         IN THE SUPREME COURT OF THE STATE OF DELAWARE

ORDER RE-ESTABLISHING THE §
CRIMINAL JUSTICE COUNCIL §
OF THE JUDICIARY          §

Before STRINE, Chief Justice.

                                      ORDER

On the 19th day of August, 2015:

   WHEREAS, few matters of public policy are more important to Delawareans than the

         penalties and rehabilitation opportunities that defendants who commit crimes

         receive;

   WHEREAS, it is impossible as a matter of fiscal reality and our society’s values to

         address the public’s need for safety solely by means of lengthy sentences of

         incarceration;

   WHEREAS, the criminal justice system has a responsibility to attempt to afford

         prisoners an opportunity to address substance abuse, mental health,

         educational, and vocational problems that may have contributed to their

         criminal behavior;

   WHEREAS, the criminal justice system has a responsibility to use limited resources

         wisely, and to attempt to allocate rehabilitation resources rationally and

         equitably, based on sound criteria;

   WHEREAS, many offenders receive sentences that permit them to live in the

         community, and there are only limited resources available to the Bureau of
      Community Corrections of the Department of Correction (i.e., “Probation and

      Parole”) to provide supervision and services to these offenders in order to

      protect the public and attempt to help these offenders avoid committing other

      crimes;

WHEREAS, to best protect the public and to reduce recidivism, scarce supervision

      resources must also be deployed rationally and equitably, based on sound

      criteria relating to the dangerousness of the offender to the public;

WHEREAS, the Judiciary has an important role in determining the allocation of

      limited rehabilitation and supervision resources, and should do its best to help

      important state and community partners do their jobs effectively and

      efficiently;

WHEREAS, in cooperation with these partners, the Judiciary has initiated a variety of

      innovative approaches to criminal cases, which attempt to address some of the

      fundamental issues that contribute to criminal behavior;

WHEREAS, to that end, the Judiciary has implemented innovations in “problem-

      solving” approaches to dealing with offenders with substance abuse problems,

      offenders with mental health problems, offenders who are military veterans,

      and offenders who were impressed into criminal conduct by sexual

      victimization;

WHEREAS, these innovations in problem-solving courts have now gone on for

      several years, there is valuable experience from them, and it is timely to

      consider their effectiveness and which of them are worth bringing to full scale;


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      to develop consistent, predictable, and measurable statewide standards

      governing their operation; and to ensure that problem-solving courts function

      in a manner that respects the needs of key agency partners, such as Probation

      and Parole, and that uses limited supervision and rehabilitation resources

      prudently;

WHEREAS, these problem-solving courts should genuinely be courts, in the sense

      that they are an integral part of the courts of Delaware and operate on sensible

      and effective standards that do not vary depending on the judge handling the

      matter or the county in which the matter is handled;

WHEREAS, because the problem-solving courts address classes of offenders with

      similar needs for supervision and rehabilitation regardless of the particular

      court – be it the Superior Court or the Court of Common Pleas, by way of

      example – our State should endeavor to implement the best approach to, for

      example, a “mental health” court, without regard to court jurisdictional lines;

WHEREAS, the utility of collaborating within the Judiciary and with key partners to

      make the problem-solving courts more effective is merely one illustration of

      the benefits that could flow from more collaboration on key criminal justice

      policies within the Judiciary itself;

WHEREAS, this collaboration within the Judiciary and with key partners is also

      necessary because of the effect these innovative problem-solving efforts have

      on the resources and time key agency partners have to devote to helping




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      supervise and rehabilitate other criminal defendants, and on the Judiciary’s

      own resolution of criminal matters not assigned to the problem-solving courts;

WHEREAS, the ability to collaborate on these issues is complicated by the

      proliferation of criminal justice bodies charged with overlapping responsibility

      to address criminal justice issues (see Exhibit A);

WHEREAS, the sheer number of these bodies makes it difficult for the Judiciary and

      other Branches to staff them appropriately and to use limited time to address

      key criminal justice issues effectively;

WHEREAS, the sheer number of these bodies also complicates the ability of

      appointed members of the Judiciary to consult with their judicial colleagues

      and to speak for the Judiciary as a whole when they serve on these bodies;

WHEREAS, this lack of coordination can cause the simultaneous employment of

      different approaches to the same criminal justice policy problem, which may

      result in similarly situated offenders receiving inequitably different treatment,

      and inefficiencies for key agency partners whose budgets and staffs are

      limited;

