Transcript: Sentencing Seminar Series - Evidence-based sentencing
Steve Austin, Master of Ceremonies:
Well ladies and gentlemen, good evening. To kick proceedings off this evening, Uncle Joe who is a Turrbal Elder of Brisbane is going to perform the traditional Welcome to Country.
Uncle Joe, Turrbal Elder – Brisbane:
Thank you. It’s great to be here as a Brisbane Elder, and I’m one of eight Elders that are in Brisbane. There’s 20 of us all together registered at the Parliamentary Annex. We’re pretty busy right across the board as Aboriginal Elders. We’re into education. I’ve been with Christian Brothers, Catholic Ed now for 17 years looking after our young people and making sure they get a good education, something that I didn’t get on Cherbourg Aboriginal Community.
I hardly went to school. I didn’t see a need for education, and we were told that our brain was smaller than white Australia anyway, so they weren’t going to teach us much. So we only got Grade 4 education, just enough to write a letter back to the superintendent for permission to go home and see our family when the government sent us out to work and we were just labourers. I got a trade later on when I came to Brisbane, and I know Brisbane like the back of my hand, but all this new section down here – I’m just looking at this beautiful room. It’s a lot bigger than our Ipswich Court in Ipswich or Richlands.
I’m an Elder on Murri Court at Richlands. I’ve been on Murri Court now for six and a half years. We’re waiting for more funding to continue this year to do a lot of great things in Inala and around that part of town, and Ipswich as well, with our young people. Working with Catholic Education we have now got about 7 flexi learning centres throughout the state, and those young people are dropouts from school. And some of them in Ipswich, we’ve got a crèche there, young mothers come and they do their computer courses and things like that.
So we’re all about community justice and education for our community, not only Aboriginal young people, but right across the board. I’ve done a lot of work as an Aboriginal Elder with the Sudanese and the refugees at Dutton Park, helping them understand our English and the Murri way, the Aboriginal way. Black fella way in other words. If you say black fella here I think you’ll get your head bitten off. Elders get away with it a little bit. But north of Rocky you can say ‘How you going black fellas,’ but down here you’ve got to say ‘Murris’. We’re all Murris down here.
So I’ve learnt a lot being an Elder on Murri Court for six and a half years. I learnt from the Magistrate what I can say and what I can’t say. Magistrate McLaughlin is a fantastic Magistrate at Richlands. We’ve done a lot of work with him over the years improving relationships between white Australia and Aborigines. It’s been really great.
So we’re pretty busy. And I’m flat out with grandchildren. So I’m their RACQ at the moment. I do all the maintenance and all the running of the cars. They like to have cars but they never have any money either. ‘Well ring poppa. He knows Brisbane like the back of his hand’. So I’m their GPS as well. So if they want to come to town I tell them which shortcuts to go and where you can get away with parking and where you can’t. Because it pays to be a good friend of Graham Quirk, and him and I are really good friends and I get on really well with City Hall. Hopefully at NAIDOC Week this year we may get the key to the city, because as you know a long time ago there used to be boundaries for Aboriginal people here in Brisbane and later on became with that terrible man Captain Logan who was our first governor – he was the worst governor we ever had.
So I did a lot of reading when I got educated, and I ended up in Murri Court. I started to inform our young people what their entitlements are and if they get a good education they can be better than me. At the moment they’re still getting knowledge from us Elders that we need to pass on to them.
So can you just turn to one another and say ‘Yaama muli, yaama muli’. Hello and welcome to this special place. It is a wonderful place. It’s special. Always been special to me this George Street. I used to live down the road in a little room there and kitchenette right opposite McDonnell & East, and that’s where I got all my clothes from. So I spent two years here in George Street, and I used to go up to Mount Coot-tha and camp on weekends. So I know Brisbane like the back of my hand. I can tell you a lot of history of Brisbane, your history, and tell you a lot about my history as well as a Turrbal Elder.
So in closing I say yaama muli, which means hello, welcome to this special place and may God bless us all in our meetings, in our yarning time, and in our networking that we can work together like we do on Anzac. When my grandfather came back from the war on a light horse, we worked together all as one on Anzac. Let us work together in our court system for all of us. As Cathy Freeman ran for all of us. We are one people. One mob. Thank you very much.
Thank you Uncle Joe. Well good evening and welcome to the Queensland Sentencing Advisory Council seminar series. It’s a really important event for the Council. Tonight is the Council’s first public presentation since it was reinstated by the Attorney-General this year. It’s also the first in a series of events that will help increase Queenslanders’, the public’s knowledge and understanding of the sentencing process. It’s very brave of the Council to invite a journalist to come along, because we’re usually the antagonists or the protagonists of something like this, prodding judges, complaining about the weak sentences or otherwise. So it’s really to be welcomed. We have 100 people joining us via the web stream through their offices and courts around Queensland. So assuming the NBN is doing its job – cross fingers – welcome to you on the stream as well.
My name’s Steve Austin. I’m a journalist and radio presenter for the national broadcaster, the Australian Broadcasting Corporation. I present the mornings program on ABC radio in Brisbane here from 8:30. I look forwarding to you ticking the ratings box. I’m also your master of ceremonies.
I want to specifically acknowledge the traditional owners of the land on which we come together for this event, the Jagera and the Turrbal nations, and pay my respects to the Elders past and present.
As you’re no doubt aware, there are a large number of distinguished guests for tonight’s event. We’ve got a very good cross-section of the legal community, the criminal justice system, victim and defender advocacy groups, and the community I’m very glad to say. A particular mention to the Honourable Chief Justice Catherine Holmes. Chief Justice welcome. It’s very good to have you here. I’d like to make special mention of the large number of judges and magistrates, members of the Queensland Police Service and the legal profession who are here as well. These are the men and women who are the frontline of sentencing in this state. They’ve got a difficult job to do, often made more difficult by people like me, and bear the brunt of public anger when it comes to sentencing outcomes.
I know the Council is hoping that these series of seminars will open up the process somewhat so that the people of Queensland, if they have to deal with or hear about the judicial system, the sentencing system, get some sort of understanding of the work, the expertise, the professionalism, the emotional energy that goes into making decisions that affect people’s lives.
Before we begin the formal address, I’d just like to acknowledge a number of members of the Sentencing Advisory Council, and I might just ask one in particular please, Elena Marchetti, who’s Professor at Law at Griffith, to stand. Elena, thank you very much. Most of you probably know Professor Marchetti. She’s Professor at Law. She’s the deputy chair of the Queensland Sentencing Advisory Council. We’re very glad to have her here. She researches areas of criminal law, Aboriginal and Torres Strait Islander peoples in the justice system, and domestic and family violence. And we’ll be hearing from Elena later on. Elena, thank you so much.
Unfortunately the council’s chair James Morton is unable to be here tonight. He sends his apologies. James lives in Bowen in North Queensland, and they had a very angry storm come through there, and like so many he was very severely hit. I understand he’s now working to overcome the damage to his property. And if I’ve got the thing right, I think James may have lost his barrister’s wig here in Brisbane. ABC radio put out a call on the air. He was desperate to find it. So I’m not sure if it’s been handed in, but James if you’re watching on the stream, hopefully ABC has done its job. If not let me know and we’ll get it redressed.
