A Criminological Fly in the Ointment: Specialty Courts and the Generality of Deviance

ABSTRACT

Specialty courts—such as drug courts, mental health courts, or domestic violence courts—tend to assume, either implicitly or explicitly, that particular groups of offenders have unique problems that can be best met with specialized case processing. Put simply, specialty courts assume that offenders themselves are specialists when it comes to offending. There is, however, a criminological fly in the ointment. The problem is that criminological theory and research have long demonstrated that offenders tend to be generalists and that they rarely specialize in any given form of misbehavior. Accordingly, the authors argue here that the notion of the “generality of deviance” presents a problem for the potential effectiveness of specialty courts because they are likely operating on a faulty set of ideas about offending behavior. The authors offer strategies for moving forward to better integrate the notion of the generality of deviance into specialty courts: in particular, embracing a rehabilitative philosophy and adopting well-documented correctional treatment approaches such as cognitive-behavioral interventions and the risk-need-responsivity model. They conclude by highlighting the risks associated with granting system efficiency a position of privilege among the multiple goals of corrections.

KEYWORDS:

• generality of deviance
• versatility of offending
• specialty courts

There are currently a lot of specialty courts in the United States. All of it really started with drug courts in the late 1980s, where the first one was established in Miami, Florida, in 1989, which quickly proliferated to over 800 drug courts by the year 2000, and currently there are over 3,000 nationwide (National Institute of Justice, 2018). The development of other kinds of specialty courts—also referred to as “problem-solving courts” (Portillo, Rudes, & Taxman, 2016)—soon followed, including those that deal specifically with criminally involved persons with mental health problems (Honegger, 2015; McNiel, Sadeh, Delucchi, & Binder, 2015; Steadman, Davidson, & Brown, 2001) to those convicted of particular kinds of offenses like domestic violence and prostitution (Meekins, 2006; Ostrom, 2003; Shdaimah & Wiechelt, 2012), to courts specifically for veterans (Jaafari, 2019). It is, therefore, safe to say that specialty courts are virtually everywhere.

And while the jury is still out concerning whether such courts are effective overall in terms of reducing rates of recidivism and other problematic behaviors, we do have some evidence that they at least can be. Drug courts, for example, are capable of reducing recidivism if they lean toward being more therapeutic than punitive (Gotttfredson, Najaka, & Kearley, 2003; Lowenkamp, Holsinger, & Latessa, 2005; Mitchell, Wilson, Eggers, & MacKenzie, 2012). Less is known about the effectiveness of mental health courts, but there is some evidence suggestive of a positive influence there as well, even if not “generally” but at least when they do not rely on jail time (either in practice or as a threat) as their go-to crutch (Lowder, Desmarais, & Baucom, 2016; Redlich, Steadman, Monahan, Petrila, & Griffin, 2005). And research indicates that creating a domestic violence court increases arrests for domestic violence (a potential indicator of holding perpetrators accountable), while at the same time reducing rates of recidivism for those offenders who were processed through the domestic violence court (Gover, MacDonald, & Alpert, 2003).

One of the core assumptions underlying specialty courts is that particular groups of offenders—whether they are drug offenders or domestic violence offenders—specialize in that form of behavior (Stein, Homan, & DeBerard, 2015). To be sure, it would not make much sense to anyone in the courtroom workgroup to have a burglar processed through a drug court or to have a tax evader go through a domestic violence court. The purported benefits of specialized courts therefore hinge on the idea that certain groups of offenders are unique—and therefore different from others—so having their own unique court process will increase the odds that their particular offending tendencies might be curbed.

The problem, however, is that the criminological literature is pretty clear on one important point: With few and isolated exceptions, offenders do not specialize in any particular form of misbehavior (Piquero, Farrington, & Blumstein, 2003; Piquero, Jennings, & Barnes, 2012; Thomas, 2016). This idea—known as the “generality of deviance” thesis—is that people who are willing to abuse drugs and alcohol are probably also willing to steal things, beat people up, and destroy property as well (Hirschi & Gottfredson, 1994; see also Pratt, Barnes, Cullen, & Turanovic, 2016; Reisig & Pratt, 2011). Sure, some individuals might demonstrate short streaks of offending specialization—like for a few months or so at a time (McGloin, Sullivan, Piquero, & Pratt, 2007; Sullivan, McGloin, Pratt, & Piquero, 2006)—but overall, the pattern is one that illustrates offending specialization over the life course to be largely a myth. Instead, criminological research shows “versatility” in offending.

