By Michelle Barclay, Georgia Courts Journal
Michelle Barclay (MB): You’ve been on the Council since its creation (2011) and then you have been co-chair of the Council since 2013. There has been a report published every year usually with legislative recommendations, many of which have been passed and are in place today. See: https://dcs.georgia.gov/georgia-council-criminal-justice-reform. What was the impetus for the creation of this council?
Justice Michael Boggs: There was not an exact moment in time that people in our state started to re-evaluate our current criminal justice policies. It was a building conversation. Governor Deal was really the leader for the right moment who decided to take this re-evaluation process on and seek a better way. He has a unique perspective as a lawyer, a former juvenile court judge, former member of the GA general assembly and a member of Congress. His broad experience, skill set and unique perspective helped the people serving on the Council to leverage relationships and seek the knowledge that we needed for reforming our system. We studied our state-specific criminal justice data and we learned what drives criminal conduct, but we also learned about proven approaches and methods that exist that remediate unacceptable behavior (outside of prison); improve public safety and give the taxpayers a good return on investment.
Rep. Jay Neal told me he talked to Gov. Deal as a candidate about the need for criminal justice reform. Jay was speaking from his perspective as a legislator and as a pastor. Ideas for reform were germinating in both of their minds even before he was elected Governor. Gov. Deal also has a son who is a superior court judge and runs a successful accountability court in his circuit. I think all of those factors came together to create a heart-led effort by the Governor to improve our criminal justice system. Personally, I have not spoken with the Governor about his motivation for tackling these issues but to be sure, his leadership on criminal justice reform will prove to be one of his many remarkable and lasting legacies.
MB: What do you think are the major accomplishments of the Council over all these years?
Justice Boggs: Long pause….the fact that we have been able to effectuate politically challenging change with bipartisan support, in and of itself, is pretty substantial. Much of our success can be attributable to our collaborative and deliberate data-driven approach to the issues. We focused on our State’s data and listened to a wide range of stakeholders. It should also not go unnoticed that almost all of the recommendations that we have made have been enacted by either legislation or by regulatory changes that resulted in policy shifts within departments and administrative agencies. That process itself is also an accomplishment. We also had the luxury of time to study, discuss and work on these difficult policy matters that is not afforded to the legislature in their general 40-day session.
Specific policy achievements are many for our state: (1) averting a projected 8% prison population growth that would have cost GA taxpayers 264 million dollars; (2) supporting policies to divert low risk, non-violent offenders away from prison beds into proven, cost-effective programs like accountability court programs; (3) the rewrite of the juvenile code which had been a project of the State Bar and others for years but the Council was able to help drive that needed modernization of the code to completion; (4) the juvenile justice grant incentive program that has helped divert some 1466 youth away from $90K a year detention beds (by the way, detention beds have a 65% recidivism rate) to more cognitive behavior intervention programs that have been proven across the nation over decades of studies with a good return on investment for public safety; (5) we helped develop a holistic and comprehensive prisoner reentry plan.
MB. Tell us more about the holistic approach.
Justice Boggs: To be effective, criminal justice reform needs to address all aspects of the criminal justice system. It is not enough to simply enact policies to divert prison commitments. To be successful, all aspects required attention and there was a singular focus on how the various criminal justice component parts interrelated. You start looking at commitments into the adult system, and then you begin to see the juvenile system as a possible driver to the adult system. Over time and study, you start to see the institutional changes that need to be made to turn away from the status quo and turn toward evidence-based practices….you see that programs within prisons themselves need to change. Today, in Georgia prisons, you can still get your GED, but you can also get your diploma and earn college credits; you can now get more comprehensive substance abuse and mental health treatment. This is all being done to prepare people for reentry into society. The issues facing people re-entering society are enormous and include housing, job readiness, employability, managing substance abuse and mental health problems and getting access to services for those problems, getting identification documents, and dealing with the consequences of having a criminal record. All of these separate pieces have to be addressed with some measure of success to be effective.
When I talk to groups, like Rotary clubs, I try and use imagery. Imagine a pool of water (those are the people in our prison system on any given day), how can we bail some water out of that pool in a meaningful way that still ensures public safety (which is our paramount concern)? However, we also know that the faucet is still turned on (which is the juvenile system). So, as we were bailing water out, the pool still continues to fill because we needed to address the faucet. We also needed to manage the drain better at the bottom of the pool because 97% of people in prison today will rejoin society. We want to be smarter about the way we deal with those released from prison to ensure public safety. We want these individuals to be successful and not return to the pool. Each entry and exit point of the pool has to be addressed with intention or we will not make any progress. Focusing on diversion alone is relatively easy, but it will not effectively change a state’s criminal justice system if public safety remains paramount.
Many judges have expressed their frustration with the “revolving door” of nothing working. I was a superior court judge myself once and I remember this frustration. If your only tools are probation and prison, then people will likely not get the proven interventions that work where public safety is maintained and we will continue to pay the high costs of the revolving door. A 30% recidivism rate is simply unacceptable, particularly when it comes at such a high cost to our state’s taxpayer. It is even more unacceptable when we know that other strategies cost less and produce a better public safety return on our taxpayers’ investment. If we know anything, it is this: bricks and mortar and guns and guards do not remedy the most prevalent drivers of criminal conduct – mental health and substance abuse issues.
