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.