Sunday Sit-Down: West Virginia Supreme Court Chief Justice Brent Benjamin
You’ve been on the court since 2005, and many changes have taken place since that time. How would you describe the court today, particularly as compared to when you took office?
Benjamin: At the time I took office, the court had a much more political side to it I think, certainly a very controversial court and at that time … there were a lot of concerns about the direction the court was going in. That’s one of the reasons I ran. It took us a while to turn that ship, so to speak, Justice (Robin) Davis and I had to work very diligently through it, and by the time Justice (Thomas) McHugh got back onto the court, and then Justices (Menis) Ketchum and (Margaret) Workman, we were able to pick up steam. … Justice (Allen) Loughry has been able to pick up just where Justice McHugh left off, and I think we’ve been able to not just redirect where the court was going into a more positive area, but what we’ve also been able to do is not just focus on justice, but also on fixing problems that … we as judges see, the end result of many cases. We also see what the causes are, and we’ve been able to develop some wonderful programs that I think have been very successful that have led the way into justice reinvestment, which the governor now is proposing. …
More than anything, I’m very proud of our court. Not only within the state do I hear time and again that people think the court’s going in the right direction, but I also hear that people think it’s a very non-partisan court, and that’s really important because judges shouldn’t be political, it shouldn’t be the way it was. We all work well together; we do disagree, but we try to not be disagreeable. The five of us get along very well. I think that’s also been a mark of our court – being able to get along. We’ve also turned around our image nationally among a lot of the folks who watch courts. Not only have we been honored with getting the chief’s conference next year in West Virginia for the very first time, but we also have our court administrator (Steve Canterbury) on the national board of that group. … Our clerk of courts, Rory Perry, is head of the Clerk’s Association nationally. … (The national recognition) is something wonderful to see compared to what I saw in 2004.
What about the public’s perception of the court?
Benjamin: I think there was a concern for a long time that it mattered, in many cases, who was in front of the court rather than what their case was when it came to their case being adjudicated. Now people have seen that judges decide cases on a case-by-case basis, they apply the law, there’s a lot more stability and predictability in how we decide cases, we use precedent. They see the court also as a court that only reluctantly makes new law, whereas in the past I think they viewed it as a court that looked for opportunities to legislate. I think they also see the court as a branch of government that is actively working well with the other branches of government, and helping the other branches of government. I mentioned earlier judicial reinvestment. That … requires the branches to work together, so I’m glad we’re in a position now where we can do that.
You talked earlier about the court fixing problems. One of the most prominent issues the court has grabbed onto is the drug court program. That program, for example, dovetails with Gov. Earl Ray Tomblin’s proposal to reduce prison overcrowding. How effective do you thing drug courts are in reducing recidivism?
Benjamin: Drug courts, as with the judicial reinvestment, are fact-based systems. They first of all start with proposition that we focus on safety, first and foremost.
What can we do to think about solutions to make things better and safer for people, and then how can we also do that cheaper than we’ve been doing it in the past. Drug court is a part of judicial reinvestment … as is community corrections, both of which had their start here in the Northern Panhandle with Judge Martin Gaughan … and Jim Lees. The drug courts were a natural outgrowth of community corrections.
A little more than 50 percent of attendees will graduate from our drug court programs. We’ve got adult courts and juvenile courts that are different in their approaches. … The recidivism rate for those who graduate compared to drug users in the adult population who go to prison and come out, somewhere between 70-80 percent go right back in to that behavior. That creates a negative cycle both with respect to public safety being at risk, but it also takes people that have already cost us taxpayer money, and it puts them right back in the system. Putting someone in prison can cost … up to $35,000 depending where they’re at. With the 53 percent graduation rate from drug court programs, we have a 9 percent recidivism rate versus that 70-80 percent. Not only is that a tremendous savings in terms of lives, families and neighbors, our fellow citizens, drug court is a lot cheaper. A drug court program – a person is going to go through at $5,000 to $10,000. … Some of that cost is going to be defrayed by the person going through the program. It also … frees up beds in the overcrowded prison system. And most importantly, when a person successfully graduates and stays off drugs, it breaks the cycle. They go back to a productive life, with self responsibility. They begin being a mom and dad again. They become the child the parents knew at one time, but then drugs took away. They get jobs. They pay taxes. … It really is truly a win-win.