James is a defence barrister practicing mostly in regional and remote areas of the state and the Northern Territory with Aboriginal and Torres Strait Islander clients. He’s also a lecturer at QUT focusing on criminal law, principles of sentencing and evidence law. James, Elena and the council are also supported by a secretariat who are fantastic, based at the State Law Building just a few minutes’ walk from here.
Before we get started, I need to run you through a little bit of boring housekeeping. Firstly as a courtesy to our speakers tonight, can I ask you just to check now your mobile phone. I like to say that if anyone’s mobile phone goes off they’re offered to come up and make an impromptu speech in front of their peers on an area of law they know nothing about. So please check your phone, make sure it’s off. If you haven’t already done so, please do it now. Most of you I’m sure are aware of where the restrooms are. Both men’s and ladies’ are on the floor outside. They’re clearly signposted. In the unlikely event of an emergency, please follow the directions of the after-hours security officers on site. Please do not use the lifts, and instead use one of the two flights of stairs located beside the courtroom next to the restrooms or courtroom 5. I’m hoping you know where courtroom 5 is.
If you need to leave the room during the presentation, I ask obviously that you show respect. We have a large group of people engaging with us via the stream and on the web, and it’s being recorded for future use. I should also mention that each of the speakers – today’s special guest was on ABC radio today, and we’ve uploaded her interview on the web if you want to hear the uneducated questions from a journalist about sentencing. But Peggy was fabulous. In fact you can always tell how someone relates to people when you get a response from the audience, and we got all sorts of wonderful statements about what Peggy had to say and more. So this series is really welcomes from the perspective of the media who talks a lot with people who often don’t understand the legal process when they meet it.
Now that the formalities are out of the way, let’s kick things off. Tonight’s main speaker is a woman I’m sure you know. She’s considered one of the most influential minds in solution focused courts. It’s a movement. And she has more than three decades’ experience as a judicial officer, and her work has contributed to what’s been described as a new genre of justice. Please join me in welcoming former Californian Supreme Court Judge Peggy Hora.
Peggy Hora, former California Supreme Court Judge:
Thank you for that beautiful introduction Steve. I appreciate it. It was fun being on your program this morning.
It’s lovely to be back in Brisbane. I was with you last year around this time, just as the council was getting together, just as the new department was getting together, and I had the pleasure of sort of kicking off the first interdisciplinary discussion about where we go on this quest for sentencing.
So I sort of put together these sentencing aspirations. So the traditional purposes of sentencing have really been updated to add reduction of recidivism, meaning people getting rearrested after they’ve been through the process once, as a specific sentencing goal. The courts should employ effective, research driven, evidence-based, proven initiatives that reduce recidivism and victimisation in the community. And then when the criminal justice system focuses on recidivism – it’s really a hard word to say – recidivism reduction, it calls upon good research, best practices and courtroom techniques to reach that goal.
So one technique we’re going to talk about first is what’s been called procedural fairness or procedural justice, and essentially it says the manner in which justice is done is just as important as the outcome. So if someone perceives the process to be fair, then they’re more likely to comply with court orders, they’re more likely to feel positive about the experience, and they’re more likely to walk away a satisfied customer if you will. And there’s a website I’ve put up there for you, proceduralfairness.org, so that you can take a look at that if this interests you.
Procedural fairness provides voice, the ability to participate in the case. I was 38 years old when I took the bench, so I was quite a young little whipper snapper, and I thought that the way to do things was as quickly as possible, efficiently, how many cases can I move through – you know, sort of like McJustice, one million served. I was going for that golden arches goal. I would start out with small claims in the morning, no lawyers allowed, minor amounts of money generally, and I would call all the cases where the defendant hadn’t shown up. Default case. Great. So I’d call the plaintiff up and say ‘It says here that the defendant owes you $400. Do you have any proof that you gave that person $400?’ ‘Yep. There it is. My cancelled cheque’. ‘Okay. Let me see that’. I take a look, that’s great. I say ‘Okay. Judgment for the plaintiff plus actual costs. You’ll receive a copy of the judgement in the mail’. Boom, boom, and they’d still be sitting there. I’d say ‘Well you just won. Get on with you,’ and they say ‘Well I want to tell you how long it was he didn’t pay me’. ‘It doesn’t matter, because you already won’.
Well we would go through this, and finally it occurred to me they just want to tell their story. So I’d make them do it as fast as possible, but at least I let them talk, which I didn’t when I first started out.
Neutrality. You have to be sure. You have to feel that there’s no insider stuff. What happens when we aren’t careful is for instance if you go to a different part of the state to make an appearance, you’re an attorney, and the judge is sitting there and your opponent walks in ‘Joe. How’s the wife and kids? What happened with the basketball game the other night,’ – you know, there’s all this little insider stuff – it doesn’t give you a real confident feeling. So that appearance of neutrality is extremely important.
Respectful treatment. That can’t be over-emphasised. If you’re respectful to someone they tend to be respectful back to you, and that’s what you want. And finally a trustworthy authority, a person who is benevolent, caring, sincere and sincerely likes working with the litigants. And if you provide that kind of atmosphere, you’re going to have a lot better outcome.
Fairness is key to everything we do in the courts. People who win but don’t feel they were treated fairly are unhappy with the procedure.
Tom Tyler at Harvard University has done a lot of this work in procedural fairness. And you look at what’s most important. Is it winning the case? No. It’s was it fair? When I walked away did I feel the process was fair? And this was true whether you were the plaintiff, the person who had come to court in the first place, or the defendant, the person who sort of unwillingly had to come to court. Either side, fairness was the most important thing.
We’ll see if we can do this. This is a task for Capuchin monkeys, and the monkey is supposed to take a rock and put it in the hand of the researcher, and if they do that the reward is food. Now the monkey on the left gets a piece of cucumber. Cucumber is fine. You know, he’s perfectly happy with that. But the other guy is getting grapes, and grapes are evidently a very big deal in monkey world.
[Start of video]
So she gives us a rock to us. That’s the task. And we give her a piece of cucumber and she eats it. The other one needs to give a rock to us, and that’s what she does. And she gets a grape and she eats it. The other one sees that. She gives a rock to us now and gets again cucumber.
She tests the rock now against the wall. She needs to give it to us. And she gets cucumber again.
[End of video]
I think maybe something’s wrong with the rock right. Supposed to get a grape. Not so much. This time he doesn’t even taste it.
So basic fairness. Even a monkey knows about fairness right?
Now let’s see if we can get all this going again.
Along with fairness, cultural competence, particularly in our growing multicultural societies, is incredibly important. I know you know these figures probably better than I, but if you look at the rates of contact with the criminal justice system for Aboriginal or Torres Strait Islander people, it is totally out of proportion. With only a population of 3.6 percent you have almost a third of people in custody, indigenous people. So we have to be not only aware of but find creative ways to address how are we going to take care of this imbalance in our court system.
It all comes down to Aretha Franklin doesn’t it? You know, R-E-S-P-E-C-T. Respect is the most important thing along with these other held beliefs. So proactive troubleshooting. The judge directly addressing the progress of a person has incredible bulk to it. An open courtroom. Anybody can come in and see what’s going on. Transparency. That’s how you build trust and confidence in the judiciary. All observe the consequence of what happens in the courtroom. And a judge who is genuine, caring, consistent and firm.
