Therapeutic Justice in Action: An Evaluation of Three Therapeutic Courts

Therapeutic Justice in Action: An Evaluation of Three Therapeutic Courts

Teresa W. Carns

Carns, Teresa W. (Spring 2005). "Therapeutic Justice in Action: An Evaluation of Three Therapeutic Courts." Alaska Justice Forum 22(1): 2-6. Therapeutic justice courts represent a relatively new approach to dealing with chronic offenders whose criminal activity appeared to be primarily fueled by alcohol or drug abuse. This article reports on an Alaska Judicial Council evaluation of the three therapeutic courts in Alaska that handle felony cases: the Anchorage Felony Drug Court, the Anchorage Felony DUI Court, and the Bethel Therapeutic Court. Includes a brief bibliography.

Imagine the following scenario: The defendant has seven prior misdemeanor convictions—three petty thefts, two drunk driving, a disorderly conduct, and an assault. He served a brief stint in a treatment program for alcoholism. Now the defendant is before the court again charged with a felony count of driving while intoxicated. A judge reviewing this defendant’s record sees that the defendant must spend at least the mandatory minimum of 120 days incarcerated. But the judge also notes that the defendant has spent most of that time incarcerated while waiting for trial, along with many other days of jail time in recent years. At other appearances, the defendant was referred for alcohol treatment but he didn’t go. What else is possible? More jail? It didn’t work before to protect the public, except for the brief time that the defendant was actually incarcerated. More treatment? That didn’t seem to work either.

In response to questions like these asked by hundreds of judges about thousands of defendants throughout the country, courts have begun to develop new approaches to chronic offenders whose criminal activity appeared to be primarily fueled by alcohol and drug abuse. These new drug courts, drunk-driving courts, and others have been grouped under the general heading of “therapeutic courts.” Therapeutic justice courts screen defendants using standard assessments for levels of substance abuse, review prior criminal histories, and carefully discuss with defendants the commitments they must make. Once the defendants “opt-in” to the programs, they are sent to outpatient treatment, tested frequently for drug or alcohol use, required to obtain work or education, make restitution to victims, and appear before the judge regularly. As defendants progress through the phases of the programs, they become more independent and receive less intense supervision. Judges use incentives and sanctions to encourage defendants to stay with their plans.

Alaska now has several therapeutic courts in Anchorage and Bethel. Existing courts include the Anchorage Municipal Wellness Court, the Anchorage State Wellness Court (both handle misdemeanor offenders with alcohol problems), and the Family Care Court (for parents with substance abuse problems whose children are in state custody). Major new funding has been obtained for the extension of therapeutic concepts to district courts in Ketchikan, Juneau, Fairbanks, Palmer and other sites during 2005.

The Alaska Judicial Council looked at the three courts that handle felony cases: the Anchorage Felony Drug Court (“Drug Court”), the Anchorage Felony DUI Court (“DUI Court”), and the Bethel Therapeutic Court. With funding from the state’s Department of Health and Social Services, the Council evaluated the effectiveness of the programs, comparing days of incarceration, convictions and numbers of remands for participants to those of similar defendants who did not take part in the programs.

The three therapeutic courts evaluated were created between 2001 and 2002. The Drug Court began in June 2001, and the DUI Court started work in December 2001. The Bethel Therapeutic Court accepted its first participants on June 25, 2002. At the time the Judicial Council’s evaluation began in March 2004, all of the courts had been taking defendants for at least eighteen months.

The Drug Court was funded by the U.S. Department of Justice as part of a nationwide program to create and support drug courts, while the DUI and Bethel Therapeutic Courts were created and funded by the Alaska legislature. The funding sources for each of the courts required them to be evaluated.

The Typical Criminal Justice Process

An earlier Judicial Council study, Alaska Felony Process: 1999, has described the usual felony court process in some depth. Felony defendants not participating in the therapeutic court typically enter into a plea agreement with the state and are sentenced before a superior court judge. Most felony defendants are sentenced to and serve some period of time incarcerated, followed by a period of one to ten years on probation or parole. Judges can require treatment as a condition of the defendant’s release and can impose other conditions related to the defendant’s crime (including fines, restitution, limits on movement or associations, community service hours, and requirements for work or education efforts). Defendants are supervised by felony probation or parole officers. Because the probation and parole officers carry caseloads of one hundred or more defendants at a time, typical offenders see a probation officer relatively infrequently.

The procedures in place for the therapeutic courts differ from this typical process.

