punishment,” and was renamed in 2003 in recognition of its new orientation.  Its program has grown in ten years from 700 employees to 1200 employees, and it has resisted efforts to incorporate it into the Department of Corrections.  The offenders eligible for their programs are non-violent offenders sentenced to probation, or to a maximum of two years in prison.  They are reluctant to include violent offenders, because they do not want the programs to fail.

Therapeutic Community Program: in-patient treatment for nine months or more, which has reduced recidivism from 38 % to 31 %.  The funding for the programs is split between the CC program and the courts.  Mental health and substance abuse as a dual diagnosis issue is present for many offenders.

Other DCC Programs:

• Special Needs Program – 60 bed unit
• Technical Violators Program – started 2 years ago a pilot project for women offenders.  No technical violators sent back to penitentiary, but rather to community-based centers for periods of 60 days. Only 14% committed new crime and sent back to prison.  In March 2005 a special session of the legislature created new 300-bed program for men. In its first year 1200 people have been processed through centers, and only 2% have been returned to prison.
• Intensive Supervision – incarceration rate for probationers is at 5%.
• Sex Offender Pilot Program – started in 2005, and no statistics are available on the success of this new program.
• Transitional Housing program being started.
• Drug Court – state has 37 drug courts, but they are lacking residential treatment facilities for the participants.  The drug court team decides admission, but prosecutor has veto power.  Cost is only $7 per day, $9,000 per year, when compared to $15,000 for county jail.  Prison population is down because of the drug court program.

Dismissal of Charges and Expungement:  Once participants complete these programs, the DCC gives them a certificate of completion, and an order they can submit to the court to have the charges dismissed. Order also goes to ACIC and NCIC.   Persons who successfully complete a community program and have charges dismissed have no public criminal record.

Offenders need assistance with expungement process, because the police department (the criminal record reporting entity) is not updating records properly.  Also, offenders have to explain arrest record to employers even if no conviction is listed in the system.  Recently DCC discovered that probationers whose sentences do not include a fine have no “conviction” under Arkansas law, and may have their records expunged by the sentencing court upon successful completion.  The DCC has developed a form petition that probationers may use to facilitate their application for dismissal of charges.

Pardon:  If a person received prison time in Arkansas, a pardon is their only relief to expunge the record.  Once the sentence is completed, then a pardon request can be made.  Also, expungement does not lift legal barriers to employment, which can only be done through a pardon. Governor’s office has seen a pattern of people applying whose sentences were completed long ago, who cannot take the final step to rehabilitation because of their conviction record. Governor Huckabee puts a lot of time into the pardon cases.  Pardon applications reviewed by Parole Board, which gives non-binding advice.  Notice of application given to prosecutor, judge and victim. A person who has been pardoned may respond “no” when asked if he has ever been convicted.

In addition, Arkansas has a provision requiring the Governor to give 30 days’ notice before he grants a pardon since 1993.  The 2005 law applied this same requirement on the Parole Board, the 7-member body charged with making recommendations to the Governor on pardon applications.

Maryland

Witnesses:

States Attorney Joe Cassilly (Harford County)

States Attorney Pat Jessamy (Baltimore City)

Paul DeWolfe, Public Defender, (Montgomery County)

Jervis Finney, Legal Counsel to Governor Robert Ehrlich (State of Maryland)

Casilly:

Post-conviction Restoration Issues:  Other than pardon, no way to expunge record of conviction in Maryland, or get relief from collateral consequences.  However, persons given “probation before judgment” (‘PBJ”) may have charges dismissed and record expunged.  Maryland judges have sentence revision authority for five years after imposition of sentence, and may reduce to PBJ and accomplish expungement in that fashion.

SA Cassilly recommends that more states should give courts continuing jurisdiction over cases so that record may be expunged upon completion of sentence.  Other recommendations on simplification of restoration system, limitations on use of criminal records particularly in employment context, and in government contracting (see detailed recommendations).

