Remarks of Laurie Robinson, Acting Assistant Attorney General
Office of Justice Programs
Harvard Kennedy School
Executive Session for State Court Leaders
May 1, 2009
Thank you. I'm so pleased to be here.
This is a great opportunity for me and for the Department of Justice. As I'm sure many of you know, the mission of my agency - the Office of Justice Programs - is to improve the operations of the criminal and juvenile justice systems. We do this by providing funding, training, and other resources, but we also do it by facilitating a dialogue with our stakeholders - to hear from them what challenges they're facing, what issues are most important. And that's what we're doing here at this session. And I'm so pleased that we're partnering with Harvard, the National Center for State Courts, and the State Justice Institute. And let me acknowledge Mary McQueen and Janice Munsterman and thank them for their leadership.
Going back to my days working with the ABA, and then during my years as Assistant Attorney General under Janet Reno, I've always felt very strongly that state courts should not just be a part of our exchange with the field, but central to it. But frankly, I've always been struck and rather puzzled by the absence of judges and court representatives from those discussions. It always seemed that everyone else was at the table - law enforcement, prosecutors, corrections, the defense bar - but there was a big empty chair where a judge ought to have been sitting.
Then I would hear from judges, and they would tell me, "We weren't invited." I'm not sure how it happened, but there was a major breakdown in communication. Whatever the cause, a set of key players was missing. So, it's very encouraging to me to see that judges are now part of the discussion, and that we can begin to close the circle.
But I believe that the role of judges goes beyond simply being part of the discussion. Judges are uniquely situated to help lead the discussion, by virtue of both their real authority and their authority as perceived by the community. What I mean by that is that they - all of you here who are members of the judiciary - have a convening power, based on your legal and social standing, and I believe we can and should tap that power to advance criminal justice issues on the national agenda.
When we have conversations about issues like race and justice, like over-representation of minorities in prisons, like immigration and how those issues around immigration intersect with criminal justice - just to mention a few important and tough, timely topics - our courts should be leading the way. They should identify the salient points of discussion and bring people together to talk about what the issues are and how we can map out strategies for confronting them.
I recognize that there's sometimes a reluctance on the part of judges to do this. I also understand that judges are sometimes prohibited from assuming this role, and I'm not sure that the reasons for the prohibition have been clearly thought through. I think the goal of a session like this is to figure out ways to lower the barriers for judicial involvement in policymaking. We need to identify why judges have been unable - or unwilling - to take a leadership role in policy discussions and to develop our argument about why their involvement is so important. We need a sort of cost-benefit analysis.
We can start by looking at where judges have taken the lead. Perhaps a good example is in the area of drug courts. As you know, drug courts have now been around for 20 years, and they've been shown by the research to be extremely effective, both in keeping participants in treatment and in reducing recidivism. They also save taxpayer money.
One of the reasons they've been so successful - maybe the most important reason - is that they rely on judges to monitor behavior and compliance. These programs work because judges are actively involved. Offenders have to make their cases directly to the bench, and that raises the level of accountability.
There's a program in Hawaii that some of you may have heard of, called Hawaii's Opportunity Probation with Enforcement - the acronym is HOPE. It's not a drug court, per se, but it does invoke some of the problem-solving principles that drug courts use. HOPE is the brainchild of a circuit court judge in Honolulu named Steven Alm. (I knew him when he was Hawaii's U.S. Attorney back in the Clinton Administration.) Judge Alm wanted to figure out a way to make drug probationers more responsive to treatment requirements. Basically, the judge lets offenders know that he wants them to succeed on probation, but in order to do so, they have to follow the rules. If they break the rules, they go to jail - right away.
Offenders are required to call a drug test hotline every weekday morning to see if they have to report to the courthouse for testing. . . that same day. If they do have to report, and they test positive, they're immediately taken into custody. If they fail to show up at all, an arrest warrant is issued, and the offender is picked up as soon as possible. A hearing is then scheduled a few days later. The hearings are quick - about 10 minutes - and sentences start off small. Successive violations meet with longer sentences.
