By Judge Stephen C. Cooper

andCARROT

STICK

CARROTSTICKThe

The

20

21

TH

EC

AR

RO

T

AN

DT

HE

ST

IC

KJ

AN

UA

RY

2

00

3♦

MI

CH

IG

AN

B

AR

J

OU

RN

AL

What is the purpose of the criminal justice system?

If you believe it is only to punish offenders, then this

issue of the Michigan Bar Journal may be quite upsetting.

If, however, you believe it includes trying to change

antisocial behavior patterns, then you’ll be interested to

read about the successes that have been seen across

Michigan. Do not get the idea that defendants in drug

courts are getting “off the hook.” Instead consider how

many refuse to go to drug court and choose jail instead

because they could not tolerate the pressure of daily tasks

(including daily alcohol and drug testing, intensive

therapy, 12-step program attendance, constant meetings

with probation officers, home visits by the authorities to

make unannounced tests or searches, job monitoring,

mandatory educational programs, and many more

requirements). Just like the fable about getting the

stubborn donkey to move, it takes both the enticement

of the carrot and the prodding of the stick to fully

do the job.

How effective sanctions and incentivessucceed in overcoming addiction

Fast Facts:• Voluntary treatment has

demonstrated a failure to keepparticipants, yet those who arecoerced to attend by drug courts find greater success.

• Traditional criminal sentences can decrease criminal behavior forthose employed, but they mayactually increase criminal behavioramong the unemployed.

• Positive reinforcement is moreeffective than negative.

How effective sanctions and incentivessucceed in overcoming addiction

22

MI

CH

IG

AN

B

AR

J

OU

RN

AL

♦J

AN

UA

RY

2

00

3T

HE

CA

RR

OT

A

ND

TH

ES

TI

CK

The ProblemWe all know that alcohol and other drugs

cause substantial and very expensive harm toour country, its families, employers, andeconomy, but few seem to know what to doabout it.

Studies report that 80 percent of jail andprison inmates in this country have one ormore of these factors in common: arrestedfor alcohol or other drug related offenses,regular use and past history of drug or alco-hol treatment, the crime was used to supporta drug habit, or the person was under the in-f luence of alcohol or another drug at thetime of the crime. We are repeatedly toldthat alcohol and other drugs are at the rootof most violent crimes including theft, childabuse, and domestic violence. So what isAmerica’s response? We lock up addicts invery expensive jails and prisons.

Is Jail the Solution?Jails and prisons don’t cure addictions or

change behaviors.Within three years of release from jail,

the studies show that almost 70 percent arearrested for another crime, almost 50 per-cent have already had their new case com-pleted and are already convicted, and 95percent have relapsed back into their addic-tive behavior.

Is Treatment the Solution?There has been a nationwide effort by a

small group of activists to promote the con-cept that criminalizing and locking up ad-dicts does not work. Their alternative is theprogressive legalization of drugs. This beganwith the passage of Proposition 36 in Cali-fornia a few years ago and almost resulted ina ballot proposal to make drastic amend-ments to the Michigan Constitution thispast year. Their alternative suggestion is vol-untary treatment or a civil commitment to

treatment. Regretfully, however, half of thosereferred never attend even the intake inter-view, most of those in voluntary treatmentjust quit, and researchers find a substantialrelapse rate within just one year of the fewwho make it through. Treatment can work,but only for those who hang in for the longhaul—voluntary treatment has demonstrateda failure to keep participants, yet those whoare coerced to attend by drug courts findgreater success.

Is Probation or Diversion the Solution?Traditional probation is spectacularly inef-

fective. Most probation has the probation of-ficer, in effect, saying to an addict, “stop youraddictive behavior instantly and see me nextmonth, and, by the way, if you are caughtever using the alcohol or drugs to which youare addicted, we will terminate the probationand put you in jail.” Addictive urges do notoccur at convenient one-month intervals. Di-version, work release, and traditional proba-tion can be very effective with very low-riskoffenders who are not physically addicted asyet and have a stake in the community theywant to protect.

How Do Drug Courts Succeed?There are a number of factors that suc-

cessful drug courts have in common. Thedefendant will:

• Participate in treatment in thecommunity.

• Work on modifying their daily behav-ior in their own home, employment,and within their own family situationwhere, ultimately, they will have to con-tinue the new behavior.

• Participate in constant testing. Addic-tion does not take time off for holidaysor weekends. Some early unsuccess-ful attempts included week-day-onlybreathalysers but not on weekends or

holidays when it was inconvenient orexpensive to do testing. Courts havelearned that daily testing for alcohol isnecessary, that tests for other drugs canbe randomized (depending on the drugsand the test mechanism) and testingmust be done for more than just theoriginal addiction as addicts will com-monly change their drug of choice.

