Problems With "The Problem of Problem-Solving Courts"

Last week, a new article on problem-solving courts came across my radar. Written by Erin R. Collins, a professor at the University of Richmond School of Law, “The Problem of Problem-Solving Courts,” attempts a revisionist history of problem-solving justice.  As I read it, Collins makes three principal arguments against problem-solving courts: 

1. “Problem-solving courts also emerged to solve a problem internal to the judicial process itself: a growing sense of judicial dissatisfaction and disempowerment caused by the rise of structured and mandatory sentencing schemes.”

Collins claims (with no empirical evidence) that, essentially, judges across the United States came to feel powerless as a result of sentencing schemes that limited their discretion and have sought to use problem-solving courts to increase their authority.

Despite the lack of supporting data, it is of course possible that mandatory sentencing laws may have been a factor in the rise of problem-solving courts. But, to paraphrase Inigo Montoya from The Princess Bride, this doesn’t mean what Collins thinks it means.  Collins seems to think that this is a damning indictment of problem-solving courts.  It is not.  Rather, it is an indication of why they are an important reform movement. 

Problem-solving courts first emerged more than 25 years ago in a political moment very different from the one that we currently occupy.  This was an era where “tough on crime” rhetoric and policymaking were ascendant.  Criminal justice legislation at the state and federal level tended toward strengthening penalties for wrong-doing – mandatory minimums, three-strikes-and-you’re-out, and other such laws. 

Problem-solving courts were a response to this reality.  In a hostile political environment, they sought to push the justice system away from strictly punitive responses to criminal behavior and toward more rehabilitative sentencing outcomes.  They also encouraged justice system actors (not just judges but attorneys and clerks and court officers) to see defendants as individuals worthy of being treated with dignity and respect. 

In the process, problem-solving courts recalibrated the balance of power in the courtroom. The sentencing reforms of the preceding years had tilted the playing field in the direction of prosecutors – their charging decisions and sentencing recommendations largely dictated how a case would proceed for defendants who were facing the threat of long spells behind bars.  By restoring a measure of judicial discretion, problem-solving courts have helped to improve fairness in the justice system, allowing thousands of defendants to avoid harsh sentences.  They also provided a framework that encouraged prosecutors to step back from maximalist and retributive approaches to justice. This helped set the stage for the progressive prosecution movement that has emerged over the past several years.

In her effort to make the case for the importance of judicial discretion as an underlying driver of the problem-solving court movement, Collins gives short shrift to a much more obvious force fueling the expansion of these programs.  Judges and court administrators faced massive spikes in criminal court caseloads in the 1980s.  Many understandably sought new ways to solve the problems that were fueling the influx of cases. They gravitated toward programs like drug court and mental health court not because they were petty bureaucrats seeking to expand their power but because they were reformers seeking to solve the real-life problems of court users.  And they did this in the face of powerful countervailing winds, including the widespread idea that “nothing works” to change the behavior of offenders.  Indeed, the success of problem-solving courts has arguably helped to change this dynamic, making it clear that criminal justice interventions can succeed in reducing crime. 

2.“the actual data on [problem-solving courts] efficacy is underwhelming, inconclusive, or altogether lacking”

Collins seems to long for a world in which new reforms are rigorously tested in experimental settings before being replicated in other places and where researchers render clear judgments as to whether the programs work or not.  I sometimes pine for this ideal world myself, but it is not alas the world in which we live. 

In my experience, research findings are always mixed.  Researchers almost never deliver categorical judgments, either positive or negative, about social interventions.  It is fair to say that the research literature does not speak unequivocally about problem-solving courts.  There are studies that have documented negative impacts.  There is still much we don’t know.  There is always a need for more research.  (There is also a need for discipline and modesty among advocates of problem-solving justice, who have sometimes over-stated the impact of their programs.)

Reasonable people can disagree about how to interpret research findings.  Collins finds the literature on problem-solving courts underwhelming.  I find it pretty convincing.  I base my conclusion on sources like the following:

• A review of 150 (!) drug court evaluations finds that “research has amply demonstrated the positive impact of adult drug courts on re-offending… an array of cost-benefit studies almost universally confirm that drug courts save money.” (Rempel, M. (2014). “Drug Courts.” pp. 1159-1170 in Encyclopedia of Criminology and Criminal Justice, eds. G. Bruinsma & D. Weisburd. New York, NY: Springer.      

