A woman shuffles to the witness stand in front of Judge Jennifer Bailey. All eyes in the courtroom lay upon her. The public defender and prosecuting attorney make their final exchanges as she reaches the stand. She shifts her weight somewhat nervously as Judge Bailey pulls out her case file, waiting in anticipation for the judge’s next words:
“Congratulations on a clean screen for this week”
The participant smiles as the audience erupts into applause, an event rare in a traditional courtroom.
Judge Jennifer Bailey, Chief Judge of the Kanawha County Circuit Court, hosts a judicial program commonly known as drug court. With the opioid epidemic sweeping across America, judicial dockets are overrun with cases of drugs, violence, and neglect. Addicts in need of treatment are sentenced to correctional facilities for a few years, often returning to society with the same underlying problems they faced in the first place.
In recognizing these problems in the justice system, Judge Bailey has made efforts to establish a drug court system in West Virginia. Started in 2009, but not fully operational until 2011, the West Virginia drug court system strives to give defendants an opportunity for recovery. Defendants receive reduced or exonerated sentences in exchange for participation in substance abuse treatment programs. Several times a month, participants also come to Judge Bailey’s court to testify on their progress. Updates can include anything from getting a job to taking their child to school. They allow the program to constantly monitor the participants’ progress to ensure they are following the path to recovery. In the following interview, Judge Bailey describes her role in establishing the drug court system and the challenges she has faced along the way.
What were some of the challenges faced in establishing the West Virginia Drug Court System?
Many prosecuting attorneys and even judges do not believe it is the role of the court system to take on social work. There are my colleagues and friends around the state who just do not support drug courts. It appears this year that there is no movement to expand drug courts even though the law requires it in every circuit by 2016. There was a move in the legislature this year, with a bill passing in the Senate, to eliminate the requirement for drug courts. There was some concern because not even some members of the legislature are supportive of drug courts now. Anytime there is legislation out, there is concern over who has the votes to do what and whether they would abolish drug courts altogether. The [West Virginia] Supreme Court leadership does not necessarily want to expand drug courts. In fact, we had another treatment court, a mental health court in West Virginia, that they abolished. I would have rather seen an expansion of mental health courts because it is such a dire need in our state to address mental health differently. And it goes hand in hand with the drug treatment, which for a lot of people with co-occurring disorders is particularly challenging in drug court.
Other challenges include funding. Every circuit that establishes a drug court has had to work that out with their own counties and commissions. We, in addition to many others, were able to secure grant funding to pay for our first drug court coordinator and some of our other needs and all of our training. It was very beneficial to have the federal money designated for that purpose.
What are the benefits of a drug court system as compared to a traditional court system?
Well, there is sort of an adage in drug court – ‘we reach out to the people who are in the justice system who make us mad, and the ones we are afraid of, we lock-up’. The drug court is actually a treatment program within the court system that takes people off the track towards incarceration and the cycle we continue to see. I have been serving for 15 years, and I have people who are repeat offenders. I lock them up and they go back out. People function as somewhat addicts until they find themselves back in the criminal justice system. They have made no progress, and they continue to wreak havoc on their families. What we are trying to do is help people come to terms with their addiction and find the means to keep them in recovery and help them complete their education and job training and make them become responsible parents. Quite frankly, we aim to make them taxpayers instead of tax takers, rather than having public money being spent on incarcerating them. We particularly had an increase in population at our state’s only women facility due to the drug epidemic.
How do the drug court system and the traditional system interact?
In order to get into the drug court, you have to come into the traditional court. So you start there. We would like to see people sooner rather than later diverted into drug court. We have people even at the grand jury level, some prosecutors looking for persons and determining whether they would be good drug court potential persons. So we are very much in a diversion system to bring resolution from the other side of court that will hopefully keep them from being incarcerated, and many times, a criminal conviction. So if we can divert them, and help them work out matters prior to obtaining a conviction, then all of society is better off.
What is the process for somebody being referred to drug court?
