Problem-Solving Courts Research Paper Example

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The label “problem-solving courts” refers to a movement of court specialization that began in 1989 and subsequently dominated criminal court reform discussions and agendas in the United States. The label encompasses a legal theory of adjudication and a set of practices that have been applied in pursuit of better individual and societal-level outcomes in court cases involving offenders with underlying psychological, public health, and social problems perceived as hindering a desistance from crime. Problem-solving courts began by addressing the problem of substance abuse. In turn, the problem-solving court movement expanded to address mental health, domestic violence, and, most recently, the difficulties military veterans are experiencing in adjusting to civilian society. Other examples include the creation of reentry courts (to support offenders released from prison due to prison overcrowding or cost-saving programs of early release) and community courts (responding to persistent low-level offenses that are seen as harmful to the quality of life of residents and businesses). Problem-solving courts have also been created to deal with problems associated with guns, drunk driving, tobacco, and noise abatement (environmental courts).

By the end of 2009, there were an estimated 3,649 operational problem-solving courts, two-thirds of which were drug courts (Huddleston and Marlowe 2011:1). This movement began with the opening of a single court, the Miami (Florida) Drug Court. The early problem-solving courts were in many respects judicial innovations, the creations of a few judges who were dissatisfied with what they could accomplish by adhering to the traditional judicial role and using conventional sentencing options. Wider interest from state and federal policy-makers followed almost immediately. The rapid diffusion of problem-solving courts and the fervor of its advocates can be compared in some ways to the launch of the juvenile court movement 100 years prior. It is only recently, and only definitively for adult drug courts, that research has confirmed that the impacts such as recidivism in problem-solving courts improve upon what is typical in misdemeanor courts.

The problem-solving concept has also been well received outside of the United States. A diverse range of countries – including Australia, Canada, Great Britain, the Netherlands, and South Africa – embraced the concept. By the most recent available international count (for 2007), drug courts are the most prevalent (in eight countries), followed by community courts (in seven countries), domestic violence courts (in four countries), and mental health courts only in Australia (Nolan 2009). The adoption of American problem-solving court principles has not been uncritical; modifications have been made to reflect local culture. Therefore, “in the United States, the courts are characterized by enthusiasm, boldness and pragmatism; whereas in the other five countries, [cited above] the contrasting disposition is one of moderation, deliberation, and restraint” (Nolan 2012:156).

Definition

Properly understood, problem-solving courts consist of court dockets, a courtroom, and a judge that, for a period of time ranging from a half-day per week to a 5 full days a week, exclusively adjudicates cases that have been selected for special processing. There are only a handful of stand-alone drug courts or any other type of problem-solving court. This distinction is not always recognized in discussions of problem-solving courts. In some respects, problem-solving courts are a continuation of one of the oldest approaches to court reform, case-flow management, in which types of cases are grouped together in order to secure more efficient and effective case processing.

There is no authoritative definition of what constitutes a problem-solving court. Most would agree, however, with this formulation: a problem-solving court must demonstrate “(1) close and ongoing judicial monitoring, (2) a multidisciplinary or team-oriented approach, (3) a therapeutic or treatment orientation, (4) the altering of traditional roles in the adjudication process, and (5) an emphasis on solving the problems of individual offenders” (Nolan 2010:32).

Problem-solving courts can be distinguished from the types of courts and dockets that emerged in earlier periods to specialize adjudication in criminal court cases. The distinctiveness stems, first, from a package of practices and beliefs on how to wean substance abusers and others from persistent offending associated with an underlying psychological or physical problem and, second, from a new legal theory that justifies their practices. The difference is one of degree, but it is consequential. By a similar logic, some commentators exclude domestic violence courts from the ranks of problem-solving courts: there is little expectation that the actions of the court can reduce recidivism in such cases. The distinction is well captured in the standard court terminology which refers to adults as defendants or offenders, while in a problem-solving court, we hear talk of “clients,” “participants,” and “graduations,” rather than defendants, offenders, and sentences.

Origins

Today’s problem-solving courts are products of several trends that came together in the late 1980s. Those trends included reformist judges, a legal theory supporting a more expansive judicial role, enthusiastic government support and funding, and the emergence of a new profession.

First, a significant minority of United States judges were frustrated by their inability to intervene in such a manner as to reduce persistent reoffending by addressing the underlying psychological or social problems that prevented progress. Substance abuse was the primary cause of dissatisfaction. Nothing worked. The same judges often were dissatisfied with the limitations imposed by the traditional role of the judge and looked for a way of defining the judicial role that they would find more personally and professionally satisfying (Baum 2011:116). In key respects, problem-solving courts in the United States are products of the judiciary itself: they represent the most recent effort to create specialized courts to achieve faster and more effective responses to particular types of cases. Outside of the United States, the introduction of problem-solving courts tends to be the product of government initiatives, working with the courts.

