the use of problem solving courts

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• Problem-Solving Courts in the US

Trend Report 2021 – Delivering Justice / Case Study: Problem-Solving Courts in the US

Author: Isabella Banks , Justice Sector Advisor

Introduction

Problem-solving courts are specialised courts that aim to treat the problems that underlie and contribute to certain kinds of crime (Wright, no date). “Generally, a problem-solving court involves a close collaboration between a judge and a community service team to develop a case plan and closely monitor a participant’s compliance, imposing proper sanctions when necessary” (Ibid).  In the past three decades, problem-solving courts have become a fixture in the American criminal justice landscape, with over 3,000 established nationwide. All 50 states have appointed a statewide drug court coordinator, and at least 13 have introduced the broader position of statewide problem-solving court coordinator (Porter, Rempel and Mansky 2010; J. Lang, personal communication, October 28, 2020).

What does it mean for a court to be problem-solving?

Although a number of different types of problem-solving courts exist across the US, they are generally organised around three common principles: problem-solving, collaboration, and accountability (Porter, Rempel and Mansky 2010, p. iii.).

Problem-solving courts are focused on solving the underlying problems of those who perpetrate or are affected by crime. This includes reducing recidivism as well as rehabilitating participants (with the exception of domestic violence courts, as elaborated below), victims and the broader community (Ibid. p. iii.).

Problem-solving courts are also characterised by interdisciplinary collaboration among stakeholders in and outside of the criminal justice system. Dedicated staff who have been assigned to the problem-solving court work together to develop court policies and resolve individual cases in a relatively non-adversarial way. Ongoing collaboration between court staff and public agencies, service providers and clinical experts is also essential for providing appropriate treatment to problem-solving court participants (Ibid. p. 38). Because problem-solving courts aim to address the impact of crime on the community and increase public trust in justice, they also have frequent contact with community members and organisations and regularly solicit local input on their work (Ibid. p. 39).

Problem-solving courts aim to hold individuals with justice system involvement, service providers and themselves accountable to the broader community. For individuals with justice system involvement, this means holding them accountable for their criminal behaviour by promoting and monitoring their compliance with court mandates. In order to comply, problem-solving court participants must understand what is expected of them, regularly appear for status hearings, and have clear (extrinsic and intrinsic) incentives to complete their mandates. 

For service providers, this means providing services based on a coherent, specified and effective model, and accurately and regularly informing the court about participants’ progress. Problem-solving courts are also responsible for assessing the quality of service delivery and making sure models are adhered to (Ibid. p. 43-44). 

Lastly and perhaps most fundamentally, problem-solving courts must hold themselves to “the same high standards expected of participants and stakeholders” (Ibid. p. 44-45).  This means monitoring implementation and outcomes of their services using up-to-date data. 

What does problem-solving justice look like in practice?

Problem-solving justice comes in different forms. The original, best known, and most widespread problem-solving court model is the drug court. The first drug was created in 1989, after a judge in Miami Dade county became frustrated seeing the same drug cases cycling through her court and began experimenting with putting defendants into treatment (P. Hora, personal communication, October 16, 2020). This approach (elaborated in the sections that follow) gradually gained traction, and there are now over 3,000 drug courts across the US (Strong and Kyckelhahn 2016).

This proliferation of drug courts helped stimulate the emergence of three other well-known problem-solving court models: mental health, domestic violence and community courts (Porter, Rempel and Mansky 2010, p. iii.). Mental health courts are similar to drug courts in that they focus on rehabilitation, but different in that they aim for the improved social functioning and stability of their participants rather than complete abstinence (Ibid. p. 51). Domestic violence courts are unique in that they do not universally embrace participant treatment and rehabilitation as an important goal. Instead, many – thought not all – are primarily focused on victim support and safety and participant accountability and deterrence (Ibid. p. 52). 

Community courts “seek to address crime, public safety, and quality of life problems at the neighbourhood level. Unlike other problem-solving courts…community courts do not specialise in one particular problem. Rather, the goal of community courts is to address the multiple problems and needs that contribute to social disorganisation in a designated geographical area. For this reason, community courts vary widely in response to varying local needs, conditions, and priorities” (Lee et al. 2013). There are now over 70 community courts in operation around the world (Lee et al. 2013, p.1). Some are based in traditional courthouses, while others work out of storefronts, libraries or former schools. Though they typically focus on criminal offences, some community courts extend their jurisdiction to non-criminal matters to meet specific needs of the communities they serve as well (Ibid. p. 1.). Regardless of location and jurisdiction, all community courts take a proactive approach to community safety and experiment with different ways of providing appropriate services and sanctions (Wright n.d.).

Other less common problem-solving models include veterans courts, homeless courts, reentry courts, trafficking courts, fathering courts, and truancy courts (Ibid). 

The principles and practices of problem-solving justice can also be applied within non-specialised courts that already exist. In a 2000 resolution that was later reaffirmed in 2004, the Conference of Chief Justices and Conference of State Court Administrators advocated for, “Encourag[ing], where appropriate, the broad integration over the next decade of the principles and methods of problem-solving courts into the administration of justice to improve court processes and outcomes while preserving the rule of law” (Porter, Rempel and Mansky 2010, p. 3). Key features of a problem-solving approach to justice – which will be elaborated in the sections that follow – include: individualised screening and problem assessment; individualised treatment and service mandate; direct engagement of the participant; a focus on outcomes; and system change (Ibid. p. iv).

Problems and impacts

How and to what extent have problem-solving courts measured and mapped the following as a first step towards people-centred justice.

• The most prevalent justice problems within the population served
• The justice problems with greatest impact on the population served
• The justice problems that are most difficult to resolve and therefore tend to remain ongoing
• The groups most vulnerable to (systemic and daily) injustices within the population served

As their name suggests, problem-solving courts emerged to address the most prevalent, impactful, and difficult to resolve justice problems within the populations they serve. The first drug (and Drinking While Driving or DWI) courts were created as a response to the increase in individuals with substance use disorders in the criminal justice system and their levels of recidivism. Similarly, mental health courts “seek to address the growing number of [individuals with mental health needs] that have entered the criminal justice system” (Wright n.d.). As one interviewee put it, “The biggest mental health provider [in Los Angeles] is the county jail” (B. Taylor, personal communication, October 5, 2020).

Drug and mental health problems are among the most common issues faced by individuals responsible for both minor and more serious crime. These issues are difficult to resolve because judges – who have historically had little understanding of treatment and addiction – are inclined to hand down harsh sentences when defendants relapse or fail to complete their court mandate (B. Taylor, personal communication, October 5, 2020). This trend was particularly acute in the 1980s, when the war on drugs resulted in draconian sentencing laws that reduced judicial discretion (P. Hora, personal communication, October 16, 2020).

In order to understand and meet the needs of their unique populations, problem-solving courts track measures of problem prevalence and severity. As noted in the first section, early and individualised screening and problem assessment is a key feature of problem-solving justice. The purpose of such screenings is to “understand the full nature of the [participant’s] situation and the underlying issues that led to justice involvement.” 

For drug courts, relevant measures of problem severity may include: drug of choice; years of drug use; age of first use; criminal history; and treatment history (Porter, Rempel and Mansky 2010, p. 50). Mental health courts typically assess the nature and severity of their participants’ underlying mental health issues, and may also look at participant stability (in terms of health care, housing, compliance with prescribed medications, and hospitalisations) (Ibid. p. 51). 

Domestic violence courts and community courts are somewhat unique in that the primary population they serve include victims and members of the community as well as individuals with justice system involvement. Domestic violence courts focus on assessing the needs of victims of domestic violence in order to connect them with safety planning and other individualised services. Likewise, in addition to identifying the problems that impact individual participants, community courts focus on assessing the problems that impact the underserved (and also often disserved) neighbourhoods where they work. These should be identified through outreach in the relevant community but often include concentrations of lower level crimes – such as vandalism, shoplifting, and prostitution – as well as distrust of traditional justice actors (Ibid. p. 55-56).

Now that technical assistance is broadly available for problem-solving courts across the US, individualised screening and problem assessment has become increasingly data-driven and informed by validated needs assessment tools (B. Taylor, personal communication, October 16, 2020). 

Over the years, problem-solving courts have also become more adept at identifying groups within the populations they serve that are particularly vulnerable to injustice. The advancement of brain science, for example, has influenced many problem-solving courts to treat participants under 25 differently and give them an opportunity to age out of crime. Young people transitioning out of foster care are particularly vulnerable to justice involvement given their sudden lack of family support. Trafficked individuals, who used to be treated as criminals, are now widely recognised as victims (Ibid). Specialised problem-solving courts, diversion programs, and training initiatives have emerged to understand the unique needs and vulnerabilities of this population (Wright n.d.).

Problem-solving courts have also become more aware of racial inequities in the populations selected to receive treatment (B. Taylor, personal communication, October 16, 2020). Drug court participants in particular are often disproportionately white, with racial breakdowns that do not mirror the racial breakdowns of those arrested. This is largely a result of eligibility requirements tied to federal drug court funding, which has historically restricted individuals with violent criminal histories from participating. Drug courts have also been accused of cherry-picking participants who were most likely to be successful to improve their numbers and receive more funding. Both of these phenomena have had the effect of excluding disproportionate numbers of people of colour from drug treatment (Ibid). In addition to taking steps to mitigate these inequities, drug courts have increasingly come to recognise that cherry-picking low-risk cases reduces their effectiveness overall (P. Hora, personal communication, October 16, 2020).

Defining + Monitoring Outcomes

How and to what extent have problem-solving courts researched and identified the outcomes that people in the target population expect from justice processes.

In 1993, the first community court was set up in the Midtown neighbourhood of New York City (Lee et al. 2013, p.1). Inspired by the Midtown model, the Red Hook Community Justice Center was established in a particularly disadvantaged area of Brooklyn seven years later. Like the Midtown Court, the goal of the Red Hook Community Justice Center was “to replace short-term jail sentences with community restitution assignments and mandated participation in social services” (Taylor 2016). 

In the planning stages however, residents of Red Hook were not happy to learn that a new court was being introduced in their community. Though sustained community outreach, Red Hook court staff were able to change these negative perceptions and convince residents they wanted to do something different. They began by asking the community what outcomes were most important to them (B. Taylor, personal communication, October 5, 2020).  

This early engagement helped the Red Hook planners realise that tracking outcomes related to people’s presence in the court would not be enough to assess the court’s impact in the community. They would also need to look at outcomes that were meaningful to residents, asking questions like: How can we disrupt crime hot spots? How safe does the community feel? Do residents feel safe walking to the park, or the train? At what times? (Ibid).

Although the Red Hook community court model has since been replicated in different parts of the world, the experiences of two of these international courts illustrate that identifying the outcomes that community members expect from justice processes can sometimes be a challenge.

In 2005, England opened its first community court: the North Liverpool Community Justice Centre (NLCJC). A 2011 evaluation of the NLCJC acknowledged its innovative approach and “potentially transformative effect on criminal justice” but also noted:

How and why the Centre needs to connect with the public it is charged with serving remains one of the most complex and enduring concerns for staff...how consistently and how effectively the ‘community’ was contributing to the workings of the Centre provided a constant source of uncertainty” (Mair and Millings 2011).

After eight years of operation, the NLCJC was closed in 2013. Observers have since noted that a lack of grassroots community engagement in the planning and operation of the NLCJC was among the primary reasons that it ultimately failed to take hold (Murray and Blagg 2018; J. Lang, personal communication, October 28, 2020). 

One year after the NLCJC opened in England, the Neighbourhood Justice Centre (NJC) was piloted in the Collingwood neighbourhood of Melbourne, Australia. At the time, Collingwood had the highest crime rate in Melbourne, high rates of inequality, and a high concentration of services. This combination made it an ideal location for Australia’s first community court. 

Modelled on the Red Hook Community Justice Centre in Brooklyn and spearheaded by the State Attorney General at the time, Rob Hulls, the NJC pilot was focused on improving the community’s relationship with the justice system through local, therapeutic and procedural justice. Like Red Hook, it was designed based on evidence and an analysis of gaps in existing justice services. Despite shifting political winds –  including “tough-on-crime” rhetoric on the one hand and complaints of more favourable “postcode justice” available only for the NJC’s participants on the other – the NJC managed to secure ongoing state government support (J. Jordens, personal communication, October 19, 2020). 

Unlike the NLCJC, the NJC remains in operation today. The procedurally just design of the NJC building and approach of its magistrate, David Fanning, have earned the court significant credibility and legitimacy in the Collingwood community (Halsey and Vel-Palumbo 2018; J. Jordens, personal communication, October 19, 2020). Community and client engagement have continued to be a key feature of the NJC’s work, helping to reduce recidivism and increase compliance with community-based court orders (Halsey and Vel-Palumbo 2018) .

In spite of its success, some observers note that the NJC’s outreach efforts have not gone as far as they could have. Early consultations with a group of community stakeholders regarding the design and governance of the NJC were discontinued in the Centre’s later years. Although the reason for this is unclear and may well have been legitimate, the result was that key representatives of the community lost direct and regular access to NJC leadership over time (J. Jordens, personal communication, October 19, 2020). 

These examples illustrate that even under the umbrella of a one-stop-shop community court, identifying expected justice outcomes in the community as a first step towards problem-solving justice – and continuing to do so even after the court is well-established – is not a given. The extent to which this is achieved depends on the approach of the particular court and its efforts to create a reciprocal and collaborative relationship with the surrounding community.

How and to what extent have problem-solving courts determined whether existing justice processes deliver these outcomes and allow people in the target population to move on?

Problem-solving courts generally – and community courts and drug courts in particular – are created with the explicit intention to address gaps in existing justice processes. 

Community courts are typically established in communities that have been historically underserved and disproportionately incarcerated to provide a more holistic response to crime and increase trust in the justice system. 

In the early days of the Red Hook Community Justice Center, the community’s deep distrust of law enforcement emerged as a key challenge for the Center’s work. Red Hook staff approached this challenge by inviting police officers into the court and showing them the data they had collected on the justice outcomes that residents were experiencing. They helped the officers understand that by not addressing the root causes of crime in the Red Hook community, they were delaying crime rather than stopping it (B. Taylor, personal communication, October 5, 2020).

