P ROBLEMATIZING P ROBLEM -S OLVING C OURTS
Problem-solving courts are often celebrated for their origins and successes, yet this article challenges the traditional narrative by highlighting that they are not necessarily founded on empirically proven methods This revelation prompts an important question: if these courts are not fulfilling their intended objectives, what accounts for their ongoing expansion and popularity?
Recounting the Traditional Origin Story
Problem-solving courts are specialized judicial systems that focus on addressing criminal or quasi-criminal offenses through treatment and enhanced supervision rather than traditional incarceration These courts aim to provide support and rehabilitation to offenders, promoting better outcomes for individuals and the community.
Established thirty years ago, the drug court has become a benchmark for specialized courts addressing various social issues These courts, characterized by their diversity, vary in focus, approach, and structure, and can be broadly categorized into three types Treatment courts, including mental health, drug, and homelessness courts, aim to tackle issues considered to contribute to criminal behavior.
Accountability courts, such as domestic violence courts and community courts, stress the need to enhance accountability for certain kinds of
34 See Collins, Status Courts, supra note 1, at 1485-86; see also Michael C Dorf & Jeffrey A Fagan, Problem-Solving Courts: From Innovation to Institutionalization, 40 A M
Problem-solving courts are specialized judicial systems that focus on specific issues, as defined in C RIM L R EV 1501, 1508 (2003) One notable example is veterans treatment courts, which are designed to address the unique challenges faced by veterans For a comprehensive understanding of the functioning of veterans courts, refer to Robert T Russell's article, "Veterans Treatment Courts Developing Throughout the Nation," featured in FUTURE TRENDS.
IN S TATE C OURTS : 2009, at 130, 131-32 (Carol R Flango et al eds., 2009), https://ncsc.contentdm.oclc.org/digital/collection/ctadmin/id/1486/ [https://perma.cc/ MCD6-LRHZ] [hereinafter Throughout the Nation].
35 Collins, Status Courts, supra note 1, at 1486 See generally id at 1485-98 (offering a typology of problem-solving courts)
36 Id at 1488-89 (describing “treatment courts”) offenses 37 And status courts, such as veterans courts and girls courts, aim to address the purportedly “unique needs” of certain populations 38
Despite their diversity, problem-solving courts share a common goal: to address issues that would otherwise result in ongoing engagement with the criminal justice system.
The origins of problem-solving courts often stem from a pioneering judge who identifies issues within the criminal justice system related to specific offenses or offenders, prompting the establishment of specialized courts For instance, Judge Robert T Russell, who opened the nation’s first veterans court, highlighted the motivation behind this initiative, emphasizing the need to address the unique challenges faced by veterans in the legal system.
Mental Health Treatment courts, I noticed that many of the participants on my docket had something in common — they were veterans.” 41
From this observation, Judge Russell extrapolated that veterans are a
“niche population with unique needs” that were not being met in the traditional criminal justice system, so he created a new court 42
This account is recited anew seemingly every time a jurisdiction opens a new specialty court 43 In May 2018, the Chief Judge Daniel
Judge Guerin of the Eighteenth Judicial Circuit in DuPage County, Illinois, recently addressed the need for a dedicated court for first-time opioid offenders, highlighting a significant gap in the treatment of drug offenders He emphasized the importance of addressing this growing issue to ensure fair and effective judicial responses.
37 Id at 1489-91 (describing “accountability courts”)
38 Id at 1491-98 (describing “status courts”)
39 See id at 1486; E Lea Johnston, Theorizing Mental Health Courts, 89 W ASH U L.
R EV 519, 521-22 (2012) (“[T]he primary goal of most mental health courts is to reduce recidivism.”)
40 See, e.g., John Adams, Jaye Hobart & Mark Rosenberg, The Illinois Veterans
Treatment Court Mandate: From Concept to Success, S IMON R EV , Oct 2016, at 1, 3 (“[T]he path forward for these treatment courts had been fairly similar from Alaska to New
In York, a dedicated judge or court professional identifies the common challenges faced by veterans within the criminal justice system Collaborating with treatment experts, they develop effective strategies aimed at rehabilitating these individuals.
41 Robert T Russell, Veterans Treatment Court: A Proactive Approach, 35 N EW E NG
J ON C RIM & C IV C ONFINEMENT 357, 363 (2009) [hereinafter A Proactive Approach]
43 See, e.g., Sarah Lustbader, Are Problem-Solving Courts Impeding Progress?, A PPEAL
(Jan 7, 2020), https://theappeal.org/are-problem-solving-courts-impeding-progress/
[https://perma.cc/E8AC-2KHJ] (describing this phenomenon in the context of New
44 Gary Gibula, Specialty Court for First-Time Opioid Offenders Planned in DuPage as
The crisis surrounding substance abuse is more widespread than many realize, particularly affecting first offenders, mainly young individuals with no prior criminal records, who are entering the judicial system without being directed to appropriate courtrooms This issue was highlighted by Judge John Reed in Mercer County, Pennsylvania, who observed a troubling trend in the cases presented to him In response, he advocated for the establishment of the county's first treatment court, which opened in January 2019, aiming to address the significant impact of substance abuse in the community.
The modern problem-solving court movement highlights the role of innovative trial judges who leverage their real-world insights to combat the inefficiencies of stringent criminal justice policies Specialized courts are seen as a response to systemic issues beyond the judicial process, with various commentators identifying the "problems" they aim to address Many emphasize the individual conditions contributing to criminal behavior, such as addiction to substances, alcohol, or gambling, as well as mental health challenges.
Societal failures often lead individuals with similar issues to become entangled in the criminal justice system, as highlighted by the DuPage County opioid task force's funding challenges.
The County is set to establish a Treatment Court, as reported by Michael Roknick in the Herald on November 4, 2018 This initiative follows the successful launch of the County's first Veterans Court by Judge Reed in 2014.