Second, there was a legal theory available to justify deviation from the judicial role as defined by the adversarial process. The emerging theory came from the field of therapeutic jurisprudence developed by United States law professors David Wexler and Bruce Winnick. Therapeutic jurisprudence asks “whether the law’s antitherapeutic consequences can be reduced, and its therapeutic consequences enhanced, without subordinating due process and other justice values” (Wexler and Winnick 1996:xvii); see also (Hora et al. 1999). The concept of therapeutic jurisprudence quickly attracted a following among judges in other common law countries, easing the diffusion of problem-solving courts to those jurisdictions.

Third, the problem-solving court movement had important advocates in high places. With the vocal support came access to government funding and sponsorship. The first problem-solving court, the 1989 Dade County Drug Court, was a joint project by then Dade County prosecutor Janet Reno and Judge Herbert Klein. When Reno became attorney general, drug courts became incorporated into Department of Justice policy. Community courts followed as an early addition to the Department of Justice’s programs supporting drug courts, with funding made available to support visits to what were designated as “demonstration projects.” Thereafter, all federal budgets have made significant funding available for drug courts and subsequently other types of problem-solving courts as they arose. Additionally, problem-solving courts were not entering a crowded field with powerful interests likely to obstruct a newcomer promising to contend with problems like substance abuse. There was a general recognition that previous approaches to the problem had failed.

Finally, problem-solving courts were nurtured by a very active professional association, the National Association of Drug Court Professionals (NADCP), which was founded in 1994. NADCP’s annual conferences bring together judges, social workers, and probation officers but also representatives from federal and state government agencies, judicial organizations, US senators and congressmen, rock stars, and movie stars. NADCP also has a research arm, the National Drug Court Institute. The NADCP has taken the lead in developing ten key components for drug courts, a formulation other problem-solving courts have modified. In recent years, the NADCP has also taken a leadership role in determining what configurations make for effective drug courts and developing standards a drug court must meet. As it matured, NADCP has proved willing to abandon some of its original assumptions and policy prescriptions through the application of evidence-based practices. The NADCP has increasingly broadened its focus to include other types of problem-solving courts and judges, court staff, and public officials from other countries.

Types Of Problem-Solving Courts

The seven most common types of problem-solving courts are distinctive applications of problem-solving legal theory and practice. Listed by the order in which they emerged, these are adult drug treatment courts, juvenile drug courts, community courts, domestic violence courts, mental health courts, reentry courts, and veterans’ courts. A guide to the key elements and the main dimensions of the most common types of problem-solving courts, along with a description of how they vary, is available (Casey and Rottman 2005). It should be noted that in Australia and several other countries, indigenous sentencing courts were established to accommodate traditional non-adversarial models of justice, resulting in courts that have clear problem-solving court features (King et al. 2009:178–183).

Drug Courts

In response to an increase in case filings in the 1980s and 1990s, drug courts began as diversion and treatment programs designed to get at the “root cause” of drug abuse and decrease recidivism. Today, drug courts integrate alcohol and drug treatment services as offenders are processed through the justice system. Drug courts emphasize a non-adversarial approach, where prosecution and defense counsel collaborate on treatment options while protecting participants’ due process rights. Offenders are subject to frequent alcohol and drug testing and have access to rehabilitation services and other related treatment. Frequently, drug courts emphasize ongoing judicial interaction, where offenders meet regularly with a judge for updates on progress. Interaction with the community is also an important aspect of drug courts, as they frequently establish partnerships with agencies or community-based organizations in order to increase effectiveness. Over 2,600 drug courts are in operation in the United States today; most (58 %) follow a model in which a defendant must first plead guilty before being admitted to the program (Huddleston and Marlowe 2011:1). One 2005 estimate posited that 53,000 defendants/ offenders were enrolled in drug courts. To put that presence in perspective, estimates show that drug courts are serving about one-half of offenders meeting current criteria for enrollment but serving only about 3.8 % of all offenders who use or are addicted to illegal substances (Bhati et al. 2008:34). Drug courts have themselves become specialized, notably through the establishment of juvenile and family drug courts.