Also, this work was not about releasing serious violent offenders. We are not diverting any serious violent offenders. When we started Criminal Justice reform, 63% of the standing prison population in GA were classified as serious violent offenders. That number is now 67%. The low risk, non-violent offenders used to be 47% of the prison population and now they are 43%. The numbers are heading in the right direction. We are not being soft on crime, but we need to be smart on crime. We are leveraging what we know that works. We have been data-driven and ensured that our state’s data (not the data from other places) has informed our recommended changes. For example, the recidivism rate for those coming out of accountability court is much better than those coming out of prison- and the costs are exponentially lower. Our charge was to hold offenders accountable, improve public safety and save state’s taxpayer dollars and we have been true to that charge.
MB. Tell us more about the high costs.
Justice Boggs: $1.1 billion was being spent to maintain our prison systems in the Department of Corrections when we started in 2011 and 30% of everyone released were re-arrested and convicted within 3 years. The system, as it was, was not morally or fiscally sustainable. We have changed the criminal justice system very little for the past 200 years. Moreover, we know that while long prison terms are very appropriate for some offenders, we now know so much more about what drives and deters criminal conduct – especially among low-risk non-violent property and drug offenders. Most every judge agrees that for this latter class of offender, prison simply does not work to change behavior or improve public safety. The high costs and low public safety return on investment was simply not acceptable and we all agreed that we need to leverage what we knew would work by giving judges more tools.
MB: What do you think about the movement to accountability courts?
Justice Boggs: I think it is a needed tool but it is not a panacea. It has however been proven to work for many low-risk drug offenders. Some judges have resisted because it is a change from the traditional role of a judge as an objective and neutral arbiter, and accountability courts can feel like judges are becoming more like social workers. However, accountability courts are about changing behavior to help people function in society and avoid prison; I think most judges and citizens can grasp the importance of helping those we can help, particularly if it costs less and produces a safer society.
MB: Have there been any missteps in the Council’s work?
Justice Boggs: I would not say missteps or failure, but we have had challenges which are on-going. Being able to effectively implement change is a challenge for public policy, especially on the scale of a big criminal justice system. Changing mindsets about what we are doing and how we are doing it is a challenge. Implementation of the Council’s varied and broad strategies has been challenging, as it would be for any comprehensive policy shift among various state agencies. Taking accountability courts to scale has been a challenge. More defendants could potentially benefit from the model, but we do not have the capacity to take them in or we have the capacity but the capacity is not being used. We have a very successful juvenile justice incentive program, but it only operates in 51 of our 159 Georgia counties. However, I would say our biggest challenge has been the lack of good data—while we have better data than most states, we have a problem with agencies within our criminal justice system using different management information systems within their siloed agencies. For example, there are numerous misdemeanor probation providers and separate county and municipal providers. These providers all use their own information systems with very little sharing, so trying to glean anything meaningful from this sort of data is difficult. The juvenile justice arena is also difficult. We have 14 independent juvenile courts that operate with their own information systems, and aggregating the data from across these systems has proved to be most difficult. Other states are struggling with the same thing. We have made some progress in this arena but need more useful data.
MB: What advice would you give to someone who wanted to change law or policy?
Justice Boggs: Effectuating policy change is tough, and it should be. Importantly though, policy change to be most effective should include attention to implementation. The difficulty with policy work is that it is typically reactionary – passed to address a perceived (and sometimes isolated) problem, with little thought to subsequently revisiting the matter to ensure it was implemented successfully and that it produces the result you expected. When possible, removing politics and rhetoric from the discussion is always helpful. Our council has been successful largely because we have been inclusive in creating policies and focused not on political remedies, but rather focused on data. How does the data fully inform our decision-making? An objective data view of a problem is core to making a case that a particular law or policy should change. Also, defining the end goal is also important—what will this change do to impact public safety? Will it hold offenders accountable? Will it save taxpayers money? Those are the things that will resonate with the general assembly. Stories alone will only take you so far. Anecdotes and even moral imperatives are generally not enough to change public policy. To me, data matters.
MB: Don’t you think persistence makes a difference too?
Justice Boggs: Persistence is part of the equation. I was appointed by then Chief Justice Hunstein, along with herself and Judge Ural Glanville to the Criminal Justice Reform Council in 2011 and I am still here. I think my legislative experience has been helpful to the Council. Once we got H.B. 1176 passed unanimously, the Council obtained a lot of political capital to keep going and dive deeper into the criminal justice reform arena. The work has continued with heavier lifts each year. We could not have done some of the things we did in year 5 or 6 in year 1. There was a balance in how to responsibly affect public policy. We had the luxury of time to study issues and data more comprehensively, and have been moderately successful in building a certain level of credibility and trust with others in our recommendations.
MB: What is left to be done?
Justice Boggs: The Council was statutorily created and it expires in June 2018. I’m looking at that date as an end for now. I’m hoping we can do some bail reform work and clean-ups and housekeeping of laws that need tweaking during the 2018 legislative session. I would love to do more work on fines and fees of criminal defendants, remediate multiple issues with our state’s mental health system and address the opioid issue confronting our state. But, we likely will not get to that work before June. An enormous amount of money is being collected on the backs of criminal defendants – some $550 million just last year. Fines can often be important in holding people accountable, but the surcharges mount up and arguably do not meet the objective of serving justice. I serve on the National Task Force on Fines, Fees and Bail Practices which emerged as a result of the Ferguson report. I have learned a lot over the past year about problems at a national level and about needed changes in Georgia. I also wish we could take on a more thorough study of the issue of decriminalization of certain traffic offenses. Some non-moving offenses could potentially be converted to civil infractions thus not even implicating the criminal justice system. Generally though, I feel that the past seven years has been an enormous success for Georgians. We have become a national thought leader on the issue of responsible “smart-on-crime” criminal justice reform and I am proud to have been involved in the process.