Transcript — Evidence-based sentencing
Elena Marchetti, Deputy Chair Queensland Sentencing Advisory Council:
Hello, and welcome to the second edition of Sentencing Matters, a podcast from the Queensland Sentencing Advisory Council.
Voiceover (music):
Sentencing matters: a podcast that informs, engages and advises on sentencing issues in Queensland.
Elena Marchetti:
I’m Elena Marchetti, the Deputy Chair of the Queensland Sentencing Advisory Council, and in this edition I’m talking to The Honourable Peggy Fulton Hora, a retired Judge of the Supreme Court of California. We’re exploring the topic of being smart on crime with evidence-based sentencing. So sit back, and I’m sure Judge Hora will give us a real insight into this fascinating topic.
Hi Judge Hora. Thanks for joining us over here in Queensland.
Peggy Fulton Hora, former California Supreme Court Judge:
My pleasure to be with you again.
Elena Marchetti:
It’s really good to have you here. I would like to begin by looking at what doesn’t work in sentencing. I guess we usually discuss, you know, what does work and what we should be doing, but in your experience what shouldn’t we do?
Peggy Fulton Hora:
Well I think the main theme I want to talk about is we talk a lot about tough on crime, but what we need to be talking about is smart on crime. So what doesn’t work, except for the amount of time they’re actually in custody, is incarceration. So putting someone in prison keeps them isolated for that small amount of time, and then unless they’re given a life sentence they’re getting out and coming back to our communities, and usually not for the better.
Also your statistics show almost one third are rearrested and returned to prison within two years, which is very similar to our statistics in the US, and two thirds of ours come back to us within five years. So people who go to prison are likely to come back to prison over and over and over again. Very expensive option. Costs over $300 a day to keep somebody in prison here in Queensland, and we have to really use the option of time in custody for the most serious of crimes. If the basis for the person’s criminal activity is mental health, you’re not going to punish that away. If it is substance use disorders, alcoholism, addiction and so forth, you’re not going to punish that away.
There are some people absolutely who need to go, but we have way too many people in prison who could be out in the community learning how to manage their issues of mental health and substance abuse, and being law abiding rather than being law breaking.
Elena Marchetti:
So picking up on that topic of substance abuse, there’s specialty courts that have been introduced both in America, in the States, and also in Australia called drug courts. Can you tell us a little bit about what they’re trying to do, and I guess they’re trying to address, you know, this issue of substance abuse in a way that’s different to what happens in prison.
Peggy Fulton Hora:
Absolutely. Drug courts started in the United States in 1989. There’s now 3,000 courts in the United States, and they’re in 27 countries. Your first court was in 1999 in Parramatta. And a drug court takes high risk, high need offenders and gives them the supervision and support services they need to start addressing their substance use disorder, start going down the road of treatment and recovery. And what’s so special about the court is that everybody’s on the same team. It’s a non-adversarial system, meaning the prosecutor isn’t trying to get the person in jail, the defence attorney isn’t trying to get the person off, the judge is an involved member of the team, not a neutral arbiter, you know, just calling the balls and strikes.
So everybody’s focus is on this individual and what we can do in terms of support to get them to start making the internal changes they’re going to have to make to really reach a mature recovery, and that takes about two years. So they will be under the close supervision of the court with regular random drug tests, with regular appearances in front of the judge, and by regular I mean every two weeks at first, and no more than four weeks the research tells us, as they progress through the stages.
They will have an individual treatment plan which sets up the modality that they need. We want it to be culturally competent. We want women only treatment that is trauma informed. We want treatment that has been successful with Aboriginal and Torres Strait Islanders, and we want to make sure that they’re getting the other supports that they need. That includes a source of income, which you’re very good about here in Australia. We’re not so good in the United States. We need clean and sober housing, because in the early stages of treatment you can’t possibly be around somebody else using and not use yourself. It’s just absolutely impossible. So clean and sober housing. Eventually we want them working or going to school full time or finding something useful to do.
And there are people who have graduated from drug treatment courts over the last 30 years that have gone on to do some pretty fantastic things. My favourite story is a man who went through the Denver drug court as a participant, then he went to law school, then he became a lawyer and was assigned to the drug court, and now he’s the judge in the Denver drug court. Isn’t that amazing?
Elena Marchetti:
That’s great isn’t it?
Peggy Fulton Hora:
If there’s anybody who understands that path it’s certainly he.
Elena Marchetti:
It sounds like it’s actually quite an intensive type of program, and certainly from where I sit it doesn’t sound like something that would be a soft option.
Peggy Fulton Hora:
It is absolutely not a soft option. By the time somebody has been in prison enough times, committed enough crimes, been through the system enough times to qualify for a drug treatment court, sending them back to prison does nothing. They are absolutely inured to punishment, meaning that you could punish them until the cows come home and that’s what they’re used to. What they’re not used to is having a judge say ‘Wow, you did a really good job this week’. ‘My. Really?’ And they kind of look surprised and startled that you’ve spoken to them like that. And what they find is the old default of using drugs when things don’t go well – when they’re lonely, when they’re tired, when they’re upset about something, they start to find coping mechanisms through intensive programming, usually cognitive behavioural therapy of some sort, and with people who know how to deliver it properly – that it’s hard work.
