During the planning stages of the CJC, the Mayor’s Office promised the Public Defender’s office two attorneys to staff the court. Two weeks before the court was scheduled to open, we were told that we would not receive additional staff for the CJC. As a result, I began to staff the court, along with Simin Shamji, a manager from my office. However, as the caseload grew, we were both forced to neglect our other responsibilities. I decided that it was no longer feasible for me and this manager to continue to staff the CJC.

On Thursday, August 6, the Superior Court ruled on our office’s motion to withdraw from representing clients at the CJC. We calendared 178 cases, which represent all of our CJC clients. At the hearing, we established that we have no choice but to withdraw from cases because: 1) our attorneys’ current caseloads are 50% over the maximum caseloads permitted by the American Bar Association, therefore we cannot absorb the CJC cases into our existing staff; 2) withdrawing from CJC cases would not harm clients; and 3) it is impractical to have our attorneys staff both the CJC and the Hall of Justice.

The Court granted our motion as to the bulk of the cases, approximately 150-160 cases. The court ruled that we would retain cases in which we have already provided substantial representation to the client. This amounts to about 20-30 cases. The court allowed us one week to return to demonstrate whether we should be relieved in these cases, as well.

The Indigent Defense Panel administrator sent an email asking if conflicts panel attorneys would be willing to provide pro bono representation at the CJC “as a way to demonstrate to the Board of Supervisors that the panel is willing to assist the City with the current budget crisis.” The email also stated that “representation should take about 3 appearances to resolve the case and then no appearance will be needed during monitoring unless the attorney is notified by the court.” In response to this request, I sent an email expressing my concerns (read the text of this email here).

I believe that the Public Defender’s office has successfully set the standard of practice at the CJC. When we began staffing the CJC, most of the cases that were assigned to the court were cases that would have never been prosecuted at the Hall of Justice. For the most part, this practice has stopped. We made sure that clients who appeared to answer charges at the CJC received a dismissal of their case before being offered services. It was important to ensure that clients, who would not otherwise have been charged with a crime, did not become defendants by virtue of having their cases heard at the CJC.

We adamantly insisted that the legal outcomes at the CJC were better than the outcomes at the Hall of Justice. This is because persons who participate in the CJC are investing time and effort into turning their lives around, and therefore should receive a better legal outcome, not a worse one.

Additionally, we worked to ensure that when a client was offered services at the CJC, that those services were “real” services and that the service provider, like the client, was held accountable for the outcome. It is a defender’s responsibility to ensure that the client receives the benefit of the bargain when it comes to services offered through CJC.

Finally, we insisted that the constitutional rights of our clients were respected and enforced. We carefully reviewed each case to determine if there were legal motions that should be brought to assert certain legal rights. We exercised the right to jury trial when the client so desired. We also resisted the notion that clients sent to CJC should be presumed guilty and immediately referred to services, regardless of the merit of the prosecution’s case.

I am hopeful that attorneys who handle the CJC cases in the future insist that the protections of our justice system are applied equally to CJC clients.

I estimate that we will probably be out of all CJC cases by the end of August.

Now that it has been operational for three months, the Community Justice Center (CJC) should be evaluated based upon a factual and empirical analysis of objective data from the cases that have been heard in the court.  With the upcoming budget hearings focusing on the city’s dire financial situation, there will no doubt be a discussion as to whether the court is on the road to fulfilling its promise or whether the money spent on this court could be better invested elsewhere.

It is important at the outset, to separate the discussion of funding for the court from the operations and outcomes of the court.  The question of whether the cost of the court is justified should be viewed independently from the question of whether the court is doing what was promised.   Whether the court is producing its intended outcomes is a separate issue from what it costs to operate, or whether the money could be put to better uses.  There will always be other competing uses of funds and it is unfair to compare uses that have different objectives or outcomes from that of the court.

Before there can be an honest debate, there must be accurate information upon which to rely upon which to assess the legal and social outcomes realized by the court.  While anecdotes may be informative, they rely largely on the party reporting the event.  For example, one might say, “I saw a person who received services from the court who was able to really turn their life around, and I could tell that she was happy and wanted to be there.”  This may be true or it may not be — it is simply the subjective opinion of the person reporting the event.  What is more telling is whether the specific legal and social outcomes that were set for the individual were met, and whether the resulting change in behavior affected the community.

According to the original needs assessment, completed in 2008, which set for the plan for the CJC, the purpose of the court was to address problems such as “drug dealing, aggressive panhandling, graffiti, prostitution and public urination.”   The court’s representatives promised that it would be a change-agent in the Tenderloin, which has long been perceived a containment zone for crime.  A community poll revealed that the top complaint involved “drug dealing, and drug and alcohol abuse.”  The court was to provide “leadership and a coherent approach to coordination of service delivery … within the justice system.”   The concept was simple: a host of services would be offered on-site to persons who needed or wanted services through the court.  These services were to include drug treatment, mental health programs, support groups, counseling, career development and job training.

I began staffing the court myself when it opened in March 2009 and am familiar with its operations.  In the spirit of providing an accurate and evidence-based evaluation of the court’s first three months in operation, I offer a number of informational points for the discussion that may follow.

1) What type of case is being heard at the CJC?

