Can Judicial Compassion Be Unethical?

Veterans’ Treatment Courts

Two months ago something happened that has been bothering me ever since. A judge in North Carolina sentenced a man to 24 hours in jail then joined him in the cell for the night. District Court Judge Lou Olivera is a veteran of the Gulf War and presides over a Veterans’ Treatment Court. An explanation of Vets’ Courts may be found at here.  Vets’ courts are the latest iteration of drug courts where the treatment and recovery of the criminal defendant (most often called the “participant”) is the focus of the court, not the adjudication of facts. After entry of a guilty plea the court coordinator and mental health/substance abuse treatment providers develop a treatment plan with the assistance of a Veterans’ Justice Outreach (JVO) Specialist who is employed by the Veterans Administration. Through a series of progress reports in front of the judge, the participant’s progress is closely monitored. When doing well, a participant is rewarded; when not doing well, the participant is sanctioned. There may also be treatment adjustments from time to time.

Incidence of PTSD

In this particular case Sgt. Joseph Serna had appeared in front of Judge Olivera 25 times for progress reports. On the day of this particular incident, Serna admitted he lied about a recent urine test. The former Green Beret suffers from severe Post Traumatic Stress Disorder (PTSD), a common affliction among combat veterans. Previously ignored by the service, the Veterans Administration now has a National Center for PTSD.  Among veterans, PTSD and Traumatic Brain Injury (TBI) is found in almost 20% of the population compared to 3.6% of men and 9.7% of women in the general population.

Sentence of 24 hours in jail

Although Judge Olivera had a variety of choices when imposing sanctions for lying about the urine test, he chose to sentence Serna to jail time.  The judge himself drove Serna to jail and noticed he was responding negatively. According to news reports, the judge said, “When Joe first came to turn himself in, he was trembling. I decided that I’d spend the night serving with him.”

The participant saw it this way: “He is a judge, but that night, he was my battle buddy,” Serna says. “He knew what I was going through. As a warrior, he connected.”

At the end of the one-day sentence, the judge drove Serna home after stopping to buy donuts for Serna’s family.

Ethical issues involved

There is no doubt that this was an incredible and compassionate thing to do but it raises so many questions.

* Why did the judge choose a custodial sentence when he could have assigned volunteer work, writing an essay about honesty, stepped up counseling or drug tests or any variety of other sanctions? One of the beauties of treatment courts is being able to individually craft both positive and negative responses to participant behavior.

* Was it appropriate to drive the participant to jail? The American Bar Association Model Code of Judicial Conduct requires a judge to “uphold and promote the, independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety” (Canon 1).  Could someone, knowing the facts, question the independence and impartiality of the judge?

* Canon 2, among other things, prohibits a judge from having ex parte communication. No defense attorney nor prosecutor was present at the jail. No court reporter was on hand to make a record.

Can Judicial Compassion Be Unethical?  Justice Speaks Podcast

Veterans’ Treatment Courts

Two months ago something happened that has been bothering me ever since. A judge in North Carolina sentenced a man to 24 hours in jail then joined him in the cell for the night. District Court Judge Lou Olivera is a veteran of the Gulf War and presides over a Veterans’ Treatment Court. An explanation of Vets’ Courts may be found at here.  Vets’ courts are the latest iteration of drug courts where the treatment and recovery of the criminal defendant (most often called the “participant”) is the focus of the court, not the adjudication of facts. After entry of a guilty plea the court coordinator and mental health/substance abuse treatment providers develop a treatment plan with the assistance of a Veterans’ Justice Outreach (JVO) Specialist who is employed by the Veterans Administration. Through a series of progress reports in front of the judge, the participant’s progress is closely monitored. When doing well, a participant is rewarded; when not doing well, the participant is sanctioned. There may also be treatment adjustments from time to time.

Among veterans, PTSD and Traumatic Brain Injury (TBI) is found in almost 20% of the population

Incidence of PTSD

In this particular case Sgt. Joseph Serna had appeared in front of Judge Olivera 25 times for progress reports. On the day of this particular incident, Serna admitted he lied about a recent urine test. The former Green Beret suffers from severe Post Traumatic Stress Disorder (PTSD), a common affliction among combat veterans. Previously ignored by the service, the Veterans Administration now has a National Center for PTSD.  Among veterans, PTSD and Traumatic Brain Injury (TBI) is found in almost 20% of the population compared to 3.6% of men and 9.7% of women in the general population.

Sentence of 24 hours in jail

Although Judge Olivera had a variety of choices when imposing sanctions for lying about the urine test, he chose to sentence Serna to jail time.  The judge himself drove Serna to jail and noticed he was responding negatively. According to news reports, the judge said, “When Joe first came to turn himself in, he was trembling. I decided that I’d spend the night serving with him.”