Over time, the court’s relationship with law enforcement has improved. In 2016, the Justice Center launched its “Bridging the Gap” initiative, which creates a safe space for young people and police officers to get to know each other and discuss difficult topics that offer the chance to explore the other’s perspective (Red Hook Justice News 2016; Sara Matusek 2017).

Similarly, the proliferation of drug courts across the country was a response to high rates of recidivism among individuals with substance use disorders, which persisted in spite of tough-on-crime sentencing practices. During the so-called “war on drugs” in the mid-1980s, judges across the country gradually began to realise that handing down increasingly long sentences to people with substance use disorders was not working. 

One such person was the late Honourable Peggy Hora, a California Superior Court judge responsible for criminal arraignments. Like other judges repeatedly confronted with defendants grappling with substance use disorders in the 1980s and 90s, Judge Hora initially felt that incarceration was the only tool available to her. Not much research had been done on incarceration at the time, so its detrimental effects were not yet widely known (P. Hora, personal communication, October 16, 2020). 

Determined to understand why the defendants that came before her seemed to be willing to risk everything to access drugs – even their freedom and the right to see their children – Judge Hora took a class on chemical dependency. This experience brought her to the realisation that “everything they were doing was wrong.” She quickly built relationships with people at the National Institute on Drug Abuse and began engaging with drug treatment research at a national level (Ibid). 

Judge Hora eventually went on to establish and preside over the nation’s second drug court in Alameda County, California. After learning more about procedural justice and seeing evidence that early drug courts worked and saved money in the long run, she helped promote the model across the country and around the world (Ibid).

How and to what extent have problem-solving courts created a system for monitoring whether new, people-centered justice processes deliver these outcomes and allow people in the target population to move on?

Outcomes monitoring is an essential component of problem-solving justice. As Rachel Porter, Michael Rempel, and Adam Manksy of the Center for Court Innovation set out in their 2010 report on universal performance indicators for problem-solving courts:

It is perhaps their focus on the outcomes generated after a case has been disposed that most distinguishes problem-solving courts from conventional courts. Like all courts, problem-solving courts seek to uphold the due process rights of litigants and to operate efficiently, but their outcome orientation demands that they seek to address the underlying issues that precipitate justice involvement (Porter, Rempel and Mansky 2010, p. 1.).

Measuring and monitoring people-centred outcomes was also key to problem-solving courts’ early success. Because the problem-solving approach was so different from the status quo, showing evidence that it worked was necessary for building political and financial support. This meant clearly articulating the goals of problem-solving courts and finding ways to measure progress towards them (B. Taylor, personal communication, October 14, 2020).

In their report, What Makes a Court Problem-Solving? Porter, Rempel, and Mansky identify universal indicators for each of the three organising principles of problem-solving courts. They include: (under problem-solving) individualised justice and substantive education for court staff; (under collaboration) links with community-based agencies and court presence in community; and (under accountability) compliance reviews, early coordination of information, and court data systems (Porter, Rempel and Mansky 2010, p. 57).  Many of these problem-solving principles and practices can be (and are) applied and monitored in traditional courts. 

To ensure delivery of individualised justice for example, any court staff can engage the individuals appearing before it by making eye contact, addressing them clearly and directly, and asking if they have any questions about the charges or their mandate (Ibid). This kind of engagement can “radically change the experience of litigants, victims, and families” and “improve the chance of compliance and litigant perceptions of court fairness” (Ibid). Similarly, any court can prioritise and track its use of alternative sanctions – such as community service or drug treatment – and its efforts to link individuals to existing services in the community (Ibid).

The extent to which a particular (problem-solving or traditional) court monitors progress towards these people-centred outcomes depends on its ability to track compliance and behaviour change among participants. This can be achieved through regular compliance reviews, which provide “an ongoing opportunity for the court to communicate with [participants] and respond to their concerns and circumstances” (Ibid. p. 60-61). Investing in electronic data systems that track and coordinate information also makes it easier for a court to monitor its overall impact on case outcomes and improve the quality of its mandates (Ibid).

Successful outcomes monitoring also depends crucially on a court’s ability to develop strong relationships with researchers. Without this, early problem-solving courts like the Red Hook Community Justice Center would not have been able to, for example, quantify the impact of a 7-day jail stay in terms of budget, jail population, and bookings per month. Strong research partnerships also made it possible to compare successful and unsuccessful court participants, which was necessary to assess and improve the quality of the court’s services (B. Taylor, personal communication, October 14, 2020).

Outcomes monitoring at the Red Hook Community Justice Center was not without its challenges, however. Because most people who come before the court are charged with less serious crimes, their treatment mandates are relatively short. The short amount of time the Red Hook staff and service providers have to work with these participants means that outcomes related to individual progress are not likely to show a full picture of the court’s impact. The Red Hook Community Justice Center addressed this by also measuring outcomes related to the court’s impact on the community. What was the effect on social cohesion and stability when someone’s brother, father, or son was allowed to remain in the community instead of being incarcerated? (B. Taylor, personal communication, October 5, 2020).

Another challenge faced by community courts broadly is that traditional outcomes monitoring systems are not well-equipped to acknowledge the reality that everything is connected. Where does one draw the line between service providers and justice providers? If a restorative justice process facilitated under the supervision of the court fails to reconcile the parties in conflict but has a positive impact on the lives of the support people who participate, should it be considered a success or failure? 

A former Red Hook staff member involved in the court’s peacemaking initiative shared a story of a young, devout woman with a new boyfriend who mistreated her and who her children strongly disliked. When she tried to throw him out, the boyfriend would use her Christian values against her and convince her to let him stay. Eventually, he punched someone and was arrested on assault charges. His case was referred to a restorative justice circle for resolution. In the circle, the boyfriend was very aggressive and as a result, his case was sent back to court. The woman and her children asked if they could continue meeting in circle without him because they found it helpful (Ibid).

After a series of circle sessions together, the woman came to realise that her abusive boyfriend was using drugs and found the courage to kick him out. In his absence, the woman and her children were able to reconcile and reunite. The woman returned to school and her oldest son found a job. The criminal case that started the process was ultimately unresolved, but from a more holistic and common sense perspective the impact of the circles on the family was positive (Ibid). How should success be measured in this case? This is a challenge that community courts attempting to measure and monitor people-centred justice regularly face.

Evidence-Based Solutions

How and to what extent have problem-solving courts introduced interventions that are evidence-based and consistently deliver the justice outcomes that people in the target population look for.

Problem-solving courts have introduced a number of interventions that have proven to deliver people-centred outcomes for the communities they serve. Although different interventions work for different populations, direct engagement with participants and the delivery of individualised treatments are two key elements of the problem-solving orientation that all problem-solving courts share (Porter, Rempel and Mansky 2010, p. 29-30). 

As described in the previous section, direct engagement means that the judge speaks to participants directly and becomes actively engaged in producing positive change in their lives (Ibid. p. 30-31). This effort to ensure that participants feel heard, respected and experience the process as fair is supported by research on procedural justice. 

Individualised treatment means that the interventions delivered are tailored to the specific problems of each participant. This requires that the court offer “a continuum of treatment modalities and services to respond to the variety and degrees of need that participants present.” This service plan must be revisited by the court on a regular basis and adjusted depending on the participant’s reported progress (Ibid. p. 29-30).

Despite this shared approach to justice delivery, different problem-solving courts have identified different types of treatments and ways of monitoring whether they work that are unique to the populations they serve.

Community courts like the Red Hook Community Justice Center, for example, generally work with the residents in their neighbourhood to find out what is important to them rather than imposing a predetermined set of solutions. 

The Neighbourhood Justice Centre in Melbourne did this through a unique problem-solving process that took place outside of the courtroom and which participants could opt into voluntarily. In a confidential, facilitated discussion based on restorative and therapeutic justice principles, participants were given an opportunity to share their perspective on the problems they were facing and empowered to become collaborators in their own rehabilitation. Important takeaways from this process would be reported back to the court’s magistrate so he could help them move forward – for example by changing their methadone (1) dose or changing the number of treatments they received per week. The collaborative nature of the sessions helped ensure that the treatment plans mandated by the court were realistic for participants. Though the content of these sessions was unpredictable and varied, the co-design process remained constant (J. Jordens, personal communication, October 19, 2020; Halsey and Vel-Palumbo 2018).

With that said, certain interventions have proven to consistently improve outcomes for communities, victims, and individuals with justice system involvement when applied to low-level cases. These include: using (validated) screening and assessment tools (2); monitoring and enforcing court orders (3); using rewards and sanctions; promoting information technology (4); enhancing procedural justice (5); expanding sentencing options (to include community service and shorter interventions that incorporate individualised treatment); and engaging the community (6).

In 2009, the National Institute of Justice funded a comprehensive independent evaluation of the Red Hook Community Justice Center to assess whether it was achieving its goals to reduce crime and improve quality of life in the Red Hook neighbourhood through these interventions (Lee et al. 2013, p. 2.). The evaluation found that:

The Justice Center [had] been implemented largely in accordance with its program theory and project plan. The Justice Center secured the resources and staff needed to support its reliance on alternative sanctions, including an in-house clinic and arrangements for drug and other treatment services to be provided by local treatment providers...The Justice Center’s multi-jurisdictional nature, as well as many of its youth and community programs, evolved in direct response to concerns articulated in focus groups during the planning process, reflecting a stated intention to learn of and implement community priorities (Ibid. p. 4).

Using a variety of qualitative and quantitative research methods, the evaluation also concluded that Red Hook had successfully: changed sentencing practices in a way that minimised incarceration and motivated compliance; provided flexible and individualised drug treatment; sustainably reduced rates of misdemeanour recidivism among young people and adults; and reduced arrests in the community. 

In spite of the robust evidence supporting their approach, many community courts experience resistance to their efforts to help participants address underlying issues of substance use and mental disorders through treatment. As Brett Taylor, a Senior Advisor for Problem-Solving Justice and former defence attorney at the Red Hook explains:

Some critics of community courts say that [this] is not the job of courts and should be handled by other entities. In a perfect world, I would agree. However, in the reality of the world today, people with social service needs continue to end up in the courts. Court systems across the country have realised that if defendants with social service needs are not given treatment options, those defendants will be stuck in the revolving door of justice and continue to clog the court system....Although it may not comport with the vision of success that many defence attorneys had upon entering this work, I can tell you that nothing beats seeing a sober, healthy person approach you on the street and hearing, ‘Thank you for helping me get my life back on track’ (Taylor 2016, p. 25).

In contrast to the broad and community-based approach to treatment taken by community courts, drug courts focus specifically on providing drug treatment. In the words of Judge Peggy Hora, drug treatment is “painful and difficult.” Because of this, drug courts start with external changes as their goal, but ultimately aim for internal change. This means appropriately matching participants with evidence-based treatment and using neutral language that assists, supports, and encourages participants along the way. Because relapse is such a common feature of recovery, drug courts focus on keeping people in appropriate treatment as long as necessary for them to eventually graduate from the program (P. Hora, personal communication, October 16, 2020).

Drug court treatments have become increasingly evidence-based since the 1990s due to a growing movement toward performance measurement in the non-profit sector:

The emergence of drug courts as a reform of courts’ traditional practice of treating drug-addicted offenders in a strictly criminal fashion coincided with renewed interest in performance measurement for public organisations. The argument for measuring the performance of drug courts is compelling because they are a recent reform that must compete with existing priorities of the judicial system for a limited amount of resources. This makes it incumbent upon drug courts to demonstrate that the limited resources provided to them are used efficiently and that this expenditure of resources produces the desired outcomes in participants (Rubio et al. 2008, p. 1).

This movement was further strengthened by the development of a cutting edge performance measurement methodology known as the “balanced scorecard.” Created for the business sector, the balanced scorecard method aims to go beyond traditional measures of success and get a more balanced picture of performance by incorporating multiple perspectives. This method was adapted to create CourTools, a set of ten performance measures designed to evaluate a small set of key functions of trial courts (Ibid. p. 2). 

Because “the nature of addiction and the realities of substance use treatment require extended times to disposition for drug court participants,” many of the performance measures developed for conventional trial courts (such as reduced time to disposition) are not directly applicable to drug courts. However, the increased application of performance measurement to courts and the creation of CourTools in particular helped make way for the development of the first set of nationally recommended performance measures for Adult Drug Courts in 2004 (Ibid. p. 4).

Developed by a leading group of scholars and researchers brought together by the National Drug Court Institute (NDCI) and published for the first time in 2006, these included four key measures of drug court performance: retention; sobriety, in-program recidivism; and units of service (Ibid. p. 5).

Retention refers to the amount of time drug court participants remain in treatment. “Longer retention not only indicates success in treatment but also predicts future success in the form of lower post treatment drug use and re-offending”  (Ibid. p. 5). Sobriety – both during and after treatment –  is another important goal of drug courts. “As the participant proceeds through the program, a trend of decreasing frequency of failed [drug] tests should occur. Research has shown that increasing amounts of time between relapses is associated with continued reductions in [drug] use” (Rubio et al. 2008, p. 5). In-program recidivism is the rate at which drug court participants are re-arrested during the course of their participation. This is expected to be lowered through a combination of “judicial supervision, treatment, and rewards and sanctions” unique to drug courts (Ibid. p.5; US Government and Accountability Office, 2005). Finally, units of service refers to the dosages in which drug court treatment services – including, but not limited to substance use treatment – are delivered. These are usually measured in terms of days or sessions of service provided (Rubio et al. 2008, p. 5).

Since their development, these four measures of drug court performance have been actively promoted by leading technical assistance providers like the Center for Court Innovation (CCI) and the National Center for State Courts (NCSC) (Ibid. p. 6). They have since been adopted and adapted by a number of states across the US. The NCSC facilitates this process, but decisions about what specifically to measure are made by the advisory committee convened by the state-level agency responsible for drug courts (Ibid). Additional performance measures used by some states relate to, for example: accountability, social functioning, processing, interaction with other agencies, compliance with quality standards, and  juvenile drug court measures, family drug court measures, and domestic violence drug court measures (Ibid. p. 10).

