The world is not easily divided into “good guys” and “bad guys.” Having spent the first fifteen (15) years of my lawyering life prosecuting cases involving serious and violent crimes, I realize that there are some people who are just too dangerous to live amongst us. Some people. In all that time I found that very few of the people who found themselves on the wrong side of the “v” (i.e., Commonwealth v. Them) were actual “bad guys.” They were often undereducated. They were usually underemployed. They were almost always under the influence and nearly as often suffering to some degree from mental illness. It follows then that, while it is necessary that we continue to lock up the people who should be in prison; it is important that we continually look for ways to help those who shouldn’t be get educated, employed, sober and access to quality mental healthcare.
The traditional means available to judges to achieve that end is probation. Under the traditional tough on crime probation model probationers get to stay out of prison so long as they follow the rules. The problem is that probationers, it turns out, are not particularly good rule followers. That’s pretty much how they got to be probationers. It’s like saying to someone, “You know how you’ve been your whole life? Starting tomorrow don’t be that way anymore or go to prison.” We are disappointed but should not be surprised when that doesn’t happen on command or on schedule. It wasn’t until 2008 that I finally wised up and got S.M.A.R.T. about probation.
S.M.A.R.T. probation is rooted in unassailable behavioral modification principles and works by making sure that the people on probation have a clear understanding of what is expected of them and what they can expect in return along with the encouragement they may need to make the effort necessary to make a difference (i.e., Supervision and Motivation). Good choices are recognized and rewarded. Poor choices are dealt with swiftly, surely and in proportion to the seriousness of the misconduct (i.e., Accountability and Responsibility). And help is provided at every turn to increase each person’s capacity for making consistently and progressively better choices (i.e., Treatment). A probationer with a long history of not making it on probation or parole summed up the spirit of the program at the end of a S.M.A.R.T. orientation session (what one of my curmudgeonly colleagues dubbed the “Kumbaya”) when he said: “I’ve been in trouble and in and out of jail my whole life and I’ve never had anyone, especially a Judge, talk to me and explain things this way. I know I need help. I am going to try. I can’t promise that I’m going to make it, but if I end up back in prison - man that’s my fault.” Yes! He was right. He was also successful. He completed his five (5) years of supervision without any violations and has not gotten into any trouble of any kind since.
I didn’t know it when I thunk this up, but programs similar to mine were springing up independently/organically all across the country. These programs were started by judges (often former prosecutors) who, like me, were tired of watching people fail their way into prison and were encouraged by people across the political spectrum - from those with a moral imperative against locking people up to those with a fiscal imperative against the budget-busting cost of keeping people locked up and everyone in-between.
S.M.A.R.T. probationers have proven over three (3) times less likely to commit a new offense than other probationers. That translates directly into a decreased criminal population in our prisons and correspondingly increased productive citizen population in our communities. Communities which will enjoy the benefits made possible by freeing up money we no longer have to spend incarcerating people we didn’t build prisons for in the first place and spending that money on programs to help people get educated, employed, sober and address their mental health issues. While there will always be a time to be tough on crime, there’s never a time not to be smart on crime.
It’s fair to say that, when it comes to the criminal docket, I have necessarily gone from being a “judge” to an “addiction counselor” to a “life coach.” The majority of my time is spent trying to help people recognize and deal with the problems that brought us together. Judges don’t (or at least shouldn’t) actually “judge” anyone who comes before them. I am keenly aware that if had their lives I probably have their problems. But I didn’t. It’s as though we were born on two different planets. I was born on planet Opportunity, and most of them were born on planet Obstacle. Through S.M.A.R.T probation, starting with the above-mentioned “Kumbaya,” I try to empower people to take control of their lives by deciding that are capable of and deserve more and better and different from what their life experience thus far has led them to believe is available and attainable. But I also let them know that making that change takes time, effort and usually requires them to seek and accept help along the way. They provide the desire and the effort. We provide the help.
S.M.A.R.T. probation is undoubtedly the most impactful thing I have been a part of during my time on the bench. It is not unusual, in fact it happens about once a week, for someone who is in or has been through the program to approach me (often in person) to let me know how well they are doing. Interestingly, it almost always starts with some version of “if it weren’t for S.M.A.R.T. probation I would be dead or in prison”, and almost always ends with “you saved my life”, with a long list of achievements big and small (to include sobriety, employment, healthy relationships, etc.) in between. As much as I appreciate the sentiment, I am quick to point out that it wasn’t me. All I did was believe in them enough to give them the chance to believe in themselves enough to make all of those things possible for themselves. It is frustrating and occasionally heartbreaking when they don’t. It is wonderful when they do. It makes me feel proud – and maybe a little S.M.A.R.T.