47 See G REG B ERMAN , Judicial Innovation in Action: The Rise of Problem-Solving Courts, in R EDUCING C RIME , R EDUCING I NCARCERATION : E SSAYS ON C RIMINAL J USTICE I NNOVATION
51, 54-55 (2014) [hereinafter Judicial Innovation in Action]; see also J AMES L N OLAN , J R ,
R EINVENTING J USTICE : T HE A MERICAN D RUG C OURT M OVEMENT 44 (2001) [hereinafter
R EINVENTING J USTICE ] (noting that a “common refrain” from drug court officials is:
“What we were doing before simply was not working”)
48 See N OLAN , R EINVENTING J USTICE , supra note 47, at 44 (“[A]dvocates of drug court often speak of the structural pressures that they believe gave birth to the movement”)
49 J AMES L N OLAN , J R , L EGAL A CCENTS , L EGAL B ORROWING : T HE I NTERNATIONAL
Problem-solving courts primarily address issues related to individual offenders, as noted in the 2009 article "Problem-Solving Court Movement." This approach emphasizes tailored solutions for those involved in the justice system, particularly within the context of mental health courts, which reflect a cautious optimism regarding their effectiveness in promoting justice and rehabilitation.
The emergence of mental health courts and drug courts in the 21st century reflects a response to the deficiencies in the criminal justice system regarding the treatment of offenders with mental health needs and substance abuse issues The breakdown of support institutions has led to an influx of cases into an overburdened system, which struggles to address the root causes of criminal behavior, such as addiction and mental health disorders This situation has resulted in certain offenses being overlooked and a lack of dignity afforded to specific groups, including veterans Despite the diversity among problem-solving courts, they collectively aim to leverage judicial authority to tackle individual, systemic, and community-wide issues.
The traditional narrative of problem-solving court development suggests a linear progression, where a specific court model is established, proves effective, and subsequently expands to other jurisdictions These courts are commonly promoted as an "evidence-based" strategy within the criminal justice system.
Judicial innovation has led to the emergence of problem-solving courts, which address issues such as addiction, mental illness, and domestic violence This development is influenced by various social and historical forces that highlight the need for specialized programs in the justice system.
Correcting the Traditional Origin Story
J UDGING P ROBLEM -S OLVING C OURTS
This section reexamines the traditional narrative surrounding the origins and purpose of problem-solving courts, arguing that their emergence is linked not only to external systemic dynamics but also to significant changes in the nature of judging, particularly due to sentencing law reform It highlights that problem-solving courts arose from judicial dissatisfaction and represent a reclamation of authority and expertise within the judiciary.
The article examines bureaucratic behavior theories to uncover the institutional and personal factors that sustain and expand certain organizations, even when they do not serve the public interest It concludes that this unchecked growth is expected to persist, as judges maintain significant control over their own futures, raising ongoing concerns about the effectiveness of these institutions.
Reclaiming Courts
Problem-solving courts are often seen as a solution to external systemic issues, such as unaddressed social challenges and the negative impact of stringent crime policies on court operations While this perspective holds some truth, it fails to acknowledge the important internal changes within the judicial process that have developed concurrently with the establishment of problem-solving courts.
As problem-solving courts developed, judges found themselves with fewer cases to adjudicate, leading to a significant rise in the use of guilty pleas over trials throughout the twentieth century By 1971, the Supreme Court recognized plea-bargaining as a vital aspect of justice administration This trend intensified during the "tough on crime" era, fueled by an increase in prosecutions and changes in criminal and sentencing laws that bolstered prosecutorial authority Today, over 97% of criminal cases are resolved through plea-bargaining, highlighting its critical role in the criminal legal system.
87 See Albert Alschuler, Plea Bargaining and Its History, 79 C OLUM L R EV 1, 5-6
(1979); (noting that plea bargaining had become “common” in the 1920s and
“American criminal courts became even more dependent on the guilty plea” in the subsequent decades); see also id at 26-29 (offering statistics)
89 R ACHEL E LISE B ARKOW , P RISONERS OF P OLITICS : B REAKING THE C YCLE OF M ASS
I NCARCERATION 131 (2019) (noting that the “one-two punch” of the proliferation of federal convictions are achieved through a guilty plea And the percentage in many states is even higher 90
The transition to a plea-based system in criminal cases has significantly altered the role of judges, reducing the number of cases requiring adjudication Consequently, judicial responsibilities have shifted primarily to verifying the constitutional validity of pleas and administering sentences.
In a criminal justice system largely dominated by plea deals, judges possess a vital and exclusive authority: the power to impose sentences However, prior to the rise of problem-solving courts, this essential judicial power was on the decline Throughout most of the twentieth century, judges in both state and federal courts enjoyed nearly unrestricted discretion in determining sentences for criminal defendants Starting in the 1970s, concerns over strict criminal laws and harsh sentencing guidelines began to undermine this authority, effectively sidelining jury trials in the process.
R EV 1435, 1435 (2020) (providing a robust account of the rise of plea bargaining); cf Darryl K Brown, How to Make Criminal Trials Disappear Without Pretrial Discovery, 55
A M C RIM L R EV 155, 159 (2018) (contending that the “rising caseload” explanation for the prevalence of guilty pleas “fail[s] to fully explain the criminal trial’s decline”)
90 See Brown, supra note 89, at 155 n.2 (citing state court statistics).
91 I use the term “adjudicate” in the same manner as Judith Resnik, who defines
Adjudication is a government-led dispute resolution process where judges make decisions based on the information provided by the involved parties Judges are responsible for deciding motions, presiding over trials and hearings, and occasionally determining facts When issuing rulings, judges must offer reasoned explanations for their decisions, while the parties involved are required to comply with these rulings.
In their recent empirical study, King and Wright highlight that in certain jurisdictions, judges play an active role in the plea negotiation process This involvement is further supported by Albert Alschuler’s 1976 study, which documented judicial participation in plea bargaining, emphasizing the evolving dynamics of managerial judging in the legal system.
93 Erin Collins, Punishing Risk, 107 G EO L.J 57, 66 (2018) (“The power to determine the severity of a sentence — to determine how much punishment is due a particular offender for a particular offense — is a core judicial function.”)
94 King & Wright, supra note 92, at 335-36 (“[O]f all the trends in state criminal justice since the 1970s, restrictions on the sentencing discretion of judges is one of the most prominent.”)