What, then, are the implications of this “criminological fact” for specialty courts? In this paper, we argue that specialized courts—to the extent that they aim to treat in isolation an individual’s present offense as the key indicator of a criminological problem to address—are unlikely to be as effective as they could be at reducing recidivism. In making this argument, we (a) review the criminological research concerning offending specialization and diversity and (b) discuss the notion that specialized courts, rather than being concerned primarily with reducing recidivism, are instead largely intended to provide administrative benefits in terms of system efficiency and ease of case processing. Given this reality, we offer up a number of recommendations moving forward for specialized courts should they truly attempt to embrace reducing recidivism as a core goal of the correctional enterprise.

Criminological theory and research: An inconvenient reality

As a general rule, those who engage in crime are not all that picky about what kinds of laws they are willing to violate. Most offenders are “generalists” who demonstrate little in the way of allegiance to a single form of criminal behavior (Pratt et al., 2016). This reality is, of course, at odds with popular portrayals of criminal masterminds like the methamphetamine cooker Walter White in Breaking Bad or the crime scene analyst/serial killer in Dexter. It even goes against certain classic works in criminology like the “professional thief” (Sutherland, 1937) and some of the early offending typologies which sought to pigeonhole criminals into discrete categories based on their offending histories (Cohen & Short, 1958; Gibbons, 1965). The theoretical assumption guiding such popular characters and criminological typologies is that offenders’ lives are for the most part prosocial and conventional, with the exception of that one form of criminal behavior that they somehow feel compelled to engage in.

Things changed, however, in the 1980s as new longitudinal data became available along with a new intellectual interest in the dynamics of “criminal careers” over time (Blumstein, Cohen, Roth, & Visher, 1986; Piquero, 2000; Piquero et al., 2003). This work highlighted certain patterns in offending including the onset, duration, and eventual desistance from crime (Mazerolle, Brame, Paternoster, Piquero, & Dean, 2000; Piquero, Paternoster, Mazerolle, Brame, & Dean, 1999; Sampson & Laub, 1993)—all of which have become staples of the life-course theoretical tradition in criminology (Farrington, 2003). And along the way, an additional pattern emerged across studies that was remarkably consistent: Individuals who engage in crime have little interest in sticking to one kind of offense over the course of their criminal career (Wright, Pratt, & DeLisi, 2008).

We now have a rather large body of literature on offending diversity and generality of deviance (Hirschi & Gottfredson, 1994). Such generality is not necessarily universal—to be sure, there is evidence of offending specialization among certain categories of sex offenders (e.g., pedophiles, see Lussier, LeBlanc, & Proulx, 2005) and among a small group of violent offenders (Osgood & Schreck, 2007). There is also evidence that certain changes in local life circumstances—like getting or losing a job, entering or exiting a romantic relationship, and either starting up or quitting using drugs or alcohol—have a way of structuring one’s daily routines that can either lead to more or less offending specialization (McGloin, Sullivan, Piquero, Blokland, & Nieuwbeerta, 2011; McGloin et al., 2007). With these potential exceptions notwithstanding, the broader pattern in the literature points to people having rather indiscriminate tastes when it comes to committing crimes (Sullivan et al., 2006). Their offending is versatile.

These findings are consistent with “general” theories of criminal behavior. Some of these perspectives adopt an “opportunity” perspective, where offenders’ lives tend to be organized in a way that presents them with a wide array of criminal opportunities (Felson & Eckert, 2015). Others emphasize the role of learning—from families, peers, and experiences—where the adoption of antisocial attitudes and other cognitions that support lawbreaking can end up making a broad spectrum of criminal behavior intellectually acceptable (Akers, 2009; Warr, 1998). Some perspectives note that a range of deviant behaviors—some of which might be illegal and others might not—are all the product of a similar individual-level trait like self-control (Gottfredson & Hirschi, 1990; Pratt, 2016); and still, others highlight the importance of the acquisition and loss of social bonds or controls over time that can influence one’s diversity in offending (Laub & Sampson, 2003; Sampson & Laub, 1990). And while these perspectives differ from one another in important ways, they all still point to the same idea that offending diversity is the rule and that offending specialization is, at best, a rare exception. The question then becomes: What are the implications of this empirical reality for judicial policies and practices that treat offenders as specialists?