The participant saw it this way: “He is a judge, but that night, he was my battle buddy,” Serna says. “He knew what I was going through. As a warrior, he connected.”

At the end of the one-day sentence, the judge drove Serna home after stopping to buy donuts for Serna’s family.

There is no doubt that this was an incredible and compassionate thing to do but it raises so many questions.

Ethical issues involved

There is no doubt that this was an incredible and compassionate thing to do but it raises so many questions.

Why did the judge choose a custodial sentence when he could have assigned volunteer work, writing an essay about honesty, stepped up counseling or drug tests or any variety of other sanctions? One of the beauties of treatment courts is being able to individually craft both positive and negative responses to participant behavior.

Was it appropriate to drive the participant to jail? The American Bar Association Model Code of Judicial Conduct requires a judge to “uphold and promote the, independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety” (Canon 1).  Could someone, knowing the facts, question the independence and impartiality of the judge?

Canon 2, among other things, prohibits a judge from having ex parte communication. No defense attorney nor prosecutor was present at the jail. No court reporter was on hand to make a record. The conversation was personal according to Serna. What did they talk about? How might the judge use this information in the future?

Drug Court: The Criminal Justice System Rolls the Rock, Part 1

In this episode of Justice Speaks, JSI Founder Judge Brian MacKenzie (Ret) speaks with Judge Michael Haley (Ret.), about his upcoming article to be published in the Loyola Journal of Public Interest Law, entitled “Drug Court: The Criminal Justice System Rolls The Rock.” Judge Haley says that his recent retirement as a judge from the 86th District Court in Traverse City, Michigan, provided him an opportunity to step back and take a deep dive into the scientific literature about Drug Treatment Courts and to combine that with his own personal experience in developing a DWI/Drug Court, to create a unique perspective about drug treatment courts.

The discussion focuses on his struggle to create a DWI/Drug Court, known in Michigan as a “Sobriety Court,” at a time when Drug Treatment Courts were not well-known. The title of the article is a classical reference to the punishment of Sisyphus by the Greek gods, where he was required to roll a rock up a mountain, and every time he neared the peak, the rock rolled back down to the base. Judge Haley argues that at the time he became a judge, the criminal justice system’s approach to sentencing drug dependent defendants was as effective as the efforts of Sisyphus.

Drug Court Provides Hope

During the course of the interview Judge Haley discusses how Drug Treatment Courts and specifically his own Sobriety Court, changed his view of sentencing and offered him something he believes is necessary for judges in the criminal justice system — hope. Judge Haley believes that Drug Treatment Courts not only improve the lives of the individuals who participate, but offer a relief from the cynicism that seems to be a common problem for judges.

Judge Haley says that he was lucky to be exposed to the Drug Court model in its early years and that presiding over a Sobriety Court changed how he did judging for all cases. This in turn made him a better judge. The interview presents an in-depth discussion about Drug Treatment Courts and a revealing insight into one of the pioneering judges who helped change the criminal justice system.

Drug Court: The Criminal Justice System Rolls the Rock, Part 1 - Justice Speaks Podcast

Judge Haley (Ret.) congratulates Sobriety Court graduate

In this episode of Justice Speaks, JSI Founder Judge Brian MacKenzie (Ret) speaks with Judge Michael Haley (Ret.), about his upcoming article to be published in the Loyola Journal of Public Interest Law, entitled “Drug Court: The Criminal Justice System Rolls The Rock.” Judge Haley says that his recent retirement as a judge from the 86th District Court in Traverse City, Michigan, provided him an opportunity to step back and take a deep dive into the scientific literature about Drug Treatment Courts and to combine that with his own personal experience in developing a DWI/Drug Court, to create a unique perspective about drug treatment courts.

The discussion focuses on his struggle to create a DWI/Drug Court, known in Michigan as a “Sobriety Court,” at a time when Drug Treatment Courts were not well-known. The title of the article is a classical reference to the punishment of Sisyphus by the Greek gods, where he was required to roll a rock up a mountain, and every time he neared the peak, the rock rolled back down to the base. Judge Haley argues that at the time he became a judge, the criminal justice system’s approach to sentencing drug dependent defendants was as effective as the efforts of Sisyphus.

Drug Court Provides Hope

Drug Treatment Courts provided hope to the judge.

During the course of the interview Judge Haley discusses how Drug Treatment Courts and specifically his own Sobriety Court, changed his view of sentencing and offered him something he believes is necessary for judges in the criminal justice system — hope. Judge Haley believes that Drug Treatment Courts not only improve the lives of the individuals who participate, but offer a relief from the cynicism that seems to be a common problem for judges.