Active listening. Nothing’s worse than a judge on the bench – now it’s with computers. In my day when I first started it was just taking notes. I would have my nose in my notebook making notes and not looking up. I was paying attention. I was taking everything in orally, but I was making no contact with people. And it’s very off-putting, to here you are making this impassioned plea and all you see is the top of the head. So now it’s click, click, click, click, click, you see the judges just on the computer. They’re not making the eye contact, they’re not doing active listening. They’re not giving that Rogerian approach of warmth, empathy and genuineness that’s so important.
Maya Angelou, one of my heroines, really said it best. It says people may not remember what you say, but they will always remember how you made them feel. So if they walk out of the courtroom, if they walk away from the criminal justice system with good feelings, that’s what they will remember.
So how do we do this? How do we change behaviour which is what we’re really looking for when we have reduction of recidivism as a specific sentencing goal? Well applying incentives and sanctions to the way that we do it in drug treatment courts and other problem solving courts. So to impose incentives and sanctions they have to be certain. The person has to know that every time there’s an action there is a reaction, there will be a response from the court. It has to be swift. It has to be close in time from the action to really make behavioural change happen.
So if you’re trying to train a new puppy and it piddles on the rug and two weeks later you pop it on the butt with a newspaper, puppy’s going to go ‘What did I do? I’m not learning anything from that’. If in our usual system it takes four weeks to get the person back to court to address some behaviour that we want to discuss with him or her, who knows what happens in that intervening four weeks. They may have done very well for those four weeks. In the meantime, to punish them at that point really does not address the behaviour which we want to correct.
It has to be predictable. All these things are written down. There’s a policy and procedure manual. There’s a client handbook. Everybody knows what the deal is. So there’s no hidden agenda. It’s out there for everyone to see. And it has to be proportionate. You don’t use the Eiger Sanction. You don’t go nuclear, because where do you go from there? If you’re imposing the top sanction on the first time you come into the behaviour, then there’s nowhere else to go.
So it’s really a carrot and stick approach, balancing, positive reinforcement. With punishment you have to have a wide range of intermediate magnitude rewards, because things tend to go best when it’s in the middle, not the lowest and not the highest. You don’t want those extremes. You have to avoid overreliance on sanctions that are too low or too high in magnitude.
So the carrot thinks the stick is a psycho and the stick thinks the carrot is a wimp, and it’s this tension between those two things that you have to balance in the middle.
One very simple thing that we’ve discovered, particularly with stimulant abusers, is a fishbowl, so that everybody who’s doing well that particular week or every two weeks gets to fish in the fishbowl. First of all you get the anticipation of you don’t know what the reward is, so that’s kind of fun. It’s kind of like gambling. And you have in there things that just may say applause or praise or a small thing, or it may be a $50 gift certificate from Woollies – may not purchase alcohol. So you know there’s a couple of really highly desirable chances for you to win. And we actually studied that in the States, and adding a fishbowl process increased success four times for stimulant abusers. Dr Nora Volkow from the National Institute on Drug Abuse did a lot of these studies, and something as simple as that in a drug treatment court context can make a huge difference.
We also have to be sure that when we’re imposing sanctions we’re imposing it on behaviour that is in the control of the individual. So very early in treatment and recovery for people with substance use disorders, they’re going to continue using for a while just because they don’t have the tools yet on how to take care of things. If you’re going to severely punish someone for having a positive urine test for drugs, it would be like giving them a diagnosis of diabetes and saying ‘We’re going to test your blood sugar next week,’ and not telling them anything about diet or exercise or foot care or wound care or all the things that you have to know about the management of that disease. And sure enough the next week when they test high in blood sugar, well off to jail you go. We would never do that, but we do that to addicts all the time.
We give them their diagnosis and then we’re quick to have these very high sanctions on behaviour that’s still not in their control. What we should be doing is making therapeutic adjustments. What can we do to increase their treatment or increase their support system. If they’re working in a 12 step program, have them write an essay of what’s important to them about stopping using drugs. There’s a million things you can do that are not those high jail sanctions that are much more effective, particularly at the beginning stages of someone’s recovery.
So after they get a hold of things a little bit and they’ve got some of the tools, then you can start escalating the sanctions. But at first it should just be therapeutic consequences. And you rely on your treatment providers to give you advice about that. As a judicial officer you’re not qualified to do that. That’s why you have a whole team of people in a drug treatment court. You have therapists, you have the defence counsel and the prosecutor, you may have community policing officers, housing specialists, mental health professionals and forth. And all those folks are advising the judge how to make the best decision possible.
So what we’re really talking about is the difference between proximal and distal goals. A proximal goal is show up for all your appointments. Be on time. Come to court. Go test when you’re told to. And tell the truth. Things that they can do right now, and if they don’t do them you sanction high, because they have the ability to do them. You reward low because it’s not that hard to do. If it’s a distal goal like sobriety, if they go a week without using, they get a whole week of negative tests, you better be doing backflips, because for some of these folks they haven’t gone a whole week without using drugs for 20 years. So you reward high and sanction low. And then as you go through the stages of a drug treatment court, those distal goals become more and more proximal until everything is a proximal goal, and that’s when they go into maintenance stage and that’s when you start weaning them off the court and getting on down the road.
I wanted to spend a little bit of time with drink and drug driving, because we have lots of research in that area and I always encourage jurisdictions to look at a DUI court or a DWI court – driving while impaired – because the high risk, high need DWI offender is a dangerous person, and there’s lots of good stuff we can do. I prefer that we have a combination of alcohol and other drug courts and a separate list perhaps for DWI.
So what works in stopping people from driving with too much alcohol and too many drugs? Licence restrictions. That works really well. You do this you lose your licence. That works great for the regular population. It does not work for the alcoholic, because the alcoholic simply can’t stop using it without an intervention. Sobriety checkpoints. You do a lot in this country, which is great. Zero tolerance for those under 21. For you that would be 18, and I’ve been arguing with you all for as many years I’ve been coming to Australia that you need to raise your drinking age to 21. But that’s another discussion for another day, because I know you’re going to yell at me.
An adequate tracking system so that we know who is out there committing this particular crime. And what’s the follow up? Is there the licence sanction being applied and so forth? Vehicle sanctions like taking the licence plate or the ignition inner lock device, impoundment, forfeiture, the tyre lock, all those things are effective.
DUI checkpoints cost a lot of money, about a million dollars to set them up in the United States, but they save almost $8 million every time they have one, and that’s in the reduction of crashes, the reduction of deaths from crashes and injuries from crashes.
Alcohol policies such as control on alcohol outlet density, excise taxes, enforcement by what we would call the alcoholic beverage control folks. Make sure that under age people are not being served or sold alcohol. Open container laws. You can’t drive around with a can of Fosters open. Alcohol advertising bans and sponsorship at sports events where children are involved. And I just love this ad. It’s got this very frothy drink and it says ‘If your date won’t listen to reason, try a Velvet Hammer’. How is that for an invitation to date violence, date rape? I don’t know why, I just hate that ad. But sure enough that’s what was really there.
Liability for the seller of the alcohol, brief interventions in emergency departments, having an alcohol free workplace policy. The first time I came to Australia when I was working in Adelaide, you know, ‘Let’s go out. Let’s have lunch,’ and this would happen day after day. I thought it was just the first day because I was there and we were celebrating, but bottles of wine going down. Man. I don’t know how you all get anything done in the afternoon. All I wanted was a nice little nap, to curl up. So an alcohol free workplace is a good alcohol policy.
