what are the types of problem solving courts

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Problem-Solving Courts May 2024 This page provides a collection of publicly available resources on problem-solving courts, including diversion... Learn More Topic Backgrounder Alternatives to Incarceration Training Materials Supervised Release Problem-Solving Courts Prison Issues

Commission Chats - Episode 17 Commission Chats Podcast April 2024 PROBLEM-SOLVING COURTS MINISERIES, Part Eight: Judge Starrett and the problem-solving court programs in the Southern... Download mp3 Learn More

Commission Chats - Episode 16 Commission Chats Podcast April 2024 PROBLEM-SOLVING COURTS MINISERIES, Part Seven: Judge Walton and the Reclaiming Our Lives reentry court program in DC. Download mp3 Learn More

Commission Chats - Episode 15 Commission Chats Podcast March 2024 PROBLEM-SOLVING COURTS MINISERIES, Part Six: Judge Hendricks and the problem-solving courts in DSC. Download mp3 Learn More

Commission Chats - Episode 14 Commission Chats Podcast March 2024 PROBLEM-SOLVING COURTS MINISERIES, Part Five: Chief Judge Urbanski and the problem-solving courts in WDVA. Download mp3 Learn More

Commission Chats - Episode 13 Commission Chats Podcast February 2024 PROBLEM-SOLVING COURTS MINISERIES, Part Four: Judge Bough and the Intensive Trauma Court in WDMO. Download mp3 Learn More

Commission Chats - Episode 12 Commission Chats Podcast February 2024 PROBLEM-SOLVING COURTS MINISERIES, Part Three: Judge Gee and the CASA program in CDCA. Download mp3 Learn More

Proposed 2024 Amendments to the Federal Sentencing Guidelines December 2023 Amendment Cycle Proposed Amendments "Reader-Friendly" Version Learn More

Commission Chats - Episode 11 Commission Chats Podcast December 2023 PROBLEM-SOLVING COURTS MINISERIES, Part Two: Judge Gleeson and the POP and SOS programs in EDNY. Download mp3 Learn More

December 14, 2023 Press Releases The Commission published proposed amendments and issues for comment for the amendment cycle ending May 1, 2024. Amendment Cycle Proposed Amendments Learn More

Commission Chats - Episode 10 Commission Chats Podcast December 2023 PROBLEM-SOLVING COURTS MINISERIES, Part One: Judge Restrepo and the STAR program in EDPA. Download mp3 Learn More

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• Problem-Solving Courts in the US

Trend Report 2021 – Delivering Justice / Case Study: Problem-Solving Courts in the US

Author: Isabella Banks , Justice Sector Advisor

Introduction

Problem-solving courts are specialised courts that aim to treat the problems that underlie and contribute to certain kinds of crime (Wright, no date). “Generally, a problem-solving court involves a close collaboration between a judge and a community service team to develop a case plan and closely monitor a participant’s compliance, imposing proper sanctions when necessary” (Ibid).  In the past three decades, problem-solving courts have become a fixture in the American criminal justice landscape, with over 3,000 established nationwide. All 50 states have appointed a statewide drug court coordinator, and at least 13 have introduced the broader position of statewide problem-solving court coordinator (Porter, Rempel and Mansky 2010; J. Lang, personal communication, October 28, 2020).

What does it mean for a court to be problem-solving?

Although a number of different types of problem-solving courts exist across the US, they are generally organised around three common principles: problem-solving, collaboration, and accountability (Porter, Rempel and Mansky 2010, p. iii.).

Problem-solving courts are focused on solving the underlying problems of those who perpetrate or are affected by crime. This includes reducing recidivism as well as rehabilitating participants (with the exception of domestic violence courts, as elaborated below), victims and the broader community (Ibid. p. iii.).

Problem-solving courts are also characterised by interdisciplinary collaboration among stakeholders in and outside of the criminal justice system. Dedicated staff who have been assigned to the problem-solving court work together to develop court policies and resolve individual cases in a relatively non-adversarial way. Ongoing collaboration between court staff and public agencies, service providers and clinical experts is also essential for providing appropriate treatment to problem-solving court participants (Ibid. p. 38). Because problem-solving courts aim to address the impact of crime on the community and increase public trust in justice, they also have frequent contact with community members and organisations and regularly solicit local input on their work (Ibid. p. 39).

Problem-solving courts aim to hold individuals with justice system involvement, service providers and themselves accountable to the broader community. For individuals with justice system involvement, this means holding them accountable for their criminal behaviour by promoting and monitoring their compliance with court mandates. In order to comply, problem-solving court participants must understand what is expected of them, regularly appear for status hearings, and have clear (extrinsic and intrinsic) incentives to complete their mandates. 

For service providers, this means providing services based on a coherent, specified and effective model, and accurately and regularly informing the court about participants’ progress. Problem-solving courts are also responsible for assessing the quality of service delivery and making sure models are adhered to (Ibid. p. 43-44). 

Lastly and perhaps most fundamentally, problem-solving courts must hold themselves to “the same high standards expected of participants and stakeholders” (Ibid. p. 44-45).  This means monitoring implementation and outcomes of their services using up-to-date data. 

What does problem-solving justice look like in practice?

Problem-solving justice comes in different forms. The original, best known, and most widespread problem-solving court model is the drug court. The first drug was created in 1989, after a judge in Miami Dade county became frustrated seeing the same drug cases cycling through her court and began experimenting with putting defendants into treatment (P. Hora, personal communication, October 16, 2020). This approach (elaborated in the sections that follow) gradually gained traction, and there are now over 3,000 drug courts across the US (Strong and Kyckelhahn 2016).

This proliferation of drug courts helped stimulate the emergence of three other well-known problem-solving court models: mental health, domestic violence and community courts (Porter, Rempel and Mansky 2010, p. iii.). Mental health courts are similar to drug courts in that they focus on rehabilitation, but different in that they aim for the improved social functioning and stability of their participants rather than complete abstinence (Ibid. p. 51). Domestic violence courts are unique in that they do not universally embrace participant treatment and rehabilitation as an important goal. Instead, many – thought not all – are primarily focused on victim support and safety and participant accountability and deterrence (Ibid. p. 52). 

Community courts “seek to address crime, public safety, and quality of life problems at the neighbourhood level. Unlike other problem-solving courts…community courts do not specialise in one particular problem. Rather, the goal of community courts is to address the multiple problems and needs that contribute to social disorganisation in a designated geographical area. For this reason, community courts vary widely in response to varying local needs, conditions, and priorities” (Lee et al. 2013). There are now over 70 community courts in operation around the world (Lee et al. 2013, p.1). Some are based in traditional courthouses, while others work out of storefronts, libraries or former schools. Though they typically focus on criminal offences, some community courts extend their jurisdiction to non-criminal matters to meet specific needs of the communities they serve as well (Ibid. p. 1.). Regardless of location and jurisdiction, all community courts take a proactive approach to community safety and experiment with different ways of providing appropriate services and sanctions (Wright n.d.).

Other less common problem-solving models include veterans courts, homeless courts, reentry courts, trafficking courts, fathering courts, and truancy courts (Ibid). 

The principles and practices of problem-solving justice can also be applied within non-specialised courts that already exist. In a 2000 resolution that was later reaffirmed in 2004, the Conference of Chief Justices and Conference of State Court Administrators advocated for, “Encourag[ing], where appropriate, the broad integration over the next decade of the principles and methods of problem-solving courts into the administration of justice to improve court processes and outcomes while preserving the rule of law” (Porter, Rempel and Mansky 2010, p. 3). Key features of a problem-solving approach to justice – which will be elaborated in the sections that follow – include: individualised screening and problem assessment; individualised treatment and service mandate; direct engagement of the participant; a focus on outcomes; and system change (Ibid. p. iv).

Problems and impacts

How and to what extent have problem-solving courts measured and mapped the following as a first step towards people-centred justice.

• The most prevalent justice problems within the population served
• The justice problems with greatest impact on the population served
• The justice problems that are most difficult to resolve and therefore tend to remain ongoing
• The groups most vulnerable to (systemic and daily) injustices within the population served

As their name suggests, problem-solving courts emerged to address the most prevalent, impactful, and difficult to resolve justice problems within the populations they serve. The first drug (and Drinking While Driving or DWI) courts were created as a response to the increase in individuals with substance use disorders in the criminal justice system and their levels of recidivism. Similarly, mental health courts “seek to address the growing number of [individuals with mental health needs] that have entered the criminal justice system” (Wright n.d.). As one interviewee put it, “The biggest mental health provider [in Los Angeles] is the county jail” (B. Taylor, personal communication, October 5, 2020).

Drug and mental health problems are among the most common issues faced by individuals responsible for both minor and more serious crime. These issues are difficult to resolve because judges – who have historically had little understanding of treatment and addiction – are inclined to hand down harsh sentences when defendants relapse or fail to complete their court mandate (B. Taylor, personal communication, October 5, 2020). This trend was particularly acute in the 1980s, when the war on drugs resulted in draconian sentencing laws that reduced judicial discretion (P. Hora, personal communication, October 16, 2020).

In order to understand and meet the needs of their unique populations, problem-solving courts track measures of problem prevalence and severity. As noted in the first section, early and individualised screening and problem assessment is a key feature of problem-solving justice. The purpose of such screenings is to “understand the full nature of the [participant’s] situation and the underlying issues that led to justice involvement.” 

For drug courts, relevant measures of problem severity may include: drug of choice; years of drug use; age of first use; criminal history; and treatment history (Porter, Rempel and Mansky 2010, p. 50). Mental health courts typically assess the nature and severity of their participants’ underlying mental health issues, and may also look at participant stability (in terms of health care, housing, compliance with prescribed medications, and hospitalisations) (Ibid. p. 51). 

Domestic violence courts and community courts are somewhat unique in that the primary population they serve include victims and members of the community as well as individuals with justice system involvement. Domestic violence courts focus on assessing the needs of victims of domestic violence in order to connect them with safety planning and other individualised services. Likewise, in addition to identifying the problems that impact individual participants, community courts focus on assessing the problems that impact the underserved (and also often disserved) neighbourhoods where they work. These should be identified through outreach in the relevant community but often include concentrations of lower level crimes – such as vandalism, shoplifting, and prostitution – as well as distrust of traditional justice actors (Ibid. p. 55-56).

Now that technical assistance is broadly available for problem-solving courts across the US, individualised screening and problem assessment has become increasingly data-driven and informed by validated needs assessment tools (B. Taylor, personal communication, October 16, 2020). 

Over the years, problem-solving courts have also become more adept at identifying groups within the populations they serve that are particularly vulnerable to injustice. The advancement of brain science, for example, has influenced many problem-solving courts to treat participants under 25 differently and give them an opportunity to age out of crime. Young people transitioning out of foster care are particularly vulnerable to justice involvement given their sudden lack of family support. Trafficked individuals, who used to be treated as criminals, are now widely recognised as victims (Ibid). Specialised problem-solving courts, diversion programs, and training initiatives have emerged to understand the unique needs and vulnerabilities of this population (Wright n.d.).

Problem-solving courts have also become more aware of racial inequities in the populations selected to receive treatment (B. Taylor, personal communication, October 16, 2020). Drug court participants in particular are often disproportionately white, with racial breakdowns that do not mirror the racial breakdowns of those arrested. This is largely a result of eligibility requirements tied to federal drug court funding, which has historically restricted individuals with violent criminal histories from participating. Drug courts have also been accused of cherry-picking participants who were most likely to be successful to improve their numbers and receive more funding. Both of these phenomena have had the effect of excluding disproportionate numbers of people of colour from drug treatment (Ibid). In addition to taking steps to mitigate these inequities, drug courts have increasingly come to recognise that cherry-picking low-risk cases reduces their effectiveness overall (P. Hora, personal communication, October 16, 2020).

Defining + Monitoring Outcomes

How and to what extent have problem-solving courts researched and identified the outcomes that people in the target population expect from justice processes.

In 1993, the first community court was set up in the Midtown neighbourhood of New York City (Lee et al. 2013, p.1). Inspired by the Midtown model, the Red Hook Community Justice Center was established in a particularly disadvantaged area of Brooklyn seven years later. Like the Midtown Court, the goal of the Red Hook Community Justice Center was “to replace short-term jail sentences with community restitution assignments and mandated participation in social services” (Taylor 2016). 

In the planning stages however, residents of Red Hook were not happy to learn that a new court was being introduced in their community. Though sustained community outreach, Red Hook court staff were able to change these negative perceptions and convince residents they wanted to do something different. They began by asking the community what outcomes were most important to them (B. Taylor, personal communication, October 5, 2020).  

This early engagement helped the Red Hook planners realise that tracking outcomes related to people’s presence in the court would not be enough to assess the court’s impact in the community. They would also need to look at outcomes that were meaningful to residents, asking questions like: How can we disrupt crime hot spots? How safe does the community feel? Do residents feel safe walking to the park, or the train? At what times? (Ibid).

Although the Red Hook community court model has since been replicated in different parts of the world, the experiences of two of these international courts illustrate that identifying the outcomes that community members expect from justice processes can sometimes be a challenge.

In 2005, England opened its first community court: the North Liverpool Community Justice Centre (NLCJC). A 2011 evaluation of the NLCJC acknowledged its innovative approach and “potentially transformative effect on criminal justice” but also noted:

How and why the Centre needs to connect with the public it is charged with serving remains one of the most complex and enduring concerns for staff...how consistently and how effectively the ‘community’ was contributing to the workings of the Centre provided a constant source of uncertainty” (Mair and Millings 2011).

After eight years of operation, the NLCJC was closed in 2013. Observers have since noted that a lack of grassroots community engagement in the planning and operation of the NLCJC was among the primary reasons that it ultimately failed to take hold (Murray and Blagg 2018; J. Lang, personal communication, October 28, 2020). 

One year after the NLCJC opened in England, the Neighbourhood Justice Centre (NJC) was piloted in the Collingwood neighbourhood of Melbourne, Australia. At the time, Collingwood had the highest crime rate in Melbourne, high rates of inequality, and a high concentration of services. This combination made it an ideal location for Australia’s first community court. 

Modelled on the Red Hook Community Justice Centre in Brooklyn and spearheaded by the State Attorney General at the time, Rob Hulls, the NJC pilot was focused on improving the community’s relationship with the justice system through local, therapeutic and procedural justice. Like Red Hook, it was designed based on evidence and an analysis of gaps in existing justice services. Despite shifting political winds –  including “tough-on-crime” rhetoric on the one hand and complaints of more favourable “postcode justice” available only for the NJC’s participants on the other – the NJC managed to secure ongoing state government support (J. Jordens, personal communication, October 19, 2020). 

Unlike the NLCJC, the NJC remains in operation today. The procedurally just design of the NJC building and approach of its magistrate, David Fanning, have earned the court significant credibility and legitimacy in the Collingwood community (Halsey and Vel-Palumbo 2018; J. Jordens, personal communication, October 19, 2020). Community and client engagement have continued to be a key feature of the NJC’s work, helping to reduce recidivism and increase compliance with community-based court orders (Halsey and Vel-Palumbo 2018) .

In spite of its success, some observers note that the NJC’s outreach efforts have not gone as far as they could have. Early consultations with a group of community stakeholders regarding the design and governance of the NJC were discontinued in the Centre’s later years. Although the reason for this is unclear and may well have been legitimate, the result was that key representatives of the community lost direct and regular access to NJC leadership over time (J. Jordens, personal communication, October 19, 2020). 

These examples illustrate that even under the umbrella of a one-stop-shop community court, identifying expected justice outcomes in the community as a first step towards problem-solving justice – and continuing to do so even after the court is well-established – is not a given. The extent to which this is achieved depends on the approach of the particular court and its efforts to create a reciprocal and collaborative relationship with the surrounding community.

How and to what extent have problem-solving courts determined whether existing justice processes deliver these outcomes and allow people in the target population to move on?

Problem-solving courts generally – and community courts and drug courts in particular – are created with the explicit intention to address gaps in existing justice processes. 

Community courts are typically established in communities that have been historically underserved and disproportionately incarcerated to provide a more holistic response to crime and increase trust in the justice system. 

In the early days of the Red Hook Community Justice Center, the community’s deep distrust of law enforcement emerged as a key challenge for the Center’s work. Red Hook staff approached this challenge by inviting police officers into the court and showing them the data they had collected on the justice outcomes that residents were experiencing. They helped the officers understand that by not addressing the root causes of crime in the Red Hook community, they were delaying crime rather than stopping it (B. Taylor, personal communication, October 5, 2020).

Over time, the court’s relationship with law enforcement has improved. In 2016, the Justice Center launched its “Bridging the Gap” initiative, which creates a safe space for young people and police officers to get to know each other and discuss difficult topics that offer the chance to explore the other’s perspective (Red Hook Justice News 2016; Sara Matusek 2017).

Similarly, the proliferation of drug courts across the country was a response to high rates of recidivism among individuals with substance use disorders, which persisted in spite of tough-on-crime sentencing practices. During the so-called “war on drugs” in the mid-1980s, judges across the country gradually began to realise that handing down increasingly long sentences to people with substance use disorders was not working. 

One such person was the late Honourable Peggy Hora, a California Superior Court judge responsible for criminal arraignments. Like other judges repeatedly confronted with defendants grappling with substance use disorders in the 1980s and 90s, Judge Hora initially felt that incarceration was the only tool available to her. Not much research had been done on incarceration at the time, so its detrimental effects were not yet widely known (P. Hora, personal communication, October 16, 2020). 

Determined to understand why the defendants that came before her seemed to be willing to risk everything to access drugs – even their freedom and the right to see their children – Judge Hora took a class on chemical dependency. This experience brought her to the realisation that “everything they were doing was wrong.” She quickly built relationships with people at the National Institute on Drug Abuse and began engaging with drug treatment research at a national level (Ibid). 

Judge Hora eventually went on to establish and preside over the nation’s second drug court in Alameda County, California. After learning more about procedural justice and seeing evidence that early drug courts worked and saved money in the long run, she helped promote the model across the country and around the world (Ibid).

How and to what extent have problem-solving courts created a system for monitoring whether new, people-centered justice processes deliver these outcomes and allow people in the target population to move on?

Outcomes monitoring is an essential component of problem-solving justice. As Rachel Porter, Michael Rempel, and Adam Manksy of the Center for Court Innovation set out in their 2010 report on universal performance indicators for problem-solving courts:

It is perhaps their focus on the outcomes generated after a case has been disposed that most distinguishes problem-solving courts from conventional courts. Like all courts, problem-solving courts seek to uphold the due process rights of litigants and to operate efficiently, but their outcome orientation demands that they seek to address the underlying issues that precipitate justice involvement (Porter, Rempel and Mansky 2010, p. 1.).

Measuring and monitoring people-centred outcomes was also key to problem-solving courts’ early success. Because the problem-solving approach was so different from the status quo, showing evidence that it worked was necessary for building political and financial support. This meant clearly articulating the goals of problem-solving courts and finding ways to measure progress towards them (B. Taylor, personal communication, October 14, 2020).

In their report, What Makes a Court Problem-Solving? Porter, Rempel, and Mansky identify universal indicators for each of the three organising principles of problem-solving courts. They include: (under problem-solving) individualised justice and substantive education for court staff; (under collaboration) links with community-based agencies and court presence in community; and (under accountability) compliance reviews, early coordination of information, and court data systems (Porter, Rempel and Mansky 2010, p. 57).  Many of these problem-solving principles and practices can be (and are) applied and monitored in traditional courts. 

To ensure delivery of individualised justice for example, any court staff can engage the individuals appearing before it by making eye contact, addressing them clearly and directly, and asking if they have any questions about the charges or their mandate (Ibid). This kind of engagement can “radically change the experience of litigants, victims, and families” and “improve the chance of compliance and litigant perceptions of court fairness” (Ibid). Similarly, any court can prioritise and track its use of alternative sanctions – such as community service or drug treatment – and its efforts to link individuals to existing services in the community (Ibid).

The extent to which a particular (problem-solving or traditional) court monitors progress towards these people-centred outcomes depends on its ability to track compliance and behaviour change among participants. This can be achieved through regular compliance reviews, which provide “an ongoing opportunity for the court to communicate with [participants] and respond to their concerns and circumstances” (Ibid. p. 60-61). Investing in electronic data systems that track and coordinate information also makes it easier for a court to monitor its overall impact on case outcomes and improve the quality of its mandates (Ibid).

