Role of the Judge Standard III. Judge William Meyer (ret.) Senior Judicial Fellow National Drug Court Institute

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1 Role of the Judge Standard III Judge William Meyer (ret.) Senior Judicial Fellow National Drug Court Institute

2 Role of the Judge First and foremost, you are still a judge. Neither your independence nor your discretion is to be surrendered. Constitutional, statutory and ethical obligations remain.

3 Tennessee v. Stewart, NSOP, No. M CCA- R3-CD (October 6, 2008) In Tennessee, the neutral and detached hearing body is statutorily prescribed to be the trial judge. Based upon the statute, we hold that the trial judge violated the defendant s due process protections in allowing the drug court team to deliberate and make a recommendation to the court about the disposition of a matter that was statutorily vested in the trial judge s authority. Further, the record in this case reflects that the trial judge not only received the recommendation from the drug court team, it delegated the decision-making authority to the team. In this regard, it is telling that the trial judge instructed the drug court team at the hearing, I have no thoughts or opinions on what you should do, should you decide that [the defendant] should come back with no sanctions whatsoever, or if he should be revoked and dismissed from the program or anything between, I do not care what your opinion is. I trust your judgment.

4 Judge as leader of the team. Continuity of relationship between judge and participant Relationship from acceptance in program throughout treatment and commencement and aftercare The message is Someone in authority cares

5 Lower Recidivism A study of approximately seventy Drug Courts found nearly three times greater significantly lower recidivism when the judges presided over the Drug Courts for at least two consecutive years (Carey et al., 2008, 2012)

6 Percent increase in cost savings Drug Courts That Have Judges Stay Longer Than Two Years Had 3 Times Greater Cost Savings 30% 25% 20% 8% 10% 0% Judge is on bench at least 2 years N=9 Judge is on bench LESS THAN 2 years N=3 Note: Difference is significant at p<.05

7 Length of Term Maintain continuity of the program Judge is knowledgeable about policies and procedures

8 Consistent Docket Same Judge throughout participants enrollment Back-up Judge versus unqualified Standin Judge

9 Length of Court Interactions Drug Courts Where the Judge Spends an Average of 3 Minutes or Greater per Participant During Court Hearings had 153% greater reductions in recidivism

10 How? What did you do this week to stay sober? Describe one of the most important reasons for you to stop being dishonest? What does responsibility mean to you?

11 How? What past hobbies or activities are you looking forward to getting re-involved in? What are some things in your work or school that are getting in the way of your change efforts?

12 Manualized Treatment Cognitive Behavioral AA/NA/ or secular12 step what step are you on?

13 Judicial Demeanor Offers supportive comments Stresses importance of clients commitment to treatment and other program requirements Express optimism

14 Not Supportive, but Actual Excerpts from Royal Navy and Marines Officer Fitness Reports You would be out of your depth in a car park puddle. Since my last report you have reached rock bottom, and started to dig. You set low personal standards and then consistently fail to achieve them. You work well, when under constant supervision and cornered like a rat in a trap..

15 Procedural Fairness Knowledgeable of client s case Know them by name Encourage them to succeed Emphasize treatment Not intimidating Approachable Let them tell their story Treat them fairly and with respect Impartial do not prejudge

16 DRUG COURT ENVIRONMENT What environmental elements are necessary to create and operate an effective drug court?

17 Variables in Courtroom Environment Ambient noise, distraction Participant miked Closeness to bench

18 Variables in Courtroom Environment Participant next to lawyer Who is first addressed by judge Level of eye contact Physical contact Arranged seating

19 Order of cases Variables in Courtroom Environment Time spent with participant Frequency of courtroom sessions Judge addresses gallery Participant addresses gallery

20 Relationships in the Drug Court Environment Relationship between Judge and Participants Audience Staff / Team

21 Staffing

22 Movie jeff staffing

23 JUDICIAL STYLES

24 Judicial Styles Talks or Listens Formal or Informal

25 Judicial Styles Be Supportive Use Motivational Enhancements Avoid Confrontation

26 Movie Judge Finley

27 Judicial Interactions Studies have consistently found that Drug Court participants perceived the quality of their interactions with the judge to be among the most influential factors for success in the program (Farole & Cissner, 2007) Significantly greater reductions in crime and substance use were produced by judges who were rated by independent observers as being more respectful, fair, attentive, enthusiastic, consistent and caring in their interactions with the participants in court (Zweig et al., 2012)