Last drink initiative. Everybody who’s arrested, you ask them where they had their last drink, and usually – the usual answer, at least in the States, is at a licenced facility like a bar. And then you report that to the people who have jurisdiction over bars and serving, and also server education initiatives. Ride service programs as an incentive to not drive if you’ve been drinking too much. Carding everybody. Asking for their ID if they’re under the age of 30.
In terms of sentencing, a no alcohol clause for every alcohol or other drug related offence. And I found out fairly recently that Victoria would say no alcohol for phase one or phase two of the drug court, and then let them start drinking again in phase three. And after I picked myself up off the floor, I said ‘Tell me what you’re thinking is about this, because you’re talking about an addictive brain and you’re talking about most relapses starting with alcohol because you get the disinhibition’. So anyway, I’m sure all the people who are under the jurisdiction of the court in Victoria are made at me, because now they’re not allowing alcohol anymore.
You don’t go into bars or liquor stores if you’re on probation, and that’s part of your sentence. Requiring abstinence while they’re in an alcohol treatment program if it’s connected with driving under the influence.
Community corrections needs to take a huge role in this. There are eyes and ears in a way that we can’t be as judicial officers or other team members, but community corrections is out there and they’re checking with a breathalyser. Just a knock and talk. ‘How you doing?’ Take a blow. And that’s Friday night at eight o’clock, and then come back at ten o’clock and do it again. Boy that news gets passed around among offenders really quickly, and we have to make it so that they don’t have the opportunity to mess up. We’re there at every turn saying ‘No. This is what you need to be doing’.
Home checks, liver panels, garbage reviews and DUI courts that are specifically set up for the high risk, high need DUI offender. Things like SCRAM that measure alcohol when you’re requiring a no alcohol clause, alcohol monitors, also GPS so you can tell where they’ve been and what they’ve been doing.
The predictors of recovery are not the ones you would think. Nobody can say from the beginning that person’s going to do well and that person is not. Because the one you think is going to be your star is going to mess up, and the one that you had no hope for whatsoever is going to turn out to be the best person in the program. So treatment experience, education, whether the partner uses alcohol or other drugs, whether they participate in a 12 step program, that they’re a non-smoker – because alcohol and nicotine go together like a horse and carriage – they have a partner/social support network. And the severity of their alcohol intake is not a predictor. So you don’t say to somebody ‘You’re way too gone for this program’. You say ‘Come on in and these are our strategies that we’re going to meet here’.
There’s all kinds of medications that are available for alcohol and other drugs now that didn’t exist even ten years ago. So there’s great helping medications that can help people resist craving, you know, a [0:38:04] craving, or it can block the highs. Or if you do drink, then while you’re taking this medication you don’t get highs so what was the point. All you get is in trouble. And those are sort of underused I think.
So those are all things that work. What doesn’t work? Severity of the punishment. Tough on crime. I can guarantee you from the experience of the United States that tough on crime, war on drugs is an abysmal failure. All it did was spend tonnes and tonnes and tonnes of money and ruin an entire generation of young African American men in my country. So severity of punishment does not do it. Increasing jail sanction is not nearly as important as having some response that is both certain and swift.
Some studies have found actually that you had a worse outcome if you give more punitive sentences. And if you think you’re unlikely to be caught, that’s a good recipe for what doesn’t work.
There’s been a couple of recent developments I wanted to bring to your attention in the DWI field that I think are very, very interesting new initiatives. There’s a 24/7 program, and what they do is people who are multiple offenders, as a condition of release from custody they must be abstinent. They must test twice a day at the Sheriff’s Department. They go in, they pay their two bucks, blow once in the morning, once in the evening, and if they test positive for alcohol they are put into custody immediately.
Evaluations of the programs have been very, very good. The incidents of driving has declined by 12 percent in South Dakota for instance where there was one study. There’s the Hope Probation Programme which started in Hawaii. Again it’s a zero tolerance for any offender who tests positive. Boom, right away they’re in custody. I find HOPE has a tad of a blunt instrument effect, because it does not make that distinction between distal and proximal goals of sobriety. So I’m not as crazy about that. But it’s been getting good evaluations, and they don’t see the judge regularly. It’s part of the continuum. A drug court is still best for the high risk, high need offender, but HOPE is somewhere down a little lower on the continuum that might work for other people. And then we should be able to move people from program to program when we get it figured out where they’re going to do best. So they’ve been doing the three, six and 12 month follow up now with the HOPE Programme.
Ignition interlock devices. Love them. They’re wonderful. They work well. You can’t start the car if you have a certain amount of alcohol on your breath. They’ve become much more sophisticated to prevent someone else blowing into the machine for you. The problem is if you’re the high risk, high need offender and you’re not also getting concurrent treatment for alcoholism, the rates go right back up again the minute the ignition interlock device is taken off. So it works very well, you take it off, they go back to their old behaviour. So you have to have it in conjunction with some kind of treatment.
I made an analysis of 15 studies having to do with ignition interlock. It showed that it’s extremely effective so long as it’s on, but you do need that component of the treatment.
So finally to drug treatment courts, which your government has announced back in February that you’re going to have at least one. We hope soon. And I wanted to tell you a little bit about them. This is Judge Robert Russell, one of my buddies. He’s a great guy. He’s the judge who started Veterans’ treatment courts in the United States. He’s in Buffalo New York. And we know that drug treatment courts save money, reduce recidivism and save lives.
In Australia you had your first drug treatment court in 1999 in Parramatta. Judge Roger Dive, even though he’s retired now, he still comes back and presides over the drug treatment court. That was the first treatment court I ever saw in Australia, and the Attorney-General had taken me to see it. And I’m sitting there in the back and I’m watching what’s going on, and I said to him ‘I know who everybody is. I know what the defendant’s going to say and I know what the judge is going to do,’ and he looks at me like ‘What?’ Sure enough the defendant did what the defendant did, the judge did what he did, and it was as I had predicted. And Judge Dive and I were talking at lunch. We all had a nice picnic there in the courtroom afterwards. And he said ‘I’ve never felt so understood by any other judge,’ and I said ‘Hey, fidelity to the model. When you have the ten key components, when you comply with the adult drug court standards, that’s when you get excellent outcomes’. And you should be able to walk into any drug treatment court in the world and be able to tell who everybody is and what’s going on, because it’s the same standards for everyone’.
Almost every state and territory has a drug treatment court, all except the NT. And here of course you had them and then they went away, and now they’re back again. And they went away even though the Law Society said they saved $6 million. But the review that’s going on right now says that drug courts are evidence-based, cost effective, reflect best practices, and so I am confident that you will have one soon. And the review is also looking at options and models for reform.
It costs you a lot of money taxpayers to send someone to prison. It’s about $301.60 a day. So you could get a pretty good hotel room or you could go to prison. $109,782.60 a year. You could send prisoners to Harvard for less money than it costs you to send them to prison. So what do we know about prisoners and the effectiveness of prison? First of all let me make clear I’m not saying close prisons. I’m not saying people don’t deserve to go to prison. I happily sent people to prison when it was the appropriate sentence. There are people who are too violent or just too – they can’t live among us. That’s all there is to it. So I’m not against prison. What I am against is using prisons for the ones we’re just annoyed with. You know, we need to save prisons for the ones we’re scared of.
