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Thursday, February 07, 2013

Problem-Solving Courts as Political Institutions: Challenging the Prosecutorial Domination Thesis

Problem-solving courts operate in the margins of the law, often under the radar.  But, in terms of penal, social welfare, and health policy, they are powerfully important local institutions that collectively make a huge national impact.  To see how, think about the problem of mass incarceration this way: the continuum of criminal justice, social welfare, and health care is a pie in which the slices are more or less equal.  Then, the War on Crime re-legislated the relation between the slices to dramatically increase the punishment slice and decrease the social welfare and health care slices.

 Courtroom by courtroom, in a more or less ad hoc manner, and usually without changes in the governing statutory scheme, problem-solving courts have been re-legislating the re-legislation, attempting to make the social welfare and health care slices of the pie larger and the punishment slice of the pie smaller.  And with 2,734 drug courts and 1,122 problem-solving courts in addition to that as of June 2012, there is a huge number of courts engaged in carving out spaces in which individuals whose criminal activities stem from drug use, mental disorders, and so on are diverted away from incarceration, mostly at the pre-trial and post-plea-but-pre-judgment stages of the criminal justice system, and into some form of treatment program with support from social welfare services. 

If you think about it this way, then problem-solving courts are among the most significant political and criminal justice innovations in the last thirty years

I think their influence goes beyond their numbers, and has had a major impact on pretrial release.  But we usually overlook these institutions.  Why?  This time round, I’m going to give a structural response, one that suggests we have overemphasized appellate and prosecutorial domination of the lower courts, rendering them invisible.

Famously, Harvard Law School professor William Stuntz advocated a model of the criminal justice system in which he split the groups legislating penal policy into the branches of a tripartite government embodied in the offices of legislator, prosecutor (and police), and appellate court.  His central insight was that judicial incentives to reform the law of criminal procedure through constitutional law externalized the costs of criminal trial onto prosecutors and legislators.  The legislators, unable to modify the newly-minted constitutional norms, responded by lowering the cost of conviction through changes in the substantive criminal law and the law of sentencing.  These doctrinal changes effectively delegated control of criminal policy to the prosecutor.  This process of legal transformation did not, however, restore the former equilibrium, but instead introduced the system of runaway penal severity we are stuck with today.

 One feature of Stuntz’s model of the circulation of political power within the criminal justice system is its focus on lawmaking, liberally understood as the ability to direct and control penal policy.  While Stuntz located that power quite broadly in the offices of legislator and prosecutor, he limited the class of relevant judicial lawmakers to appellate courts or judges.  His theory was that inferior-court judges, worried about reversal, would be easily controlled by superior court rulings.  So while the legislature, appellate courts, and prosecutors all wield political power (to set criminal law policy), lower courts do not.  Instead, are dominated from two directions: by the prosecutor circumventing the court through plea bargaining, and more directly by appellate courts.  That model has proved incredibly influential.  It’s the model of lower-court domination that problem-courts challenge.

Yesterday, I suggested problem-solving courts were hypermarginal because operating outside the adjudicative process, and perhaps outside the release and revocation processes.  Think of that as horizontal marginality.  My claim today is that they are also vertically marginal: they operate below the oversight of appellate courts, in part because discretionary decisions in hypermarginal locations are not—or only rarely—subject to appellate review.  

Furthermore, by engaging in a team orientation and refocusing the process of rehabilitation upon an interaction between defendant and judge, the problem-solving court process marginalizes the prosecutor and re-emphasizes the power of the judge.  For example in pretrial release courts, the judge often admits defendants over the objection of the prosecutor: something that a too-easy understanding of prosecutorial charging power suggests should be impossible.  Instead, the problem-solving court reveals the limitations of prosecutorial power in the margins of adjudication, and the absence of appellate oversight, both of which enable the court to aggressively re-legislate rehabilitation, social welfare, and health care back into dealing with criminal offenders—so long at it occurs in court within the criminal justice system.  

One way of thinking of the politics of problem-solving is as aggressive risk-management of offenders who deserve to avoid incarceration.  While I think that's right, the notion of risk turns out to be a complex phenomenon that is itself part of the politics of problem-solving.  I'll elaborate on that thought next week.  

Posted by Eric Miller on February 7, 2013 at 09:46 AM | Permalink


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There are numerous appellate cases regarding drug courts and their practices. The National Drug Court Institute does drug court training on a number of Constitutional and statutory issues. There are a line of 1st Amendment establishment cases regarding mandatory attendance at AA/NA, area and association restrictions,search and seizure including drug testing,due process, equal protection, double jeopardy, custodial credits, grounds for termination, and absconding. We also teach the confidnetiality requirements of 42 C.F.R., Part 2 for those in substance abuse treatment and HIPPA. To say there is no appellate review is inacurate.

Posted by: Judge Peggy Hora (Ret.) | Feb 10, 2013 11:04:45 AM

For a listing of drug court-related cases updated to 12/31/12, see: http://www.ndcrc.org/content/constitutional-and-other-legal-issues-drug-court

Posted by: Judge Peggy Hora (Ret.) | Feb 10, 2013 11:09:45 AM

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