Community Courts

Community courts are, in part, a reaction to the centralization and consolidation of trial courts, which was perceived as creating a gap between courts and communities. They were also a response to the prominence of the “broken windows” approach to responding to low-level crime in urban areas. New York City’s Midtown Community Court opened its doors 1993. As of 2009, there were 38 community courts in cities across the United States. There are nearly as many community courts outside of the United States, located in Australia, England, Scotland, and South Africa (Turgeon 2011). England and South Africa in particular have embraced the concept. In Australia, only one community court (named a Neighborhood Justice Center) has been established. Community courts focus on replacing jail and fines with community service and alternative sanctions. Offenders in community court generally receive more attention than do those in the general court system. An increase in court time and resources devoted to minor misdemeanors, coupled with extensive gathering of information about defendants and strict monitoring of compliance, is designed to reduce recidivism. Offenders in community courts have access to a comprehensive package of social services and treatments through a mix of government and nonprofit agencies. Ultimately, community courts are committed to a dual approach: changing the lives of individuals and improving the quality of life in communities. As the subject of four comprehensive evaluations, community courts are among the most studied type of problem-solving court.

Mental Health Courts

Mental health courts began as a response to both high recidivism and high rates of homelessness, unemployment, alcohol and drug use, and physical and sexual abuse among persons with a mental illness. The first mental health court was founded in 1997 in Broward County, Florida. Like the over 288 other mental health courts in the United States, it is centered on diverting defendants with a mental illness into treatment, instead of simply incarcerating them (Huddleston and Marlowe 2011:40). Mental health courts emphasize voluntary participation, early identification and intervention, and a therapeutic environment to reduce the trauma that is often experienced by persons with a mental illness in the criminal justice system. Part of this approach includes implementing practices that reduce the stigma that often accompanies mental illness. Like drug courts, mental health courts use a dedicated team approach that involves the judge, counsel, and court and treatment professionals in a less-formal setting. A treatment plan will be developed that is centered on the individual’s specific needs, with regular status hearings and assessments. Mental health courts have not as proved popular in other countries compared to other types of problem-solving courts. In Australia, for example, the primary objective of government policy is to avoid involving mentally ill offenders with the criminal justice system (King et al. 2009:150).

Domestic Violence Courts

Created in order to promote victim safety and make offenders more accountable, domestic violence courts typically emphasize a collaborative approach through cooperation with community-based organizations. Domestic violence courts typically have a dedicated judge and staff who receive ongoing training in domestic violence dynamics. Victims in domestic violence courts typically receive specialized intake services and receive early access to advocacy, while efforts are made to ensure that defendants understand court conditions. Domestic violence courts in the United States also closely monitor compliance pre and post-disposition, a practice not followed in other countries such as Australia (King et al. 2009: 156). The first domestic violence court was established in Dade County (Miami), Florida, in 1992. Public funding for domestic violence courts became available in 2000, and there are now more than 200 such courts nationally (Huddleston and Marlowe 2011:40). Many observers, however, doubt the applicability of the label “problem-solving” to these specialized dockets because there is no consensus on what, if any, treatment can predictably intervene successfully in the cycle of abuse. Domestic violence courts, instead, focus on providing protection and services to the victims of family violence rather than the treatment of the offender.

Reentry Courts

In 2000, the US Department of Justice, Office of Justice Programs, introduced a Reentry Court Initiative (RCI) to address the rise in incarceration during the previous decades. Specifically, the RCI adapted the drug court model to create community-based programs to oversee the transition from prison to parole supervision and to “establish a seamless system of offender accountability and support services throughout the reentry process” (Lindquist et al. 2003). Nine pilot programs were established. Their common elements were assessment and planning, active oversight, accountability to community, management of support services, graduated and parsimonious sanctions, and incentives for success. A reentry court’s jurisdiction over offenders can begin as early as the sentencing process, and in some cases offenders remain in a reentry program until postrelease supervision is terminated. The first reentry courts became active in 2000. In 2011, 26 reentry courts and 29 reentry drug courts – reentry courts that are combined with drug courts – were in operation within the United States (Huddleston and Marlowe 2011). Although a few program evaluations have been conducted, definitive evidence that reentry courts reduce recidivism or are cost-effective is not available.