So about one third, a little more than one third of Australian prisoners are rearrested and returned to prison within two years. Similar to our statistics in the United States. So in terms of acting as a deterrent, no it doesn’t. Absolutely does not. So you have this partnership in the drug treatment court between probation, parole, the police on the street, jail personnel and the drug court team, which are the attorneys, treatment, coordinators and so forth, and all of you are working together for the same goal, which is developing the atmosphere which will allow the individual to internally make that change. Because you can impose change. You can squish somebody so hard that they’ll do what you tell them to do. And then the second the thumb goes off the change goes away, because it’s an external force, it’s not an internal change. And what we’re going for is nothing less than changing their lives. We want that internal change so that they now live productive lives instead of lives that victimise people and cost us a lot of money.
Drug courts are cost savers. Anywhere between for every dollar invested save up to $3.50, $2.21 and so forth. So when somebody says drug courts are too expensive, your response should be ‘We can’t afford not to have them. We’re saving money when we have drug treatment courts’. Because that’s the truth. It’s just like when someone says ‘We can’t afford all those lawyers’. Yes you can, because it’s going to be cheaper in the long run. There may be start-up costs certainly, but in the long run it’s going to save money.
So there’s cost analyses that have been done all over the United States, and also there’s the cost analysis out of Victoria that you might want to take a look at. In my state California we save $43 million a year by having drug treatment courts. We have about 300 of them. There’s 3,000 drug courts in the United States, and they’re now in 27 countries. For every $3,000 spent on a client in this study in California, they saved an average of $11,000. Because you look at all those costs – emergency room costs, loss of production, health costs, children being neglected and abused – about 70 to 80 percent of the time alcohol and other drugs are at the root of child abuse and neglect – children ending up in care, just all the horrible costs let alone the human cost of this issue.
This was up in Oregon, and the cost savings was about $6,800 per person but jumped up to over $12,000 when you factored in the victimisation costs. So there’s just study after study now. In the old days we didn’t have much research and now we have a great body of research. Something like 300 drug courts in the United States have been studied, and we’re about to get the first evaluation out of New Zealand and their new alcohol and other drug treatment court. I keep saying new. It’s almost five years old. But theirs is about to be released. I’m very anxious to see that as well.
So the cost benefits, avoiding criminal justice costs. What do we do now with people with alcohol and other drugs? We have a catch and release program, like trout. We catch them, we process them, we put them out, they get caught again, over and over and over again. It’s absolutely ridiculous. We avoid victimisation costs, employability, fewer drug exposed infants. Not every pregnant woman who uses alcohol or other drugs is going to deliver a baby with adverse effects. However those who do, those babies are very, very, very costly, and of course sometimes it’s life threatening. So reduced costs of care for abused children.
So if treatment is so great, why don’t we just tell everybody to go to treatment and not have to have this whole elaborate plan of drug treatment courts? Well voluntary treatment doesn’t work very well. Most of them don’t show up when you refer them, and then out of those few that do they trickle off and by 90 days they’re gone. Only one out of ten people make it in voluntary treatment, whereas drug courts can add that extra little – let’s see, shall we call it judicial extras that keep them there. They really don’t have a choice about treatment. They’ve already chosen – it’s a voluntary program. You can go to prison or you can go to drug court. That’s not a hard one to figure out.
But they’re making the choice to do that, and so even though it’s voluntary in that sense there’s that extra coercion by the court to keep them in treatment. And we know the longer you’re in treatment the better off you do. Completing a treatment program is absolutely key. So the point is to keep them in treatment for as long as you can. We know that drug courts outperform any other strategy that’s ever been attempted. I mean they really are a place where miracles happen.
In terms of recidivism rates, the very, very, very best courts have a recidivism rate reduction by about 35 percent. But even the worst court has reduced crime of eight percent. Even that makes it worth it. The more you follow the ten key components, the more you follow best practices, the higher the rates of reduced recidivism. So there are some courts that are bad. There’s no question about it. About six percent have a negative effect. You do worse off if you go to a drug court. That’s because they don’t follow the ten key components and the standards.
So that was the 35 percent reduction, and it’s greatest for the high risk offender. Those are our people, the ones that have failed on probation and community corrections time and again, who’ve been in and out of state prison. Those are our folks, the high risk, high need people. Because we don’t want to put folks that don’t need that intensity of supervision, that intensity of programming in that kind of a program. It’s too much. It’s counterproductive. But for those folks that are not going to make it any other way, that’s absolutely the way to go.
Even if somebody doesn’t graduate from a drug treatment court, their exposure to having been there still reduces crime and reduces recidivism. So in this study the recidivism rate for graduates was 17 percent. For those who were in the court but didn’t graduate it was 29 percent. And the study group, the match group, was 41 percent. So even if they don’t make it all the way through, they’re going to do better.
The longest studies court is the one up near Portland, Oregon, and we’ve been studying that one for 14 years and it’s still showing reduction in recidivism after all this time. It’s really quite amazing. It’s probably the longest longitudinal study we have.
So the re-arrest rates are absolutely affected by participation in the court.
GAO is the Government Accounting Office, and those are the bean counters of the United States. And the first few times we asked them to look at drug treatment courts we didn’t have sufficient data. We really didn’t even know what we were doing. We were just trying all these things out. We didn’t have standards yet. We didn’t have any of that. But finally in 2005 the GAO reviewed 23 evaluations and confirmed that drug courts significantly reduced crime. When we got that report we were turning cartwheels all over the country saying ‘Finally’. The bean counters who counted most in terms of information said that we are doing good.
A drug treatment court cannot operate without good community corrections as a partner. About 87 percent of the time a participant’s time is unsupervised. They’re not in court. They’re not in program. They’re just hanging around. And the risks are in their natural environment. Public safety requires that we avoid high risk locations, high risk behaviours, and we do that by controlling and helping them control people, places and things. So we know that behaviour is tied to those three things. Those are the things that need to change. So when we’re asking somebody to participate in this kind of a program, we’re saying ‘Give up all your friends, all the fun you have, everything you like to do, and maybe even your family. Change where you live and come to court every seven minutes. Test when we tell you to. Go to treatment. Do this, do this,’ and that cannot possibly be considered a soft option. We are very much in their business, in their lives, because we know how important it is that they get established in that new way of thinking.
So community corrections can impose curfews. We like 7/7/7. You must be home between 7:00pm and 7:00am seven days a week. Location restrictions – don’t go where they sell dope. You know, don’t go to your old dealer’s neighbourhood and so forth. Don’t hang out with people who are using. Lots of monitoring, supervision technologies are available now. And the community corrections public safety party of things, like expedited warrant service – the minute the person doesn’t show up somewhere, doesn’t make their court date, there’s a warrant issued and somebody’s out to find them. Because that may very well be they’re getting ready to circle down the drain. So we want to stop any relapse. We want to stop any reversion of behaviour as fast as possible.
So these are real pictures from a probationer’s home. There’s the children lamp and the dope scale for packaging up the methamphetamine. We want probation officers, community corrections to get out of the office and go visit homes and be the eyes and ears for the court. This is a sign that was actually on a probationer’s back door. It says ‘Warning. If you are on probation, if you claim’ – that means have gang membership – ‘if you have drugs or weapons on you, please stay out. Probation checks are regular here’. So what that does is a couple of things. One, it keeps them out of harm’s way because they’re telling other people who aren’t interested in recovery like they are that they don’t want them around. But it gives them a chance to work on their refusal skills. They can blame it on community corrections, they might be here any minute, when they’re saying no to their old buddy. And it helps them control their environment having that kind of sign on their back door.