Judge Haley says that he was lucky to be exposed to the Drug Court model in its early years and that presiding over a Sobriety Court changed how he did judging for all cases. This in turn made him a better judge. The interview presents an in-depth discussion about Drug Treatment Courts and a revealing insight into one of the pioneering judges who helped change the criminal justice system.

Alcohol Monitoring: A Vital Part of Probation

Crime and Substance Abuse are Linked

The link between substance abuse and crime is clear. About 90% of criminal cases have involvement of alcohol or other drugs. Because of this link, it is not unusual for abstinence to be a requirement for release on bond or own recognizance; a condition of probation; or, a condition of participation in sobriety courts such as DWI and Drug Courts. Alcohol monitoring is the only way to ensure if a person is complying with a court order.

Not everyone, however, needs to have a “no alcohol clause” even if they got in trouble around drinking. For instance, of first time DWI arrestees, 75% will never be rearrested. The incident itself and rather severe consequences are enough to eliminate future behavior. The 25% are usually high risk/high need offenders with a substance use disorder who, without evidence-based treatment, are almost certain to recidivate.

Trust, but Verify

Compliance rates with an abstinence clause are increased if there is verification. Offenders may be required to submit to various tests such as an on-scene breathalyzer during the police investigation (a Preliminary Alcohol Screening [PAS] device) or a breath test after arrest.

Ignition Interlock Devices

Almost every state has laws about Ignition Interlock Devices (IID). These are machines that are installed in an offender’s vehicle(s) that requires blowing into a tube designed to detect the presence of alcohol. If alcohol is detected, then the person is “locked out” of their car and cannot drive. Modern devices are pretty sophisticated in their methods to prevent tampering such as taking a photo of the individual who is using the device, requiring a “hum tone” when blowing into it and requiring restarts to guarantee the correct driver is operating the vehicle. Within the next five years it is anticipated that all new cars will have alcohol sensors either on the start button or the steering wheel.

24/7 and Continuous Alcohol Monitoring

Almost ten years ago, North Dakota became the first state to develop a 24/7 program. This program requires, as a condition of release from custody, the offender to take a breath test at the local police station twice a day. South Dakota has seen a 93% abstinence compliance rate and a 98% completion rate in their 24/7 program. Montana’s Supreme Court in State v. Spady recently upheld the requirement and found it to be constitutional even though it was a pre-conviction requirement. As an adjunct to the 24/7 program the offender may be required to wear a Continuous Alcohol Monitoring (CAM) device. This is useful for those who have no transportation, live in rural areas, travel for work or have other circumstances that would make it difficult for them to turn up at the police station twice a day. These are transdermal devices that measure whether or not the person has been consuming alcohol.

Other Fluids and Tests

Breath testing and CAM transdermal testing are the least invasive procedures to monitor alcohol consumption. Both urine and the saliva may be tested as well. Blood testing, perhaps the most invasive, is very much in the news. In

Alcohol Monitoring: A Vital Part of Probation - Justice Speaks Podcast

Crime and Substance Abuse are Linked

About 90% of criminal cases have involvement of alcohol or other drugs

The link between substance abuse and crime is clear. About 90% of criminal cases have involvement of alcohol or other drugs. Because of this link, it is not unusual for abstinence to be a requirement for release on bond or own recognizance; a condition of probation; or, a condition of participation in sobriety courts such as DWI and Drug Courts. Alcohol monitoring is the only way to ensure if a person is complying with a court order.

Not everyone, however, needs to have a “no alcohol clause” even if they got in trouble around drinking. For instance, of first time DWI arrestees, 75% will never be rearrested. The incident itself and rather severe consequences are enough to eliminate future behavior. The 25% are usually high risk/high need offenders with a substance use disorder who, without evidence-based treatment, are almost certain to recidivate.

Trust, but Verify

Compliance rates with an abstinence clause are increased if there is verification. Offenders may be required to submit to various tests such as an on-scene breathalyzer during the police investigation (a Preliminary Alcohol Screening [PAS] device) or a breath test after arrest.

Officer giving breath test

Ignition Interlock Devices

Almost every state has laws about Ignition Interlock Devices (IID). These are machines that are installed in an offender’s vehicle(s) that requires blowing into a tube designed to detect the presence of alcohol. If alcohol is detected, then the person is “locked out” of their car and cannot drive. Modern devices are pretty sophisticated in their methods to prevent tampering such as taking a photo of the individual who is using the device, requiring a “hum tone” when blowing into it and requiring restarts to guarantee the correct driver is operating the vehicle. Within the next five years it is anticipated that all new cars will have alcohol sensors either on the start button or the steering wheel.