95 Douglas A Berman, Sentencing Guidelines, in 4 R EFORMING C RIMINAL J USTICE :
P UNISHMENT , I NCARCERATION , AND R ELEASE 95, 95 (Erik Luna ed., 2017), https://law.asu.edu/sites/default/files/pdf/academy_for_justice/Reforming-Criminal-
In response to the unpredictability of discretionary, indeterminate sentencing systems, many jurisdictions adopted structured sentencing guidelines to limit judicial discretion and encourage judges to impose sentences within a predetermined range based on specific factors For the first fifteen years of the problem-solving court movement, some jurisdictions mandated that judges issue sentences within these guidelines Concurrently, federal and state lawmakers enacted mandatory sentencing statutes that prevent judges from imposing sentences below statutory minimums, leading to a significant transformation in sentencing systems This shift notably altered the authority over sentencing decisions, transferring much of that power to prosecutors.
96 Berman, Sentencing Guidelines, supra note 95, at 97-99 (noting that “nearly every state adopted some form of structured sentencing” that responded to concerns of
“lawlessness” in sentencing); see also Richard S Frase, Sentencing Guidelines in Minnesota,
Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 F ED S ENT ’ G R EP 69,
As of 1999, seventeen states had implemented a sentencing guidelines system, with at least eight additional states contemplating similar measures For the latest updates on state sentencing guidelines and commissions, refer to Alexis.
Lee Watts provides a comprehensive overview of the evolution of sentencing commissions and the establishment of sentencing guidelines from 1978 to the present This timeline highlights significant developments in the field, reflecting changes in legal frameworks and practices that have shaped contemporary sentencing policies For more detailed insights, refer to the full article available at the Sentencing Guidelines Resource Center.
1978-present [https://perma.cc/57XA-E5B2]
97 As a result of the Supreme Court’s decision in Blakeley v Washington, 542 U.S
296 (2004), states could no longer require judges to impose guidelines-based sentences
98 Berman, Sentencing Guidelines, supra note 95, at 99 (noting that “a number” of states adopted of “mandatory sentencing statutes” in the 1980s and 1990s); see also
Subramanian and Delaney highlight that the increasing belief in the effectiveness of harsher penalties to combat crime has led to the popularity of mandatory minimum sentences and recidivist statutes These measures aim to guarantee that offenders classified as "dangerous" face substantial custodial sentences.
The evolution of sentencing practices in the United States has been significant, shifting from discretionary indeterminate systems, which prevailed for nearly a century, to a diverse range of structured sentencing reforms These reforms have transformed the landscape of sentencing, introducing various laws and frameworks that regulate and influence decision-making in the sentencing process.
100 Id at 110-11 (“Scholars have long expressed concerns that structured and determinate sentencing systems will problematically transfer undo sentencing authority and discretion from judges to prosecutors ”); Melissa Hamilton, McSentencing: Mass
Federal Sentencing and the Law of Unintended Consequences, 35 C ARDOZO L R EV 2199,
During the emergence of the problem-solving court model, judges experienced a decline in their sentencing authority, which is crucial in a plea-driven system Concurrently, the intensification of the war on drugs left state trial court judges, who observed the severe consequences of these stringent policies, feeling powerless to mitigate their effects Many judges expressed that the alterations to structured sentencing systems rendered them as mere "rubber-stamp bureaucrats."
The emergence and growing popularity of the problem-solving court model can be attributed to a prevailing sense of judicial dissatisfaction and disempowerment Early insights from drug court judges reveal that they were drawn to this specialty court model due to systemic changes that allowed for greater flexibility in sentencing Many judges expressed frustration with mandatory minimum sentences, finding the drug court approach to be "liberating" in contrast A California drug court judge highlighted this sentiment, emphasizing the newfound freedom in their judicial role.
The California legislature has significantly restricted judicial discretion, mandating specific sentencing guidelines for judges to follow.
2233 (2014) (“Many federal criminal law experts have observed that the implementation of determinate sentencing transfers discretion from judges to United States Attorneys.”)
101 See Eric Miller, Codependency Courts (unpublished manuscript) (on file with author) (discussing the impact of the rise in low-level drug prosecutions on judges)
In his 1992 article, Jack B Weinstein reflects on the Federal Sentencing Guidelines, noting that judges have become mere instruments of a distant bureaucracy in the sentencing process, as emphasized by Stith and Cabranes.
Building a Problem-Solving Court Empire
The foregoing observations start to shed light on the puzzle posed in
Part I: why do problem-solving courts proliferate, despite the underwhelming empirical support for their efficacy? It suggests that problem-solving courts emerged to solve a problem with judging
Problem-solving courts remain successful not solely due to their effectiveness in reducing recidivism or achieving other success metrics, but because the judges who establish and oversee these courts have a vested interest in their continued existence These judges are motivated by both professional and personal incentives to cultivate and expand a network of problem-solving courts.
The “empire-building hypothesis,” 109 also known as the agency expansion hypothesis, the “self-aggrandizement hypothesis,” 110 and the
The "imperial model" of bureaucratic behavior, as outlined in administrative law literature, illustrates how self-interested bureaucrats may strive to broaden their influence to enhance their power and authority This theory highlights the tendency of bureaucrats to act in ways that serve their own interests, ultimately impacting the dynamics within administrative structures.
107 Id at 42 (quoting a drug court judge)
108 Id (“The Drug Court movement is essentially a judge-led movement.”)
109 Daryl J Levinson, Empire-Building Government in Constitutional Law, 118 H ARV
110 Michael A Livermore & Richard L Revesz, Regulatory Review, Capture, and
111 Nicholas Bagley & Richard L Revesz, Centralized Oversight of the Regulatory
The empire-building hypothesis, rooted in public-choice theories, asserts that governmental actors are primarily motivated by self-interest, driving them to expand their power and influence This theory suggests that administrators will advocate for budget increases from Congress to enhance the size and authority of their agencies Consequently, bureaucrats may implement regulations not out of necessity, but rather to serve their own interests and benefit their positions.