In 2007, the NCSC surveyed statewide drug court coordinators from across the country about their use of state-level performance measurement systems (SPMS). Out of 45 states that completed the surveys, 58% were using a SPMS in their drug courts. Most of these were adult drug courts (Ibid. p. 14). Although the frequency with which these states reported performance measurement data varied from quarterly to annually, the majority did provide data to a central agency (Ibid. p. 15). 

The development and widespread use of SPMS have helped drug courts deliver treatments that are increasingly evidence-based in the sense of consistently delivering the outcomes that their participants need. However, the NCSC survey found that the state-level performance measures used were not entirely balanced in that they typically focused more on the effectiveness of drug courts than their efficiency, productivity, or procedural satisfaction (Ibid. p. 20). The NCSC therefore recommended that a more balanced, national and uniform set of drug court performance measures be developed to measure performance more holistically and facilitate comparisons of performance across states (Ibid. p. 18).

How and to what extent have problem-solving courts used outcome-based monitoring (discussed in the previous section) to continuously improve these interventions and replace interventions that have proven ineffective?

Because of their problem-solving orientation and focus on outcomes, problem-solving courts are by their nature adaptive and capable of developing new treatment modalities to meet different kinds of needs. As Brett Taylor, Senior Advisor for Problem-Solving at the Center for Court Innovation put it, “the problem-solving court environment creates a space in which there is more room for creativity. If you were to redesign the justice system now, there wouldn’t be only courts you could go to, there would be different justice mechanisms and modalities available to treat different levels of issues. Perhaps that is why new modalities develop within problem-solving courts” (B. Taylor, personal communication, October 19, 2020).

A clear example of this creative and outcomes-based approach to improvement was the way the problem-solving dialogue process developed at the Neighbourhood Justice Center (NJC) was adapted over time to meet changing demands in the community. As Jay Jordens, a Neighbourhood Justice Office at the NJC who introduced the process explains: “different problems would arise that would demand a re-design of the court’s approach” (J. Jordens, personal communication, October 19, 2020).

For example, the NJC began to notice that people responsible for family violence were participating in problem-solving dialogues without sharing this part of their history. In response, the NJC developed a tailored problem-solving process for people who were respondents to a family violence order in which this part of their past would be addressed from the start. The NJC also began facilitating support meetings for victims of family violence, including for example parents who were being mistreated by their children. The process was designed to solicit feedback about the new approach after victims had tried it. Eventually, it earned the support of the police in the community because it consistently delivered outcomes for a unique population (Ibid).

A second adaptation of the problem-solving process at the NJC was made when court staff noticed that many young people were opting out. Many of the court-involved young people in the Collingwood community were refugees from South Sudan who were experiencing the effects of intergenerational trauma. Realising that the process as it was originally imagined was too interrogative for this population, the NJC began holding circles with the young person, their mother, and one or two support workers. A facilitator would begin by asking humanising questions of everyone in the circle. Although the young person would often pass when it was their turn to speak, participating in the circle gave them an opportunity to listen, relax, and improve their relationships with the adults sitting in the circle with them. These problem-solving circles were designed to prioritise safety concerns and would often result in an agreement among the participants to get external support and/or attend family therapy.

Jay Jordens notes that such adaptations were possible in spite of, not because of, an operational framework of specialisation within the court that made collaboration a choice rather than an expectation among Centre staff. “We aren’t there yet where these processes are intuitive,” he explained, “we still need to actively facilitate them” (Ibid).

Because of their systematic approach to outcomes monitoring and performance measurement, drug courts have made a number of improvements to the treatment they provide as well. First and foremost, they have learned to avoid net widening: “the process of administrative or practical changes that result in a greater number of individuals being controlled by the criminal justice system” (Leone n.d.).

Specifically, drug courts have learned that putting the wrong people in the wrong places results in bad outcomes. An example of this is cherry picking the easiest cases for drug treatment: a common practice among drug courts in the early years of their development that later proved to be harmful. Evidence has shown that drug courts are most effective when they focus on treating high-risk, high-needs participants who are most likely to reoffend (P. Hora, personal communication, October 16, 2020). Cherry picking low-risk cases in order to inflate measures of success means putting them in more intensive treatment than they need and failing to appropriately match treatments with risk. Over time, this entraps people in the criminal justice system unnecessarily and reduces drug courts’ potential to meaningfully reduce crime (B. Taylor, personal communication, October 19, 2020).

Cherry picking low-risk cases for drug treatment has also resulted in racially biased outcomes. Because of the ways racial bias is embedded in the American criminal justice system, young white defendants have historically been more likely to be assessed as low-risk and eligible for specialised treatment than participants of colour. Participants of colour who were selected for drug court programming also tended to flunk out or leave voluntarily at higher rates than white participants.

In response to these trends, drug courts developed a toolkit on equity and inclusivity to examine the data and understand why this was happening. They introduced HEAT (Habilitation Empowerment Accountability Therapy), a new drug treatment modality geared towards young black men which was recently evaluated with very positive results. They have also worked harder generally to ensure that treatments are culturally appropriate for the different populations they serve.

Drug courts have also become more sophisticated at treating different kinds of drug addiction. The Matrix Model, for example, was developed to engage a particularly difficult population – stimulant (methamphetamine and cocaine) users – in treatment. Previously considered “untreatable” by many drug courts, stimulant users treated using the Matrix Model have shown statistically significant reductions in drug and alcohol use, risky sexual behaviors associated with HIV transmission, and improved psychological well-being in a number of studies (P. Hora, personal communication, October 16, 2020; National Institute of Drug Abuse 2020).

Drug court judges who once took a “blaming and shaming” approach have shifted towards a more people-centred one, as evidenced by changes in the language used to describe participants. In response to research in the medical sector demonstrating that people who are described as addicts receive lower quality care and fewer prescriptions, drug courts have increasingly replaced the term “addiction” with “substance use disorder” (P. Hora, personal communication, October 16, 2020).

In line with this shift, attitudes towards medically assisted drug treatment have also changed dramatically over the years. Whereas most drug courts previously did not allow the use of methadone in treatment, the field has now clearly adopted medically assisted treatment after finding that it was consistent with improved graduation rates, among other outcomes. Though not universally accepted, it is now considered a best practice supported by decades of research (Ibid).

On a more systematic level, a 2007 analysis of performance measurement data collected by the state of Wyoming provides an example of how drug courts have started to use this data to improve the quality of their treatments and overall impact. Based on results related to the key measures of drug court performance introduced in the previous section – retention, sobriety, in-program recidivism and units of service – the NCSC made a number of programmatic recommendations for drug courts across the state. First, they suggested that drug courts aim to support participants’ education and employment-related needs, as both attainment of a diploma and employment at admission to treatment were associated with increased graduation rates. They also recommended that additional resources be made available for young participants of colour, who were found to have higher rates of positive drug tests and recidivism than young white participants (Rubio et al. 2008, p. 17).

Innovations + Delivery Models

How and to what extent have problem-solving courts scaled their people-centered service delivery model to deliver justice outcomes for a larger population.

Many problem-solving courts across the US continue to start in the way the first problem-solving courts did: with judges deciding to do things differently. With that said, the proliferation of problem-solving courts across the country can be traced to three primary factors: science and research; technical assistance; and changes in legal education.

Research has helped bring problem-solving courts to scale by showing that the problem-solving approach to justice, if properly implemented, can be effective. Research on procedural justice and advancements in understanding of the science of addiction have been particularly important in this respect. Increased awareness of major studies in these areas have helped the field shift towards evidence-based working and helped legal professionals learn from past mistakes. More and more judges realise that relapse is part of recovery, and that mandated treatment within a drug court structure delivers positive outcomes for participants (B. Taylor, personal communication, October 19, 2020).

Once a number of problem-solving courts had been established around the country, technical assistance providers emerged to help them take a data-driven approach. This means working with communities to look at the numbers and identify the biggest crime problems they are struggling with and introducing a problem-solving court that is responsive to those issues. It also means using screening and needs assessment tools to make informed sentencing decisions and match participants to appropriate treatments. Technical assistance has helped problem-solving courts increase their impact and effectiveness and over time deliver outcomes for larger populations (Ibid).

As problem-solving courts like the Red Hook Community Justice Center have become better known, law students and young legal professionals have become more aware of and enthusiastic about problem-solving justice as an alternative to adversarial ways of working (Ibid). This represents a significant shift from the early days of problem-solving courts, when judges and lawyers alike were reluctant to embrace non-conventional conceptions of their roles as legal professionals. Prosecutors called problem-solving courts “hug-a-thug” programs. Defence attorneys resisted the idea of a court being a cure-all for their clients. Judges insisted that they “weren’t social workers” and shouldn’t be doing this kind of work (P. Hora, personal communication, October 16, 2020). Service providers were concerned too: they feared that involving the justice system in treatment would ruin their client relationships.

Over time, judges have come to see that their roles could expand without violating something sacrosanct about being a judge. In 2000, the Conference of Chief Justices and Conference of State Court Administrators adopted a resolution supporting the use of therapeutic justice principles. Since then, experience presiding over a drug court has come to be seen as a positive in judicial elections (Ibid).

Despite early concerns that problem-solving courts were “soft on crime,” prosecutors and defense attorneys have largely come on board as well. Research has demonstrated that when problem-solving courts acknowledge their gaps in knowledge and defer to service providers for clinical expertise, they can be successful in supporting treatment. As a result of advances in research, the emergence of problem-solving technical assistance, and important cultural shifts, drug and mental health courts are now widely recognised as appropriate and welcome additions to the field (Ibid). This acceptance has facilitated their spread nationally and as far as Australia and New Zealand.

Court numbers are not the only relevant measure for evaluating the extent to which problem-solving courts have successfully scaled, however. In addition to horizontal scaling of courts across the country, vertical integration of problem-solving principles and practices within particular jurisdictions is an important indicator of problem-solving courts’ spread and influence (J. Lang, personal communication, October 28, 2020).

As explained in the introduction, the principles and practices of problem-solving justice can be and are increasingly applied by traditional justice actors and in existing, non-specialised courts. Police departments across the country are learning that they can divert defendants to treatment from the get-go, without necessarily waiting for a case to be processed through the courts (Ibid). A prominent example of police-led diversion is LEAD (Law Enforcement Assisted Diversion) in Seattle, “a collaborative community safety effort that offers law enforcement a credible alternative to booking people into jail for criminal activity that stems from unmet behavioural needs or poverty” (Law Enforcement Assisted Diversion, n.d.). The Seattle LEAD model was externally evaluated and found to deliver a range of positive outcomes for individuals with justice system involvement and the community (LEAD National Support Bureau n.d.-a). The model has been replicated successfully and is now operating in over thirty-nine counties in the US (LEAD National Support Bureau n.d.-b).

Cases that do reach court are also increasingly diverted outside of it. Prosecutors and judges who are not operating within a problem-solving court can nevertheless apply problem-solving principles by linking defendants to services and making use of alternative sentences in lieu of jail time. This “problem-solving orientation” has allowed problem-solving justice to be applied in more instances and settings without necessarily setting up new problem-solving courts. One indication that problem-solving courts have already scaled “horizontally” in the US – and that this “vertical” scaling is the latest trend – is the fact that the US government’s drug courts funding solicitation in 2020 no longer includes a category for the creation of a new drug court (J. Lang, personal communication, October 28, 2020).

Evidence of this trend towards vertical scaling can be found as far away as Australia. As a specific alternative to horizontal replication, the Neighbourhood Justice Centre (NJC) has developed resources to support judges at the Melbourne Magistrates Court to adopt a problem-solving approach to their work. Over time, this court has become a “laboratory of experimentation” for problem-solving principles and practices as well as other complementary technologies (i.e. therapeutic or procedural justice approaches)  that need to be tested before broader roll-out. In a similar vein, New York City’s courts have carried the innovative principles and practices of community courts into centralised courthouses in Brooklyn and the Bronx rather than creating more Red Hooks (Ibid).

How and to what extent have problem-solving courts funded their service delivery model in a sustainable way?

Drug courts have been successful in obtaining large and sustainable streams of federal funding due to the strong research partnerships they developed from the start. Early data collection and evaluation persuaded funders that the problem-solving approach would deliver positive outcomes and save money by reducing incarceration costs. The fact that Florida Attorney General  Janet Reno – who set up the nation’s first drug court in 1989 – worked with Assistant Public Defender Hugh Rodham (7) in Miami Dade County also helped make drug courts a success and capture the attention of the federal government early on.

Importantly, federal funding for drug courts was often conditional upon their participation in rigorous evaluations. This demonstrated the effectiveness of the drug court model in a way that may not have been possible had the drug courts had to fund the research themselves, and justified their continued funding (P. Hora, personal communication, October 16, 2020). In recent years, states and counties have become a significant source of funding for drug courts as well  (J. Lang, personal communication, October 28, 2020).

Although the federal government has also helped fund other types of problem-solving courts, drug courts are by far the most sustainably funded. Only recently has the government made it possible for community courts to apply for direct funding, or indirect funding as subgrantees of the Center for Court Innovation. The long-term funding for many community courts is provided by local municipalities (Ibid). Funding community courts is a unique challenge because in addition to standard line items like project director and case worker salaries, they must find a way to cover less conventional expenses support for community volunteers and circle participants (often in the form of food, which the government is not willing to fund) (B. Taylor, personal communication, October 19, 2020).

Direct federal funding for other kinds of problem-solving courts is very limited. What funding has been made available to them has gone primarily towards research and the establishment of state-level coordinators and problem-solving court infrastructure. This has helped to increase awareness of the problem-solving principles and practices at the state level and encouraged their application in different areas (P. Hora, personal communication, October 16, 2020).

Private foundations have supported various aspects of problem-solving justice initiatives in certain parts of the country, but have not yet committed to doing so in a sustained way (J. Lang, personal communication, October 28, 2020).

To what extent have problem-solving courts leveraged the following sustainable financing strategies: public-private partnerships and smart (user) contributions?

Community courts in New York – including the Red Hook Community Justice Center and the Midtown Community Court – have benefitted from public-private partnerships to the extent that their planning and operations have been led by the Center for Court Innovation, a public-private partnership between the New York court system and an NGO. Over the years, these courts have also partnered with local “business improvement districts” to supervise community service mandates and offer employment opportunities to program graduates (Ibid).