The types and numbers of cases are easily determined by listing the case by its case type, and the number of these cases heard at the court.  This will provide information about the type of cases that are being referred to the CJC, and the type of cases that are not being referred there.  Based on the cases I have seen at the CJC, the case types include the following categories:

a.       Public nuisance – Penal Code 372

b.      Obstructing the sidewalk – MPC 22(a)

c.       Lodging – Penal Code 647(e)

d.      Possession of paraphernalia – Health and Safety Code 11364 HS/M

e.      Petty Theft – Penal Code 484

f.        Possession of narcotics – Health and Safety Code 11350a HS/F

g.       Under the influence of a narcotic – Health and Safety Code 11550 HS/M

h.      Marijuana possession – Health and Safety Code 11357

i.         Possession with intent to sell – Health and Safety Code 11351

j.        Drug Sales – Health and Safety Code 11352a

k.       Assault & Battery – Penal Code section 32

l.         Vehicle code infractions

m.    Miscellaneous crimes

To avoid confusion, since some cases have multiple charges, each charge must be counted. There should also be a separate count as to the number of cases.

2) What are the legal outcomes of these cases?

The term “legal outcome” refers to the disposition in court on a particular case.  There are a number of legal outcomes that commonly occur:

a.       Discharged cases (cases which appear on the court calendar but are not charged)

b.      Bench warrant (case is filed but the accused fails to appear)

c.       Dismissed/pending after performing community service through the CJC

d.      Dismissed/pending after referral to pretrial diversion program

e.      Dismissed/pending after referral to drug diversion program

f.        Dismissed/pending after referral to a drug program

g.       Court date rescheduled

h.      Continued on probation

i.         Case resolved through guilty plea

“Pretrial diversion” is a program that is operated by Pretrial Diversion, Inc. a long-time non-profit organization that handles cases at the Hall of Justice.  Established by statute many years ago, the Pretrial Diversion program provides community service opportunities for first time offenders.  Pretrial diversion is not available at the Community Justice Center per se; however, the court has used pretrial diversion as a means to dismiss cases when a person has agreed to perform community service at the CJC.

Drug Diversion is a program operated by the Adult Probation Department.  Participants agree to engage in drug treatment and receive a dismissal if they successfully complete a program, which usually lasts six months.  Drug Diversion is a program available at the Hall of Justice.  It is not available at the Community Justice Center, but again, the court has used drug diversion as a means to dismiss cases when a person has agreed to participate in drug treatment.

In addition, there should be a separate accounting of cases of people who did not appear for the court and the number of people who did appear.  There should be an accounting of the people who appeared at the CJC to receive services but did not have a pending case.

3) What are the social outcomes of these cases?

‘Social outcome’ refers the outcomes that the participant achieves as a result of participating in the CJC.  Social outcomes include community service, mental health treatment, etc.  Social outcomes do not include the assessment process.  The number of clients assessed can be accounted for individually; there should be one assessment counted per case.  Social outcomes include:

a.  Mental health treatment at the CJC

b.  Shelter bed through the CJC

c.  Drug treatment through the CJC

d.  Social security  eligibility obtained through CJC

e.  Referrals to outside agencies for services

f.  Referrals to AA/NA

g.  Return to the Hall of Justice (when a case-type is rejected by the CJC or client otherwise deemed not to be an appropriate candidate for the court)

4) Are the social outcomes meeting the overall objective of the court, and how do they impact the community differently than a case outcome at the Hall of Justice?

This would involve an analysis of the social outcomes to determine which of the outcomes could be achieved at the Hall of Justice and which were unique to the CJC.

5) Are the legal outcomes meeting the overall objective of the court, and are the outcomes different than a case outcome for a similar case-type at the Hall of Justice?

This would involve a comparison of the legal outcome to determine which of the outcomes could be achieved at the Hall of Justice and which outcomes were unique to the CJC.

The final two questions involve the cost of the court.  As noted above, these questions should be analyzed separately from questions 1-5, which relate to the case and social outcomes.

6) How much is the CJC costing the city, and how are the resources being used?  A related question is:  How much is being spent by the state and federal government on the CJC?

I have not seen a budget for the CJC as of yet.  However, as far as I can tell, there are four types of costs that are attributable to the CJC:

a.  City personnel charged to the operation of the CJC that is being funded through the city’s general fund or grant sources

b.  Court personnel  charged to the operation of the CJC that is being funded through the Superior Court

c.  City personnel that is not being funded through any CJC monies but are being used to staff the court’s operations

d.  Court personnel that is not being funded through any CJC monies but are being used to staff the court’s operations

e.  Construction, overhead, and operational expenses funded by the city

f.  Construction, overhead and operational expenses funded by the state

g.  Lease, construction, overhead and operational expenses funded by the federal government

These categories draw a distinction between costs accrued by the Superior Court and costs charged to the City and County.  It should be noted that the Superior Court receives state funding and funding from the city.  Some departments receive funding from multiple sources.  For example, according to the Mayor’s budget analyst, the Sheriff is allotted five (5) deputy positions at an annual cost of $515,000 to staff the CJC.  However, the Sheriff is also allotted two additional deputies through the Superior Court (cost unknown).  Thus, the Sheriff has a total of 7 positions allotted to its department through the CJC.    I also understand that a new holding cell will be built at the courthouse at a cost of $700,000.  I believe $200,000 has already been spent, though no construction has begun yet.

7) Could these resources be used in a more efficient and effective way to obtain the outcomes sought by the CJC?

This is the question, I believe, that will be at the heart of the budget discussions.  While the outcomes of the CJC are laudable, the debate should focus on whether those outcomes are being met.

An independent researcher named Melissa Sills volunteered to do a study of the available data from the Public Defender’s office for the CJC cases we have handled to date.  This report answers many, although not all, of the questions above.   Questions 1-5 are analyzed according to the available data.  Note that while the Public Defender’s office handles the bulk of the cases at the CJC, there is only limited data for those cases handled by private attorneys since we do not maintain those files.   However, those cases are included in the case count to give a complete accounting of all of the cases heard at the CJC.  Ms. Sills did not attempt to analyze information concerning the cost-efficiencies, since we did not have access to the CJC budget or other financial information about how much is being spent at the CJC.  I have requested a budget for the CJC from the Mayor’s budget office, but have not received one to date.