Successful outcomes monitoring also depends crucially on a court’s ability to develop strong relationships with researchers. Without this, early problem-solving courts like the Red Hook Community Justice Center would not have been able to, for example, quantify the impact of a 7-day jail stay in terms of budget, jail population, and bookings per month. Strong research partnerships also made it possible to compare successful and unsuccessful court participants, which was necessary to assess and improve the quality of the court’s services (B. Taylor, personal communication, October 14, 2020).

Outcomes monitoring at the Red Hook Community Justice Center was not without its challenges, however. Because most people who come before the court are charged with less serious crimes, their treatment mandates are relatively short. The short amount of time the Red Hook staff and service providers have to work with these participants means that outcomes related to individual progress are not likely to show a full picture of the court’s impact. The Red Hook Community Justice Center addressed this by also measuring outcomes related to the court’s impact on the community. What was the effect on social cohesion and stability when someone’s brother, father, or son was allowed to remain in the community instead of being incarcerated? (B. Taylor, personal communication, October 5, 2020).

Another challenge faced by community courts broadly is that traditional outcomes monitoring systems are not well-equipped to acknowledge the reality that everything is connected. Where does one draw the line between service providers and justice providers? If a restorative justice process facilitated under the supervision of the court fails to reconcile the parties in conflict but has a positive impact on the lives of the support people who participate, should it be considered a success or failure? 

A former Red Hook staff member involved in the court’s peacemaking initiative shared a story of a young, devout woman with a new boyfriend who mistreated her and who her children strongly disliked. When she tried to throw him out, the boyfriend would use her Christian values against her and convince her to let him stay. Eventually, he punched someone and was arrested on assault charges. His case was referred to a restorative justice circle for resolution. In the circle, the boyfriend was very aggressive and as a result, his case was sent back to court. The woman and her children asked if they could continue meeting in circle without him because they found it helpful (Ibid).

After a series of circle sessions together, the woman came to realise that her abusive boyfriend was using drugs and found the courage to kick him out. In his absence, the woman and her children were able to reconcile and reunite. The woman returned to school and her oldest son found a job. The criminal case that started the process was ultimately unresolved, but from a more holistic and common sense perspective the impact of the circles on the family was positive (Ibid). How should success be measured in this case? This is a challenge that community courts attempting to measure and monitor people-centred justice regularly face.

Evidence-Based Solutions

How and to what extent have problem-solving courts introduced interventions that are evidence-based and consistently deliver the justice outcomes that people in the target population look for.

Problem-solving courts have introduced a number of interventions that have proven to deliver people-centred outcomes for the communities they serve. Although different interventions work for different populations, direct engagement with participants and the delivery of individualised treatments are two key elements of the problem-solving orientation that all problem-solving courts share (Porter, Rempel and Mansky 2010, p. 29-30). 

As described in the previous section, direct engagement means that the judge speaks to participants directly and becomes actively engaged in producing positive change in their lives (Ibid. p. 30-31). This effort to ensure that participants feel heard, respected and experience the process as fair is supported by research on procedural justice. 

Individualised treatment means that the interventions delivered are tailored to the specific problems of each participant. This requires that the court offer “a continuum of treatment modalities and services to respond to the variety and degrees of need that participants present.” This service plan must be revisited by the court on a regular basis and adjusted depending on the participant’s reported progress (Ibid. p. 29-30).

Despite this shared approach to justice delivery, different problem-solving courts have identified different types of treatments and ways of monitoring whether they work that are unique to the populations they serve.

Community courts like the Red Hook Community Justice Center, for example, generally work with the residents in their neighbourhood to find out what is important to them rather than imposing a predetermined set of solutions. 

The Neighbourhood Justice Centre in Melbourne did this through a unique problem-solving process that took place outside of the courtroom and which participants could opt into voluntarily. In a confidential, facilitated discussion based on restorative and therapeutic justice principles, participants were given an opportunity to share their perspective on the problems they were facing and empowered to become collaborators in their own rehabilitation. Important takeaways from this process would be reported back to the court’s magistrate so he could help them move forward – for example by changing their methadone (1) dose or changing the number of treatments they received per week. The collaborative nature of the sessions helped ensure that the treatment plans mandated by the court were realistic for participants. Though the content of these sessions was unpredictable and varied, the co-design process remained constant (J. Jordens, personal communication, October 19, 2020; Halsey and Vel-Palumbo 2018).

With that said, certain interventions have proven to consistently improve outcomes for communities, victims, and individuals with justice system involvement when applied to low-level cases. These include: using (validated) screening and assessment tools (2); monitoring and enforcing court orders (3); using rewards and sanctions; promoting information technology (4); enhancing procedural justice (5); expanding sentencing options (to include community service and shorter interventions that incorporate individualised treatment); and engaging the community (6).

In 2009, the National Institute of Justice funded a comprehensive independent evaluation of the Red Hook Community Justice Center to assess whether it was achieving its goals to reduce crime and improve quality of life in the Red Hook neighbourhood through these interventions (Lee et al. 2013, p. 2.). The evaluation found that:

The Justice Center [had] been implemented largely in accordance with its program theory and project plan. The Justice Center secured the resources and staff needed to support its reliance on alternative sanctions, including an in-house clinic and arrangements for drug and other treatment services to be provided by local treatment providers...The Justice Center’s multi-jurisdictional nature, as well as many of its youth and community programs, evolved in direct response to concerns articulated in focus groups during the planning process, reflecting a stated intention to learn of and implement community priorities (Ibid. p. 4).

Using a variety of qualitative and quantitative research methods, the evaluation also concluded that Red Hook had successfully: changed sentencing practices in a way that minimised incarceration and motivated compliance; provided flexible and individualised drug treatment; sustainably reduced rates of misdemeanour recidivism among young people and adults; and reduced arrests in the community. 

In spite of the robust evidence supporting their approach, many community courts experience resistance to their efforts to help participants address underlying issues of substance use and mental disorders through treatment. As Brett Taylor, a Senior Advisor for Problem-Solving Justice and former defence attorney at the Red Hook explains:

Some critics of community courts say that [this] is not the job of courts and should be handled by other entities. In a perfect world, I would agree. However, in the reality of the world today, people with social service needs continue to end up in the courts. Court systems across the country have realised that if defendants with social service needs are not given treatment options, those defendants will be stuck in the revolving door of justice and continue to clog the court system....Although it may not comport with the vision of success that many defence attorneys had upon entering this work, I can tell you that nothing beats seeing a sober, healthy person approach you on the street and hearing, ‘Thank you for helping me get my life back on track’ (Taylor 2016, p. 25).

In contrast to the broad and community-based approach to treatment taken by community courts, drug courts focus specifically on providing drug treatment. In the words of Judge Peggy Hora, drug treatment is “painful and difficult.” Because of this, drug courts start with external changes as their goal, but ultimately aim for internal change. This means appropriately matching participants with evidence-based treatment and using neutral language that assists, supports, and encourages participants along the way. Because relapse is such a common feature of recovery, drug courts focus on keeping people in appropriate treatment as long as necessary for them to eventually graduate from the program (P. Hora, personal communication, October 16, 2020).

Drug court treatments have become increasingly evidence-based since the 1990s due to a growing movement toward performance measurement in the non-profit sector:

The emergence of drug courts as a reform of courts’ traditional practice of treating drug-addicted offenders in a strictly criminal fashion coincided with renewed interest in performance measurement for public organisations. The argument for measuring the performance of drug courts is compelling because they are a recent reform that must compete with existing priorities of the judicial system for a limited amount of resources. This makes it incumbent upon drug courts to demonstrate that the limited resources provided to them are used efficiently and that this expenditure of resources produces the desired outcomes in participants (Rubio et al. 2008, p. 1).

This movement was further strengthened by the development of a cutting edge performance measurement methodology known as the “balanced scorecard.” Created for the business sector, the balanced scorecard method aims to go beyond traditional measures of success and get a more balanced picture of performance by incorporating multiple perspectives. This method was adapted to create CourTools, a set of ten performance measures designed to evaluate a small set of key functions of trial courts (Ibid. p. 2). 

Because “the nature of addiction and the realities of substance use treatment require extended times to disposition for drug court participants,” many of the performance measures developed for conventional trial courts (such as reduced time to disposition) are not directly applicable to drug courts. However, the increased application of performance measurement to courts and the creation of CourTools in particular helped make way for the development of the first set of nationally recommended performance measures for Adult Drug Courts in 2004 (Ibid. p. 4).

Developed by a leading group of scholars and researchers brought together by the National Drug Court Institute (NDCI) and published for the first time in 2006, these included four key measures of drug court performance: retention; sobriety, in-program recidivism; and units of service (Ibid. p. 5).

Retention refers to the amount of time drug court participants remain in treatment. “Longer retention not only indicates success in treatment but also predicts future success in the form of lower post treatment drug use and re-offending”  (Ibid. p. 5). Sobriety – both during and after treatment –  is another important goal of drug courts. “As the participant proceeds through the program, a trend of decreasing frequency of failed [drug] tests should occur. Research has shown that increasing amounts of time between relapses is associated with continued reductions in [drug] use” (Rubio et al. 2008, p. 5). In-program recidivism is the rate at which drug court participants are re-arrested during the course of their participation. This is expected to be lowered through a combination of “judicial supervision, treatment, and rewards and sanctions” unique to drug courts (Ibid. p.5; US Government and Accountability Office, 2005). Finally, units of service refers to the dosages in which drug court treatment services – including, but not limited to substance use treatment – are delivered. These are usually measured in terms of days or sessions of service provided (Rubio et al. 2008, p. 5).

Since their development, these four measures of drug court performance have been actively promoted by leading technical assistance providers like the Center for Court Innovation (CCI) and the National Center for State Courts (NCSC) (Ibid. p. 6). They have since been adopted and adapted by a number of states across the US. The NCSC facilitates this process, but decisions about what specifically to measure are made by the advisory committee convened by the state-level agency responsible for drug courts (Ibid). Additional performance measures used by some states relate to, for example: accountability, social functioning, processing, interaction with other agencies, compliance with quality standards, and  juvenile drug court measures, family drug court measures, and domestic violence drug court measures (Ibid. p. 10).

In 2007, the NCSC surveyed statewide drug court coordinators from across the country about their use of state-level performance measurement systems (SPMS). Out of 45 states that completed the surveys, 58% were using a SPMS in their drug courts. Most of these were adult drug courts (Ibid. p. 14). Although the frequency with which these states reported performance measurement data varied from quarterly to annually, the majority did provide data to a central agency (Ibid. p. 15). 

The development and widespread use of SPMS have helped drug courts deliver treatments that are increasingly evidence-based in the sense of consistently delivering the outcomes that their participants need. However, the NCSC survey found that the state-level performance measures used were not entirely balanced in that they typically focused more on the effectiveness of drug courts than their efficiency, productivity, or procedural satisfaction (Ibid. p. 20). The NCSC therefore recommended that a more balanced, national and uniform set of drug court performance measures be developed to measure performance more holistically and facilitate comparisons of performance across states (Ibid. p. 18).

How and to what extent have problem-solving courts used outcome-based monitoring (discussed in the previous section) to continuously improve these interventions and replace interventions that have proven ineffective?

Because of their problem-solving orientation and focus on outcomes, problem-solving courts are by their nature adaptive and capable of developing new treatment modalities to meet different kinds of needs. As Brett Taylor, Senior Advisor for Problem-Solving at the Center for Court Innovation put it, “the problem-solving court environment creates a space in which there is more room for creativity. If you were to redesign the justice system now, there wouldn’t be only courts you could go to, there would be different justice mechanisms and modalities available to treat different levels of issues. Perhaps that is why new modalities develop within problem-solving courts” (B. Taylor, personal communication, October 19, 2020).

A clear example of this creative and outcomes-based approach to improvement was the way the problem-solving dialogue process developed at the Neighbourhood Justice Center (NJC) was adapted over time to meet changing demands in the community. As Jay Jordens, a Neighbourhood Justice Office at the NJC who introduced the process explains: “different problems would arise that would demand a re-design of the court’s approach” (J. Jordens, personal communication, October 19, 2020).

For example, the NJC began to notice that people responsible for family violence were participating in problem-solving dialogues without sharing this part of their history. In response, the NJC developed a tailored problem-solving process for people who were respondents to a family violence order in which this part of their past would be addressed from the start. The NJC also began facilitating support meetings for victims of family violence, including for example parents who were being mistreated by their children. The process was designed to solicit feedback about the new approach after victims had tried it. Eventually, it earned the support of the police in the community because it consistently delivered outcomes for a unique population (Ibid).

A second adaptation of the problem-solving process at the NJC was made when court staff noticed that many young people were opting out. Many of the court-involved young people in the Collingwood community were refugees from South Sudan who were experiencing the effects of intergenerational trauma. Realising that the process as it was originally imagined was too interrogative for this population, the NJC began holding circles with the young person, their mother, and one or two support workers. A facilitator would begin by asking humanising questions of everyone in the circle. Although the young person would often pass when it was their turn to speak, participating in the circle gave them an opportunity to listen, relax, and improve their relationships with the adults sitting in the circle with them. These problem-solving circles were designed to prioritise safety concerns and would often result in an agreement among the participants to get external support and/or attend family therapy.

Jay Jordens notes that such adaptations were possible in spite of, not because of, an operational framework of specialisation within the court that made collaboration a choice rather than an expectation among Centre staff. “We aren’t there yet where these processes are intuitive,” he explained, “we still need to actively facilitate them” (Ibid).

Because of their systematic approach to outcomes monitoring and performance measurement, drug courts have made a number of improvements to the treatment they provide as well. First and foremost, they have learned to avoid net widening: “the process of administrative or practical changes that result in a greater number of individuals being controlled by the criminal justice system” (Leone n.d.).

Specifically, drug courts have learned that putting the wrong people in the wrong places results in bad outcomes. An example of this is cherry picking the easiest cases for drug treatment: a common practice among drug courts in the early years of their development that later proved to be harmful. Evidence has shown that drug courts are most effective when they focus on treating high-risk, high-needs participants who are most likely to reoffend (P. Hora, personal communication, October 16, 2020). Cherry picking low-risk cases in order to inflate measures of success means putting them in more intensive treatment than they need and failing to appropriately match treatments with risk. Over time, this entraps people in the criminal justice system unnecessarily and reduces drug courts’ potential to meaningfully reduce crime (B. Taylor, personal communication, October 19, 2020).

Cherry picking low-risk cases for drug treatment has also resulted in racially biased outcomes. Because of the ways racial bias is embedded in the American criminal justice system, young white defendants have historically been more likely to be assessed as low-risk and eligible for specialised treatment than participants of colour. Participants of colour who were selected for drug court programming also tended to flunk out or leave voluntarily at higher rates than white participants.

In response to these trends, drug courts developed a toolkit on equity and inclusivity to examine the data and understand why this was happening. They introduced HEAT (Habilitation Empowerment Accountability Therapy), a new drug treatment modality geared towards young black men which was recently evaluated with very positive results. They have also worked harder generally to ensure that treatments are culturally appropriate for the different populations they serve.

Drug courts have also become more sophisticated at treating different kinds of drug addiction. The Matrix Model, for example, was developed to engage a particularly difficult population – stimulant (methamphetamine and cocaine) users – in treatment. Previously considered “untreatable” by many drug courts, stimulant users treated using the Matrix Model have shown statistically significant reductions in drug and alcohol use, risky sexual behaviors associated with HIV transmission, and improved psychological well-being in a number of studies (P. Hora, personal communication, October 16, 2020; National Institute of Drug Abuse 2020).

Drug court judges who once took a “blaming and shaming” approach have shifted towards a more people-centred one, as evidenced by changes in the language used to describe participants. In response to research in the medical sector demonstrating that people who are described as addicts receive lower quality care and fewer prescriptions, drug courts have increasingly replaced the term “addiction” with “substance use disorder” (P. Hora, personal communication, October 16, 2020).

In line with this shift, attitudes towards medically assisted drug treatment have also changed dramatically over the years. Whereas most drug courts previously did not allow the use of methadone in treatment, the field has now clearly adopted medically assisted treatment after finding that it was consistent with improved graduation rates, among other outcomes. Though not universally accepted, it is now considered a best practice supported by decades of research (Ibid).

On a more systematic level, a 2007 analysis of performance measurement data collected by the state of Wyoming provides an example of how drug courts have started to use this data to improve the quality of their treatments and overall impact. Based on results related to the key measures of drug court performance introduced in the previous section – retention, sobriety, in-program recidivism and units of service – the NCSC made a number of programmatic recommendations for drug courts across the state. First, they suggested that drug courts aim to support participants’ education and employment-related needs, as both attainment of a diploma and employment at admission to treatment were associated with increased graduation rates. They also recommended that additional resources be made available for young participants of colour, who were found to have higher rates of positive drug tests and recidivism than young white participants (Rubio et al. 2008, p. 17).

Innovations + Delivery Models

How and to what extent have problem-solving courts scaled their people-centered service delivery model to deliver justice outcomes for a larger population.

Many problem-solving courts across the US continue to start in the way the first problem-solving courts did: with judges deciding to do things differently. With that said, the proliferation of problem-solving courts across the country can be traced to three primary factors: science and research; technical assistance; and changes in legal education.

Research has helped bring problem-solving courts to scale by showing that the problem-solving approach to justice, if properly implemented, can be effective. Research on procedural justice and advancements in understanding of the science of addiction have been particularly important in this respect. Increased awareness of major studies in these areas have helped the field shift towards evidence-based working and helped legal professionals learn from past mistakes. More and more judges realise that relapse is part of recovery, and that mandated treatment within a drug court structure delivers positive outcomes for participants (B. Taylor, personal communication, October 19, 2020).

Once a number of problem-solving courts had been established around the country, technical assistance providers emerged to help them take a data-driven approach. This means working with communities to look at the numbers and identify the biggest crime problems they are struggling with and introducing a problem-solving court that is responsive to those issues. It also means using screening and needs assessment tools to make informed sentencing decisions and match participants to appropriate treatments. Technical assistance has helped problem-solving courts increase their impact and effectiveness and over time deliver outcomes for larger populations (Ibid).

As problem-solving courts like the Red Hook Community Justice Center have become better known, law students and young legal professionals have become more aware of and enthusiastic about problem-solving justice as an alternative to adversarial ways of working (Ibid). This represents a significant shift from the early days of problem-solving courts, when judges and lawyers alike were reluctant to embrace non-conventional conceptions of their roles as legal professionals. Prosecutors called problem-solving courts “hug-a-thug” programs. Defence attorneys resisted the idea of a court being a cure-all for their clients. Judges insisted that they “weren’t social workers” and shouldn’t be doing this kind of work (P. Hora, personal communication, October 16, 2020). Service providers were concerned too: they feared that involving the justice system in treatment would ruin their client relationships.

Over time, judges have come to see that their roles could expand without violating something sacrosanct about being a judge. In 2000, the Conference of Chief Justices and Conference of State Court Administrators adopted a resolution supporting the use of therapeutic justice principles. Since then, experience presiding over a drug court has come to be seen as a positive in judicial elections (Ibid).

Despite early concerns that problem-solving courts were “soft on crime,” prosecutors and defense attorneys have largely come on board as well. Research has demonstrated that when problem-solving courts acknowledge their gaps in knowledge and defer to service providers for clinical expertise, they can be successful in supporting treatment. As a result of advances in research, the emergence of problem-solving technical assistance, and important cultural shifts, drug and mental health courts are now widely recognised as appropriate and welcome additions to the field (Ibid). This acceptance has facilitated their spread nationally and as far as Australia and New Zealand.

Court numbers are not the only relevant measure for evaluating the extent to which problem-solving courts have successfully scaled, however. In addition to horizontal scaling of courts across the country, vertical integration of problem-solving principles and practices within particular jurisdictions is an important indicator of problem-solving courts’ spread and influence (J. Lang, personal communication, October 28, 2020).

As explained in the introduction, the principles and practices of problem-solving justice can be and are increasingly applied by traditional justice actors and in existing, non-specialised courts. Police departments across the country are learning that they can divert defendants to treatment from the get-go, without necessarily waiting for a case to be processed through the courts (Ibid). A prominent example of police-led diversion is LEAD (Law Enforcement Assisted Diversion) in Seattle, “a collaborative community safety effort that offers law enforcement a credible alternative to booking people into jail for criminal activity that stems from unmet behavioural needs or poverty” (Law Enforcement Assisted Diversion, n.d.). The Seattle LEAD model was externally evaluated and found to deliver a range of positive outcomes for individuals with justice system involvement and the community (LEAD National Support Bureau n.d.-a). The model has been replicated successfully and is now operating in over thirty-nine counties in the US (LEAD National Support Bureau n.d.-b).

