GOOD COURTS

Vol. 16 No. 12 (December, 2006) pp.964-969

GOOD COURTS: THE CASE FOR PROBLEM-SOLVING JUSTICE, by Greg Berman and John Feinblatt. New York: The New Press, 2005. 256pp. Hardcover. $24.95 / £15.99 / $32.50 CAN. ISBN: 1565849736

Reviewed by Candace McCoy, City University of New York, Graduate Center and John Jay College of Criminal Justice. Email: cmccoy [at] jjay.cuny.edu.

It is not a court if you have to plead guilty to get there. Nevertheless, it might help solve problems. On the other hand, social problems never go away entirely, and “solving” them is probably a quixotic quest. So it seems that this book has an improbable premise, beginning with its title. Although the premise may be improbable, the existence of problem-solving courts is not. Thousands of local courthouses across the county now include various versions of problem-solving courts in their operations, the most common of which are drug courts. They are up and running and working hard to solve problems. However, as the mini-debate in this opening paragraph shows, their organizational rationales and political direction are still worrisome.

The authors, Greg Berman and John Feinblatt, do not find them worrisome. Berman and Feinblatt are “true believers” who have set out to describe, defend, and proselytize for this type of social-service program delivered in courtrooms. Their book is not one-sided, since they pay attention to criticisms of the new court model and defend the model carefully against those criticisms. Ultimately, the success of that defense depends on whether the reader is willing to accept the premise that the judicial branch is so broken that altering its mission – overtly stating that courts are in business to provide crime control, not due process – is acceptable. Berman and Feinblatt are cheerleaders for the new model, and the book is written in a punchy, straightforward style that argues forcefully for problem-solving, not revolving doors. Traditionalist readers will not be convinced, but that is not because the book lacks punch. It is because the problem-solving model itself is problematic.

The book does a good job in presenting an overview of the problem-solving court prototype that is probably familiar to most readers as the popular drug court model. A strength of this work is that it is not limited to drug courts, but explains the broader court technology that can be applied to a variety of social problems – here, petty crime and domestic violence – as well as drug use. Mental health courts, prisoner re-entry courts, gun courts, gang courts – there are examples of each of these functioning in various jurisdictions across the nation, and any of them could fit into the “problem-solving courts” prototype set out here. Berman and Feinblatt concentrate on courts that are currently operating in New York and for which there is a sufficient track record to report results. This is hardly surprising, as the Center for Court Innovation, which Berman directs, is the non-profit research and educational arm of the New York state court system’s problem-solving courts [*965] initiative. Under the energetic leadership of Chief Justice Judith Kaye, New York’s court system has embraced a technology that changes not only the roles of court professionals but the purpose of courts themselves. No longer directed only to determine guilt and sentence the guilty, criminal courts are expected also to tackle the social problems that get people into trouble with the law in the first place. The state has invested considerable effort to extend the model, not only of the federally-initiated drug court program, but the workings of Manhattan’s community court. Supporters of the Midtown Community Court claim that it significantly contributed to the successful clean up of Midtown and Times Square in the 1990s, which in turn opened the way for economic development that has produced the prodigiously tourist-friendly Times Square entertainment district.

In the face of such enthusiasm, especially when agreeing that traditional courts can do little to stop the courthouse “revolving door” or to improve the lives of people whose life circumstances send them there, it feels mean-spirited to remain skeptical. Nevertheless, the most fundamental issue remains unspoken: what governmental (or, increasingly, private) agency should be charged with the task of solving social problems, and what evidence do we have that courts should be that agency?

The answer this book gives is: courts should solve these social problems because no other agency is doing so, and now that problem-solving courts have been in operation for about a decade, we have evidence that they do work. Skeptics are not convinced about the “works” part. Moreover, skeptics reply that the agencies traditionally charged with dealing with these problems, such as mental health services, drug treatment programs, or family counseling centers, have been dismantled in the decidedly non-compassionate conservatism of the past three decades. The criminal justice system has been made to step into the vacuum, arresting and controlling ever-larger segments of the population through a program of mass incarceration. Now a part of the justice system that was traditionally more about justice than punishment – the courts – is being put to work in the coercive enterprise. Call them what you will, these “courts” are really corrections agencies, or at least probation offices. This is alarming to those social analysts who are concerned about the rise of the carceral state, especially when proponents of problem-solving courts claim they “work” better than social services because judges have coercive powers backed by the threat of incarceration for non-compliance. These concerns are not addressed in this book.