The theory suggesting that administrators have interests distinct from those of the agency may initially appear irrelevant to judges, who are typically viewed as neutral figures Michael Dorf, recognizing the presumed impartiality of judges compared to bureaucrats, argues that problem-solving courts ought to stay within the judiciary He acknowledges, however, that these courts operate similarly to parallel administrative agencies.
Problem-solving court judges are often viewed as "functionally indistinguishable" from neutral agencies, as they apply principles in an "even-handed" and non-partisan manner, without personal stakes in the outcomes While they aim for the success of each defendant in the mandated programs, it is essential that they uphold the core tenets of the problem-solving court model impartially, ensuring that no defendant is allowed to evade consequences for failing to meet program requirements This commitment to neutrality stands in contrast to the self-interest typically seen in bureaucratic systems.
112 See Levinson, supra note 109, at 925
113 See Benjamin H Barton, Harry Potter and the Half-Crazed Bureaucracy, 104 M ICH
L R EV 1523, 1530 (2006); see also Edward L Rubin, Public Choice, Phenomenology, and the Meaning of the Modern State: Keep the Bathwater, but Throw Out that Baby, 87
C ORNELL L R EV 309, 310 (2002) (describing inherent human self-interest as an essential component of public choice theory)
According to Daryl J Levinson, the size of a budget may be linked to various factors that self-interested bureaucrats prioritize, such as their compensation, benefits, future job opportunities, and the agency's capacity to achieve policy objectives aligned with their ideological beliefs.
115 Michael C Dorf, Legal Indeterminacy and Institutional Design, 78 N.Y.U L R EV
Courts are viewed as neutral institutions, a perception that significantly shapes their reality, as noted by Dorf Judges in problem-solving courts, like judges in general, do not have financial incentives tied to their decisions or the growth of the problem-solving court system.
While problem-solving court judges maintain neutrality regarding individual case outcomes, this does not imply they are impartial about the overall success of the problem-solving court movement.
Judges in problem-solving courts may lack a direct economic interest in patents, but they still possess self-interest that can influence their decisions These judges can gain professional and personal benefits from overseeing specialized courts, which may drive them to expand these courts beyond the public interest This dynamic raises concerns about the motivations behind the growth of problem-solving courts, as highlighted by the Director of Standards for the National Association of Drug.
Court Professionals (“NADCP”) candidly reflected in 2015, “The aim of the first couple decades of drug courts was to spread drug courts.” 123
Sociologist James Nolan's extensive research and interviews with problem-solving court judges highlight their deep commitment and personal investment in these programs He describes these judges as "true believers" in the problem-solving court movement, emphasizing its profound significance.
The primary criticism of the theory is that bureaucrats may not gain financial benefits from increasing their agency's budget According to Levinson, bureaucrats might pursue budget expansion for various non-monetary motivations, such as a sincere commitment to the agency's mission.
121 See Frank B Cross, Political Science and the New Legal Realism: A Case of
Unfortunate Interdisciplinary Ignorance, 92 N W U L R EV 251, 294-95 (1997) (“A judge cannot increase her salary by doing a better job of judging ”); Frederick
Schauer, Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68
Scholars and the public recognize that legislators, executives, and bureaucrats often act out of self-interest, driven by motives such as re-election, career advancement, and the desire to increase their power and future income However, the concept of self-interested judges is notably underexplored in academic discussions regarding the judiciary and judicial decision-making.
123 Lauren Kirchner, Drug Courts Grow Up, P AC S TANDARD (July 27, 2015), https://psmag.com/news/drug-courts-grow-up#.8mv8crss3z [https://perma.cc/68NQ-
VWTH] (emphasis added) (quoting Terrence Walton, Director of Standards at NADCP)
Walton emphasized the commitment to ensure that "every individual in need" has access to a drug court With nearly 3,000 drug courts established nationwide, the goal now is to make these courts effective and accessible for everyone requiring assistance.
Judges involved in the problem-solving court movement exhibit a strong commitment to its success, often likening their dedication to a religious conviction Nolan notes that these judges actively seek to promote the benefits of problem-solving courts to their peers and beyond, viewing themselves as "proselytizers" of this judicial approach One judge, who has worked across various types of problem-solving courts, even referred to herself as a "disciple" of the movement, emphasizing the importance of expanding its reach Prominent advocates like Greg Berman and John Feinblatt have observed that judges frequently recount their initial experiences with problem-solving courts in a manner that reflects a deep personal transformation.
Berman and Feinblatt advocate for reaching out to those who are not yet aware of problem-solving justice, urging supporters to utilize various platforms such as public service announcements, opinion pieces, and community events to promote this approach effectively.
Enabling Problem-Solving Courts
Authorization
For the first decades of the problem-solving court movement, state legislatures were largely silent regarding problem-solving courts
Aspiring problem-solving court judges utilize their inherent authority to manage dockets and enforce penalties effectively The inception of problem-solving courts stemmed from rigorous docket management, where judges scheduled specific case types, such as those involving substance-addicted individuals or veterans, for designated days.
Judge Russell initiated the first veteran’s court following a recommendation to dedicate a specific day for veterans diagnosed with mental health disorders or substance dependencies This innovative approach aimed to address the unique challenges faced by veterans in the judicial system.
Several states are addressing the legislative gap by enacting laws that establish problem-solving courts, outlining both aspirational and mandatory features Authorization legislation is particularly prevalent for drug courts, with around 60% of U.S states and territories indicating they have implemented laws to support these initiatives.
162 Timothy Casey, When Good Intentions Are Not Enough: Problem-Solving Courts and the Impending Crisis of Legitimacy, 57 SMU L R EV 1459, 1500-01, 1500 n.201
(2004) (describing the process of opening a drug court in New York State in 2004); see
Sohil Shah, Authorization Required: Veterans Treatment Courts, the Need for Democratic
Legitimacy, and the Separation of Powers Doctrine, 23 S C AL I NTERDISC L.J 67, 81 (2014)
In many U.S states, judiciaries possess significant authority to establish specialized dockets and trial courts, leading to the creation of various problem-solving courts This proactive approach by judges in addressing specific issues appears to be a distinctive characteristic of the American judicial system, contrasting with the practices of problem-solving court judges in other countries.