Factors related to the Decision to remain in Drug Court 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Discuss Progress with Judge Quality of Treatment Knowledge of urine/breath testing Important Not

28 Factors related to the Decision to remain in Drug Court 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Discuss Progress with Judge Quality of Treatment Knowledge of urine/breath testing Important Not important Missing Fear of Sanctions Contrino, K. et. al., Factors of Success: Drug Court Graduate Exit Interviews, Amer. Journal of Criminal Justice, (January 6, 2016) Positive Incentives Positive Improvements with Social Factors

29 Relationships between Judge and Participants Positive Authority Figure Consistent Knowledgeable Empathy

30 Relationship Between Judge and Audience DIRECTING COURTROOM THEATRE The judge has the ability to shape and reinforce individual accountability. By engaging the drug court audience and setting examples, the judge can communicate important principles.

31 Movie Judge Cuezot

32 How to evaluate and deliver consequences

33 Response Considerations and Elements 1. Who are they (Risk/ Need)? 2. Where are they in the program (what phase)? 3. Which behaviors we are responding to (are they proximal or distal)? 4. What is the response choice and magnitude? (including treatment response) 5. How do we deliver and explain the response (using the above elements)?

ROLES OF THE JUDGE Contemporary Knowledge; Active Engagement; Professional Demeanor; Leader Among Equals A. Professional Training B. Length of Term C.

34 ROLES OF THE JUDGE Contemporary Knowledge; Active Engagement; Professional Demeanor; Leader Among Equals A. Professional Training B. Length of Term C. Consistent Docket D. Pre-Court Staff Meetings E. Frequency of Status Hearings F. Length of Court Interactions G. Judicial Demeanor H. Judicial Decision-Making

35 Judicial Satisfaction in Problem Solving Courts A recent report card on drug courts reflects that 844 drug-free babies had been born to mothers active in drug court in the preceding twelve months. Bluntly, drug courts have been found to appreciably reduce crime, while being more cost effective than any alternative. Drug Court Judicial Benchbook (2011), p. 216

36 Advice Read the Judicial Benchbook Listen to the team, but use your discretion Follow the experts recommendations Adhere to procedural due process Go to NADCP National Conference

37 The Drug Court Multidisciplinary Team Best Practice Standard VIII

38 Staffing: What is it? Pre-Court Conference Opportunity to discuss participants progress before court Sharing of information since last court session Advocating for individual positions, but reaching a consensus for court

39 Staffing: Who Attends? Drug Courts produce significantly greater reductions in criminal recidivism and are significantly more cost- effective when the following professionals are dedicated members of the Drug Court team and participate regularly in pre-court staff meetings and status hearings (Carey et al., 2008, 2012; Cissner et al., 2013; Rossman et al., 2011; Shaffer, 2010):

40 Staffing: Who Attends? All team members or their designees with relevant information on the participants progress since last court session Judge Prosecutor Defense Attorney Treatment Community Supervision-Probation Law Enforcement

41 Key Multidisciplinary Moments in NADCP Team History }Twice the cost benefit Carey et al. (2012)

42 Staffing: What is Discussed? Progress of Participant Assessment Attendance at scheduled appointments Drug Test Results Attainment of Goals Symptom Resolution Compliance with curfew, EHM New Arrests or new offenses Incentives or Sanctions Phase Movement Termination, Graduation, Admission Order of Cases Special Issues

43 Staffing: Team Communication Researchers have improved team decision-making skills in several Drug Courts using the NIATx (Network for the Improvement of Addiction Treatment) Organizational Improvement Model (Melnick et al., 2014a, 2014b; Wexler et al., 2012). The NIATx model seeks to create a climate of psychological safety by teaching team members to articulate divergent views in a manner that is likely to be heeded by fellow team members.

