Problem-Solving Courts, Criminal Justice, and the International Gold Standard

Reframing the English and Welsh Drug Courts

Anna Grace Kawałek

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000292305
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book presents findings from a process evaluation carried out at a problem-solving court located in England: Manchester Review Court. Unlike the widely documented successes of similar international models, there is no detail of Manchester Review Court in the accessible literature, not in any policy document, nor is there a court handbook or website outlining objectives and expected practice. In adopting the seminal 'wine' and 'bottle' analytical framework propounded by therapeutic jurisprudence scholars, and by carrying out a detailed comparative analysis comparing the court to successful international problem-solving courts, the original empirical data brings clarity to an overlooked area. A fidelity analysis is also offered for the forerunning English and Welsh drug courts, which were established during the early 2000s, but then shortly fell by the wayside without satisfactory explanation for why. Findings from the book shed new light on the causes of the English and Welsh drug court downfalls pending recent calls to roll out a fresh suite of problem-solving courts. In light of the international evidence base and national struggles in the field, the book proposes a renewed, UK-specific, fidelity matrix to forge the impetus for new practice in this area, whilst accounting for past failures and acknowledging current issues. Therefore, this book not only breaks new ground by advancing knowledge of a significantly uncharted area but provides important inroads for helping policymakers with their strategies in tackling recidivism, addiction, victimisation, and austerity, as widespread social and human issues currently facing both Manchester and the UK more broadly.

Presenting significant advancements in theory, policy, and practice at both national and international scale, the book will be a valuable resource for academics and practitioners working in the fields of Therapeutic Justice, Criminal Law, Criminology, Criminal Justice, and Socio-Legal Studies.

1 Introduction

1.1 Introduction

The purpose of this chapter is to assemble the aims, objectives, and presiding themes of this book. It will introduce the successes demonstrated by the international problem-solving court movement, before overviewing some of the difficulties that England and Wales have faced in the area. Like many similar rehabilitative initiatives in Britain, problem-solving courts appear to have been a non-prioritised, undervalued, and misunderstood area. Although in 2011 it was documented that six English and Welsh drug court pilots were in operation,¹ since then, a series of newspaper articles have informally declared their closedowns.² To date, we know little more than this and certainly there has been no formal explanation from the Ministry of Justice. As such, the chapter raises some preliminary questions around the chequered history of the national problem-solving courts compared to the international attempts at the same. It will also introduce the setting explored, where the empirical work for this study is based: Manchester Review Court.

1 Jane Kerr, Charlotte Tompkins, Wojtek Tomaszewski, Sarah Dickens, Roger Grimshaw, Nat Wright, & Matt Barnard ‘The dedicated drug courts pilot evaluation process study’ (2011) Ministry of Justice Research Series, 1. London: Ministry of Justice.

2 Jon Robins, ‘Where next for community justice? Pioneering court closes’ The Justice Gap (24 October 2013); Jon Robins, ‘Whatever happened to community justice?’ The Justice Gap (3 October 2012); Owen Bowcott, ‘US-style problem solving courts plan losing momentum’ (The Guardian, 12 October 2016) <https://tinyurl.com/y3e68qc48gt; Accessed 2 June 2019; Owen Bowcott, ‘Why are special courts that can help drug users at risk of being scrapped?’ (The Guardian, 10 June 2014) <https://tinyurl.com/y3n6o9bp8gt; Accessed 3 September 2019.

1.2 Paradigm shifts

Psychology paradigms have historically been premised upon an illness ideology, whereby disease of the mind, biological defects, and human pathological traits were considered the causes of mental health problems.³ Related psychological treatment thus sought to reverse human deficits through psychotherapy correction models,⁴ although this transformation was deemed difficult, if not an impossible one to make. In 1998, Seligman posited the positive psychology model, stressing that traditional psychology frameworks had overemphasised biologic human deficits.⁵ Perspectives shifted from an illness ideology when Seligman concluded that mental health is a contextually shaped, social phenomenon, and it is thus changeable.⁶ Psychotherapy practices that followed became increasingly strengths-based, seeking to identify, nurture, and cultivate positive aspects of human character by assuming that those with mental health problems are able to develop, change, and flourish when subject to positive social conditions.⁷ Elsewhere and in a similar vein, addiction and desistence experts have put forward similar models.⁸ Mirroring the positive psychology domain, these new paradigm assume that substance addiction and tendencies towards criminal behaviour are states rather than traits, and individuals can achieve cessation or desistance by relying upon positive characteristics, circumstances, social situations, and strengths-based treatment.⁹

3 Peter Kinderman, A prescription for psychiatry: why we need a whole new approach to mental health and wellbeing (London: Palgrave Macmillan, 2014). doi:10.1057/9781137408716; Charles Rapp, The strengths model: case management with people suffering from severe and persistent mental illness (Oxford: Oxford University Press, 1997).