24/7 and Continuous Alcohol Monitoring

Almost ten years ago, North Dakota became the first state to develop a 24/7 program. This program requires, as a condition of release from custody, the offender to take a breath test at the local police station twice a day. South Dakota has seen a 93% abstinence compliance rate and a 98% completion rate in their 24/7 program. Montana’s Supreme Court in State v. Spady recently upheld the requirement and found it to be constitutional even though it was a pre-conviction requirement. As an adjunct to the 24/7 program the offender may be required to wear a Continuous Alcohol Monitoring (CAM) device. This is useful for those who have no transportation, live in rural areas, travel for work or have other circumstances that would make it difficult for them to turn up at the police station twice a day. These are transdermal devices that measure whether or not the person has been consuming alcohol.

Almost every state has laws about Ignition Interlock Devices

Other Fluids and Tests

Breath testing and CAM transdermal testing are the least invasive procedures to monitor alcohol consumption. Both urine and the saliva may be tested as well. Blood testing, perhaps the most invasive, is very much in the news. In Missouri v. McNeely (2013) the Supreme Court required a search warrant before a blood draw could be done on a driver suspected of alcohol-impaired driving who did not consent to such a test. Two cases before the Court this session, Birchfield v. North Dakota and Bernard v. Minnesota test the laws in 13 states that have “implied consent” statutes criminalizing refusals to take a chemical test after being arrested for DWI.

Biomarkers such as EtG (ethyl glucuronide) and EtS (ethyl sulfate) measure un...

Distracted Driving and Cell Phones:  Hands-Free is Not Risk- Free

April is Distracted Driving Awareness Month. This is a time to raise awareness of the dangers and cost of this growing epidemic.  In 2014, distracted driving in the United States alone resulted in at least:

* 3,179 fatalities

* 431,000 injuries (18% of all crash injuries)

Did you know that 40% of American teens say that they have been in a car when the driver used a cell phone in a way that put people in danger? Expert after expert now declares distracted driving an epidemic.

According to a 2014 special article in the New England Journal of Medicine, the risk of a crash or near-crash among novice drivers increased with the performance of many secondary tasks, including texting and dialing cell phones.

The University of Michigan’s Transportation Research Institute’s 2012 Teen Driver Distraction Study reports that a quarter of teens respond to a text message once or more every time they drive, and 20 percent of teens and 10 percent of parents admit that they have extended, multi-message text conversations while driving.

What is Distracted Driving?

Distracted driving comprises one or more aspects: manual, visual, and/or cognitive. Cognitive distraction is the least obvious but potentially the most dangerous of the three.  Driving in general is probably the most dangerous activity you will do during a day.  The most likely cause of death for someone under the age of 25 is motor vehicle crashes; it is more likely than the next three causes combined. For someone 25 and older, motor vehicle crashes are the second most likely cause of death.  Combine driving and a cognitive distraction and you have a recipe for disaster.

When considering the brain’s capabilities, language skills are a difficult task that takes years to perfect and are one of the first to fail as our brain ages.  Talking and listening use a lot of our brain, although we don’t realize it since it becomes a routine activity. Talking on a cell phone while hands-free or not makes no difference. Both are risky when driving because the brain is engaged in a task that is not related to driving.

The Myth of Multi-Tasking

In today’s society, there is a push to be able to “multi-task.” Many people claim they can do it effectively. But being able to multi-task is a myth. The human brain cannot perform more than one task at a time, nor can it be trained to multi-task. Studies of fighter pilots attempting to train their brain to multi-task have demonstrated the futility of it.

A brain does not multi-task, it switches tasks, sometimes in milliseconds. Instead of giving full performance to two tasks, it choses which task the person has “said” is more important, and then focuses on it.  If necessary, the brain will switch back to another task when something happens. You can tell when the person you are speaking to on the other end of the phone is not fully engaged in the call—you get short answers, or “uh-huh” or “mmmm.”  As soon as you point out to the person that he or she is not listening, the brain changes the focus, you get their full attention, and if that person is driving, it is the attention to driving that suffers.

A Grand Illusion

As humans, we have the ability to fool ourselves; it is like a Grand Illusion.  We believe we see everything in front of us, but in actuality we do not have 180-degree vision.  The brain actually fills in the details.  Add to that the “task switching” the brain is doing, and you start to understand just how much of what is happening is not being recognized by the brain.

Distracted Driving and Cell Phones: More Myths

One thing that has not fooled the scientists who deal with the brain are cell phones and cognitive distraction.