Cases that do reach court are also increasingly diverted outside of it. Prosecutors and judges who are not operating within a problem-solving court can nevertheless apply problem-solving principles by linking defendants to services and making use of alternative sentences in lieu of jail time. This “problem-solving orientation” has allowed problem-solving justice to be applied in more instances and settings without necessarily setting up new problem-solving courts. One indication that problem-solving courts have already scaled “horizontally” in the US – and that this “vertical” scaling is the latest trend – is the fact that the US government’s drug courts funding solicitation in 2020 no longer includes a category for the creation of a new drug court (J. Lang, personal communication, October 28, 2020).

Evidence of this trend towards vertical scaling can be found as far away as Australia. As a specific alternative to horizontal replication, the Neighbourhood Justice Centre (NJC) has developed resources to support judges at the Melbourne Magistrates Court to adopt a problem-solving approach to their work. Over time, this court has become a “laboratory of experimentation” for problem-solving principles and practices as well as other complementary technologies (i.e. therapeutic or procedural justice approaches)  that need to be tested before broader roll-out. In a similar vein, New York City’s courts have carried the innovative principles and practices of community courts into centralised courthouses in Brooklyn and the Bronx rather than creating more Red Hooks (Ibid).

How and to what extent have problem-solving courts funded their service delivery model in a sustainable way?

Drug courts have been successful in obtaining large and sustainable streams of federal funding due to the strong research partnerships they developed from the start. Early data collection and evaluation persuaded funders that the problem-solving approach would deliver positive outcomes and save money by reducing incarceration costs. The fact that Florida Attorney General  Janet Reno – who set up the nation’s first drug court in 1989 – worked with Assistant Public Defender Hugh Rodham (7) in Miami Dade County also helped make drug courts a success and capture the attention of the federal government early on.

Importantly, federal funding for drug courts was often conditional upon their participation in rigorous evaluations. This demonstrated the effectiveness of the drug court model in a way that may not have been possible had the drug courts had to fund the research themselves, and justified their continued funding (P. Hora, personal communication, October 16, 2020). In recent years, states and counties have become a significant source of funding for drug courts as well  (J. Lang, personal communication, October 28, 2020).

Although the federal government has also helped fund other types of problem-solving courts, drug courts are by far the most sustainably funded. Only recently has the government made it possible for community courts to apply for direct funding, or indirect funding as subgrantees of the Center for Court Innovation. The long-term funding for many community courts is provided by local municipalities (Ibid). Funding community courts is a unique challenge because in addition to standard line items like project director and case worker salaries, they must find a way to cover less conventional expenses support for community volunteers and circle participants (often in the form of food, which the government is not willing to fund) (B. Taylor, personal communication, October 19, 2020).

Direct federal funding for other kinds of problem-solving courts is very limited. What funding has been made available to them has gone primarily towards research and the establishment of state-level coordinators and problem-solving court infrastructure. This has helped to increase awareness of the problem-solving principles and practices at the state level and encouraged their application in different areas (P. Hora, personal communication, October 16, 2020).

Private foundations have supported various aspects of problem-solving justice initiatives in certain parts of the country, but have not yet committed to doing so in a sustained way (J. Lang, personal communication, October 28, 2020).

To what extent have problem-solving courts leveraged the following sustainable financing strategies: public-private partnerships and smart (user) contributions?

Community courts in New York – including the Red Hook Community Justice Center and the Midtown Community Court – have benefitted from public-private partnerships to the extent that their planning and operations have been led by the Center for Court Innovation, a public-private partnership between the New York court system and an NGO. Over the years, these courts have also partnered with local “business improvement districts” to supervise community service mandates and offer employment opportunities to program graduates (Ibid).

Some treatment courts do also charge a nominal participant fee, which can range from $5-$20 per week (Wallace 2019). These user contributions can be used for grant matching, among other things. Charging people for their participation in problem-solving programming is generally not regarded as good practice, however (J. Lang, personal communication, October 28, 2020).

More broadly, problem-solving courts and community courts in particular can be said to be financially sustainable in that they often save taxpayer money (Wallace 2019). Although it takes time to realise the benefits of the upfront costs of creating and running a drug court for example, research has demonstrated that once established, the associated cost savings range from more than $4,000-$12,000 per participant (Office of National Drug Court Policy 2011). The Red Hook Community Justice Center alone was estimated to have saved local taxpayers $15 million per year (primarily) in victimisation costs that were avoided as a result of reduced recidivism (Halsey and de Vel-Palumbo 2018). The cost savings associated with problem-solving courts have helped them to continue to be competitive applicants for federal, state and local, and sometimes private grant funding over the years and in spite of changing political winds (Wallace 2019).

• Enabling environment

How and to what extent have regulatory and financial systems created/enabled by the government supported problem-solving courts and made it possible for this service/activity to scale?

Most if not all states in the US have allowed drug courts to become part of state legislation, which makes possible their continued operation (P. Hora, personal communication, October 16, 2020).

How and to what extent have the outcomes-based, people-centered services delivered by problem-solving courts been allowed to become the default procedure?

Problem-solving courts have not been allowed to become the default procedure in that adversarial courts and procedures remain the standard way of responding to crime in the US. In the words of Judge Hora, “There is no question that the number of people served is growing, but this remains only a drop in the bucket. For every person served there are 6-7 who aren’t” (Ibid). However, the expanding presence of problem-solving courts has helped the justice sector shift away from the excessively punitive state sentencing laws and tough-on-crime rhetoric of the late 1980s towards a more restorative and evidence-based way of working (B. Taylor, personal communication, October 5, 2020).

Problem-solving courts have enabled cultural change by demonstrating to lawyers and judges that defendants do better when they are able to access treatment, while at the same time allowing these traditional legal players to act as intermediaries and retain a gatekeeping role. As discussed in previous sections, police, prosecutors, and judges alike have grown increasingly comfortable with diverting cases from the adversarial track to community-based treatment (Ibid).

It is a paradox that the US has developed and spread the problem-solving courts model as the country with the highest incarceration rates in the world. Former Senior Advisor of Training and Technical Assistance at the Center for Court Innovation, Julius Lang, speculates that this punitive backdrop is what has allowed alternatives to incarceration to flourish in the US and become so highly developed. At the same time, countries with lower baseline penalties that have set up problem-solving courts, such as Canada and Australia, have developed creative means of engaging defendants who need treatment since there is less of a threat of incarceration (J. Lang, personal communication, October 28, 2020).

How and to what extent have problem-solving courts stimulated (or benefitted from) investment into justice research and development?

Problem-solving courts have both stimulated and benefited from investment into justice research and development. As discussed in the previous sections, the success of problem-solving courts in the US can be attributed in large part to their strong research partnerships. 

From the start, “problem-solving courts always took responsibility for their own research and their own outcomes” (Ibid). Problem-solving justice initiatives run by the Center for Court Innovation, for example, always worked directly with researchers. This produced a huge amount of evaluation literature, which was important for securing the buy-in and funding necessary to continue operating (B. Taylor, personal communication, October 14, 2020). 

The fact that federal funding has incentivised high-quality evaluations has also gone a long way to build a foundation of evidence demonstrating drug courts’ effectiveness (P. Hora, personal communication, October 16, 2020).

Leadership + Pathways

How and to what extent have justice sector leaders’ skills and collaborations enabled/hindered problem-solving courts to increase access to justice by delivering the outcomes people need at scale.

Strong leadership has been essential to problem-solving courts’ ability to deliver the treatment outcomes people need at scale. Without the leadership of visionary judges and other leaders aiming to do things differently, they would never have come into existence in the first place. 

Because of the tendency to maintain the status quo, individual problem-solving courts also rarely get off the ground without a strong champion. The reason for this can be traced to problem-solving principles and practices themselves: the goal is not to force people to change, but to make them change because they want to. In the same way, effective leaders can persuade system actors that problem-solving justice is the way to achieve common goals (B. Taylor, personal communication, October 14, 2020).

Community courts in particular require strong leadership. This can sometimes pose problems for the courts’ long-term stability. For example, a community court in North Liverpool was championed by prominent national politicians. Their leadership was important for the court’s establishment and initial funding, but changes in national leadership and the lack of local support were major factors in the court’s ultimate closure (J. Lang, personal communication, October 28, 2020).

As mentioned above, community courts may struggle when their early champions move on. To avoid this and prepare for the eventual departure of the personalities who are driving change, it is important to put the courts’ internal ways of working into writing. As previously discussed, it is also necessary to obtain evidence that the court’s approach works, as this is a more important driver of funding than good leadership in the long-run (B. Taylor, personal communication, October 5, 2020).

Mid-level leadership within problem-solving courts also matters. Since staff are often employed and supervised by various partner agencies – rather than the director of the project as a whole – it is particularly important that they be selected with care, trained in the project’s mission, policies and practices, and incentivised to work as part of a single team (J. Jordens, personal communication, October 19, 2020).

How and to what extent have problem-solving courts contributed to/benefited from new high-level strategies or pathways towards people-centred justice in the US?

High-level strategies at the state level and in the form of technical assistance have benefitted problem-solving courts significantly by facilitating their replication. This is particularly true of drug courts, for which state-wide coordination mechanisms were set up at an early stage.

Recognising that substance use disorder was a major problem, and persuaded by the same research as federal legislators, state officials began to set up mechanisms that would allow them to receive federal drug court funding. This also allowed them to strategise about which counties would most benefit from drug courts (or other problem-solving courts), and which standards to impose. 

Together, state-wide coordination mechanisms created an infrastructure for the improvement and replication of drug courts nationwide, and made it easier to apply problem-solving practices and principles in new settings. Whereas trainings on brain science and what’s working in treatment used to be reserved for drug court judges, there are now few states that do not include them in judicial training for all new judges. The same can be said for trainings for prosecutors, defence attorneys, and service providers (P. Hora, personal communication, October 16, 2020).

The emergence of technical assistance providers specialising in problem-solving justice such as the Center for Court Innovation, Justice System Partners, the National Center for State Courts, and the Justice Management Institute have also helped problem-solving courts to coordinate and replicate in strategic ways. By developing listservs and organising conferences, these organisations have enabled people in various problem-solving courts to support each other across state and international lines. Over time, these efforts have created shared principles and legitimacy around the movement for problem-solving justice (J. Lang, personal communication, October 28, 2020).

To what extent have problem-solving courts contributed to/played a role in a broader paradigm shift towards people-centered justice?

As mentioned in the introduction, a fifth key feature of the problem-solving orientation is system change. By educating justice system stakeholders about the nature of behavioural problems that often underlie crime and aiming to reach the maximum number of cases within a given jurisdiction, problem-solving courts seek to make broader impact within the justice system and community (Porter, Rempel and Mansky 2010, p. 32-33).

Since the first drug court was set up in 1989, legal professionals have become increasingly aware that many people with social problems end up in the justice system: a system that was never intended to address those problems. Problem-solving courts have contributed to a broader paradigm shift towards people-centred justice to the extent that they have helped these professionals:

• Acknowledge this issue;
• Recognise that lawyers are not equipped to deal with this issue (American law schools do not prepare them to);
• Connect with service providers in the community;
• Leverage the coercive power of the justice system in a positive way;
• Encourage success in treatment programs using procedural justice.

By taking a collaborative approach to decision-making, delivering individualised justice for each participant while at the same time holding them accountable, educating staff, engaging the broader community, and working to produce better outcomes for people, problem-solving courts have demonstrated what people-centred criminal justice can look like in the US and around the world.

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(1) Methadone is a synthetic opioid used to treat opioid dependence. Taking a daily dose of methadone in the form of a liquid or pill helps to reduce the cravings and withdrawal symptoms of opioid dependent individuals.

(2) “A screening tool is a set of questions designed to evaluate an offender’s risks and needs fairly quickly…An assessment tool is a more thorough set of questions administered before an offender is matched to a particular course of treatment or service.” Taylor 2016, p. 7.

(3) “The main monitoring tool community courts use is compliance hearings, in which participants are periodically required to return to court to provide updates on their compliance.” Taylor, 2016, p. 9.

(4) “Community courts have promoted the use of technology to improve decision-making. Technology planners created a special information system for the Midtown Community Court to make it easy for the judge and court staff to track defendants…Information that’s reliable, relevant, and up-to-date is essential for judges to make the wisest decisions they can.” Taylor 2016, p. 12-13.

(5) In community courts, “judges often speak directly to the offender, asking questions, offering advice, issuing reprimands, and doling out encouragement. This reflects an approach known as procedural justice…Its key components, according to Yale Professor Tom Tyler, are voice, respect, trust/neutrality, and understanding.” Taylor 2016, p. 15.

(6) “Community courts emphasize working collaboratively with the community, arguing that the justice system is stronger, fairer, and more effective when the community is invested in what happens inside the courthouse.” Taylor 2016, p. 22.

(7) Hugh Rodham was the brother of Hillary Clinton, who would become the First Lady a few years later.

View References

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Brett Taylor. (2016). Lessons from Community Courts: Strategies on Criminal Justice Reform from a Defense Attorney . Center for Court Innovation, p. 3.

Cheryl Wright, (n.d.). Tackling Problem-Solving Issues Across the Country . National Center for State Courts (NCSC).

Cynthia Lee, Fred Cheesman, David Rottman, Rachael Swaner, Suvi Lambson, Michael Rempel and Ric Curtis. (2013). A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center . National Center for State Courts, Center for Court Innovation, p.1.

David Wallace. (2019). Treatment Court: Is Yours Sustainable? (Part Four) . Justice Speakers Institute.

David Wallace. (2019). Treatment Court: Is Yours Sustainable? (Part One) . Justice Speakers Institute.  

Dawn Marie Rubio, Fred Cheesman and William Federspiel. (2008). Performance Measurement of Drug Courts: The State of the Art . National Center for State Courts, Volume 6, p. 1.

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Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 14, 2020.

Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 16, 2020.

Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 19, 2020.

Interview with Jay Jordens, Education Program Manager – Therapeutic Justice, Judicial College of Victoria, October 19, 2020.

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Law Enforcement Assisted Diversion (LEAD) , King County.

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Mark Halsey and Melissa de Vel-Palumbo. (2018). Courts As Empathetic Spaces: Reflections on the Melbourne Neighbourhood Justice Centre . Griffith Law Review 27 (4). 

Matthew Leone, Net widening , Encyclopaedia of Crime and Punishment, SAGE Reference.

National Institute of Drug Abuse (2020). The Matrix Model (Stimulants) , Principles of Drug Addiction Treatment: A Research-Based Guide

Office of National Drug Court Policy. (2011). Drug Courts: A Smart Approach to Criminal Justice .

Rachel Porter, Michael Rempel and Adam Mansky. (2010). What Makes a Court Problem-Solving? Universal Performance Indicators for Problem-Solving Justice . Center for Court Innovation, p. 1

Red Hook Justice News. (2016).  Bridging the Gap: Youth, Community and Police . 

Sarah Matusek. (2017). Justice Center celebrates Bridging the Gap birthday . The Red Hook Star Revue. 

Sarah Murray and Harry Blagg. (2018). Reconceptualising Community Justice Centre Evaluations – Lessons from the North Liverpool Experience . Griffith Law Review 27 (2).

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US Government and Accountability Office, 2005.

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Problem-solving courts.

The last 20 years have seen the creation and proliferation of problem-solving courts. These courts are different from the traditional criminal court in that they have specialized dockets, create a collaborative relationship between traditional court actors and outside organizations, and attempt to solve social problems rather than focus only on adjudicating cases. Evaluations of these courts are mostly positive, showing reduced recidivism among some types of offenders. Continued research is needed to justify the existence and growth of problem-solving courts. (adsbygoogle = window.adsbygoogle || []).push({});

I. Introduction

Ii. the problem-solving court movement, a. history of development, b. objectives of problem-solving courts, c. why problem-solving courts are important, iii. problem-solving courts compared with traditional courts, iv. types of problem-solving courts, v. research on problem-solving courts, a. drug court evaluations, b. domestic violence court evaluations, c. mental health court evaluations, d. community court evaluations, e. evaluations of other problem-solving courts.

VI. Future Directions, Conclusion, and Bibliography

Problem-solving courts, also called specialty courts, are a fairly recent, but rapidly growing development in the American criminal court system. Problem-solving courts are specialized courts that develop expertise in particular social problems, such as addiction, domestic violence, or family dysfunction, because their caseloads consist primarily of these types of criminal cases (Dorf & Fagan, 2003). The first of them was a drug court created in Dade County, Florida, in 1989 (Jeffries, 2005). Besides drug courts, the most common types of problem-solving courts are domestic violence courts, mental health courts, and community courts (Casey & Rottman, 2005).

While not all problem-solving courts are the same, they share common elements that distinguish them from traditional courts. First, they use judicial authority to address chronic social problems. Second, they go beyond simple adjudication of cases and attempt to change the future behavior of defendants through judicial supervision of therapeutic treatment. Finally, they work collaboratively with other criminal justice agencies, community groups, and social service providers to accomplish particular social outcomes, such as low recidivism, safer family environment, and increased sobriety (Berman & Feinblatt, 2001).

Most authorities identify the creation of the first drug court in 1989 in Dade County, Florida, as the start of the problem-solving court movement (Jeffries, 2005). However, others argue that the juvenile court, first created in Chicago in 1899, was the first problem-solving court (McCoy, 2003). Progressive reformers who advocated for the creation of a separate juvenile court believed that separate courts were needed to more effectively address the problem of juvenile crime. Parallels can be drawn between modern problemsolving courts and the juvenile court in that both shifted the focus away from just punishment to attempting to address the individual needs of the offender and that both relied on the services and expertise of social service agencies (Berman & Feinblatt, 2005).

Berman and Feinblatt (2005) have argued, instead, that problem-solving courts came about in a spontaneous manner, without any type of centralized planning or leadership. While they agree that problem-solving courts borrowed from the juvenile court, other disciplines and movements were tapped as well, including alternative dispute resolution, the victims’ movement, therapeutic jurisprudence, and the problem-solving and “broken windows” reforms in policing (Berman & Feinblatt, 2005).

Problem-solving courts have drawn from both the successes and the weaknesses of alternative dispute resolution programs. Interest in mediation and other alternative dispute resolution programs stemmed from a desire to remove low-level crimes and disputes from an overworked court system. Advocates also championed the informal aspects of mediation that generally led to an agreement favored by both parties. One weakness of mediation is that participation is usually voluntary and parties that are not satisfied with an outcome can continue the fight in a different forum. Thus, a key difference between problemsolving courts and mediation or other alternative dispute resolution programs is the reliance on formal court operations and systems to determine outcomes (Berman & Feinblatt, 2005).

Problem-solving justice has incorporated many of the successes and values of both the victims’ rights movement and therapeutic justice. Domestic violence courts in particular focus on the needs of crime victims and involve victim advocacy organizations in decision making. The belief that particular communities can also be “victims” of criminal behavior was a major reason for the creation of community courts. Community courts ask for and receive much input from communities regarding the impact of public order crimes. While not a perfect example of therapeutic jurisprudence, problem-solving courts use the law and courts to address the physical and psychological needs of offenders through court-mandated and -monitored treatment (Berman & Feinblatt, 2005).

Other powerful influences over the creation of problemsolving courts were two recent reforms in policing, namely broken windows and problem-solving policing. Broken windows was a term introduced by J. Q. Wilson and Kelling in an article published in 1982 in Atlantic Monthly. Wilson and Kelling advocated changing the focus of policing from strict law enforcement to more order maintenance. They argued that overall crime levels could be decreased by concentrating on reducing low-level crimes such as vandalism and public intoxication.

Problem-solving policing was introduced by Goldstein in a 1979 article in Crime & Delinquency. Goldstein argued for a more deliberate inquiry into the underlying causes of and solutions to crime using resources within the community. Problem-solving courts also utilize community resources to identify and attempt to solve the underlying causes of crime. Community courts, in particular, also focus on combating low-level public order crimes with mostly community service sentences. Another link between problem-solving courts and recent reforms in policing is the focus on achieving real outcomes rather than simply case processing (Berman & Feinblatt, 2005).

