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The custom justice of ‘problem-solving courts’

A new kind of court is reshaping the American legal system—with little oversight

istockphoto/globe staff photo illustration

When Governor Deval Patrick introduced his budget proposal for the upcoming fiscal year, tucked amid big-ticket items like education and health care were a few small changes to the Massachusetts criminal justice system. If approved, the budget would create eight new courts: three designed specifically to deal with defendants suffering from mental illness and five for those struggling with drug addiction.

In the scheme of the $36.4 billion budget, these courts represent a modest investment, and would seem like an uncontroversial nod to the idea that certain people benefit from more individualized attention in court. But in legal terms, Governor Patrick’s proposal is tapping into something much bigger. It’s a new idea about criminal justice, rooted as much in sociology and psychology as in law: the notion that certain kinds of offenders are better handled by dealing with the problems underlying their crimes rather than with simple punishment.

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Specialty courts—sometimes known as “problem-solving courts”—have enjoyed a rapid rise nationwide over the past 20 years, and now exist in every jurisdiction in the United States. There are more than two dozen of them in Massachusetts alone: In addition to the 19 drug courts and four mental health courts that already exist, there are two courts for veterans and one for homeless people, according to a spokesperson for the Trial Court. Other states have courts specially designed to handle sex workers, perpetrators of domestic violence, truant schoolchildren, and even gambling addicts.

Studies on drug courts have shown that they significantly reduce repeat offenses. There is also evidence that defendants who have gone through the problem-solving process are more motivated to get their lives on track and feel more positive toward the justice system than those processed through regular courts. A survey of defendants who worked with one mental health court judge in Florida, for instance, reported higher scores on a “dignity scale,” as well as lower scores on a “perceived coercion” scale, than any group of criminal defendants ever studied.

But as specialty courts have proliferated, their rapid adoption has caught the attention of legal experts who worry that an immense shift in the American justice system has taken place almost totally ad hoc, with relatively little thought given to its potential pitfalls. Such courts are “among the most significant political and criminal justice innovations in the last thirty years,” wrote Eric Miller, a professor at Loyola Law School, Los Angeles, in an essay last year—and their growth, he and other critics argue, has created a customized and highly variable brand of justice that makes defendants vulnerable in new ways, and gives individual judges new kinds of power over their lives.

“The intentions are good and right,” said Stanley Goldman, a lawyer in Massachusetts who was involved in establishing a program for veterans charged with crimes through the Department of Mental Health. “But the way it’s set up now is fraught with danger.”

This is in part because specialty courts are radically different from traditional courts in how they operate, with judges acting more like social workers than neutral arbiters of the law. It’s also because shunting defendants into separate silos has the potential to violate one of the basic ideals of our justice system: that everyone who comes into contact with it should be treated the same way. While handling every defendant as an individual seems like a laudable goal, critics worry that problem-solving courts can also lead to unintended forms of unfairness that our traditional justice system, imperfect though it may be, is at least designed to prevent. As the number of these courts continues to grow, even legal experts who passionately believe in them say it’s time for a hard look at the best way to run a system that has arisen almost entirely out of the public eye.

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‘Instead of punishing them for the symptom, we need to treat the illness.’ -- Kate Cook, Chief legal counsel to Governor Deval Patrick

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In one sense, specialization in the legal system is nothing new. The military has long had its own courts, for instance, and highly technical areas like patent law and tax law stand apart as well.

But problem-solving courts are different. In part this is because of how they tend to arise, unsystematically, one jurisdiction at a time. But it’s also because they grew out of a moral critique of the existing justice system. In 1989, a Florida judge fed up with seeing the same addicts show up in his courtrooms over and over decided to try to break the cycle, and with several allies, started a court where repeat offenders with substance abuse problems could get treatment and individual attention while keeping their freedom, as long as they stayed committed to their recovery and didn’t violate its terms. Although a defendant would have to plead guilty and come in for frequent meetings at the courthouse, as well as submit to drug testing and other kinds of monitoring, he would also get to stay out of prison as long as he worked toward kicking his habit.

At a time when the “war on drugs” had started to lead to mass incarceration of even low-level offenders, drug courts offered a meaningful alternative to so-called assembly line justice—and a fresh way to think about what role courts could play in people’s lives.

“Fundamentally, the idea was that criminal justice should do more than just process cases,” said Jane Donoghue, a professor at Lancaster University Law School in England and the author of a forthcoming book on how problem-solving courts have spread from the United States to other countries. Instead, the idea was to change behavior through encouragement and treatment, using the threat of punishment—a day in jail, more intensive monitoring—as a stick in case the defendant showed up to a hearing drunk or high or otherwise broke his deal with the court.

It wasn’t long before this model caught on nationally; by 1999 there were nearly 500 drug courts around the country, and today there are approximately 2,700. And although some experts say more work needs to be done to assess the effectiveness of drug courts, a body of research reviewed in a 2012 article published in the Journal of Criminal Justice suggests they are better than regular courts at helping people stay out of prison. One study from 2007 showed that defendants enrolled in a Portland, Ore., drug court over a 10-year-period were as much as 30 percent less likely to reoffend than those who went through the regular court system.

Of course, substance abuse is not the only “underlying cause” that gets people in repeated trouble with the law. Mental illness does too, as does homelessness and the psychological toll that war takes on veterans. Soon judges around the country were setting up courtrooms devoted to each of these issues as well. They took intellectual energy from a new movement in the legal academy known as “therapeutic jurisprudence,” which emphasized the emotional and psychological effects that legal rules and practices have on the people who are subjected to them.