Veterans’ Courts

A more recent addition, veterans’ courts are a response to the frequency of veterans who return from service with mental illness and/or substance addictions. The first veterans’ treatment court began in Buffalo, New York, in 2008. This court has been followed by more than 80 of its kind (Shevroya 2011; Center for Court Innovation 2011). Veterans’ courts are an amalgam of practices from drug courts and mental health courts. Similar to the process in mental health courts, offenders who are veterans are identified early in judicial proceedings, and participation in a veterans’ court is voluntary. Veterans’ courts integrate alcohol, drug treatment, and mental health services with justice system case processing. A comprehensive treatment plan is decided on through a non-adversarial approach in which the prosecution and defense work together to promote public safety while preserving participants’ due process rights. Abstinence is monitored by frequent alcohol and drug testing, and judges continue to interact with offenders throughout the program. Veterans’ courts frequently monitor and evaluate effectiveness, and staff often engage in interdisciplinary education in order to achieve maximum effectiveness. Like drug courts, veterans’ courts form partnerships with public agencies such as the Veterans Administration and community-based organizations that support veterans.

Research Evidence On The Effectiveness Of Problem-Solving Courts

A large body of research evidence, much of it using quasi-experimental designs, demonstrates the ability of problem-solving courts to generate better, more cost-effective outcomes than traditional courts. There are several notable features of this body of evidence. First, nearly all of the research has been carried out on adult drug courts, with only a small number of studies available for community courts and mental health courts. We can generalize from what we know about drug courts to the universe of problem-solving courts with only modest expectations of accuracy. Second, as one observer notes, “scholarly and quasi-scholarly writing on problem-solving courts is heavily tinged with advocacy, especially by their proponents” (Baum 2011:27). For drug courts, and to some extent for community courts, the extant research can address two questions. Do problem-solving courts work? And, if they work, why (how?) do they work?

Do They Work As Intended?

Initially, research on problem-solving courts was inconclusive. The rapid expansion in the number of problem-solving courts took place before definitive research was available to demonstrate their efficacy. Early research on problem-solving courts tended to be single court studies. By 2005, sufficient evidence had accumulated for proponents of problem-solving courts to report significant success in the form of reduced recidivism and compliance with court requirements. The state of the evidence as of 2005 was the following: “There have been more than 100 research studies about adult drug courts, and if you look at the best, most rigorous 25 of those, you probably come to the conclusion that drug courts reduce criminal offending by 15–20 %. And what that means is that if you have 30 % of your population you would expect to see rearrested in the next year or so, then instead they go through drug court, it’s more like 24 %” (Bathi et al. 2005).

A 2012 comprehensive evaluation of the Red Hook Community Justice Center compared recidivism rates at that court and its downtown trial court counterpart. The evaluation used quasiexperimental methods and matching using propensity scores to conduct a survival analysis following offenders over a 3-year period (Lee et al. 2013). Recidivism rates at Red Hook were 10 % less than those found at the downtown court.

Attention is also placed on the costs and benefits that accrue from problem-solving courts relative to traditional misdemeanor courts. The basic finding here is that problem-solving courts are more costly to operate, but from the point of view of the taxpayer, they are cost-effective compared to the processing of such cases in regular courts once reduced recidivism and savings in the health-care system are taken into account. One estimate (Bathi et al. 2008:xv) identifies an annual cost of $515 million to operate drug courts, while the reduction in recidivism results in more than $1 billion in savings.

How And Why Do They Work?

The initial compelling evidence of positive impacts did not lead to a clear understanding of which drug court features delivered the best results. The studies were also unable to answer the question of why drug treatment courts generate better outcomes. Some possible factors have not been significant in studies of drug courts and community courts. The unexpected finding from research to date is that neither the treatment provided nor any deterrent effect could be identified as a cause for the reduction in recidivism rates.

The explanation appears instead to lie in the nature of the interaction between the judge and the offender that occurs in the context of a problem-solving court. The difference in interaction styles may be attributable both to the type of judges who seek assignment to a problem-solving court or to the way in which problem-solving courts structure that interaction. The latter explanation is more plausible as an individual-level explanation seems unlikely to produce the pattern of findings in the available research.

A study of the Baltimore Drug Treatment court provided some of the initial evidence pointing to an “interaction” explanation. The researchers concluded that “the DTC [Drug Treatment Court] program, especially the judicial hearings, contributes to an offender’s perception of fairness and due process, thereby increasing his or her willingness to fulfill his or her part of the negotiated DTC agreement” (Gottfredson et al. 2007:28). This was consistent with the perspective of procedural fairness. Procedural fairness is a theoretical approach to explaining satisfaction and compliance with decision-makers, buttressed by a very large supportive body of research. It is most closely associated with social psychologist Tom Tyler. Procedural fairness is present when people perceive that they are experiencing a decision-maker who treats them with respect, neutrality, allows participation, and is trustworthy (Tyler 2004:443–447). Some decision-makers and decision-making forums are perceived as following a more fair process than others.