From my perspective, it’s lives. It’s being able to see a person say thanks for not giving up on me. … Recently I was at a juvenile drug court graduation … and came across a young lady who had raised her grade point average from a 0.6 to a 3.0. She hadn’t missed school. She has a life ahead of her. She just needed a little direction. She needed support, and sometimes that’s nothing more than a judge and the people on the drug court team keeping in touch with them.
Something we also see frequently is that when a child’s problem is being fixed, others in the family realize they have problems. It’s not at all unusual to see a mom or a dad or a sibling also go into treatment programs.
For juveniles who do not get treatment, what is their recidivism rate?
Benjamin: For a child who starts with drugs in their teens … we’re going to see them in the criminal justice system, in many cases. If we can get them early, and if we can get positive change early on, we can change their lives. Not only is that good for them, but it’s also good from a public safety standpoint for West Virginia citizens because these are potential crimes that aren’t going to occur. … These programs are, with community corrections, are all philosophically part of the concept behind justice reinvestment. Justice reinvestment just brings on new programs, and again the focus is on safety, the focus is on dollar savings and getting fixes that actually work. We’re very hopeful we can get this through the Legislature.
What type of overall savings can drug court provide the state?
Benjamin: With the number of people we have currently in the drug court system that are not occupying space in prison where we can put more violent criminals, that savings alone amounts to about $20 million to $21 million a year just in having those people go through the drug court system instead of the prison system. That includes juveniles not going into juvenile detention facilities, which can be very expensive. The cost to the judiciary … there are costs for drug testing, there’s monitoring involved, it’s very heavily supervised and we do have to have probation officers to monitor everything for drug court, is about $3 million per year.
How bad is West Virginia’s drug problem?
Benjamin: The drug problem in West Virginia is not something that is just in one area of the state, or with one socio-economic group in the state. The drug problem we have in this state permeates our entire society. It affects the young, it affects the old. In drug court, we’ve had drug counselors who’ve got caught up in the very thing they’ve counseled people not to do, primarily because they’ve got hooked on pain medications. A person who’s otherwise a good person can very quickly slip into dependency if the care’s not complete, or if they get hooked on what can be very addictive types of pain medication. We also see young folks with perhaps a more permissive belief system in drugs get caught up. Drugs are something that once the hook is in, it’s hard to get that hook back out and let the person gain that self-responsibility and self-respect back. It affects the rich, the poor, the old, the young, those in the Northern Panhandle, the Eastern Panhandle, the southern part of the state. We used to see different types of drugs – whereas we used to see heroin in the northern part of the state and Oxycotin in the southern part of the state, we’re now seeing heroin all through the state, we’re seeing Oxycotin all through the state. … Right now, there is a big concern about the increasing prevalence of heroin coming in from some of the bigger cities. … It’s also somewhat age related. Some of the older folks get hooked because of maybe a back injury, they get hooked on Oxycotin.
Also on the Legislature’s agenda this year is public education reform. Some circuit and magistrate judges have mounted intensive campaigns against truancy. We all know children don’t learn if they aren’t in school and they’re more likely to drop out if they fall behind due to truancy. Explain, if you will, the anti-truancy campaign and tell us what results have been obtained.
Benjamin: First off, it’s been a very successful campaign. As you know, Justice Davis is very actively involved. Judge Alan Moats who also currently chairs our complex litigation panel, has also been involved from the very beginning. What we, as judges, began seeing was the individuals who were occupying our criminal justice system were the same people, years earlier, were truants. They didn’t go to school. The focus became to try to encourage the kids to stay in school, and oftentimes also to encourage the parents to keep the kids in school. … The turnaround has been dramatic for those kids who get back into school. Again, it’s the potential lives that we save, the potential future, changing bad patterns. These are things we see in the judiciary that we can fix, and we do it to create savings.
