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. SIDEBAR 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. There comes a point in every lawyer’s career when (s)he starts to wonder whether (s)he still qualifies as a “young” lawyer. When you get to that point in your own career, there is simple test. Ask yourself whether at any time within the last calendar year you have felt the urge to denounce and lament the decline of civility and decorum in the courtroom. If the answer is “yes”, then sorry/congratulations, you are no longer a young lawyer. Only lawyers of a certain age have been practicing long enough to reminisce about the golden age of lawyering (i.e. when they were young lawyers). Each preceding generation of lawyers is shocked and appalled by how each succeeding generation of lawyers has brought the profession to an unprecedented and ruinous all-time low. It’s not unlike how the jitterbug generation was horror-struck by the hooligan rock ‘n roll generation that followed, who, in turn, thought their punk-rock progeny were, you guessed it, punks! As a judge of a certain age, I find myself more and more often waxing nostalgic about the glory days I spent trying cases in the old Jefferson County Hall of Justice. But were the good old days really as good as I remember them? It begs the question; how can anyone remember fondly anything that took place inside the old Jefferson County Hall of Justice? A building so horrible that it was once and best described as being, “like the men’s room in a bus station but without all the charm”. Still and all, having started practicing law when lawyers from the greatest generation were still setting the bar for the bar, I can’t help but wonder about the latest generation. And the more I wonder, the more fully I appreciate why the crooner crowd who listened to Bing Crosby in the 1940s were upset by Elvis and his swiveling pelvis in the 1950s, and why those suffering from Beatlemania in the 1960s were understandably concerned about people struck down by Disco-fever in the 1970s. These may not have been signs that the end times were nigh, but they were signs that civilizedation as they knew it was coming to an end. The fact that lawyers appear in court dressed in “business casual” attire, chew gum, and don’t stand up when they address the Court - now that’s a sign of the apocalypse. I have never been one to hold litigants accountable for the fashion crimes they commit in my presence. I did once have to ask a defendant charged with domestic violence who showed up for arraignment wearing a “wife-beater” undershirt to please wear a shirt when he came back to court. When he looked puzzled, I explained to him that the reason they call it an undershirt is that it is supposed to be worn under an actual shirt. I have always held lawyers to a different (i.e. higher) standard. It would never have occurred to me to wear anything other than a suit and tie to court. Not a jacket and tie. A suit and tie. It would appear that either or both have become optional. It really bothers me when I see lawyers dressed casually for court. I’m not saying it should. I’m saying it does. To me, and people like me (of whom there are still many), it is disrespectful. Not willfully disrespectful, but disrespectful nonetheless because it evidences a failure to consider that dressing appropriately for the occasion is a sign of respect. I, like my mother before me, am offended by the sight of people chewing gum in public. I’m not saying I should be. I’m saying I am. It’s not just that I find chewing gum to be extremely tacky, it’s because the extreme tackiness of the gum being chewed allows it to adhere so readily to the underside of counsel table where I found (and scraped it off) on a regular basis. That’s right - counsel table. I know I could have hung a sign on the front door that read, “ATTENTION COUNSEL: CHEWING GUM IN THE COURTROOM AND/OR STICKING ABC GUM ON THE UNDERSIDE OF COURTROOM FURNISHINGS IS STRICTLY PROHIBITED”; but should that have been necessary? If so, then what else would I have to tell people not to do? Don’t spit tobacco juice, sunflower seeds or phlegm on the carpet? Don’t carve your initials into or write on the walls? Don’t set anything on fire? As much as my reaction to this behavior may make me look and feel like a crotchety old man yelling at the neighborhood kids to stay off my lawn, I can’t help but feel that I shouldn’t have to yell at them - they should know that shouldn’t be on somebody else’s %#@* lawn! Having been raised under the professional tutelage of the Hon. Mark Miller at both the Commonwealth’s and the United States Attorney’s offices, I am physically, mentally, and emotionally unable to remain seated when a judge enters a courtroom or, when addressing the Court, cannot open my mouth unless I am standing on my feet. I, like my colleagues who were Millerized as baby lawyers, am chagrinned at seeing seated lawyers talking to sitting judges. I’m not saying I should be. I’m saying I am. I get that it is a formality, but that doesn’t mean it isn’t important. There comes a time in the life of every institution when the purpose underlying its rituals are in danger of being forgotten leaving behind nothing but ingrained but meaningless tradition. Lawyers stand up when addressing the Court for the same fundamental reason that judges wear robes while sitting down and listening to them. It is not only a sign of respect for the proceedings, but a reminder to the participants that the rules that fix their professional responsibilities and govern their behavior inside a courtroom, which may be different anywhere/everywhere else, are worthy of their respect. Moreover, and as a practical matter, if they are already standing when the end of the world does come (brought on by gum-smacking lawyers arguing their case while sporting sweatpants and a golf shirt) they will have a leg up on everybody else in the mad dash to get out of the building before it comes crashing down around them. SIDEBAR Jurors take their role in the justice system and the awesome responsibility that goes with it very seriously. As such, they have little patience and even less regard for those who appear not to. The highest praise jurors give a judge, a lawyer, or any other professional in the courtroom is when they say just that; that is:“(s)he was very professional”. That means they recognized and appreciated that whoever they’re talking about was not only well-prepared, but also well-mannered and respectful throughout the proceedings. You had better believe that the jury is watching and that they know and notice the difference. How court is conducted by the judge, and how the lawyers conduct themselves in court matters because it matters to the jurors – the people who represent the community and whose trust in the system is integral to its very existence. So it does matter, and this time I am saying that it should.
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