State court judges have increasingly taken on roles beyond their traditional judicial functions, often establishing new courts, a responsibility typically reserved for the legislature This shift indicates a growing reliance on the judiciary to initiate and direct governmental processes, as noted by legal expert Michael Pollack.
Pollack, supra note 27 (manuscript at 33-34)
163 See, e.g., Bernard Edelman, VVA & Veterans Treatment Courts, VVA V ETERAN O NLINE
(Mar./Apr., 2015), http://vvaveteran.org/35-2/35-2_vetcourts.html [https://perma.cc/76SA-
XLWA] (explaining the origins of the first Veterans Treatment Court)
In many states, a legislative gap persists regarding problem-solving courts, including specialized courts like veterans courts For instance, Kentucky established its first veterans court in 2012 without legislative approval While the creation of specialty courts is still uncommon, there is a growing trend of states enacting legislation to authorize various types of these courts These authorization statutes primarily formalize existing practices by allowing the judiciary to establish specialty courts An example of this is seen in Florida, where two localities have successfully implemented such courts.
166 M ARLOWE ET AL , supra note 3, at 9
A study by the Tennessee Administrative Office of the Courts revealed that most states lack legislation specifically addressing veterans courts This highlights a significant gap in legal support for veterans seeking treatment through specialized court systems.
Legislative reports and academic discussions highlight the evolution of problem-solving courts, particularly Veterans Treatment Courts Some states have unified their approach by creating comprehensive statutes or standards that encompass all therapeutic courts, as seen in the Washington Revised Code §§ 2.30.010-.060 (2015) This legislative framework aims to balance judicial processes with legislative standards, as discussed by Benjamin Pomerance in his analysis of the best-fitting uniform for these courts.
C OURTS , S TATE S TANDARDS : B UILDING B ETTER M ENTAL H EALTH C OURTS 2 fig.1 (2015), https://ncsc.contentdm.oclc.org/digital/collection/spcts/id/301 [https://perma.cc/T92T-
Many states have established specific standards for mental health courts, while others have implemented broader standards applicable to various court types Initially, several states introduced legislation for drug courts, subsequently extending similar frameworks to mental health and veterans courts For instance, Arizona authorized drug courts in 1998 through A RIZ R EV S TAT § 13-3422 and later introduced legislation in 2010 for homeless courts, amending it in 2014 to include provisions for veterans and mental health courts.
The authority to establish specialty courts varies by state within the judicial branch In some jurisdictions, this power is granted to the court of general jurisdiction or the presiding judges For instance, Arizona law permits the presiding judge of the superior court to create drug courts, homeless courts, veterans courts, or mental health courts Similarly, Georgia allows any court with jurisdiction over criminal cases involving controlled substances to form a drug court division Tennessee statutes also empower judges to decide on the establishment of such specialized courts.
Veterans courts are established under the authority to "exercise criminal jurisdiction," ensuring they possess the same powers as the originating court In some jurisdictions, the power to create these specialized courts is delegated to higher judicial authorities, such as the chief judge of the judicial district or the state’s supreme court.
In accordance with S TAT A NN § 13-5-144 (2020), the chief judge of a judicial district is empowered to create programs specifically designed for veterans Similarly, M E R EV S TAT tit 4, § 433 (2020) grants the Chief Justice of the Supreme Judicial Court the authority to establish veterans treatment courts These legislative measures highlight the commitment to support veterans within the judicial system.
Each district court in the state is empowered to establish a drug court program, as outlined in A NN tit 22, § 471.1 (2020) Additionally, authority may be delegated to the office of court administration or a problem-solving court commission, such as in U TAH C ODE A NN § 78A-5-303 (2020), which allows the Judicial Council to create a veterans treatment court This legislative framework supports the establishment of veterans courts, leading to the enactment of laws that authorize similar courts across the state.
The presence of authorizing legislation in states is largely insignificant, as the judiciary retains the discretion to establish specialty courts regardless of such statutes Notably, some states have concluded that authorization legislation is redundant, as it merely formalizes a power already held by the judiciary.
California's governor has vetoed legislation aimed at establishing veterans courts three times, arguing that the judiciary already possesses the necessary authority and discretion to create such courts In contrast, Washington State has enacted a law that explicitly allows for the formation of "therapeutic courts," encompassing drug, mental health, veterans, and gambling courts.
169 Shah, supra note 162, at 93-94 New York followed a similar path In 2009, more than a decade after the first drug court opened in New York, the state legislature passed
Criminal Procedure Law 216, which authorized the established practice of diverting certain felony offenders into treatment programs N.Y C RIM P ROC L AW § 216.05 (2009)
Affirmation
Many states have enacted statutes that outline essential processes or "key components" for problem-solving courts, originally established in 1996 for drug courts by a group of practitioners These components were later endorsed by the National Association of Drug Court Professionals (NADCP) and became the national standard for drug court operations Over time, these principles have been adapted for various problem-solving courts, including mental health courts, veterans courts, and DUI courts.
The components offer overarching principles about how the courts should function They identify broad mandates about what the courts
175 W ASH R EV C ODE A NN §§ 2.30.010-.060 (2020) (regarding “therapeutic courts”)
Drug courts are mandated to adhere to specific standards, as outlined in various state codes For instance, Louisiana law requires drug courts to incorporate ten key components, while Arkansas law establishes an evaluation process to ensure compliance with these standards Florida statutes also mandate that drug courts follow the National Association of Drug Court Professionals (NADCP) ten key components Additionally, New Hampshire defines a drug court as a judicial intervention process that significantly complies with these components, reflecting a nationwide emphasis on standardized practices for effective drug court operations.
All veterans treatment court programs in this state must be established and operated in accordance with ten key components set forth by the National Clearinghouse for Veterans Treatment Courts, as outlined by the National Association of Drug Court Professionals Additionally, the Utah Code Annotated § 78A-5-303 (2020) specifies the criteria for these veterans courts.