Some treatment courts do also charge a nominal participant fee, which can range from $5-$20 per week (Wallace 2019). These user contributions can be used for grant matching, among other things. Charging people for their participation in problem-solving programming is generally not regarded as good practice, however (J. Lang, personal communication, October 28, 2020).

More broadly, problem-solving courts and community courts in particular can be said to be financially sustainable in that they often save taxpayer money (Wallace 2019). Although it takes time to realise the benefits of the upfront costs of creating and running a drug court for example, research has demonstrated that once established, the associated cost savings range from more than $4,000-$12,000 per participant (Office of National Drug Court Policy 2011). The Red Hook Community Justice Center alone was estimated to have saved local taxpayers $15 million per year (primarily) in victimisation costs that were avoided as a result of reduced recidivism (Halsey and de Vel-Palumbo 2018). The cost savings associated with problem-solving courts have helped them to continue to be competitive applicants for federal, state and local, and sometimes private grant funding over the years and in spite of changing political winds (Wallace 2019).

• Enabling environment

How and to what extent have regulatory and financial systems created/enabled by the government supported problem-solving courts and made it possible for this service/activity to scale?

Most if not all states in the US have allowed drug courts to become part of state legislation, which makes possible their continued operation (P. Hora, personal communication, October 16, 2020).

How and to what extent have the outcomes-based, people-centered services delivered by problem-solving courts been allowed to become the default procedure?

Problem-solving courts have not been allowed to become the default procedure in that adversarial courts and procedures remain the standard way of responding to crime in the US. In the words of Judge Hora, “There is no question that the number of people served is growing, but this remains only a drop in the bucket. For every person served there are 6-7 who aren’t” (Ibid). However, the expanding presence of problem-solving courts has helped the justice sector shift away from the excessively punitive state sentencing laws and tough-on-crime rhetoric of the late 1980s towards a more restorative and evidence-based way of working (B. Taylor, personal communication, October 5, 2020).

Problem-solving courts have enabled cultural change by demonstrating to lawyers and judges that defendants do better when they are able to access treatment, while at the same time allowing these traditional legal players to act as intermediaries and retain a gatekeeping role. As discussed in previous sections, police, prosecutors, and judges alike have grown increasingly comfortable with diverting cases from the adversarial track to community-based treatment (Ibid).

It is a paradox that the US has developed and spread the problem-solving courts model as the country with the highest incarceration rates in the world. Former Senior Advisor of Training and Technical Assistance at the Center for Court Innovation, Julius Lang, speculates that this punitive backdrop is what has allowed alternatives to incarceration to flourish in the US and become so highly developed. At the same time, countries with lower baseline penalties that have set up problem-solving courts, such as Canada and Australia, have developed creative means of engaging defendants who need treatment since there is less of a threat of incarceration (J. Lang, personal communication, October 28, 2020).

How and to what extent have problem-solving courts stimulated (or benefitted from) investment into justice research and development?

Problem-solving courts have both stimulated and benefited from investment into justice research and development. As discussed in the previous sections, the success of problem-solving courts in the US can be attributed in large part to their strong research partnerships. 

From the start, “problem-solving courts always took responsibility for their own research and their own outcomes” (Ibid). Problem-solving justice initiatives run by the Center for Court Innovation, for example, always worked directly with researchers. This produced a huge amount of evaluation literature, which was important for securing the buy-in and funding necessary to continue operating (B. Taylor, personal communication, October 14, 2020). 

The fact that federal funding has incentivised high-quality evaluations has also gone a long way to build a foundation of evidence demonstrating drug courts’ effectiveness (P. Hora, personal communication, October 16, 2020).

Leadership + Pathways

How and to what extent have justice sector leaders’ skills and collaborations enabled/hindered problem-solving courts to increase access to justice by delivering the outcomes people need at scale.

Strong leadership has been essential to problem-solving courts’ ability to deliver the treatment outcomes people need at scale. Without the leadership of visionary judges and other leaders aiming to do things differently, they would never have come into existence in the first place. 

Because of the tendency to maintain the status quo, individual problem-solving courts also rarely get off the ground without a strong champion. The reason for this can be traced to problem-solving principles and practices themselves: the goal is not to force people to change, but to make them change because they want to. In the same way, effective leaders can persuade system actors that problem-solving justice is the way to achieve common goals (B. Taylor, personal communication, October 14, 2020).

Community courts in particular require strong leadership. This can sometimes pose problems for the courts’ long-term stability. For example, a community court in North Liverpool was championed by prominent national politicians. Their leadership was important for the court’s establishment and initial funding, but changes in national leadership and the lack of local support were major factors in the court’s ultimate closure (J. Lang, personal communication, October 28, 2020).

As mentioned above, community courts may struggle when their early champions move on. To avoid this and prepare for the eventual departure of the personalities who are driving change, it is important to put the courts’ internal ways of working into writing. As previously discussed, it is also necessary to obtain evidence that the court’s approach works, as this is a more important driver of funding than good leadership in the long-run (B. Taylor, personal communication, October 5, 2020).

Mid-level leadership within problem-solving courts also matters. Since staff are often employed and supervised by various partner agencies – rather than the director of the project as a whole – it is particularly important that they be selected with care, trained in the project’s mission, policies and practices, and incentivised to work as part of a single team (J. Jordens, personal communication, October 19, 2020).

How and to what extent have problem-solving courts contributed to/benefited from new high-level strategies or pathways towards people-centred justice in the US?

High-level strategies at the state level and in the form of technical assistance have benefitted problem-solving courts significantly by facilitating their replication. This is particularly true of drug courts, for which state-wide coordination mechanisms were set up at an early stage.

Recognising that substance use disorder was a major problem, and persuaded by the same research as federal legislators, state officials began to set up mechanisms that would allow them to receive federal drug court funding. This also allowed them to strategise about which counties would most benefit from drug courts (or other problem-solving courts), and which standards to impose. 

Together, state-wide coordination mechanisms created an infrastructure for the improvement and replication of drug courts nationwide, and made it easier to apply problem-solving practices and principles in new settings. Whereas trainings on brain science and what’s working in treatment used to be reserved for drug court judges, there are now few states that do not include them in judicial training for all new judges. The same can be said for trainings for prosecutors, defence attorneys, and service providers (P. Hora, personal communication, October 16, 2020).

The emergence of technical assistance providers specialising in problem-solving justice such as the Center for Court Innovation, Justice System Partners, the National Center for State Courts, and the Justice Management Institute have also helped problem-solving courts to coordinate and replicate in strategic ways. By developing listservs and organising conferences, these organisations have enabled people in various problem-solving courts to support each other across state and international lines. Over time, these efforts have created shared principles and legitimacy around the movement for problem-solving justice (J. Lang, personal communication, October 28, 2020).

To what extent have problem-solving courts contributed to/played a role in a broader paradigm shift towards people-centered justice?

As mentioned in the introduction, a fifth key feature of the problem-solving orientation is system change. By educating justice system stakeholders about the nature of behavioural problems that often underlie crime and aiming to reach the maximum number of cases within a given jurisdiction, problem-solving courts seek to make broader impact within the justice system and community (Porter, Rempel and Mansky 2010, p. 32-33).

Since the first drug court was set up in 1989, legal professionals have become increasingly aware that many people with social problems end up in the justice system: a system that was never intended to address those problems. Problem-solving courts have contributed to a broader paradigm shift towards people-centred justice to the extent that they have helped these professionals:

• Acknowledge this issue;
• Recognise that lawyers are not equipped to deal with this issue (American law schools do not prepare them to);
• Connect with service providers in the community;
• Leverage the coercive power of the justice system in a positive way;
• Encourage success in treatment programs using procedural justice.

By taking a collaborative approach to decision-making, delivering individualised justice for each participant while at the same time holding them accountable, educating staff, engaging the broader community, and working to produce better outcomes for people, problem-solving courts have demonstrated what people-centred criminal justice can look like in the US and around the world.

View additional information

(1) Methadone is a synthetic opioid used to treat opioid dependence. Taking a daily dose of methadone in the form of a liquid or pill helps to reduce the cravings and withdrawal symptoms of opioid dependent individuals.

(2) “A screening tool is a set of questions designed to evaluate an offender’s risks and needs fairly quickly…An assessment tool is a more thorough set of questions administered before an offender is matched to a particular course of treatment or service.” Taylor 2016, p. 7.

(3) “The main monitoring tool community courts use is compliance hearings, in which participants are periodically required to return to court to provide updates on their compliance.” Taylor, 2016, p. 9.

(4) “Community courts have promoted the use of technology to improve decision-making. Technology planners created a special information system for the Midtown Community Court to make it easy for the judge and court staff to track defendants…Information that’s reliable, relevant, and up-to-date is essential for judges to make the wisest decisions they can.” Taylor 2016, p. 12-13.

(5) In community courts, “judges often speak directly to the offender, asking questions, offering advice, issuing reprimands, and doling out encouragement. This reflects an approach known as procedural justice…Its key components, according to Yale Professor Tom Tyler, are voice, respect, trust/neutrality, and understanding.” Taylor 2016, p. 15.

(6) “Community courts emphasize working collaboratively with the community, arguing that the justice system is stronger, fairer, and more effective when the community is invested in what happens inside the courthouse.” Taylor 2016, p. 22.

(7) Hugh Rodham was the brother of Hillary Clinton, who would become the First Lady a few years later.

View References

Amanda Cissner and Michael Rempel. (2005).  The State of Drug Court Research: Moving Beyond ‘Do They Work?’ , Center for Court Innovation.

Brett Taylor. (2016). Lessons from Community Courts: Strategies on Criminal Justice Reform from a Defense Attorney . Center for Court Innovation, p. 3.

Cheryl Wright, (n.d.). Tackling Problem-Solving Issues Across the Country . National Center for State Courts (NCSC).

Cynthia Lee, Fred Cheesman, David Rottman, Rachael Swaner, Suvi Lambson, Michael Rempel and Ric Curtis. (2013). A Community Court Grows in Brooklyn: A Comprehensive Evaluation of the Red Hook Community Justice Center . National Center for State Courts, Center for Court Innovation, p.1.

David Wallace. (2019). Treatment Court: Is Yours Sustainable? (Part Four) . Justice Speakers Institute.

David Wallace. (2019). Treatment Court: Is Yours Sustainable? (Part One) . Justice Speakers Institute.  

Dawn Marie Rubio, Fred Cheesman and William Federspiel. (2008). Performance Measurement of Drug Courts: The State of the Art . National Center for State Courts, Volume 6, p. 1.

George Mair and Matthew Millings. (2011). Doing Justice Locally: The North Liverpool Community Justice Centre . Centre for Crime and Justice Studies.

Halsey and de Vel-Palumbo. (2018). Courts As Empathetic Spaces: Reflections on the Melbourne Neighbourhood Justice Centre . Griffith Law Review, 27(4).

Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 5, 2020.

Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 14, 2020.

Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 16, 2020.

Interview with Brett Taylor, Senior Advisor for Problem-Solving Justice, Center for Court Innovation, October 19, 2020.

Interview with Jay Jordens, Education Program Manager – Therapeutic Justice, Judicial College of Victoria, October 19, 2020.

Interview with Judge Peggy Hora, President, Justice Speakers Institute, October 16, 2020.

Interview with Julius Lang, Senior Advisor, Training and Technical Assistance, Center for Court Innovation, October 28, 2020.

Law Enforcement Assisted Diversion (LEAD) , King County.

LEAD National Support Bureau, (n.d.). Evaluations . 

LEAD National Support Bureau. (n.d.). LEAD: Advancing Criminal Justice Reform in 2020 .

Mark Halsey and Melissa de Vel-Palumbo. (2018). Courts As Empathetic Spaces: Reflections on the Melbourne Neighbourhood Justice Centre . Griffith Law Review 27 (4). 

Matthew Leone, Net widening , Encyclopaedia of Crime and Punishment, SAGE Reference.

National Institute of Drug Abuse (2020). The Matrix Model (Stimulants) , Principles of Drug Addiction Treatment: A Research-Based Guide

Office of National Drug Court Policy. (2011). Drug Courts: A Smart Approach to Criminal Justice .

Rachel Porter, Michael Rempel and Adam Mansky. (2010). What Makes a Court Problem-Solving? Universal Performance Indicators for Problem-Solving Justice . Center for Court Innovation, p. 1

Red Hook Justice News. (2016).  Bridging the Gap: Youth, Community and Police . 

Sarah Matusek. (2017). Justice Center celebrates Bridging the Gap birthday . The Red Hook Star Revue. 

Sarah Murray and Harry Blagg. (2018). Reconceptualising Community Justice Centre Evaluations – Lessons from the North Liverpool Experience . Griffith Law Review 27 (2).

Suzanne Strong and Tracey Kyckelhahn. (2016).  Census of Problem-Solving Courts, 2012 . Bureau of Justice Statistics.

US Government and Accountability Office, 2005.

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Problem-Solving Courts: Fighting Crime by Treating the Offender

Courts designed to stop crime by treating substance use disorders and other serious problems underlying criminal conduct are known as problem-solving courts (PSCs). Implicit in that designation is broad recognition among justice stakeholders that traditional criminal courts, rooted in adversarial prosecution and punishment, were not working for certain classes of those who commit crimes, their victims, or society at large.

What began as a creative justice-delivery alternative, born of necessity in the late 1980s and 1990s when the crack cocaine epidemic [1] was overwhelming court dockets and filling prisons with unreformed drug offenders, is now a fixture of the American criminal justice system. Adult treatment drug courts alone account for over 1,600 of the more than 3,100 PSCs in the United States. Initially isolated, specialized dockets for managing high volumes of drug cases, drug courts today represent a national movement fortified by extensive research on what works and an active, collaborative practitioner community.

For NIJ, working to define, refine, and assist PSCs has been a research priority for a quarter of a century, since it sponsored an evaluation of the nation’s inaugural PSC, the Miami-Dade County Felony Drug Court, in 1993. What began as a narcotics docket evolved, with the aid of NIJ research, into a proliferation of drug-court program ideas emanating from courts and researchers. Comparative scientific research identified the best of those ideas, leading to PSC models, said Linda Truitt, the NIJ senior social scientist who coordinates the Institute’s drugs and crime research portfolio. 

