SURJ

Chief Justice Daniel Hermann vigorously spurned us on to work on matters for the improvement of the administration of justice. He would keep us moving by reminding us that reform is not an exercise for the short winded. He got a lot of us excited over making a great court system the best in the country, but his interest was not limited to the court, courtrooms or the courthouse. He urged us to search out defects in the law and to fix them. He preached we have a moral obligation not to turn away from inequities in the law just because they do not touch us personally or professionally.

Serving in the House of Delegates for the ABA for more than a decade was a wonderful advantage. It provided an insight into the broader view of the legal landscape. As lawyers we have been trained upon what has been the norm in the past; stare decisis, precedent, case in point, all were important concepts in our legal training.

Adherence to the past has its benefits, but at the same time can be like driving while blindfolded. No better example of the danger and the damage of such a reckless endeavor exists than the fact that it took almost sixty years to begin the correction of the wrongs spawned by Plessy v. Ferguson. The practice in which we have engaged, the imposition of mandatory sentences will, when the light finally goes on, be regarded with the same sense of shame we share for the discriminatory practices sanctioned by Plessy. Treating human beings as indistinguishable from one another is as evil a practice as treating people differently solely because of their race.

Coming back from an ABA meeting sometime in the South in 1990, by happenstance, I got seated with members of the Florida ABA delegation. They were excited because one of their judges had established a concept (with the cooperation of the prosecutors) which they referred to as the “drug court”. It was in its early stages, but the results looked promising. It would slow the reckless speed at which young people were felonized; it would ensure treatment for addicted arrestees; it would encourage education; it would keep families together; but most importantly, it would enhance public safety.

Upon my return home John Taylor of the News Journal agreed to publish a plea for what was most certainly a more enlightened way to handle a large number, but not all drug cases. I did not invent the concept, it was a Florida concept shared with me by colleagues whose names I am embarrassed to say, I no longer recall.

On July 1, 1990, the News Journal carried as an OP-Ed piece the article I wrote describing the Florida concept:

“The great number of drug-related convictions is largely responsible for the explosion of the prison population. It seems we are creating felons out of our young people at a historic rate. Is there some comfort to be taken from that fact? I suggest not.

“We need desperately to take an enlightened look at that situation. We need to save our young people when we can.

“Drug offenders should be divided into three basic categories: drug users, those who sell drugs to support a habit and those who sell drugs for a profit. Those who sell drugs for profit belong in the criminal justice system; the others do not.

“We ought to try to save our young people from the criminal justice system and themselves, if necessary.

“Following a pilot project initiated in Florida, a separate Drug Court is initiated. We need not spend the money to actually set up a new court. We could simply designate one of our judges as the Drug Court.

“When arrests are made, the individual appears in the Drug Court. He is asked if he wishes to avoid the criminal justice system. If he does, he waives his right to a speedy trial and he is required to accept a list of conditions that are appropriate to his situation. If he fails to substantially comply, he goes back into the criminal justice system.

“As conditions, he may be required to continue his college education, to work without interruption, to provide for his family, to report to the court weekly, monthly or daily, if necessary. Most important, he is required to have weekly or bi-weekly urine tests. He is required to comply with psychiatric or psychological treatment.

“He gets all of the things that support rehabilitation, most of which are not available in jail. His family life is improved; his future is not destroyed. We hope the habit is terminated. And we get to spend public funds for public good.

“Don’t tell me that substance abusers can’t be cured. Look around at how many of you smoked habitually five years ago. There is no more addictive habit than the deadly cigarette. I gave it up two years ago, and most of my friends have given it up. It is true that there are still a few diehards, but the numbers are with us. Addiction can be cured.”

It was not until April 1994 that Delaware’s Drug Court began full operation. It functioned remarkably like the Florida Drug Court. What have been the results? Thanks to Judge Richard Gebelein and Judge Carl Goldstein, our Drug Court has realized the benefits anticipated by Florida. The Superior Court website lists some of the benefits:

The Court does not comment on the obvious. It does not mention: the families that were held together, jobs not interrupted, educations completed. You have to take your hat off to those Superior Court judges who made it work and to the police and prosecutors who helped to make it work.