I suspect that Berman and Feinblatt would respond to these concerns by saying that, until social service agencies are fully funded and capable of addressing the problems of drug addiction, homelessness, prostitution, domestic violence, and neighborhood disorder, we should be thankful that courts are willing to take on the task. Furthermore, they might be dismayed at the conspiratorial sound of this criticism, replying that the people who work in problem-solving courts have hearts of gold and want to make a difference in [*966] people’s lives rather than subjecting them to useless petty punishments. The mission of problem-solving courts, they say, is not to adjudicate but rather to “change the behavior of offenders, enhance the safety of victims, and improve the quality of life in communities” (p.5). Fair enough. But the question still remains: why are judges doing this, and are they both distorting the traditional mission of courts as providers of due process and unwittingly becoming part of the larger movement towards wholesale social surveillance?

Insofar as they take account of this overarching question, Berman and Feinblatt offer an important political point: courts are broken, anyway. They are not fulfilling their traditional mission of providing due process, so we might as well adapt them to new missions. Chapter 1, “Justice in Crisis,” gives an overview of the current situation in which criminal courts are “crowded, chaotic and overwhelmed” at the misdemeanor level and completely dependent on guilty pleas at the felony level. Defendants cycle in and out and never internalize the lessons supposedly taught by criminal prosecution, and the underlying problems of drug addiction, domestic violence, or homelessness are never even remotely addressed. Probation departments are overburdened and cannot deliver any meaningful supervision in community sentences, resulting in high recidivism.

This book is not about helping courts change in order to pull themselves out of this mess. Problem-solving courts have given up on the traditional court model. The authors say that “we need to be honest about what really goes on in our courts” and move past it rather than back up and make it work. Thus, problem-solving courts assume that a defendant pleads guilty before coming into the court, the guilty plea having been worked out between the defender and prosecutor in a typical plea-bargaining session to which the entire court “team” may now contribute. The goal is not to challenge plea bargaining but to embrace it and use it creatively. In return for their guilty pleas, defendants gain the benefit of the program to which they are sentenced – drug treatment, anger management, community service and job counseling, depending on which problem the particular court is seeking to solve. But if they do not complete the programs successfully, the most serious sentence that could have been imposed will come back to hit them. In the case of drug courts and domestic violence courts, this usually means serious prison time. This coercive possibility is said to be at the heart of changing offenders’ behavior and forms part of the rationale for the idea that problem-solving courts will “work” better than traditional courts do.

There is no question that modern courts are in bad shape. The authors say that rising caseloads due to the drug war of the 1980s and 1990s, increased awareness and willingness to prosecute domestic violence, and the need for quality of life enforcement (otherwise known as “Fixing Broken Windows”), have added to the crisis (pp.24-25). Yet the solution they propose is not the only one possible, nor is it necessarily the wisest. Courts would not need to bear [*967] the burden of prosecuting the drug war, for instance, if legislative reform could remove the worst excesses of mandatory sentencing and simultaneously increase funding for in-community drug treatment without coercive penalties attached. And the notion that quality-of-life problems are best addressed by police and courts rather than mental health professionals and social workers is still hotly contested. The book does not mention such ideas.

Furthermore, the authors claim that the public has realized that modern courts are in bad shape, and that the resulting low public confidence justifies a fundamental change in how courts are organized and what their mission is. Quoting a survey by the National Center for State Courts, they say that “only 23% [of telephone respondents] expressed a great deal of trust in state courts” (p.28). They also refer to other studies making the same point. What the authors did not mention, though, is that other branches of government and other professions get even lower ratings. Legislators are reviled, and executive agencies are regarded as corrupt. If the courts are broken, so is government in general, and we might ask whether the best response is a return to first principles or devising a new model of government entirely. This book clearly opts for the latter approach, but the former is not even considered as an option.

The new model is set out very well. Chapter 2, “What Are Problem-Solving Courts?” and Chapter 3, a description of problem-solving courts in action in New York and Oregon, set out the common elements of problem-solving. These courts “do more than just process cases . . . [a]ll of the new judicial experiments are attempting to solve the kinds of cases where social, human, and legal problems intersect . . . to do more than just apply the law correctly. Problem-solving courts demand that everyone attached to the court broaden their scope to see the real-life consequences of courtroom decisions. And they insist that courts use data to make more informed decisions about where to target resources and how to craft effective sanctions. Those who practice problem-solving justice are committed to seeing each individual case in the context of the lives of victims, communities, and defendants” (pp.32-33). To do this, they will: 1) set the goal as improving public safety while also protecting rights, 2) make the most of judicial authority by having judges (rather than probation or parole officers) monitor defendants’ progress, 3) put problems in context of neighborhoods, not individuals, 4) form creative partnerships with private businesses and community stakeholders, and 5) rethink traditional roles of the courtroom workgroup.