I have shared this with the staff of the CJC and other interested stakeholders in the spirit of working towards an objective and straightforward review of the operations of the court.    I will hold my opinions for the time being and let Ms. Sills’ report speak for itself.

Read the report here.

One of the ongoing debates of late surrounding the Community Justice Court concerns the question of how to force a person to change their behavior.  The CJC might be viewed as a social experiment to determine whether coercion is effective in changing behavior.  Will an alcohol addicted person who is hailed into court for passing out on the sidewalk stop drinking because he or she is in court facing some type of sanction?  What about a mentally ill person?  Will judicial sanctions keep them from acting outside the law or engaging in destructive or obsessive behavior directly related to their mental illness?  What about the crack user who continually endangers his health and drains his pocket book in order to get that one last hit?  Will that person be more likely to stop their drug use if they are subjected to punishment?  What about a homeless person who, night after night, sleeps on the sidewalk?

I recently met a brilliant author and political historian named Arthur Evans who wrote a book titled “Critique of Patriarchal Reason.”  In Chapter Two, in a section titled “The Coerciveness of Law,” Evans writes, “whereas customs hold sway through social pressure, and personal values motivate through individual feeling, laws coerce through governmental or judicial machines set up to enforce them.”

Most people choose to comply with the law because that is how they have been conditioned.    Laws that forbid malum in se conduct (conduct that is “bad” in and of itself) are usually followed by those who do not wish to violate social norms or customs that they have been taught.  Other laws are followed because of personal values.  A person who purposely throws an empty cup of coffee from his or her car while driving does not share the personal values of a person who strongly disfavors littering.  Only if the person is “caught” and sanctioned will the person be motivated to change their behavior.

This eventual and resulting change in behavior, of course, assumes the litterer’s rational thought process.   For a person who acts out of mental illness, or the kind of mental derangement that comes with abusing drugs, irrational decision making is rarely influenced by fear of sanctions.  Most people who are addicted to drugs do not think, “I should stop using or selling drugs because I might go to prison.”  If that were the case, we would not have 60% of the people in prison there for using or selling drugs.

Most of the new cases that appear at the CJC fall in the category of loitering, illegal lodging, obstructing the sidewalk, and possession of paraphernalia and marijuana, petty theft and “public nuisance.”  Those less likely to find their way into the CJC are litterers (only 1 case thus far), graffiti artists (3 cases), prostitutes (2 cases) and those fighting on the street (1 case).

As Evans writes, “[a] certain arbitrariness is likewise involved in the making of the laws . . . whatever the commanding entity decrees, is law.  Hence in both their creation and execution, laws are arbitrary and coercive.”   Many people think laws against possessing a small amount of marijuana are less about right and wrong and more about enforcing a shrinking minority view that marijuana should be outlawed in order to protect society from its harm.   On the question of the law’s moral judgment, Evans argues, “laws need not have anything at all to do with right and wrong,” and “even when laws are passed to enforce supposedly universal values, they often turn out to re-enforce the value system of the principal backers of the commanding entity.”

So what are the values of the commanding entity?  At the CJC, it is largely the police, who decide which cases are sent there.  The police would probably say that they are responding to the needs of the greater community, who expect and demand that certain laws are enforced.  But the laws that are enforced are really a combination of what the legislators have decided the laws should be, what laws the police decide to enforce and of course, what crimes are committed in a particular neighborhood.

Evans speaks from personal experience.  As a pioneering civil rights activist in New York, he organized colorful and effective protests against unfair treatment and laws against gays and lesbians.  His successful protests included taking over the clerk’s office and offering only gay (not straight) marriages to surprised callers and enlisting a troop of tuxedoed gay rights activists to greet then New York Governor Nelson Rockefeller at the opening night of the Opera.  (He was hauled away.)  He remembers the days when gays and lesbians could be arrested for showing public affection or violating the infamous “sodomy” laws which outlawed same-sex consensual relationships on the ground that these were “crimes against nature.”  Ironically, these laws were justified on the grounds that they would deter homosexuality and coerce persons not to engage in same-sex relationships.

While it may be debatable whether laws punishing people for sleeping on the sidewalk and loitering are inherently unfair, when we begin criminalizing status offenses and using that as leverage to try and coerce behavior, we are enforcing the culture and demands of a commanding entity.  A homeless person who commits a crime because of their status as a homeless person who is living on the streets becomes a ward of the court, and is then required to modify their conduct to adhere to certain conditions, i.e. find a job, live in a shelter, enroll in classes or seek public benefits.  Of course, this can all be said to be in the best interest of the person.

CJC case-in-point involves a woman who is in her later years and was charged with a theft offense.  She had been ordered to participate in a reentry program for women, but had not complied with the program requirements.  Her case was then transferred to the CJC, and she was linked with a social worker who helped identify her needs, and recommended engagement in services.  Her treatment plan included AA meetings, meeting with a housing counselor and attending a reentry program.  While these needs are pressing, the woman was recently evicted from her apartment and will soon be homeless.  Although she receives social security, her monthly payments are much less than her rent.  As a result, most of her time is spent trying to cope with her impending homelessness.  CJC can offer a temporary shelter, up to 7-days, but there are no easy fixes beyond this.  Although she is good about showing up for court, there is no cure for the poverty she is struggling against.   The CJC judge has given her speeches and tried to encourage her to turn her life around, but when it comes to dealing with issues of poverty, there is little the court can offer.    Overwhelmed with her housing problems, she has not complied with her treatment plan.  Unfortunately, no amount of coercion will likely change that.