It has been suggested that some judges grow when they take the bench while others just swell. It’s good to be the judge. People stand up when I walk in the courtroom. They have to ask my permission to sit or speak and, whether out of respect or the fear of getting tased by my courtroom Deputy, immediately come to me when I call them. Lawyers refer to me as “Your Honor” and dutifully laugh at my witty banter both on and off the bench.
If someone may have considered me to be “a little slow” when I was a lawyer, they have to describe me as “deliberate” now that I’m a judge. “Mean” becomes “no nonsense," and “goofy” become “eccentric.” However, the most intoxicating, and therefore the most dangerous, thing that happens when a lawyer becomes a judge is that people generally and lawyers particularly stop telling them “no.” In fact, they pretty much stop telling them anything.
It is tempting for the judge to take it from their silence that what (s)he is doing and how (s)he’s doing it is “right” every time. Maybe so - but in the absence of hearing what people really think, judges are constantly in peril of sliding down the slippery slope that goes from asking lawyers what they think should be done, to telling them what to do, to demanding it be done, to berating them for not doing it right or, at least to the judge’s satisfaction. I know no lawyer wants to appear before that kind of judge. I also know that no judge, including me, wants to be that kind judge.
Being mostly human, I am well aware that I am not always right, nor do I have the great idea market cornered. The best I can do is the best I can do. However, my best can always be better if people are willing and able to let me know what they honestly think. The best, and most welcome, anti-inflammatory available to combat judicial swell is very frank and very specific feedback.
The Judicial Evaluation conducted by the Louisville (and now Kentucky) Bar Association provides members of bar one of the few opportunities to provide that kind of feedback to the local bench. Unfortunately, although it is not unhelpful, I find it to be of very limited practical value. This may be because so few lawyers take the time necessary to complete it or, because whatever the results are, neither the score nor the scoring gives me any useful insight into exactly why I scored the way I did. The comments, many of which are very very personal, are generally too general to be meaningful. “You are a wonderful judge” and “you are an *&^%!!! idiot” are equally unhelpful - although by no means equally unappreciated.
Having accepted the fact that I couldn’t make people do a better job telling me how to do a better job through the Judicial Evaluation process, I was inspired to create the “Tell it to the Judge” page on my website. The page is intended to provide a real opportunity for lawyers, litigants and pretty much anyone who owns or has access to a computer, to freely express that which social mores and local legal custom might otherwise stifle. I like to think of it as the opportunity to speak the truth without fear of consequences. The are only four rules: (1) All comments sent through the website are submitted anonymously. If you want to remain anonymous then best not sign your name to your submission; (2) Do not use the website to communicate with the court about a pending case. All submissions are screened by the Division 8 staff for ex parte communications; (3) Try to be constructive (i.e., don’t just write “you suck”); and (4) If you can’t not write something mean, then at least try to make it funny.
I have been pleased, if not a little surprised, to find that the vast majority of anonymous comments left on the website have been positive, affirming, and helpful. I have tried not to be discouraged or dismissive of the comments that have been mean but not funny. Although frustrating, and a little hurtful, I have tried to find something helpful about those too. For me, having a mechanism through which people can share their honest thoughts and true feelings is important. It’s one of the ways to help me ensure that I continue to take this job seriously without taking myself too seriously.
 The record should reflect the fact that I am and have always been hilarious. I was making people laugh long before I became a judge. They just laugh louder and longer now.
Judges are like blue jeans. They start out really stiff and uncomfortable but, through daily wear over time, they finally get to be where they are juuuuuuuuuust right. Notably, the window of time between the point where they are perfectly worn in and when they start to wear out is relatively short. I started thinking seriously about retiring from the bench when I felt as though I might be approaching the end of the middle of that comfort zone. I love this job. Because I love this job, as hesitant as I am to leave, I definitely don’t want to overstay. As I explained to a group of lawyers, “I lack humility, not self-awareness.” People telling me about me has contributed greatly to the latter while helping to keep the former in check.