Legal Accents, Legal Borrowing

The International Problem-Solving Court Movement

James L. Nolan

• Publisher: Princeton University Press
• Year: 2009
• ISBN:
  9781400830794
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

A wide variety of problem-solving courts have been developed in the United States over the past two decades and are now being adopted in countries around the world. These innovative courts--including drug courts, community courts, domestic violence courts, and mental health courts--do not simply adjudicate offenders. Rather, they attempt to solve the problems underlying such criminal behaviors as petty theft, prostitution, and drug offenses. Legal Accents, Legal Borrowing is a study of the international problem-solving court movement and the first comparative analysis of the development of these courts in the United States and the other countries where the movement is most advanced: England, Scotland, Ireland, Canada, and Australia. Looking at the various ways in which problem-solving courts have been taken up in these countries, James Nolan finds that while importers often see themselves as adapting the American courts to suit local conditions, they may actually be taking in more aspects of American law and culture than they realize or desire. In the countries that adopt them, problem-solving courts may in fact fundamentally challenge traditional ideas about justice. Based on ethnographic research in all six countries, the book examines these cases of legal borrowing for what they reveal about legal and cultural differences, the inextricable tie between law and culture, the processes of globalization, the unique but contested global role of the United States, and the changing face of law and justice around the world.

Chapter One

PROBLEM SOLVING AND COURTS OF LAW

For problem-solving judges and attorneys, a case is a problem
to be solved, not just a matter to be adjudicated.,

—Greg Berman and John Feinblatt

IN HIS BOOK The Homeless Mind, Peter Berger identifies a “problem-solving” orientation as a defining feature of modern consciousness. “Problem-solving inventiveness,” as he puts it, is a dominant sensibility in our modern technological society. According to Berger, this form of consciousness not only is found among those working directly in the productive processes of industrial capitalism, but also is carried over into other sectors of public and private life.¹ From this vantage point, it may not be altogether surprising that a legal innovation emerging at the turn of the twenty-first century would specifically refer to itself as a problem-solving enterprise. Consistent with the essential disposition characterized by Berger, “problem-solving courts” have surfaced as one of the most interesting and important innovations in the contemporary legal world.

Advocates may not be overstating matters when they speak of problem-solving courts as a “paradigm shift,” a “dramatic wave of court innovation,” as even a “revolution” in criminal justice.² So significant is the development in the United States that in 2000 the U.S. Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) passed a joint resolution endorsing and encouraging “the broad integration over the next decade of the principles and methods employed in problem solving courts in the administration of justice.” Less than a year later, the American Bar Association (ABA) followed suit, calling for “the continued development of problem solving courts” and going so far as to encourage “law schools, state, local and territorial bar associations, and other organizations to engage in education and training about the principles and methods employed by problem solving courts.” In 2004 the CCJ/COSCA passed another resolution, reaffirming its 2000 declaration, and resolving further to “encourage each state to develop and implement an individual state plan to expand the use of the principles and methods of problem-solving courts into their courts.” What precisely are problem-solving courts? And what are the problems that these courts seek to solve?

Problem-solving courts have been described as “specialized tribunals established to deal with specific problems, often involving individuals who need social, mental health, or substance abuse treatment services.”³ As understood here, the problems are those of individual defendants who, because of some kind of legal infraction, find themselves before a criminal court. The court, in this case, offers to help individuals solve the problems that are commonly seen as the root cause of their criminal behavior. Among the various types of problem-solving courts developed since the late 1980s are drug courts, community courts, domestic violence courts, and mental health courts. The different courts, as the classifications suggest, are oriented toward addressing such individual problems as drug and alcohol addiction, domestic discord and violence, mental disability, and the “antisocial” behaviors that harmfully affect the quality of life in local communities.