Whether the law can be used effectively as a tool to change long term behavior and coerce specific outcomes is questionable, particularly when the person does not want to change or lacks the rational decision making process necessary to modify their behavior.  Putting substance abuse and mental illness treatment aside, crimes involving poverty are not immediately solvable unless substantial resources are made available.  Tangible needs cannot be satisfied by speeches and encouragement.  Housing (as opposed to shelter), treatment on demand, food and health services do not magically appear, even at the Community Justice Center.

There hasn’t been a lot happening at the Community Justice Center, so I haven’t blogged for a couple of weeks.  There is no surge of cases to report.  The caseload flow is still very low, and although the court is now handling “in-custody” cases at the Hall of Justice in the mornings, there are usually no more than a few cases on in the morning, and no more than a dozen in the afternoon.

There is a degree of uneasiness as the CJC approaches its third month in operation.  Although I cannot speak for the others who work at the CJC, most realize that within a few months, the CJC will have to justify its existence against other city services that are being cut or eliminated.  Has the CJC lived up to its promise of being a “problem-solving” court that would help address crimes that are plaguing the neighborhood?  Has the court become a repository for crimes typically charged against homeless people?   Has it delivered the services to the population of folks that need them?

Interestingly, there has been little objective information available about the court.  I attended a “community” meeting sponsored by the CJC last week.  These meetings are designed to obtain information and feedback from the community.   The meeting was attended by about a dozen community members (meaning persons not related to the CJC staff) and they asked questions about the kind of cases the court was hearing and what kind of outcomes were being achieved.  The CJC coordinator said that she did not have information concerning the type of cases or the outcomes, although she said that the court had handled some 200 cases and that 40 people had received some type of service or follow-up.  However, no further detail was made available.

Because these questions were not answered, it was difficult to have a discussion about just what the court was doing and what kind of results we were seeing.  I took advantage of the opportunity to question the police captain from Southern Station who was there to report on the arrests that were being referred by police to the CJC.  I asked why people were being arrested and sent to the CJC for possessing small quantities of marijuana (see my previous story on the case of Clarence Wilson), when the city had a policy directing police not to arrest people for marijuana possession alone.    The police captain said that it was not their policy to arrest people for possession of marijuana, but there were times when a person who was openly smoking marijuana would be cited for this offense.  I knew that the 10 or 12 cases I had seen did not involve people who were openly using marijuana, but instead, had been arrested for mere possession.  So I asked for the captain’s phone number and promised to follow up.

While this might seem like a trivial issue, it does waste time and money if police are arresting people for possession of marijuana when they shouldn’t be.  Since last week’s meeting, I’ve seen three cases at the CJC, all for possession of small amounts of marijuana.  This is a “problem” that could easily be fixed by directing the officers to follow the city’s policy.

So what are the problems that the CJC could potentially address?  Those in attendance at the meeting cited drug sales and street violence as recurring problems.  However, as the judge pointed out, any crime involving drug sales and street violence is specifically excluded under the case criteria defined by the judge and the prosecutor.  These criteria limit the kind of cases that the CJC can hear.  When this was explained to community residents, they questioned what use the court could be when it was unable to handle the type of cases which were causing the most problems in the neighborhood.

The police captain had a very different view of the CJC’s role.  The captain said that he believed the CJC existed in order to prosecute cases that the District Attorney would not; in other words, the captain said that he felt that CJC should hear cases that would be discharged or dismissed by the District Attorney at the Hall of Justice.  This viewpoint, I believe, is a very different from that what the court was originally represented as.  I had originally expressed concerns that the court would become a “dragnet” for cases that could not be proven.  At this point in the discussion, the prosecutor representing the District Attorney’s office explained that the CJC could not be a repository for cases that would otherwise be dismissed.  It would create a separate and different standard of charges cases for people who happened to be arrested in the Tenderloin as opposed to another part of the city.  The captain seemed unconvinced, and the discussion moved to another topic.

Another point raised by one of the community members was that a particular landlord was known to be illegally evicting tenants.  This was a prevalent problem that resulted in more people being turned into the streets, according to the resident.  What could the CJC do about this, he asked?  Again, it was explained that the civil landlord-tenant problems are not within the purview of CJC.  But what if the landlord is breaking the law, it was asked, could that then be subject to criminal prosecution at the CJC?   Again, the question was doted on briefly, not addressed, and the conversation passed on to the next topic.

The only thing, I think, that became clear from the discussion is that everyone, including the participating agencies, had very different expectations of what kind of outcomes the CJC would produce.  Because there was no general agreement as to what “problems” the CJC should or could handle, it was entirely unclear what outcomes were to be expected in terms of CJC’s impact on the surrounding neighborhood.

When the CJC is called to stand up and explain what outcomes it has delivered, the question of its effectiveness will have to be measured against the    problems and outcomes it has purported to address.  Both the Mayor and the Board of Supervisors should be interested in determining whether the CJC has delivered on its promises.  Herein lies the problem:  if the CJC itself isn’t clear about who and what it is, it will be difficult, if impossible, to come up with objective measurements that point to its success or failure.

The fact that the criminal justice system is, at times, unjust in its outcomes is rarely questioned. Only in the extreme cases, where a person is wrongfully imprisoned for a serious crime, will there be some coverage in the media. But day-to-day injustices are rarely exposed. Because of this, often the public is unaware of the criminal justice system’s own lack of accountability.

Take two cases from the Community Justice Center (CJC) this past week.

One man’s case was assigned to the CJC. He failed to appear for his court date, but then appeared the next day. The warrant that had been issued for his arrest was recalled, and his case was set for another day. Four hours later, he was arrested by police in front of the building where he lived. He told police that he had just been to court and that the judge had recalled his warrant. The police refused to believe him, and did not allow him to go up to this room to retrieve his court papers. He was taken to jail where he remained for five days.