• Be continuously monitored by a judgeand other team members. Most partici-pants begin by reporting every week toa probation officer or other case workerto review successes and failures of as-signed tasks that week that may includeattending individual therapy, groupsessions, educational programs, 12-steprecovery programs, seeking or main-taining employment, and chemical orbreath testing.

• Will see the judge every two weeks orso to provide immediate, consistent,and certain consequences for both neg-ative and positive behavior.

• Be rewarded by avoiding a convictionand criminal record or by avoiding in-carceration or payment of money. Instates other than Michigan, judges aregranted the power to allow a restrictedlicense to successful drug court partici-pants who have lost their licenses. Thatone reward, alone, keeps many partici-pants in compliance.

What Makes Effective Sanctions and Incentives?

Behavior modification rewards are more powerful than punishments.

This is a very difficult concept to acceptin the traditional puritanical criminal-justicesystem in the United States where we imposesentences for those convicted of bad acts andallow good behavior to be its own reward.Drug court judges and support teams reportall over the country that a large number ofthe drug court defendants cannot rememberanyone ever saying anything positive tothem. They were always being chastised orpunished, but never praised. The first personin authority to reward them was the drugcourt judge who pointed out something

change will only come when the person begins to feel ownership and pride and

intrinsic rewards from their new behavior.

change will only come when the person begins to feel ownership and pride and

intrinsic rewards from their new behavior.

23

TH

EC

AR

RO

T

AN

DT

HE

ST

IC

KJ

AN

UA

RY

2

00

3♦

MI

CH

IG

AN

B

AR

J

OU

RN

AL

positive that the defendant had done. Thatacknowledgment would often be coupledwith other encouraging rewards as simpleas smiles, handshakes, and applause. Theseacts became the basis for a successful re-covery. The defendant expects the punish-ments but is shocked by having good behav-ior rewarded.

Reality is in the eyes of the behaver.What we may think is a perfect sanction

or incentive may not be received that way.Remember, Br’er Rabbit thought a briarpatch was a great place to be thrown. Takethe child who is punished by being sent totheir room—a room where every item ofelectronic amusement known to humanityawaits them.

Similarly, some defendants don’t mind jailor work release—it gets them away from un-pleasant family situations and provides mealsand a bed. Others look upon having been injail as a badge of honor and report to theirfriends how they survived. Some see jail aseasier to do than fines, therapy, daily testing,or other intrusive requirements. The casualobserver might think that three or fourweeks of jail might be worse than three orfour days, but those housed in jail for weeksare often put in the nicer, newer part of the

jail, and those detained for a few days arejammed in together in mass holding cells.

Payment of a fine might be an enormoussanction to a middle income person whowould struggle to find the money. The samesanction may have no real effect on a wealthyperson who can easily pay, or a poor personwho would be frustrated by having no chancewhatsoever of paying.

Another question is: what does the personhave to lose? Traditional criminal sentencescan decrease criminal behavior for those em-ployed, but they may actually increase crimi-nal behavior among the unemployed.

Graduated sanctions and incentives work best.It is not uncommon for addicts who suc-

cessfully complete drug courts to suffer sev-eral relapses along the way. If the ultimatepunishments of being removed from drugcourt, convicted, and sentenced to the maxi-mum were imposed early on, obviously, theyhave no further chance to improve. Rein-forcers, both positive and negative, are builtin at every stage and for every behavior. Thegraduated approach not only has the inherentbenefit of appearing “fair,” but it also demon-strates that the judge and the team are seriousabout the success or failure of the participantat every opportunity.

Responses must provide immediate, consistent, and certain consequences for both negative and positive behavior.

Anyone who has tried to train a pet knowshow important that is. If your pet messes upwhen you are not at home and the sanctioncomes hours later when you get home, thepet doesn’t connect the punishment with thebehavior but rather with you and your com-ing home. If the pet obeys a command, butyour praise is not automatic, that reinforce-ment is lost. Police dogs don’t search fordrugs, people, or contraband just for self-satisfaction, they are immediately given theirreward of praise and a toy.

This truth has recently been confirmedby scientists studying human brains. All re-wards, even verbal praise, seem to register aspart of the dopamine reward system withinthe brain.

Just a chance of a reward is a reinforcer byitself. Test subjects who had a negative testresult “won” the opportunity to draw from af ish bowl for prizes, which ranged fromnothing at all to nominal prizes (a dollar, apencil, etc.) up to a TV. Eighty-four percentof that group completed treatment comparedto 22 percent who did not get the fishbowldrawing reinforcement.

Positive reinforcement is more effectivethan negative. After trying every punishmentthat came to mind, I remember how my wifestruggled for days to find something positiveto say to one of our sons who was in one ofthose teenage funks. Innovation and creativ-ity prevailed and she finally told him howimpressed she was that he was swearing lessat his brother. Something clicked. As if mi-raculously, there followed a whole stream ofother behaviors worthy of real praise.

