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Wednesday, February 06, 2013

Problem-Solving Courts: A From the Margins to the Mainstream of Low-Level Criminal Law

Today, I’m going to get a little more specific about one type of low-level court: problem-solving courts, which include drug courts, mental health courts, family courts, domestic violence courts, DWI courts, truancy courts, and so on.  If you’re not familiar with these courts, then the proliferation of types of courts can seem overwhelming and perhaps a little bizarre.  I like to joke—but I’m only half jesting—that we can expect smoking courts and slimming courts soon!

The original, and still central, problem solving court is the drug court, which emerged against the background of the massive increase in criminal caseloads experienced by the American criminal justice system starting in the 1980s.  The court model developed by Judge Klein of the Florida Eleventh Judicial Circuit in 1989 was slow track, court-based and treatment oriented.  Drug courts concentrate on mandatory drug treatment backed up by a vigorous program of in-court judicial supervision of the offender.  Rather than rely upon the periodic reports of probation officers, drug courts generally require that offenders engage in regular urine testing (initially multiple times each week), and each week attend drug counseling sessions, interviews with probation services, and in-person appearances status hearings before the judge.   Other types of problem solving courts may vary the frequency of reporting and testing, but the court will usually require offenders to appear at least once a month.  Failure to comply with the rehabilitation program results in a series of graduated sanctions that eventually result in short periods of jail time, or removal from the program.  

I think problem-solving courts are badly misunderstood in the American criminal justice context, and I think that the lessons we can learn from that misunderstanding extend more generally through the lower-level court system.  

The dominant mode of understanding problem-solving courts is as a form of case processing, attempting to be more effective in driving drug-addicted (or mentally challenged, and so on depending upon the problem producing the criminal activity) through the adjudicatory part of the criminal justice system.  On this view, trial and more importantly plea bargaining remain the central focus of the system. 

However, problem-solving courts operate at the margins of adjudication: at the pretrial release stage—what Justice Ginsburg in Alabama v. Shelton oxymoronically called pre-trial probation; and at the post-plea but pre-judgment stage, which takes various forms and has various names around the country, but what in Missouri is referred to as suspended imposition of sentence (SIS).  I think the Missouri name makes somewhat clear that this is not pre-sentencing: the offender is sentenced at the SIS stage to probation.  These courts are, then, conditions-of-release-courts: they set and monitor the conditions of pretrial and post-plea release outside the critical stages of the trial. 

The courts’ structurally marginal location reveals an important feature of their doctrinal position.  These courts are fundamentally not concerned with the adjudicatory stages of the criminal justice process.   Instead, they circumvent adjudication and operate before or after the traditional focal point of the trial process, through the institutions of diversion, pretrial release and probation.  In fact, they are properly understood in terms of hypermarginality: they do not operate at the stage of deciding to release or deciding to revoke.  Instead, they operate at the “in-between” stage of monitoring conditions.   These decisions are not goverened by any required form of process.  And this stage is a doctrinal wasteland: there are little or no rules governing the operation of the court here.

As an quick anecdote: on walking into more than one problem-solving court, and announcing that I teach criminal procedure, I have been greeting by counsel with the cheery observation that “You won’t see any of that here.”  And indeed, problem-solving courts make a virtue of working outside the rule of law, and instead emphasizing the personal relationships between judge and offender, and judge and social worker, counsel, and probation officer.  This is the treatment-team or holistic model of dealing with offenders, and it is the means by which the court focuses on and seeks to effectuate rehabilitation.  The court is thus not administrative in the sense described by Gerard Lynch in his famous article on the role of the prosecutor in dominating the criminal justice system; it is administrative but not bureaucratic, in the manner of the Connecticut criminal trial court described by Malcolm Feeley in The Process is the Punishment.

I’ll come back to holism in a later post: I think it is a central feature of the new lawyering of interdisciplinarity.  But for the moment, I’ll simply note that for some critics, the posture as non-adjudicatory and outside the rule of law means that problem-solving courts are not truly courts at all.   On the contrary: this is a quintessential feature of many of the features of misdemeanor courts.

I won’t belabor the point in this post: I’ll simply suggest that the work of two of my favorite authors in thinking about low-level courts, Sasha Natapoff at Loyola Los Angeles (where I spent a terrific semester visiting in the Fall) and Erin Murphy at NYU provide some terrific discussions of the manner in which low-level processing at the margins of the criminal justice system has a massive impact on offenders.  Their work focuses on the pretrial and plea-bargaining stages of the processes: but I think that to the extent that misdemeanor courts focus on process crimes and police offender obstinacy to the system, problem-solving courts are not the tip of the iceberg, they are the iceberg, because their marginality and even hypermarginality is a feature of the low-level criminal justice system.

But not only criminal justice: as @Lawyer noted in a comment to one of my earlier posts, there is an administrative side to this story too.  That's not my area of competence, but it should suggest a fertile an unexplored area for folks to explore: after all, it’s where a bunch of our students are going to end up practicing. 

Posted by Eric Miller on February 6, 2013 at 11:19 AM | Permalink


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This all is an extremely useful window on these courts, and I think you're totally right that case processing is a suboptimal lens through which to view and understand them. I think you're also totally right to note the substantial similarities between problem-solving courts and "standard-issue" low-level courts. The latter point, I think, highlights a special problem with problem-solving courts. One way of thinking about problem-solving courts is that they emerge when the social services system, through budget cuts or other limitations, fails to address a significant social problem with a marginalized population. For a variety of reasons, the criminal justice system is the location of last resort to deal with these sorts of serious social problems. To take the area I know best, retrenchment in community mental health services has led to the phenomenon of "criminalization" of mental illness, which means lots of people who would previously have been (or in an optimal world would be) served as clients of the mental health system end up getting incarcerated in the criminal justice system. In situations like this, judges get increasingly uncomfortable that their dockets are filled with people who really shouldn't have to go to jail or prison to get the social services they need, so the judges set up a parallel social service system run as a court. That it's a problem-solving court means it's different in *some* ways from other courts, but the residual court-ness of the process (which your argument highlights) severely limits its ability to serve as an adequate substitute for an appropriate social services system.