Jessamy:

• In Baltmore City, 33-34% of cases not charged.  Pending legislation: record of arrest is automatically expunged if person not charged, and the offender is not required to waive right of civil action (which is currently required).
• Diversion Programs – Various diversion options, including community service, problem-solving courts.  Programs for non-violent offenders receive more public support.
• Violent offenders are also often excluded from diversion programs because of federal funding restrictions.  “Violent” very broadly defined in federal regulations.

The adversarial process does not always work well with therapeutic programs, because the defense is charged with getting the best results for their clients.  Public defenders do not always want to refer their clients to drug court, since admission to program requires guilty plea (and no prospect of expungement).   A possible resolution is timing; prosecution could give defense time for discovery before they are forced to decide about alternative programs.

DeWolfe:

• Notes problem of having no way to expunge conviction in Maryland.  Even those sentenced to PBJ must wait three years before being eligible.
• Montgomery County Reentry Program – Centered around Pre-Release Center in MC jail that prepares offenders for reentry.   Offenders allowed to work during the day and receive counseling and other services at night.  The program is for 6 – 9 months, and participants save all earnings from work in order to help them get housing after release.  County corrections chief Art Wallenstein and jail administrator Rob Green encourage a multi-disciplinary team approach prior to release. Case management plan for every release. Employment is the most important objective: Jail includes “One Stop Job Center.”  Probation office and public defender right in the jail.
• Law firms provide pro bono services to returning offenders through junior lawyers, working under supervision of PD, for clients reentering community.

Finney :

• Pardon program – Governor Ehrlich committed to program; 4 or 5 lawyers in his counsel’s office work on clemency cases.  They are looking to streamline the process, and the Gov. devotes several hours each month to reviewing at least 20 pardon applications. He has granted 133 pardons and a number of commutations in his three years in office.   Long application form and “grueling” review process.  Eligibility for felony offenders only after 10 years, and for more serious offenders 20 years.
• Re- Start program: Governor’s reentry initiative.  Programming for returning to community while still in prison, available only in two institutions because of funding limits.

Public Access to and Use of Criminal History Information – Sharon Dietrich, Community Legal Services of Philadelphia  (paper posted in entirety)

Connecticut

Witnesses:

State Representative Michael Lawlor

William Carbone, Chief, Court Support Services Division  (Probation)

Gregory Everett, Chair, Connecticut Parole and Pardon Board

Judith Rossi, Executive Assistant State’s Attorney

Political climate in Connecticut has generally been receptive to testing “things that work.” Longstanding tradition in the state regarding alternative sanctions.  Structural issues: both judges and prosecutors are appointed not elected; counties have no responsibility in justice matters; defender services centralized.  Sixteen-year-olds are prosecuted as adults. Because prosecutors are appointed career civil servants, there is less pressure to appear tough on crime.

Prison Overcrowding Act of 2004:  Prison overcrowding led to criminal justice reform being addressed by the legislature in 2004, and it expanded menu of alternatives for prosecutors.  Generally, violent offenders do 85% of their time and non-violent offenders do 50% of their time.  72% of CT prison population are minorities (African-American and Latino). Technical violators are driving up the prison population – CT offers an expedited parole revocation hearing process

Office of Alternative Sanctions – started in 1990 with very little research on what was effective.  Now, they have a $41 million dollar budget and oversee 6,000 offenders.  They have a series of contracts with private and non-profit organizations to assist with the programs.  Some their programs include:

1. Pre-trial Diversion
2. Adult Behavior Program: outside agency provides services
3. Alternative Incarceration Center: provide group sessions
4. Probation Transition Program: started in October 2004; have probation officers meet with clients within 90 days prior to release.  There was a problem with 2,000 technical violators being incarcerated each year.  The probation officers only have 25 cases and can devote more time to each client.  Offenders remain in this program for a 4 month period after release, then their cases are transferred to a traditional probation officer.
5. Technical Violator Program: cases on the break of violating are referred to a special probation officer, who also only has 25 cases in the special unit.  They try to assist the offender in getting back on track and avoiding incarceration.

They have found that courts are fond of programs (“if you create a program, courts will use it”), and two-thirds of offenders complete the programs.  A 1990 Univ. of Conn. Study showed that alternative sentencing resulted in lower re-arrest.  Also, gender specific programs have proven to work better.  2005 CT Legislative Study: followed clients for 14 months, and 72% did not re-offend.  For repeat domestic violence offenders, of those who completed intensive supervision program 75% had not re-offended three years later.