WHEREAS, it is therefore timely to explore the implementation of measures to focus

      criminal justice policymaking in a smaller set of key bodies, and to ensure that

      the judicial representatives on those bodies are able to consult with their

      colleagues and present input that reflects the best thinking of the Judiciary as a

      whole;




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   WHEREAS, as with adult offenders, there are limited rehabilitation and supervisory

           resources to address youth delinquency, so the Judiciary should make good

           faith efforts to work with key partners to make sure these resources are

           rationally allocated in an effort to provide juvenile offenders with effective

           opportunities for rehabilitation and to protect the public;

   WHEREAS, to address all these issues, it is useful to involve judges from the key trial

           courts with the front-line responsibility for criminal justice and to have them

           play the leading role in addressing these issues;

   WHEREAS, on October 15, 2014, the Supreme Court established the Criminal Justice

           Council of the Judiciary by Administrative Directive 186 to address the issues

           set forth above;

   WHEREAS, Administrative Directive 186 was rescinded in connection with the

           adoption of the consolidated Operating Procedures for the Delaware Judicial

           Branch; and

   WHEREAS, the Supreme Court wishes to re-establish the Criminal Justice Council of

           the Judiciary.

NOW, THEREFORE, IT IS DIRECTED, with the unanimous approval of the members

of the Supreme Court under Delaware Constitution, Art. IV, 13(1), that:

      1.      The Criminal Justice Council of the Judiciary is hereby re-established.

      2.      The membership of the Council shall be as follows:

              The Honorable William C. Carpenter, Jr., Chairman
              The Honorable Jan R. Jurden, Co-Chairwoman


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     The Honorable William L. Chapman, Jr.
     The Honorable Kenneth S. Clark, Jr.
     The Honorable Robert B. Coonin
     The Honorable Carl C. Danberg
     The Honorable Alicia B. Howard
     The Honorable Vivian L. Medinilla
     The Honorable Mardi F. Pyott
     The Honorable Andrea L. Rocanelli
     The Honorable Paula T. Ryan
     The Honorable Robert H. Surles
     The Honorable Paul R. Wallace
     The Honorable William L. Witham, Jr.
     The Honorable Alan G. Davis

3.   The initial mandate of the Council shall be as follows:

     A.     Problem-Solving Courts

            i.    To identify which of the so-called “problem-solving courts”

                  have demonstrated sufficient utility in terms of improving

                  public safety, the rehabilitation of offenders, and the efficiency

                  of the judicial system to warrant continuation;

            ii.   As to problem-solving courts that are continuing in operation,

                  to develop statewide standards, rules of procedure, and

                  outcome measures to govern their operation and measure their

                  performance. Such statewide standards shall ensure that the

                  problem-solving courts (e.g., Drug Courts, Mental Health

                  Courts, and Veterans’ Courts) operate based on the same

                  standards regardless of the county or court in which a case is

                  held, unless there are sound, articulated, and efficient reasons


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      for variation. These standards, rules of procedure, and outcome

      measures shall be designed to enable any judge of a court, any

      experienced practitioner, and key agency partners to understand

      how matters in the problem-solving courts are to be handled

      and what class of cases and offenders are eligible for inclusion;

iii. In identifying and developing the standards for problem-

      solving courts continuing in operation, the Council shall

      examine empirical evidence not only from the various

      approaches used by our courts to date, but also empirical

      evidence and other research and scholarship from similar

      efforts in other states;

iv.   In identifying and developing these standards, the Council shall

      also seek input from other key partners to ensure that the

      problem-solving courts operate in a manner that helps other

      agency partners in doing their critical work efficiently. By way

      of example, the Council shall consider how the courts should

      schedule matters before the problem-solving courts in a manner

      that is efficient for Probation and Parole and treatment

      providers so that they can make the best use of their scarce

      time; and

v.    In identifying and developing these standards, the Council shall

      also consider, with input from agency partners, how to ensure


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           that the problem-solving courts do not inhibit Probation and

           Parole’s ability to supervise other defendants effectively or

           deny other defendants who need rehabilitation resources

           equitable access.

B.   Overall Criminal Justice Coordination

     i.    The Council shall identify the most effective policy body in

           which overall criminal justice policy should be addressed by

           the Judiciary in cooperation with the other Branches;

     ii.   The Council shall identify means to consolidate, eliminate, or

           revise the mandate of existing criminal justice policy bodies

           that have overlapping or inconsistent mandates, and to engage

           with the other Branches in a good faith effort to reduce the

           number of related bodies and to focus policymaking in fewer

           forums; and

     iii. The Council shall also identify policies and procedures to

           ensure that the Judiciary’s members on those bodies collaborate

           with their judicial colleagues in advance of meetings of

           whatever criminal justice bodies persist so as to ensure that the

           Judicial Branch’s members on those bodies speak, to the extent

           possible, for the Judiciary as a whole.