Specialty courts: A reality of convenience

Beginning with drug courts, there is no doubt that the proliferation of a wide range of specialty courts constitutes a “movement” (Mitchell, 2011, p. 844). Early on, the idea of a specialized court was to combine an individualized treatment regimen—most often in a community (rather than institutional) setting—in an effort to address a specific criminogenic problem (Long & Sullivan, 2017). In the case of drug courts, it is important to note that their creation and use spread rapidly, even in the face of scant evidence of their effectiveness (Harrell, 2003; see also Shaffer, 2011; Wilson, Olaghere, & Kimbrell, 2019). Indeed, during the drug court boom in the 1990s, there was little evidence beyond anecdotes from judges and other court actors about the program model’s effectiveness, and yet such courts spread across the country (and even internationally) anyway (Marlowe, Hardin, & Fox, 2016; Mitchell, 2011). Why, then, was the idea of a specialized court for drug offenders so attractive?

To answer this question, it is worth noting that part of the appeal of drug and other specialty courts can undoubtedly be attributed to an ideological backlash against the “get tough” movement in criminal justice that began in the late 1960s and early 1970s. During this time, the prevailing wisdom among policymakers and the public—especially among conservatives—was that crime was “out of control” and that the only thing that could fix the problem was to lengthen the sentences for virtually all criminal offenses (Cullen & Gilbert, 1982). And during the Reagan years of the 1980s, drugs became a central focus for punishment discussions and decisions, and in the process sentences for drug crimes were enhanced and drug offenses became a primary driver of criminal justice processing at every stage from arrest to imprisonment (Baum, 1996). At the heart of this entire movement was a rather simple idea that could be easily translated into criminal justice policy: punishment works (see, e.g., the discussion by Pratt, 2008).

It took a while, but eventually the limits of this approach to drug (and all criminal) behavior started to become abundantly clear. Extending through the 1990s, the prison population swelled exponentially, racial disparities in incarceration became more and more pronounced, state budgets were reaching their limits, and our inability to build our way out of the crime problem reared its head (Pratt, 2019). Yet over the last few decades, the philosophy and practice of correctional rehabilitation have experienced a revival (Cullen & Jonson, 2017). Starting with important works in the early 1990s (Andrews et al., 1990; Lipsey & Wilson, 1993; Palmer, 1992), evidence started to consistently pour in that well-crafted rehabilitation programs were capable of producing substantial reductions in recidivism (Lowenkamp, Latessa, & Smith, 2006; Wright, Pratt, Lowenkamp, & Latessa, 2012). It was this mindset about the potential effectiveness of correctional treatment that provided a strong ideological justification for the drug court model to emerge and to flourish (Hora, Schma, & Rosenthal, 1999; Mitchell, 2011).

But other factors were at work as well. In particular, the get-tough movement created a flood of offenders—particularly low-level drug offenders—that had entered the criminal justice system. Court dockets became choked as processing this ever-expanding group of offenders became more challenging. A specialized administrative system in the form of drug courts was therefore attractive from an efficiency standpoint (Brewster, 2001; Granfield, Eby, & Brewster, 1998; Heck, 2006). The idea was that by relaxing the adversarial nature of the criminal court (something that has rankled some legal scholars; see Meekins, 2006), offenders could be shuffled through the judicial process faster and more smoothly because judges, prosecutors, and defense attorneys would all essentially specialize professionally in these kinds of cases (Boldt & Singer, 2006).

The desire for system efficiency was abetted by a huge increase in funding that became available for the creation of drug courts. Between 1989 and 1997, for example, the federal government shelled out over $80 million in funds for expanding drug courts (U.S. General Accounting Office, 1997). So the bottom line is that, yes, there was an ideological component to the development of specialized courts for drug offenders, but the influence of ideology was dwarfed by the desire for system efficiency. And as different kinds of specialized courts came onto the scene—veterans’ courts, domestic violence courts, mental health courts, and so on—it is clear that the primary job of such courts was to serve administrative purposes (the convenience of efficient processing) and that all other concerns (effective rehabilitation, reducing reoffending) would be secondary at best (Casey, 2004). And in the process, the notion that offenders themselves might be generalists in their illegal behavior was never considered.

