Judicial Neutralities and Judicial Self-Images In Lower-Level Courts

I’ve been pushing the idea, over the past fortnight or so, that problem-solving courts provide an important insight into the workings of state trial courts and especially criminal trial courts.  My hypothesis is that there is much profit from regarding “specialized” courts as retaining some of the features of “mainstream” courts.  Rather than regarding specialized or problem-solving courts as some sort of niche feature of the legal system—as a small stream of courts or dockets separate from traditional courts—we should consider that they are part of the river of traditional case processing, albeit with some unique—perhaps “revolutionary”—twists.  Put differently, what happens if the “marginal” is “mainstream?”

One aspect of problem-solving courts that appears particularly resistant to this line of thought is the way in which judges interrelate with offenders.  The idea is that the court is less (though by no means un-) concerned with formalized criminal due process, and focuses more on rehabilitating offenders through a non-adversarial, “treatment team” model which requires the judge to interact directly and interpersonally with the offender in order to encourage her through the rehabilitation process.  For both those who celebrate and criticize the problem-solving court, this aspect of the court’s proceedings is often the major battleground.  Celebrators point out that this sort of interaction is individualizing, even egalitarian, and restores a sense of humanity and legitimacy to the criminal justice process.  Critics argue that this sort of interaction affords too much discretion to the judge, and transforms the judge from operating as a neutral official calling balls and strikes to actively engaging as a partisan in the rehabilitation process. 

I think there is merit on both sides.  What I want to highlight, however, is whether this model of interaction is transferable, and what might be the costs of engaging in the “mainstreaming” process.  It’s an issue with not only national, but international ramifications, as—highlighting Jane Donoghue’s work on the English Magistrates courts—I’ll hope to demonstrate.

Is judicial engagement transferable out of specialized courts and into the courtroom more generally?  Internationally, my sense is that it is generally, assumed that American judges, being more experimental and informal, are more receptive to the interpersonal and rehabilitative aspects of problem-solving judicial engagement than foreign judges, and especially those in the more “stuffy” courts of England and Wales (one jurisdiction) and Scotland (a separate jurisdiction). 

I tend to think that this picture is overly simplistic: anecdotally, many American judges currently working in problem-solving courts tell a conversion narrative of being initially unreceptive to the idea of problem-solving, but once assigned to problem-solving courts, many find that their opinion is transformed.  These judges apparently initially share the critics’ “due process” worries about judicial neutrality; some may be dubious about the “therapeutic” or “social work” aspects of project.  Some are converted, some may not be; and among those who are not converted may be those who just don’t believe in the rehabilitation ethic of the court (people who believe in incapacitation or deterrence, rather than rehabilitation). 

Having spoken to some of the judges in problem-solving court, both in the US and abroad, as well as some really compelling conversations with Greg Berman and Aubrey Fox at the Center for Court Innovation, my sense is that the educational aspect of acting as a problem-solving is deeply powerful.  These courts educate, not only the lawyers and the community impacted by the court, but at the very least a generation (perhaps the second generation) of judges converted by the court to recognizing the problems of drug addiction and the difficulty of managing offenders struggling with addiction (Judge Peggy Hora also has some interesting data on this).  In addition, Berman points out, drug courts (and the other problem-solving courts) may have helped educate the wider public and politicians to the nature of drug abuse, and have made a pivotal contribution to changing drug laws in New York and elsewhere. 

One aspect of the attempt to mainstream, not only the rehabilitationist approach to drug crimes, but also the style of court process, is a transformation in nature of authority wielded by judge.  The judge moves from having “detached authority” over others (as an umpire in adversarial contest) to a model of “engaged authority” with others (as a collaborator in team process).  Furthermore, this change in the nature of authority is accompanied by a move from procedural justice to consequential justice; that is, from ensuring optimal procedures to producing optimal outcomes.  The traditional judge is measured by success in administering fair process; the problem-solving judge is measured by success in producing optimal results.  Finally, I’d suggest, the court moves from a notion of “disinterested neutrality” (again, the umpire metaphor) to “scientific neutrality,” where what ensures that the judge’s interventions are appropriate is the wealth of social scientific data, including self-studies of the court’s process as part of a measure of effective results, that justifies interventions.

It’s at this point that the critique of scientific neutrality often enters the picture.  Drawing on the work of David Garland or Malcolm Feeley and Jonathan Simon, critics provide a “governmentality” analysis of problem-solving courts.  I think Bernard Harcourt’s work on prediction is particularly apposite here, but I’m not going to pursue this line of thought in today’s post. 

Instead, I want to introduce the work of Jane Donoghue on English Magistrate courts, which I think deserves some mileage on this side of the pond.  Her article, Anti-Social Behaviour, Community Engagement and the Judicial Role in England and Wales, provides a fascinating account of the operation of the English and Welsh magistracy in running what, over here, would be called “community court.”

Donoghue engaged in a detailed empirical study that is unique in accessing and recording the operation of the Magistrate court (which, like some US courts, is run by lay judges, but otherwise much like a low-level criminal court).  In England and Wales, the UK government attempted to mainstream problem-solving practices by political directive, from the top down, without any real training.  Lacking any specific direction, Donoughue found that magistrates generally resisted the informal aspects of the court—interaction with offenders and with communities to assess the problems presented both individually and locally by antisocial behavior—and the formal aspects of repeat monitoring—the ability of a single magistrate within the court to track repeat offenders through the sentencing process.  Instead, the Magistrates reasserted their role of disinterested neutrality and detached authority and characterized the scientific and engaged aspects of the new process as requiring them to act as “social workers” instead of “judges.”

Donoghue’s research reveals that, on the ground, impartiality and authoritarianism may be precisely the parts of the professional role that low-level court officials regard as central to their professional identity.  These findings match some studies indicating that problem-solving courts are highly dependent upon the attitudes of individual judges, independent of the structure of the court.  I think there may be some structural solutions to the problem of judicial resistance, and I’ll discuss those tomorrow.  However, Donoghue’s research is an important contribution to describing the consequences of failing to properly train recalcitrant or ambivalent judges for problem-solving court practice: that they will simply default to a guilt-oriented approach.  What that means for individual judges or courts may vary.

I’ll quickly throw out the thought that this response is one mirrored by police reactions to community policing.  It’s also mirrored in the Tata and McNeill studies I mentioned in a previous post, that detail the manner in which the Scottish judiciary resist and re-read social work reports when sentencing drug offenders (though that study does not apply to the Glasgow Drugs court).  And Gil McIvor’s work on Scottish juvenile courts suggests the dangers when a judge who resists the “social work” aspects of the problem-solving movement engages in “tough love” to set offenders straight. 

These are issues that folks in the problem-solving movement have been discussing for quite some time now.  But, as I suggested at the beginning of this post and in earlier ones, they are problems that also operate in mainstream courts, outside the trial in the more administrative aspects of case processing.  I’d suggest that greater attention to these debates, and the way that judges, lawyers, and policy-makers are wrestling with them at home and abroad, shines an important light not merely on the margins of the criminal justice system, but the mainstream too.