They have to find a way to respectfully refuse their old friends, but they must be definite about that refusal. The community corrections should model pro-social behaviours. So that means when they make home visits, when they do a check, when they put up the breathalyser or ask for a urine sample, that they’re respectful, that they treat people humanely and not this touch macho thing that some of them do. And that will also hopefully be found in their code of ethics.
They can be able to tell you that something’s going on. They don’t know what, but something is up and that person might be at risk. So they can help correct errors before they become serious, and they’re also protecting any children that may be involved.
These are again real pictures. There’s a bottle of vodka, there’s beer, there’s the makings of methamphetamine. There’s a nice big fat very healthy looking marijuana plant. There’s a house that’s not functioning too badly. And there’s a difference between dirty and dangerous. Having a loaded gun just lying there where children can reach it is dangerous. The other picture is not too good, but at least it’s not dangerous. Here’s what you can see on a home visit. I know that’s a pleasant picture, you know, lots of blood around, needles lying right there next to the toothbrush on the kitchen sink.
Also you get surprises like here’s your client and she’s just been beat up. She’s been a victim of domestic violence, and that gives you a chance to intervene with her there.
So those are some fast thoughts. One resource that I just love is called Crime Solutions, and that’s from the National Institute of Justice. They look at research, they evaluate research, and they tell you what’s promising, they tell you what works and what’s bunk and doesn’t work very well at all. That’s how to contact me and the justspeakersinstitute.com. On that site under ‘Just Speakers International/Australia’ are all my PowerPoints from this month I’ve been lucky enough to be invited to come over here and spend with you all. So if you want to take a look at the PowerPoints, they’re there. There’s other resource materials for you. So feel free to do that.
I think we have a couple of minutes for questions and answers, since they have asked me to do that.
We’ll do that at the end if that’s okay.
Okay. Absolutely. You’re the boss.
Please thank Judge Hora. Thank you very much.
I learnt a great deal, but it’s not about me. I’m sure everyone appreciates how practical intervention and solutions for people with complex social problems can help in sentencing. As I mentioned earlier Professor Marchetti is the deputy chair of the Sentencing Advisory Council, and I’d like to invite her up to give the council’s response to Judge Hora’s presentation, and then we will have time for questions with some microphones at the end. Please welcome Professor Marchetti.
Elena Marchetti, Deputy Chair of the Queensland Sentencing Advisory Council:
Thank you Steve for that introduction. I’d like to first of all start by acknowledging the traditional custodians of the land on which we’re meeting, the Jagera and Turrbal nations, and also pay my respects to Elders past and present and emerging, and extend that respect to other Aboriginal and Torres Strait Islander people who are here this evening. I acknowledge and respect their continuing culture and the contribution they make to the life of this city and the region.
And now I’d just like to say thank you to a few people. First of all thank you Uncle Joe for your wonderful welcome earlier this evening. And Judge Hora, thank you so much for that fascinating and interesting presentation. There was just so much in there.
I’d also like to thank especially and acknowledge Chief Justice Holmes for attending tonight. Thank you for attending the inaugural seminar series of the Queensland Sentencing Advisory Council. And thank you to everyone else, all of you here for coming tonight. It’s great to see you here.
When I was first appointed as deputy chair of the Queensland Sentencing Advisory Council, I had no idea how much I would learn from this opportunity. Firstly I’ve learnt what an incredible challenge it is to talk about sentencing with the wider community. One of the most important tasks of this council is to get out there and give information to the community and listen to their views about sentencing. But when you consider the complexity of the task of sentencing itself, that’s one big thing. But when you also consider the degree of the diversity in our community in Queensland coupled with the vast geographical spread of the state, it throws a huge number of questions at you.
Firstly we need to think about how do we draw people’s attention to the topic of sentencing and capture their attention for long enough to give the kind of detail that needs to be conveyed? What’s the best forum to use to talk to people? How do we engage with Aboriginal and Torres Strait Islander people about these issues, or communities that don’t speak English as a first language, or victims of crime or young people? These are all questions that my colleagues and I have been grappling with over the last few months during the life of the Council, which has been quite short.
Secondly I’ve learnt how much good will and genuine encouragement there is for the work of the Sentencing Advisory Council among many of you here. James Moreton, who is the chair, and I have attended a number of introduction meetings with key legal and other stakeholders in Queensland. There have been such kind and thoughtful responses to our work so far, and the attendance here today is another indication of how supportive people are of the council.
I know I speak on behalf of my colleagues when I say we are so pleased to have your support, and we hope to live up to your expectations of what we can achieve.
Thirdly, and of most relevance to the discussion today, I’ve learnt just how much is happening in the area of sentencing in Queensland, across Australia and internationally. Judge Hora’s presentation today demonstrates some of what is happening internationally, as well as she’s touched on some of the things that are happening here in Queensland and in Australia. It’s exciting and inspiring. In particular I was struck by how much better it is to use meaningful incentives or rewards and therapeutic programs rather than punitive sanctions to change antisocial behaviour.
But it is crucial to understand how much of a reward should be offered together with a rehabilitation program, and that we need to work out at what point in time this should occur. For me it reinforces the fact that understanding what works for whom and in what circumstances is necessary if we are to make the appropriate changes to our sentencing laws. The Queensland Sentencing Advisory Council has produced and today released a fact sheet outlining the various penalty and sentencing options that exist in Queensland at present. There is real evidence here of the changing nature of sentencing. Our revolving understanding of what leads to offending behaviour, and equally our increasing awareness that different types of offending and different groups of offenders, might need different types of sentencing responses.
There are some exciting evidence-based initiatives that are occurring in this state, particularly in relation to the introduction of specialist courts and other court based intervention programs, which have been introduced by the Department of Justice and Attorney-General over the past decade.
So I’d just like to highlight three of these initiatives. In September 2015 the Specialist Domestic and Family Violence Court was established in Southport as a trial following the report of the special taskforce on domestic and family violence in Queensland. Domestic and family violence creates a significant social, economic and emotional cost in society. The courts can only do so much in trying to address what is predominantly a male dominated offence. The Specialist Domestic and Family Violence Court involves dedicated magistrates and a separate court list for criminal offences charged in association with domestic and family violence, and also deals with applications for domestic violence orders.
Additional specialist legal advice is available to both parties in the Southport Court, specialist support services are available to victims of domestic violence offences, and treatment programs are available for perpetrators. The specialist court is currently being evaluated, and the findings will inform future work to develop a specialist approach for Queensland courts dealing with domestic and family violence.
As Uncle Joe mentioned earlier, the Murri Courts are another important sentencing innovation in Queensland, which was initially established in 2006 as a response to the chronic over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system. And they were also established as a way of improving communication and interaction between an offender and the court for Aboriginal and Torres Strait Islander peoples. There is less formality than in a mainstream court in order to make the people present more comfortable so that they may be more willing to speak to the magistrate about what is happening in their life to cause their criminal offending. This increases procedural fairness, which as Judge Hora has explained can impact on an offender’s behaviour.
The sentencing hearing includes local Elders and the community justice group in the process to support and encourage offenders to identify what they can do to make changes in their lives and to provide cultural and other information to the court about the offender. The court can link offenders to relevant cultural and treatment programs to address issues like drug and alcohol addiction or other drivers of offending.