And there’s so much trauma and violence in their lives, the women in particular, but certainly the men as well. The statistic for women, about 90 percent women in substance abuse treatment have been raped or victims of childhood sexual abuse, survivors of domestic violence. I mean there’s just trauma after trauma after trauma in their lives. Sometimes the substance use is a coping mechanism for that. So that has to be addressed, and that’s no fun to talk about. You know, when you get to that part of treatment where you have to kind of start digging around and scraping off the old scabs, it gets very difficult. So no, this is not a soft option, but we know it’s something that works.
About 75 percent of people who graduate from the best drug courts are never rearrested. It’s absolutely incredible. And even the ones that don’t make it all the way through, they have a lower rearrest rate than someone who never started drug court. I had one of the participants who eventually went on to do well, but after he was removed from the drug court say to me ‘Hey. You just ruined my high’.
Elena Marchetti:
Right.
Peggy Fulton Hora:
Exactly. I said ‘That’s quite a compliment. Thank you’.
Elena Marchetti:
Did he see it that way?
Peggy Fulton Hora:
Yes. He did. Because by that time he was clean and sober and had a nice long term recovery.
Elena Marchetti:
I guess you introduced him to a new high. Well a high on living life in a more pro-social way rather than an anti-social way I guess.
Peggy Fulton Hora:
And that’s exactly how the courts work. We reward pro-social behaviour, we reward behaviour that’s incompatible with crime, incompatible with drug use, alcohol use, and teach them how to fun again. Especially those on stimulants, which of course is, you know, your huge problem here in Queensland and all of Australia, the ice problem. Once you have stimulated your brain so unnaturally for so long, it is very difficult to feel pleasure. That state is called anhedonia. So something like playing the guitar, going out to dinner with your spouse, taking your children to the park gives you no pleasure whatsoever.
I had one of my guys tell me one time it’s like walking through a wet, grey, Persian cat. I said ‘Oh man, you’re a poet’. I just felt so heavy and weighted down with his words and how horrible it must feel to not be able to feel any pleasure. So we have to teach them how to have fun again.
Elena Marchetti:
What an interesting choice of words, to compare it to a Persian cat. The emphasis on alcohol and drugs in these courts, I guess why do you think it’s so important to be focusing on those types of substance abuse activities?
Peggy Fulton Hora:
Well you participate in a program here where you drug test people who are arrested on a regular basis and then the Australian Institute of Criminology publishes the results. And if you look at who’s arrested and what they test positive for, something like between 70 and 90 percent of people test positive for alcohol or other drugs when they commit their crime. So it is just at the root of so much criminal activity. Also alcohol is a disinhibitor, so that’s where the bar fights come from. That’s where a lot of domestic violence can happen. Not saying that the alcohol causes it, but it co-occurs with incredible frequency. That’s where breaking into your house and taking your stereo and your computer goes to get the money to buy more drugs. So it just fuels so much chaos and crime and creates so many victims.
There was a statistic that in – I think it was in Victoria. There was an average of 13 burglaries a week that you had to commit in order to support your habit. That’s a lot of burglaries.
Elena Marchetti:
A lot. Yes. In fact I was a victim of a break and enter at my home quite a number of years ago, and it was as a result of someone who’d gone back on to using drugs unfortunately. My computer didn’t get stolen, but all my gold jewellery got stolen, which was sentimental rather than that monetary – that wasn’t why I was too…
Peggy Fulton Hora:
Your grandmother’s ring is much more important.
Elena Marchetti:
Exactly. That’s right. That’s exactly right.
Peggy Fulton Hora:
So the emphasis is on alcohol and other drugs because that’s at the bottom of so much of this.
Elena Marchetti:
Well that’s fascinating in terms of understanding how we should be focusing on this evidence‑based type response to crime rather than I guess the tough on crime response, which is what we’re normally used to. As you say, it’s good to get some offenders out of society because they’re committing quite serious crimes, but it’s probably not a solution for everyone, and particularly people with either mental health problems or substance abuse problems.
Peggy Fulton Hora:
And alcohol and other drug treatment courts are really good at addressing those co-occurring disorders, meaning that about 50 percent of people who end up in such a court also have another mental health problem. So often with some of the most serious mental illness – schizophrenia, bipolar disorder and so forth – one of the huge problems is keeping people on their medication. So what you can do in a drug treatment court, you can order them to do daily pickups of their medicine, you can order them to be watched so they don’t tuck it in their cheek or put it under their tongue. You can do a lot of things that force them really to take that medication. Then also with the cognitive behavioural therapy, start breaking down that belief that they don’t need to take medication, and that with schizophrenia in particular – it has a very long word that I’m not going to be able to think of at this moment – but part of the disorder itself is believing nothing’s wrong.
Elena Marchetti:
In fact that was evidence in a program on ABC just recently called Ice Wars. I think in the first or second episode they were focusing on that exact issue, people with mental health problems who didn’t believe when they were using other drugs that they had any mental health problems. So they weren’t medicating that condition because of their use of other drugs.