• A review of 17 studies of mental health courts (involving more than 16,000 participants) concluded that “our finding supports the effectiveness of mental health courts in reducing recidivism.” 

Of course, recidivism is not the only measure that matters.  Beyond recidivism, problem-solving courts have been documented to achieve a range of other positive outcomes.  This includes improving perceptions of justice, both among defendants and among community residents.  In a moment when the justice system is suffering from a crisis of legitimacy in many quarters, problem-solving courts offer potentially valuable lessons about how to promote public trust in justice.  And many (but not all) problem-solving courts have reduced the use of incarceration as well. 

In the end, the most honest, bottom-line assessment of problem-solving courts is probably this one: “Problem-solving courts are not silver bullets. The impact they have on reoffending is positive but also modest, like any other evidence-based intervention."  

The research about problem-solving courts may not blow Collins away, but it is robust when measured against other criminal justice programs.  Here we would be wise to remember the late Joan Petersilia’s cautionary note:

There’s nothing in our history of over 100 years of reform that says that we know how to reduce recidivism by more than 15 or 20 percent. And to achieve those rather modest outcomes, you have to get everything right – the right staff, delivering the right program, at the right time in the offender’s life, and in a supportive community environment. We just have to be more honest about that. 

(Indeed, there is more research to document the effectiveness of problem-solving courts than there is for diversion programs, pretrial supervised release programs, and credible messenger programs, to mention just three reforms that are being broadly replicated at the moment.)

3.  “[The] belief that problem-solving courts are the most effective reform strategy is problematic not only because it is inaccurate, but also because it can create resistance to alternative reforms.”

Collins argues that problem-solving courts are standing in the way of other, more fundamental reforms.  In New York, something like the opposite has been the case – problem-solving courts have been the foundation upon which other reforms have been built.  Two examples are worth highlighting in this regard. 

For decades, criminal justice advocates sought to reform New York’s Rockefeller Drug Laws, which mandated long prison terms for those convicted of drug offenses, without success.   When change finally happened, in 2009, government decisionmakers cited the impact of New York’s drug courts as one of the justifications for passing new legislation.  Indeed, the legislation that passed explicitly sought to expand judicial discretion to offer drug court alternatives to a broader range of defendants.  

More recently, the New York City Council approved a plan to close the notorious jail complex on Rikers Island.  This systemic reform was only conceivable because problem-solving courts had helped to change the culture within the local justice system.  According to the New York Times:

Fewer inmates are behind bars in New York on any given day than at any time in the past 24 years…While the plunge in the city’s crime rate has undoubtedly been a critical factor, a number of other large cities where crime has also fallen have not seen a parallel drop in their jail population. Instead, steps taken by the city, including special courts to deal with nonviolent offenders and programs to deter former convicts from returning to jail, appear to be bearing fruit…New special community courts in Midtown Manhattan, Brooklyn, Harlem and the Bronx as well as drug courts and mental health courts, are meting out alternative sentences like street cleaning or drug treatment instead of jail time. 

Within the justice system, problem-solving courts helped shift the attitudes of judges and prosecutors iabout sentencing and interactions with defendants.  Outside of the system, problem-solving courts have demonstrated to the public that alternatives to incarceration can achieve positive public safety outcomes, in turn making it politically acceptable to support policies that promote rehabilitation and decarceration. 

Problem-solving courts have made an important contribution to criminal justice reform in the United States.  During decades in which it was politically impossible to advance any kind of legislative change that was not focused on strengthening penalties, problem-solving courts managed to introduce significant change within one of our most conservative (with a small “c”) institutions: the courts.  They demonstrated that the walls would not cave in if we treated defendants and victims alike with humanity and decency.  They also helped make the case that it is possible to change the behavior of offending populations during an era when the very idea of rehabilitation was widely discredited.  In sum, we can only imagine the systemic reforms that are currently being advanced because of the success of problem-solving courts.  

The challenge now confronting problem-solving courts is how to adapt to a world that they helped to create.  If “regular” courts begin to look more and more like problem-solving courts, how will problem-solving courts evolve?  This is where Collins’ article is helpful.  To continue to make a positive contribution to criminal justice reform, problem-solving courts must be committed to rigorous self-reflection and continuous self-improvement.  Reading and engaging with thoughtful critics like Collins is essential to the long-term health of problem-solving justice.