Recommendations:

1. Court based programs with use of validation tools
2. Continuation of services from incarceration to release
3. Strong Infrastructure: if the basic system (i.e. parole and probation system) is not re-structured, then the even the best programs will fail.
4. Higher probation/parole case loads result in more violations, because parole officers don’t have time to look at each case and want to reduce their case loads.
5. Community service should be infused
6. Ongoing Evaluation and Recidivism studies should be done.

Pardons – Pardon function historically independent of executive, process essentially legislative and administrative, board now combined with parole board.  Presumption that pardon will issue after certain number of years; in these older cases no hearing required (“paper pardon”).  Those who wish to apply earlier must seek hearing from Board, which considers about 400 applications each year.  50 % of the applications are granted full hearings, and 93% of the heard cases are granted a pardon.   Pardon board must give reason for pardon denial.  Pardon in CT results in sealing and “erasure” of record, a person may state that he/she has no conviction.

Proposed Legislation pending on Certificates of Good Conduct (and other programs that are one step short of pardon).  Pardon officials will sit down with private business sector to see how the certificate programs will be received.

Drug Courts:  Connecticut closed down all drug courts in 20003 – too expensive, labor intensive within court system.  Preference to make resources available at front end of system rather than create specialty courts. Drug intervention units paid for by courts.

Mental illness – general concern on part of prosecutors that too many people with mental illness being institutionalize in criminal justice system. Police have instituted crisis intervention teams, including both police and mental health professionals.

Transition from prison to community – efforts to make it “seamless,” by reestablishing services before release.

New York (Brooklyn)

Witnesses:

Charles Hynes, District Attorney, Kings County

Judge Alex Calabrese, Red Hook Community Court

Lance Ogiste, Counsel to the District Attorney, Kings County

Lisa Schreibersdorf, Executive Director, Brooklyn Defender Services

Ann Swern, First Assistant District Attorney, Kings County

Review of diversion programs in Kings County DA’s office:

• 1990 vs. 2005 – crime down 75%. Key: Community Involvement.
• All treatment courts end with dismissal of charges if program is completed.
• DTAP program involves in-patient drug treatment for repeat felony offenders otherwise headed to lengthy prison term; may include some convicted of violent crimes with victim’s consent.
• TADD: Dual Diagnosis program, involves diverting peoples with mental illness.
• Com Alert (King’s County DA Re-entry Program): collaboration with Parole system
• Red Hook Community Court:  Multiple approach where one judge addresses collateral issues.  There is child care facility on-site at Red Hook, so parents won’t be hindered in attending court.  Constitutional rights are first even in therapeutic court.  Community court makes defendant’s accountable, and it is not soft on crime. You need to see the needs of the community in order to develop this court.

Steps in creating Red Hook:

1. Research – provided by Center for Court Innovation
2. Single Judge is important
3. Track Record – must have statistics to support the success.

Defense Perspective:

• DA’s office includes defenders in planning in order to get their support in referring clients
• Brooklyn is unique, because all key players agree that minor offenders should not be locked up
• Prosecutors should ensure that high ranking officers in their office are dedicated to the programs
• Traditionally, alternative programs were set up to fail.
• Public Defenders insight is undervalued.  It is important for Prosecutor and Public Defender to have good working relationship
• Confidentiality must be protected in these programs when clients are provided counseling and other services
• Attorney consent should be received before interviewing client.
• Education of the Judiciary is critical!
• One Judge approach works
• Screening Process should ensure that nobody falls through the cracks
• Therapeutic courts interfere with ability to litigate innocence and bad search cases.  Also, the right to counsel can be overlooked.
• Constitutional rights of cruel and unusual punishment must also be monitored by courts, because the practices of some programs may amount to a constitutional violation.
• Defense role in re-entry: traditionally, they don’t follow up after sentencing.  However, Public Defenders could keep a link to clients through incarceration.
• Community involvement and jobs are critical to successful reentry