Breaking with tradition: Introducing problem solving in conventional courts

Abstract

Although their influence in the USA is growing, the country's more than 2500 problem-solving courts – such as drug courts, community courts, and domestic violence courts – still impact only a portion of the millions of cases that pass through US state court systems each year. As a result, some advocates of problem solving have begun to explore other ways – apart from establishing more problem-solving courts – to apply the lessons learned since the first models emerged in the 1980s. This paper, which is geared toward justice practitioners, describes how this might work. The paper discusses why problem solving is considered by many to be desirable, which practices and principles appear to be easiest to transfer to conventional courtrooms, the attitudes of judges, prosecutors, defense attorneys, and court administrators toward problem solving, and examples of practitioners who have successfully integrated problem solving into their work. The paper also proposes eight strategies for promoting problem-solving practices in conventional courtrooms, and suggests that change can be achieved gradually – in some instances, by making only small adjustments to current practice.

Keywords:

• problem-solving innovation
• court reform

Acknowledgements

This article was supported by the Bureau of Justice Assistance, Office of Justice Programs, US Department of Justice, under Grant Number 2005-DD-BX-0007. Points of view and opinions in this document are those of the author and do not necessarily represent the official position or policies of the US Department of Justice. The author would like to thank the following people who provided advice, information and feedback: Dan Becker, Greg Berman, Fred Bonner, Diana Burleson, David J. Carroll, Pam Casey, Cait Clarke, A. Elizabeth Griffith, Karen Hayter, Robert Hood, Ann O'Regan Keary, Julius Lang, Uriel Neto, Kim Norris, Kristine Orlando, Wayne Pearson, Kenneth Russell, Robin Steinberg, Mark Stephens, Mark D. Stoner, Anne Swern, Susan Wardell, Michelle Waymire, and Brian Wynne.

Notes

1. C.W. Huddleston III, K. Freeman-Wilson, D.B. Marlowe and A. Roussell. ‘Painting the Current Picture: A National Report Card on Drug Courts and other Problem Solving Court Programs in the United States' (Washington, DC: Bureau of Justice Assistance, 2005); Greg Berman and John Feinblatt, Good Courts: The Case for Problem-Solving Justice (New York: The New Press, 2005).

2. The average adult drug court, for example, enrolls only 40 participants per year; experts estimate that many more drug-addicted offenders might benefit from them. See Donald J. Farole, Jr., ‘The Challenges of Going to Scale: Lessons from Other Disciplines for Problem-Solving Courts (Center for Court Innovation, New York, 2006).

3. For a general overview of research relating to problem-solving courts, see Greg Berman and Anne Gulick, ‘Just the (Unwieldy, Hard to Gather But Nonetheless Essential) Facts, Ma'am: What We Know and Don't Know About Problem-Solving Courts’, The Fordham Urban Law Journal, 30, no. 3 (March 2003): 1027–1053. For an overview of research relating to drug courts, see Amanda B. Cissner and Michael Rempel, ‘The State of Drug Court Research: Moving Beyond “Do They Work?”’(Center for Court Innovation, New York, 2005). The Government Accountability Office agreed that the evidence shows that adult drug courts do reduce recidivism. See US Government Accountability Office, ‘Adult Drug Courts: Evidence Indicates Reduced Recidivism and Mixed Results for Other Outcomes’ (Report to Congressional Committees, February 2005). For an overview of research relating to community courts, see Dana Kralstein, Community Courts: A Literature Review (New York: Center for Court Innovation, 2005). There is no definitive overview available of research on domestic violence courts, although there have been a number of important studies, including: A.R. Gover, J.M. MacDonald and G.P. Alpert, ‘Combating Domestic Violence: Findings from an Evaluation of a Local Domestic Violence Court’, Criminology and Public Policy 3, no. 1 (2003):109; K. Henning and L.M. Klesges, ‘Evaluation of the Shelby County Domestic Violence Court: Final report’ (Shelby County Government, Shelby County, TN, 1999); L. Newmark, M. Rempel, K. Diffily and K.M. Kane, ‘Specialized Felony Domestic Violence Courts: Lessons on Implementation and Impact from the Kings County Experience’ (Urban Institute, Washington, DC, 2001); E.S. Buzawa, G. Hotaling, A. Klein and J. Byrne, ‘Response to Domestic Violence in a Pro-Active Court Setting: Final report’ (University of Massachusetts, Lowell, 1999); and San Diego Superior Court, ‘Evaluation Report for the San Diego County Domestic Violence Courts’ (San Diego Superior Court, San Diego, CA, 2000).

4. The first study, which assesses the attitudes or judges toward problem solving, was originally published as Donald Farole et al., ‘Collaborative Justice in Conventional Courts: Opportunities and Barriers’ (Judicial Council of California & Center for Court Innovation, San Francisco, 2004), and later adapted as Donald Farole et al., ‘Applying Problem-Solving Principles in Mainstream Courts: Lessons for State Courts’, The Justice System Journal 26, no. 1 (2005):57–75. The second study assesses the attitudes of attorneys (prosecutors, public defenders and the private defense bar), probation, treatment and service providers, and statewide organizations, appeared as Donald J. Farole, Jr. et al., ‘Collaborative Justice in Conventional Courts: Stakeholder Perspectives in California’ (Judicial Council of California & Center for Court Innovation, San Francisco, 2005).