Anchorage Felony Drug Court

The Anchorage Felony Drug Court, the first of the felony therapeutic courts, opened in June 2001 after nearly two years of grant-writing, planning and training. Each of the agencies involved—the courts, the district attorneys, the defense bar (generally represented by the Public Defender Agency), the Department of Corrections, the Judicial Council (as evaluator) and the Department of Health and Social Services (as the funder of the treatment providers)—worked through issues related to plea agreements, incentives and sanctions, eligibility criteria, treatment, program structure, and evaluation. Despite intensive efforts to base the Drug Court on a national and well-tested model, many issues still confronted the court with its first participants. Remarkably, despite continuing challenges, the Drug Court structure in 2004 still closely resembled the original model used by the court.

At the time of data collection in March 2004, the Drug Court had had thirty participants, including graduates, people active in the program, and those who had started the program but had left for various reasons. The court and prosecutor had also identified twenty persons as a comparison group, all of whom had considered participation but had not opted-in to the program. Superior Court Judge Stephanie Joannides, who started with the program, continued as the judge. Most of the other team members, prosecutors, defense attorneys, and treatment staff had changed.

One major component of the program did change around the time data collection began in March 2004. The Department of Corrections began winding down its participation, eventually withdrawing the probation officers who had been providing case coordination in all three felony therapeutic courts. As of December 2004, the court had negotiated an agreement with the Alcohol Safety Action Program (ASAP) in Anchorage and Bethel to provide case coordination services for the Drug Court and the other two felony therapeutic courts. At press time for the Forum, the Bethel Therapeutic Court had taken in a number of new participants, but the two Anchorage felony courts were still working out detailed agreements with the Departments of Corrections and Law. The Anchorage courts will resume taking new participants this summer.

Basic components of the Drug Court included:

1. Eligibility decisions based on grantor/funder requirements, other program standards, standard assessments of substance and alcohol abuse, and interviews. For the Drug Court in particular, federal funding restrictions did not allow the participation of offenders with any prior record of violence, or a current violent or sexual offense, or a series of other offenses. The prosecutor made the first decision about eligibility. At a minimum, the defendant had to have committed the offense while using or possessing illegal drugs, or while addicted to drugs, with some connection between the addiction and the offense;

2. A written plea agreement entered with the court that detailed the conditions of the program, and included the provision that when the participant completed the program, the charges against him or her would be dismissed;

3. A program with three phases: Phase I of intensive treatment, testing, and frequent court appearances; Phase II with fewer required meetings and more emphasis on maintaining a job or education; Phase III with occasional court appearances and emphasis on independence and accountability;

4. Random mandatory drug testing, diminishing in frequency as the participant moved through the program;

5. Outpatient treatment combined with support groups (such as Alcoholics Anonymous), with required attendance, again diminishing in frequency as the participants gained more independence;

6. Regular meetings with the judge and Drug Court team, which included a prosecutor, defense attorney, case coordinator/manager, and treatment person. Attendance at the court hearings was mandatory for participants. At the hearings, the judge considered progress reported by the team members and participant, offered incentives (praise, encouragement, and occasionally, small tokens donated to the program, such as tickets to events), and imposed sanctions, if warranted;

7. Immediate sanctions for failed drug tests or other violations of the program’s requirements that could include extra time sitting in court, jail time, increased frequency of testing, and other measures intended to increase compliance with the program and protect public safety;

8. A requirement for safe and sober housing;

9. Twelve to eighteen months of participation for most defendants.

Anchorage Felony DUI Court

In Anchorage, nearly all of the participants in the Felony DUI Court were convicted of felony charges of driving under the influence. This offense was defined as a third DUI offense within the past ten years under AS 28.35.030(n). Some of the defendants in the program may have been convicted under earlier versions of the law that required the third DUI to have occurred within the previous five years. The law has changed several times in the past five years, generally lengthening the period during which the prior offenses could have occurred. Because the program was funded by the state rather than under federal grants and guidelines, the criteria for admission were broader than for the Anchorage Felony Drug Court. Team members considered each applicant and agreed on suitability for the program. There were many more DUI Court participants than Drug Court participants. The evaluation included seventy-four defendants who had graduated, were active, or had opted-out of the program, as compared to a total of thirty Drug Court participants. The comparison group for the DUI Court included 54 defendants, 34 of whom had considered DUI Court but never opted-in and twenty randomly chosen felony DUI defendants from the same time-frame who had not considered the therapeutic court option.

