Mother Jones: What is a problem-solving court and problem-solving justice?
Greg Berman: It's important to place problem-solving in the context of how criminal courts really work in this country. A lot of peoples' notions of criminal court are shaped by civics textbooks or Law and Order. People think that criminal courts hold trials where prosecutors and defense attorneys go head to head as adversaries dealing with cases that involve serious felonies. By and large this is not how criminal courts work. Nine out of ten cases are settled by plea bargain rather than trial. The majority of cases do not involve felonies, but low-level misdemeanors. These misdemeanants often come to the courts with complicated problems involving addiction, mental illness, homelessness, lack of job skills, and a variety of other factors that we know contribute to criminal behavior. Critics have called our current criminal justice system revolving door justice, plea-bargaining mills, and McJustice. What it amounts to is this sense that for many, criminal court has become a series of empty procedural gestures that lack real meaning. The courts fail to address the underlying problems of defendants, provide victim safety, or solve the problems of crime-plagued neighborhoods. Problem-solving-courts try to address the problem that is driving the criminal behavior. For instance, in a problem-solving court, a drug-addicted offender, rather than being sentenced to a short stay in jail or prison, is linked to long-term, judicially monitored drug treatment and required to come back to court on a regular basis to report on their compliance. When someone succeeds in drug treatment, not only does the defendant win, but also the courts and the community. The goal is to actually try to solve the problems that are driving their caseloads rather than just processing people through the system day after day.
MJ: How did you become involved in the movement?
GB: In the early 90s, I sat on the bench with a judge in Manhattan's criminal court for a week. I was amazed at the volume that the judge had to deal with. There was intense pressure to resolve the cases as quickly as possible. It made it very difficult for the judge to address their problems in any individualized way or really render justice that was meaningful. I couldn't believe that this was what justice really looked like in our country. I felt that we could do better that this. When you think about it, every kind of social problem that you could ever want to deal with—addiction, mental illness, poverty, housing, neighborhood deterioration—finds its way to the courts eventually. The insight of the Center for Court Innovation is that you can use the courts as a jumping off point for ameliorating some of these social problems.
MJ: Where did the concept of problem-solving justice originate?
GB: It's a movement that doesn't have one true father or mother figure. Rather, it's a case of criminal justice professionals at the grassroots level grasping for similar solutions and trying to solve the problems that they saw in front of them. Typically, people trace the origins back to the first drug court in the country. This was a problem-solving court that focused on addiction. It was created in Dade County, Florida in the late 80s and the prosecutor working on that project was Janet Reno. When she subsequently became the attorney general, she brought this idea with her and used her bully pulpit and funding ability at the Department of Justice to spread the drug court movement. In 1993, John Feinblatt and Judith Kaye, who is the chief judge of the state in New York City, created a community court in Midtown Manhattan. That project was created to address quality of life crime like prostitution, drug possession, and vandalism. These kinds of offenses, while minor in legal framework, are really serious for the people who have to live with them on a daily basis. The Midtown Community Court was one of the flagship programs of the problem-solving movement and its approach was to combine punishment and help. Instead of utilizing incarceration, it links low-level offenders to visible community restitution projects in the neighborhood that they'd harmed through their criminal behavior. At the same time, it links them to onsite social services like drug treatment, job training, and mental health counseling in an effort to keep them from coming back to court as recidivists. Independent evaluators have shown that the court helped to improve compliance with court orders, and reduce local crime. And, the evaluators found that the court had helped to restore a measure of judicial legitimacy and public trust and confidence in justice.
MJ: Why is public perception of the judicial system so important?
GB: Courts are one of the primary democratic social institutions. We count on them to maintain the rule of law and order. Courts, like all democratic institutions, are dependent on people's faith for them to work. You need people to show up as jurors, as witnesses, and you need people to listen to the orders the courts mete out. At the end of the day, the problem-solving movement is an effort to change that and to reinvigorate the relationship between citizens and their justice system. Law is too important to leave to the lawyers. The courts are for solving disputes, and protecting public safety. The courts should serve us as citizens. The conventional system does not seem oriented towards the ultimate consumer of the system: the general public.
MJ: How are these problem-solving courts funded?
GB: It depends. There are an estimated 2,000 across the country. Some of them deal with a small volume of cases, some deal with thousands of cases with an elaborate apparatus of social workers, researchers, and technologists around the courtroom. These courts are in blue states, red states, urban, and rural jurisdictions. So, the funding mechanisms that support them vary widely. The Justice Department under Clinton, and, so far, under Bush, has been a key player, particularly in drug courts. Drug courts, to date, are the most widely utilized and implemented example of problem-solving courts. While federal funding has played a big role, at the end of the day it's by and large states and municipalities that are going to have to carry the burden for this work. Every state has at least one problem-solving court, so it's evident that states believe it’s a worthwhile investment. And there is data to suggest that they are correct in their assumption that these programs work.