Now new urgency is infusing the drug court movement, as the nationwide opioid crisis exacts an unprecedented toll and the rates of drug overdose deaths increase for all age groups. [2] A presidential commission in November 2017 called for a comprehensive federal assault on opioids, with millions of dollars in new funding committed to enhancing the drug treatment and rehabilitative services of adult drug courts and other PSCs. [3] The commission also called on all 93 federal judicial jurisdictions to establish federal drug courts, noting that as of 2015 only 27 federal district courts were operating as drug courts.

Read the related article “Identifying New Illicit Drugs and Sounding the Alarm in Real Time”

At the opioid commission’s urging, new federal dollars are also flowing to veterans treatment courts, a prominent PSC category on a steep growth trajectory over the past decade. The Department of Veterans Affairs reports that more than 550 court dockets are now dedicated to former and active-duty service members who are facing criminal charges, some of whom have life-threatening substance use disorders. [4]

The PSC model, like research on the courts’ development and impact, is dynamic at its core. The model, while theoretically grounded, must be sufficiently flexible to accommodate varying needs across jurisdictions as well as shifts in populations, drug use, resources, and other factors. Thus, a fundamental duality has characterized the evolution of the nation’s drug courts, said Truitt. Communities balance grassroots development of drug courts tailored to a unique set of local needs against a commitment to a known and sustainable program model.

“These two dynamics are not at odds in successful problem-solving courts where monitoring and assessment are routine,” Truitt said. Over time and across jurisdictions, a general set of practices evolves, creating a new program model. NIJ is charged with objectively examining new models, strengthening their components through applied research, and working with other federal agencies and research partners to develop and recommend best practices. [5]

Research amassed and analyzed through NIJ research grants and other sources suggests that drug courts are generally beneficial in terms of reducing recidivism and drug relapse. As NIJ’s quasi-experimental Multisite Adult Drug Court Evaluation (MADCE) concluded, “Drug courts produce significant reductions in drug relapse … [and] criminal behavior.” [6]

Research has also established, however, that the ultimate question — the extent to which any given drug court is beneficial on balance — has a complex answer that depends on a number of factors, including that court’s targeted offender population; the quality, type, and cost of treatment; and cost-benefit measures that take into account multiple categories of spending and savings that inform success or failure.

A priority for agencies that fund and assist drug courts is ongoing evaluation of the courts’ cost-efficiency. Agencies look at this cost-efficiency in terms of outcomes for addicted persons, benefits for the criminal justice system, return on tax dollars expended, and preservation of fundamental justice values — such as defendants' due process rights — in nontraditional court settings where the degree of discretion accorded to judges is exceptional. Federally supported training of court staff, in turn, focuses largely on ensuring that court standards and practices reflect the latest and best research in the field. Carolyn Hardin, chief of research and training for the National Association of Drug Court Professionals (NADCP), a leading provider of PSC training, said NADCP court trainers work continually to turn knowledge into practice. “Research has identified which elements of drug courts produce the best results,” she said. “Our priority is to train drug courts and other treatment courts on following research-based best practices to improve outcomes like recidivism and save money. We call that ‘fidelity to the model.’”

Genesis of the PSC Philosophy

At its inception, the PSC concept was as simple as it was revolutionary. Problem-solving courts incorporated philosophical elements of community-focused policing, emphasizing treatment over punishment. As New York’s Center for Court Innovation, a leader in PSC development, has noted:

Problem-solving justice traces its roots to community and problem-oriented policing, which encourages officers to identify patterns of crime, address the underlying conditions that fuel crime, and actively engage the community. Today, thousands of problem-solving courts are testing new approaches to difficult cases where social, human, and legal problems intersect. [7]

An inclusive approach, summoning all stakeholders to the table and engaging all of them in the outcomes, has been central to PSC effectiveness. An Office of Justice Programs brochure on drug courts identified elements of a typical drug court team: [8]

Although drug courts vary in target populations and resources, programs are generally managed by a multidisciplinary team including judges, prosecutors, defense attorneys, community corrections, social workers, and treatment service professionals.

Cautionary notes were sounded by NIJ, however, soon after the First National Drug Court Conference in December 1993, where a multitude of divergent early PSC approaches surfaced, suggesting a need for universal norms. An NIJ paper stated, in reference to that conference: [9]

The character of innovation and collaboration between justice and treatment systems was revealed to be broader and deeper than perhaps the simple outline of the original drug court model would have suggested. The diversity and variation in approaches also underscored the critical need for defining the boundaries of what a drug court is and what a drug court is not — in other words, for defining some parameters and basic standards for drug courts.

To rein in the early proliferation of drug court approaches, participants at the first drug court conference adopted a list of 10 elements vital to the success of a drug court. [10] That early objective-setting exercise foreshadowed the 10 key components of drug courts, issued by the federal Drug Courts Program Office in 1997. [11] The key components would serve as parameters for drug court practices, models, and evaluation.

In 1994, Congress broadly committed federal money to expanding state and local drug courts through the Violent Crime Control and Law Enforcement Act. The statute made development of PSC operating norms imperative. The July 1995 “National Institute of Justice Update” from then-NIJ Director Jeremy Travis favorably observed, “The need to establish appropriate drug court standards is particularly important to help ensure that Federal funds are spent on implementing a clearly defined concept.”

Best Practices and Models Emerge

Today’s drug courts are guided by best-practice research substantially driven by NIJ, which managed two seminal adult drug court studies:

• A quasi-experimental, longitudinal examination of an adult drug court in Multnomah County (Portland, Oregon), resulting in the 2007 report The Impact of a Mature Drug Court Over 10 Years of Operation: Recidivism and Costs (Multnomah Study).
• The Multi-Site Adult Drug Court Evaluation (MADCE), a quasi-experimental evaluation of individuals on probation in 23 adult drug courts and six comparison jurisdictions in eight states.

The Multnomah Study broke ground by establishing that, over a period of at least five years per defendant, drug courts were more economical than traditional criminal court processes. The study looked at 6,500 drug court cases and 4,600 cases processed outside the drug court model, finding that the cost per person in drug courts was $1,392 less than the cost per person through the conventional route. [12] Factors contributing to that economy included saved prison days.

It should be noted that, as quasi-experimental research designs, both the Multnomah Study and MADCE faced inherent limitations on the strength of their findings. Unlike a randomized controlled trial (RCT) — which measures and compares experimental effects on randomly selected treatment groups and control groups in order to precisely gauge an experimental treatment’s impact — quasi-experimental designs typically lack the benefit of random selection of subjects, introducing a risk of biased results, a phenomenon known as selection bias.

For a retrospective study such as Multnomah (looking back 10 years), however, an RCT is not feasible. The investigators in the wide-scope MADCE study noted that their quasi-experimental design offered advantages in that instance, including more generalizable results from multiple sites across the country, and the fact that the large pooled sample and data collection allowed them “to open the ‘black box’ of effective drug court practices far beyond most prior studies.” [13] Moreover, equivalent interview and records information obtained for drug court and the comparison group of individuals on probation were used to match research subjects for statistical controls on individual, court, and jurisdiction factors. 

Where RCTs are feasible and a better fit, however, they offer clear advantages over quasi-experimental studies at risk of selection bias.

“Before we can judge a drug court program to be effective, we first must understand the importance of selection,” explained NIJ Director David B. Muhlhausen. “It can be astoundingly difficult to distinguish between what is working and what is not, and nowhere is this predicament truer than when the criminal justice system tries to change human behavior.”

For example, individuals volunteering entry into a drug court program may be more motivated than individuals not seeking the benefits of the program, Muhlhausen said. In other cases, judges may carefully select defendants for drug court participation based on characteristics that they believe will most likely yield beneficial results, he said.

“Such motivational factors and other similar factors are often invisible to those assessing effectiveness,” said Muhlhausen. “Failure to account for these factors can produce a spurious association between drug court participation and recidivism and substance abuse outcomes.”

Muhlhausen added that the limited number of RCTs that did not suffer from high attrition fail to offer clear evidence that drug courts reduce recidivism. He underscored the need to use RCTs to rigorously evaluate drug court programs in the United States to gauge their effectiveness.

MADCE gathered data from 1,157 drug court participants and 627 comparison group of individuals on probation in 29 U.S. jurisdictions over five years, with a final report issued in 2011. MADCE researchers [14] found that drug court participants reported less drug use than comparable individuals convicted of an offense (56% vs. 76%) and were less likely to test positive for drug use (29% vs. 46%). Participants reported less criminal activity after entering drug court (40% vs. 53%), with fewer rearrests (52% vs. 62%) than comparable persons. Moreover, although treatment investment costs were higher for drug court participants, they experienced less recidivism than comparable individuals, and drug courts saved an average of $5,680 to $6,208 per person overall. [15]

In sum, savings associated with avoided victim costs and criminal justice system costs were greater with drug courts than conventional criminal dockets due to fewer crimes, rearrests, and incarcerations (see exhibit 1).

*Difference is statistically significant ( p <0.01).

Source: John Roman, “Cost-Benefit Analysis of Criminal Justice Reforms,” NIJ Journal 272, September 2013, 36.

MADCE data revealed certain limits of drug court effectiveness, pointing to a better return on investment for more serious offenders with drug disorders, as well as the importance of performing appropriate cost-benefit analyses in continuing assessments of drug courts. A MADCE researcher, writing on drug court impact as measured by a detailed bottom-up, cost-benefit analysis method, concluded: [16]

Drug courts prevent many petty crimes and a few serious crimes. In fact, the CBA [cost-benefit analysis] results showed that those few serious crimes drive much of the drug court effect; if we remove those outliers, the benefits of drug courts barely exceed the cost. This finding suggests that although drug courts may reduce recidivism among many types of offenders, drug courts that target serious criminal offenders with a high need for substance abuse treatment will produce the most effective interventions and a maximum return on investment.

Today, the critical MADCE insight that drug courts are better off targeting certain types of individuals committing crime is a point of emphasis for federally contracted drug court trainers and a best practice for drug courts generally. Hardin of the NADCP said:

Fifteen to twenty years ago we knew drug courts should serve offenders with substance use disorders, and we trained courts on identifying and serving this population. Well, now the research is very clear. Drug courts are most effective when serving high-risk, high-need offenders. Today, we train jurisdictions on what that means. We say, "Okay, if you’re going to be doing drug court, your target population has to be based on the research. This means offenders who are assessed to be both at high risk of reoffending and in high need of services. So what does that look like in your community?"

The steady refinement of a drug court model anchored in research-based principles can only take drug courts as far as local policy and resource choices permit, NIJ’s Truitt cautioned. Thus, while the model is informed by research establishing what drug courts do best — targeting high-risk, high-need, drug-using individuals committing crimes to efficiently curb recidivism and relapse — not all drug courts do so.

“If the target population is relatively high in risk and need,” Truitt said, “then the program should yield differences in relapse, recidivism, and other outcomes that translate into lower criminal justice costs and other public costs. That return on investment will not be achieved unless the program is fully implemented, the most burdensome population is targeted, and local resources are compatible with targeted offender risk, need, and responsivity considerations.”

In 2012, key information from NIJ-supported research was gathered and translated into practice terms under a joint Adult Drug Court Research to Practice Initiative (R2P) with the Bureau of Justice Assistance (BJA). The R2P program — a collaboration of those Department of Justice branches working with research and practice experts — identified seven program design features for adult drug courts: [17]

• Screening and assessment: Legal and behavior screening, and assessment of risk, needs, and responsivity.
• Target population: The specific offender subgroup(s) the program is designed to serve.
• Procedural and distributive justice: Fair process and equitable outcomes, and the perception of them, through graduated sanctions and incentives, full information regarding compliance, and meaningful responses to participants.
• Judicial interaction: Decisions based on frequent and respectful interactions with defendants and a clear understanding of program resources.
• Monitoring: Community-based surveillance and supervision to manage compliance, including drug testing.
• Treatment and other services: Alcohol and other drug treatment in addition to employment and other rehabilitative services.
• Relapse prevention, aftercare, and community integration: Identifying triggers and supports to prevent relapse.

Since the inception of drug courts, the literature in the field has stressed the importance of continual monitoring (by court management) and evaluation (by objective outside entities). [18] The perceived need for vigilance reflects the importance of both keeping a close watch on public spending and striking an appropriate balance between defendants’ legal rights and drug court judges’ discretionary authority.

See “Due Process and the Role of Judges”

A Research Road Map for Veterans Treatment Courts

As part of the federal response to the nation’s opioid emergency, funding in the treatment court field has surged. The president’s fiscal year 2018 opioid budget provided $75 million for adult treatment drug courts, up from $43 million in FY 2017, and $20 million for veterans treatment courts, up from $7 million in 2017. Both are funded under the Adult Drug Court Discretionary Grant Program. A primary conduit of federal financial support for various types of problem-solving courts is BJA, which in turn funds many of NIJ’s PSC research projects.

Like drug court practitioners who were empowered by the findings of the drug court multisite study a few years ago, veterans treatment court professionals await research now in development that is designed to illuminate best practices in that venue. The first phase is NIJ’s Multisite Evaluation of Veterans Treatment Courts, which gathers information about process and participant outcomes from eight veterans courts. The study is funded by BJA and coordinated with the Department of Veterans Affairs and the Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services.

Sean Clark, the national coordinator of the Veterans Justice Outreach program at the Department of Veterans Affairs, regards the NIJ evaluation as a vital step for defining the future of veterans treatment courts. Currently, he said, veterans court trainers are “extrapolating from what works in [adult] treatment courts that are not veteran-specific. Building that body of research and that knowledge base about veterans treatment courts in particular is the key first step to be able to say, ‘This is what needs to happen next.’”

According to Truitt, who manages the project, the study’s assessment of implementation and intermediate outcomes of diverse veterans treatment courts explores target populations and key issues (e.g., violent offending and mental and physical health), adherence to problem-solving principles, and service access and delivery. Looking ahead, NIJ is developing plans for an impact and cost evaluation of veterans treatment courts using RCTs and other rigorous research designs, she said. That next phase of research will examine unique program elements, such as veteran peer-to-peer mentoring and use of remote technologies to leverage treatment and supervision.