When I learned of what happened, I immediately brought it to the attention of the CJC judge, who said, “This happens at least once a week,” referring to the fact that people are mistakenly arrested for warrants that should have been taken out of the system. The judge explained that the police don’t learn that warrants no longer exist due to a computer glitch. In other words, the police aren’t notified in a timely manner that arrest warrants are no longer any good.

In response, I said it was outrageous that this man was arrested for a warrant that no longer existed. In an age where information is conveyed in a “twitter” or a second, or at least in an email, why can’t police be notified that a warrant has been recalled? When I asked what actions would be taken to prevent this from happening in the future, there was no response, no promises to contact the officers involved in the wrongful arrest or to make any attempt to resolve a problem that caused a man to spend five days in jail unnecessarily. Just silence.

The second case involves another marijuana possession case. In my last update, I wrote about the city’s law that directs police not to use resources to arrest people for mere possession of small quantities of marijuana.

The next gentleman, Clarence Wilson, (who gave me permission to use his real name) also found himself on the CJC calendar. His crime: possession of marijuana. Wilson was crossing the street against a red-light (known as J-walking) when he was stopped by two police officers. He was asked if he had anything on him, and he told the police he had a small amount of marijuana. Wilson was then handcuffed, arrested, and taken to the police station. He was detained at the station, and then released.

Wilson, 67, has never been convicted of or arrested for a crime in his life. J-walking is an infraction (like a traffic ticket) and a person cannot be arrested or taken into custody for a traffic ticket. That leaves the possession of marijuana charge, punishable by a $100 fine, as the sole basis for his arrest.

Had the officers followed the city’s policy directing them to not to make arrests for marijuana possession, Wilson wouldn’t have been arrested. (The city’s policy can be found here.)

When I showed the city’s law to the CJC judge, he merely shook his head and said, “You can’t tell the police what to do.” While it’s true that the state law preempts city law, even the state law allows only a $100 fine for marijuana possession. When I suggested that someone contact the officers involved in the arrest to show them the city’s policy and question the police as to why they arrested Wilson and detained him, I was met with – you guessed it – more silence.

Public defenders have the responsibility to ensure that these types of abuses don’t happen. Once a case is in court, we can raise legal and moral objections to the charge, which we do. But often we can do little to change unjust policies, especially when they are implemented on the street and involve the police. Even when an injustice is identified and addressed in court, it doesn’t mean it won’t happen again.

In the case of both of these men, they received no apologies for the criminal justice system’s misdeeds. The system goes on unpunished and, unfortunately for the next person who is wrongfully arrested for a warrant or for possession of marijuana, uncorrected.

While these two arrests were not caused by problems that originated with the CJC, they are representative of a discernible pattern in the criminal justice system, of which the CJC is part. If the CJC is going to truly fulfill its promise of being a “problem solving court” it might want to start by cleaning up identifiable and easily remediable problems in the criminal justice system. Justice should be a two way-street.

Jeff Adachi is the elected public defender in San Francisco. He personally began staffing the Community Justice Center in March 2009 when Mayor Gavin Newsom decided not to fund the two positions originally promised to the Public Defender to staff the court, which was established by the Newsom administration. To read more writings by Adachi about his experiences at the Community Justice Center, please visit www.sfpublicdefender.org.

Because of the recession, there are more people who cannot afford an attorney. Who can afford to pay an attorney $250-$500 an hour? I know an attorney who handles white collar-type criminal defense. He is a very good attorney and he charges $700 an hour. I was thinking that there is no way that I could afford to hire him. That’s why most people, even middle-class folks can no longer afford to hire a lawyer.

This has translated into more clients and cases. We do not control the number of cases that are filed or the number of clients we represent. When a person is in need of an attorney, the Public Defender is assigned to the case, period. That’s the reason I am staffing the CJC. This is a court, and there are people charged with crimes who can’t afford lawyers, so we need to be here.

The only exception to not being able to say no is when we are overloaded with cases. And we are already past that point. When the Mayor and Supervisors’ Budget Committee did not approve my request to fill vacant positions, I had to begin turning down cases because I didn’t have the staff available to properly and competently represent clients. The American Bar Association sets forth the standard number of cases lawyers should be handling, and we are operating at about 60% past the workload attorneys should be handling.

Because I am staffing the CJC, I have to split my day between my job as Public Defender and as an attorney for the CJC. My routine now is that I start my day at about 6:00am, get into the office at 8:00 am to take care of a few matters, and then head over to the CJC, which is located at 575 Polk Street. I usually finish up at the court’s morning matters by 11:00am, and then I head back to my office for meetings. Then I go back to the CJC by 1:00pm, handle the afternoon calendar, and then return to the office by 3:00pm and try to finish the day by 6:30 or 7:00pm. Because of the CJC, I now do much of the paperwork that comes with the job as Public Defender at night, including writing this update.

This week has been somewhat disappointing. The CJC is supposed to be a “problem solving court” but so far, there hasn’t been enough coordination of the various agencies’ efforts to make a difference in the lives of most people assigned to the court, in my opinion. There’s a huge difference between how the criminal justice system and the social services systems operate. The criminal justice system is very rigid and has a cookie cutter approach to resolving cases. Prosecutors often try to impose consistent punishments for the same crimes. While this sounds “fair,” it actually isn’t, because everyone person’s situation is different.

The social service system, I am learning, is supposed to treat every person on an individual basis, identifying and treating their particular needs. For example, not everyone needs housing or mental health treatment.