In discussions about the purpose and focus of these courts, however, the problem sometimes appears to be not so much that of the individual offender, but that of the judicial system itself—a system viewed by many as suffering from a range of dysfunctions. Ubiquitous, for example, are complaints about overcrowded jails and prisons; the expense and burden of increasing court case loads; the “revolving door” phenomenon of repeat offenders; the impersonal and assembly-line quality of “McJustice,” or expedited case management; fatigue and job dissatisfaction among lawyers and judges; the win-at-all-costs mentality of modern trial advocacy; and the adjudicative restrictions of hyper-proceduralism and mandatory minimum sentencing guidelines.⁴

Of these systemic troubles, one to receive notable attention among advocates of problem-solving courts is, curiously, job dissatisfaction among judges. In conventional courts, it is argued, stressed-out judges complain of feeling isolated, unappreciated, misunderstood, and frustrated with the endless stream of repeat offenders cycling through their courtrooms.⁵ With pressure to rush through overloaded court calendars, judges protest that “there is barely time for the judge to think, let alone interact with the parties or their attorneys.”⁶ Judges complain further that mandatory minimum sentencing laws restrict their ability to craft sentences appropriate to the lives and situations of individual offenders. Innovators contend that problem-solving courts provide judges with an alternative judicial forum that is more personally satisfying. As they see it, in problem-solving courts, judges enjoy greater discretion, more personal interaction with defendants, and a feeling that they are actually effecting change. Two problem-solving court advocates, Peggy Hora and Deborah Chase, have actually conducted surveys comparing problem-solving court judges with regular judges. Among their findings: a higher percentage of problem-solving court judges felt their “current assignment had a positive emotional effect on them” and “made them feel happier.”⁷

Not surprisingly, some have questioned whether the good feelings and personal happiness of judges should be a primary concern of the court.⁸ In response, Hora and Chase argue:

When judges are feeling productive and positive, these attitudes carry over to staff, litigants, and counsel. Likewise, if a burnt-out judge is short-tempered, the perception of the court is more likely to be negative. This suggests that . . . a judge’s job satisfaction would be a predictor of litigant satisfaction and significantly affect the public’s trust and confidence in the court.⁹

As intimated in this statement, judges worry that problems in the criminal justice system have resulted in declining public confidence in the American judiciary. Common is the stated belief that the American criminal justice system suffers from a deficit, if not a crisis, of legitimacy and thus struggles to justify itself vis-à-vis society.¹⁰ David Rottman and Pamela Casey, from the National Center for State Courts, for example, report that “public opinion surveys indicate . . . low levels of trust and confidence in the judiciary.”¹¹ Even more decidedly, Greg Berman and John Feinblatt, from the Center for Court Innovation in New York, assert that “no civic institution has experienced a greater loss of public faith in recent years” than the American criminal justice system.¹²

Judges, therefore, feel pressure to improve their standing with the public and, along with other supporters of problem-solving courts, “are united by the common belief that courts need to reassert their relevance in society.”¹³ As a district attorney from Portland, Oregon, put it, “I strongly believe we’ve got to work on public credibility, because a lot of citizens, quite frankly, they don’t think judges are relevant.”¹⁴ Judge Judith Kaye, chief judge of the New York State Court of Appeals and a tireless promoter of problem-solving courts, agrees. In her 2000 State of the Judiciary address, she highlighted a key question for the next century: “How do we build public trust and confidence in our justice system?”¹⁵ Just as Hora and Chase believe problem-solving courts will improve judicial self-esteem, Kaye firmly believes that “problem-solving courts can help counter the erosion of public trust and confidence in justice that we have experienced in recent generations.”¹⁶

Kaye, however, does not believe the courts are the extent of the problem. As she puts it, “Courts are, after all, a mirror of society.”¹⁷ In other words, the courts’ difficulties are themselves only a microcosm of deeper problems in the larger society. In this sense, then, the problems are not simply those of individual defendants or of a beleaguered court system filled with dissatisfied judges, but of society more generally. Supporters of problem-solving courts and related legal innovations argue that the need for legal change is exacerbated by the failure of other social institutions to handle a growing number of social problems. In other words, because of the failure of “traditional non-legal dispute resolution mechanisms in society,” such as one’s “church, community, neighborhood, friends, and family,” the legal system now finds itself in a position where it must directly address various social ills.¹⁸