5. Robin Steinberg, executive director, The Bronx Defenders, phone interview with author, 4 January 2006.

6. Uriel Neto, community prosecutor with the Palm Beach County State Attorney's Office in Delray Beach, FL, phone interview with author, 22 November 2005.

7. Greg Berman et al., eds., A Problem-Solving Revolution: Making Change Happen in State Courts (New York: Center for Court Innovation, 2004).

8. Fred Bonner, presiding judge of the Seattle Municipal Court, phone interview with author, 12 December 2005.

9. Susan Wardell, executive director of the Alternative Sentencing and Mitigation Institute in Fulton County, Georgia, phone interview with author, 8 December 2005.

10. Pam Casey, principle court research consultant at the National Center for State Courts and staff to the Conference of Chief Justices and Conference of State Court Administrators Committee on Problem-Solving Courts, phone interview with author, 1 February 2006.

11. Anne Swern, counsel to Brooklyn District Attorney Charles J. Hynes, phone interview with author, 21 November 2005.

12. Mark D. Stoner, Marion County Superior Court Judge and Supervisor of Probation Services, Phone interview with author, 28 November 2005.

13. Mark H. Moore et al., ‘“The Best Defense is No Offense”: Preventing Crime Through Effective Public Defense’ (working paper prepared for the Executive Session on Public Defense, Program in Criminal Justice Policy and Management of the Malcolm Wiener Center for Social Policy, John F. Kennedy School of Government, Harvard University, April 2002).

14. Cait Clarke, former director of the National Defender Leadership Institute at the National Legal Aid and Defender Association, phone interview with author, 21 November 2005.

15. David J. Carroll, director of research and evaluations at the National Legal Aid and Defender Association, phone interview with author, 7 December 2005.

16. Steinberg, phone interview, see note 5.

17. Clarke, phone interview, see note 14.

18. ‘The Public Defenders Anti-Violence Initiative message from Bennett H. Brummer, Public Defender’, available at http://www.pdmiami.com/avi_program_description.html (last accessed 11 March 2008).

19. Clarke, phone interview, see note 14.

20. Ibid.

21. Ibid.

22. Wayne Pearson, assistant district attorney and supervisor of the Neighborhood District Attorney Unit, Multnomah County, Oregon, phone interview with author 29 November 2005.

23. Michelle Waymire, chief of the Community Prosecution Unit in Marion County Prosecutor Carl Brizzi's Office, phone interview with author, 22 November 2005.

24. Pearson, phone interview, see note 22.

25. In 2001, the Conference of Chief Court Administrators adopted a resolution jointly with the Conference of Chief Judges endorsing problem solving courts. See http://cosca.ncsc.dni.us/Resolutions/CourtAdmin/resolutionproblemsolvingcts.html (accessed 11 March 2008).

26. Dan Becker, Utah state court administrator, phone interview with author, 12 January 2006.

27. Ibid.

28. Casey, phone interview, see note 10.

29. Brian Wynne, chief court clerk in Brooklyn, N.Y, phone interview with author, 19 January 2006.

30. Robert Hood, chief of the Public and Community Safety Division, Seattle City Attorney's Office, phone interview with author, 22 November 2005.

31. Becker, phone interview, see note 26.

32. Waymire, phone interview, see note 23.

33. ‘Community Issues in Traditional Courts’, Transcript of workshop at Safer Communities Through Problem-Solving Prosecution Conference, Austin Marriott at the Capitol, Austin, Texas, 2 November 2005. This is the source of quotations from Lea Fields, Andy Lopez, Libby Milliken and Laura Pietan.

34. Becker, phone interview, see note 26.

35. ‘Community Issues in Traditional Courts’, workshop transcript, see note 33.

36. Neto, phone interview, see note 6.

37. Ann O'Regan Keary, presiding judge of the East of the River Community Court in Washington DC, phone interview with author, 23 November 2005.

38. Ibid.

39. Diana Burleson, director of the Marion County Justice Agency, phone interview with author, 22 November 2005.

40. ‘Community Issues in Traditional Courts’, workshop transcript, see note 33.

41. Casey, phone interview, see note 10.

42. Neto, phone interview, see note 6.

43. Keary, phone interview, see note 37.

44. ‘Community Issues in Traditional Courts’, workshop transcript, see note 33.

45. Swern, phone interview, see note 11.

46. Stoner, phone interview, see note 12.

47. Wardell, phone interview, see note 9.

48. Ibid.

49. Mark Stephens, public defender, 6th Judicial District, Tennessee, phone interview with author, 3 January 2006.

50. Swern, phone interview, see note 11.

51. Wardell, phone interview, see note 9.

52. Stoner, phone interview, see note 12.

53. Neto, phone interview, see note 6.

54. Wynne, phone interview, see note 29.

55. Bonner, phone interview, see note 8.

56. Moore et al., ‘“The Best Defense is No Offense”’.

57. Becker, phone interview, see note 26.

58. Karen Hayter, a senior assistant prosecuting attorney working with the Domestic Violence Liaison Prosecutor Program, phone interview with author, 17 January 2006.

59. Moore et al., ‘“The Best Defense is No Offense”’.

60. Clarke, phone interview, see note 14.

61. Carroll, phone interview, see note 15.

Additional information

Notes on contributors

Robert V. Wolf

Email: [email protected]