From what I’ve experienced in the last month, the CJC is like a microcosm for what is wrong with our city services. We have many of the agencies responsible for healing society’s ills at the table. Yet because of the limitations of the systems we operate in, we are often unable to really address the root of the problems we are trying to solve and provide the support that people need. A person who needs help qualifying for social security because of their mental or physical disability has to fill out reams of paperwork and wait months before being able to obtain a check. Housing, for the most part, is shelter bed housing that expires every seven days, and there are long waiting lists for semi-permanent housing. And the criminal justice system often erects the obstacles to many of the barriers we need people to overcome to stay crime and arrest-free.

The criminal justice system also suffers from institutional inefficiencies. Police officers continue to cite people for possession of small quantities of marijuana, even though the city has a clear policy which states that law enforcement should not enforce laws prohibiting marijuana possession. Every day, we have 2 or 3 cases on calendar where the only charge is possession of less than an ounce of marijuana. We even had a person in court this week who was arrested despite presenting a medical marijuana card to the police officer. The officer nonetheless took her pot and money away. This poor woman will now send the next month or so trying to get back the $500 they took, which was all of her savings. No one bothers to find out why the police officer did this, or to make sure it doesn’t happen again. She called me today because the police refused to return her money. This means I have to file a return of property motion, which has to be heard in front of a judge, just to get $500. This will probably cost $1000 in court time, not to mention my time.

Case-in-point: In my last posting, I mentioned a man, who I’ll call Bill, who was arrested last year for selling $10 of prescription medication to a police officer. Bill’s case was brought over to the CJC from the Hall of Justice to see if we could produce a better outcome for Bill and for the community. Bill has some serious health problems, and needed housing. The social workers at the CJC found Bill housing in a shelter immediately, and began working with Bill to address his health problems, including getting him on the right prescription medication so he didn’t need to buy it on the street. He also needed to get his social security benefits worked out. After several weeks, Bill was stabilized, off drugs and living in a shelter bed.

In addition to the help, Bill has a great social worker from Pretrial Diversion’s Homeless Release Project, which supervises homeless people who are released from jail. Although I don’t usually mention names in my updates, I’ll make an exception here for Ali Riker because she deserves recognition. She is in charge of the program, but maintains a caseload of 30 clients, who she zealously assists in every way, including accompanying her clients to court when necessary. Ali already had a good relationship with Bill, and she worked with the social workers at CJC to provide Bill with the support he needed.

Bill had one thing that a lot of people don’t: he has a plan. He has two elderly parents out-of-state, and had decided it was time to go home to care for them. Bill had lived with them until 2002, when he came to San Francisco for medical treatment after suffering a work-related incident. Bill had worked as a machinist his entire life and had climbed up the ladder at his workplace until he shattered his hip. He originally came to San Francisco because he had heard the best doctors were here, but was unable to obtain the treatment he needed once here. He fell into homelessness and then drugs. He had been arrested and convicted of a drug offense 4 years ago, and then was arrested for the case he has now.

The CJC judge suggested that Bill continue to participate in the CJC services for 4 months, and that he then be allowed to return home. If it were shown that he was out-of-state, the case would be dismissed. Bill’s social worker was even able to arrange for a bus ticket for him to return home. But the prosecutor opposed the judge’s solution and instead wanted Bill to plead guilty to a felony possession charge and be placed on supervised probation in San Francisco, which would require that Bill stay in San Francisco for three years. This is often the case because the prosecutor’s office wants a conviction, not a dismissal. Now while it’s true that Bill could try and have his probation transferred to the state where his parents live, but this process takes months and is not guaranteed. So what’s the result? Because there’s no agreement, Bill’s situation is in limbo, and he’s really no better off at the CJC then he would have been in the regular court system. So Bill will remain in San Francisco, where he really doesn’t want to be. And in a few weeks, his shelter bed will expire and he’ll be homeless, starting the cycle that got him into the criminal justice system all over again. Hm, what’s wrong with this picture?

During my lunch break, I stopped by the Sephora store on Powell Street. As I mentioned a few postings ago, a lion’s share of the cases at the CJC involves shop lifting from Sephora and I wondered why so many cases came from there. I met the manager of the store, who was a very pleasant young woman named Lauren. She explained that because Sephora sold perfume and other beauty supply products, the items they sold were easy to take and sell. She also said they have a very aggressive policy of arresting shoplifters. Without revealing any trade secrets, they use undercover officers who are trained to identify people who are suspected of stealing items from the store. They even keep photos of people who have been arrested in the area for shoplifting. And they prosecute everyone.

Interestingly, the store doesn’t have any signage or hint that they are prepared to pounce on any shop lifters at a moment’s notice. Sephora’s corporate policy is to welcome their customers, and they don’t post scary security guards at the front or have a sign that warns people not to steal.

I also spoke with one of the “undercover” shoppers and she told me that they arrest about four people a day. I talked to them both a bit about what the CJC does, and that I would pass on the information about their policies. So the morale of this story: “DON’T SHOPLIFT FROM SEPHORA’S!” You heard it first here.

So I took advantage of the judge’s genuine curiosity and mentioned that for some time now, when a case was discharged or dismissed, the record of the discharge or dismissal was not being entered into the criminal justice computer system because of some kind of dispute between the prosecutor’s office and the courts as to who was going to type in the codes.  (Apparently, this dispute has been going on for months and precedes the CJC.)

Here’s the problem: when a case is discharged or dismissed, the prosecutor has to state a reason.  For example, the prosecutor might say “Case discharged” and then cite a code, which is an abbreviated way of stating why the case was discharged or dismissed.  For several months, there has been an ongoing disagreement as to whether the prosecutor’s office or the court had to enter those codes in the computer system.  And so they weren’t being typed in at all!