Peggy Fulton Hora:
Exactly. So courts can help with that. I had three men who went through my court, because I presided over the drug treatment court, who had schizophrenia. Two who had been diagnosed when they entered the program, one who had exhibited no signs whatsoever that we could see, and then one week after about three months or so of sobriety I said to him ‘So how was your week,’ and he said ‘Pretty good except for these voices’. And I looked over at treatment and treatment is shrugging their shoulders saying ‘I don’t know what he’s talking about’. And so I started exploring with him, and it turns out that at about 16 or 17 he had started experiencing auditory hallucinations and he used the drugs to keep them tapped down so he didn’t have to deal with them.
So we got him assessed, we got him on good medication, got him all figured out, and he was fantastic and he graduated from the program and did very, very well.
Elena Marchetti:
Often the illegal drugs, not the prescription drugs, can also cause though hallucinations or paranoia can’t they?
Peggy Fulton Hora:
Well yes, and especially ice and the stimulants can cause stimulant psychosis. So someone who comes in and is diagnosed as having a psychosis, after three months of not using drugs, poof, it’s gone. So you always have to reassess to see where you’re at. You also are on top of – through the use of frequent and random drug tests – is what we’re doing working. Are they still using drugs and why? So we have to do a reassessment and see has there been a change? Were they lying when they first came in? You know, and now they’re going to tell us the truth and we can adjust to some other modality.
So it’s really important that we have all those different kinds of things that are at our fingertips that we can use, and the idea that it’s a collaborative non-adversarial system where treatment is working with defence counsel who’s working with the prosecutor, the judge, the case coordinator, a housing specialist, a mental health specialist and so forth. Everybody knows everything at all times, and we’re all hooked hands together marching towards the same goal, which is to get this person in a place where they can develop their resolve to go ahead and do this. Because ultimately it’s up to them. What’s no longer true, a myth that we need to bust, is that you have to ‘hit bottom’. That was old thinking from 40/50 years ago, the old AA thinking. That’s no longer true. We don’t have to wait until someone has lost everything. We can intervene and lift that bottom and get them a lot sooner in their disease process before they’ve ruined everything.
Elena Marchetti:
That’s right. And gees, it would be good for that to happen. What do you think is the best part of being a judge, and do you find it much more fulfilling having presided over something like a drug court than say your mainstream system, and if so why?
Peggy Fulton Hora:
No question about it. Even after all these years I’m still very passionate about it. It’s funny, because I have two kinds of dreams about being in court. The first one is I have a jury trial, the jurors are waiting, somebody’s late – the interpreter, the defence attorney – somebody’s not there who needs to be. I’m upset. The jury’s looking at me just sort of tapping their fingers, ‘When are we going to get going here,’ and I’m getting more agitated by the moment and I wake up and I’m mad. That’s one set of dreams.
The other is I’m in drug court and I wake up happy. So there’s no question that seeing someone turn their life around, seeing someone who is able to reunite with their family, who is able to have a job for the first time in their life, who is able to live a full and good life which they weren’t before, and a safe life – because the way they live sometimes is just right on the edge and it’s not a pleasant thing to do. And nobody wakes up and says ‘Gee, I think I’ll be a drug addict’. What fun is that going to be? When that switch flips from use to addiction, it’s kind of a surprise always and all of a sudden you’re not able to stop. And then the spiral starts. Once you’re addicted there’s really only three ways to go – in treatment and recovery, in hospitals and institutions and jail or dead.
Elena Marchetti:
That’s right.
Peggy Fulton Hora:
And we prefer to get them on the first path, which is their recovery, their treatment and their ability to reintegrate into society, to be productive and happy and safe and to contribute.
Elena Marchetti:
Do you think these types of courts are suited for all types of offenders that have a substance abuse problem?
Peggy Fulton Hora:
It’s very much the best model for a high risk, high need offender. If somebody’s just using drugs and they’re being a goofball and they’re 19 years old, mostly you give them a little bit of education, send them on their way and tell them not to do it again. You know, there’s no need to do these big interventions and 12 step programs and so forth.
We’re looking for the hard core, hard case that has been under supervision before and has never done well, who has tried to quit and can’t, who is pretty hopeless sometimes. And we give them hope and say ‘Hey, I’ve seen hundreds of people just like you go on and do well, and I know you can do it’. So no, on the continuum of responses it’s a very specific high range response, and it’s the last response before prison, because you want to keep them out of that and into this longer term solution which is the drug treatment court.
Elena Marchetti:
How rewarding it must be to have been a part of that, and how fantastic you can tell the rest of us about the benefits of doing something like that. So thank you so much Judge Hora. That was fantastic to talk to you. And I hope we can get you back to talk more about this topic.
Peggy Fulton Hora:
Well it’s kind of hard to shut me up when I get started on it I’ll tell you. I just so believe in this, and I’ve spent almost 30 years trying to help other people get to a place where they can set up these kinds of courts, because I’ve seen miracles happen. And I’m going for nothing less than changing their whole life.
Elena Marchetti:
I hope you’ve enjoyed this edition of Sentencing Matters, and for more information on sentencing issues in Queensland, head to our website sentencingcouncil.qld.gov.au.