What Are Problem-Solving Courts?

By Kimberly Tuttle (CMC ’19)

Problem-solving courts, also called collaborative courts, are interdisciplinary state courts that aim to reach meaningful resolutions through the participation of special experts. Problem-solving courts are procedurally very different from traditional courts. They take many forms, including community courts, drug courts, homeless courts, and mental health courts. Among the most common are drug courts that target criminal defendants who have drug and alcohol dependencies. Problem-solving courts often go unnoticed, but it is important to include them in criminal justice discourse so they can receive proper attention that will yield accurate rehabilitative studies and increased funding.

Problem-solving courts examine the underlying issues that bring defendants into the courtroom, and create innovate solutions to address those issues. The motivation behind problem-solving courts is therapeutic jurisprudence, which is the multidisciplinary examination of how law and mental health interact. Problem-solving courts offer rehabilitative solutions, rather than retributive sentences. They were developed in 1989 out of frustration by both the legal system and the public to the large number of cases that cycled through the court system and remained unresolved. Problem-solving courts have been widely accepted and viewed as a national success, however, more accurate data is needed to determine the long-term effects of the courts.

Problem-solving courts, like traditional courts are led by judges. However, the two courts differ considerably in their case processing. Drug court cases, for example, require immense inter-agency planning before actually reaching the courtroom. Often times the defense bar and local prosecutors meet to determine which participants are eligible to partake in the problem-solving program and to create a system of rewards and sanctions to respond to participant’s actions in the program. In addition, legal officials will work with drug treatment providers, probation departments, and police officers to create a reporting system protocol to communicate to the court with. The correspondence between drug experts, legal experts, and so forth is critical for the success of problem-solving courts.

The differences between problem-solving courts and traditional courts continue through the trial process. In problem-solving courts, defendants are referred to as clients and the judge is knowledgeable of the client’s life on personal levels. Additionally, problem-solving court judges are able to speak to clients directly in a casual manner and have complete discretion over the client’s treatment program. Judges decide when to reward the client with extrinsic motivators, when to sanction the client, and when the client is ready to graduate from the problem-solving program. The courts vary considerably depending on the jurisdiction, but when a client has completed the necessary program, the closed case typically results in either no criminal conviction, a guilty plea with credit for time served, a suspended sentence, or a standing conviction.

The level of judges’ discretion in problem-solving courts appears to be the biggest criticism of the rehabilitative system. Judges in traditional courts are required to uphold standards of judicial neutrality, independence, and impartiality. Critics say these values are abandoned when judges become a participant in the rehabilitation process of defendants. Judges become obligated to accept a role that is more than a referee or a spectator, thus, making them more likely to break the boundary between adjudicator and advocate. The implications of the “smart on crime” approach judges take in problem-solving courts opposed to the “tough on crime” approach that is taken in traditional courts is unknown due to the lack of empirical work that has been done on the subject.

It is clear that ethical standards in the courtroom are loosened for problem-solving judges, via judge’s participation in ex-parte meetings and their display of emotions for the clients’ success. However, the dynamic of problem-solving courts is different than that of traditional courts for a reason. If clients of problem-solving courts were treated the same way defendants are treated in the traditional criminal justice system, the rehabilitative nature of problem-solving courts would dissipate.

One of the biggest issues facing problem-solving courts today is funding. The most recent census of problem-solving courts occured in 2012, at 3,052 courts in the United States. Since 2012, the courts have gained popularity and risen in numbers. There is no doubt that these specialized courts are more expensive compared to conventional adjudication. More empirical data on the outcomes and trends of problem-solving courts are needed for the survival of the courts. Some studies, namely Barnoski and Aos 2003 and Belenko 2001, present positive results of problem-solving courts reducing substance abuse, jail overcrowding, and recidivism rates. Though, the data are restricted due to the lack of scientific rigor and small-scale analysis associated with the number of participants. If problem-solving courts did prove to consistently produce positive data, like low recidivism rates, the long-term cost-effectiveness would outweigh the costs of maintaining the courts. If this is the case, more funding opportunities would arise for the special courts and they could continue to contribute to the positive feedback loop of rehabilitation and low crime rates.

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