This means that even if you did your community service or whatever it is you were supposed to do, it wasn’t entered into the system.  The criminal history of a person whose case had been discharged or dismissed would still show an open arrest or pending case.  I had complained about this several times, but the problem went unresolved.  At one point, I even offered to enter the codes myself, but people weren’t amused by my offer, since giving the public defender the ability to enter dismissals on the computers wasn’t seen as exactly kosher.

When the substitute judge found that the dispositions were not being entered into the computer, he agreed that something needed to be done, called a meeting and pledged to fix it within a few days.    This is the kind of thing that drives one crazy about government – simple things take forever because of bureaucratic decision making.

As I mentioned in my earlier entry, there has been a dearth of cases in the CJC.  Dearth may not be the right word, since dearth means “inadequate supply.”  We have plenty of cases in the criminal justice system.  (My office alone represents 24,000 people per year.)  We just don’t have many cases at the CJC at this point.

The anemic flow of cases – about 5 or 6 a day – is attributable to the fact that right now, cases are being referred by police officers who decide themselves which cases to send to the CJC.  This gives the power to bring cases to the CJC solely to the police, which, in my opinion, isn’t the best way to get cases to the court since police officers often want to send the people they arrest straight to the Hall of Justice.

Most of the cases sent to the CJC end up being discharged or dismissed because they aren’t even worth filing.  The prosecutors assigned to the court actually do a pretty good job of reviewing each case, and they don’t file cases where the charge is a weak or inconsequential one, or where the evidence doesn’t warrant filing a charge.  Both prosecutors are very experienced and know what flies and what doesn’t, so that’s a good thing, since we don’t want to waste time with cases that shouldn’t have been filed to begin with.

The new substitute judge wasn’t happy with the lack of cases and said he wanted to facilitate the transfer cases from the Hall of Justice.  Now, this isn’t as easy as it seems.  The new CJC is supposed to be located in the community to make it more convenient for the police, the accused and witnesses to come to court.  But because the holding cell (a small jail cell where people are placed while they are waiting to go to court) doesn’t exist yet —it won’t be built until July — the case has to go to the Hall of Justice before being assigned to the CJC.  This means we (the entire staff of the CJC) have to go to 850 Bryant in the morning, handle matters of people in jail, and then go to the CJC at 575 Polk Street to deal with cases of people who aren’t at 850 Bryant Street.  It’s a lot of back and forth and in my opinion, is a waste of time.  I suggested that we have the judges at 850 Bryant simply send the cases to the CJC, but for some reason they don’t want to do this.

Also, there have been cases sent to the CJC that have no reason to be there.  One case was sent there when the person wasn’t even arrested in the geographic area covered by the CJC, so the poor guy had to go back and forth from 850 to 575 Polk Street twice, since he had been the wrong day to show up.  People often are already confused enough about where to show up for court and it doesn’t help when they have to go back and forth from two different locations.

Another case where a woman charged with a drug possession crime was sent to the court from the Hall of Justice, but was promptly sent back when she elected to do a drug treatment program that was only available at the Hall of Justice, which is what she wanted to do in the first place.

But, again, there have been some promising developments at the CJC.  Since we didn’t have many cases, assistant Deputy Public Defender Simin Shamji and I asked that the case of a homeless man charged with a drug offense be heard there.  He met most of the qualifying criteria, and was a good candidate for the court.   However, because he had a few prior convictions, the decision as to whether to admit him to the court in the hands of the prosecutors, and after looking at his case closer, they agreed.   I think he’ll do well there.  He will also be able to obtain housing through the court, which is really what he needs to stay off the streets.

This week, I was visited by a man that we had referred to housing weeks ago.  I hardly recognized him because he looked so good!  His worn, ruddy, red complexion and appearance was completely regenerated, and he had clearly stopped whatever he was doing to his body.  He had received shelter housing through the CJC and was taking advantage of the social services.  His case had been discharged before he was referred to services, but he followed through.  I mention this because I think it shows that people don’t have to be coerced into services, particularly if the service is a good one.

We also had a case of a woman who needed SSI (social security benefits) but thought she had warrants from another state.  This is a problem, because if a person has a warrant from another state, they can’t qualify for SSI benefits.  It turned out that she was wrong.  The prosecutor’s investigator checked into it and found that whatever warrants she had once were now clear.  But we haven’t been able to contact the woman, who was on the brink of losing her apartment, so she still doesn’t know that “Indiana (Doesn’t) Want Me,” to quote the 70′s song by R. Dean Taylor.

Today I was walking down Market Street near the CJC and I saw a homeless woman being forcibly moved from in front of a store by a store security worker.  The security guard was obviously frustrated, and was moving her cardboard boxes from the front window area of the store.  The woman was also upset at being uprooted from her spot.  I thought about intervening and saying something about services at the court, but it didn’t seem appropriate at the time.  Afterwards, I thought about how what I had witnessed epitomized the great divide that separates those who lack safe shelter from those safely housed.

One of the initial concerns I had about the court was that it would become a “dragnet” for cases that otherwise would not even be brought at the Hall of Justice.    The term “dragnet”, which incidentally was the name of a famous TV show in the 60′s and 70′s, refers to a coordinated campaign or method by police to arresting or rousting people.   For example, police rarely bother to cite a person for a crime known as possession of paraphernalia.  So if a person possesses a pipe that could be used to inhale or smoke drugs, such as crack, the officer might confiscate the item but not arrest the person found in possession of the pipe.  This is because the charge may not be provable in court, often the pipe has been taken by the police in violation of the person’s Fourth Amendment rights, or that it’s too much trouble for the officer to file a report over this type of offense.  But now the officer, knowing that the Community Justice Center exists, sends these cases there.

We have had at least one or two of these cases on the court’s calendar every day.  If the person shows up, the case is usually discharged.  However, in some cases, if the person wants services, they are referred to a social worker.   But we make sure that the case is dismissed first.