The DUI Court closely resembled the Drug Court in many ways. DUI Court participants appeared before the same judge, attended the same treatment program, had many of the same team members and were largely indistinguishable from the Drug Court participants. However, consequences for the defendants differed. Drug Court graduates had their charges dismissed by the prosecutor upon successful completion of the program, while DUI Court graduates remained on probation for two full years following graduation, with supervision by DOC probation officers.

Bethel Therapeutic Court

The Bethel Therapeutic Court developed differently than the Anchorage courts because of both the different resources available and the different demographics in Bethel. A new superior court position was added to Bethel by the enabling legislation, and the judge was appointed in part because of his interest in therapeutic courts. Because the Bethel Therapeutic Court began work later than the Anchorage therapeutic courts, it had only 51 participants to evaluate, with 30 defendants in the comparison group in March 2004.

Only one treatment provider was available in Bethel who met the program requirements, and that treatment provider used a different treatment model than the therapeutic community model chosen in Anchorage. Because of the treatment provider’s needs, the Bethel Therapeutic Court started defendants in small groups, rather than singly (as in the Anchorage courts). The Bethel court took only defendants whose primary problem was alcohol abuse and included some chronic misdemeanor offenders in addition to felony defendants. This court referred most defendants for naltrexone therapy, along with the same components and most of the same procedures described above in the Drug Court section. (Naltrexone is prescribed to reduce alcohol cravings and is typically taken for 90 to 120 days. It was used by some, but not all, Alaska therapeutic justice programs as one component of the program.)

Additionally, full-time employment or an approved combination of school and work was a requirement for graduation from each of the programs.

Methods of Evaluation

The Council collected data on all of the graduates, participants and former participants in the three therapeutic courts. In addition, staff collected the same information about comparison groups for each of the three programs, making it possible to show where participation in the program might have been associated with different outcomes. The detailed data from the case files were comparable to the data collected for the Council report on 1999 felony cases, with added information about the therapeutic court processes. The Department of Corrections provided information about remands and days of incarceration, and the Department of Public Safety and the Court System provided data about convictions.

The Council staff prepared the data set for analysis. Council staff also provided much of the descriptive information about the participants and comparison groups. The Institute for Social and Economic Research at the University of Alaska Anchorage conducted the multivariate analysis, and consulted on the descriptive data.

Summary of Differences Between Court Participants and Comparison Groups

Perhaps the most significant difference between the court participants and the comparison groups in all three therapeutic courts was that prior records for the comparison groups were noticeably less serious than for the participants in the therapeutic courts. For the most part, defendants in the comparison groups were those who had expressed an interest in the court, but who had decided not to opt in or who had not been accepted. Interviews suggested that, especially in Anchorage, it was perceived that defendants not facing substantial jail time did not have enough incentive to complete an arduous 12 to 18-month long program. The difference held true for Bethel too, although the need for incentives to participate was not emphasized in the few Bethel interviews.

Although the fairly small numbers of participants in all of the groups suggested caution in drawing conclusions, the differences between the test defendants and the comparison defendants were small enough to give a basis for discussion. The most important difference, the less serious prior criminal histories for the comparison groups, suggested that if the comparison defendants had been more closely matched, their outcomes would have been even less positive, and by contrast, the improvements noted in the therapeutic courts would have been more noticeable.

Table 3. Mean Days of Incarceration by Therapeutic Court Participants, by Group and Status

Summary of Findings

Overall, the data tended to show that defendants who had graduated from the court programs and those who were active in the programs had fewer days of incarceration, fewer remands to custody, and fewer convictions after they began the program than during the two years before entering the program. These findings were consistent with findings from a number of studies in other therapeutic courts across the country.

Defendants who were in the comparison groups had significantly more mean days of incarceration after their convictions for the evaluated offense than they did in the two years before. The mean number of remands to custody for the comparison defendants did not change significantly between the before and after periods.

Although further evaluation can be done, and data should be collected over longer periods of time, the present data fully support the hypothesis that therapeutic court participants show improvement in two ways: their outcome measures improved during and after the programs; and their performance measures were demonstrably better than a matched set of comparison defendants.

Qualitative improvements for participants in the Drug and DUI Courts included marked improvements in family stability, employment, education, and financial status. Two drug-free babies were born to participants during the period evaluated. Some of participants also reported improvements in child support and child custody situations and reduced domestic violence during or after participation in the programs.