Clark at the Department of Veterans Affairs said one critical research need the veterans multisite study is expected to address is for screening tools to better identify those veterans who would benefit most from placement in a veterans treatment court.

Problem-solving courts have evolved from a novel outlier to a ubiquitous feature of the American justice landscape, with more than 3,000 drug courts and other PSCs nationwide.

“Moving forward, more scientifically rigorous RCTs are needed to confirm whether drugs courts are, in fact, as effective as the quasi-experimental evaluations indicate,” cautions NIJ’s Muhlhausen.

NIJ research will continue to objectively examine new models, strengthen new components by applying research-based principles, and collaborate with federal and other research partners on recommendations for practice.

About This Article

This article was published as part of NIJ Journal issue number 281 , released October 2019.

[note 1] “The Treatment Court Movement,” National Association of Drug Court Professionals; and Lauren Kirschner, “Remembering the Drug Court Revolution,” Pacific Standard, April 24, 2014.

[note 2] Centers for Disease Control and Prevention, Drug Overdose Deaths in the United States, 1999–2017 , National Center for Health Statistics Data Brief 329, November 2018.

[note 3] The President’s Commission on Combating Drug Addiction and the Opioid Crisis , Final report, November 2017, 16.

[note 4] Barbara Goldberg, “Opioid abuse crisis takes heavy toll on U.S. Veterans,” Reuters, November 10, 2017.

[note 5] Other PSC categories that have benefited from NIJ research are mental health courts, adult reentry courts, and tribal courts.

[note 6] Shelli B. Rossman, John K. Roman, Janine M. Zweig, Michael Rempel, and Christine H. Lindquist, “ The Multi-Site Adult Drug Court Evaluation: Executive Summary ,” Final report to NIJ, December 2011, 5, award number 2003-DC-BX-1001, NCJ 237108.

[note 7] “Problem-Solving Justice,” Center for Court Innovation.

[note 8] U.S. Department of Justice, Office of Justice Programs (NIJ, BJA, OJJDP), “ Drug Courts ,” May 2018.

[note 9] “ Justice and Treatment Innovation: The Drug Court Movement. A Working Paper of the First National Drug Court Conference, December 1993 ,” Final report to NIJ, award number OJP-94-076M, October 1994, 36, NCJ 149260.

[note 10] Bureau of Justice Assistance and National Association of Drug Court Professionals, Defining Drug Courts: The Key Components , Drug Courts Resource Series, 1997 (reprinted 2004), NCJ 205621. The key components are (1) Drug courts integrate alcohol and other drug treatment services with justice system case processing; (2) Using a nonadversarial approach, prosecution and defense counsel promote public safety while protecting participants’ due process rights; (3) Eligible participants are identified early and promptly placed in the drug court program; (4) Drug courts provide access to a continuum of alcohol, drug, and other related treatment and rehabilitation services; (5) Abstinence is monitored by frequent alcohol and other drug testing; (6) A coordinated strategy governs drug court responses to participants’ compliance; (7) Ongoing judicial interaction with each drug court participant is essential; (8) Monitoring and evaluation measure the achievement of program goals and gauge effectiveness; (9) Continuing interdisciplinary education promotes effective drug court planning, implementation, and operations; (10) Forging partnerships among drug courts, public agencies, and community-based organizations generates local support and enhances drug court program effectiveness.

[note 11] Rachel Porter, Michael Rempel, and Adam Mansky, What Makes a Court Problem-Solving? Universal Performance Indicators for Problem-Solving Courts, submitted to the State Justice Institute (New York: Center for Court Innovation, February 2010), 9.

[note 12] Michael W. Finnegan, Shannon Carey, and Anton Cox, “ Impact of a Mature Drug Court Over 10 Years: Recidivism and Costs, ” Executive Summary, Final report to U.S. Department of Justice, award number 2005M073, IV, July 2007, NCJ 219225.

[note 13] Rossman, Roman, Zweig, Rempel, and Lindquist, “ The Multi-Site Adult Drug Court Evaluation: Executive Summary .”

[note 14] Research for the Multi-Site Adult Drug Court Evaluation was performed by the Urban Institute, the Center for Court Innovation, and the Research Triangle Institute.

[note 15] Rossman, Roman, Zweig, Rempel, and Lindquist, “ The Multi-Site Adult Drug Court Evaluation: Executive Summary .”

[note 16] John Roman, “ Cost-Benefit Analysis of Criminal Justice Reforms ,” NIJ Journal 272, September 2013, 36.

[note 17] Bureau of Justice Assistance and National Institute of Justice, “ Seven Program Design Features: Adult Drug Court Principles, Research, and Practice ,” Research to Practice fact sheet, January 2012, NCJ 248701.

[note 18] American University, “Challenges and Solutions to Implementing Problem-Solving Courts from the Traditional Court Management Perspective,” Bureau of Justice Assistance National Training and Technical Assistance Project, June 2008, 8, award number 2005-DD-BX-K053.

About the author

Paul A. Haskins is a social science writer and contractor with Leidos.

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Why Problem-Solving Principles Should Not Be Grafted onto Mainstream Courts

by Victor E. Flango

Problem-solving courts seek to broaden the focus of courts from simply adjudicating cases to changing the future behavior of litigants and ensuring the well-being of the communities they serve. Advocates of problem-solving courts can be justifiably proud of their accomplishments. The number and types of problem-solving courts have grown exponentially since the first drug court was established in Dade County, Fla., in 1989. 1 The movement spread rapidly on the basis of anecdotal reports of success in reducing recidivism and an infusion of federal dollars. 2 While governor of Arkansas, Bill Clinton visited the Miami drug court, and Janet Reno, his appointee as attorney general, played a major role in creating the court. 3 The George W. Bush administration also supported drug courts enthusiastically, as has the Barack Obama administration. By the end of 2009, there were 2,459 drug courts and an additional 1,189 problem-solving courts in the United States. 4 This rapid growth has been attributed to four factors: leadership, salesmanship, legislation, and federal funding. 5

Although many types of specialized problem-solving courts, from mental health courts to veteran’s courts, have been established too recently to have been evaluated for effectiveness, drug courts have passed the initial test. A recent, extensive evaluation of drug courts concluded they are effective for two primary reasons: Participants were significantly less likely to relapse back into drug use, and if they did relapse, they used fewer drugs; and participants reported significantly less family conflict. 6

Replicating Successes

Despite their success, problem-solving courts reach only a small proportion of litigants. Advocates have suggested two methods of increasing their reach: either increase the number of specialized courts or apply the core principles of problem solving courts to traditional courts. The first approach of increasing the sheer number of problem-solving courts is feasible, but expensive. Indeed, a California focus group favored that option of increasing the number of “small boutique courts” as the most practical option.

The problem-solving approach works for these specialized courts precisely because caseloads are so small that intensive attention can be focused on a relatively small number of cases. Adding a significant number of cases would change the very nature — and perhaps the secret to the success — of problem-solving courts, hence diminishing their effectiveness. Therefore, it seems increasing the number of problem-solving courts is a better way to expand their reach.

Nonetheless, demonstrated and perceived successes in the drug courts have created pressure to apply problem-solving principles in all courts, which raised fears among its advocates that this option would return specialized courts to the inconsistent practice and loss of treatment resources that caused the creation of specialized courts in the first place. Despite these fears, the Conference of Chief Justices and the Conference of State Court Administrators put their weight behind a “mainstreaming” option in a resolution passed on Aug. 3, 2000, and confirmed it by a second resolution passed on July 29, 2004. Point 4 of the original resolution calls upon state courts to:

[e]ncourage, where appropriate, the broad integration over the next decade of the principles and methods employed in the problem-solving courts into the administration of justice to improve court processes and outcomes while preserving the rule of law, enhancing judicial effectiveness, and meeting the needs and expectations of litigants, victims, and the community. 7

This resolution should be reconsidered, at least until the empirical consequences of mainstreaming can be determined. There also is a more theoretical objection to mainstreaming these specialized cases. Problem-solving processes and traditional court processes are both appropriate for resolving certain kinds of cases, but they should not be mixed. Each has different goals, different procedures, and different underlying models. Linking the two processes will weaken both.

Past experiences with mixing the competing goals of rehabilitation and punishment in criminal cases have not been successful. The focus on treatment reflects a much earlier debate on sentencing: Should the punishment fit the crime or fit the criminal?

In a sense, this is really a much broader debate between a legal approach and a medical approach to crime. (For a fuller discussion of the differences between the legal and medical models, see Victor E. Flango and Thomas M. Clark, Reimagining Courts (Temple University Press, 2015).)

In its simplest (perhaps oversimplified) terms, the medical model as applied to corrections assumed the offender to be “sick” (physically, mentally, and/or socially); his offense to be a manifestation or symptom of his illness, a cry for help. Obviously, then, early and accurate diagnosis, followed by prompt and effective therapeutic intervention, assured an affirmative prognosis — rehabilitation. 8

Under the medical model as applied to corrections, diagnosis was the function of the presentence investigation, therapeutic intervention was decreed in the sentence and made specific in the treatment plan, and the parole board decided when the offender was “cured” and could be released back into the community. The medical model also assumed: 1) a triage process to disqualify offenders who would pose a danger to the community, 2) a wide variety of treatment alternatives, and 3) a large staff of probation and parole officers as well as social-services officers to monitor and supervise treatment.

Ironically, many “new penologists” at that time advocated a return to a legal model based on individual responsibility that would impose uniform penalties for similar crimes and abandon indeterminate sentencing, wide judicial discretion, and coerced participation in rehabilitation. 9 Can courts learn from the corrections experience?

Actually, courts can look to their own experience for a cautionary tale of how problem-solving courts may be transformed over time. Some would consider the first stand-alone juvenile court, established in Cook County, Ill., in 1899, to be the first problem-solving court. Juvenile courts were created to focus on treating and rehabilitating individual adolescents. But over time, they reacquired some of the characteristics of a traditional court, resulting in a hybrid that was neither fully treatment-oriented nor sanctions-oriented. One reason was that judges who presided over juvenile courts did not change practice as much as originally envisioned. 10 Critics note, “[a]side from a few celebrities, juvenile court magistrates did not share the therapeutic orientation” 11 and juvenile courts “provided new bottles for old wine.” 12 Treatment orientation in juvenile courts declined until the U.S. Supreme Court’s 1967 decision In re Gault restored most due-process rights to juvenile defendants. 13 As the Court noted a year earlier in Kent v. United States, “[T]here may be grounds for concern that the child receives the worst of both worlds: [T]hat he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” 14

Different Models: Legal and Medical The problem-solving movement in courts is defined by two characteristics: a focus on treating the problems of the individual defendant, and the relaxation of the adversarial process in favor of increased cooperation among court participants. 15 The problem-solving approach is based on the medical model of treating each patient — or case — individually. 16

The traditional adversarial process in criminal cases is based on the legal premise that like cases should be treated alike. The traditional legal model assumes that humans are all equal before the law. In practice, that means treating “like cases alike” — that is, fairness requires that everyone who commits a similar offense receives a similar consequence. 17 Conditions for find- ing an accused person at fault should be the same for all individuals in similar circumstances. To do otherwise would undermine citizen respect not only for courts but for law and government as well.

In contrast, the medical model treats the individual. A doctor may not prescribe the same medicine to two people even if they exhibit the same symptoms because of different individual reactions. For example, one patient may be allergic to a medicine that is perfectly suitable for the other. Successful treatment requires the doctor to diagnose the problem and develop an individualized treatment plan. In medicine, treating like cases alike could have dire consequences.

The procedural implications of these two models for courts are very different. Consider these different approaches as applied to abuse and neglect cases. The strict legal adversarial approach to handling parents who are suspected of abusing or neglecting their children would be for police to investigate and make an arrest if warranted, and then for prosecutors to charge the alleged perpetrator or perpetrators. The role of the court in this scenario is to establish guilt based on a high standard of proof (e.g., “beyond a reasonable doubt”) and to sentence the guilty as it would in any other type of criminal case. This is a very public process that could result in incarceration, job loss, and formal dissolution of the family.

The medical approach might view the problem more broadly as one of family dysfunction. The court may require the entire family to participate in treatment to see whether alternative coping mechanisms might improve interactions and reduce violence. Most treatment programs begin with an admission that a problem exists, and in this scenario it is often difficult for the alleged perpetrator to take this first step. Consequently, the alleged perpetrator must be assured that admitting “guilt” will not lead to punishment but to treatment for the problem, and that the treatment will be kept confidential, as any medical issue should be. Incentives to encourage treatment would be couched in terms of being able to avoid incarceration, retaining a job so that the family would be supported, and keeping the family unit together. “Treatment focus” describes the purpose of these proceedings, because the search for a remedy certainly goes beyond diagnosis and extends to treatment.

The legal approach is more limited. It seeks the status quo ante — that is, the restoration of things to where they were before the crime was committed or the injury was inflicted. The legal remedies, then, are more narrowly limited to punish- ing someone or awarding compensation.

The medical approach works to correct the problems that led to the crime. The goal of the medical approach in family cases, for example, is to restore or perhaps create family harmony, not necessarily to punish the offender. In the words of the Governor’s Task Force in Maryland:

The goal of a court dealing with family disputes should be more than simply resolving the particular issues before them. Rather, such resolution should leave the family with the skills and access to support services necessary to enable them to resolve subsequent disputes constructively with minimum need for legal intervention. 18

These goals require different implementation than do sanctions applied using an adversarial process. The court must closely monitor offenders to ensure that the agreed-upon treatment regimen is followed, with the implied, if not explicit, threat that if treatment is not completed, more public sanctions will be imposed.

Determining Responsibility

The legal approach assesses blame: It seeks to determine who is responsible for an offense. The law is not looking for what caused the wrongful behavior — for example, was a child abuser also abused as a child? A trial is designed to be a narrow inquiry into whether the defendant is to blame. The key questions are (1) “Did he do it?” and (2) “Did he mean to do it?” because it is difficult to prove guilt with- out showing motive. The law assumes that individuals have the capacity for rational choice and the opportunity to choose whether to break the law.