Our National Institute of Justice is evaluating the HOPE program, and preliminary results show that it has been very effective at reducing positive drug tests and missed appointments. There also have been far fewer probation revocations and arrests for new crimes. HOPE has been so successful because of the leadership of Judge Alm. By his own admission, it's a pretty simple, common-sense approach. But it took someone of his position and stature to get it going. It's a great example of how judicial leadership can help reform the system.
Again, HOPE isn't a drug court, but it uses some problem-solving principles, like proportionate sanctions and accountability. (And, I might add, it's much less expensive.) We're trying to take those principles to scale, outside the problem-solving court arena. Our Bureau of Justice Assistance is working with the Center for Court Innovation in New York to promote problem-solving, with the idea that this approach can achieve more meaningful and lasting outcomes for all parties - victims, defendants, and communities.
BJA recently hosted a roundtable on problem-solving courts, specifically, on how we can improve coordination of problem-solving courts statewide and how we can streamline resources. So, this is a very practical example of how judges can be instrumental in guiding the discussion about criminal justice reform.
Another example - and this is very topical because of concerns about the spread of the swine flu - is the role judges can and must play in dealing with a potential pandemic. We think about how to respond to a pandemic mostly in public health terms, but we shouldn't underestimate the huge problems caused by the civil disorder that could result - and this is the sphere of our law enforcement and legal communities.
BJA held a symposium back in 2006 to discuss the impact of a pandemic on the justice system, and it was eye-opening to learn from that discussion the extent to which the system could be compromised. We can get a sense of that hearing the reports about what's happening now in Mexico, where the streets are virtually empty in some of the biggest cities.
So many of the court's basic functions would be affected, and so many of the legal issues that we take for granted would have to be re-explored. For example, how do you hold hearings and trials when everyone's afraid to show up - or can't show up? How do you guarantee basic constitutional protections like legal representation and the right to a speedy trial? What about statutes of limitations? What are the due process issues surrounding quarantines and isolation?
When you think about these questions - and recent history tells you that those issues are very real - you realize that we need to get our house in order. We saw after Hurricane Katrina what happens when adequate plans aren't in place for maintaining law and order. States and communities need contingency plans that define roles and responsibilities and identify gaps in legal authority.
BJA, in partnership with the CDC, recently published a set of guidelines on improving cross-sector coordination in advance of emergencies like a pandemic. These guidelines help justice system agencies, including the judiciary, equip themselves to preserve the rule of law while protecting individual liberties. They also help determine how to balance federal, state, and local authority.
These are very complex issues, and I don't think we can overestimate the amount of advance planning needed to deal with them all. This is one of those instances, I think, where judges should exercise their convening power to make sure everyone's on the same page and a viable plan is in place.
Sentencing reform is yet another area where I believe courts and judges can play an important leading role.
A good example of this is in the area of federal sentencing disparities between crack and powder cocaine users. The Assistant Attorney General for the Department's Criminal Division, Lanny Breuer, was on the Hill Wednesday to testify about this before the Senate. He mentioned that most states don't distinguish between crack and powder offenses in sentencing.
The Deputy Attorney General is forming a working group to examine federal sentencing and corrections policy and to make recommendations to the President and Congress on new legislation to address federal sentencing structure. The Deputy Attorney General's Office is reaching out to a variety of stakeholders to be part of this working group, including the judiciary.
There are many other areas - for example, in reentry. BJA is funding a program through the Justice Management Institute to train judges and other justice system officials on evidence-based practices related to reentry and smarter sentencing.
And speaking of evidence-based approaches, we're supporting another project through the Advanced Science and Technology Adjudication Resource Center to train judges on understanding and evaluating complex scientific evidence in cases - for example, forensic evidentiary issues.
This idea of applying sound science to practice is very important to this administration, as you heard from the President earlier this week in his speech to the National Academy of Sciences. This is an area that the Department of Justice and the Office of Justice Programs have been working hard to address, and I want to make sure that state court leaders are central to that effort.
So these are just a few thoughts on the role that I believe state courts can play in reforming our justice system. I'd like to see judges not only part of the conversation, but helping to lead the discussion. I hope that this symposium marks the beginning of that process.