Judge-to-offender interaction was highlighted as the advantage inherent in problem-solving courts by National Institute of Justice’s MultiSite Adult Drug Court Evaluation (Rossman et al. 2011). This study found that drug court participants across 23 sites were more likely than a matched comparison sample to perceive their treatment by the judge as fair; the study then found that these more positive perceptions of the judge comprised an influential factor in explaining why the drug court sample was less likely than the comparison sample either to commit further crimes or to use drugs during the follow-up period (Rossman et al. 2011).

Findings from evaluations of community courts also point to a procedural fairness explanation. A study of defendants at the Red Hook (Brooklyn, New York City) Community Justice Center found that defendant perceptions of procedural fairness were stronger at RHCJC than among a comparison group of defendants processed in a centralized court (Frazer 2007). The study found that Red Hook defendants were more likely to perceive the court process as fair, but the proportion of defendants perceiving the centralized court as fair was also high. However, at Red Hook, positive perceptions of the judge appeared to influence overall perceptions of the court process. In another community court study, it was noted that “in the community court, the judge spoke directly to the defendant in 45 % of the observed appearances, while in the traditional court this occurred in only 19 % of appearances” (Frazer 2007:22).

A more recent Red Hook Community Justice Center evaluation reinforces the focus on procedural fairness. The reduction in misdemeanor defendants’ likelihood of recidivism was not attributable to deterrence effects, treatment and social services, or to connections forged with the local community. Based on interviews conducted as part of the ethnographic component and other research, procedural fairness appears to be the mechanism that makes a difference (Lee et al. 2013).

The core finding is that the advantage problem-solving court processing has over traditional low-level criminal court processing is due to the judge – or, more specifically, to the nature of the interaction between the judge and offender in the courtroom.

Controversies

Critics and proponents of problem-solving courts have displayed comparable levels of fervor in making their arguments. The most influential and persistent critic from the academic work has been James Nolan (Nolan 2001, 2009, 2010, 2012). Within the judicial world, Denver trial judge Morris Hoffman has also engaged in sustained criticism (Hoffman 2002). Among national organizations, the National Association of Criminal Defense Lawyers has consistently criticized the ethical status of problem-solving courts (National Association of Criminal Defense Lawyers 2009). Proponents of problem-solving courts are too numerous for it to be sensible to single out a few individuals. It is easier to focus on organizations, noting the large volume of material produced by the Center for Court Innovation, National Drug Court Institute, and NPC Research. Both sides are well represented in a special issue of the Fordham Urban Law Journal that appeared in 2002.

Do Problem-Solving Courts Extend The Reach Of Government?

A common controversy surrounding problem-solving courts is whether they are a social control mechanism that, whether by design or not, increases the reach of the government into peoples’ lives. There are several dimensions to this concern. One criticism is that drug courts wrongfully politicize health and addiction, becoming wrongfully engaged in the process of a “management of pleasures” (Mackenzie 2008). Another dimension is that of “widening the net so people are prosecuted when they otherwise wouldn’t be” (Miller 2004; Hoffman 2002). Others argue that, while there is no evidence that net widening is taking place, net widening would be a good thing because it would result in people getting the treatment that they need (Berman and Gulick 2003).

Yet another dimension is the tendency of problem-solving courts to keep offenders under court supervision for longer periods of time than if they had been processed through a traditional misdemeanor court. Most misdemeanor defendants receive short jail sentences, fines, or “time served.” In most circumstances, they leave the court with little or no supervision. Offenders processed in problem-solving courts spend longer periods of time under court supervision and are exposed to enhanced risks of failure because the court’s expectations are more demanding.

Do Problem-Solving Courts Weaken The Adversarial Process?

To some United States critics, problem-solving courts relax the adversarial process to the extent that they are no longer courts. To one critic, “They are not concerned with due process or adjudicating guilt, either by plea or trial. They are correctional agencies and as such might be an excellent new model of correctional agency. But as post adjudicative bodies, they must be called what they really are, and it is not courts” (McCoy 2006).

The majority of drug courts today are indeed post-plea. But whether pre-or post-plea, problem-solving courts relax certain aspects of the traditional role of a judge in deciding a case. There are also some shifts in the balance of power in the courtroom. In a problem-solving court, the judge is the best-informed person in the courtroom about an offender and supplants the power traditionally held by the prosecutor in a plea bargaining context.