There are exceptions within the legal framework. People without the capacity to make rational choices are to be treated differently. For example, offenders with frontotemporal dementia may bring lawyers, doctors, and family members to court to explain that the perpetrators were not at fault, because their brains have degenerated and medical science has no remedy. 19 Advancements in neuroscience with its changing understanding of the human brain may shed yet more light on a defendant’s culpability that must be taken into account in both legal and medical models. David Eagleman attributes the shift from blame to biology to the effectiveness of pharmacology, which has shown that some symptoms can be controlled by medication. 20 He quotes Tom Bingham, Britian’s former senior law lord, with saying that the law makes several working assumptions, including that adults have free will, act rationally in their best interests, and can foresee the consequences of their actions. “Whatever the merits or demerits of working assumptions such as these in the ordinary range of cases, it is evident that they do not provide a uniformly accurate guide to human behavior.” 21

The prospect of using incarceration as a deterrent is viable only for people with normally functioning brains, and, increasingly, criminal behavior can be attributed to mental illness. Consider this example:

When Sol Wachtler, the chief judge of New York State’s highest court, was arrested for extortion and threatening to kidnap the 14-year-old daughter of his ex-lover, many New Yorkers were under the impression that some crimes may have been committed. Not so, according to John Money, a prominent sexologist and medical psychologist . . . [who] wrote that Wachtler “was manifesting advanced symptoms of . . . Clerambault-Kandinsky Syndrome (CKS) . . . a devastating illness. The law-and-order treatment of people with CKS is the equivalent of making it a crime to have epileptic spells. 22

Prisons have become “our de-facto mental-healthcare institutions — and inflicting punishment on the mentally ill usually has little influence on their future behavior.” 23 The development of specialty “mental-health courts” based on the drug- court model combines treatment with confinement in a structured environment. As the criminal-justice system becomes more informed by science, more emphasis will be placed on customized sentences, incentives for good behavior, and opportunities for rehabilitation.

Toward this end, the medical approach would apply an expansive view of “people without the capacity to make rational choices” and would look to causes that may be genetic, environmental, social, or economic — in other words, almost always beyond the control of the individual. Indeed, prominent psychiatrist Dr. Karl Menninger advocated treating all offenders as mentally ill. 24

Eagleman suggests dispensing with the concept of blameworthiness altogether and focusing on likely future behavior. Are criminal actions likely to be repeated? Can incentives be structured to deter future offenses? Dispensing with the concept of blame comports well with Douglas B. Marlowe’s suggestion that the treatment versus punishment dichotomy be abandoned. He contends that the critical question is how to match offenders to the best programs that meet their needs, protect public safety, and do so at least cost. 25 He recommends blending the two using a four-fold classification scheme to guide intervention based on the two dimensions of “need” — the offender’s clinical diagnosis and need for treatment — and “risk,” or the offender’s amenability to treatment.

Why the two processes must be kept separate Solving the problems that underlie criminal behavior is a worthy endeavor. The question is whether it can appropriately be combined with processes that exist to determine guilt. What is the point of treatment-oriented adversarial proceedings or sanction-oriented problem-solving courts? Can we force technically innocent people into treatment programs before guilt has been adjudicated? Can judges be detached and engaged or expected to be detached in some cases and engaged in others? Can court processes be both austere and formal as well as welcoming and informal at the same time?

1. Courts Cannot Be Both Adversarial and Reconciling The problem-solving approach is purpose- fully not adversarial, and it therefore requires a different processing track from most other mainstream cases. The goal of problem-solving proceedings is to achieve justice not by finding guilt or liability but by fashioning an appropriate remedy. The prosecution, defense, judges, and other court participants share an interest in treating the condition that has caused the defendant to commit criminal offenses. Defendants are either diverted from standard court processing before guilt or innocence is determined or encouraged to plead guilty in order to be admitted into a problem-solving court (post-adjudication treatment program). This characteristic of the problem-solving approach has led one scholar to state, “[I}t is not a court if you have to plead guilty to get there.”26 Because the defendant must admit culpability to be ready for treatment, post-adjudication treatment is the more appropriate model and preferable to deferred prosecution.

With regard to sentencing, the adversarial process by its very nature must try to harmonize sentences among offenders so that all are treated fairly. In the problem-solving process, sentencing is explicitly tailored to the needs of the individual, regardless of how others similarly situated were sentenced. Addiction patterns, mental health, and other individual-based characteristics must all be factored into the proposed treatment plans if those treatments are to be effective.

2. Courts Cannot Both Treat and Sanction

Bruce Winick and David Wexler contend that traditional courts benefit from judges familiar with problem-solving techniques. Problem-solving courts

… have served to raise the conscious- ness of many judges concerning their therapeutic role, and many former problem-solving court judges, upon being transferred back to courts of general jurisdiction, have taken with them the tools and sensitivities they have acquired in those newer courts. 27

But it is not possible for courts to be both helper and punisher — which is why treatment should be offered only after an admission of guilt. These are clearly two separate and distinct roles, which is why courts should triage cases into separate, distinct, and well-defined adversary or problem-solving processes — so that litigants as well as court participants know which set of rules is being applied and which role the judge is playing.

Again, the concern here is that grafting problem-solving practices onto traditional courts contaminates the integrity of both processing tracks. Obviously the two separate tracks can interact, but the integrity of each track should be maintained so that consistent focus is on either sanctions or treatment. Can we design a system where people who would benefit from treatment could be transferred from a traditional court to a problem-solving court? This would be a parallel to the triage now done in problem-solving courts, which includes 1) setting criteria to determine whether someone is eligible to participate in the program, and 2) removing participants from treatment who are either not suitable or are not successful in completing a treatment program. This seems a far better solution than tinkering with the integrity of the case-processing tracks and creating a hybrid process with mixed objectives.

Is treatment a court responsibility? Of course, the larger question underlying this whole discussion is whether treatment should be a function of courts at all. Should courts’ responsibility end at the determination of guilt, or do they have a responsibility to rehabilitate or at least monitor the rehabilitation of offenders? Or, should the rehabilitation function be a responsibility of probation departments perhaps with court oversight?

The Pew Charitable Trusts’ Public Safety Performance Project, the American Probation and Parole Association, and the National Center for State Courts jointly sponsored a conference on effective administrative responses in probation and parole supervision in December 2012 28 and concluded that the strategies of “swift, certain, and proportionate sanctions” to respond to violations and the use of incentives to promote and reinforce compliance were needed, but that the authority to issue sanctions and reward compliance could be given to courts or to the probation departments.

The best response to why courts need to be involved is found in a description of the key elements of a reentry court: Ex-offenders require a powerful intervention to change their behavior; the judge as an influential authority figure can influence behavior; and the reentry court, through rigorous monitoring, can hold collaborating agencies and offenders to a higher level of accountability than other interventions can. 29 Another unspoken reason for court involvement is that courts have been more successful at attracting and sustaining funding for problem-solving courts, including a significant amount of federal funding.

On the other hand, the historic mission of probation departments has been to engage in the type of monitoring and service provision that the treatment approach recommends. How is judicial monitoring of a problem-solving process different from intensively supervised probation, 30 with monitoring done by the probation departments under the state department of corrections?

Probation departments and agencies claim that their programs are effective and affordable. They could perhaps monitor treatment progress with the proviso that they bring to the court’s attention those clients who are not participating in the prescribed, perhaps court-ordered, treatment plans, are not making sufficient progress in the treatment programs, or have repeatedly been unsuccessful in achieving treatment goals. Probationers could also have the right to bring grievances to court after exhausting administrative remedies.

Regardless of who does the supervision, treatment requires an investment of resources. 31 If done administratively, implementation of this program would increase the workload of probation and parole officers, though it may reduce court staff time. Moreover, if administrative proceedings were used, the state may not be required to provide counsel. Courts and their supporting organizations are equally adamant that the participation of judges is a critical success factor to successful treatment. This can be determined empirically.

It may be too late to change the course of development for problem-solving courts and responsibility for treatment, but the discussion should at least clarify the respective role of courts and the role of probation services in providing treatment. For now, it seems clear that traditional court and problem-solving processes have different goals and require different methods of decision making, different support staff, different monitoring practices after sentencing, and so forth. Grafting problem-solving treatment processes onto mainstream courts is likely to reduce the effectiveness of specialized courts and weaken the adversarial process of mainstream courts. These conflicting characteristics are the reason why the two processes cannot be merged. Problem-solving principles simply cannot be grafted onto traditional courts without doing damage to each process. Before pressing forward with recommendations to expand problem-solving principles to mainstream courts, court leaders should pause to examine the assumptions underlying each process.

1 Greg Berman & John Feinblatt, Problem-Solving Courts: A Brief Primer, 23 L. & Pol’y 115 (2001).

2 Candace McCoy, The Politics of Problem Solving: An Overview of the Origins and Development of Therapeutic Courts, 40 Am. Crim. L. Rev. 1526 (2003).

3 Michael Isikoff & William Booth, Miami ‘Drug Court’ Demonstrates Reno’s Unorthodox Approach, Wash. Post, Feb. 20, 1993, A1, A8.

4 West Huddleston III & Douglas B. Marlowe, Nat’l Drug Ct. Inst., Painting the Current Picture: A National Report Card on Drug Courts and Other Problem Solving Court Programs in the United States (2011).

5 Aubrey Fox & Robert V. Wolf, Ctr for Ct. Innovation, The Future of Drug Courts 5 (2004).

6 For these and other related findings, see Shelli B. Rossman & Janine M. Zweig, The Multisite Adult Drug Court Evaluation, Nat’l Ass’n of Drug Ct. Professionals (May 2012).

7 CCJ Resolution 22, COSCA Resolution IV (2000).

8 Donal E.J. MacNamara, The Medical Model in Corrections: Requiescat in Pace, 14 Criminology 439 (1977).

9 MacNamara lists some of the new penologists as Norval Morris, Ernst van den Hagg, Andrew von Hirsch, and James Q Wilson.

10 Lawrence Baum, Specializing the Courts 29 (2011).

11 Andrew J. Polsky, The Odyssey of the Juvenile Court: Policy Failure and Institutional Persistence in the Therapeutic State, 3 Stud. in Am. Pol. Dev. 176 (1989).

12 Robert M. Mennel, Thorns and Thistles: Juvenile Delinquents in the United States 1825–1940 144 (1973).

13 In re Gault, 387 U.S. 1 (1967).

14 Kent v. United States, 383 U.S. 541, 556 (1966).

15 James L. Nolan, Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement 10–11 (2009).

16 The philosophical basis of the problem-solving movement is “therapeutic jurisprudence,” unquestionably a medical approach. See Bruce J. Winick & David R. Wexler, Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts (2003); McCoy, supra note 2.

17 This concept, central to the notion of justice and the rule of law, has been traced back to Book 5 of Aristotle’s Nicomachean Ethics.

18 Governor’s Task Force on Family Law, Recommendations and Proc. for Establishing a Family Ct. in Maryland, Final Rep. (Oct. 1992).

19 David Eagleman, The Brain on Trial, The Atlantic (July/Aug. 2011).

20 Id. at 118

22 William Doherty, Bridging Psychotherapy and Moral Responsibility, 5 Responsive Community 42 (1995); Amitai Etzioni, The New Golden Rule 135 (1996).

23 Eagleman, supra note 19 at 114.

24 Dr. Karl Menninger, The Crime of Punishment (1968).

25 Dr. Doug Marlowe on a Vision for the Future of U.S. Drug Policy, All Rise: A Publication of the Nat’l Ass’n of Drug Ct. Prof. 4 (2012).

26 Candace McCoy, “Review of Good Courts: The Case for Problem-Solving Justice by Greg Berman and John Feinblatt,” Law and Politics Book Review 16 (2006): 964.

27 Winick & Wexler, supra note 16, at 87.

28 Am. Probation & Parole Ass’n, Effective Responses to Offender Behavior: Lessons Learned for Probation and Parole Supervision (2013).

29 Robert V. Wolf, Ctr for Ct. Innovation, Reentry Courts: Looking Ahead 5 (2011).

30 McCoy, supra note 2, at 1528. 31 Id. at 10.

Also In This Edition

• Judicial Honors and Milestones: Spring 2016
• Trends in Judicial Selection Methods
• Pilot Project for Discovery Protocols for Employment Cases Alleging Diverse Action
• Jurors Asking Questions
• Judicial Courtesy and Respect for People’s Time
• A Milestone for Diversity in MDL
• Letters to the Editor: Spring 2016
• From the Editor in Chief: Judge Robert Morris
• Legal Standards By The Numbers
• Statutes — Clear or Confusing — What is a judge’s responsibility?
• Independent Spending in State Supreme Court Elections After Citizens United
• The Decline in Federal Civil Trials: An Imagined Conversation
• Easing Mandatory Minimums Will Not Be Enough
• Five Dos and Don’ts for Lawyers and Judges
• Possible and Needed Reforms in the Administration of Civil Justice in the Federal Courts
• An Extraordinary Judge: U.S. District Judge Paul G. Hatfield

About Victor E. Flango

Victor E. Flango is a former executive director of program resource development at the National Center for State Courts. He is the author of more than 100 publications on court-related issues.

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Introduction

(Last updated May 2024)  In August 2023, the Commission identified as one of its final priorities "the “[c]ompilation and dissemination of information on court-sponsored programs relating to diversion, alternatives-to-incarceration, and reentry ( e.g. , Pretrial Opportunity Program, Conviction And Sentence Alternatives (CASA) Program, Special Options Services (SOS) Program, Supervision to Aid Re-entry (STAR) Program) through the Commission’s website and possible workshops and seminars sharing best practices for developing, implementing, and assessing such programs.”  With this priority, the Commission continues its ongoing work in the area of alternatives to incarceration.

The Commission received a considerable amount of public comment supporting the “[c]ompilation and dissemination of information on court-sponsored programs relating to diversion, alternatives-to-incarceration, and reentry...through the Commission’s website.”

This page provides a collection of publicly available resources that have informed and are a product of the Commission's 2023-2024 policy priority work thus far. It will be updated periodically as the Commission continues its work in this area. The Commission recognizes that the needs and resources of stakeholders and participants are unique to each district. Therefore, the Commission believes that these programs are best developed at a grassroots level. The information provided on this webpage is intended to support such development.