Procedures must be in place to assure thatpositive and negative changes in behaviordo not go unnoticed. If, for example, urinescreens are not done by someone who watchesthe hand washing and urination and removalof garments, the participants will figure outhow to cheat the system and that makes theresponses intermittent, false, and ineffective.

In preparing for this article, I heard ofsome courts who have no schedule of sanc-tions and incentives. This ad hoc approachdestroys efforts to be consistent and fair. In

be·hav·ior mod·i·fi·ca·tion[bi háyvyer mòddefi kásh’n]nouna therapeutic approach, employing varioustechniques of reward and punishment, emphasizingthe application of the principles of learning tosubstitute desirable responses and behavior patternsfor undesirable ones. The focus is on changing the subject’s observable behavior, rather than onconflicts and unconscious processes presumed to underlie his maladaptive behavior. This isaccomplished through systematic manipulation ofthe environmental and behavioral variables relatedto the specific behavior to be modified.

Changing the environment and using reinforcers(or their absence) to control the behavior of others.Practitioners set up the environment to prompt abehavior, then reward the desired behavior and/orpunish undesired behavior in that specific situation.

Syn: Behavior Therapy

24

MI

CH

IG

AN

B

AR

J

OU

RN

AL

♦J

AN

UA

RY

2

00

3T

HE

CA

RR

OT

A

ND

TH

ES

TI

CK

fact, it is important that explanations be clearlymade about the different considerations thatmandate different results in cases that mayappear to the participants to be similar.

Positive Mental AttitudePeople suffering from addictions have

tried and failed so many times before. What’sgoing to make this next effort successful?Judges, attorneys, probation officers, police,and treatment providers play a crucial part inthe success. One study showed that when ajudge used positive statements to reinforcebehavior, the number of positive urine testswere lower than when there were either nega-tive or neutral statements.

People are also affected by the enthusiasmwith which the program is presented. A re-cent study demonstrated that psychiatristswho communicated their enthusiasm abouta treatment had a 67 percent higher rate ofsuccess from their patients.

One Michigan attorney recently told meabout a very successful program in the De-troit schools that was abandoned decades agobecause people felt that learning should be itsown reward and students should not bebribed to do what is right. This programgranted students a “scamolian” for reading,doing homework, tutoring others, and vari-ous other behaviors. These scamolians couldbe spent in buying little goodies. The stu-dents’ participation, learning, and test re-sults increased—until the pressure causedthe program to be cancelled. On a similarnote, Mary Kay Ash created an internationalmake-up company as she discovered thatmore cosmetics were sold to try to win a MaryKay Pink Cadillac than were ever sold just fora paycheck. Achieving, for the simple internalsatisfaction of succeeding, doesn’t work foreveryone, and especially not for those whoselives are controlled by an addiction.

Externally applied sanctions and incen-tives will never make for permanent change.

Rather, change will only come when the per-son begins to feel ownership and pride andintrinsic rewards from their new behavior.The benefit of the drug court is that it co-erces the defendant into taking the manytiny daily steps needed to shed old acquain-tances, habits, and patterns. At the sametime, the defendant obtains confidence andawareness of his or her own ability to restruc-ture daily life and succeed at abstinence.Through medical intervention, counseling,education, direction, and constant intrusivemonitoring, the participant is forced to con-tinuously account for his or her actions anddecisions. At least weekly, the participant re-ceives immediate, consistent, and appropri-ate responses to behaviors and choices.

It doesn’t work for everyone; many willstill be locked up in jail. But for some, Mich-igan’s drug courts have been able to providea whole new life, giving them the tools toshare their triumph over addiction withfamily members, ending a life of crime, andassisting them in beginning a productive,responsible life. ♦

Judge Stephen Cooperis vice president of theMichigan Association ofDrug Court Professionalsand was elected to theboard of the AmericanJudges Association. He ispast president of the Mich-igan District Judges Asso-

ciation and has won national awards for public edu-cational programs including 12 years as the founderand director of the LAWFAIR, children’s programs,and drug educational programs. He was namedHonoree-of-the-Year by the Women’s Bar Association,is a former city councilman, was the recipient ofthe Martin Luther King, Jr. Award and Governor’sAward for Volunteerism. He is a father and husbandliving in Southfield, where he has served as a judgefor 16 years and as a trial attorney for 18 years beforebeing elected judge.

One study showed that when a judge used positivestatements to reinforce behavior, the number ofpositive urine tests were lower than when there

were either negative or neutral statements.

One study showed that when a judge used positivestatements to reinforce behavior, the number ofpositive urine tests were lower than when there

were either negative or neutral statements.