A major impetus for the problem-solving court movement is dissatisfaction with the traditional criminal court. This is particularly true with regards to the handling of low-level criminal offenders. While the public and the media focus more on the sensationalism of violent crimes, the criminal courts are bogged down with mostly misdemeanor crimes that rarely capture the attention of either the public or the media. Judges have expressed concern over the limited options available for the low-level drug user or public order offender (Berman & Feinblatt, 2005). Communities and victims are weary and frustrated over the apparent “revolving door” of justice through which minor criminal offenders are arrested, tried, sentenced to a few days or weeks in jail, and returned to the community to offend again.

A main objective of problem-solving courts is to go beyond mere case processing by attempting to address the needs of offenders, victims, and the community. The frustration with the state of misdemeanor justice in the traditional criminal courts and a desire to change the actions of criminals, improve the safety of victims, and enhance the quality of life in residential communities are the main forces behind problem-solving courts (Berman & Feinblatt, 2005).

Problem-solving courts attempt to change criminal behavior through court-ordered and -monitored treatment and more accountability in sentencing. Drug courts require substance abuse treatment as a condition of participation in the court. While drug treatment has long been used in sentencing by traditional criminal courts, the increased involvement by the judge in monitoring progress and compliance is a key component of drug treatment courts.

Community courts primarily deal with low-level public order offenders who have traditionally been sentenced to jail time or fines that seem to hold no deterrent effect. Judges in community courts are more likely now to sentence prostitutes, panhandlers, vandals, and other public order offenders to immediate sentences of visible community service (Berman & Feinblatt, 2005). In addition to these community service sentences, substance abuse treatment, employment counseling, housing assistance, and other services are typically available to assist the offender in overcoming some of the underlying causes of crime.

Addressing the needs of the victim is another objective of some problem-solving courts. This is particularly true with domestic violence courts. Ensuring the safety of victims of domestic violence is paramount in these courts. Judges presiding in domestic violence courts regularly issue restraining orders preventing offenders from having contact with their victims. Victims typically are brought to the court to make contact with victim services personnel so that they can receive other services such as counseling and safe shelter. In fact, some would argue that because domestic violence courts place the safety needs of the victim over the treatment needs of the offender, these courts are different from most other problem-solving courts and probably should not be identified with them (Casey & Rottman, 2005).

Enhancing the quality of life in residential communities is a major objective of many problem-solving courts, in particular community courts. Considering that the community is the “victim” of many public order crimes, community courts draw from the resources in the community to identify and then address ways in which communities suffer from these crimes. Residents are surveyed to identify levels of fear and concern over community crime.With this information, community leaders including court personnel, law enforcement, and business owners can work with residents to combat crime and address other concerns. Much of the work to improve the appearance of the community is done either by volunteers or by offenders sentenced to community service (Berman & Fox, 2005).

Problem-solving courts are important because they attempt to address the deficiencies of the traditional criminal courts. The traditional criminal court may do a good job handling more serious violent offenders where incarceration is the expected and usual outcome. However, the effective handling of minor offenders requires something more than short periods of incarceration. Other defendants, such as drug users and mentally ill offenders, would seem to benefit more in the long run from mandated treatment rather than punishment alone. The deficiencies of the traditional court in handling the specific needs of victims and particular communities give reason to expect more from the judicial system that some problem-solving courts are better suited to provide. Ultimately, the measured effectiveness of problem-solving courts to adequately address these needs will determine how important they are.

A. Collaboration

Judges and attorneys working in problem-solving courts invite in and are more likely to work with those not traditionally connected with the courtroom work group. Problem-solving judges and attorneys collaborate with social service workers such as treatment providers, victim advocates, or employment services personnel (Wolf, 2007). Officials in drug courts depend on drug treatment providers to provide treatment to their offenders as well as information on the progress of these participants. Court officials in domestic violence courts work closely with victim services providers as well as treatment providers, as they not only try to treat offenders, but also protect victims and provide them other needed services. Similarly, judges and attorneys in mental health courts work closely with service providers to ensure mentally ill offenders receive the treatment they need. Officials in community courts likely share building space with a variety of service providers that assist offenders as well as community members in areas such as employment assistance, medical care, child care, counseling, and education (Berman & Fox, 2005).

Judges in traditional criminal courts usually turn over custody and supervision of offenders to community supervision or probation departments. These judges typically do not monitor supervision of sentenced offenders unless they are brought back to court for revocation proceedings. Judges in problem-solving courts more closely monitor the progress of offenders and thus have more contact and communication with other criminal justice officials such as probation or parole officers (Wolf, 2007).

B. Individualized Justice

Another key characteristic of problem-solving courts is the individualized or tailored approach to justice. Offenders are sent to these courts that have specialized caseloads based on the offense the person is charged with. Drug offenders make up the caseloads of drug courts. One of the main purposes for this specialization is to better ensure that offenders receive the treatment that will help them prevent future offending (Berman & Feinblatt, 2005). Another key purpose of this court specialization is to allow for more judicial monitoring of individual cases (Wolf, 2007).

C. Accountability

More complete judicial monitoring is a key component of problem-solving courts. Where judges in more traditional criminal courts can hand off cases to other criminal justice officials, problem-solving judges retain jurisdiction and monitor offender compliance throughout treatment, community service sentences, or other sanctions (Wolf, 2007). Judges not only monitor offender compliance through reports sent in by supervision or treatment officers, but they also can have one-on-one contact with offenders through additional court appearances (Berman & Feinblatt, 2005). Offenders who violate supervision or treatment orders are quickly brought back before the judge. Judges then have the opportunity to sternly lecture, counsel, or impose additional sanctions on the offender. Judges are then in a better position to ensure that sanctions are carried out or that offenders are following through with court-ordered treatment (Wolf, 2007).

D. Better Information

A key difference between problem-solving courts and traditional criminal courts is that problem-solving courts typically have access to more information so that decision makers can make more informed decisions. Problem-solving judges typically have more complete background information on defendants, victims, and communities impacted by crime (Wolf, 2007). Judges as well as attorneys involved in problem-solving courts try to gain greater access to psychosocial information about defendants who are appearing in court (Berman & Feinblatt, 2005). Problem-solving judges also have more information about offender progress as they monitor defendants’ compliance with treatment orders. Furthermore, because of the specialized caseloads characteristic of problem-solving courts, judges, attorneys, and other professionals working in these courts gain valuable expertise and receive specialized training in specific types of offending (Wolf, 2007).

E. Focus on Outcomes

Problem-solving courts have required more in the way of gathering data and conducting research to assess effectiveness. Not content with simply processing cases, problem-solving courts identify specific outcomes that are desired and then conduct research to test whether those outcomes are achieved (Wolf, 2007). Reduced recidivism is an important outcome that is measured in evaluations of problem-solving courts. Other outcomes measured include impact on victims and communities (Berman & Feinblatt, 2005) and cost-benefit analyses (Wolf, 2007).

F. More Community Involvement

One type of problem-solving court, the community court (described further below), is particularly focused on improving community engagement. For more than symbolic reasons, community courts are located in residential urban communities rather than in downtown, commercial districts. The goal is to bring the court closer to the community it serves. Besides physical closeness, the community court also attempts to bring itself closer to the community through increased communication and collaboration with community leaders and members (Wolf, 2007). Residents can serve on advisory boards that make suggestions to court officials for new programming ideas or to inform them of community concerns or conditions. Community members also serve as volunteers in various programs or services and provide a valuable service in offering feedback in evaluations (Berman & Fox, 2005).

A. Drug Courts

Drug courts are specialized courts designed to handle mostly adult felony drug cases of nonviolent offenders who have substance abuse problems. The first drug courts were not as concerned about treatment as they were about improving the efficiency and speed of processing drug cases. These early courts were also more likely to handle less serious offenders and tended to be more like diversionary programs. Over the last decade, these courts evolved more into drug treatment courts that processed felony drug offenders and worked collaboratively with other agencies and treatment providers to ensure successful offender completion of drug treatment (Olson, Lurigio, & Albertson, 2001).

Specialized drug courts evolved from traditional courts that were unable to adjudicate and process drug offenders effectively. Traditional criminal courts failed to reduce drug offending. Traditional probation departments failed to identify and address the needs of supervised drug offenders. Drug treatment providers failed to effectively treat offenders under the traditional court referral processes (Goldkamp, 2000). Traditional sentencing practices led to the incarceration of hundreds of thousands of drug offenders on a yearly basis by 1998 (Hora, 2002).

Drug courts increased during the 1990s because of financial and political support from the federal government. Janet Reno, the U.S. Attorney General for most of the 1990s, was a key player in the formation of the first drug court in Miami in 1989. She and General Barry McCaffrey, former Director of the Office of National Drug Control Policy, supported specialized drug courts. Financial support from the Violent Crime Control and Law Enforcement Act of 1994 provided over $50 million to expand drug courts around the nation (Olson et al., 2001).

B. Domestic Violence Courts

Domestic violence courts are similar to other problem-solving courts in that they have specialized dockets and trained judges, and they engage in collaboration between court officials and other agencies and organizations in the community. However, some people hesitate to classify domestic violence courts as problem-solving courts because there are some key differences between the two. Domestic violence courts generally consider the needs of the victim as more important than the needs of the offender. In contrast to other problem-solving courts, domestic violence courts do not express optimism for the ability to treat successfully domestic violence offenders. Domestic violence courts consider victim safety and offender accountability as more important than offender treatment (Berman, Rempel, & Wolf, 2007). Interestingly, participants in domestic violence courts typically take part in classes for substance abuse, parenting, and mental health counseling. However, these are not viewed as treatment classes; rather, they serve as a monitoring tool for the court (Gavin & Puffett, 2007).

The first recognized domestic violence court was created in Dade County, Florida, in 1992 (Casey & Rottman, 2005). Other jurisdictions over time created dedicated domestic violence courts. While no precise number is given here of how many domestic violence courts exist in the United States, it is estimated that there are “many hundreds” (Gavin & Puffett, 2007).

An example of a domestic violence court is the one that was created in Salt Lake City, Utah, in February 1997. Court officials, along with police detectives, victims’ advocates, and domestic violence and battered women’s shelter counselors, worked in a collaborative effort to handle the 5,000 to 6,000 yearly domestic violence misdemeanor cases in Salt Lake County (Mirchandani, 2005).

C. Mental Health Courts

Mental health courts share characteristics of other problem-solving courts. The first such court appears to have originated in 1997 in Broward County, Florida (Boothroyd, Poythress, McGaha, & Petrila, 2003). These courts consist of specialized dockets of mentally ill offenders (Lushkin, 2001) where a team of court personnel and clinical specialists work collaboratively to address the problems of mostly nonviolent mentally ill offenders through court-ordered and -monitored treatment (Trupin & Richards, 2003).

While most mental health courts accept misdemeanor offenders only, the Brooklyn Mental Health Court, which opened in March 2002, also accepts felony offenders. Originally, this court limited participation to nonviolent felons, but later decided to accept violent felony offenders on a case-by-case basis. The Brooklyn Mental Health Court also limits participation to defendants who suffer from persistent and serious mental illness for which there is a known treatment. Participants in this court must agree to treatment mandates of 12 to 24 months depending upon prior criminal record and seriousness of offense (O’Keefe, 2007).

D. Community Courts

As mentioned above, community courts involve a collaborative effort among court officials, community leaders, and social service providers to combat social problems in a community (Casey & Rottman, 2005). However, rather than focus on one particular crime, community courts deal with a number of mostly misdemeanor public order offenses, such as prostitution, vandalism, minor assault, and criminal trespass (Malkin, 2005). Another defining characteristic is that many community courts tend to be located in residential urban communities rather than the commercial or downtown area of a city (Berman & Fox, 2005).

The first community court was the Midtown Community Court created in Manhattan, New York, in 1993. It handled minor public order offenses or “quality-of-life” crimes such as prostitution, shoplifting, drug possession, and vandalism. Themain purpose of this courtwas to not only punish but also help the offender. Offenders were punished through visible community service or restitution sentences. They received help through on-site social services such as drug treatment, job training, and counseling (Kralstein, 2007).

E. Other Specialty Courts

While drug, domestic violence, mental health, and community courts are the most recognized problem-solving courts, others involving specialized caseloads have been created in the United States and around the world. San Diego created a homeless court in 1989 (Davis, 2003). Some states operate teen or youth courts where juveniles act as the various court officials in cases involving other teens who have committed minor offenses (Acker, Hendrix, Hogan, & Kordzek, 2001). New York City created a gun court to deal with felony gun possession cases. Using a single judge and specially trained prosecutors, city officials hope that the gun court will “provide swift and certain justice to offenders who violate gun laws” (Berman & Feinblatt, 2005, p. 130). South Africa, reported to have the highest incidence of sexual assault in the world, created a sex offender court in 1993 (Walker & Louw, 2003).

Parole reentry courts are another emerging problem-solving court. A number of states have created them with the intent of addressing the problems of parolees returning to the community (Maruna & LeBel, 2003). The Harlem Parole Reentry Court was started in June 2001.This court supervises the returning parolees in Harlem, in NewYork City, who have served prison sentences for nonviolent drug felonies. This reentry court shares similar characteristics with other problem-solving courts. An administrative law judge monitors parolee compliance with parole conditions. The court implements a system of sanctions or rewards for violations or compliance. Court personnel work collaboratively with parole authorities and treatment or community service providers. These community and treatment providers assist in areas of substance abuse treatment, job training, employment, housing assistance, and family counseling (Farole, 2007).

Evaluations done on drug courts have focused on both processes and outcomes. A number of process evaluations examined the characteristics of drug court programs. Goldkamp, White, and Robinson (2001b) identified two main ways defendants entered drug court programs. Participants in some programs entered the drug court after they were arrested but before they were officially charged. If they successfully completed the program, charges were not filed and some were able to get their arrests expunged. Other programs allowed defendants to enter the drug court program only after pleading guilty to criminal charges, and they worked through the program as convicted participants. Their successful completion yielded reduced sentences.

Another process evaluation by Belenko and Dembo (2003) examined juvenile drug courts and found that they were organized in the same manner as adult drug courts. They found that critical elements of juvenile drug courts included dedicated courtrooms, judicial supervision of treatment, judicial monitoring of participant progress and compliance, collaboration between court officers and community treatment providers, and sentence reduction or case dismissal for successful completion.

Outcome evaluations done on drug courts during the 1990s showed positive results. Most drug courts reported lower recidivism among drug court participants. However, these early evaluations were criticized for failing to use control or comparison groups (Berman et al., 2007). In a review of successful crime prevention policies operating before the year 2000, MacKenzie (2006) identified drug courts as a promising crime prevention policy, but also noted the need for more positive evaluations using more robust methodologies and statistical controls.

Evaluations of drug treatment courts since 2000 have been mostly positive. Goldkamp, White, and Robinson conducted evaluations of drug courts in Portland, Oregon, and Las Vegas, Nevada. Their first study (2001a) focused on outcomes and concluded that, in general, graduates of drug courts had substantially lower rearrest rates than nongraduates for up to 2 years after entering the program. However, when they used various statistical controls, they found that the positive results for graduates were not consistent from year to year and were impacted by outside factors such as changes in political leadership.

Roman and Harrell (2001) conducted a cost-benefit analysis of a Washington, D.C., drug court program. They found a statistically significant reduction in crimes committed by drug court participants compared to nonparticipants. They found that every dollar spent on drug court programs yielded 2 dollars in crime reduction savings.

A 2003 evaluation of six New York drug courts reported significant reductions in recidivism compared to control groups. This study tracked the arrest rates of the drug court participants and the control group members for 3 years. A randomized study of the Baltimore City Treatment Court also showed significant reductions in recidivism over a period of 3 years (Berman et al., 2007).

Galloway and Drapela (2006) conducted an evaluation of a drug court in a small nonmetropolitan county in northwest Washington. They found that graduates of the drug court, when matched with a comparison group of probationers, were less likely to be rearrested. The differences in the arrest rates between the two groups were statistically significant.

O’Keefe and Rempel (2007) conducted an evaluation of the Staten Island Treatment Court in New York. They used a one-to-one matching method of drug court participants with a comparison group of defendants who did not participate in the drug court. While selection for participation was not randomized, participants were closely matched with nonparticipants according to various demographic and crime-related factors. O’Keefe and Rempel reported a 46% reduction in recidivism over 1 year for drug court participants compared to the comparison group. The 18-month rearrest rate for the participants was 25% less. The 18-month reconviction rate for the drug court participants was 44% less than that of the nonparticipants.

Recent review or meta-analysis studies have also shown reduced recidivism for drug court graduates. Belenko (2001) conducted a review of 37 published and unpublished evaluations of drug courts between 1999 and April 2001. Most of the studies reported lower recidivism for drug court participants. Three of the studies used random assignment between participation in the drug court and control groups and they all reported lower recidivism for drug court participants. D. Wilson, Mitchell, and MacKenzie (2002) conducted a review of 42 drug court evaluations and found that 37 reported lower recidivism rates for drug court participants compared to nonparticipating defendants in control groups.

A general consensus now exists that drug courts are an effective crime prevention policy. Berman et al. (2007) stated that drug courts “generally produce significant reductions in recidivism” (p. 20). Cissner and Rempel (2007) concluded that “adult drug courts significantly reduce recidivism, although the level of impact varies over time and by court” (p. 31).

There have not been many rigorous evaluations of domestic violence courts. The evaluations that have been done demonstrate encouraging results for victims and mixed results for defendants. Victims of domestic violence are more likely to receive advocacy assistance and other services from domestic violence courts. Victims have expressed more satisfaction with domestic violence courts than with traditional criminal courts. Some studies of domestic violence courts found significant reductions in case dismissal rates, increases in the percentage of defendants ordered to participate in batterer programs, and increases in jail sentences for domestic violence offenders. There have been differing results on recidivism of offenders. Some studies found lower recidivism rates, while other studies found no reduction in recidivism (Gavin & Puffett, 2007).

Mirchandani (2006) conducted an extensive review of the Salt Lake City domestic violence court and identified three procedural innovations that helped encourage offender responsibility. The first innovation was a common plea agreement where defendants received suspended sentences in exchange for agreeing to a court order to complete 26 weekly sessions of counseling. The second innovation was a three-stage review system by the court that required offenders to provide proof of their compliance and progress in counseling. Offenders were required to provide evidence of their having made contact with the counseling agency within 10 days. Furthermore, they had to provide a 30-day progress report and a 6-month completion report to the court. The third innovation used by the Salt Lake domestic violence court required that the same court personnel handle all domestic violence cases. Over time, these officials developed expertise and familiarity with all other stakeholders invo lved in trying to combat domestic violence in Salt Lake City.

Gover, Brank, and McDonald (2007) evaluated a domestic violence court in South Carolina. They found that compared with defendants processed in traditional courts, defendants processed in a domestic violence court were significantly less likely to be rearrested for domestic violence. Gover et al. conducted 50 victim and 50 defendant interviews of participants in the domestic violence court. Both groups expressed satisfaction with their experiences in the court and were generally satisfied with the outcomes of their cases.

Labriola, Rempel, and Davis (2007) conducted a randomized trial study of the different approaches used in domestic violence courts. Participant offenders were randomly assigned to different groups with some receiving batterer treatment, others receiving high levels of judicial monitoring, and others with less judicial monitoring. These various treatment groups were then matched with a comparison group of offenders who received neither batterer treatment nor judicial monitoring. The groups were tracked for 1 year after sentencing. Labriola et al. found no reduction in rearrests for those in batterer programs as well as no difference in recidivism based on the levels of judicial monitoring.

Cissner (2007) completed an evaluation of a teen domestic violence court in Brooklyn, New York. This court adjudicated domestic violence offenders who were between the ages of 16 and 19. The evaluation contained no measures of recidivism and primarily documented the challenges of implementing a teen domestic violence court. These challenges included having trouble identifying and flagging eligible cases to be referred to the teen domestic violence court, gaining full cooperation and maintaining communication with all court actors and team members, having uniform agreement on a set of clear goals and objectives, and establishing contact with teenage victims.

Because these courts are relatively new, there have been few evaluations completed (Casey & Rottman, 2005). The evaluations available have mostly focused on characteristics of offenders (Steadman, Redlich, Griffin, Petrila, & Monahan, 2005). One such evaluation of the Brooklyn Mental Health Court showed that the participants were mostly male, African American, single, and had poor work histories and education. A majority of them had previously been hospitalized for psychiatric purposes at least once in their lives. At some point in the year prior to their arrests, 15% of them had been homeless. Most of the participants had been diagnosed with bipolar disorder, schizophrenia, or major depression. Almost half of them were diagnosed with co-occurring mental illness and substance abuse disorders (O’Keefe, 2007).When asked in their 1-year interview, participants of the Brooklyn study indicated high levels of satisfaction with various aspects of their treatment. Outcome measures, done without a comparison group, showed mostly positive impacts of the court on measures of psychosocial functioning, homelessness, substance abuse, hospitalizations, service utilization, and recidivism (O’Keefe, 2007).