The felony therapeutic courts that were evaluated served sizable numbers of ethnic minorities. In Bethel, most of the defendants were Alaska Natives, and in the DUI Court, 24 percent were Native. Some Blacks also participated in the DUI and Drug Courts, at about the same rate that they appeared in the general felony defendant population. This finding was important because it suggested that the therapeutic courts were useful with diverse demographic groups and their utility was not limited by demographic considerations.

Analysis by the status of the defendants in the program showed no significant differences by mean age, gender or ethnicity. The Bethel Therapeutic Court had disproportionately large numbers of Natives, and the Felony Drug Court had disproportionately large numbers of women. This further reinforced the finding that therapeutic court effectiveness was not limited by demographics and suggested that the programs could benefit a wide variety of defendants.

About half or more of all participants in the courts evaluated had a record of one or more prior felony convictions. This indicated that the programs were serving many defendants for whom other efforts at rehabilitation had failed and any improvements for these defendants would also serve the criminal justice system.

Most defendants in the program were represented by the Public Defender Agency. Private attorneys did not seem to use the programs as frequently as public attorneys. Type of attorney was not associated with success or opt-out from the program.

About half of Felony Drug Court defendants were charged with property offenses; most of the remainder were charged with drug offenses. All of the felony DUI defendants were charged with felony DUI. Bethel Therapeutic Court participants had a mix of felony DUI charges, a few petitions to revoke probation, and some violent offenses.

Participants in the program and the comparison defendants tended to be older than the baseline group of defendants from the 1999 Judicial Council report on felonies. The mean ages ranged from 32 to 37, with the younger defendants in Bethel and the older defendants in the DUI Court.

Graduates from each of the courts had spent a mean of about 452 days (fifteen months) in the court before graduating. The typical graduate had a mean of 43 hearings in the therapeutic court, and opted-out defendants had a mean of 29 hearings before leaving the program.

These findings suggest further steps that the courts, legislature and participating agencies may wish to consider. The therapeutic courts have demonstrated some notable successes, both in qualitative and in quantitative ways. There have been clear reductions in days of incarceration for participants of programs, and reductions in the numbers of remands and in subsequent convictions. Probation officers noted improvements for participants in jobs, education, family stability and many other areas.

The data support continuation and possibly expansion of the therapeutic court programs. The evaluations also need to continue for several reasons. First, long periods of follow-up are needed to demonstrate the continued effectiveness of the programs. (The legislation creating the therapeutic courts (HB 172) set a deadline for this evaluation of July 1, 2005. To get the report to the legislature for its use during the 2005 session, the Council had to complete its data collection by May 2004.) In addition to the measures of outcomes discussed here, in a future evaluation the Council would compare the numbers of incarceration days, remands and convictions for graduates after they finished the program with comparison defendants (and opted-out defendants) after they had served their sentences. In this proposed analysis, the Council would not include time during the program and thus could better demonstrate the long-term outcomes of the programs. The Council hopes to carry out this analysis during the next two years.

Second, baseline recidivism data for all felony defendants need to be established. Although the participants in the programs generally do better than the comparison groups included in the evaluation, a broader assessment of recidivism for all defendants would give a more solid basis for comparison.

Third, the agencies involved in these programs (primarily the courts, prosecutors, defense attorneys and treatment programs) need to provide data to evaluators that can be used to assess the detailed costs and benefits of the programs. Without more detailed information about the actual in-court and out-of-court time spent by the professionals carrying out the therapeutic court work, it is impossible to compare the real costs and benefits.

Based on previous information available to people around the state, several new misdemeanor programs have been funded with federal and state monies. In considering the usefulness of expanding the scope of the felony therapeutic courts to other communities, professionals involved in the misdemeanor courts should share their perspectives with policymakers for the felony courts. Policymakers also can consider similar programs that could provide many of the therapeutic court benefits at lower costs, or could serve groups of defendants that do not qualify now for the therapeutic courts. They should also keep in mind that program staff believed that continuing support groups and safe, sober housing were chief among the needs for continued success of the program participants.
Finally, each successful graduate of a therapeutic court program has become an employed, sober citizen with tools to help prevent relapse and to remain accountable to the community. If defendants owed restitution to victims, payment was a part of the therapeutic court program. Sustaining and building on the work done by defendants in the therapeutic court programs will help maintain these benefits to the community in the long term.

Teresa Carns is senior staff associate with the Alaska Judicial Council.