Under our state law, the prosecutor is the gatekeeper into drug court. It always has to be the approval of the prosecutor whatever stage it is. During the pretrial process, once someone is going on their preliminary matter, they can be diverted as early as pre-indictment. But usually, their diversion to drug court is once they have been arraigned before one of the judges in our circuit. Once they have been arraigned, their attorney gets involved and starts talking to the prosecuting attorney that is assigned to that particular judge. Different prosecuting attorneys have feelings about drug court. There are one or two that actually don’t refer anyone to drug court, nor does their judge. It’s kind of a culture in that particular judge’s courtroom not to refer anybody, although that judge will let people go to treatment occasionally. But once the prosecuting attorney agrees they are a candidate for drug court, then defense counsel plays a very large role in trying to explain what drug court is about. Some people see it as a turn off because they see a year and a half of their life and some of them would rather be locked up. Some don’t understand or appreciate the fact that having a felony conviction is very much like having a scarlet letter.
Many opponents to drug court have argued that it should not engage in social work. In your opinion, to what extent should drug courts be involved in this type of work?
Well, that is a very interesting question. Fellow judges in charge of circuit court have met with members of the Legislature who ask us this very question – why do we want to be social workers? It is not so much that we want to, but we see that what we have before us is now so much a part of our everyday work. We didn’t necessarily choose it. And if we had some help from other branches of government or other solutions, then maybe we wouldn’t be doing this. But the fact is that the drug epidemic is driving our criminal dockets, our juvenile dockets, our abuse and neglect dockets. It is all the same population seeing a way to do something different that is helpful and is something that has been recognized nationally and now internationally as a solution – so why not? I can’t imagine not doing it.
Are drug courts considered effective?
We actually track our graduates. We started doing that but now it is required statewide. Our recidivism rate is around 18-20%. So, we are pretty much at the national average. And that fluctuates, but the way we are keeping tracking of that is through persons who are rearrested. Unfortunately, that does not take into account people who have relapsed. Some people relapse and then return to recovery. But we only track people who recidivate in the criminal justice system.
In terms of effectiveness, I have seen children restored to their parents. Not being raised by other family members of foster families. People with jobs get their driver’s license restored after losing it due to fees in the justice system. They gradually work their way up to what they need to be: law-abiding citizens. They are holding down jobs, making sure their children are fed and cared for, and having a place to live.
Do you believe the drug courts also play a role in exposing individuals to resources they otherwise would not have access to?
Yes, very much so. There are a lot of people addicted who have had very traumatic pasts. And just leading them to therapy, which we often do, letting them come to terms with how they have evolved the way they have is extremely helpful in teaching them how to cope, getting them health care they haven’t had. Certainly, we have had people who had no idea that they could get their GED. We have connected people to community college. I have three people enrolling this fall. We connect them with Narcotics Anonymous groups which require them to find sponsors, or the Kanawha Valley Fellowship Home which connects them with a job to work in a sober environment.
How do efforts at the federal level, including Attorney General Jeff Sessions’ efforts to crackdown on drug-related crimes, affect the opioid epidemic?
It is my understanding that they are proposing to bring in special prosecutors into different regions and we are one of them, right here in the Southern District of West Virginia. They are to go after, what I hope, are the hardcore dealers. And I would of course support that. If the effort is going to be to prosecute and lock-up more people who need help, then I would not be very supportive of it.
We know where a lot of the opioids are coming from. People have written fascinating books about it. We know how they have gotten here into West Virginia and Ohio and the trail that it is making. So any effort to go after the big time dealers I have to support. Because what they are doing now is dropping off a lot of drugs here to be sold. And the people distributing it do not even know what they have – especially fentanyl. It is very dangerous to be exposed to. It poses a problem for all of our law enforcement who are going in and conducting searches. These people distributing the drugs do not always know what they have to sell. And the people who deliver to distribute do not really tell them – they just bring white packets in. It is a mess. And so much of that is breeding violence, and I am totally opposed to violence. When I see the combination of guns and drugs, those are red lights.
Do you have anything else you want people to know about the drug court system?
I would like people to know what drug court is. I think the name “drug court” sends a strange signal out there. I would like for defense lawyers to be more educated themselves about what they are recommending or not recommending to their clients. Also, the public thinks that we are not exercising proper decision-making as far as not locking everybody up. That solution is not often the best one. It is very expensive, and our nation locks up more people than any nation in the world. West Virginia does the same thing. If we can work on the population that wants to work towards recovery and stay in recovery and understands what they need to do to be there. I would just like the public to be more educated about what we are doing with drug courts and help suggest to their judicial systems and where they live of expanding drug court.