A few evaluations have been done of community courts. Kralstein (2007) conducted a review of seven evaluations done of four different community courts. The four courts were the Midtown Community Court in Manhattan, New York; the Red Hook Community Justice Center in Brooklyn, New York; the Hennepin County Community Court in Minneapolis, Minnesota; and the Hartford Community Court in Hartford, Connecticut. Kralstein reported that the evaluations consisted of surveys of community residents, offender interviews or focus groups, and larger-scale quantitative analysis using administrative court data.

Evaluations of both the Midtown and Hennepin courts showed that offenders were held more accountable in the community court compared to traditional courts. Offenders in the Midtown court were much more likely to receive community service or treatment sentences as compared to the more likely “time-served sentence” in the traditional Manhattan centralized court. The compliance rate for offenders was 75% in the Midtown court, which was 50% higher than the Manhattan court. Community surveys in Minneapolis showed that residents gave high marks for offender compliance with community service sentences from the Hennepin court. Community perceptions were high for both the Midtown and Hennepin courts in that majorities of citizens expressed willingness to pay more taxes to support their community courts. A high majority of residents in the Red Hook community reported positive views of their community court. Offender perceptions were mostly positive in studies done for the Midtown, Red Hook, and Hartford courts. Evaluations of the Midtown court found that prostitution arrests decreased 56% when processed through the community court. Midtown also reported a 24% reduction of illegal vending arrests and reduced arrests for offenders who had completed at least 90 days of court-mandated drug treatment.

Many of the emerging problem-solving courts have not been around long enough for many evaluations to be completed. One exception is the evaluation of the Harlem Parole Reentry Court (Farole, 2007). Farole found that the use of caseworkers in the reentry court improved communication between parole and treatment or service providers. Parolees participating in the Harlem reentry court tended to have greater access to various services to assist them in their transition. The reentry court parolees were matched with a comparison group of similar parolees who were not supervised by a reentry court. Regarding recidivism outcome measures, there was only one statistically significant difference between the two groups: The reentry court parolees had a reduced conviction rate on new nondrug offenses. However, there was no statistically significant difference between the two groups on new drug convictions or reincarceration rates.

VI. Future Directions

The types and number of problem-solving courts will continue to increase. Officials are concerned with backlogs of court cases in the traditional criminal courts. This concern, combined with the generally accepted view that problem-solving courts are successful, will fuel the growth of problem-solving courts. Although relatively new in their appearance on the scene, problem-solving courts are now located in all 50 states (Berman & Feinblatt, 2005). The types of problem-solving courts will also continue to increase. If specialized courts can be created for drug, domestic violence, and mentally ill offenders, then they can also be created for the many other types of offenders. Victims’ rights organizations, like MADD (Mothers Against Drunk Driving), are sure to call for the creation of specialized DWI or DUI courts. If society believes that specialized sex offender courts will be successful at improving public safety and increasing offender accountability, they will surely come to be created and operating in most states. Continuing good research on problem-solving courts is needed. Drug courts have been around the longest and are the most numerous of the problem-solving courts. They are also the courts that have been researched the most. Evaluations conducted in the first decade of their existence rarely used control conditions. However, more recent evaluation research has included comparison or control groups. Because of this better research, a general consensus has formed that drug courts are successful crime prevention tools. This focus on good research needs to expand to the other established and emerging problem-solving courts. Domestic violence, mental health, and community courts need to be subject to repeated evaluations using rigorous methodologies, testing whether their objectives are being met. Decisions as to the continuation of these problem-solving courts should be primarily based on the effectiveness of these courts in actually accomplishing what they were intended to.

VII. Conclusion

The last 20 years have seen the creation and proliferation of problem-solving courts. These courts are different from the traditional criminal court in that they have specialized dockets, create a collaborative relationship between traditional court actors and outside organizations, and attempt to solve social problems rather than focus only on adjudicating cases. Evaluations of these courts are mostly positive, showing reduced recidivism among some types of offenders. Continued research is needed to justify the existence and growth of problem-solving courts.

Bibliography:

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• Belenko, S. (2001). Research on drug courts: A critical review: 2001 update. New York: National Center on Addiction and Substance Abuse at Columbia University.
• Belenko, S., & Dembo, R. (2003). Treating adolescent substance abuse problems in the juvenile drug court. International Journal of Law and Psychiatry, 26, 87–110.
• Berman, G., & Feinblatt, J. (2001). Problem-solving courts: A brief primer. Law & Policy, 23, 125–140.
• Berman, G., & Feinblatt, J. (2005). Good courts: The case for problem-solving justice. New York: The New Press.
• Berman, G., & Fox, A. (2005). Justice in Red Hook. Justice System Journal, 26, 77–90.
• Berman, G., Rempel, M., & Wolf, R. V. (Eds.). (2007). Documenting results: Research on problem-solving justice. New York: Center for Court Innovation.
• Boothroyd, R. A., Poythress, N. G., McGaha, A., & Petrila, J. (2003). The Broward Mental Health Court: Process, outcomes, and service utilization. International Journal of Law and Psychiatry, 26, 55–71.
• Casey, P. M., & Rottman, D. B. (2005). Problem-solving courts: Models and trends. Justice System Journal, 26, 35–56.
• Cissner, A. (2007). Confronting teen dating violence: An evaluation of the Brooklyn Youthful Offender Domestic Violence Court. In G. Berman, M. Rempel, & R. V. Wolf (Eds.), Documenting results: Research on problem-solving justice (pp. 175–205). New York: Center for Court Innovation.
• Cissner, A. B., & Rempel, M. (2007). The state of drug court research: Moving beyond “Do they work?” In G. Berman, M. Rempel,&R.V.Wolf (Eds.),Documenting results: Research on problem-solving justice (pp. 23–50). NewYork: Center for Court Innovation.
• Davis, W. N. (2003). Special problems for specialty courts. ABA Journal, 89, 32–37.
• Dorf, M. C., & Fagan, J. (2003). Problem-solving courts: From innovation to institutionalization. American Criminal Law Review, 40, 1501–1511.
• Farole, D. J., Jr. (2007). The Harlem Parole Reentry Court: Implementation and preliminary impact. In G. Berman, M. Rempel, & R. V. Wolf (Eds.), Documenting results: Research on problem-solving justice (pp. 319–328). New York: Center for Court Innovation.
• Galloway, A. L., & Drapela, L. A. (2006). Are effective drug courts an urban phenomenon? Considering their impact on recidivism among a nonmetropolitan adult sample in Washington State. International Journal of Offender Therapy and Comparative Criminology, 50, 280–293.
• Gavin, C., & Puffett, N. K. (2007). Specialized domestic violence courts in New York City: A comparative study. In G. Berman, M. Rempel, & R. V. Wolf (Eds.), Documenting results: Research on problem-solving justice (pp. 127–161). New York: Center for Court Innovation.
• Goldkamp, J. S. (2000). The drug court response: Issues and implications for justice change. Albany Law Review, 63, 923–961.
• Goldkamp, J. S., White, M. D., & Robinson, J. B. (2001a). Context and change: The evolution of pioneering drug courts in Portland and LasVegas (1991–1998). Law & Policy, 23, 141–170.
• Goldkamp, J. S., White, M. D., & Robinson, J. B. (2001b). Do drug courts work? Getting inside the drug court black box. Journal of Drug Issues, 31, 27–72.
• Goldstein, H. (1979). Improving policing: A problem-oriented approach. Crime & Delinquency, 25, 236–258.
• Gover, A. R., Brank, E. M., & MacDonald, J. M. (2007). A specialized domestic violence court in South Carolina. Violence Against Women, 13, 603–626.
• Hora, P. F. (2002). A dozen years of drug treatment courts: Uncovering our theoretical foundation and the construction of a mainstream paradigm. Substance Use & Misuse, 37, 1469–1488.
• Jeffries, S. (2005). How justice gets done: Politics, managerialism, consumerism, and therapeutic jurisprudence. Current Issues in Criminal Justice, 17, 254–268.
• Kralstein, D. (2007). Community court research: A literature review. In G. Berman, M. Rempel, & R. V. Wolf (Eds.), Documenting results: Research on problem-solving justice (pp. 211–218). New York: Center for Court Innovation.
• Labriola,M., Rempel,M., & Davis, R. C. (2007).Testing the effectiveness of batterer programs and judicial monitoring: Results froma randomized trial in the Bronx. InG. Berman,M. Rempel, & R. V. Wolf (Eds.), Documenting results: Research on problem-solving justice (pp. 163–173). New York: Center for Court Innovation.
• Luskin, M. L. (2001). Who is diverted? Case selection for court-monitored mental health treatment. Law & Policy, 23, 217–236.
• MacKenzie, D. L., (2006). Reducing the criminal activities of known offenders and delinquents: Crime prevention in the courts and corrections. In L. W. Sherman, D. P. Farrington, B. C.Welsh,&D. L.MacKenzie (Eds.), Evidence-based crime prevention (Rev. ed., pp. 330–404). London: Routledge.
• Malkin, V. (2005). The end of welfare as we know it. Critique of Anthropology, 25, 361–388.
• Maruna, S., & LeBel, T. P. (2003). Welcome home? Examining the reentry court concept from a strengths-based perspective. Western Criminology Review, 4, 91–107.
• McCoy, C. (2003). The politics of problem-solving: An overview of the origins and development of therapeutic courts. American Criminal Law Review, 40, 1513–1534.
• Mirchandani, R. (2005). What’s so special about specialized courts? The state and social change in Salt Lake City’s domestic violence court. Law & Society Review, 39, 379–418.
• Mirchandani, R. (2006). Hitting is not manly: Domestic violence court and the re-imagination of the patriarchal state. Gender & Society, 20, 781–804.
• O’Keefe, K. (2007). The Brooklyn Mental Health Court: Implementation and outcomes. In G. Berman, M. Rempel, & R.V.Wolf (Eds.), Documenting results: Research on problemsolving justice (pp. 281–318). New York: Center for Court Innovation.
• O’Keefe, K., & Rempel, M. (2007). Evaluation of the Staten Island Treatment Court: Implementation and impacts. In G. Berman, M. Rempel, & R. V. Wolf (Eds.), Documenting results: Research on problem-solving justice (pp. 75–100). New York: Center for Court Innovation.
• Olson, D. E., Lurigio, A. J., & Albertson, S. (2001). Implementing the key components of specialized drug treatment courts: Practice and policy considerations. Law & Policy, 23, 171–196.
• Roman, J., & Harrell, A. (2001). Assessing the costs and benefits accruing to the public from a graduated sanctions program for drug-using defendants. Law & Policy, 23, 237–268.
• Steadman, H. J., Redlich,A. D., Griffin, P., Petrila, J., &Monahan, J. (2005). From referral to disposition: Case processing in seven mental health courts. Behavioral Sciences & the Law, 23, 215–226.
• Trupin, E., & Richards, H. (2003). Seattle’s mental health courts: Early indicators of effectiveness. International Journal of Law and Psychiatry, 26, 33–53.
• Walker, S. P., & Louw, D. A. (2003). The South African court for sexual offences. International Journal of Law and Psychiatry, 26, 73–85.
• Wilson, D., Mitchell, O., & MacKenzie, D. L. (2002, November). A systematic review of drug court effects on recidivism. Paper presented at the Annual Meeting of the American Society of Criminology, Chicago.
• Wilson, J. Q., & Kelling, G. (1982, March). Broken windows: The police and neighborhood safety. Atlantic Monthly, pp. 29–38.
• Wolf, R.V. (2007). Expanding the use of problem solving. Retrieved August 15, 2013, from   http://www.courtinnovation.org/sites/default/files/Expanding%20PS.pdf

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PROBLEM-SOLVING COURTS

The New York State Unified Court System serves the needs of approximately 19,750,000 people, the fourth-largest state population in the nation. Our 1,200 state judges, 2,400 town and village judges and 15,500 non-judicial employees work in over 300 state courts and 1,300 town and village courts spread throughout 62 counties in 13 judicial districts and hear 3,500,000 filings.

To meet the challenges of such a large system, more than two decades ago, the New York State Unified Court System began to establish problem-solving courts. These courts help judges and court staff to better respond to the needs of litigants and the community. Problem-solving courts look to the underlying issues that bring people into the court system, and employ innovative approaches to address those issues. Through intensive judicial monitoring, coordination with outside services, treatment where appropriate, the removal of barriers between courts and increased communication with stakeholders, these courts are able to change the way our system manages cases and responds to individuals, families and communities.

Problem-solving courts take different forms depending on the problems they are designed to address. Drug and mental health courts focus on treatment and rehabilitation. Community courts combine treatment, community responsibility, accountability, and support to both litigants and victims. Sex offense courts employ judicial monitoring and the use of mandated programs and probation to ensure compliance and facilitate access to services. Human trafficking courts center around victims and many cases are resolved without criminal charges. The Adolescent Diversion parts address the unique needs of adolescents in the criminal justice system.

The Unified Court System is committed to the administration of justice in the problem-solving courts, while enhancing public safety.

Chief of Policy and Planning

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For further information on Problem-Solving Courts or if you would like to schedule a court visit, please contact the Division of Policy and Planning at [email protected]

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Why Problem-Solving Principles Should Not Be Grafted onto Mainstream Courts

by Victor E. Flango

Problem-solving courts seek to broaden the focus of courts from simply adjudicating cases to changing the future behavior of litigants and ensuring the well-being of the communities they serve. Advocates of problem-solving courts can be justifiably proud of their accomplishments. The number and types of problem-solving courts have grown exponentially since the first drug court was established in Dade County, Fla., in 1989. 1 The movement spread rapidly on the basis of anecdotal reports of success in reducing recidivism and an infusion of federal dollars. 2 While governor of Arkansas, Bill Clinton visited the Miami drug court, and Janet Reno, his appointee as attorney general, played a major role in creating the court. 3 The George W. Bush administration also supported drug courts enthusiastically, as has the Barack Obama administration. By the end of 2009, there were 2,459 drug courts and an additional 1,189 problem-solving courts in the United States. 4 This rapid growth has been attributed to four factors: leadership, salesmanship, legislation, and federal funding. 5

Although many types of specialized problem-solving courts, from mental health courts to veteran’s courts, have been established too recently to have been evaluated for effectiveness, drug courts have passed the initial test. A recent, extensive evaluation of drug courts concluded they are effective for two primary reasons: Participants were significantly less likely to relapse back into drug use, and if they did relapse, they used fewer drugs; and participants reported significantly less family conflict. 6

Replicating Successes

Despite their success, problem-solving courts reach only a small proportion of litigants. Advocates have suggested two methods of increasing their reach: either increase the number of specialized courts or apply the core principles of problem solving courts to traditional courts. The first approach of increasing the sheer number of problem-solving courts is feasible, but expensive. Indeed, a California focus group favored that option of increasing the number of “small boutique courts” as the most practical option.

The problem-solving approach works for these specialized courts precisely because caseloads are so small that intensive attention can be focused on a relatively small number of cases. Adding a significant number of cases would change the very nature — and perhaps the secret to the success — of problem-solving courts, hence diminishing their effectiveness. Therefore, it seems increasing the number of problem-solving courts is a better way to expand their reach.

Nonetheless, demonstrated and perceived successes in the drug courts have created pressure to apply problem-solving principles in all courts, which raised fears among its advocates that this option would return specialized courts to the inconsistent practice and loss of treatment resources that caused the creation of specialized courts in the first place. Despite these fears, the Conference of Chief Justices and the Conference of State Court Administrators put their weight behind a “mainstreaming” option in a resolution passed on Aug. 3, 2000, and confirmed it by a second resolution passed on July 29, 2004. Point 4 of the original resolution calls upon state courts to:

[e]ncourage, where appropriate, the broad integration over the next decade of the principles and methods employed in the problem-solving courts into the administration of justice to improve court processes and outcomes while preserving the rule of law, enhancing judicial effectiveness, and meeting the needs and expectations of litigants, victims, and the community. 7

This resolution should be reconsidered, at least until the empirical consequences of mainstreaming can be determined. There also is a more theoretical objection to mainstreaming these specialized cases. Problem-solving processes and traditional court processes are both appropriate for resolving certain kinds of cases, but they should not be mixed. Each has different goals, different procedures, and different underlying models. Linking the two processes will weaken both.

Past experiences with mixing the competing goals of rehabilitation and punishment in criminal cases have not been successful. The focus on treatment reflects a much earlier debate on sentencing: Should the punishment fit the crime or fit the criminal?

In a sense, this is really a much broader debate between a legal approach and a medical approach to crime. (For a fuller discussion of the differences between the legal and medical models, see Victor E. Flango and Thomas M. Clark, Reimagining Courts (Temple University Press, 2015).)

In its simplest (perhaps oversimplified) terms, the medical model as applied to corrections assumed the offender to be “sick” (physically, mentally, and/or socially); his offense to be a manifestation or symptom of his illness, a cry for help. Obviously, then, early and accurate diagnosis, followed by prompt and effective therapeutic intervention, assured an affirmative prognosis — rehabilitation. 8

Under the medical model as applied to corrections, diagnosis was the function of the presentence investigation, therapeutic intervention was decreed in the sentence and made specific in the treatment plan, and the parole board decided when the offender was “cured” and could be released back into the community. The medical model also assumed: 1) a triage process to disqualify offenders who would pose a danger to the community, 2) a wide variety of treatment alternatives, and 3) a large staff of probation and parole officers as well as social-services officers to monitor and supervise treatment.

Ironically, many “new penologists” at that time advocated a return to a legal model based on individual responsibility that would impose uniform penalties for similar crimes and abandon indeterminate sentencing, wide judicial discretion, and coerced participation in rehabilitation. 9 Can courts learn from the corrections experience?

Actually, courts can look to their own experience for a cautionary tale of how problem-solving courts may be transformed over time. Some would consider the first stand-alone juvenile court, established in Cook County, Ill., in 1899, to be the first problem-solving court. Juvenile courts were created to focus on treating and rehabilitating individual adolescents. But over time, they reacquired some of the characteristics of a traditional court, resulting in a hybrid that was neither fully treatment-oriented nor sanctions-oriented. One reason was that judges who presided over juvenile courts did not change practice as much as originally envisioned. 10 Critics note, “[a]side from a few celebrities, juvenile court magistrates did not share the therapeutic orientation” 11 and juvenile courts “provided new bottles for old wine.” 12 Treatment orientation in juvenile courts declined until the U.S. Supreme Court’s 1967 decision In re Gault restored most due-process rights to juvenile defendants. 13 As the Court noted a year earlier in Kent v. United States, “[T]here may be grounds for concern that the child receives the worst of both worlds: [T]hat he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” 14

Different Models: Legal and Medical The problem-solving movement in courts is defined by two characteristics: a focus on treating the problems of the individual defendant, and the relaxation of the adversarial process in favor of increased cooperation among court participants. 15 The problem-solving approach is based on the medical model of treating each patient — or case — individually. 16

The traditional adversarial process in criminal cases is based on the legal premise that like cases should be treated alike. The traditional legal model assumes that humans are all equal before the law. In practice, that means treating “like cases alike” — that is, fairness requires that everyone who commits a similar offense receives a similar consequence. 17 Conditions for find- ing an accused person at fault should be the same for all individuals in similar circumstances. To do otherwise would undermine citizen respect not only for courts but for law and government as well.

In contrast, the medical model treats the individual. A doctor may not prescribe the same medicine to two people even if they exhibit the same symptoms because of different individual reactions. For example, one patient may be allergic to a medicine that is perfectly suitable for the other. Successful treatment requires the doctor to diagnose the problem and develop an individualized treatment plan. In medicine, treating like cases alike could have dire consequences.

The procedural implications of these two models for courts are very different. Consider these different approaches as applied to abuse and neglect cases. The strict legal adversarial approach to handling parents who are suspected of abusing or neglecting their children would be for police to investigate and make an arrest if warranted, and then for prosecutors to charge the alleged perpetrator or perpetrators. The role of the court in this scenario is to establish guilt based on a high standard of proof (e.g., “beyond a reasonable doubt”) and to sentence the guilty as it would in any other type of criminal case. This is a very public process that could result in incarceration, job loss, and formal dissolution of the family.