178 N AT ’ L D RUG C OURT I NST , supra note 9, at 2
180 Id (noting that the Ten Key Components of drug courts provided the framework for other courts); see, e.g., N AT ’ L C TR FOR DWI C OURTS , T HE T EN G UIDING P RINCIPLES OF
DWI Courts and Veterans Treatment Courts are essential components of the judicial system that focus on integrating drug treatment services and early identification of eligible participants These courts provide access to a continuum of services and coordinate strategies while monitoring abstinence through drug testing Institutional actors in these courts are encouraged to adopt a non-adversarial approach, where judges actively interact with defendants, and the court continuously evaluates program goals Additionally, forging partnerships with community organizations and ensuring ongoing education for all staff members are crucial for the success of these programs.
Generally, it seems courts adhere to these general components 182
Judges have long established methods that are now codified in drug court programs, yet data collection and reporting remain a significant challenge A nationwide evaluation of fourteen representative drug courts revealed that while these courts generally followed key program components, they notably struggled with the monitoring and evaluation aspect.
Many locations lack a centralized management information system to effectively capture data on court participants, processes, and outcomes This gap in implementation is evident even in Illinois, where such requirements are mandated.
181 See B UREAU OF J USTICE A SSISTANCE , D EFINING D RUG C OURTS : T HE K EY C OMPONENTS , at iii (1997, reprinted 2004), https://www.ncjrs.gov/pdffiles1/bja/205621.pdf
182 See Susan Turner, Douglas Longshore, Suzanne Wenzel, Elizabeth Deschenes,
Peter Greenwood, Terry Fain, Adele Harrell, Andrew Morral, Faye Taxman, Martin
Iguchi, Judith Greene & Duane McBride, A Decade of Drug Treatment Court Research,
183 See B UREAU OF J USTICE A SSISTANCE , supra note 181, at 17-20 (“Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.”);
Pomerance, supra note 167, at 191 (“In a number of jurisdictions, Veterans Treatment
Courts are not required to develop reliable methods of monitoring court activities, collect relevant data, or report this data in a publicly accessible format.”)
184 Turner et al., supra note 182, at 1504-05
186 Id at 1509, 1513-14; see also Fred L Cheesman II, Dawn Marie Rubio & Richard
Van Duizend, Developing Statewide Performance Measures for Drug Courts, N AT ’ L C TR
FOR S T C TS S TATEWIDE T ECHNICAL A SSISTANCE B ULL , Oct 2004, at 1, 3, https://ncsc.contentdm.oclc.org/digital/collection/ctadmin/id/970/ [https://perma.cc/
Emerging drug courts often prioritize operational issues over the critical task of developing an evaluation plan, despite recommendations that evaluation should be an early focus in establishing these courts Consequently, evaluation planning frequently occurs long after implementation, missing key opportunities for data collection and control group identification Additionally, while every judicial district was mandated to establish a veterans court by January 2018, there is no requirement for these courts to consistently collect or report performance data.
Recent legislative trends are emerging to authorize and standardize problem-solving courts, yet these courts often lack effective oversight, particularly regarding their efficacy While some states have enacted laws mandating the collection and reporting of specialty court performance data—such as participant numbers and outcomes—these requirements typically place reporting responsibilities within the judicial branch and fail to specify which outcomes should be measured or how to define them Furthermore, there are no mandates for achieving specific performance metrics Consequently, despite increased legislative focus on problem-solving courts, state judiciaries and local courts maintain significant discretion over the establishment and management of these courts.
187 See Adams et al., supra note 40, at 10 (noting that “effective data collection” has been missing “from every Illinois [veterans court]”)
188 See, e.g., U TAH C ODE A NN § 78A-5-303(5) (2020) (requiring Veterans Treatment Courts to provide a written report on data, outcomes, and recommendations); see also
M ICH C OMP L AWS § 600.1210 (2020) (requiring Veterans Treatment Courts to collect data “on each individual applicant and participant and the entire program”); V A C ODE
According to Virginia Code § 18.2-254.2(A) (2020), each specialty docket is mandated to provide evaluative reports to the Office of the Executive Secretary of the Supreme Court, which is then required to compile and submit an annual report summarizing these evaluations.
189 See, e.g., V A C ODE A NN § 18.2-254.1(E) (2020) (“Administrative oversight for implementation of the Drug Treatment Court Act shall be conducted by the Supreme Court of Virginia.”)
190 One exception is Michigan, which codified a definition of “recidivism” in 2017
Most state legislatures have established specific eligibility criteria for participants in problem-solving courts, often excluding individuals with violent criminal histories Many states, such as Idaho, Tennessee, and West Virginia, prohibit participation in specialty courts for defendants currently charged with or previously convicted of violent felonies or sex offenses These restrictions aim to ensure that court participants have a relatively limited criminal background, focusing on non-violent offenders to promote effective rehabilitation in drug court programs.
Q UESTIONING P ROBLEM -S OLVING C OURTS
The seemingly minor observations regarding problem-solving courts raise significant concerns about their unchecked growth Despite potentially increasing judicial job satisfaction, the lack of oversight and deep judicial investment have turned these courts into self-reinforcing institutions This dynamic not only fosters resistance to new perspectives on substance addiction and mental health issues within the criminal legal system but also hinders the adoption of other reform initiatives aligned with the goals of problem-solving courts Therefore, the sustainability of the problem-solving court model warrants critical examination.
Confirming Courts
Shaping Success
Problem-solving courts, despite their varied formats, share a common goal of reducing recidivism This objective serves as a benchmark for evaluating court effectiveness Part I reveals that while drug courts occasionally achieve modest reductions in recidivism on a national level, the impact of other court types remains unclear Additionally, this section examines how courts can influence the interpretation of success metrics and selectively present research findings to highlight their achievements.
Recidivism refers to the repeated engagement in criminal behavior after an individual has been labeled as a criminal or delinquent While the concept is simple, it can be assessed through various metrics such as arrests, official charges, and convictions However, measuring recidivism through arrests has significant limitations, primarily because an arrest does not confirm that a crime has actually occurred.