The main purpose of the July 1, 1990 writing in the News Journal was a plea for Delaware to discard the mandatory/minimum sentence. The plea was to once again place discretion for sentencing in the hands of the Delaware judiciary, where it had traditionally been. The same Delaware Judiciary so nationally acclaimed.

Statistics believed to be reliable suggested we were spending public dollars unnecessary for incarceration which were then not available for desperately needed public services. At that time, it was obvious we needed assets to improve police services; we were desperately looking for a way to finance medical care for the elderly and the for indigent; we were embarrassed by our homeless problem and needed funds for better prenatal care and to protect the environment.

The plea was not that prison be abolished, but only that mandatory sentences be abolished. Trust the Delaware judiciary. Does anybody think that public safety requires mandatory sentences? Does anybody think there is a Delaware judge who would not impose imprisonment on someone who was a threat to public safety? I have not heard that suggestion.

It is sad to compare the cost of our obsession with incarceration in 1990 with current cost figures.

It was then projected that in 1991 our prison bill would be $74 million, $86 million was projected for 1992 and $100 million for 1993. Those projections were stated not to include the “Bill for new facilities which will cost an estimated $22.5 million.”

Currently, it is estimated each prison bed costs more than $26,000 per year. The Department of Corrections bill for 2004 is estimated to be almost $190 million. The latest prison expansion costs more than $180 million by itself. Delaware currently has 6,600 persons serving prison time (an increase of 360% over the past 20 years). It is estimated that 80% of incarcerated offenders have a substance abuse problem, but less than half receive treatment.

The United State has achieved the distinction of imprisoning a greater percentage of it citizens than any other country in the world. We have replaced the Soviet Union and South Africa in that regard. Delaware, according to recent reports, has an imprisonment rate which is among the highest in the country.

While we have maintained our leadership positions in the numbers of our citizens we incarcerate, how are we doing in the other areas? Sadly, not so well!

According to a 2003 report of the United States Health Foundation, Delaware ranks as the 34^th healthiest state in the nation. Almost 12% of Delawareans lack health insurance, 7.5% of Delaware’s kids are without health insurance. It is estimated for the period of 2000-2002 that 6.7% of Delaware’s adult and 16.4% of children live in poverty. Some of that prison money would help improve those problems.

I am convinced that without endangering public safety, we could reduce the cost of running our prison system by putting back in the hands of judges responsibility for determining appropriate sentences.

I remain passionately committed to the concept that mandatory sentences are cruel, inhuman, needless expenditure and an ineffective tool in the effort to reduce crime.

I am sorry that we have been so ineffective in the effort to correct Delaware’s sentencing policies. We could not get approved even a “safety valve” Bill that would allow the Court to deviate from a mandatory sentence where the interest of justice required it. Currently SURJ, an organization which has engaged in the effort to improve Delaware’s sentencing concepts, has among its leadership, distinguished Delaware lawyers. People like retired Supreme Court Justice Joseph Walsh, Rodman Ward, Jr., Carl Schnee, Tom Foley, O. Francis Biondi and Ned Carpenter sit on the Board of that organization which is chaired by former Governor Dale Wolf. The Board includes many other distinguished citizens among whom are: former Governor Russell W. Peterson, Joe Del’Olio, Marlene Liechtenstein, Janet Leban, Judy Mellon and others. Many of us have hoped that SURJ would lead the way to this needed reform.

The Delaware State Bar Association, Chief Justice Veasey and President Judge Ridgely have urged review of the sentencing process, but the call for modifying harsh sentencing practices is not limited to Delaware. Notably, Michigan recently abolished its mandatory laws. Federal judges have been vocal in their protests. A number of federal judges have even given up their judgeships because of the limiting requirements of federal sentencing guidelines. Justices Kennedy and Souter of the United States Supreme Court have added their voices to the call for reform as has current ABA President Dennis Archer.

You have the feeling that there is an inexorable wave building for reform of this ineffective and oppressive system. It is going to come! The nagging concern is how many more people are going to be victimized by mandatory sentencing before the corrective force occurs. We must remind ourselves that these are not numbers with which we deal, but people. People with wives, kids, fathers and mothers. How many more must be written off before correction?