Other crimes that I’ve seen that fall into this category include loitering, which is difficult to define because what constitutes loitering is often in the eye of the beholder, and obstructing the sidewalk.

There have been a few bright lights in the court of late.  There was one case involving petty theft from Sephora.  Sephora, as most people know, is a beauty products retailer, known for its reasonably-priced perfumes.  For some reason, 80% of the petty thefts that wind up in the Community Justice Center come from Sephora.  This could be because they experience more petty thefts or they have a more aggressive approach to detaining persons suspected of shoplifting.  Whatever the reason, nearly every theft case we see in the court involves a bottle or two of perfume.  It would be interesting to see why this is so.

Anyways, there was a person charged with a theft from Sephora.  When a person is suspected of shoplifting, the security guard at the store usually detains that person, and the police are called.  The police officer in that case spoke with the person accused and learned that the person had just lost their job.  The officer referred the case to the CJC.  When I was speaking to my client, we were approached by the officer who made the arrest.  The police officer actually came to the client’s court proceeding, because the officer wanted to know how the person was doing and to offer support.

The client was referred to meet with a social worker and to services.  The case was put over for a short time, and the case will likely be dismissed when the client returns with a favorable outcome.  This is not much different than what happens at 850 Bryant.  There, for a person accused of shoplifting on a first offense would have the option of participating in pretrial diversion, which is a program that allows a person to make restitution to the community in the form of public service in exchange for a dismissal of the charge.  The person usually has to pay a fee as well.  Most people who do pretrial diversion end up never coming back into the criminal justice system.  So these types of programs are very successful.  But instead of being referred to do community service, in this case, the client was referred to services.

Because we have been in court only several hours a day, I have tried to spend some time meeting with community organizations in the Tenderloin, not necessarily about the new court, but about how our office can help assist their constituents.  Many of our clients and cases come from the Tenderloin, and I feel an affinity for many of the residents.  I went to law school at U.C. Hastings College of the Law, which is located on McAllister Street, and lived in the neighborhood for many years, even while I was a young public defender in the late 80′s.

There are a lot of great programs in the neighborhood.  I visited one program called Youth on A Mission and met a young man named Brian who helps operate the program, which provides a place for homeless individuals to hang out.  They show movies and have activities and events for people who live in the neighborhood, including many seniors.  Brian explained to meet that they do this to give people something to do during the day and to keep them engaged.  I promised to come back sometime and meet some of their staff, who seemed quite dedicated to their mission of befriending people who are in need of a good friend and a helping hand.

I was present in the new court during its first week to see what was going on.  Most of the cases involved individuals cited for sleeping on the sidewalk, possessing paraphenalia and petty theft.  There were only 5 or 6 cases calendared each day.   For the first week, all of the cases were either discharged or dismissed by the DA.

There was one case last week where the prosecution decided to file.  It involved a homeless woman who had been cited multiple times for sleeping on the sidewalk. She had no other criminal history and had received multiple citations from the same police officer.  She did not come to court and the DA said she would file a complaint and ask that a bench warrant be issued.  Since I was concerned that a bench warrant would be issued for her arrest, I offered to attempt to locate her so she would not be taken into custody.  She was found at her usual spot, and, because she had an existing relationship of trust with one of our attorneys, agreed to come to court to clear the matter up.

Once in court, the Judge wanted the client to be referred to services and to come back the next day.  Because I doubted very much that the client would show up,  I proposed that the client meet with the social worker that day, and then afterwards, the case would be dismissed.  The judge said no.
I asked that the case be set for a jury trial on a no-time-waiver basis.  At this point, the judge agreed to voluntarily ask the client if she wanted services and then dismiss the case, which is what happened.  After the client met with the social worker, the social worker reported that the client was resistant to services because she would not accept a shelter bed.  I knew that the client really wanted permanent housing, not a shelter bed, and expressed her position in court.  I informed the judge that the client had negative experiences with shelters.

The next day the Mayor’s office came up with a hotel room the client could move into.  We checked out the room, and then showed the apartment to the client. However, the client was not ready to commit to move into the room, and so she is still on the street.  We’ve tried to locate her since, without luck.  But we will keep trying.

Since that first case, we have helped one man get into a temporary shelter, and another man agreed to participate in counseling to help mediate disputes.  The vast majority of cases have been discharged, and no one has been convicted of any crime to date.  Even in cases where the individual seeks to participate in services, that participation is completely voluntary.  I suspect this may change as the number of cases increases.

Interestingly, there is no jail or holding cell.  This means that no one can be placed into custody, at least for now.  The holding cell won’t be built until later this year, so the plan is to have custody cases at 850 Bryant.  This doesn’t make much sense, since we’ll have to go back and forth each day.

I have decided to staff the court myself.  Our office had originally been promised two attorneys to staff the court.  A week before the court opened, I was told that the Mayor’s office would not provide the staff promised, and that the District Attorney and Public Defender would be expected to staff the court from it existing staff.  Because our attorneys handled specific clients and caseloads, we can’t simply pull someone away from their courtroom assignment, leaving their clients without representation.

Because our staffing is short at this point, we really can’t spare any staff for the CJC.  The DA’s office has two investigations and two attorneys staffing the court.   We just do not have enough staff to assign to this new court, since we still have to staff the existing courts.  Simin Shamji, who oversees our specialty courts and reentry programs, will be assisting me, and helping to develop a strong services component to our work.

Our new offices are located right next to the court, which is at 575 Polk Street. To get to the office, you go up to the second floor and our two offices are near the rear of the building.  Feel free to come by and say hello anytime.   We are open for business and ready to defend the public we serve.
I plan to provide weekly posts and updates as to what’s happening at the court. Please check here often.