Follow along with the work of the 2023-2024 Alternatives-to-Incarceration Policy Team in this Commission Chats miniseries, featuring the federal judges who lead the problem-solving court programs available around the country. Parts One through Eight are out now! (Latest episode published April 2024) Listen Here

Current Landscape

Federal problem-solving-courts can include both front-end and reentry programs.  Types of front-end programs vary by district and can include: 1) pretrial diversion with deferred prosecution, 2) post-plea/pre-sentence programs that defer sentencing, or 3) both.  Federal problem-solving courts can address a number of individual issues such as substance use and mental health, and some courts address more than one issue.  Federal problem-solving courts can also focus on specific groups of individuals such as veterans and young adults.

In recent years, the Federal Judicial Center (FJC) has been providing in-district training and technical assistance, by request, to districts in all phases of their development and operation of federal problem-solving courts. [1]   The FJC also offers a rigorous national training program for problem-solving courts.  The FJC’s assistance enables districts to continuously improve their problem-solving courts by, for example, revising incentive and sanction programs. Importantly, in this role, the FJC seeks to promote conformity with best practice standards created by All Rise.  The All Rise standards are based on an extensive literature review of problem-solving courts and provide evidence-based guidance on target populations, incentives and sanctions, treatment plans, etc.  As a result of adopting these standards, the ATIs operating across the various districts are typically alike insofar as they act within the framework of these best practices.

The map below displays active federal problem-solving courts (as of July 2023).  Links to district-specific sentencing data are provided with available problem-solving court information for each district.

The Commission has also begun collecting program-specific documentation for public dissemination.  The Commission collaborated with chief judges, clerks of court, and chief probation officers from all 94 federal judicial districts to compile information on any existing or planned problem-solving court programs.  Supporting program documents received by the Commission as of November 2023 are available below for reference.  The number and type of available documents varies by program.  Therefore, the number and type of documents provided below also varies.  The Commission will update the table as it continues to receive program documents for public dissemination.

Commission Reports

The Commission has published several reports on alternatives to incarceration over the years.  The 2009 and 2015 Commission reports, Alternative Sentencing in the Federal Criminal Justice System , focused on trends for United States citizen offenders in prison-only sentences versus alternative sentencing options specifically provided for in the Guidelines Manual ( i.e. , probation-only sentences, probation-and-confinement sentences, and prison/community split sentences). [2]   The 2017 report, Federal Alternative-to-Incarceration Court Programs [3] was the Commission’s first published work analyzing the nature of these emerging programs and some of the legal and social science issues related to them.

Alternative Sentencing in the Federal Criminal Justice System (2009)

The 2009 report used fiscal year 2007 data, which showed that prison-only sentences accounted for 81.1 percent of sentences imposed on United States citizens during that time.  The report found that the “sentencing zone ultimately determine[d] whether offenders [we]re sentenced to alternatives.”  “[G]uideline offense level and Criminal History Category, alone or in combination, [we]re the principal factors determining whether an offender receive[d] an alternative sentence.”  While “[s]ome additional guideline and demographic characteristics also [we]re associated with offenders’ receipt of an alternative sentence,” those factors also were “associated with one or both of the zone determinants.”

Alternative Sentencing in the Federal Criminal Justice System (2015)

The 2015 report built on the 2009 report and analyzed alternative sentencing trends in the wake of Gall v. United States [4] and the Zone B and C expansion.  It explained that “[d]espite the array of sentencing options available to sentencing courts, there have been decreases during the past ten years [2005–2014] in both the proportion of offenders eligible for [alternative] sentences, as well as in the proportion of such sentences imposed for those eligible.”  While there had been “a steady overall increase in sentences below the guideline range due to downward departures or variances” after United States v. Booker [5] and Gall , the increased use of sentencing courts’ discretion “ha[d] not resulted in the imposition of higher rates of alterative sentences as one might expect.”  The report concluded that this decreasing trend was “in part . . . due to the Commission’s 2010 expansion of Zones B and C on the Sentencing Table,” explaining that this expansion “introduced relatively more serious offenders into Zones B and C” and that “[o]ffenders with sentencing ranges in the expanded cells received alternative sentences at lower rates compared to offenders with sentencing ranges in previously existing cells.” 

Federal Alternative-to-Incarceration Court Programs (2017)

The Commission published a 2017 report on federal alternative-to-incarceration court programs.  The report summarized the nature of existing federal alternative-to-incarceration court programs and highlighted several legal and social science issues relating to them.  The Commission’s analysis was qualitative rather than quantitative because of a lack of available empirical data about the programs.  The qualitative analysis included an in-depth focus on five programs: (1) the BRIDGE Court Program in the District of South Carolina; (2) the Conviction and Sentence Alternative (CASA) Program in the Central District of California; (3) the Pretrial Alternatives to Detention Initiative (PADI) in the Central District of Illinois; (4) the Repair, Invest, Succeed, Emerge (RISE) Program in the District of Massachusetts; and (5) the Sentencing Alternatives Improving Lives (SAIL) Program in the Eastern District of Missouri.  The report provided a discussion of legal issues related to the court programs, including how they fit within the legal framework of the Sentencing Reform Act of 1984. [6]   The report concluded by identifying several questions about the federal court programs that policymakers and courts should consider in deciding whether, and if so how, such programs should operate in the federal criminal justice system in the future.  

Additional Resources

Two evaluations of federal ATI programs are relevant to the current priority:

• For a summary of an FJC “multi-year evaluation of five federal model reentry court programs,”  see Timothy D. DeGiusti, Innovative Justice: Federal Reentry Drug Courts How Should We Measure Success? , 82 Fed. Prob. J. (2018).  
• Laura Baber, et. al.’s Expanding the Analysis:  Alternatives to Incarceration across 13 Federal Districts [7] is the most recent and comprehensive evaluation of federal front-end programs, to the exclusion of reentry courts.  It is a multi-district analysis that focuses on short-term outcomes of federal front-end courts. [8]   This study built on a prior study of ATI programs in seven districts. [9]  
• Additional relevant information:
• Sentinel Event Review for Successful Transition and Reentry Together (START) Program in the Eastern District of Wisconsin
• A Viable Alternative? Alternatives to Incarceration Across Seven Federal Districts
• Corrigendum to “A Viable Alternative? Alternatives to Incarceration Across Several Federal Districts”
• Second Report to the Board of Judges on Alternatives to Incarceration 2015
• Beyond Recidivism: An Outcome Evaluation of A Federal Reentry Court and A Critical Discussion of Outcomes that Matter
• All Rise, Adult Drug Court Best Practice Standards Volume I and Adult Drug Court Best Practice Standards Volume II.
• U.S. Government Accountability Office, Adult Drug Court Programs: Factors Related to Eligibility and Acceptance of Offers to Participate in DOJ Funded Adult Drug Courts
• SAMHSA, Best Practices for Successful Reentry From Criminal Justice Settings for People Living With Mental Health Conditions and/or Substance Use Disorders
• U.S. Department of Justice Policies
• National Institute of Justice
• National Center for State Courts
• National Treatment Court Resource Center
• National Reentry Resource Center

[1]   Telephone Interview with Christina Ruffino, Senior Education Specialist, Fed. Jud. Ctr. (Oct. 5, 2022) [hereinafter Ruffino Interview].

[2]   Courtney Semisch, U.S. Sent’g Comm’n, Alternative Sentencing in the Federal Criminal Justice System (2009); Courtney R. Semisch, U.S. Sent’g Comm’n, Alternative Sentencing in the Federal Criminal Justice System (2015).

[3]   Brent E. Newton, U.S. Sent’g Comm’n, Federal Alternative-to-Incarceration Court Programs (2017).

[4]   552 U.S. 38 (2007).  In Gall , the Court affirmed as “reasonable” the district court’s sentence of probation, which was a substantial downward variance from the guideline-recommended sentencing range of 30–37 months of incarceration.  (“On abuse-of-discretion review, the Court of Appeals should have given due deference to the District Court’s reasoned and reasonable decision that the [18 U.S.C.] § 3553(a) factors, on the whole, justified the sentence.”).  The Commission’s 2009 report analyzed data only through the end of fiscal year 2007, which predated the Court’s decision in Gall .

[5]   543 U.S. 220 (2005).

[6]   Pub. L. No. 98-473, Title II, ch. II, 98 Stat. 2032.

[7]   Laura Baber, Kevin Wolff, Johnathan Muller, Christine Dozier, and Roberto Cordeiro, Expanding the Analysis: Alternatives to Incarceration across 13 Federal Districts , 85  Fed. Prob. J.  (2021).

[8]   In the study’s conclusion, the authors note plans “to perform a recidivism analysis of ATI participants who are no longer in the federal justice system” using criminal history data from the Federal Bureau of Investigation.  However, that study was postponed due to the COVID-19 pandemic and has not yet been rescheduled due to current budget constraints. Ruffino Interview.

[9]   Laura Baber, Kevin Wolff, Johnathan Muller, Christine Dozier, and Roberto Cordeiro, A Viable Alternative? Alternatives to Incarceration across Seven Federal Districts , 83  Fed. Prob. J.  (2019). Districts and programs included the original study were: Sentencing Alternatives Improving Lives (SAIL) program, Eastern District of Missouri; the Conviction Alternatives Program, Northern District of California; the Conviction and Sentencing Alternatives program (CASA), Central District of California; Alternatives to Detention Initiative (PADI), Central District of Illinois, the Young Adult Opportunity Program, Southern District of New York; the Pretrial Opportunity Program (POP), Eastern District of New York; the Special Options Services program (SOS), Eastern District of New York; and the Pretrial Opportunity Program (POP), New Jersey.

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Problem-Solving Courts by Eric J. Miller LAST REVIEWED: 14 April 2011 LAST MODIFIED: 14 April 2011 DOI: 10.1093/obo/9780195396607-0073

Problem-solving courts are a recent and increasingly widespread alternative to traditional models of case management in criminal and civil courts. Defying simple definition, such courts encompass a loosely related group of practice areas and styles. Courts range from those addressing criminal justice issues, such as drug courts, mental health courts, reentry courts, domestic violence courts, and juvenile courts, to those less directly connected with traditional criminal justice issues, including family courts, homelessness courts, and community courts, to name just a few. Most courts, however, share some distinctive common features: channeling offenders away from traditional forms of legal regulation or punishment, relying on a more or less lengthy program of supervision and intervention that utilizes the informal or institutional authority of the judge, and a robust toleration of relapse backed by a graduated series of sanctions directed at altering the participants’ problematic conduct. These courts work to stream participants out of the traditional legal system either at the front end, prior to judgment being entered, or at the back end, as a consequence of entry of judgment, but prior to sentencing or other case disposition. Many, but not all, of these courts subscribe to the practice of either therapeutic or restorative justice (or both).

The major texts listed here are mostly book-length treatments and articles that covering issues common to the problem-solving courts in general by focusing on discrete court styles. Nolan 2001 ; Hora, et al. 1999 ; and Mackinem and Higgins 2008 discuss drug courts, whereas Berman, et al. 2005 ; Casey and Rottman 2005 ; Thompson 2002 ; and Winick 2003 are principally interested in the neighborhood or quality-of-life courts. Furthermore, the authors provide variable depth of treatment, often determined by the type of analysis. Berman, et al. 2005 ; Hora, et al. 1999 ; and Winick 2003 have all played an active role in developing various aspects of problem-solving court practice: they tend to focus on descriptions of court operation and practical impact. Articles written by law professors, social scientists, or anthropologists, such as Thompson 2002 , Mackinem and Higgins 2008 , and Fagan and Malkin 2003 , tend to place problem-solving courts in a more theoretically oriented style of analysis, bringing to bear core legal values, or sociological or cultural critique.

Berman, Greg, and John Feinblatt, with Sarah Glazer. 2005. Good courts: The case for problem-solving justice . New York: New Press.

Broad and accessible overview of problem-solving courts, and in particular those addressing quality-of-life issues, against the background of therapeutic jurisprudence and restorative justice. Suitable for undergraduate and graduate students.

Casey, Pamela M., and David B. Rottman. 2005. Problem-solving courts: Models and trends . Justice System Journal 26.1: 35–56.

Simple and effective overview of the key elements of different styles of problem-solving courts. Suitable for all levels of study

Fagan, Jeffrey, and Victoria Malkin. 2003. Theorizing community justice through community courts . Fordham Urban Law Review 30.3: 897–954.

Seminal examination of the manner in which community courts use the problem-solving method to generate public legitimacy for low-level criminal courts. Suitable for undergraduate and graduate students.

Hora, Peggy Fulton, William G. Schma, John T. A. Rosenthal. 1999. Therapeutic jurisprudence and the drug-treatment court movement: Revolutionizing the criminal justice system’s response to drug abuse and crime in America . Notre Dame Law Review 74.2: 439–538.

One of the essential works on the drug court movement and the use of therapeutic justice in the courtroom. Suitable for undergraduates and graduate students.

Mackinem, Mitchell B., and Paul Higgins. 2008. Drug court: Constructing the moral identity of drug offenders . Springfield, IL: C. C. Thomas.

A thorough and informative study of all aspects of drug-court operation, paying particular attention to the perspective of drug court participants. Suitable for undergraduates and graduate students.

Nolan, James L., Jr. 2001. Reinventing justice: The American drug court movement . Princeton Studies in Cultural Sociology. Princeton, NJ: Princeton Univ. Press.

The most important single work on drug courts, and a seminal study of the problem-solving movement from a sociological perspective. Suitable for undergraduate and graduate students.

Thompson, Anthony C. 2002. Courting disorder: Some thoughts on community courts. Washington University Journal of Law and Policy 10:63–100.

Discussing the emergence of the community court movement and the features it shares with other forms of problem-solving courts. Suitable for undergraduate and graduate students.

Winick, Bruce J. 2003. Therapeutic jurisprudence and problem solving courts . Fordham Urban Law Journal 30.3: 1055–1103.

Seminal overview of problem-solving courts from the perspective of therapeutic jurisprudence, written by one of the founders of the therapeutic justice movement. Suitable for undergraduate and graduate students.

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