Critics also find fault with various aspects of problem-solving courts that raise ethical issues for judges and attorneys. First, being processed through a problem-solving court exposes a defendant to a greater risk of failure because of the strict criteria for success. Failure may be met with a punishment more severe than if they had opted for a traditional misdemeanor court for processing. Second, problem-solving courts accumulate far more information on defendants that would be the case in a traditional court, and that information is shared among a wide group of stakeholders. Third, entering a problem-solving court generally requires that the defendant waive the right to discovery. Fourth, the decision to enter a drug court must be made within a shorter time frame than is usually available before a trial in order to get the offender immediately into treatment, potentially preventing counsel from fully investigating the case. Fifth, the use of teams in the decision-making process can often lead to ex parte communication about a case in the absence of the defendant or their defense counsel. Sixth, defending a client in a problem-solving court imposes additional workload burdens on public defenders. In many problem-solving courts, there are an increased number of post-plea hearings and “team” meetings in which consequential decisions about problem-solving court participants are made. In order to properly represent their client, defense counsel must not just be present, but be prepared and involved during these meetings (National Association of Criminal Defense Lawyers 2009:31–32).

A major criticism of problem-solving courts (really, drug courts) is that a defendant is denied zealous advocacy. It has been claimed that problem-solving courts unduly limit the time that defense counsel has to investigate or prepare a defense because in the United States but not elsewhere, they are moving in a post-plea direction (Finigan et al. 2007). The ongoing nature of cases may create an extra burden for public defenders, thus not allowing them to adequately represent their clients. The participant in a problem-solving court is under pressure to be “team player” and advance team goals, yet the participant’s short-term interest and drug court team’s goals may diverge (Meekins 2007:108). There is also concern that firmly asserting a client’s rights in a team environment could lead to economic repercussions for the lawyer who may become less likely to be appointed to future cases in that court (Meekins 2007:110).

In order to be balanced, claims that problem-solving courts are not adversarial should be considered in reference to the often feeble nature of the adversarial process as practiced in traditional misdemeanor courts based on plea bargaining (Hessick and Saujani 2002). One important difference may be that in traditional courts the pressure to move forward with the case comes from the prosecutor in the form of decisions to pursue charges and other trial/violation considerations, whereas in a problem-solving court, the most powerful player in the courtroom is invariably the judge. In a problem-solving court, judges make use of their authority to promote compliance with court orders while the prosecutor helps to address participants’ problems. Also, it can be argued that in the postadjudication phase of monitoring, the definition of appropriate advocacy may differ from that during adjudication. Nonetheless, concerns persist concerning the degree to which the very nature of problem-solving courts raises genuine ethical issues for judges, defenders, and prosecutors (Leben et al. 2013). Concerns over the possible deviations from a strict adversarial model have not proved as problematic outside of the United States.

Who Belongs In A Problem-Solving Court?

Another controversy is the issue of who belongs in a problem-solving court. Early drug courts and government policy reserved space for offenders with relatively minor involvement in drug use – users but not addicts. By 2010, the consensus among researchers and policy-makers is that drug courts should be reserved for the more serious offenders, as indexed by their prior criminal history, involvement in substance abuse, and mental health. Policy-makers in other countries such as Australia focused from the start on more serious offences and addicts, perhaps because of the existing pre-and post-plea dispositions available for minor offenders.

The new consensus as led by the National Drug Court Institute is that drug courts should be focused on offenders who “are dependent on alcohol or other drugs and are also at risk for failure in standard correctional rehabilitation programs” (Marlowe 2009). Under this approach, admitting low-level offenders to drug courts is to be discouraged. Individuals who are not substance dependent, but who are substance users and have a low risk for failure in standard settings, are unsuitable for drug courts. Participation in drug courts could expose this population to substance abusers and antisocial values while pulling them away from school or work (Marlowe 2009).

What Should Be A Problem-Solving Court’s Goal?

There is a degree of American exceptionalism in the world of problem-solving courts. Nolan argues that while in the United States problem-solving courts seek “total abstinence” or “demand reduction,” other common law countries have a philosophy of “harm reduction” or “harm minimization” (Nolan 2010). This explains, in part, the general aversion of drug courts in the United States to making use of medication-assisted treatment. If the goal is to eliminate the harm, there is likely to be opposition to promoting reliance on any type of medication, even if the purpose is to ease or speed the withdrawal process for substance users upon entry into the program, inhibit cravings to use illicit substances or the effects of such use.

Conclusion: The Future Of Problem-Solving Courts

Overwhelmingly, what we know about problem-solving courts is based on studies of adult drug courts in the United States. This limits our ability to draw conclusions about problem-solving courts in general, or even about the future for juvenile drug courts. Much depends on whether evaluations of mental health courts, veterans’ courts, and community courts are as positive in their findings as the research on drug courts. Even now, however, there are a few indicators of what is to come.

