‘Let Judges Judge Again’: Why Debating Problem-Solving Courts Misses the Real Problem

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Photo by Patrick Feller via Flickr

Over the past three decades, the U.S. judicial system has been transformed with the addition of courts meant to provide alternatives to conventional punishment.

More than 4,000 so-called “problem-solving” courts have emerged around the country to address specific behavioral issues, such as addiction or mental illness, which bring many individuals into contact with the justice system.

But, according to a Virginia law professor, while they are well-intentioned responses to “issues that plague our criminal legal system,” they sidestep the real problem: the erosion of judicial authority on the bench.

A draft paper authored by Erin R. Collins, Associate Professor at the University of Richmond School of Law, notes that data backing up the effectiveness of drug courts and other alternative courts is “underwhelming, inconclusive, or altogether lacking,”

She cites a recent Federal Judicial Center study which found that “participation in the federal re-entry [problem solving] courts …produced no statistically significant difference in recidivism rates for court participants.”

At the same time, there isn’t enough research available to assess the other areas these courts are involved in, she said.

Moreover, Collins cites research that asserts the re-entry “problem solving” court model “cannot be said to be a cost-effective method for reducing revocation and recidivism.”

Over the past decades, problem-solving courts have expanded to handle the special needs of veterans, families and young people.

The jury is still out on their effectiveness, however. Collins notes that judicial opinions published from across the country state that these courts “are effective in reducing recidivism,” and they back up the claim with statistics.

Nevertheless, she argued that one reason judges like them is their ability to “revive a sense of purpose and authority….in an era marked by diminishing judicial power.”

She observed that around the same time as the “problem-solving” court model was emerging, judicial sentencing authority was constrained by plea bargaining and by guideline ranges for drug offenses in maximum-minimum sentencing.

Similar constraints came with the passage of ‘Three-Strikes” laws which can send a defendant to prison for life if he or she commits a third offense, however minor.

The legal guardrails imposed on judges made some feel like “rubber-stamp bureaucrats” or “judicial accountants,” according to one study cited by Collins.

“Problem-solving” courts don’t have those guardrails, thus giving judges back the authority and discretion they once had. That has been an incentive, Collins claimed, to grow the “problem-solving court empire.”

Collins quoted a Roanoke, Va., judge who presided over both a drug court and conventional criminal court, and said “I get more personal satisfaction out of what I’m doing with the drug court population than with anything I do for the remainder of the week.”

Jeffrey Tauber, a former drug court judge and the founding president of the National Association of Drug Court Professionals, reflected in Collin’s study that “he had talked to hundreds of problem-solving court judges and had “not found a judge yet who has done this work for a significant period of time who hasn’t said it is the most satisfying work that he has done in his career as a judge.”

Another reason judges may advocate for more “problem-solving” courts to help with drug addiction and mental illness is because they truly believe the work they’re doing is helping people, Collins wrote.

For example, “problem-solving court judges were significantly more likely (83 percent) than other judges (68 percent) to believe that their courts are actually helpful to the litigants.”

Even where drug courts and other “problem solving” variations support the “evidence-based” approach, many fail to embrace current medical research. Collins noted, for example, that some drug courts refuse to order Medication-Assisted Treatment (MAT), despite data indicating it’s effective at curtailing addiction.

Overall, Collins believes that “problem-solving” courts are not the most effective reform strategy. Rather than solving the problems they were meant to address, they exacerbate the more general problem of judicial authority in our legal system.

“Instead of dealing with the symptom [of the problem] by creating new courts, we should focus on the cause,” Collins concludes.

“Perhaps it is time to find ways to allow judges to judge again.”

The full paper can be accessed here.

This summary was prepared by TCR staff writer Andrea Cipriano.

One thought on “‘Let Judges Judge Again’: Why Debating Problem-Solving Courts Misses the Real Problem

  1. Additional concerns I have had is that these “problem-solving” courts require judges with certain skills at the helm, and therefore may not have longevity in a particular jurisdiction; and secondly, they can not be scaled to address the needs of all defendants. Attention given these special populations comes at a cost — especially to the probation/pretrial services staff members who assume much of the responsibility. Time and money are limited and not necessarily given to the higher risk population who could benefit the most.

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