Thirdly, as Judge Hora has already mentioned, the Queensland Government has announced that the drug court will shortly be reinstated in the Brisbane Magistrates Court. While we don’t yet know the final shape of that initiative, it will no doubt ensure offenders undertake relevant treatment and that they are appropriately supervised in the way that Judge Hora has clearly outlined as being so critical to ensuring the initiative is successful.
The work of introducing the drug court is highly welcomed from my perspective as a criminologist and a lawyer, knowing the role that drugs and alcohol play in the offending trajectories of many of our offenders. If we are able to tackle the reasons why people take drugs or consume excessive amounts of alcohol, we will be able to reduce offending in areas such as domestic violence, theft and serious assault.
A full list and description of Queensland’s penalties and sentences is included in that fact sheet which we have provided for you tonight, so please, in particular those of you who are not across these laws and processes, I encourage you to read that and to take a look at the various options that already exist here in this state.
It’s very exciting to see these court programs being introduced in the sentencing spectrum, to see some real efforts to ensure greater specificity in our sentencing approach, and to see that there is real effort in trying to disrupt recidivism through the sentencing process. When you think of where we have come from, when we used to sentences such as transportation, the death penalty and physical punishments like hard labour and flogging, you realise that sentencing is a changing landscape.
Who knows what the future of sentencing holds, but with the advent of new technologies, the use of therapeutic jurisprudence and moves to individualise justice, there are so many possibilities for innovation that might better achieve the ultimate goal of sentencing, the humane application of a penalty that ultimately leads to desistance, and from there to a safer community. My colleagues and I hope that we can increase community understanding of the complexities of sentencing, and how judges and the courts balance the many competing aims and purposes when sentencing an offender. In doing so we hope to secure community support for sentencing options that can really impact on offending behaviour, and that can potentially change lives.
The advisory council is very keen to give you a chance to ask questions of our visiting Judge and Elena. We’ve got a few microphones around the floor I think Yvette, so hopefully you’ve had a chance to work up a question. So Judge I might ask you back up to the podium if that’s alright for a very brief moment, and I’ll get in the first question if that’s okay. And if you’d just like to indicate if you have a question or put your hand up, please feel free. And if you just state your name if you could if you have a question for the Judge.
Thank you. I have just one question. So from a journalist’s perspective I heard what you said, evidence-based research, but it strikes me that the level of complexity is very high. Could you speak to that please?
Yeah. The problem is we always like simple solutions for complex problems. You simply cannot approach something like sentencing, criminal behaviour, offender profiles, everything else, and expect it to be simple. Yeah, it’s complex and it’s hard, and you have to study it, you have to understand alcohol and other drugs if you’re going to be a drug court judge, all those things. But it simply can’t be done without it being hard.
A question from the floor? With all these great minds in the room, is there any curiosity about Judge Hora’s research or evidence? Down the back. Lovely.
In all your time in your involvement with drug courts, I was interested in what information you’ve come across as to how this can possibly work in a state – and all the states of Australia – when they are so large and we have so many environments which are not highly populated urban cities. Can drug courts work outside of big cities?
Yes. It is more difficult obviously, but as we improve technologies – there is some recent research that suggests that online treatment actually can be effective. So that would require somebody to be able to go to the library, if their town had a library, or go somewhere where there was a computer where they could actually do online treatment. So you have to be a heck of a lot more creative. But we have rural drug courts, and we always have presentations and ideas about how to operate in rural areas at our national conferences. So even more difficult, but doable. Can everyone have access to a drug treatment court? Probably not. But if we even increased it by a half it would be so much better than it is now.
Another question from the floor?
Good. Another question from me then. Judge you mentioned that voluntary treatment programs don’t work very well. As I understand it, in the state of Queensland there’s a focus on offender rehabilitation programs being voluntary because it means that the offender through their own choices is buying in to their problem, and as a result it’s not the research that you’ve seen in the United States.
Let me start this way. There used to be this idea that you had to hit bottom. You know, that’s probably 40 or 50 years out of date at this point. You do not. I would also argue that there’s really not much voluntary treatment. Very few people wake up one morning and have this spontaneous idea that ‘Gee, today would be a great day to stop using drugs’. They have a spouse, a boss, a judge, somebody on their back saying ‘You have to do this’. But yes, ultimately they have to accept the responsibility. Ultimately it has to be an internal change that I was talking about. But at the beginning they may only be interested in not going to jail, and that’s okay, I’ll meet them where they are. That’s where they start? Fine. That’s where we start. So then the next question is how do you stay out of jail? You make the judge happy. How do you make the judge happy? Got to go to all your meetings, got to go to all your appointments, got to give a clean test. So wherever they are we can meet them and start moving them towards that. But ultimately you’re right, it has to be that intrinsic change to be long lasting, and that’s what we’re going for.
And if I understood your presentation correctly, if an offender feels procedural fairness has taken place and that they have been heard, it’s almost more important than the actual outcome of the trial, of the case.
Yes. If they feel that they’ve been respected and that the court process is one that has in no way humiliated them – there is one judge who had anybody who tested positive during that week, they would have to go stand on a very busy corner and hold a sign that said ‘I’m a drug addict’. Yeah. Horrible right? I mean just absolutely humiliating. People do not feel something like that is fair. So they really get to the point when they start working hard, when the penny drops as you all say, where they want to do well and they believe they finally can do well. By the time somebody gets into a drug treatment court, if they’re the high risk, high need offender that we should be targeting, they’ve tried to stop. They’ve tried to control their use. They see what they’re doing. They violated every moral stance they’ve ever had – you know, stealing from grandma or doing God knows what. They don’t want to live like that, but they don’t believe they have any choice. So one of the things we do is say ‘Hey, I’ve dealt with 200 people sitting in that chair just like you are now, hundreds of people, and I know you can do this’. So they get encouraged and they start to believe that yeah, they can do it.
Do you think it takes a particular type of judicial officer to preside over these types of courts, or do you think any judicial officer can do that type of work?
No. It takes a judge who’s willing to learn things that are outside normal law school subjects. When I went to law school, believe it or not – I know this is shocking – I never had a single class on urine. I now know a whole heck of a lot about urine, more than I ever planned on knowing in my whole life. But urine? No. Is that how you guys say it? Yeah. Come on. You know what I’m talking about right? So they have to be willing to want to learn things that are outside the normal scope. They have to like people. They have to believe people can change.
How do you teach that?
I don’t think it can be taught. I think some of it is just inherent. For instance if you were to send me a case with 25 lawyers and 2,000 exhibits and it was going to take nine months and it was about asbestos, I would just open a vein. You know, I would have no interest in doing that case. It would be horrible. I would hate every day of it. That’s not what I do well. So it takes somebody who really wants to manage a caseload like that without crossing any ethical lines. Sometimes people get too carried away and start violating judicial ethics, but that’s a subject that I’m going to take up in Sydney.
Hoping to get a question from a member of the Queensland Police Service too by the way. Now’s your chance. ‘Judge, you’re soft on crime’.