With truancy, not only is it hand-in-hand with the educators in the state, it’s also hand-in-hand with others in the counties, such as the Department of Health and Human Services. Again, it’s a multi-branch approach to fixing problems. … Some of the things we are encouraging legislators to look at is because of how successful the truancy program has been so far, taking it to the next level, taking it to other counties. … Giving the schools even more tools that they can use to supervise and get kids back in school. There’s a program looking at how we can get actual probation officers working with each county board of education to focus specifically on that issue. … Cabell County has already been able, through grants, to hire a probation officer for the sole purpose of keeping kids in school and graduating them. These are all programs that did not exist 10 or 15 years ago. It’s a new direction the courts are taking. … We are seeing this as an expectation from the public that this is part of what they want to see from the judiciary.
What other areas is the court looking at addressing?
Benjamin: One of the areas we’re currently looking at now that we’ve just started a new program on is the area of adoption. It’s a problem that sometimes is hard to look at, because we don’t want to think that there are kids in West Virginia that are languishing in the foster care system. These are kids that could be adopted, but aren’t being adopted. They have no permanency in their lives because they just keep waiting and waiting and waiting, and the sad reality is that when a child is in the foster care system and they turn 18, in most cases they become homeless. In West Virginia we’ve recognized for a long time that these kids need help. So at age 16 we begin transitioning them for adult life, teaching them job skills, teaching them how to balance a checkbook. … When I was chief (justice) in 2009, we had just over 900 children in that situation. When I took office as chief justice this year, it was well over 1,300.
We’re right now looking in part at the cause, but we also have to focus on the solution .. because each day one of these children is in the foster care system without a family to call their own, is a day their future is a little less bright. When a child stays in foster care past the age of 12 for more than eight to 12 months, maybe 15 months, their likelihood of graduating from college drops down … to almost 3 percent. … It’s not their fault they’re in the situation they are. If there’s one thing West Virginians care about it’s our kids. I think in most cases we don’t know that this problem is out there, and I think West Virginians, as they find out more about it and that’s what we’re educating them on this year … as we focus on it I think West Virginians will step up and start fixing the problem. I have every belief that will happen.
What’s driving it primarily is drugs, there are more parents being deemed neglectful and unfit now than when I was chief in 2009. … We also unfortunately are looking at a time when grandparents who used to take care of their grandchildren are getting older and they’re not able to anymore. … It’s getting harder to find family members to place.
Mental health has become a major issue since the Sandy Hook shootings in December. What role can the courts play in dealing with mental health?
Benjamin: We see so much of the result in the criminal justice system but also in the civil justice system because we see it when people are being involuntarily committed. In West Virginia we use a system we’ve used for decades. There’s been a lot of evolution in thinking on mental health disease that has occurred, and one of the things begun late last year when Justice Ketchum was our chief justice was to begin looking at how we can streamline the process but also create a better process through the court system when there’s an involuntary commitment. When we see so many of the criminal justice things we see not only have drug aspects but mental health aspects, and indeed in many of the drug issues there’s a mental health component. For that reason, there in the Northern Panhandle we have a mental health court. It is separate from the drug court but it allows Judge Gaughan to work with an individual who may have both problems. And now we’re seeing some of our veterans exhibiting specific symptoms that are directly related to the service they’ve given to our country. So we’ve been able also through Judge Gaughan to develop a veterans’ court, which is a division of our mental health court. Those are other areas we can look at.
… When Gaston Caperton was governor, he and his folks were looking at the concept of community mental health. And it is an outstanding model to follow. It was followed for years after his administration but it began to lose momentum and hopefully, with the renewed attention that we can look at the problem or we can look at the underlying problem, or we can really look at how we solve the problem. As we begin looking at actually solving the problems so they don’t come back … we’ve got to look back at that community mental health and returning to the (previous) plan. That’s a good beginning point.