Thus, it is overinclusive: it captures contact with police that may be unfounded or that will not lead to formal charging, let alone an official
Incentives and Bounded Rationality in Prosecutorial Decision Making, 74 M O L R EV 999, 1011-12 (2009)
199 C ARY H ECK , N AT ’ L D RUG C OURT I NST , L OCAL D RUG C OURT R ESEARCH : N AVIGATING
P ERFORMANCE M EASURES AND P ROCESS E VALUATIONS 3 (2006), https://www.ndci.org/wp- content/uploads/Mono6.LocalResearch.pdf [https://perma.cc/ZX7U-Y9SK]
200 Id (“Various studies have used measures ranging from bookings to full convictions ”); see Turner et al., supra note 182, at 1510
Arrest is often used as a metric for measuring recidivism, despite its conceptual flaws, as highlighted by Anna Roberts in her article "Arrests as Guilt." This approach is prevalent primarily due to the ease of documentation associated with re-arrests, making it a common yet problematic standard in assessing an individual's likelihood of reoffending.
Many states measure recidivism in problem-solving courts by focusing on convictions rather than re-arrests, which can lead to a lower overall estimate of recidivism rates This approach overlooks cases that are dismissed and those that remain pending at the conclusion of drug court treatment programs.
When traditional metrics fail to support the effectiveness of a program, advocates often turn to alternative measures to bolster their claims A recent assessment of felony drug courts in Idaho, released by the Idaho Judicial Branch, highlights this issue The evaluation identified recidivism as the main focus, revealing that drug courts did not meet expectations in this critical area.
202 Nora V Demleitner, How to Change the Philosophy and Practice of Probation and
Supervised Release: Data Analytics, Cost Control, Focus on Reentry, and a Clear Mission,
28 F ED S ENT ’ G R EP 231, 236 (2016) (“Many U.S recidivism data sets are based on re- arrest rather than reconviction.”)
A survey by the National Center for State Courts revealed that out of nine states examined, four relied solely on convictions to measure recidivism, while an additional state considered both arrests and convictions in their assessment.
C HEESMAN & W ILLIAM F EDERSPIEL , N AT ’ L C TR FOR S TATE C OURTS , P ERFORMANCE
M EASUREMENT OF D RUG C OURTS : T HE S TATE OF THE A RT 9 tbl.2 (2008), https://ncsc.contentdm.oclc.org/digital/collection/spcts/id/171/ [https://perma.cc/HBM6-
CVSJ] The survey is not exhaustive; at least two states not included in this survey also use conviction See, e.g., F RED L C HEESMAN , II, N ICOLE L W ATERS , S COTT E G RAVES ,
K ATHRYN J G ENTHON & A DRIENNE M T ATEM , N AT ’ L C TR FOR S TATE C OURTS , M ARYLAND
I don't know!
I DAHO M ENTAL H EALTH C OURTS E VALUATION R EPORT , at iii (2019), https://isc.idaho.gov/psc/reports/2019-MHC-Evaluation-Report.pdf [https://perma.cc/
In Michigan, recidivism for mental health court evaluation is defined as a new case filing leading to a conviction The state established a formal definition of recidivism in 2017, encompassing any rearrest, reconviction, or reincarceration for felony or misdemeanor offenses, as well as probation or parole violations (MICH COMP LAWS § 761.1(s) 2020) However, the annual Problem Solving Court report for fiscal year 2019 focuses solely on new convictions when assessing outcomes for drug and sobriety courts, as noted in the Michigan Supreme Court's FY 2019 report on Problem-Solving Courts.
A NNUAL R EPORT 15-16 (2019), https://courts.michigan.gov/Administration/SCAO/
Resources/Documents/Publications/Reports/PSCAnnualReport.pdf [https://perma.cc/
YE9F-FDSN] [hereinafter FY 2019 R EPORT ]
205 R OBERT O WENS , J UDICIAL B RANCH OF THE S TATE OF I DAHO , F ELONY D RUG C OURTS
E VALUATION R EPORT 8 (2014), https://isc.idaho.gov/psc/reports/Id_Felony_DC_Eval_
The evaluation of drug courts indicated no significant difference in recidivism rates compared to a control group However, this does not imply that drug courts are ineffective The evaluation highlights that recidivism alone is an inadequate measure, as it overlooks certain offenders who experienced negative outcomes, such as incarceration due to probation violations When these factors are considered, drug courts demonstrate success, with participants exhibiting the lowest rates of undesirable outcomes among the groups analyzed.
Problem-solving court practitioners selectively choose metrics and empirical findings to bolster their success narratives, as exemplified by the NADCP website Established in 1994, the NADCP serves as the leading training, membership, and advocacy organization for the treatment court model, guided by a Board of Directors mainly composed of state court judges This organization significantly influences the practices and perspectives of problem-solving court judges, with research indicating that judges tend to trust the NADCP more than federal guidance, likely due to their primary membership in the organization.
NADCP proudly declares on its website that treatment courts “save considerable money for taxpayers,” and specifies that the courts
“produce benefits of $6,208 per participant, returning up to $27 for
207 Indeed, doing so would call into question the state’s statutory declaration that drug courts are effective See M ARLOWE ET AL , supra note 3, at 14
210 Board of Directors, N AT ’ L A SS ’ N D RUG C T P ROFESSIONALS , https://www.nadcp.org/ about/board-of-directors/ (last visited July 7, 2019) [https://perma.cc/6U63-DCPE]
211 Richard S Gebelein, Reflections from a Retired Drug Court Judge: What We Have Learned About Drug Treatment Courts in the Past 25 Years, D EL L AW , Spring 2017, at 8, 9
212 Barbara Andraka-Christou, What Is “Treatment” for Opioid Addiction in Problem-
Solving Courts? A Study of 20 Indiana Drug and Veterans Courts, 13 S TAN J C.R & C.L
189, 248-49 (2017) (explaining that most survey respondents said that their practices were heavily influenced by information they received at the annual NADCP conference)
214 Id every $1 invested.” 215 In support of this claim, the website links to the
National Institution of Justice’s 2011 Multi-Site Adult Drug Court
Evaluation (“MADCE”) 216 The study did find that the “net benefit of drug courts is an average of $5,680 to $6,208 per participant, returning
The MADCE researchers indicate that while drug courts may reduce costly criminal offenses, their findings are not statistically significant and emphasize that drug courts are more expensive than traditional courts Furthermore, the researchers highlight that these courts do not significantly enhance labor market participation or health, which are areas where substantial benefits could be realized Despite claims of cost-effectiveness, the overall expenses associated with drug courts may offset any potential savings.