Posted by: Sam Bagenstos | Feb 6, 2013 4:32:05 PM

Sam, I think that's exactly right. I'm going to do a post tomorrow on the politics of problem-solving courts which I hope you'll find jibes with some of the concerns you raise. And what goes for mental health court also goes for homelessness court, and veterans court, and so on. Two further thoughts: from a risk-management perspective (whatever that might mean), mandatory surveillance of socially awkward and difficult-to-treat populations makes private citizens feel better. So the "courtiness" of problem-solving addresses the fear that the carrot of social services won't work for this sort of recalcitrant population. In other words, we now want, not only social services (which we can't afford) but social services with a guarantee of protection built in. Criminalizing conduct gives us the safety net. Second, mental health courts may be a way of taking up the slack in de-institutionalization/re-institutionalization. I'm generally on board with Bernard Harcourt's claim that the size of the institutionalized population has remained constant from the 1950s to now, it's just that the institution has changed. So the mental health court, at least, operates at the margins of a dual institutionalization system in which some form of supervision is attractive, but full bore institutionalization is not.

Posted by: Eric J. Miller | Feb 6, 2013 4:51:13 PM

Bonjour. I am speaking from the European - French - viewpoint and it might be totally irrelevant. As Eric knows since he briefly saw one hearing I dragged him to in one of our worst Parisian tribunals last year in France and in other European countries we do have mainstream courts which have a lot in common with PSC. They also have important differences (eg hearings are not public), but the most important point is that they are main stream. I am not sure Eric had a chance to fully realise the potential of these courts since that day he only saw one hearing and it did not go too well. My experience is however that most of these judges are problem-solving and therapeutic and yes being mainstream means that all offenders get a chance to access these courts. The thing with mainstreaming these courts is that you end up having the typical issues you get with... mainstream courts: huge caseloads and the need to move the docket; not enough time with people and hence a tendency to deal with a lot of things outside of court (in your office, based on paper; you do come across the odd judge who's not therapeutic and should not be there in the first place;politicians and administrations (such as the prison services) tend to view them for a number of reasons as the enemy that needs to be killed and so on and so forth. My point is there are some advantages to being an outside the system court.

Posted by: Martine Herzog-Evans | Feb 7, 2013 12:07:35 AM

My best estimate would be fewer than 10% of drug courts are pre-plea these days. Many have a straight probation model rather than a post-conviction, pre-imposition of sentence model. "And this stage is a doctrinal wasteland: there are little or no rules governing the operation of the court here" is simply not accurate. There are numerous cases setting out the due process requirements for imposition of bail conditions such as alcohol and other drug testing, imposition of sanctions or termination from the program. There are rules regarding the nexus between probation conditions and the criminal conduct. I totally disagree with your statemnt that "problem-solving courts are not truly courts at all." Your assumption that most are misdemeanor courts is also incorrect.

Posted by: Judge Peggy Hora (Ret.) | Feb 10, 2013 10:53:36 AM

Judge Hora: It's great to have comments from one of the central figures in developing drug courts. So I certainly take your critique seriously. I certainly agree with you that drug courts *are* *truly* courts. I've argued against those who take the opposite position. What I said was "some critics" criticized them as not truly courts. And I think there is a widespread critique that problem-solving courts are conditions-of-release monitoring courts, which (for those critics) made the problem-solving court not a court. I'm on your side on this one. Perhaps I could have better worded things to make that point more forcefully.

While I take your point that due process applies to the imposition of conditions of pre- or post-trial release, again, I was careful to suggest that much of the procedure in problem-solving court applies after the conditions are imposed and before those conditions are revoked. So while there is law governing the imposition of conditions of bail and parole—governed by the 5th Amendment not the 6th, and so outside the "trial" or adversarial protections of the Sixth Amendment—the law governing supervision and modification of conditions is doubly marginal. Stevens v. State 716 SE 2nd. 154, 161 (2011).

In Missouri, for example, some problem-solving courts have been run by commissioners: state court judges that have many of the features of federal magistrates. One of those features is that they cannot impose any order, judgment or decree without the say so of a circuit judge. So the claim that problem-solving courts necessarily wield the full power of the courts is not, in fact, the case in my jurisdiction: most of what happened in the problem-solving court, because not requiring superior judicial approval, occurs precisely in the margins and under the radar in the manner I have suggested. Precisely the process of setting and revoking conditions is what is out of the commissioner's power. And it's this process that brackets the real process of supervising and modifying the conditions that is much of the work of the problem-solving court.

In terms of pretrial problem-solving courts, ten percent is still a lot of courts. So the question is: do you think we should do away with the pretrial courts? Do you think they raise issues of special concern? I think what goes on in pretrial problem-solving courts is no worse that what goes on pretrial in mainstream courts. It may be much better. But the regulation of conditions of release operates under the same legal regime either way.

Finally, to the extent that I have emphasized misdemeanor courts, that is because I'm focused not only on problem-solving courts but also misdemeanor courts. I appreciate you emphasizing that the courts also deal with felonies: that there is a panoply of styles and levels of courts is, of course, one of the central mantras of the problem-solving movement, and one I take very seriously indeed.

Posted by: Eric J. Miller | Feb 10, 2013 3:15:11 PM

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