The medical approach might view the problem more broadly as one of family dysfunction. The court may require the entire family to participate in treatment to see whether alternative coping mechanisms might improve interactions and reduce violence. Most treatment programs begin with an admission that a problem exists, and in this scenario it is often difficult for the alleged perpetrator to take this first step. Consequently, the alleged perpetrator must be assured that admitting “guilt” will not lead to punishment but to treatment for the problem, and that the treatment will be kept confidential, as any medical issue should be. Incentives to encourage treatment would be couched in terms of being able to avoid incarceration, retaining a job so that the family would be supported, and keeping the family unit together. “Treatment focus” describes the purpose of these proceedings, because the search for a remedy certainly goes beyond diagnosis and extends to treatment.

The legal approach is more limited. It seeks the status quo ante — that is, the restoration of things to where they were before the crime was committed or the injury was inflicted. The legal remedies, then, are more narrowly limited to punish- ing someone or awarding compensation.

The medical approach works to correct the problems that led to the crime. The goal of the medical approach in family cases, for example, is to restore or perhaps create family harmony, not necessarily to punish the offender. In the words of the Governor’s Task Force in Maryland:

The goal of a court dealing with family disputes should be more than simply resolving the particular issues before them. Rather, such resolution should leave the family with the skills and access to support services necessary to enable them to resolve subsequent disputes constructively with minimum need for legal intervention. 18

These goals require different implementation than do sanctions applied using an adversarial process. The court must closely monitor offenders to ensure that the agreed-upon treatment regimen is followed, with the implied, if not explicit, threat that if treatment is not completed, more public sanctions will be imposed.

Determining Responsibility

The legal approach assesses blame: It seeks to determine who is responsible for an offense. The law is not looking for what caused the wrongful behavior — for example, was a child abuser also abused as a child? A trial is designed to be a narrow inquiry into whether the defendant is to blame. The key questions are (1) “Did he do it?” and (2) “Did he mean to do it?” because it is difficult to prove guilt with- out showing motive. The law assumes that individuals have the capacity for rational choice and the opportunity to choose whether to break the law.

There are exceptions within the legal framework. People without the capacity to make rational choices are to be treated differently. For example, offenders with frontotemporal dementia may bring lawyers, doctors, and family members to court to explain that the perpetrators were not at fault, because their brains have degenerated and medical science has no remedy. 19 Advancements in neuroscience with its changing understanding of the human brain may shed yet more light on a defendant’s culpability that must be taken into account in both legal and medical models. David Eagleman attributes the shift from blame to biology to the effectiveness of pharmacology, which has shown that some symptoms can be controlled by medication. 20 He quotes Tom Bingham, Britian’s former senior law lord, with saying that the law makes several working assumptions, including that adults have free will, act rationally in their best interests, and can foresee the consequences of their actions. “Whatever the merits or demerits of working assumptions such as these in the ordinary range of cases, it is evident that they do not provide a uniformly accurate guide to human behavior.” 21

The prospect of using incarceration as a deterrent is viable only for people with normally functioning brains, and, increasingly, criminal behavior can be attributed to mental illness. Consider this example:

When Sol Wachtler, the chief judge of New York State’s highest court, was arrested for extortion and threatening to kidnap the 14-year-old daughter of his ex-lover, many New Yorkers were under the impression that some crimes may have been committed. Not so, according to John Money, a prominent sexologist and medical psychologist . . . [who] wrote that Wachtler “was manifesting advanced symptoms of . . . Clerambault-Kandinsky Syndrome (CKS) . . . a devastating illness. The law-and-order treatment of people with CKS is the equivalent of making it a crime to have epileptic spells. 22

Prisons have become “our de-facto mental-healthcare institutions — and inflicting punishment on the mentally ill usually has little influence on their future behavior.” 23 The development of specialty “mental-health courts” based on the drug- court model combines treatment with confinement in a structured environment. As the criminal-justice system becomes more informed by science, more emphasis will be placed on customized sentences, incentives for good behavior, and opportunities for rehabilitation.

Toward this end, the medical approach would apply an expansive view of “people without the capacity to make rational choices” and would look to causes that may be genetic, environmental, social, or economic — in other words, almost always beyond the control of the individual. Indeed, prominent psychiatrist Dr. Karl Menninger advocated treating all offenders as mentally ill. 24

Eagleman suggests dispensing with the concept of blameworthiness altogether and focusing on likely future behavior. Are criminal actions likely to be repeated? Can incentives be structured to deter future offenses? Dispensing with the concept of blame comports well with Douglas B. Marlowe’s suggestion that the treatment versus punishment dichotomy be abandoned. He contends that the critical question is how to match offenders to the best programs that meet their needs, protect public safety, and do so at least cost. 25 He recommends blending the two using a four-fold classification scheme to guide intervention based on the two dimensions of “need” — the offender’s clinical diagnosis and need for treatment — and “risk,” or the offender’s amenability to treatment.

Why the two processes must be kept separate Solving the problems that underlie criminal behavior is a worthy endeavor. The question is whether it can appropriately be combined with processes that exist to determine guilt. What is the point of treatment-oriented adversarial proceedings or sanction-oriented problem-solving courts? Can we force technically innocent people into treatment programs before guilt has been adjudicated? Can judges be detached and engaged or expected to be detached in some cases and engaged in others? Can court processes be both austere and formal as well as welcoming and informal at the same time?

1. Courts Cannot Be Both Adversarial and Reconciling The problem-solving approach is purpose- fully not adversarial, and it therefore requires a different processing track from most other mainstream cases. The goal of problem-solving proceedings is to achieve justice not by finding guilt or liability but by fashioning an appropriate remedy. The prosecution, defense, judges, and other court participants share an interest in treating the condition that has caused the defendant to commit criminal offenses. Defendants are either diverted from standard court processing before guilt or innocence is determined or encouraged to plead guilty in order to be admitted into a problem-solving court (post-adjudication treatment program). This characteristic of the problem-solving approach has led one scholar to state, “[I}t is not a court if you have to plead guilty to get there.”26 Because the defendant must admit culpability to be ready for treatment, post-adjudication treatment is the more appropriate model and preferable to deferred prosecution.

With regard to sentencing, the adversarial process by its very nature must try to harmonize sentences among offenders so that all are treated fairly. In the problem-solving process, sentencing is explicitly tailored to the needs of the individual, regardless of how others similarly situated were sentenced. Addiction patterns, mental health, and other individual-based characteristics must all be factored into the proposed treatment plans if those treatments are to be effective.

2. Courts Cannot Both Treat and Sanction

Bruce Winick and David Wexler contend that traditional courts benefit from judges familiar with problem-solving techniques. Problem-solving courts

… have served to raise the conscious- ness of many judges concerning their therapeutic role, and many former problem-solving court judges, upon being transferred back to courts of general jurisdiction, have taken with them the tools and sensitivities they have acquired in those newer courts. 27

But it is not possible for courts to be both helper and punisher — which is why treatment should be offered only after an admission of guilt. These are clearly two separate and distinct roles, which is why courts should triage cases into separate, distinct, and well-defined adversary or problem-solving processes — so that litigants as well as court participants know which set of rules is being applied and which role the judge is playing.

Again, the concern here is that grafting problem-solving practices onto traditional courts contaminates the integrity of both processing tracks. Obviously the two separate tracks can interact, but the integrity of each track should be maintained so that consistent focus is on either sanctions or treatment. Can we design a system where people who would benefit from treatment could be transferred from a traditional court to a problem-solving court? This would be a parallel to the triage now done in problem-solving courts, which includes 1) setting criteria to determine whether someone is eligible to participate in the program, and 2) removing participants from treatment who are either not suitable or are not successful in completing a treatment program. This seems a far better solution than tinkering with the integrity of the case-processing tracks and creating a hybrid process with mixed objectives.

Is treatment a court responsibility? Of course, the larger question underlying this whole discussion is whether treatment should be a function of courts at all. Should courts’ responsibility end at the determination of guilt, or do they have a responsibility to rehabilitate or at least monitor the rehabilitation of offenders? Or, should the rehabilitation function be a responsibility of probation departments perhaps with court oversight?

The Pew Charitable Trusts’ Public Safety Performance Project, the American Probation and Parole Association, and the National Center for State Courts jointly sponsored a conference on effective administrative responses in probation and parole supervision in December 2012 28 and concluded that the strategies of “swift, certain, and proportionate sanctions” to respond to violations and the use of incentives to promote and reinforce compliance were needed, but that the authority to issue sanctions and reward compliance could be given to courts or to the probation departments.

The best response to why courts need to be involved is found in a description of the key elements of a reentry court: Ex-offenders require a powerful intervention to change their behavior; the judge as an influential authority figure can influence behavior; and the reentry court, through rigorous monitoring, can hold collaborating agencies and offenders to a higher level of accountability than other interventions can. 29 Another unspoken reason for court involvement is that courts have been more successful at attracting and sustaining funding for problem-solving courts, including a significant amount of federal funding.

On the other hand, the historic mission of probation departments has been to engage in the type of monitoring and service provision that the treatment approach recommends. How is judicial monitoring of a problem-solving process different from intensively supervised probation, 30 with monitoring done by the probation departments under the state department of corrections?

Probation departments and agencies claim that their programs are effective and affordable. They could perhaps monitor treatment progress with the proviso that they bring to the court’s attention those clients who are not participating in the prescribed, perhaps court-ordered, treatment plans, are not making sufficient progress in the treatment programs, or have repeatedly been unsuccessful in achieving treatment goals. Probationers could also have the right to bring grievances to court after exhausting administrative remedies.

Regardless of who does the supervision, treatment requires an investment of resources. 31 If done administratively, implementation of this program would increase the workload of probation and parole officers, though it may reduce court staff time. Moreover, if administrative proceedings were used, the state may not be required to provide counsel. Courts and their supporting organizations are equally adamant that the participation of judges is a critical success factor to successful treatment. This can be determined empirically.

It may be too late to change the course of development for problem-solving courts and responsibility for treatment, but the discussion should at least clarify the respective role of courts and the role of probation services in providing treatment. For now, it seems clear that traditional court and problem-solving processes have different goals and require different methods of decision making, different support staff, different monitoring practices after sentencing, and so forth. Grafting problem-solving treatment processes onto mainstream courts is likely to reduce the effectiveness of specialized courts and weaken the adversarial process of mainstream courts. These conflicting characteristics are the reason why the two processes cannot be merged. Problem-solving principles simply cannot be grafted onto traditional courts without doing damage to each process. Before pressing forward with recommendations to expand problem-solving principles to mainstream courts, court leaders should pause to examine the assumptions underlying each process.

1 Greg Berman & John Feinblatt, Problem-Solving Courts: A Brief Primer, 23 L. & Pol’y 115 (2001).

2 Candace McCoy, The Politics of Problem Solving: An Overview of the Origins and Development of Therapeutic Courts, 40 Am. Crim. L. Rev. 1526 (2003).

3 Michael Isikoff & William Booth, Miami ‘Drug Court’ Demonstrates Reno’s Unorthodox Approach, Wash. Post, Feb. 20, 1993, A1, A8.

4 West Huddleston III & Douglas B. Marlowe, Nat’l Drug Ct. Inst., Painting the Current Picture: A National Report Card on Drug Courts and Other Problem Solving Court Programs in the United States (2011).

5 Aubrey Fox & Robert V. Wolf, Ctr for Ct. Innovation, The Future of Drug Courts 5 (2004).

6 For these and other related findings, see Shelli B. Rossman & Janine M. Zweig, The Multisite Adult Drug Court Evaluation, Nat’l Ass’n of Drug Ct. Professionals (May 2012).

7 CCJ Resolution 22, COSCA Resolution IV (2000).

8 Donal E.J. MacNamara, The Medical Model in Corrections: Requiescat in Pace, 14 Criminology 439 (1977).

9 MacNamara lists some of the new penologists as Norval Morris, Ernst van den Hagg, Andrew von Hirsch, and James Q Wilson.

10 Lawrence Baum, Specializing the Courts 29 (2011).

11 Andrew J. Polsky, The Odyssey of the Juvenile Court: Policy Failure and Institutional Persistence in the Therapeutic State, 3 Stud. in Am. Pol. Dev. 176 (1989).

12 Robert M. Mennel, Thorns and Thistles: Juvenile Delinquents in the United States 1825–1940 144 (1973).

13 In re Gault, 387 U.S. 1 (1967).

14 Kent v. United States, 383 U.S. 541, 556 (1966).

15 James L. Nolan, Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement 10–11 (2009).

16 The philosophical basis of the problem-solving movement is “therapeutic jurisprudence,” unquestionably a medical approach. See Bruce J. Winick & David R. Wexler, Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts (2003); McCoy, supra note 2.

17 This concept, central to the notion of justice and the rule of law, has been traced back to Book 5 of Aristotle’s Nicomachean Ethics.

18 Governor’s Task Force on Family Law, Recommendations and Proc. for Establishing a Family Ct. in Maryland, Final Rep. (Oct. 1992).

19 David Eagleman, The Brain on Trial, The Atlantic (July/Aug. 2011).

20 Id. at 118

22 William Doherty, Bridging Psychotherapy and Moral Responsibility, 5 Responsive Community 42 (1995); Amitai Etzioni, The New Golden Rule 135 (1996).

23 Eagleman, supra note 19 at 114.

24 Dr. Karl Menninger, The Crime of Punishment (1968).

25 Dr. Doug Marlowe on a Vision for the Future of U.S. Drug Policy, All Rise: A Publication of the Nat’l Ass’n of Drug Ct. Prof. 4 (2012).

26 Candace McCoy, “Review of Good Courts: The Case for Problem-Solving Justice by Greg Berman and John Feinblatt,” Law and Politics Book Review 16 (2006): 964.

27 Winick & Wexler, supra note 16, at 87.

28 Am. Probation & Parole Ass’n, Effective Responses to Offender Behavior: Lessons Learned for Probation and Parole Supervision (2013).

29 Robert V. Wolf, Ctr for Ct. Innovation, Reentry Courts: Looking Ahead 5 (2011).

30 McCoy, supra note 2, at 1528. 31 Id. at 10.

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About Victor E. Flango

Victor E. Flango is a former executive director of program resource development at the National Center for State Courts. He is the author of more than 100 publications on court-related issues.

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National Institute of Justice’s Multisite Evaluation of Veterans Treatment Courts: Systematic Assessment of Implementation and Intermediate Outcomes

Nij multisite impact and cost-efficiency evaluation of veterans treatment courts, fiscal year 2022, deadline notice.

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Census of Problem-Solving Courts (Bureau of Justice Statistics)

The 2012 Census of Problem-Solving Courts (CPSC) involved the collection of data from all active problem-solving courts. In order to be considered a problem-solving court, it must have (1) operated within the judiciary, (2) operated under the direction of a judicial officer, (3) been active in the reference year, and (4) used therapeutic services to reduce recidivism. A variety of data elements were collected in...

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Problem-solving courts: fighting crime by treating the offender, due process and the role of judges, state responses to mass incarceration.

Researchers have devoted considerable attention to mass incarceration, specifically its magnitude, costs, and collateral consequences. In the face of economic constraints, strategies to reduce correctional populations while maintaining public safety are becoming a fiscal necessity. This panel will present strategies that states have undertaken to reduce incarceration rates while balancing taxpayer costs with ensuring public safety.

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The National Institute of Justice's Evaluation of Second Chance Act Adult Reentry Courts: Lessons Learned About Reentry Court Program Implementation and Sustainability

Implementing, disseminating and translating evidence-based policy/practice in community corrections, drug courts reexamined, problem-solving courts, overview of drug courts, evidence-based screening and assessment: a randomized trial of a validated assessment tool in three new york city drug courts.

Problem-Solving Courts in the United States and Around the World: History, Evaluation, and Recommendations

• First Online: 24 November 2020

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• Monica K. Miller 5 ,
• Lauren M. Block 5 &
• Alicia DeVault 6  

Part of the book series: Advances in Psychology and Law ((APL,volume 5))

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Problem-solving courts deal with specific social issues thought to be underlying causes of crime. Around the world, there are courts for offenders experiencing drug use, mental health issues, prostitution, and gambling addiction. Problem-solving courts also exist for special groups of people, such as veterans, juveniles, and families experiencing domestic violence. Problem-solving courts differ in many ways, including the issues they address, the offenders they help, and their underlying principles. The goals of this chapter are (1) to provide an overview of problem-solving courts; (2) to assess the rigor of evaluations of problem-solving courts; (3) to determine which components of courts are most common and might be associated with success; (4) to make recommendations about future evaluations. The first section provides a history of problem-solving courts. The next two sections discuss the various justice (e.g., therapeutic jurisprudence, procedural justice) and psychological (e.g., operant conditioning, social support) components utilized within these courts. A synthesis of the findings from evaluations of problem-solving courts reveals that the most successful court types were the domestic violence and community courts, while the least successful were the juvenile courts. Evaluators of adult drug courts used the most rigorous research designs to evaluate the courts, while evaluators of veterans courts used few rigorous designs. The most commonly used components were Procedural Justice and Therapeutic Jurisprudence, while the least used was Community Sentiment. The most successful components were Community Sentiment and Adversarial Process. The least successful was Social Support. The chapter concludes with recommendations to help future researchers evaluate problem-solving courts more rigorously.

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Miller, M.K., Block, L.M., DeVault, A. (2020). Problem-Solving Courts in the United States and Around the World: History, Evaluation, and Recommendations. In: Miller, M.K., Bornstein, B.H. (eds) Advances in Psychology and Law. Advances in Psychology and Law, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-030-54678-6_9

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Problem-Solving Courts: Alternatives for Communities and Offenders

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Census of Problem-Solving Courts, 2012

Describes type, location, and characteristics of all known problem-solving courts in 2012. Types of problem-solving courts include drug, mental health, family, youth specialty, hybrid DWI/drug, DWI, domestic violence, veterans, tribal wellness, and other specialty courts. The report presents information on various aspects of problem-solving courts, such as funding sources, disqualifying offenses, points of entry, status hearings, services, and benefits to participants. It also examines differences between adult and juvenile drug and mental health courts. Data are from the 2012 Census of Problem-Solving Courts.

• In 2012, 65% of all problem-solving courts accepted cases after the defendant entered a guilty plea.
• More than half (56%) of problem-solving courts in 2012 did not accept applicants with a history of violent crime and nearly two-thirds (65%) did not accept applicants with a history of sex offenses.
• In 38% of veterans courts and 11% of domestic violence courts, applicants with a history of violent crime were ineligible.
• Fifty-three percent of all problem-solving courts active in 2012 were established prior to 2005.
• Most veterans courts (55%) were established between 2011 and 2012

Additional Details

• Full Report (PDF)
• Summary (PDF)

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Census of Problem-Solving Courts (CPSC)

The 2012 Census of Problem-Solving Courts (CPSC) involved the collection of data from all active problem-solving courts. In order to be considered a problem-solving court, it must have (1) operated within the judiciary, (2) operated under the direction of a judicial officer, (3) been active in the reference year, and (4) used therapeutic services to reduce recidivism. A variety of data elements were collected in this census, including type of court, number of participants, services provided, benefits of completing the court, and the exits from the court. CPSC includes drug, mental health, family, youth specialty, hybrid driving while intoxicated (DWI)/drug, DWI, domestic violence, veterans, tribal wellness, and other specialty courts.

Methodology

The 2012 Census of Problem-Solving Courts (CPSC) is the Bureau of Justice Statistics' (BJS) first information collection from all problem-solving courts in the United States, Puerto Rico, and Guam. The National Center for State Courts (NCSC) fielded the survey on behalf of BJS. The survey defined problem-solving courts as those that (1) used therapeutic justice to reduce recidivism, (2) operated within the judiciary, (3) had a judicial officer in charge, (4) had an exclusive docket, and (5) either admitted participants, had active participants, or exited participants in 2012.

NCSC developed the list of problem-solving courts by identifying problem-solving courts coordinators in each state. NCSC asked the state problem-solving court coordinators to provide a list of all problem-solving courts and coordinators in their state. The problem-solving court coordinators were directed to complete one survey per problem-solving court. Thus, if one problem-solving court operated in multiple counties, it is counted as one court. If one location operated multiple problem-solving courts, each court is counted. CPSC collected information about the type of court, problems addressed, court capacity, when cases are accepted to court, sources of funding, services provided, number of admissions, active participants and exits, stakeholder involvement in court planning, presence of a court case management system, and demographic data on exiting court participants.

