‘Something major': Wake DA partners with nonprofits to clear people's arrest warrants

When people experiencing homelessness in Mesa, Ariz. are charged with low-level offenses such as trespassing or public intoxication, they have the option to participate in community court to get their case dismissed if they agree to seek help from government programs and services. Participants are assigned a "navigator" to help them obtain required identification documents, search for housing, or apply for jobs, and more than 90% of those who graduated from community court in 2021 have not ended up back in the legal system.

Since 2018, Judge Jason Lidyard of Rio Arriba County, N.M., has forged a new model for a drug court. Instead of demanding abstinence from drugs as the price to stay out of jail, Lidyard uses respect and personal relationships to seek a redefinition of success: making substance abuse less deadly and less socially crippling. Violating the court's requirements to get treatment results in more help, not jail. The less punitive approach seemed to reduce overdoses until a new fentanyl surge complicated the picture. Almost all of the people who've gone through the court have avoided new felony arrests.

Eagle County's two problem-solving courts put treatment ahead of punishment when addressing crimes committed by people with substance abuse problems. Originally set up as one court, they now function separately to address drunken driving and drugs and serve people "teetering on the edge of serious prison time" for repeat offenses. More than 90 percent of participants in 2020 maintained sobriety and more than 80 percent avoided new legal troubles. While the threat of punishment is used to win compliance with rules, prosecutors say they're more interested in permanently curing the underlying disease.

When prosecutors in Boston and Baltimore stopped prosecuting certain non-violent, minor offenses, crime of all sorts, from minor to violent, went down. Getting prosecuted and jailed can in itself increase the probability that people will get in more trouble. When their mistakes are not compounded by an arrest record that limits their job and housing prospects, they are apt to stay out of trouble. The prosecutors and research found that simply excluding cases of non-violent, minor drug possession, disorderly conduct, shoplifting from the system does not encourage more crime; probably the opposite.

Kansas' only veterans treatment court started small, but it has proved the concept to Sedgwick County officials who want to copy its success. Veterans courts provide treatment in lieu of conviction and punishment for veterans charged generally with non-violent, less-serious offenses. The costs are much lower than for incarceration, with greater benefits to the defendants. National statistics show a 14% recidivism rate, much lower than for the criminal justice system overall. In Johnson County, 41 veterans have gone through the 18-month program; none have reoffended.

Since 2018, The Bail Project has turned $41 million in donated money into cash bail to free more than 15,500 people in dozens of cities from pretrial detention. The project grew out of the work of Bronx Defenders, which saw over a decade the people it bailed out nearly all showed up for court dates and most did not get into new trouble while out of jail. Now the Bail Project is expanding with new offices in four Southern states, a reflection of the region's high incarceration rates and racial disparities. In the campaign to end cash bail as a penalty for poverty, bail funds serve as a stopgap.

Like standard drug courts, the Penobscot Nation's Healing to Wellness Court refers people facing drug-related criminal charges to substance abuse counseling as an alternative to punishment. But this court and other tribal wellness courts are steeped in indigenous customs, blended with restorative justice approaches, to emphasize rehabilitation based on trust, support, and native traditions. The threat of punishment looms over participants should they fail in their counseling program. But no one has been jailed in the past two years in the Penobscot program.

Missouri legislators passed a law in 2019 clarifying that prosecutors can divert criminal cases to social services and healthcare agencies even before charges are filed. Small experiments that had been taking place in recent years suddenly grew in St. Louis County to help the courts focus only on serious cases during pandemic shutdowns. Now those innovations are spreading, as more drug cases and other low-level cases avoid the courts altogether. This eases the burden also on people, who in traditional drug courts still get arrested and face employment barriers even if their cases eventually get dropped.

Manhattan Mental Health Court was created in 2011 to divert felony criminal cases to treatment, and away from prison, for people in need of mental health treatment. But few people with serious mental illness ever benefit from it. Too few defense lawyers know to request the intervention or do it correctly. Prosecutors act as gatekeepers in deciding who gets the help, and many do not see its value. And, once cases are admitted to the court, they can sometimes take years to be resolved. Covid restrictions on the courts have only aggravated these problems.

Drug courts can help some people with serious drug problems who face serious criminal charges, if such court programs are run carefully, based on evidence-based approaches. But, too often, such courts – which push criminal defendants into treatment as an alternative to incarceration – can do more harm than good. The proof of drug courts' effectiveness is mixed, and fairly thin. Thousands of such courts exist, based on widespread political support for an approach seen as less punitive. But many critics say the courts' track record overall is weak and their approach can be just another form of punishment.