Nor does the NADCP highlight other less favorable findings of the
The MADCE study raises concerns about the effectiveness of drug courts, suggesting that they may not consistently reduce incarceration rates for individuals involved in the program.
215 Treatment Courts Work, N AT ’ L A SS ’ N D RUG C T P ROFESSIONALS , https://www.nadcp.org/treatment-courts-work/ (last visited June 18, 2019)
[https://perma.cc/7QY5-NW76]
216 See S HELLI B R OSSMAN , M ICHAEL R EMPEL , J OHN K R OMAN , J ANINE M Z WEIG ,
C HRISTINE H L INDQUIST , M IA G REEN , P M ITCHELL D OWNEY , J ENNIFER Y AHNER , A VINASH S.
B HATI & D ONALD J F AROLE , J R , T HE M ULTI -S ITE A DULT D RUG C OURT E VALUATION : T HE
I MPACT OF D RUG C OURTS , V OLUME 4 (2011), https://www.ncjrs.gov/pdffiles1/nij/ grants/237112.pdf [https://perma.cc/3YKE-R6VM]
Research indicates that the average drug court participant has a net negative impact on society, yet participation in drug court programs reduces this harm by approximately $5,600 to $6,200 per individual.
219 Id at 247 The Department of Justice Office of Justice Programs also misleadingly characterized the MADCE findings, claiming that “drug courts saved an average of
$5,680 to $6,208 per offender overall,” but without noting this finding was statistically insignificant See U.S D EP ’ T OF J USTICE : O FFICE OF J USTICE P ROGRAMS , D RUG C OURTS 1
(2020), https://www.ncjrs.gov/pdffiles1/nij/238527.pdf [https://perma.cc/NA6H-
A report by the National Drug Court Institute, part of the NADCP, presents findings that may be misleading It accurately states that the GAO’s 2011 study evaluated thirty-two drug courts, revealing that these courts can reduce recidivism rates by 6-26%.
AL , supra note 3, at 16 It omits, however, that the GAO determined that these recidivism reductions were statistically significant in only eighteen of these studies
The NDCI's presentation of the GAO-12-53 report suggests that thirty-two studies indicated drug court participation led to reduced recidivism rates, rather than the eighteen studies actually identified by the GAO.
Excusing Failures
Proponents of problem-solving courts often overlook studies that challenge their success narrative, occasionally acknowledging but ultimately dismissing these findings One common dismissal strategy involves attributing the failures of certain courts to individual shortcomings rather than the model itself For instance, Greg Berman, a prominent figure in the problem-solving court movement, argues that critiques stem from a "shoddy practice effect," suggesting that the issues raised by critics are linked to the performance of specific judges, attorneys, and courtrooms, rather than reflecting any inherent flaws in the problem-solving court model.
Problem-solving court practitioners often draw on their personal experiences and observations to challenge the reliance on quantitative studies, which are frequently used to bolster the narrative of success in these courts.
— cannot possibly capture the successful impact of the problem-solving
A recent study highlights that drug courts offer a viable alternative to incarceration for successful participants However, the repercussions for those who do not complete the program are significantly harsher compared to traditional legal proceedings.
224 Rempel et al., supra note 76, at 190
In the context of problem-solving courts, it is essential to recognize the 'shoddy practice effect,' which highlights the challenges in distinguishing effective practices from ineffective ones This consideration is crucial for any initiative aimed at improving judicial processes and outcomes.
Drug court professionals argue that quantitative studies fall short in capturing the complexities of treatment progress, as they fail to reflect the real-life experiences, including the fluctuations and challenges faced by individuals in recovery.
To address the limitations of quantitative studies, judges in problem-solving courts frequently prioritize qualitative success narratives Consequently, evaluations of drug courts typically highlight and underscore individual success stories.
These individual narratives of success have become central to judges’ defense of the court model 229
The emphasis on individual achievements allows judges to maintain confidence in the effectiveness of their courts, despite research indicating that other courts may not be performing as well This perspective complicates the critique of problem-solving courts, as their ability to positively impact the lives of certain individuals raises questions about the validity of any criticisms.
While problem-solving courts are often praised for their success stories, it's important to recognize that these successes are exceptional In many states, only about 50% of participants complete their programs successfully The other half either do not meet the program requirements or choose to leave voluntarily Unfortunately, those who do not succeed in these programs typically experience worse outcomes than if they had not participated at all.
227 N OLAN , R EINVENTING J USTICE , supra note 47, at 127 (quoting drug court personnel from Goldkamp & Weiland study)
228 See id at 127-28; see, e.g., M ICH S UPREME C OURT , FY 2019 R EPORT , supra note 204, at 3 (recounting stories of court graduates)
In "Reinventing Justice," N Olan discusses how narrative-based criteria serve as common justifications used by judges and drug court officials to support the drug court movement Additionally, Eric J Miller highlights the dual role of punishment and treatment within this framework, emphasizing the importance of a balanced approach to justice.
Process, J OTWELL (Sept 18, 2019) (reviewing Wendy Bach, Prosecuting Poverty,
The article "Criminalizing Care" discusses how problem-solving court judges focus on individual success stories to shift the perception of evidence-based outcomes in the criminal justice system By highlighting these narratives, judges aim to redirect the conversation towards more constructive and rehabilitative approaches, emphasizing the importance of personal achievements in the context of treatment and punishment.
Studies indicate varying completion rates for drug court participants, with Maryland reporting a 47% completion rate and a 51% graduation rate among felony drug court offenders These statistics highlight the challenges and successes within drug court programs.
S OLVING C OURTS A NNUAL R EPORT 11 (2018) (reporting that, in fiscal year 2018, 47% of all the people who left adult drug court successfully completed the program)
Qualitative accounts of individual successes in the traditional court system highlight the positive outcomes for some participants, but they fail to capture the full picture While some individuals benefit from court participation, many experience unchanged or even deteriorating results, underscoring the need for a more comprehensive understanding of the system's impact.