Questionnaires

Census of problem-solving courts, publications and products, census of problem-solving courts, 2012.

What role do courts and judges play in democracy?

• Full Transcript

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Russell wheeler , russell wheeler nonresident senior fellow - governance studies benjamin wittes , and benjamin wittes senior fellow - governance studies , editor-in-chief - lawfare kathryn dunn tenpas kathryn dunn tenpas visiting fellow - governance studies , director - the katzmann initiative on improving interbranch relations and government.

August 29, 2024

• The Supreme Court has a popularity problem rather than a legitimacy problem, which is measured by whether the Court’s rulings are followed. However, the Court’s prestige has deteriorated recently.  
• In most cases, courts do not influence elections directly, with some notable exceptions such as the Voting Rights Act of 1965. However, examples of courts having indirect impact on elections are easily found.  
• For most of U.S. history, Supreme Court justice appointments were more common than they are today, and that kept the Court more or less within the confines of a national public majority.
• 47 min read

Each year in late June, we impatiently await the Supreme Court’s decisions on cases with names like Dobbs , Citizens United , and even Trump v. The United States . The nine members of the nation’s highest court preside at the top of a pyramid that includes hundreds of federal appellate and district courts, with judges appointed for essentially life terms. Their decisions have an impact on nearly everything about modern American life from business to the environment to redefining American institutions themselves. In this episode, host Katie Dunn Tenpas explores the changing role courts and judges play in democracy with experts Russell Wheeler and Benjamin Wittes.

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TENPAS: Hi, I’m Katie Dunn Tenpas, a visiting fellow in Governance studies at the Brookings Institution and director of the Katzmann Initiative on Improving Inter Branch Relations and Government. And this is Democracy in Question , a podcast about contemporary American politics and the future of democracy. In each episode, I’m asking my guests a different question about democracy so that we can better understand the broader contours of our democratic system. You probably noticed that there’s a lot happening in U.S. politics at the moment, including a highly contested presidential race. But in this podcast, I’m trying to get at the deeper questions of how democracy in this country and abroad works or is supposed to work.

On today’s episode, the question is, what is the role of courts and judges in American democracy? Put differently, what is the role of the judicial branch in a democracy? In 1789, the U.S. Constitution established three branches of government executive, legislative and judicial–a separation of powers and a system of checks and balances. As James Madison explained in Federalist Paper number 47, “the accumulation of all powers legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

These days we impatiently wait for the Supreme Court decisions, especially the ones issued in late June in the final days of the Court’s term. Cases with names like Dobbs, Citizens United, and, yes, Trump versus the United States. The nine members of the nation’s highest court preside at the top of a pyramid that includes hundreds of federal appellate and district courts, with judges appointed for essentially life terms. The rulings these courts make impact nearly everything about modern American life, from business to the environment to redefining the American institutions themselves.

So, what is the role of courts and judges in American democracy? To help explore and answer this question. I’ve invited two of my colleagues to the show. Both have long experience thinking about the role the judiciary plays in American political life. First, Russ Wheeler, a nonresident senior fellow in Governance Studies at Brookings. From 1977 until 2005, he was with the Federal Judicial Center, the federal court’s research and education agency, serving as deputy director since 1991. He has published articles in numerous academic journals on judicial selection and education, judges’ extrajudicial activities, judicial independence and accountability, and judicial governance. In addition, he currently serves on the advisory board of the Katzmann Initiative.

And then I’ll welcome Ben Wittes. He is editor-in-chief of Lawfare and senior fellow in Governance Studies at Brookings. He also hosts the podcast, Lawfare Daily .

Russ, welcome to Democracy in Question .

WHEELER: Good to be here, Katie.

TENPAS: So, let’s just start, you know, off the top with you can sort of answer a broad question however you like in terms of what is the role of the judicial branch in democracy? What do courts and judges, what role do they play in our democracy?

WHEELER: Well, it’s not an easy question to answer because in addition to the federal courts you mentioned there are there are many more state courts with which most citizens if they are gonna have contact with courts it will be state courts. And of course, because most of the state judges get their office through some sort of an elective system, have to stand for election, there’s a different tension operating there between the the state courts and the federal courts.

Now, people would say the federal courts, because half of its judges, as you pointed out, basically have life tenure, are considered to be more anti-democratic. But even there, the process of appointment and confirmation of judges by popular elected presidents and the Senate give a democratic twist to even these so-called non-democratic federal courts. That puts on what Chief Justice Rehnquist called “a popular imprint” on the courts.

Now, if we look just at the Supreme Court, for example, for most of the United States’ history, the appointments were fairly, fairly common. Justices were appointed maybe two every presidential term. And so, that kept the court more or less within the realm, the confines of a national public majority. Now, the justices serve much longer. And consequently, we see in decisions like the Dobbs decision that you mentioned, Citizens United, the presidential immunity decision that the Court rendered in June, relatively unpopular. But nevertheless, here we are. And I don’t see any possibility that the Court is going to change much to to change those.

So, what was once a rather dynamic relationship of courts in a democracy, I think, is becoming somewhat more static because of the the lengthy terms the justices serve. That’s the reason, I think that’s one of the reasons that there’s some push for term limits on justices. I think it’s highly impractical to think that this Congress would ever or another Congress would enact them. But nevertheless, I think that’s what’s behind this view that the Supreme Court has has strayed a little too far from decision-making in a democracy.

TENPAS: And and just curious about, this notion that now Supreme Court justices serve much longer. Is it just a function of a longer health span?

WHEELER: Yeah I think that’s probably true more than anything else. Appointed at a younger age but people are living longer and the justices hang on longer. Most federal judges, especially district judges, once they become eligible to retire on salary, they do pretty quickly after they reach eligibility at the age of 65. A little less so for court of appeals judges. But the Supreme Court justices just basically, to put it in the vernacular, hang on seems to me as long as they can.

TENPAS: Yeah. If you could initiate any kind of congressional reform, would you recommend that there would be sort of an age point at which they needed to step down or anything along those lines?

WHEELER: I think that’s a reasonable that’s a reasonable policy to put in place. And it wouldn’t necessarily have to interfere with the life tenure the Constitution provides, because the justices could still serve by assignment on the court of appeals and the district courts. But it seems to me there’s enough concern that the justices are out of touch with popular preferences that some way to control that might be a good idea.

Now, obviously, the purpose of the court’s in some way is to be contrary to popular preferences. The purpose of courts is to protect rights that the popular majorities might want to override. So, we can never forget about that. On the other hand, in the long run, a court that is unmoored from major popular sentiment for a long time is going to run into trouble.

The reason the Supreme Court in the 1930s got into so much difficulty was, was because Roosevelt had no chance to make any appointments his first term. And so, he had a Supreme Court that was pushing back against very popular New Deal measures. The dam finally broke when Roosevelt proposed increasing the size of the court so he could so he could put on more sympathetic justices. Whether that caused it or not, it was coterminous with the series of decisions of the Court which broke this anti-New Deal series of decisions, and the Court reverted back to, to a more typical role.

TENPAS: And, you know, obviously at this moment in American history, it seems that the courts are really under siege in terms of public sentiment, is skeptical about their legitimacy. Were there other points in American history besides the New Deal era where citizens were skeptical of the courts?

WHEELER: I think it’s a very hard question to answer. I mean, we don’t we don’t have Gallup polls about what people thought of the Dred Scott decision. We know it was a very unpopular decision for newspaper writers. It was certainly very unpopular by politicians in the North. But the fact is, public knowledge of the Supreme Court even now is rather sketchy. The Marquette Law School Poll, which is one of the more reliable sources of information about attitudes towards the Court, asked a question, they said, how much attention do you pay about to news about the Court? A lot: 27%, a little: 52%, nothing at all: 21%. So, it’s a little hard to derive from that a view that every John Q and Jane Q citizen is thinking all the time about the Supreme Court. They’re just not.

And today we have pretty good ways of finding out what the public thinks. We have no idea, I think, what most people thought about the Court back in 1857 and the Dred Scott decision, or even during the New Deal period. I mean, we know the New Deal was very popular. We know that Roosevelt was reelected handsomely in 1936. But then he went to change the size of the Court and the Court retained what political science called “diffuse support.” You don’t necessarily support the policies, but you support the institution. And whether that was a popular sentiment or just a sentiment of of elites, we don’t know. But people pushed back against that very strongly.

TENPAS: That’s interesting. And can you think of other periods in American history where judicial decisions have affected election outcomes? So, for instance, Bush v Gore, in 2000 and then maybe the Dobbs decision as being influential in a subsequent election.

WHEELER: Well, of course, those are two different things, aren’t they? Bush v Gore was a ratification, a judicial ratification of one view of who won the, won the election in 2000. The Dobbs decision, Citizens United, Brown versus Board series of decisions, in national security, these were all highly contentious. But for the reasons I mentioned earlier, I’m a little bit reluctant to say that there was a direct link between public attitudes to the degree they existed about those particular decisions and, and elections. Eisenhower appointed Earl Warren to the Supreme Court. Earl Warren led the Supreme Court in the unanimous Brown versus Board decision. And the Brown decision was was very popular in some parts of the country, very unpopular in other parts of the country. But Eisenhower won reelection overwhelmingly. If there were a direct link, you’d see people hold those appointments against Eisenhower, but obviously that didn’t happen.

That’s a pretty superficial view of it.

TENPAS: Right. But maybe more recently—

WHEELER: — Well, let me rephrase that. We know something about what people know and don’t know about the Court and judicial decisions, but it’s very hard, it seems to me, to draw straight lines between our knowledge of public attitudes towards the Court and other variables, like voting in presidential elections.

TENPAS: All right, well, let me just push you a bit, though. What about the Dobbs decision? Subsequently, there was a midterm election where the Republicans were favored. Could it be the case that the Dobbs decision raised the saliency of an issue that was favorable to Democrats? And so, it’s not sort of a direct causal relationship, but it raised the issue to the point where it motivated people to show up at the polls and vote a certain way?

WHEELER: I don’t think there’s any doubt about that. You’re obviously right. On the other hand, how often does that occur? I mean, here you have a highly controversial issue: abortion, however you want to phrase it, a Supreme Court decision which runs counter to the views of many United States citizens and, and others. And a direct reaction to that. I can’t think of an awful lot of instances, other instances of Supreme Court decisions that have provoked that kind of immediate electoral outcome. Was Lincoln elected because of the Dred Scott decision? I think it’d be hard to make that argument. Was Dred Scott part of the whole controversy that led to the merger of the Republican Party and Lincoln’s election? Yes, it was.

TENPAS: Okay. That’s a really good clarification. If the Supreme Court decisions are not necessarily directly affecting elections, how do you think the judiciary, and in this case will say the Supreme Court, we’ll limit it to that, but we could also talk about appellate courts and federal district courts. How might they affect overall trust in government? Is there a relationship between trust in government and the courts?

WHEELER: I haven’t I haven’t seen any. There’s a thriving academic study of the legitimacy of the Court and the Court’s diffuse support, and its specific support. I haven’t seen anything that necessarily links attitudes towards courts, towards trust in government.

I will though, if we can get off the Supreme Court for a second, there’s a fascinating quotation by you mentioned the Federalist 47. This is Hamilton writing in Federalist 17. He referred to the “ordinary administration of civil and criminal justice,” and he called it “the most powerful, most universal, and most attractive source of popular obedience and attachment.” He said, “having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake”—pardon the 18th century prose here, but nevertheless there’s a point—”contributes, more than any other circumstance, to [impressing] upon the minds of the people affection, esteem, and reverence towards the government.”

Now, Hamilton is drawing a direct link right there. Now, I don’t know anybody who’s operationalized that statement and tested it empirically. And of course, Hamilton was writing before we had large bureaucracies or people who are affected more by the Social Security Administration than their local state court. But still, there’s something there, that attitudes towards not the Supreme Court sitting off in Washington, but the local circuit or district court right down the street, having the vast lion’s share of litigation in the United States by any, by any matter of means, and whether or not how those courts function affects attitudes towards government.

That’s a that’s a different question. And perhaps just as important as these occasional Supreme Court bombshells. And in that regard, the National Center for State Courts’ latest survey found that state court systems were second in public confidence only to local police departments. People expressed confidence in local police departments 76% and state courts 61%. U.S. Supreme Court down to 54%.

TENPAS: Wow. And what would you say contributes to the 54% for the Supreme Court or the lower, much lower level?

WHEELER: You know, it hops around. If you ask those questions in late June or early July when the controversial decisions are there, especially a Court whose decisions are in many ways so inconsistent with basic public attitudes, you’re going to find a fairly high level of opposition. It will edge up then at least slightly over the course of the summer. I think that’s typically been the pattern.

But it’s obviously much lower now than it used to be. And whether that’s because there’s more public visibility of the Court or whether or not it’s just hitting more hot button issues, I think it’s very difficult to say, but it’s certainly not doing well in terms of of public attitudes.

TENPAS: Can you talk a little bit about how recent ethics breaches on the Supreme Court might be affecting their overall reputation?

WHEELER: I think this is another area in which if you look at the surveys, I think you’ll find a lot of people are totally unaware of those things. We here in Washington, we’re all aware of Justice Thomas’s trips and Justice Alito’s flags, and similar activity by the other justices. I think that registers very little elsewhere. In fact, Marquette did some other polls in which about a third of the public was totally unaware of the Thomas controversy. So, I think it’s a very serious problem, but I don’t think it’s one that’s contributing to attitudes among the general public towards the Court. I think it’s the decisions they see that flash across their newsfeeds in late June when those decisions are announced.

TENPAS: And can you talk a little bit about the disparity between sort of an ethics code for the Supreme Court justices as compared to other federally life tenured judges?

WHEELER: Well, keep in mind that the ethics code for all federal judges except the Supreme Court is non-binding. It’s a non-binding advisory code. That’s the same thing as the code that the Supreme Court adopted. There’s a lot of things about the Supreme Court ethics code which I think could be improved. But I think it’s a bad rap to say it has no enforcement mechanism, because many of its provisions are very broad. You know, a judge should be courteous at all times. Well, that’s true, but it’s hardly a an enforceable code.

The big difference is this: anyone can file a complaint of judicial misconduct about any federal judge except a Supreme Court justice and have it investigated under the Judicial Conduct Act of 1980. There’s no such similar mechanism to file complaints against the Supreme Court. I for a long time thought such a thing would be a cure worse than the disease. But I’m coming around to the view that a bill like the one that Senator Whitehouse has introduced—we can go into the details of that if you want to, people can can find it—I think might be a might serve laudatory purpose if for no other reason than just curtailing this this view that the Supreme Court gets special treatment that other judges don’t.

I mean, this was a big debate when when this 1980 bill was being debated. And the Judicial Conference, the the policymaking body for the federal courts, said it would be inappropriate for lower court judges to pass on the actions of a Supreme Court justice. I don’t know why that’s true. In the states, every state has a judicial discipline mechanism. People can complain about the Supreme Court. The judicial complaint agency is made up of lower court judges and non-judges, and they pass on the extrajudicial activities of Supreme Court justices. So, I think there’s a bit of a fake argument there. But on the other hand, I don’t see anything changing.

TENPAS: Yeah. Earlier in the conversation, you mentioned that hearing about, Justice Thomas’ ethical lapses and Justice Alito’s flags is kind of sort of inside baseball that if you live in D.C., you’re very aware of all of these things and you’re concerned by them, and people are writing op eds about them. But do you think the fact that it doesn’t resonate with the public at large is maybe why Chief Justice Roberts didn’t really feel the need to implement a stricter code?

WHEELER: No, I don’t think so. And I want to correct. It’s not just in Washington. I would say that small group of people who give a lot of attention about the court, that 27% or so, it resonates with them. It resonates in Congress. I, I don’t know, but my guess is John Roberts is pulling his hair out over the activities of Thomas and Alito. But, you know, you can’t pick your colleagues. Not so much because somebody out in some far reach of the country is upset about it. But he’s getting an awful lot of flak from Congress, editorial boards.

I think Roberts, despite some recent action, I think Roberts is very concerned about the legitimacy of the Court and its underlying public support. And I think he realizes that although, as I said, it’s not a matter of intense public scrutiny by everyone, it’s certainly a sore thumb in the part of Congress and others who think that the Court is just out of control.

TENPAS: And are there other points in American history where the legitimacy seemed to be at stake, like it is now?

WHEELER: Yeah, I think so. After the, after the Civil War, despite all I said about who knew, you know, how far knowledge of the Dred Scott decision went, it was quite clear that the Court was in retreat. And then some of the Civil War decisions that the justices made on the Court and acting as circuit judges, as trial judges, in the matter of Lincoln’s habeas corpus suspensions and other such matters, that led the Congress to curtail the jurisdiction of the Court, and the Court went along with it. That was in the 1860s and 1870s. So, that was clearly a period when the Court was was laying low to a degree.

And then, of course, the famous what they call switch in time that saved nine, the reversal of the court in 1937 from opposition to these New Deal measures to basically surrendering and allowing the New Deal, the federal New Deal and also similar state statutes. They survived constitutional scrutiny starting in 1937. That was another time in which I think specific attitudes towards the Court were quite, quite low, although diffuse support for the Court, underlying support for the institution remained strong as seen by the resistance to the Court packing plan.

And I would say also during the 1950s, obviously, all these billboards saying, “Impeach Earl Warren,” imagine half the people who saw them didn’t know who Earl Warren was, but nevertheless, that’s a sign of underlying discontent with the Court. And led to Richard Nixon, helped lead to Richard Nixon’s election, I think.

TENPAS: And I wanted to ask you, in regards to sort of popular culture and the Court’s depiction. The recent edition of The New Yorker magazine has a picture of the nine justices, and six of the nine heads have the head of Trump. And then the other ones are Justice Jackson and the liberal justices. Is that a depiction that you thought you would see in your lifetime, or is that a depiction that is healthy for the institution of the courts, or can you just talk about your reaction to it?

WHEELER: No, exactly. This is the this is the same New Yorker , by the way that quotes your data on presidential administration turnovers. I can’t imagine, you know, 30 or 40 years ago when I was studying this stuff more intently to imagine seeing a cover like that. I guess some people thought it, but it was really quite … it was quite stark. And it’s like a lot of New Yorker covers, it hardly pretends to be to reflect anything more than the creativity of the of the cartoonist who who drew it. But the fact they could do such a thing tells you something about the attitudes towards the Court. Not again, not among the great mass of the population, but at among influence makers who who have who do have an impact.

TENPAS: And do you think that, sort of, maybe popular concern with the Court or maybe sort of reactionary views about today’s courts and judges more broadly is a function of people’s lack of education and understanding about judicial branch? Do you think that there’s room for improvement for citizens’ understanding of the courts?

WHEELER: Well, yeah, I think people understand more about the courts now than they did. Public understanding is not great, but I think it’s probably much greater than it was 100 years ago. There’s no doubt in my mind about that. You know, literacy is higher; people can’t read, they can’t spend too much time reading about the Supreme Court, for example. I certainly think civic education is important, but I don’t think it’s what’s going to turn around public attitudes towards the current or discontent with discontent with court decisions.

I mean, in fact, sometimes I’ve wondered, people say people don’t understand the Court enough, so we’re going to teach them that here’s a bunch of people who were appointed for life. They can do whatever they want. They can’t be removed from office even for outrageous decisions. There’s very little ethical controls on them. You really want people to to learn all of that and expect them to turn around and say, boy, I’m an all in favor of that? I think not.

TENPAS: Right. You may not want to draw attention to those kinds of details. Well, I think that recent Supreme Court decisions coupled with vestiges of the Trump administration and how he sort of ran the government at that time have made a lot of people nervous about the future of democracy. And I was just wondering if you could talk, you know, on a scale of 1 to 10, how nervous are you about the future of American democracy?

WHEELER: I think American democracy is fairly resilient. We survived four years of the Trump presidency. I mean, that’s a partisan statement. But I mean, I think we’ll survive another four years should that be the outcome of the Electoral College vote in November.

But I am concerned that, to go back what we were talking about earlier, that presidential elections have have served as a a check upon this non-democratic institution. I think, highly ideological appointments to the courts and Trump’s appointments to the Supreme Court and the courts of appeals—were highly ideological, his supporters boast about that—by a president and a Congress who have no electoral mandate to do any such thing is likely to produce a judiciary whose, a judiciary whose decisions are going to be more and more out of touch with basic governing majorities. And I think that’s a bit of a danger for the courts.

