Judge Jason Lidyard has been doing things differently since taking the bench a little over a year ago.
Appointed to fill a vacancy in the First Judicial District last spring, and elected to the post in November, Lidyard has implemented a novel way of dealing with offenders whose substance abuse problems may be a central reason they’re in the judicial system in the first place.
Lidyard, who presides over cases in an area where drug abuse is rampant, does not impose drug-testing requirements on nonviolent offenders with substance abuse problems who are waiting for their cases to go to trial.
Instead, he requires those with substance abuse problems to obtain two doses of the opioid overdose-reversal drug naloxone between their release and their next docket call. Another stipulation: They must attend at least one Alcoholics Anonymous or Narcotics Anonymous meeting every 30 days while their case is pending.
His approach — lauded by some, still too new to be reviewed by others — is getting attention from some who say it’s an idea worth considering and perhaps expanding.
“It’s not a lot, but at least it gets them into a setting where there are other people dealing with the same situations, and they may hear something or make a connection with someone that they might not otherwise,” Lidyard said. “The naloxone is there in case they do relapse; we are able to prevent an overdose. Or, if they are not using, at least it’s in the hands of somebody who may be in circles where someone may suffer from an overdose and they can use it.”
He said most defendants obtain naloxone from the Mountain Center, a nonprofit that receives state and federal funding.
The judge also is partnering with Inside Out Recovery in Española and Barrios Unidos in Chimayó to build a system that includes peer support and practical assistance, such as teaching defendants how to use public transportation to get to their court dates.
“A lot of individuals in my court didn’t have the education growing up from their parents to learn how to keep schedules and get to places on time,” he said. “This is one helpful aid in getting them to realize the importance of showing up to court and how to actually plan in advance to make that happen.”
Lidyard also said that he’ll require pretrial defendants in the future to meet with a caseworker from a recovery group at least twice.
“Then they can do whatever they like from there and it’s on them,” he said. “Then they have an opportunity to do something, as opposed to being forced to it.”
Lidyard’s approach in his Tierra Amarilla courtroom is a departure from business as usual in the First Judicial District, where other judges routinely impose conditions of release on pretrial defendants that require them to refrain from using drugs and alcohol, and to have their compliance with these conditions monitored by a division of the court called Pre-Trial Services.
About 250 defendants are enrolled in the program each year and subjected to drug testing an average of once per week while awaiting trial. Sometimes that means they are monitored for a few weeks or months, but in many cases, it can last for up to a year.
The goal of the program is to ensure defendants show up for court and don’t commit crimes while their cases are pending.
But defense attorneys in the First Judicial District say drug testing defendants who haven’t been convicted is more of a preconviction punishment than a service — which sometimes makes addicts less likely to appear for hearings because they are afraid of being tossed in jail for testing positive.
Public Defender E. Craig Hay said the fact that no one in Rio Arriba County is in custody for a failed drug test changes the way defendants feel about going to court.
“I can honestly talk to them about going to the courthouse and they are not in fear,” he said. “When folks are on pretrial conditions such as drug testing, they live in fear.”
Lidyard said he’s not in favor of ordering drug testing as a condition of release because many of the defendants who appear in front of him are addicts. He contends ordering addicts not to use drugs does not cure them of their habit.
Instead, he added, a vicious circle is created in which defendants are released, use drugs again because they are addicted and get reincarcerated for using drugs. The lockstep has “enormous consequences” on the lives of the defendants and their families.
Even a 72-hour incarceration, Lidyard said, can cause defendants to lose their jobs or homes or fall behind in school.
The judge said defendants subject to the threat of repeated arrests for using drugs while awaiting trial also are more likely to take plea deals they might not otherwise agree to.
Lidyard — a former prosecutor who during last year’s election said his father struggled with drug addiction — notes that his alternative approach to pretrial terms of release does not extend to any defendants who present a danger to the community or to repeat DWI offenders.
The judge’s unofficial pilot program is receiving rave reviews from those who work in substance abuse recovery in Rio Arriba County. Inside Out Recovery founder Kathy Sutherland-Brauw credits Lidyard for understanding issues facing drug addicts.
“He’s looking at addiction in a nonpunitive fashion, in a rehabilitative fashion, which is pretty unique in our society,” she said. “Sometimes people see a problem like addiction from the top down. He’s looking at it from the bottom up. He’s not just banging a gavel and sending people to prison.
“He has visited all of the correctional facilities he has sentenced people to, which is huge. I don’t know if I’ve ever heard of a judge taking the time to do that.”
Barrios Unidos founder and Executive Director Lupe Salazar said she’s also happy with the approach.
“We’ve really appreciated his thoughts as to how to build resiliency in these individuals so there isn’t a revolving door,” she said. “Resiliency is the medicine that has been missing in the community. So many times individuals don’t feel they can get better because someone is always there pointing the finger, blaming them, saying, ‘You can stop if you want to.’ ”
In addition to peer support, workers from the nonprofit recently began accompanying defendants referred by Lidyard to court.
For his part, Lidyard credits Barrios Unidos employee Sixto Aguirre with inspiring him to use peer mentors to keep pretrial defendants on track.
The two met in March at an opioid roundtable discussion in Española, where Aguirre stood up and thanked Lidyard for giving him a chance. Aguirre had appeared in front of Lidyard about a year before on a DWI charge, and the judge put him on electronic monitoring instead of sending him to jail because he knew Aguirre was pursuing certification as a peer counselor.
Aguirre said he’s now sober and providing support to others struggling with addiction.
Though some officials said they didn’t know enough about Lidyard’s approach to comment, others defended the traditional use of the Pre-Trial Services program.
First Judicial District Judge Mary Marlowe Sommer declined to opine on Lidyard’s approach but said that “Pre-Trial Services is not just a watchdog situation.
“It’s a service provided to the court so these people can be monitored. It’s the least restrictive means of supervision and the component is services,” she said. “They try to get them into housing. They try to get them into treatment … and obviously it’s endorsed by the rest of the judiciary.”
Chris Fischer, who supervises Pre-Trial Services in Santa Fe, said it’s not true that pretrial defendants who violate their conditions of release by using drugs are automatically jailed, at least the first time.
“We always try to work with them,” Fischer said. “But I also can’t have someone continuing to use over and over and not address that when it’s a condition of their release that they get clean and stay clean. If they are afraid to come in, it’s because they are still using drugs or they are afraid to confront their substance abuse issues.”
Administrative Office of the Courts Director Arthur Pepin said there is some support in judicial circles for the idea that requiring all pretrial defendants to abstain from drugs and alcohol can be counterproductive to the court’s goals.
“What we’ve learned is that it doesn’t necessarily relate at all in many cases to whether they are likely to return to court or commit another offense,” Pepin said.
He said several national studies, including one by the National Institute of Corrections, have concluded the practice of drug testing pretrial defendants could have the unintended consequence of making an individual more likely to reoffend.
Pepin said drug and alcohol testing once were standard conditions of release in the 2nd Judicial District in Albuquerque, but over the past two years, judges there have agreed to assess each individual on a case-by-case basis — and only check a box sending defendants to drug testing if it seems warranted.
Pepin said the courts received about $500,000 from the Legislature this year to examine pretrial conditions of release statewide, in hopes of coming up with recommendations for practices that could be standardized across the New Mexico’s 13 judicial districts.
As part of that effort, “We’ll be having a robust conversation with our judges about the reasons they test people for drugs and alcohol pretrial and how they might want to consider modifying it in the way they do in the Second Judicial District, or the way Judge Lidyard has,” Pepin said.