C.   Juvenile Justice

     i.    Problem-Solving Courts

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a.   The Council shall identify which of the problem-solving

     courts used in the Juvenile Justice system have

     demonstrated sufficient utility in terms of improving

     public safety, the rehabilitation of delinquent youth, and

     the efficiency of the judicial system to warrant

     continuation;

b.   As to problem-solving courts that are continuing in

     operation, to develop statewide standards, rules of

     procedure, and outcome measures to govern their

     operation and measure their performance. Such standards

     shall ensure that problem-solving courts operate based on

     the same standards regardless of the county in which a

     case is held, unless there are sound, articulated, and

     efficient reasons for variation;

c.   These standards, rules of procedure, and outcome

     measures shall be designed to enable any judge of a court,

     any experienced practitioner, and key agency partners to

     understand how matters in the problem-solving courts are

     to be handled and what class of cases and offenders are

     eligible for inclusion;

d.   In identifying and developing the standards to govern any

     courts that are continuing in operation, the Council shall


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           examine empirical evidence not only from the various

           approaches used by our courts to date, but also empirical

           evidence and other research and scholarship from similar

           efforts in other states; and

      e.   In identifying and developing these standards, the Council

           shall also seek input from other key partners to ensure that

           the problem-solving courts operate in a manner that helps

           other agency partners in doing their critical work

           efficiently. By way of example, the Council shall

           consider how the courts should schedule matters before

           the problem-solving courts in a manner that is efficient for

           the Division of Youth Rehabilitative Services (“YRS”)

           and treatment providers so that they can make the best use

           of their scarce time.

ii.   Judicial Branch Juvenile Justice Policy Coordination

      a.   The Council shall identify the most effective policy body

           in which overall juvenile justice policy should be

           addressed in cooperation with the other Branches;

      b.   The Council shall identify means to consolidate,

           eliminate, or revise the mandate of existing juvenile

           justice policy bodies that have overlapping or inconsistent

           mandates, and to engage with the other Branches in a


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              good faith effort to reduce the number of related bodies

              and to focus policymaking in fewer forums; and

         c.   The Council shall also identify policies and procedures to

              ensure that the Judiciary’s members on those bodies

              collaborate with their judicial colleagues in advance of

              meetings of whatever juvenile justice bodies persist so as

              to ensure that the Judicial Branch’s members on those

              bodies speak, to the extent possible, for the Judiciary as a

              whole.

     iii. Cooperation With Youth Rehabilitation Services In Optimizing
          The Allocation Of Placement Funds For Delinquent Youth

         a.   The Council shall engage with the YRS to identify means

              to provide the Family Court and the YRS with better

              empirical data regarding the comparative benefits and

              costs of placements for delinquent youth for their use in

              making placement decisions. The goal of the Council

              shall be to better enable the Family Court and the YRS to

              deploy the limited resources available for the placement

              and supervision of delinquent youth in the manner most

              likely to protect the public and to provide rehabilitation

              opportunities for youth offenders.

D.   Work Time Line



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i.    The Council shall present its initial findings to the Chief Justice

      and Presiding Judges, the Supreme Court, and the

      Administrative Office of the Courts on or before June 15, 2015.

      To the extent the Council identifies issues that require more

      time for resolution, the Council shall specify the time frame

      best suited for resolution of those remaining issues. Likewise,

      if the Council identifies issues that should be addressed earlier

      because of the State legislative or budget cycle, or for other

      reasons, it may make such interim reports as it deems

      advisable;

ii.   To facilitate the implementation of findings determined by the

      Judiciary and other Branches to be worthy of adoption as

      policy, the Council shall accompany its findings with

      implementing draft rules of procedure, standards of operation,

      administrative directives, and legislation; and

iii. The Chief Justice may also refer other criminal justice issues to

      the Council for consideration.

                                    BY THE COURT:
                                    /s/ Leo E. Strine, Jr.
                                    Chief Justice




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cc:   The Honorable Jack A. Markell               State Court Administrator
      The Honorable Randy J. Holland              Court Administrators
      The Honorable Karen L. Valihura             Clerk of the Supreme Court
      The Honorable James T. Vaughn, Jr.          Counsel to the Governor
      The Honorable Collins. J. Seitz, Jr.        Chair Senate Judiciary Committee
      Members of the Judicial Conference          Chair House Judiciary Committee
      The Honorable Matthew Denn
      The Honorable Brendan O’Neill




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