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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 educational programs.

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 court.

“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 educational process?”

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 judge.”

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 depression.”

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.”



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