With the weakening of these nonlegal support structures, advocates of legal change believe that the courts had no choice but to attempt to fill the void. As Rottman and Casey see it, “The main push for this change came from the societal changes that placed courts in the frontline of responses to substance abuse, family breakdown, and mental illness.” Because “courts cannot restrict the flow of such problems into the courtroom,” they have essentially been “pulled . . . toward a problem-solving, proactive orientation.”¹⁹ Or as Timothy Casey puts it, “The failure of various agencies has led to the dumping of all social problems into the lap of the courts.”²⁰ In light of this development, one judge mused, “It seems terribly odd that America is looking to the judicial branch to solve these problems. It seems to me that in very large measure, this is happening because of the abject failure of the other branches of government.”²¹ Or as another judge put it, in more colloquial terms, the courts must address these problems because there “ain’t nobody else doing it.” Not all are persuaded by this reasoning, and some suggest that heavy financial investment in problem-solving courts necessarily taps into public funds that might be better spent strengthening other social support structures.²²

Regardless of where one stands on this particular question, it is clear that the problems on which problem-solving courts focus fall within three general categories. Namely, as discussed in the literature on the phenomenon, problem-solving courts address the interrelated problems (1) of individual offenders, (2) of a troubled court system seeking to regain its legitimacy, and (3) of society more broadly (due, ostensibly, to the failure of other social institutions to handle perennial social ills). The various problem-solving courts, then, as Greg Berman summarizes, “all seek to use the authority of courts to address the underlying problems of individual litigants, the structural problems of the justice system, and the social problems of the communities.”²³

While the problems of the criminal justice system and of the broader society are, at least in a tangential sense, the concern of these innovative courts, the problems to which people generally refer when speaking of problem-solving courts are those of the individual offenders. For this reason, the courts are typically classified, as noted earlier, by the particular individual problems they address. Although problem-solving courts vary considerably, they can be characterized, at least in the United States, by five common features: (1) close and ongoing judicial monitoring, (2) a multidisciplinary or team-oriented approach, (3) a therapeutic or treatment orientation, (4) the altering of traditional roles in the adjudication process, and (5) an emphasis on solving the problems of individual offenders—hence, the umbrella term that has emerged to describe this new breed of courts: problem-solving courts.

In the remainder of this chapter, I provide a brief overview of the variety of problem-solving courts that have emerged in the United States since the late 1980s (thus fleshing out the five defining characteristics just noted), followed by a preliminary outline of the expansion of problem-solving courts internationally. Again, what follows in this chapter is a description of courts in the United States, some features of which, as we will see, would not accurately describe problem-solving courts in the other common law regions considered in this case study.

DRUG COURTS

I begin where problem-solving courts began, namely, with drug courts, which—as the numbers (both nationally and internationally) readily demonstrate—are the most visible, widespread, and influential of the problem-solving courts. As Berman and Feinblatt note, “The current wave of problem-solving experimentation can be traced back to the opening of the first ‘drug court’ in Dade County, Florida, in 1989.”²⁴ The Miami court became the essential model for the over twenty-one hundred drug courts established throughout the United States since that time. While drug courts vary from location to location, they share many of the same essential qualities. Drug courts offer drug offenders, as an alternative to the normal adjudication process, an intensive court-based treatment program. Participants, or “clients” (as they are typically called in drug courts), return regularly to the courtroom, where they engage directly and personally with the judge. In addition to repeated encounters with the drug court judge, clients submit to regular urinalysis tests.

Clients also participate in individual and group counseling sessions, Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) twelve-step groups, and acupuncture treatment. P...