Judge, part of the thing – I mean when you’re looking at the complexity of sentencing, it’s a little bit like a Rubik’s Cube where you have to turn to get the shapes to measure up. Probably the other thing too, when you talked about judicial ethics, we have a responsibility also to reflect community values and standards. So a starting point is that you’d have to be dispensing justice in a community where there was a real issue with drugs. The thing that I found in my experience – I’ve worked in the drug court back when it first started for five years. But the thing that was critical is that there needed to be a moment in that person’s life where they were receptive to change. Now if they’re at that position, they also have to have the support, and often cases the unconditional love of their family to support them, because often success of therapeutic rehabilitation did involve family. Some of the concerns that I had looking at it was when you’re treating these people, that veil of confidentiality would apply where offenders would be on the program and they’d be negotiating with their healthcare providers, but information that would be vital in the rehabilitation that would assist the families at home, they were denied access to that information because of the patient/doctor/client. In regard to any sentencing strategy, would it be appropriate to review the confidentiality laws which will allow families to be open to and receptive to that information that would help them with rehabilitation?
Yeah. On the issue of confidentiality, we have very strict laws in the US both on medical information and really, really strict on treatment information. What we do is make sure that with total informed consent that the individuals who participate understand that they will be waiving their rights to confidentiality, because we have to have that information in order to do a good job in the treatment court. I agree that family is incredibly important, that if you haven’t lost your family then good on you for not getting down the road that far. But some come in with no support from their family and they can still do well. So we hope that we have these other things in place for them, but sometimes we don’t. And like I say, they may have no intention of changing. They come in because they don’t want to go to prison again and they’re going to figure out how to beat that test. And that’s their mindset, and that person, moving them through motivational interviewing and other things, coordinated response by treatment, by community corrections, by the judge, moving them through those stages of change, we can get them where they need to go. So are those folks harder to deal with? Yeah. But you get them as you take them and you take them as you get them, whichever way that makes sense.
Judge, I was wondering about the practical operation of drug courts from a lawyer’s perspective. As a prosecutor or as a defence solicitor, how long is your involvement with a matter? At what point is there a handover to other services?
It can be however you want it to be. If someone wants their own private attorney throughout the process and they’re paying for it, of course they can have the attorney of their choice. Usually there are duty attorneys who are pretty consistent. We want people with a two year commitment, particular the judge to be in the court. So in some schemes the attorney that they originally get takes them up to the admittance into the court and then hands them over to the drug court lawyer, the drug court defence attorney. We want the same prosecutor there, because their number one job of course is to protect the community and make sure something crazy isn’t going on that’s going to put the community at risk. But they’re also very important, probably more important than the defence attorneys at some point, for encouraging the individual. To have the prosecutor say to a person who’s in the program ‘Hey, you’re doing a really good job. We’re proud of you,’ is huge. Or to have community corrections say that. And we know from the research that when everybody’s there and everybody has gone through the staffing procedures, sometimes called case conferencing, that that increases the efficacy of the court. So we want everybody there, but it doesn’t have to be the same lawyer. You know, you can turn them over. So it would be very difficult for a private attorney to turn up every two weeks for a number of months, and so I understand the reluctance there certainly.
Do you look at just drug related crime, like possession and manufacturing, or do you also look at the ancillary crimes such as stealing and verbal abuse where there is some form of personal responsibility that needs to be attached to that offending, or whether it is just related to the drugs?
Yeah. You’re talking about eligibility criteria and what crimes would be eligible. You don’t want a dealer who doesn’t have a habit, because that’s very fox in the hen-house. You don’t want that. So you have to make sure that if you are going to allow people in who are selling that they’re selling to essentially finance their own habit, that they’re not big drug dealers. Because the big drug dealer is going to do very well, sail through the program and start selling to your other participants. It’s a disaster. It can be any kind of crime that is directly related to the substance use issue. So everything from forging cheques to writing false prescriptions to burglary. Robbery you’re probably not going to include. You don’t want extreme violence in the program most likely, although they can have a violent background if it was a number of years ago and so forth. So there are different criteria, and as you’re developing the court this is what you do, is sit down all the players and you bang out those issues. And there’s many different ways you can do it, but mostly it’s going to be crimes that are directly related to their use and what they’re doing to support their continued use.
My question is in relation to the interaction between drug use and mental health. A large amount of the kinds of matters we see are matters where people are using drugs as a symptom of their mental health issue or as a consequence of having used drugs for a long period of time they have now developed mental health issues. In terms of how that interacts with the drug court, because there is the underlying issue of mental health, regardless of how the program operates and the help that they’re given and the cognitive behaviour therapy that they receive, the recidivism – that is going to be an issue that re-emerges unless that mental health issue is either addressed, dealt with, monitored, and how does that, in the context of…
In the old days when we first started there were programs that would tell me if they have a mental health issue they can’t get in. I said ‘Then fold up your doors. Close down’. I said more than 50 per cent of people who walk through the door are going to have a co-occurring disorder. They’re going to have a substance use disorder and they’re going to have something else. So we have to deal with co-occurring disorders. I developed the first course on co-occurring disorders for American judges about 15 years ago, and they ‘Co-who? What?’ We had to actually pay judges to come the first two years because they didn’t know what it was. Now it’s like ‘Yeah, well I have a specialist in co‑occurring,’ you know, it just rolls off the tongue and I just shake my head saying ‘All these monsters I’ve created’. So for us, the high risk, high need offender who’s been in a state prison, you can guarantee pretty much – it’s the expectation not the exception – that they’re going to have a co-occurring disorder. We want concurrent treatment. We want them talking to each other. We don’t want a mental health agency that says ‘They were using drugs. We can’t take them’. I can remember years ago making a call on behalf of someone. They said ‘Well he has to be clean for three months before we’ll take him’. I said ‘If he could be clean for three months he wouldn’t need you’. Same with people with substance abuse. ‘No. If he has a mental disorder, no’. We’ve got to get over that right now. Those silos need to break down. We have to assume that we’re going to be dealing with lots of people with co-occurring disorders. And we’ve gotten pretty darn good about dealing with it. We have a curriculum now for drug court folks on co-occurring disorders. So it’s very common in the States that we’re doing that, and you simply cannot have a drug court without addressing that issue. So you may very well have a mental health professional on the team who will be advising you, particularly about sanctions, what you don’t want to do with someone who has – fill in the blank – whatever it is, that kind of thing. So we expect it. That’s an absolute expectation. It’s not an unusual occurrence at all.
Please thank Judge Hora. On behalf of everyone here today, you can relax now. Thank you so much for your observations and experience. Thank you for your commitment in coming tonight. The Queensland Sentencing Advisory Council hopes this has been professionally useful, personally interesting, and I hope it’s been entertaining from my point of view.
As with most events, the council is very keen to know what you thought, and they’re going to provide you with an opportunity to give them feedback. And they’ll be emailing you I think a short survey online just to get your response, your reaction, because they want to be advised, directed and get some hints from you on what works, what doesn’t work, because they’re very keen to be useful to you, not a talk fest, to actually have stuff that’s applicable to you. The survey will help them scupt that.
Finally the council wants you to be the first to know that registrations for the second event in the sentencing seminar series are now open. This is set for the 17th of May, which is Law Week. Like Judge Hora, the second speaker is probably very well known to you, Professor Arie Frieberg, who’s a national authority on the sentencing issues and the criminal justice system in Australia, having undertaken extensive research on sentencing theory, policy and practice. His expertise is in the area. He’s very respected. He’s the chair of both the Victorian and Tasmanian Sentencing Advisory Councils. Just go to the website if you’d like more details.
Thank you again for joining us tonight. We hope you’ll hang around and talk and chew some ideas over with each other, and we hope it was intersting to you. Have a good evening. Thank you very much. Goodnight.