Judge’s Crusade Leads To Diversion Program At County Jail
Thursday, June 10, 2010
New York Times: Chicago News Cooperative
by Daniel Libit
Long before he was assigned to the Cook County Court’s criminal
division six years ago, Judge John Kirby was all too familiar with the
logjam of nonviolent drug cases on the court’s docket — 14,000 annually
according to a Justice Department study released last month.
Hundreds of defendants would come before him, plead guilty to a
felony, then be released for time served awaiting trial and return to
their community — only to be arrested again for narcotics possession and
repeat the process. Not infrequently, the offenders were in their late
teens and early 20s and had not graduated from high school.
Convinced that education would help more than punishment, Mr. Kirby
began a one-man reform campaign. He researched the issues and used his
courtroom to experiment with ways of diverting non-violent drug
offenders out of the penal system and into drug treatment and
His approach showed promise. A few offenders will receive high school
diplomas through a Cook County Jail program this month. Local reformers
applaud Mr. Kirby’s changes. And now, despite some contention between
them, Thomas Dart, the Cook County sheriff, and Timothy C. Evans, chief
judge of the county Circuit Court, are exploring ways of expanding the
diversion process into other courtrooms.
The process began when Mr. Kirby finished a five-year stint at bond
court and confronted the overwhelming flood of drug cases in criminal
“The most important issue I saw was education,” Judge Kirby said in a
recent interview. “How do we get young men and women back into the
He set out to answer that question personally, despite the short
supply of resources and know-how within the judiciary.
“He took it on himself,” said Malcolm Rich, executive director of the
Chicago Appleseed Fund for Justice and the Chicago Council of Lawyers.
After Mr. Kirby’s court work was finished for the day and others were
going home, he would drive to community groups and ask for their help.
“He would meet with the superintendent of Chicago Public Schools to
get an education program going for defendants in his program,” Mr. Rich
said. “We consider it to be a fairly amazing effort on part of one
In 2007, the Appleseed Fund produced a report detailing what it said
were inefficiencies and injustices in the Cook County court system. Mr.
Rich and his colleague, Daniel Coyne, an attorney and Kent College law
professor, said there was a need for diversion courts, saying, “The
criminal justice system is currently the de facto drug treatment and
mental health system in Cook County.”
At the end of June, seven one-time drug offenders between the ages of
18 and 21 will receive their high school diplomas from a “virtual
school” at Cook County Jail that Mr. Kirby started in conjunction with
the sheriff’s department. It is the program’s first graduating class.
Although the diversion plan is still in its experimental stage, it is
being viewed by some advocates of criminal justice reform as a possible
model for programs elsewhere.
Mr. Rich, whose two non-profit organizations advocate for
improvements to the criminal justice system, said he thinks the time is
right for the court system to expand its experiment in sending
nonviolent offenders into remedial programs. The judiciary should not
wait for the state legislature to mandate a program and finance it,
according to Mr. Rich. Cook County has made strides with a jail school
and the mental health court, and activists see an opportunity for
progress in reforming the judicial system now.
But Paula Wolff, a senior executive at Chicago Metropolis 2020 and a
leading champion of criminal- justice reform, said judges may not feel
they can exercise discretion in nonviolent drug cases without
legislative support and funding from Springfield.
“It seems to be hard to do one without the other,” she said, “because
sometimes the hesitancy of the judge to do diversion is based on the
fact that he or she doesn’t see the resources.”
Mr. Rich and Mr. Coyne argue that the system could be greatly
improved if it provided judges with the information they needed to send
non-violent drug offenders out of the penal system. Last month, Chicago
Appleseed began a project to inventory the various drug treatment
facilities in the area to assure judges that there are enough facilities
to place offenders.
However, Mr. Rich said he recognizes that there is inertia in the
court system that resists reform. “It is difficult for judges to change
behavior that has gone on for many years before,” he said.
But Mr. Kirby remains optimistic. “In the long run, what I think
you’ll see is the drug courts in Cook County will come up with a program
that they all can follow,” he said. “But we’re not there yet.”
Mr. Dart, the Cook County Sheriff, who previously worked as both a
state prosecutor and state representative, said he has grown impatient
with what he considers to be Mr. Evans’ sluggishness in backing
diversion courts while the county jail’s population is bloated with
non-violent drug criminals.
“I’m not sure what his exact motivation is,” Mr. Dart said of Mr.
Evans. “I have had numerous meetings with him, where we have tried to
talk about things in different ways, and I never get this strong sense
of urgency that I have, and that’s where the testiness comes in.”
But in a recent interview, Mr. Evans said he agrees it is time to
move ahead with reform, as well as with a Chicago Appleseed
recommendation for the creation of five diversion courtrooms to serve as
a trial run. “We may very well be able to do much of that right away,”
Mr. Evans told the Chicago News Cooperative in an interview.
Last year the judge convened a committee to study the topic. The
panel, which meets every few months, comprises more than 40
representatives from the city board of education, the state’s attorney’s
office and the Chicago police department, among others.
“Evans is hopeful,” said Sheila Murphy, a reform-minded retired Cook
County circuit court judge. “He is married to a physician. He
understands there are medical consequences to all these things that
happen to children and adults. We are in an epidemic of addiction and
Mr. Dart noted that Mr. Rich and his reform group “have brought a lot
of heat that I had not seen before. Based on that type of pressure,
there is some stronger chance of a big move out of judiciary than we
have had in the past.”