As these courts grew in number throughout the 1990s and 2000s, a model developed, with individual judges who wanted to try the new approach taking the initiative in their jurisdictions, securing permission and funding for whatever kind of courts they wanted to start. Sometimes the funding came from the state or the federal government, but sometimes it came from private sources: The community court in Times Square, for instance, which dealt with low-level offenders accused of things like drawing graffiti and public urination, was bankrolled in part by local businesses.

The way most of these courts work today follows a few basic principles. Typically, judges approach cases as captains of a team that also includes defense attorneys, prosecutors, probation officers, and an array of social workers and specialists. Together, the team devises a treatment plan that a defendant has to agree to, which can include enrollment in outside programs and typically involves frequent check-ins with the court. In many cases, these check-ins between judges and defendants are more casual than the typical courtroom proceeding: According to Donoghue, it is not unheard of for judges to show up to hearings in jeans instead of robes, and to banter with defendants before getting down to business. Hugging and clapping to celebrate a defendant’s progress are not uncommon.

But beyond those points of commonality, the sheer variety of problem-solving courts, and the discretion afforded to the judges who preside over them, makes it almost impossible to make generalizations about how they operate—and that’s exactly what worries critics, even those who believe the courts are a good thing overall. Because the same rigidity and bureaucracy that can hamper our criminal justice system—which can sometimes seem to leave no room for mercy, mitigating circumstances, or moral reasoning—has a flip side, which is that at least in principle, it’s built to be neutral, fair, and predictable.

Michael Perlin, a professor at New York Law School who worked as a defense attorney for many years, considers himself a supporter of the idea of problem-solving courts overall, but has developed concerns about how much variability there is in how they work in practice. Being a judge in a problem-solving court, he points out, requires considerable interpersonal skills—and in some cases, specialized knowledge about specific issues, like mental health or domestic violence—that aren’t really taught in law schools. Some judges are better at it than others. And though most problem-solving courts tend to be founded by judges deeply committed to the idea, once established, they can fall under the dominion of more reluctant traditionalists who are simply assigned to the court, without any particular investment in the approach. Research has shown that the quality of judges has a significant effect on whether defendants succeed or fail in treatment: The Portland, Ore., study showed that the re-arrest record for defendants varied wildly based on which judge they worked with, from 4 percent to a whopping 42 percent.

There are other concerns as well. One is that defense attorneys whose clients have agreed to participate in problem-solving courts end up working alongside the very prosecutors who would, in an ordinary courtroom, be their adversaries. Instead of zealously standing up for their clients’ interests, the defense attorneys are working as part of a team, some members of which have the crime’s victims in mind instead, on devising treatment plans and deciding on compliance terms. This can be especially worrisome in mental health courts, according to Eric Miller, where defendants are sometimes required to take medication or enroll in psychiatric programs that neither they nor their lawyers—who are typically not trained as experts on mental illness—truly understand.

There are those who see problem-solving courts as soft-on-crime folly; veterans courts, for instance, have been singled out by critics for giving defendants “hall passes” for criminal activity that has little to do with their experiences in the military. Other concerns stem from exactly the opposite perspective: By entangling themselves so deeply in defendants’ lives, problem-solving courts carry the potential to be too hard on people, keeping them yoked to the court system for longer than is fair.

Columbia Law School professor Jane Spinak, an expert on family courts who has studied the rise of the problem-solving movement, says that for many low-level offenders, the choice to participate in a problem-solving court instead of going through the regular system can mean spending a year or more being closely monitored by the court, instead of serving 30 days in jail. Which option affords the individual more freedom isn’t self-evident, and, according to Spinak, it’s not clear that defendants always understand what the implications of this fateful decision will be.

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Supporters of problem-solving courts point out that the existing system is hardly immune to the problem of variability. Even in traditional courtrooms, “What kind of outcome you get varies dramatically from courtroom to courtroom and city to city,” said Greg Berman, director of the Center for Court Innovation, which works with the court system in New York to create and test new problem-solving courts.

And as other supporters point out, the idea that we should deal with crime by solving underlying problems has only become more compelling the more we learn about crime. “Instead of punishing them for the symptom, we need to treat the illness,” said Governor Patrick’s chief legal counsel Kate Cook in an interview.

But for some observers, the fact that the state feels compelled to set up specialty courts is an indictment of how it handles people with complex needs more generally. Spinak sees mental-health courts as a well-intentioned effort to provide help to those who need it, but wonders why the criminal justice system should be a primary avenue for troubled people to get treatment. “There are serious questions to ask about why we like trying to fix the problem at the back end, by the time we get to court, rather than trying to address the issues before people ever have to go into the criminal justice system in the first place,” Spinak said.

On that basis, there’s an argument to be made that resources invested in problem-solving courts should instead be allocated to improving social services. At the same time, it’s hard not to look at these courts and be inspired by the idealistic and humane vision of criminal justice they represent when they work the way they’re supposed to.

“I am convinced they are a good thing,” said Perlin. “When the judge gets it, when the political pressures recede, I think they’re a terrific way of breaking the cycle of people being endlessly recycled in and out of the criminal courts. And I think they really can work.”

What’s needed, he and others say, are reforms: for instance, better training for the lawyers, judges, and district attorneys who find themselves working in problem-solving courts, and the development of standard protocols across jurisdictions about the kinds of punishment that can be meted out when defendants fail to live up to their treatment agreements.

“It would be great if there were some other way we could do it,” wrote Perlin in an e-mail of the new courts, “but after spending 40 years representing and working with these populations, I simply don’t know what it is. And this is far, far, far better than not doing anything.”

Leon Neyfakh is the staff writer for Ideas. E-mail leon.neyfakh@globe.com.
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