44 Staffing: Team Communication Avoid Ego-Centered Communications Avoid Downward Communication Practice Attentive Listening Reinforce Others Statements Find Common Ground

45 Staffing: Team Communication Reframe Statements Neutrally Ensure Inclusiveness Show Understanding Sum Up The judge should recap the various arguments and positions, assure the team that all positions were considered carefully, and explain his or her rationale for reaching a conclusion or tabling the matter pending further information.

46 Staffing: Team Communication Avoid Ego-Centered Communications Avoid Downward Communication Practice Attentive Listening Reinforce Others Statements Find Common Ground

47 Are Staffings Open? In most Drug Courts, staffings are presumptively closed. Discussions are not transcribed or recorded and the meeting is not open to the public or to participants unless the court has a good reason to allow a participant to attend discussions related to his or her case. In a recent opinion, the Washington State Supreme Court which traditionally holds a very dim view of offthe-record proceedings ruled that staffings may be presumptively closed at the discretion of the Drug Court judge (State of Washington v. Sykes, 339 P. 3d 972(2014)

48 Final Decisions in Staffing? No final decisions are reached concerning disputed facts or legal issues in the case, and the judge recites in open court what decisions, if any, were made during the staffing. A closed staffing may not result in a binding order or factual conclusion related to a contested matter (Meyer, 2011a). Contested matters must be addressed and resolved in open court during status hearings or related due process hearings such as termination hearings or probation violation hearings. See, State v. Leclech, 188 Wash. App (2015)

49 Staffing: How Often? Typically, staffing correspond with, and immediately precede the drug court session, to ensure timely use of information

Percent Reduction in Recidivism Drug Courts That Held Status Hearings Every 2 Weeks During Phase 1 Had 50% Greater Reductions in Recidivism 46% 50% 40% 31%

50 Percent Reduction in Recidivism Drug Courts That Held Status Hearings Every 2 Weeks During Phase 1 Had 50% Greater Reductions in Recidivism 46% 50% 40% 31% 30% 20% 10% 0% Drug court has review hearings every two weeks N=14 Drug court has review hearings more or less often N=35 Note: Difference is significant at p<.1

51 Team Participation=Results Studies further reveal that consistent attendance by all team members at status hearings is associated with significantly better outcomes. A study of approximately seventy Drug Courts found that programs were 35% more cost-effective and 35% more effective at reducing crime when all team members the judge, program coordinator, defense representative, prosecutor, probation officer, treatment representative, and law enforcement representative attended status hearings regularly (Carey et al., 2012). When a treatment representative attended status hearings regularly, Drug Courts were nearly twice as effective at reducing crime and 80% more cost-effective, and when a representative from law enforcement attended hearings regularly, Drug Courts were over 80% more effective at reducing crime and 60% more cost-effective (Carey et al., 2008, 2012).

52 Special Concerns Ex Parte Communications Laws Regarding Confidentiality Permanency Decisions Ethical Issues

53 Special Concerns Turf Battles Team Members who Don t Have the Authority to Speak for their Boss Time Constraints Dealing with Administrative Matters

54 How Can I Find the Time? When Necessary, Courts have done staffing at lunch or over breakfast Be organized! Separate drug court files, written or electronic History of participants at fingertips What incentives and sanctions have been given in the past? Take leadership and move along

55 Potential Concerns Geography Rotating Judges Absent Team Members Lack of Timely Information

56 Absent Team Members Develop MOUs and MOAs Consistent Team Members Don t get newbie's Knowledgeable

57 Team Cohesion Designate another time for administrative and team building issues Allow team members to have their say Recognize professional obligations of certain team members Encourage continuing education

58 Judicial Decision Making Ultimate arbiter of facts Makes final decision Considers team input Relies on the expert input of trained treatment professionals

Legal and Adversarial Roles in Collaborative Courts

Legal and Adversarial Roles in Collaborative Courts Wisconsin Association of Treatment Court Professionals 2017 Conference May 11, 2017 Charlene D. Jackson, NADCP Consultant Why Drug Courts? War on Drugs