MJ: Is there anything wrong with the current adversarial system of justice we currently have established?
GB: The adversarial process is entirely appropriate in many cases. There is this false choice that some present between problem-solving on the one hand, and the adversarial system on the other. We can have both. I don't think that we have to abrogate the rights of individual defendants in order to do problem-solving, but problem-solving does demand from defenders that they think about what is really in the best long-term interests of their client. That's not always to get off with the least amount of sanction available. Sometimes, what's best is to get their client some drug treatment, job training, or mental health counseling. Actually, problem-solving courts are an example of the court system listening to defense attorneys who have been arguing in front of judges for many years, "Your honor, my client needs drug treatment." Here is an example of the court system providing that.
MJ: What are the main differences between the more traditional court structure and the problem-solving court?
GB: There are some people who should be incarcerated, and there are some cases that should be dismissed. Problem-solving is not about those cases, but rather those in which alternative sanctions are appropriate—be it community service, drug treatment or job training. In a good problem-solving court, everyone is still represented by counsel, there is still effective lawyering, and a judge who is observing the Constitution. Problem-solving is not an inducement to toss the Constitution to the side. If the lawyers in the courtroom and the judge agree that this is a case where an alternative is appropriate, they to work in concert with one another to figure out the best way to help that individual to succeed using those alternatives. That is different than conventional courts because players in the courtroom are trying to come to some agreement to help that defendant succeed. Similarly, the notion of bringing the defendant back to court to report on their progress is a unique contribution that problem-solving courts have made. Usually the courts only see someone again when they're rearrested or when a warrant is ordered. Also different is the notion of reaching outside the walls of the courthouse to involve community-based partners such as community block associations that oversee defendants performing community restitution on their streets, or local job-training programs that offer classes to defendants. Similarly, citizens serve on advisory boards and receive research findings so that they know what the courts actually do in their municipality. Citizens also meet with low-level offenders to talk about the impact of the crimes on their neighborhood. We’re starting to see these practices moving from the margins of the criminal justice system and become really accepted by mainstream practitioners. The battle is not won yet, but there is a sense of momentum in thinking that these practices really are the wave of the future in the criminal justice system.
MJ: Can these two structures—the traditional and newer concepts of obtaining justice—coexist?
GB: Yes. One of the projects that the Center for Court Innovation helped to create is the Red Hook Community Justice Center, a community court in a low-income neighborhood in Brooklyn. On an average day, they handle dozens of cases. In some cases, the prosecutor recommends jail time, but in other cases, the prosecutor will say that he or she doesn't think jail is the right option, and will make a plea offer that is more along the lines of counseling and community service. The defense attorney might try to reduce the sentence, or might agree that that is the right outcome. You can do this on a case by case basis provided that you have the buy-in from the judge, prosecutor and defense attorney.
MJ: Are all problem-solving courts community-based courts?
GB: No. There are about three dozen community courts across country that hear cases from a particular geographic area, typically using the problem-solving format. But most problem-solving courts are one courtroom out of a larger urban jurisdiction that might have two dozen courtrooms with one courtroom designated as, say, the drug court, or domestic violence court that will exclusively hear cases relevant to those issues.
MJ: What is the biggest obstacle to these community-based courts?
GB: The big challenge for community courts is to be able to marshal data that illustrates that every dollar invested upfront in a community court is well spent. There are a number of positive outcomes that are associated with community courts that merit the upfront investment that they require: reduced recidivism and local crime, improved attitudes towards justice and reduced levels of community fear. These are sometimes outcomes that are difficult to measure.
MJ: What is the biggest obstacle to problem-solving courts in general?
GB: Partly resources, and partly a philosophical concern. Though I've traced this hopeful trajectory of problem-solving moving from the margins into the mainstream, there are plenty of judges and attorneys who have never even hear of problem-solving courts, and there are plenty who think that they are antithetical to their approach to justice. There is a lot of work to be done to convince both the skeptics, and also the uninitiated that this is an approach that has value.
MJ: Why do some argue that problem-solving justice is antithetical to the American legal tradition?
GB: Problem-solving courts are one of those innovations that get skepticism from both sides. There are some who feel that there is an abandonment of fundamental rights that must occur in order to do problem-solving, or fear that problem-solving judges become social workers in robes. I think that's simply a misconception. On the other end of the political spectrum, there are some people who worry that this approach is "soft on crime," and that the right response to criminal behavior is incarceration. There are some cases where incarceration is warranted, but there are many more where it makes sense to try other approaches before one resorts to incarceration.