But on the other hand, it takes major crises to make fundamental changes in the courts. We know that. There’s been no major change in the federal courts in the last hundred years or more. And so, I don’t expect there’s going to be any major changes even now, even though some people say the courts are in crisis. I don’t think we’ve reached the point where there’s going to be any major changes.

TENPAS: And where are you on the 1 to 10 scale? What’s your score?

WHEELER: Oh, I’d be about a 7, I think so. but don’t quote me on that. Even though I said it on a public podcast. Because public knowledge and attitudes of the courts, even the Supreme Court all the way down to local courts are so, are so unpredictable and unpredictable and really unknowable, I think you have to be very careful in in, in in conclusions we draw about courts and democracy.

TENPAS: Right. Well, thank you so much for being a guest on Democracy in Question . I learned a lot today. And really appreciate your time.

WHEELER: Good chatting with you, Katie.

TENPAS: And now Ben Wittes, who, in addition to his leadership of Lawfare, has written extensively on the nexus of law, national security, and democracy. Ben, welcome to Democracy in Question .

WITTES: Thanks for having me. Pleasure to be here.

TENPAS: So, let’s kick it off with just a really broad question. You can narrow it however you like. Tell me, what is the role of the judicial branch in democracy? Courts and judges, what role do they play?

WITTES: So, let’s start with the role of courts in government, irrespective of whether it’s a democracy or not. Right? Courts are a dispute resolution mechanism. And disputes can range—whether you’re a democracy or not, right? your neighbor does something that affects your property, you have a dispute with your neighbor, there has to be a mechanism to resolve those disputes. And so, countries for long times, long before they were democratic, would set up judicial mechanisms to resolve disputes.

And at that level, it has actually very little to do with democracy. Right? Although it does have everything to do with fairness and with whether the state in question is providing the essential service of resolving disputes between citizens.

Where democracy comes in is that sometimes, of course, your dispute is with the state, which either means that you think that Congress, or whatever legislative mechanism you have, has passed a law that is inconsistent with the constitution or some other principle. Or that you believe that the executive branch is behaving in a fashion that it’s not allowed to under the law. Right? Which is to say that the citizen has, or sometimes the Congress, right, or the executive branch has a problem with some other actor, a citizen or a different actor of government, and courts resolve those too.

Now, that’s an essentially democratic function, because in a non-democratic society, you say, well, the courts don’t actually provide a limit on the behavior of the authority. They’re an expression of the authority. But in a democracy, particularly one where there is separated power, as you quoted Federalist 47 about, somebody has to resolve disputes between citizens and government. And a lot of those disputes are, in a democracy you can’t behave this way. And the courts have an essential role in by adjudicating those disputes, answering the question of are you allowed to behave this way in a democracy?

TENPAS: And tell me a little bit about the arc of history that has led us to this point where there seems to be kind of a crisis of legitimacy with the judiciary. How do we get here?

WITTES: Yeah. So, I think, that is the subject of, first of all, an enormous literature and a lot of dispute. So, I’m going to try to answer it in a fashion that’s politically neutral.

TENPAS: Great.

WITTES: It is fair to say that over the last half century, the courts have amassed a great deal of power to themselves. Some of this power has offended conservatives. For example, the authority to decide who’s allowed to use birth control and get an abortion, right? is something that conservatives regarded as a gross arrogation of power to the courts.

More recently, a lot of these arrogations of power or these accumulations of power have offended liberals. For example, the overturning of that previous amalgamation of power, or this term the decision that presidents are immune from criminal liability for matters related to their official acts, and that it is the courts that determine the parameters of that immunity, which can’t be found in the text of the Constitution.

And so, if you accumulate more and more power in the judiciary, who’s ever right about which decisions are appropriate and which are not, one thing that happens is that more and more political power becomes contested through the behavior of the courts, through litigations and through appointments to the courts. And therefore, more and more elections become decided in the context of thinking about the direction that the courts are going to go.

And that means that when Democrats win over a long period of time and appoint a lot of justices, Republicans are going to think of the courts as less legitimate. Or to use an example that’s closer to the current reality, when Republicans win and get a chance to appoint a bunch of judges, a lot of Democrats are going to look at the rulings of the courts under those circumstances and have serious questions about their legitimacy.

So, I think the best way to understand it is just that the courts over a very long period of time have amalgamated a lot of power. And so, the fight is about the deployment of that power.

TENPAS: And how do you think the recent case, the recent Loper Bright case fits into that equation?

WITTES: Yeah, so very complicatedly. So, Chevron, which is the 1984 case that it overturned, was at the time understood as something of a conservative victory in that it said the courts are not going to generally be in the position of substituting their judgment for agency—and these are administrative agencies’ interpretations of their authorizing statutes. Only if those interpretations are unreasonable is the court going to come in and say, no, you can’t interpret it that way.

And that was at the time understood as, you know, the court saying, all right, we’re going to defer to other branches of government under normal circumstances in these situations. And, you know, where Congress isn’t clear, it’s in the first instance up to the agency to decide what its statute means. That was seen as a judicial step back from a more aggressive kind of, at the time, thought of as liberal interventionism in the administrative law space.

But over time, conservatives got antsy about it, because one thing that Chevron meant was that instead of having a very powerful judiciary deciding what administrative actions, administrative interpretations were appropriate, you had something that they hate almost as much, or maybe now more, which is the dreaded administrative state defining its own parameters of legality and behavior.

And so, there has been for some time a what was understood originally as a kind of conservative opinion that was a step back from liberal interventionism by the courts, has come to be understood over time as deference to administrative agencies, which has become a bit of a conservative bugaboo.

And so, I would say this formally defers a great deal to Congress and says, you know, Congress needs to be clear. But in fact, what it’s really doing, given that Congress is unlikely to come in and write crystal clear statutes for all circumstances, is it removes power from the agencies and puts them in the courts thereby, I think, augmenting the sense that the courts are wielding a great deal of power in our system right now.

TENPAS: And so, if you’re thinking about the balance of power, you think that decision in and of itself shifts it even further towards the court’s direction.

WITTES: At least if Congress doesn’t get involved. Right? So, this interaction is complicated because it presumes a set of statutes that are sort of vague and subject to a million different interpretations. But I think it is reasonable to expect, given how Congress is not the most fluid organization in terms of, you know, passing laws to address specific situations—it tends to pass broadly worded statutes and then leave it to others to figure out that the power to do that, given a broadly worded statute, just migrated toward the courts.

TENPAS: And it’s really a moment for them to think about capacity building and if they want to do that. But I think getting that institution to think collectively instead of individually is a Herculean challenge.

WITTES: Yes. And and it’s really not designed for that. You know, it’s 535 people plus, and it’s not designed for swift action. And that’s not to say it can’t under certain circumstances do quick action, but it can’t habitually be expected to and particularly in the regulatory and administrative space the traditional answer to that has been the broadly worded statute with an expert agency. And what the Court is saying is for a lot of purposes, that may not be good enough anymore.

TENPAS: Right. Let’s talk a little bit about how major Supreme Court decisions can affect election outcomes. And can you give some examples?

WITTES: Well, okay. So, there are a lot of ways to think about this. But let’s let’s sweep off the table the most overt category that is least common, which is that you have an election dispute that reaches the Supreme Court, a la Bush v Gore, 2000, and the Supreme Court issues a decision that effectively decides the outcome of the election. Yes, that has happened once in our history. And it could happen at any time again. It is most unlikely in any given election to happen again. Though never say never. But I think that’s in some way it’s the most dramatic and the least important way.

The least dramatic, and the most important way is by conditioning the rules under which elections happen. And so, the most important examples of this are things like the Court’s decision not to get involved in redistricting. And the Court basically says we’re not we’re not getting involved in redistricting questions. That’s a political question left up to the political branches. And so, you know, races in congressional districts that might involve egregious gerrymandering, the Court is not going to do anything about.

Conversely, think about the Voting Rights Act, where the court has both a storied history of enforcement and also more recently a significant rollback in terms of what it’s willing to do, under what circumstances it’s willing to get involved. And also, dating back a few years now, has, you know, struck down a certain provision, the pre-clearance provision of the Voting Rights Act.

And so, these are rules that affect how voting takes place. Right? And the complicated feature of this is that you almost never get to look at the election outcome and say, wow, this would have been different if the Supreme Court had not issued this ruling in this case. You almost never can do that because, you know, you can’t tell when candidate X beats candidate Y how that same race would have looked had a given rule been nudged a little bit differently.

And so, you never get to say, or you almost never get to say, the Supreme Court affected the outcome of this election. And yet, I think if you ask most political scientists and lawyers who study this sort of thing, this is the tectonic plates of a lot of close elections, and they matter. And that’s why these issues are so fiercely contested in the courts and in in the political space.

And then finally, there’s the whole field of campaign finance, which is an area in which the Supreme Court has vacillated to some degree but has an increasingly libertarian bent. And depending on how important you think that is, either from the purposes of limiting the amount of money in politics or for purposes of allowing unbridled free expression, and free expression being enabled by the expenditure of money, the Court is the chief architect of the rules in in that regard. Congress also plays a role, of course, but the Supreme Court has written a set of what you might think of as meta rules that make it very hard to regulate the collection and expenditure of money in the campaign finance space.

TENPAS: And then maybe we could add a fourth category, which would be cases that touch on burning social issues that then affect an outcome.

WITTES: Well, so yeah, that’s even more remote, but probably more important than—so, you know, the Supreme Court has given this incredible electoral gift to Democrats over the last few years, which is the overturning of Roe in Dobbs. And and the irony of that, of course, is that the electoral gift operates in the form of having so infuriated voters, who don’t don’t experience that as a gift, they experience that as an assault on their reproductive rights, but the result of that is that they are dramatically more animated to vote. They are dramatically more animated to give money to political campaigns. And they have won. Pro-choice candidates have won a series of elections and a series of ballot referendums. And Democrats have overperformed.

Again, in the view of most political scientists who I who I’ve followed on this, you know, there’s just no doubt that it’s been a significant contributor to Democratic performance over the last couple election cycles.

And, you know, that was true in the other direction for … on abortion for a lot of years while Roe was in place, that it, you know, energized Republican voters. It now seems to be energizing Democratic voters.

And the important dimension of this is that the opinion has nothing to do with elections whatsoever. Right? It has to do with a major issue that people vote on in elections. And, and so, yeah, that’s probably a more important affect than any election law related question.

And it plays out over other areas as well. So, abortion is a particularly dramatic example of that. But there are, you know, other areas where there are significant voting blocs. Right? So, for example, there are a lot of people—and I shouldn’t make a secret of it, I’m one of them—who take very seriously the question of criminal accountability for the former president and maybe future president. Right? Does a Supreme Court opinion saying that he is immunized against a great deal of criminal charges against him, does that animate certain people to vote in a way that they might not otherwise be animated to vote? We don’t have data on that at this point, and I don’t expect it to be in the Dobbs category of impact, but I don’t expect it to be in the no impact category either.

TENPAS: And do you expect that the Dobbs decision will play a role in the 2024 election turnout or results?

WITTES: Well, let’s just say if it doesn’t, then Donald Trump is much more likely to win than if it does. I think the Democratic coalition that would be required to beat Donald Trump requires a certain amount of energy and enthusiasm among female voters, and young voters, irrespective of their gender. And there are relatively few things that predictably excite both of those demographics. One of them is reproductive freedoms. And I think, the Democrats actually need a certain degree of energy associated with a backlash against the Supreme Court opinion in order for those voting groups to be activated at the level that they need in order to win.

TENPAS: Interesting. Do you think that the current Supreme Court is suffering sort of a crisis of legitimacy? And the answer, it doesn’t matter what your answer is per se, but can you think historically, maybe just go to the 20th century, were there other periods, say post New Deal, where people sort of questioned their legitimacy?

WITTES: And so, I, I want to first meditate a little bit about the meaning of the word legitimacy. Right? And so, people use legitimacy to mean many different things. It doesn’t have a tight meaning. So, some people use it to mean popularity. Right? The military and the Supreme Court historically have had high approval ratings in polls. Military still does, the Court no longer does. Some people mean that when they say there’s a legitimacy problem.

From a legal point of view, that’s just nonsense. You know, the legitimacy of a Court is measured by the question of whether the Court’s rulings are followed. Right? And who cares if it’s popular? The Court issues an order that somebody could simply defy, and we rely on the apparatus of courts following other courts’ rulings and, and the executive branch following directives of the Court and Congress respecting the rulings of the Court. That’s the definition of legitimacy.

And then there’s some, I don’t know, third way to think about it, which is prestige as distinct from popularity. Right? Like, okay, I don’t like this ruling, but the Court is at the Court, right? I have respect for the Court.

So, if you are defining legitimacy in terms of I think the strictest definition—does the system still work? Is the Court’s orders being followed? Do people, follow rulings that, you know, they may really disagree with?—the answer is the Court does not have a legitimacy problem.

TENPAS: Right. And if you can just pause for a moment, Brown v Board of Education and the aftermath would be an example?

WITTES: So, that would be an example of a whole bunch of states not following, right? at the height of the Court’s prestige. It had a legitimacy problem in that massive resistance, in fact, took place, and it took more than 10 years for the legitimacy of the Court to trickle down into executive and congressional action to make its rulings, effectuate its rulings, and make them a reality.

If the definition is popularity, approval ratings by people, it is fair to say that the Court has a legitimacy crisis. Its total popularity has plummeted. Whereas it used to have high approval ratings among Democrats and independents and not among Republicans, largely, I think, because of abortion and other contested social issues, now it has high approval essentially only among Republicans.

How big a problem that is? I’m honestly not sure. I would describe it more in terms of, less in terms of legitimacy and more in terms of approval rating. We don’t say the president lacks legitimacy when the president has low approval. We say the president’s unpopular. Right?

And the third one, which is I think the right way to understand legitimacy and the Court is this idea of prestige. And the problem with that is I don’t know how to measure it. It’s some function of our sense that the institution is not like Congress, not one we have contempt for. Everybody loves to hate Congress, you know. And it is not simply a function of whether the Court’s opinions are respected. But I don’t really know how to measure it. My sense is it has come down. And because I don’t know how to measure it, I don’t know how to think about whether it’s at the level of crisis yet.

I do think that over time, when we’ve had these periods before—the New Deal being a famous example of one, but the the other one that we don’t like to talk about in, you know, center and center left circles is the end of the Warren Court, right? where remember Richard Nixon ran in 1968 against the Warren Court. He won partly on that basis, and he proceeded to nominate four justices who very significantly altered the direction of the Court and began the project of the conservative judicial revolution that then ripened over the course of the next 40 years.

And I think in both of those cases, you can say the Court had gone out on some limbs, and the electoral system in the Roosevelt era in a liberal direction and in the Nixon era in a conservative direction, has a way of rolling it back. And the Court is a little bit less counter-majoritarian in the long term than we think it is.

And so, I would say there may be a legitimacy problem now. And I would look to the electoral system to address that, maybe not immediately, but certainly over time. The combination of the actuarial tables and the appointments process and elections are a really good way of reorienting the court. And I I think you can look for the Democratic nominee in this election cycle to spend a lot of time hammering on how the Court is out of touch with, you know, with the American people on any number of issues.

TENPAS: And can you explain a little bit what you mean by actuarial tables in regard to this?

WITTES: Justices die. And we have a sense we always have the sense of the Court as a kind of fixed institution that doesn’t change very much. And what we actually mean by that is that it changes relatively slowly and not on a fixed schedule. And so, the House of Representatives changes completely every two years. The Senate, up to a third of it can change every two years. The presidency can change every four years. The Court changes when people die.

And the thing about having nine people is that, actually, they die pretty frequently. And in any group of nine, you know, because nobody gets nominated when they’re under 40. So, if you take a group of nine people, in any given few year period you’re actually going to have some of them die particularly if they’ve had distinguished careers as professors or as … And so, we think of the court as, you know, as a slow changing organization. And that’s true, but that’s different from a non-changing organization.

TENPAS: And it’s interesting you point that out because, in the interview with Russ Wheeler he also pointed out that in the early years there was much more turnover, but now they really stay in for a much longer period of time because quality of life and lifespan is, is increased so much.

WITTES: Yeah. So, Russ’s point is very it’s very correct. And the other aspect to it is that the job of a Supreme Court justice was dramatically more grueling then than it was now, because in addition to being justices of the Supreme Court, they would ride by horseback to be trial judges in different jurisdictions. This is called riding circuit. And riding circuit was a grueling task, and they all hated it.

And so, first of all, they died relatively quickly because, you know, 18th century. But secondly, they all hated their jobs, and they didn’t have a lot of power. And so, it wasn’t that rewarding. You had to spend all your time riding around hearing uninteresting cases in podunk towns. And then you would come back and be the Supreme Court for a few days. Right?

TENPAS: And it was also a swamp here.

WITTES: And it was a swamp. It sucked here, too.

Even, you know, the first chief justice of the United States, John Jay, who, of course, is also famous for having written some of the Federalist Papers , he retired from the Supreme Court in order to run for governor of New York. And that gives you an idea of what the relative prestige was in the 1790s—people didn’t really want to be Supreme Court justices. They wanted to, you know, be a governor or something.

And now, not only are people living longer, but they’re much, much, much more apt to want to be on the Supreme Court, as Ruth Bader Ginsburg did, as Antonin Scalia did until literally their dying day. So, you’re going to live longer and you’re more likely to stay until until you get put in the ground.

TENPAS: Yeah. So, I really appreciate your, nuanced discussion and definitions of legitimacy. I think that really helps think it through. So, thank you for being so careful about that.

I have one last question, which is sort of more of a personal reflection of yours, and that is given sort of the status of courts and Congress and the presidency how nervous are you about the overall future of American democracy on a scale of 1 to 10?

WITTES: Oh, gosh. So, I would say in the long-term, I am bullish on American democracy. In the medium- and short-term, I’m quite worried. But the reason has very little to do with courts. The reason has to do with the lack, the much broader lack of guardrails against authoritarian populist movements and the fact that a lot of organizations, entities, including the courts, but not limited to the courts, don’t seem to me to be worried enough about authoritarian abuses of both executive and legislative powers. And so, I, I, I do think the courts are a part of that. But they’re not the central place where I think we have a problem. And I don’t really rely on them very much for that function anyway.

My concern is that whatever the courts say and do in a democracy, that people tend to get what they want. And what a very large number of Americans want is a kind of authoritarianism right now that is not consistent with, say, subsequent elections or subsequent fair elections. And I don’t see any evidence that the courts are likely to do anything about that. And I also don’t know that I believe there’s much they could do, because at the end of the day elections are really powerful things. And if people want authoritarian populists, they’re going to find a way to get it.

And so, I do think this is a problem that has a bit of a self-correcting quality in that it’s a problem of voters of my age and above, principally, I’m 54. And if you look at the demographics of it, this is not a problem among people in their 30s. Right? And so, I do think it’s a problem that will take care of itself with time. The challenge is to preserve the vitality of the democratic institutions in the meantime so that my generation and everybody older than me has a chance to die off.

TENPAS: And tell me if I can push you for a number what where are you on the scale of 1 to 10, even for that short term? Not the long term bullish, but the short term?

WITTES: I would say I am a 6. I’m not panicked. But I’m anxious, and I do think we’re we’re in a very dangerous place.

TENPAS: Well, Ben, thank you so much for your time this afternoon. It was a fascinating discussion for me. So, thank you.

WITTES: Thanks for having me. It was great conversation.

TENPAS: Democracy in Question is a production of the Brookings Podcast Network. Thank you for listening. And thank you to my guests for sharing their time and expertise on this podcast.

Also, thanks to the team at Brookings who make this podcast possible, including Kuwilileni Hauwanga, supervising producer; Fred Dews, producer; Colin Cruickshank, Steve Cameron, and Gastón Reboredo, audio engineers; the team in Governance Studies including Tracy Viselli, Catalina Navarro, and Adelle Patten; and the promotions teams in both Governance Studies and the Office of Communications at Brookings. Shavanthi Mendis designed the beautiful logo. 

You can find episodes of Democracy in Question wherever you like to get your podcasts and learn more about the show on our website at Brookings dot edu slash Democracy in Question, all one word.

I’m Katie Dunn Tenpas. Thank you for listening.

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