Moving forward

Criminologists are pretty good at being critics, but criticism on its own is ultimately not all that helpful unless it also comes with an alternative way of looking at things. This is particularly true in the present case, since unlike other correctional fads of the past (e.g., boot camp prisons, scared straight programs, or restorative justice programs), specialty courts do not seem to be showing any signs of going away or of even slowing down (Morgan et al., 2016). So in the spirit of what has become known recently as “translational” or “public criminology” (Pesta, Blomberg, Ramos, & Ranson, 2018; Sullivan, Welsh, & Ilchi, 2017), we have some recommendations for specialty courts moving forward so that they might increase their odds of being effective for enhancing public safety.

Embrace a treatment philosophy

At this point, there appear to be two rather consistent findings in the specialty courts literature: (a) those courts that take a therapeutic—as opposed to a more strictly punitive—approach tend to produce better outcomes in terms of offender recidivism; and (b) a significant portion of specialty courts are still largely punishment—as opposed to treatment—focused (Marlowe et al., 2016; Tanner-Smith, Lipsey, & Wilson, 2016). These findings are also reflected in the correctional literature more broadly where hundreds of studies point to the ineffectiveness of punishment-based interventions. Still, the desire to punish offenders is a core correctional value (Cullen, Fisher, & Applegate, 2000; King & Roberts, 2017). This means that convincing specialty courts—or any correctional program for that matter—to embrace a treatment philosophy can still be a tough sell. Remaining treatment oriented is especially challenging when offenders do not comply perfectly with court requirements; defying authority has a way of stoking punitive sentiments.

The task of encouraging a treatment philosophy has arguably been made even more difficult in recent years with the revival of faith in the power of punishment in the form of community supervision programs like Project HOPE (Hawaii’s Opportunity with Probation Enforcement) and swift, certain, and fair (SCF) punishment (Hawken & Kleiman, 2009). These programs have become wildly popular in recent years across the country, spreading to over 160 locations across over 30 states (Cullen, Pratt, Turanovic, & Butler, 2018). And like the conservative-led get-tough approaches of the past, the HOPE/SCF model assumes that a stint of incarceration—what might be termed “jail therapy”—will cure offenders of their criminal ills (Kleiman, 2016). And also like the conservative-led get-tough approaches of the past, the accumulated empirical evidence shows that these programs have no consistent or appreciable effect on recidivism (Cullen, Pratt, & Turanovic, 2016; Lattimore et al., 2015; O’Connell, Brent, & Visher, 2016).

The difference, however, is that HOPE/SCF is the brainchild of liberal scholars and practitioners—a program that was developed and evangelized by those who are more progressive ideologically (Cullen, Manchak, & Duriez, 2014; see also the discussion by Cullen et al., 2018). Thus, as progressive policymakers adopt a liberal version of “punishment works,” a key group who may have otherwise been sympathetic to embracing a treatment philosophy might now be harder to convince that it has merit. Even so, the data are pretty clear on this one—that specialty courts do much better when they explicitly adopt a treatment philosophy (Blair, Sullivan, Lux, Thielo, & Gormsen, 2016; Shaffer, 2011). So to the extent that policymakers still favor evidence-based approaches to corrections—and we have good reason to believe that they do—this is the evidence that should guide specialty courts in the future.

Adopt evidence-based treatment models

Should a treatment philosophy be embraced in specialty courts, it is important to recognize that, in practice, not all treatment models are created equal. A lot of things have been done in the name of correctional treatment and have proven to be ineffective (e.g., outward bound/wilderness programs for juveniles, acupuncture interventions for drug offenders, and other forms of “correctional quackery”; see Latessa, Cullen, & Gendreau, 2002). But the model that arguably has the most empirical support at this point is that risk-need-responsivity model (RNR) developed by a group of Canadian corrections scholars (Andrews, Bonta, & Wormith, 2011; Bonta & Andrews, 2017; Gendreau, 1996).

Led by Paul Gendreau, James Bonta, and Don Andrews, this approach contains three core principles. First, the risk principle holds that a correctional intervention will be more successful at reducing recidivism if it focuses most of its effort on medium- to high-risk offenders. Low-risk offenders are just that—low risk—so spending all of your correctional energy on them (as seductive as doing so might appear to be) is rarely a good idea (see, e.g., the discussion by Ogle & Turanovic, 2016). Second, the needs principle points to the importance of targeting to change those factors that are actually related to criminal behavior. These would include dynamic risk factors like antisocial attitudes, deviant peers, and poor self-control. And finally, the responsivity principle holds that correctional interventions should be delivered in a way that is consistent with offenders’ individual learning styles. Responsivity factors could include things like intelligence, levels of negative emotionality (e.g., depression or anxiety), and even attitudes about whether offenders believe they are capable of making changes.