MJ: What are the possible pitfalls of problem-solving justice? GB: As the movement goes into its second decade, and these projects become a generally accepted practice in the court system, I worry that the model will become watered down. Also, I wonder whether we are going to be able to maintain the level of quality and the results that the first generation of problem-solving courts has been able to demonstrate. The leadership of the federal government is important. So far, Congress and the Department of Justice have seen fit to financially support not only drug courts, but mental health courts and other examples of problem-solving. Politics can change, and that's always a potential pitfall. But the problem-solving approach has the benefit of relying on common sense. If you explain it to most people, they think it's a reasonable approach to public safety.
MJ: What must problem-solving courts focus on if they are to be a success?
GB: Quality control is always an issue. We have to make sure that we disseminate the best practices across the country. We have to make a greater investment in research. Right now, there is research to suggest that these programs work. But, what makes them work? Is it the judicial monitoring, greater links with services, the problem-solving mission or orientation? I don't think that anyone can really answer those kinds of questions now. We also need to train the next generation of lawyers to be schooled in this mindset. I've seen some indication that problem-solving is starting to wiggle its way into academia. There have been some pilot classes that are being taught at Columbia and Fordham's law schools. That's the next frontier: figuring out how to get the lawyers while they're young, and encouraging them to think in this way.
MJ: Are the problem-solving courts successful? How do you measure that success?
GB: In a drug court, the goal is to keep addicted offenders into treatment, keep them in treatment, and have them move from criminal behavior and drug abuse to sobriety and law-abiding behavior. The measure of success there is clear: reduced recidivism. There have been a huge number of studies that have looked at this question, and most have found that drug courts, regardless of size or locale, reduce recidivism when you compare drug court participants to defendants that are prosecuted in the conventional way. The Center for Court Innovation did one such study of six drug courts across New York state and found average recidivism reductions of 32%. In the community court, the goal is to try to pay back the neighborhood, improve the quality of life, and improve neighborhood perceptions of justice. The best study to date has been done at the Midtown Community Court by the National Center for State Courts. They found that the court improved compliance with court orders and reduced local crime by as much 56%. At the same time, two-thirds of local residents who were surveyed by phone said that they would be willing to pay additional taxes to support a community court. In the case of domestic violence courts, the emphasis is on victim safety. What we know from looking at the data about domestic violence courts is that they've drastically improved interagency communication within the criminal justice system by ensuring that the D.A. is talking to the court, is talking to the probation officer, etc. While we refer to a "criminal justice system," it rarely acts in one voice. Also, in many conventional courts, the links to victim services range from ad hoc to slapdash. There is a fair amount of evidence in the domestic violence court literature to suggest that these projects have improved victim access to services. In Brooklyn, the Urban Institute documented that 100% of victims were linked to services and victim advocates. There's not a lot of evidence to suggest that batterers intervention program meaningfully curb battering. The court system and criminal justice system, and domestic courts in particular are still grappling with what is an appropriate response to domestic violence cases.
MJ: A criticism of the domestic violence courts is that great advantage is given to the prosecution at the expense of the accused. What is your response to this?
GB: It's important to place the domestic violence courts within the context of several generations in which domestic violence wasn't deemed appropriate for the criminal justice system. It wasn't viewed as a crime and therefore received no social sanction, or message from criminal justice system to the effect that this behavior was inappropriate and criminal. So, in some respects, domestic violence courts represent a leveling of the playing field that has for too long has been tilted against victims.
MJ: In focusing on the underlying components that drive criminal behavior, is it possible that we're denying the importance of individual responsibility and choice?
GB: Accountability is built into the problem-solving model. For instance, in a drug court, a hypothetical defendant is required to do 6 months of drug treatment. If they fail this course of drug treatment, they receive a jail alternative. We can use the moment of arrest as a window of opportunity to link individual defendants to the type of services and interventions that can make a difference in their lives by using the coercive and symbolic authority of the courts, and the judge in particular. But let’s not kid ourselves, at the end of the day, it's on the individual as to whether or not they're going to comply, and they need to be accountable for their behavior. Problem-solving courts acknowledge that.
MJ: What is at the heart of the debate over the efficacy of these courts?
GB: I think that there is always the need for more data. Researchers and policy-makers speak two different languages. There is a lot of research that has not been effectively translated and presented to policymakers, and that responsibility falls on institutions like mine to figure out how to do a better job of that. There is also a need for more research. One of the nice things about problem-solving courts is how open they've been to research. There have been dozens of studies about drug court efficacy. Meanwhile, I haven't seen many studies that can document the effectiveness of incarceration for drug-addicted offenders or that show that letting low-level offenders go is an effective response to quality-of-life offenses. The truth of the matter is that there's already enough evidence to show that this set of initiatives that flies under the umbrella of problem-solving justice, works. Perhaps the most significant contribution that problem-solving courts have made, is giving these people that man our front line courts, whether its probation officers or police officers, judges, prosecutors, or defense attorneys, the concrete proof that it is possible to change the behavior of offenders, that it's possible to improve community attitudes towards justice.