4 Ibid.

5 Martin Seligman, ‘Building human strength: psychology’s forgotten mission’ (1998) APA Monitor, 29(1).

6 Ibid.

7 Christopher Peterson & Martin Seligman, Character strengths and virtues: a handbook and classification. (Worcester, MA: American Psychological Association; Oxford: Oxford University Press, 2004); Martin Seligman & Mihaly Csikszentmihalyi, ‘Positive psychology: an introduction’ (2000) American Psychologist, 55(1), 5–14. doi: 10.1037/0003-066X.55.1.5; Jeffery Froh, ‘The history of positive psychology: truth be told’ (2004) NYS Psychologist, 16(3), 18–20; Kennon Sheldon & Laura King, ‘Why positive psychology is necessary’ (2001) American Psychologist, 56(3), 216–217. doi: 10.1037/0003-066X.56.3.216.

8 William Cloud & Robert Granfield, ‘Conceptualizing recovery capital: expansion of a theoretical construct’ (2008) Substance Use and Misuse, 43(12–13), 1971–1986. doi: 10.1080/10826080802289762; William Cloud & Robert Granfield, ‘Social context and “natural recovery”: the role of social capital in the resolution of drug-associated problems’ (2001). Substance Use and Misuse, 36(11), 1543–1570.

9 William White, ‘Addiction recovery: its definition and conceptual boundaries’ (2007) Journal of Substance Abuse Treatment, 33, 229–241; Shadd Maruna, Making good: how ex-convicts reform and rebuild their lives. (Washington, DC: American Psychological Association, 2011). doi: 10.1037/10430-000.

Paradigm shifts in psychology, desistance and addiction recovery run parallel to, and indeed underpin, those from the criminal justice sphere. David Garland, arguably the world’s current leading contemporary criminologist, differentiates two types of punishment: positive and negative.¹⁰ Negative punishment is more punitive and embodies a traditional Durkheimian approach to crime and punishment, assuming that offenders are rational actors who make fully informed decisions towards the committal of crime; therefore, criminals are inherently wrongdoing people.¹¹ To that end, negative punishment is functional, punitive, harsh, and a deterrent, taking something away from offenders through imprisonment, social rejection, and a criminal record.¹² Comparatively, positive punishment takes a more holistic view of crime and punishment by embedding strengths-based efforts into crime and justice, assuming offenders have the potential to rehabilitate and desist when empowered and exposed to the right set of social circumstances.¹³ By incorporating strengths-based agendas rooted in positive criminology, positive psychology, desistance and recovery capital models, the positive branch provides relief from Durkheimian sentiments.¹⁴ As these paradigms have shifted, so has the tone, structure, and delivery of many punishment disposals.¹⁵ Critics claim that many Western jurisdictions have now made a ‘serious effort’ to advance strengths-based approaches within justice measures,¹⁶ which has led to the emergence of a multitude of new interventions, the centrepiece of which is, arguably, the problem-solving court model.

10 Fergus McNeill, ‘Positive criminology, positive criminal justice?’ in Natti Ronel & Dana Segev (eds.) Positive criminology (Routledge, 2015).

11 Emile Durkheim, The division of labor in society (New York: Free Press of Glencoe Collier-Macmillan, 1964).

12 McNeill (n 10); Granfield & Cloud 2008 (n 8).

13 Natti Ronel & Ety Elisha, ‘A different perspective: introducing positive criminology’ (2011) International Journal of Offender Therapy and Comparative Criminology, 55(2), 305–325. doi: 10.1177/0306624X09357772; Natti Ronel, Noa Frid, & Uri Timor, ‘The practice of positive criminology: a vipassana course in prison’ (2013) International Journal of Offender Therapy and Comparative Criminology, 57(2), 133–153; Jane Donoghue, Transforming criminal justice?: Problem-solving and court specialization (Routledge, 2014), 16.

14 Shadd Maruna & Thomas Lebel, ‘Strengths-based restorative approaches to reentry: the evolution of creative restitution, reintegration and destigmatization’ in Natti Ronel & Dana Segev (eds.) Positive criminology (Routledge, 2015); Maruna (n 9)

15 Donoghue, (n 13); Ronel & Segev (n 10); Howard Zehr, The little book of restorative justice (Intercourse, PA: Good Books, 2002); Ronel & Elisha (n 13); Ronel, et al. (n 13).

16 David B. Wexler & Bruce J. Winick, Judging in a therapeutic key: therapeutic jurisprudence and the courts (Durham, NC: Carolina Academic Press, 2003) cited in Jane Donoghue (n 13).

1.3 Rationale for the book: problem-solving courts: the UK and beyond

Problem-solving courts in various guises have had a long-standing history across jurisdictions worldwide and a traffic of literature details their successes.¹⁷ Pioneering this movement is the drug court, established in Miami-Dade County, United States, in the late 1980s. At this time, the Reagan administration’s ‘War on Drugs’ resulted in a crack cocaine epidemic overburdening the criminal justice system. The revolving-door phenomena, in which the justice system sees the same repeat offenders time after time, caused repercussions for Miami’s prison and court docket overcrowding crisis, and oversaw drug arrests increase by 134% between 1980 and 1989.¹⁸ As research began to evidence the close link between drug use and repeat offending, policymakers were galvanised to reconsider the existing repressive responses to drug-using offenders. Miami’s drug court was established on experimental terms; through a trajectory combining treatment and criminal justice measures, the drug court would be a pathfinder to long-term change by tackling underlying addictive behaviours.¹⁹

17 Denise Gottfredson, Kearley Brooke, Stacey Najaka, & Carlos Rocha, ‘How drug treatment courts work: an analys...