Across several meta-analyses of the correctional intervention literature, the RNR model has been shown to produce significant treatment effects across a wide array of offender groups (Campbell et al., 2015; Olver, Coupland, & Kurtenbach, 2018; Skeem, Steadman, & Manchak, 2015). In short, the RNR model appears to have general effects—a track record that would lend itself well to the need to address the versatility of offending within the specialty courts context. This applicability is likely the case because, regardless of the focus of the specialty court, the RNR model targets criminogenic needs generally. Of course, if there are specific needs that offenders may need targeted (e.g., post-traumatic stress disorder for veterans or mental health needs), these can be added to the treatment regimen on top of the RNR principles. In any event, the use of the RNR model is critically important since there is evidence that drug courts that fail to adhere to its principles are ineffective at reducing recidivism (Sullivan, Blair, Latessa, & Sullivan, 2016; see also Boldt, 2017).

But the RNR approach is not the only one that would be promising for addressing the problem of the generality of deviance in specialty courts. The multisystemic therapy (MST) model developed by Henggeler and colleagues, for example, might also be a good bet (see Henggeler, Schoenwald, Borduin, Rowland, & Cunningham, 2009). The MST model—one developed initially for violent youth—begins with the notion that those who offend likely have several layers of problems in their lives. These include not only their criminal behavior, but for those who offend there are likely issues with family dysfunction, institutional problems (e.g., work or school), and problematic community dynamics. Each of these layers is addressed in MST while still emphasizing individualized treatment. The therapeutic model is home-based, conducted by highly trained staff, and the accumulated evidence suggests that MST approaches consistently earn significant treatment effects with offenders (Henggeler, Clingempeel, Brondino, & Pickrel, 2002; Henggeler, Melton, Brondino, Scherer, & Hanley, 1997; Henggeler & Schaeffer, 2016). There would be nothing stopping specialty courts if they decided that they wanted to assign those being processed to an MST program. Doing so would certainly accommodate the generality of deviance into the specialty court model.

It is important for specialty courts to adopt an RNR or MST approach (or some other one that has comparable empirical support) because of one pervasive problem: most specialty courts are not all that well conceived, well implemented, or well managed (Wilson et al., 2019). This is not a problem that is limited to specialty courts; indeed, correctional programs in general often score rather low on indicators of program quality (Latessa & Holsinger, 1998; Lovins & Latessa, 2018; Matthews, Hubbard, & Latessa, 2001). But it is important to remember that specialty courts are those that often oversee offenders who may have otherwise gotten standard probation or even diversion. Thus, there is a risk that specialty courts may catch up more people in the criminal justice system who might otherwise have been diverted (net widening) and keep them under supervision for longer periods of time under more intense scrutiny (what has been referred to as “mesh tightening”; see Mosher & Akins, 2014). Without a well-crafted treatment protocol in place, there is therefore a real risk that specialty courts could end up doing more harm than good to offenders.

Conclusion

We recognize that the judicial system in general, and specialty courts in particular, serves a number of important goals and interests. Of course, the efficient processing of cases is certainly a legitimate concern. And all things being equal, moving offenders through the system more quickly may also serve to reduce the harms associated with being processed through the criminal justice system (Beckett, 2018). After all, as Feeley (1979) famously noted: The process is the punishment.

But there are other important concerns as well, such as assisting victims of crime, enhancing community safety, and reducing recidivism. And on those fronts, specialty courts run the risk of falling short because of a built-in inconsistency between one of their core structural features—specialization—and the reality that offenders usually do not specialize in their offending behavior. This is the criminological fly in the ointment. We therefore wish to caution policymakers and the public against privileging system efficiency over all other judicial concerns. We instead encourage them to keep the full spectrum of correctional goals in mind—to give “conscience” at least as much attention as we give to “convenience” when it comes to how offenders are processed and treated by the criminal justice system. Thus, our key takeaway is that reducing harms to victims, communities, and offenders will require us to commit to thinking more broadly about what we want specialty courts to accomplish. Hopefully, we are prepared to do just that.

Disclosure statement

No potential conflict of interest was reported by the authors.