For one thing, it is likely that in the near future, problem-solving courts will start to look different than the ones in the current landscape. The emphasis on evidence-based practices is steering drug courts into new directions. Other problem-solving courts are likely to follow suit. Longstanding assumptions on the types of offenders who should be processed through a problem-solving court are being undone by research evidence and debate over whether harm abstinence or minimization should be the goal of the court. The National Association of Drug Court Professionals is developing standards all drug courts will be expected to follow. There has even been talk of accreditation. The willingness to change the nature of problem-solving courts is nearly as impressive as the sheer doubling and tripling of their numbers experienced in recent decades.

There is also uncertainty on whether government policy in the United States will continue to foster more problem-solving courts and apply them to more “problems.” In one scenario, problem-solving courts will become the norm as the mainstream criminal courts are encouraged to incorporate problem-solving theory and practices. Problem-solving courts might then simply dissolve into the larger court system. In another scenario, the large-scale underwriting of the problem-solving concept by state and federal governments might slow to a point where problem-solving courts can no longer be sustained.

Outside of the United States, the prospects also are mixed. Only in the United States have problem-solving courts significantly altered the landscape of how lower-level criminal cases are processed. Such courts are not proliferating even in the common law countries that adopted them. To one observer, a critic of problem-solving courts but also the author of the most significant comparative work on them, this is to be expected: “To import problem-solving courts is to import elements of the particular culture out of which the programs first emerged–and from which they are not easily extricated” (Nolan 2012:164). This might be an unduly negative reading of the potential for the spread of problem-solving courts internationally. After all, the problem-solving courts in Australia and in other countries have adapted the basic model to fit their distinctive legal and other circumstances. Today’s problem-solving courts, on balance, seem likely to remain influential features in criminal justice policy and practice in the United States and elsewhere.

Bibliography:

Baum L (2011) Specializing the courts. University of Chicago Press, Chicago
Belenko S (2001) Research on drug courts: a critical review – 2001 update. National center on addiction and substance abuse. Columbia University, New York
Berman G, Gulick A (2003) Just the (unwieldy, hard to gather, but nonetheless essential) facts, ma’am: what we know and don’t know about problem-solving courts. Fordham Urban Law Rev 30(3):1027–1054
Bhati AS, Roman JK, Chalfin A (2008) To treat or not to treat: evidence on the prospects of expanding treatment to drug-involved offenders. Urban Institute, Washington, DC
Boldt RC (1998) Rehabilitative punishment and the drug court movement. Washington Univ Law Quart 76:1205–1306
Burns SL (2010) The future of problem-solving courts: inside the courts and beyond. Univ Maryland Law J Race Relig Gender Class 10:73–87
Casey P, Rottman D (2005) Problem-solving courts: models and trends. Just Syst J 26(1):35–56
Center for Court Innovation (2011) What is a community court? Author, Washington, DC
Dorf MC, Sabel CF (2000) Drug treatment courts and emergent experimentalist government. Vanderbilt Law Rev 53(3):831–883
Feeley MM (1992) The process is the punishment: handling cases in a lower criminal court. Russell Sage, New York
Finigan MW, Carey SM, Cox A (2007) Impact of a mature drug court over 10 years of operation: recidivism and costs. NPC Research, Portland
Frazer MS (2007) Defendant perceptions of fairness at the Red Hook Community Justice Center. Center for Court Innovation, New York
Goldkamp JS, White MD, Robinson JB (2001) Do drug courts work? Getting inside the drug court black box. J Drug Iss 31:27–72
Gottfredson DC, Kearley BW, Rocha CM (2007) How drug treatment courts work: an analysis of mediators. J Res Crime Delinquency 44:33–35
Hessick AF, Saujani R (2002) Plea bargaining and convicting the innocent: the role of the prosecutor, the defense counsel and the judge. BYU J Public Law 16:189
Hoffman MB (2002) Therapeutic jurisprudence, neo-rehabilitations, and judicial collectivism: the least dangerous branch becomes most dangerous. Fordham Urban Law J 29(5):2063–2098
Hora PF, Stalcup T (2008) Drug treatment courts in the twenty-first century: the evolution of the revolution in problem-solving courts. Georgia Law Rev 42:717–811
Hora P, Schma WG, Rosenthal JTA (1999) Therapeutic jurisprudence and the drug treatment court movement: revolutionizing the criminal justice system’s response to drug abuse and crime in America. Notre Dame Law Rev 74(2):439–538
Huddleston W, Marlowe DB (2011) Painting the current picture. National Drug Court Institute, Washington, DC
Jensen EL, Mosher C (2006) Adult drug courts: emergence, growth, outcome evaluations, and the need for a continuum of care. Idaho Law Rev 42:443
King M, Freiberg A, Batagol B, Hyams R (2009) Nonadversarial justice. The Federation Press, Sydney
Klein R (2004) Due process denied: judicial coercion in the plea bargaining process. Hofstra Law Rev 32:1349–1423
Leben S, Rottman D, Casey P (2013) Legal and ethical considerations. In: Koetzle D, Guastaferro W (eds) Drug courts and the criminal justice system. Lynne Rienner, Boulder (in press)
Lee C, Cheesman F, Rottman D, Swaner R, Lambson S, Rempel M, Curtis R (2013) A comprehensive evaluation of the red hook community justice center. National Center for State Courts, Williamsburg
Lindquist C, Hardison J, Lattimore P (2003) Reentry courts process evaluation, final report. National Institute of Justice, Washington, DC
Mackenzie R (2008) Feeling good: the ethopolitics of pleasure, psychoactive substance Use and public health and criminal justice system governance: therapeutic jurisprudence and the drug courts in the United States of America. Social Legal Stud 17(4):513–533
Marlowe DB (2009) Evidence-based sentencing for drug offenders: an analysis of prognostic risks and criminogenic needs. Chapman J Crim Just 1:167–201
McCoy C (2006) Review of “good courts: the case for problem-solving justice”, by Greg Berman and John Feinblatt. Law Polit Book Rev 16(12):964–969
Meekins T (2007) Risky business: criminal specialty courts and the ethical obligations of the zealous criminal defender. Berkeley J Crim Law 12:75–126
Miller EJ (2004) Embracing addiction: drug courts and the false promise of judicial interventionism. Ohio State Law J 65(6):1479–1576
Mirchandani R (2008) Beyond therapy: problem-solving courts and the deliberative democratic state. Law Soc Inquiry 33(4):853–893
National Association of Criminal Defense Lawyers (2009) America’s Problem-solving courts: the criminal costs of treatment and the case for reform. Author, Washington, DC
Nolan JL Jr (2001) Reinventing justice: the American drug court movement. Princeton University Press, Princeton
Nolan JL Jr (2009) Legal accents, legal borrowing: the international problem-solving court movement. Princeton University Press, Princeton
Nolan JL Jr (2010) Harm reduction and the American difference: drug treatment and problem-solving courts in comparative perspective. J Health Care Law Policy 13:31–47
Nolan JL Jr (2012) Problem-solving courts: an international comparison. In: Petersilia J, Reitz KR (eds) The oxford handbook of sentencing and corrections. Oxford University Press, New York, p 150
Reisig M (2002) The difficult role of the defense lawyer in a post-adjudication drug treatment court: accommodating therapeutic jurisprudence and due process. Crim Law Bull 38:216–224
Rossman SB, Roman JK, Zweig JM, Rempel M, Lindquist CH (2011) The multi-site adult drug court evaluation: executive summary. Urban Institute, Washington, DC Saum CA, Scarpitti FR, Robbins CA (2001) Violent offenders in drug court. J Drug Iss 31(1):107–128
Shevroya K (2011) Why veterans should get their own courts. The Atlantic monthly. Atlantic Monthly Group, Boston
Turgeon C (2011) Community courts around the world. Washington, DC: Center for Court Innovation. Retrieved 13 Sept 2012 from http://www. courtinnovation.org/research/community-courts-aroundworld?mode¼4&url¼research%2F4%2Farticle
Tyler T (2004) Procedural justice. In: Sarat A (ed) The Blackwell companion to law and society. Blackwell, Oxford
Urban Institute (2005) Are drug courts a solution to the drug problem? Retrieved 13 Sept 2012 from http://www.urban.org/publications/900803.html
Weinstein SP (2000) Ethical considerations for prosecutors in drug courts. Crim Justice 15:26–29
Wexler DB, Winnick BJ (1996) Law in a therapeutic Key. Carolina Academic, Durham
Willrich M (2003) City of courts: specializing justice in progressive era Chicago. Cambridge University Press, Cambridge
Wolf RV (2008/2009) Race, bias, and problem-solving courts. Natl Black Law J 21(1):27–52
Wright M (2006) Reversing the prison landscape: the role of drug courts in reducing minority incarceration. Rutgers Race Law Rev 8(1):79–106