The authors say that these “principles of problem-solving” have emerged “more or less” spontaneously (p.38), though they do credit the federal government under Clinton’s 1994 Crime Act with providing funding, technical assistance, and research for hundreds of drug courts, which began the movement. They claim that the problem-solving model evolved from alternative dispute resolution, which if true is somewhat troubling because ADR is used in civil cases as an alternative to court, and the outcome must be accepted by both parties. Problem-solving in criminal court is not really a voluntarily-chosen alternative when the defendant’s only other option [*968] is prison or jail, and the outcome is required by the program in which the offender is enrolled. The authors also claim that the victims’ rights movement provided strategies of “making allies across the political spectrum” which advocates of problem-solving courts emulated, and that they also “borrowed language and concepts” from Problem-Oriented Policing and broken-windows ideology (p.49). They distinguish problem-solving from therapeutic jurisprudence and the rationales of juvenile courts.

Readers familiar with these various programs and approaches may disagree with the way they are portrayed here, but the origins of problem-solving courts may be a less important question than how they actually operate. In a statement somewhat contradictory to the later grand claims about how well these courts work to reduce recidivism, the authors distinguish problem-solving courts from juvenile courts: they are “much more realistic about the capacity of contemporary experts and institutions to change behavior. . . They do not contend that sentencing a shoplifter to paint over graffiti in the local subway station is going to alter a lifetime of drug use and homelessness. But they do argue that making low-level offenders perform visible restitution is a better outcome for the community than nothing at all or a few days in jail” (p.58).

What follows is a description of the Midtown community court and its social services programs for prostitutes and the homeless, claiming great success in ridding Times Square of its seediness and making it safe for a rejuvenated Broadway industry. “We really did get rid of street prostitution,” the Midtown court claimed, and that is so – in Times Square. Of course, a few blocks west of Times Square, several “gentlemen’s clubs” now provide jobs for the displaced ladies under a “gentlemen’s agreement” that “soft” prostitution is now decriminalized as long as it is not on the street scaring the tourists. This is indeed a significant social advance, but again, why was it necessary to enlist courts to do this job, and why do we not recognize the effect of decriminalization and regulation in achieving this preferable outcome? In Portland, Oregon, a community court handles all nonviolent misdemeanors in the city, applying sanctions of community service and attendance at social services programs. In Red Hook, Brooklyn, a war zone in the 1980s crack epidemic, a “Community Justice Center” offers GED classes, help in finding housing, voluntary drug treatment programs, and even a sports center. The authors claim that these community courts “worked” to stabilize the neighborhoods, bringing them back from disorder and fear of crime. They also say that the Brooklyn court diminished the sense of alienation from courts that poor and minority residents feel. The claim that courts are engines of community development is novel and exciting, but also somewhat odd. Again, is it the new court model, or the provision of sorely-needed social services or a program of neighborhood regulation that accomplished these welcome outcomes? The authors believe the new court model is superior in addressing social problems. The question is not whether the problems [*969] should be addressed, but whether courts are the right agency to address them.

Throughout, Berman and Feinblatt repeatedly claim that the courts “work,” meaning produce desired outcomes. In the case of the community development cited above, this is demonstrably so, though to be fair they ought to recognize that it is not only the courts that achieved this. There is an entire chapter on “Effectiveness,” which is a selective literature review of studies about the impact of problem-solving courts on their “clients” (problem-solving courts also use new terminology) and people involved in the cases. The most-studied outcome is whether recidivism drops. Berman and Feinblatt refer to the now well-developed literature of evaluations of drug courts, which basically finds that courts work to reduce recidivism somewhat, but not nearly as much as advocates claim. The authors offer several of their own studies as evidence of desired impact, though methodologists will find much to criticize. The very few true controlled experimental studies of drug courts have found that the programs reduce recidivism while the subjects are enrolled and “doing the program,” but that the effect decays in the year following graduation. Rates of recidivism are marginally lower for drug court graduates, and that is a good impact, but scarcely the impact their cheerleaders claim.

The book follows a format commonly used in the self-help genre. Once the new model is defined and then described in action, testimonies from people who have benefited from it come next. These are heart-warming. In keeping with the new model of courts, only one of the testimonies is from an offender whose life was improved by the community court. Others come from a victim who was able to escape domestic violence, and from a tenant who used the services of the Red Hook justice center to mediate her eviction and achieve a negotiated lease. (The latter is not a criminal case, and seems to be old-fashioned mediation provided in a new setting.) Do these courts care much about offenders? Maybe not.

The most interesting part of this book is its chapter on the role of judges and another on the effect of the new court model on individual rights of defendants. The authors acknowledge that there are “deepseated institutional concerns about problem-solving courts.” They criticize the judiciary as being too “tradition-bound,” including the “tradition [that] dictates that judges serve as neutral arbiters” (p.105). The authors apparently are willing to jettison the independence of the judiciary so that they can serve social ends: “public safety concerns are paramount” (p.107). This is revolutionary stuff, or perhaps not. It might simply prove the point of this review’s first paragraph: problem-solving courts are not courts. They are not concerned with due process or adjudicating guilt, either by plea or trial. They are correctional agencies, and as such might be an excellent new model of correctional agency. But as post-adjudicative bodies, they must be called what they really are, and it is not courts.

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