Beyond Therapy: Problem‐Solving Courts and the Deliberative Democratic State

Problem‐solving courts (drug courts, community courts, domestic violence courts, and mental health courts), unlike traditional courts, attempt to get at the root of the individual and social problems that motivate criminal behavior. Theoretical understandings of problem‐solving courts are mostly Foucauldian; proponents argue that these new institutions employ therapeutic techniques that encourage individuals to self‐engineer in ways that subtly increase state power. The Foucauldian approach captures only some elements of problem‐solving courts and does not fully theorize the revolution in justice that these courts present. Problem‐solving courts, domestic violence courts in particular, orient not just around individual change but also around social change and cultural transformation. Combining the Foucauldian idea of a therapeutic state (as developed by James Nolan) with an understanding of the deliberative democratic mechanisms of larger‐scale structural transformation (found in Habermas and others) leads to a more balanced and empirically open orientation to the actual motivations, goals, and achievements of problem‐solving courts.     

An Examination of the Denver Drug Court: The Impact of a Treatment‐Oriented Drug‐Offender System

This paper reports on a retrospective study of the Denver Drug Court that was conducted to assess the court's impact on court processing, treatment matching, and offender recidivism. A sample of 300 offenders from the Denver Drug Court and drug offenders from two previous years prior to the drug court was obtained. Quasi‐experimental procedures were used to examine differences in measured variables across each offender cohort. Data for this study were collected from court records as well as through on‐line arrest records. This paper begins with an exploration of the organizational framework of the Denver Drug Court and the court's related treatment options. It also examines the extant literature on the effectiveness of drug courts. Analysis of the data indicates that the Denver Drug Court has reduced case processing time and it has slightly reduced the amount of time offenders spend in presentence confinement. Unlike previous studies of drug courts, this study attempted to examine the court's ability to match offenders to treatment needs. Analysis of the available data, although limited, suggests that offenders are being matched to appropriate levels of treatment. Finally, data analysis indicates no significant differences in revocation or rearrest rates. This article concludes with a discussion of the controversial nature of drug courts. Directions for future research are offered.     

Who is Diverted? Case Selection for Court‐Monitored Mental Health Treatment

Specialized courts raise questions about the decisions that bring some defendants into such courts and keep others out. Because of risks perceived in diverting mentally ill defendants, decisions to select defendants for mental health courts are especially interesting. I estimate a model of the decision to divert defendants into court‐monitored mental health treatment. I find that gender and age combine to disadvantage young male defendants and older female defendants. The findings point to the importance of structuring selection processes in the design of specialized courts. They shed light on the consequences of including treatment personnel in justice system decisions.     

A testable theory of problem solving courts: Avoiding past empirical and legal failures

Recent years have seen a proliferation of problem solving courts designed to rehabilitate certain classes of offenders and thereby resolve the underlying problems that led to their court involvement in the first place. Some commentators have reacted positively to these courts, considering them an extension of the philosophy and logic of Therapeutic Jurisprudence, but others show concern that the discourse surrounding these specialty courts has not examined their process or outcomes critically enough. This paper examines that criticism from historical and social scientific perspectives. The analysis culminates in a model that describes how offenders are likely to respond to the process as they engage in problem solving court programs and the ways in which those courts might impact subsequent offender conduct. This Therapeutic Jurisprudence model of problem solving courts draws heavily on social cognitive psychology and more specifically on theories of procedural justice, motivation, and anticipated emotion to offer an explanation of how offenders respond to these programs. We offer this model as a lens through which social scientists can begin to address the concern that there is not enough critical analysis of the process and outcome of these courts. Applying this model to specialty courts constitutes an important step in critically examining the contribution of problem solving courts.     

The Legal Context of School Violence: The Effectiveness of Federal, State, and Local Law Enforcement Efforts to Reduce Gun Violence in Schools

In the wake of recent school shootings, communities and legislatures are searching for law enforcement solutions to the perceived epidemic of school violence. A variety of legal measures have been debated and proposed. These include: the enactment of tougher gun control laws and more vigorous federal and local enforcement of existing gun control laws; the enactment of laws imposing civil or criminal liability on parents for their children's violent behavior; the establishment of specialized courts and prosecution strategies for handling juveniles who are charged with weapons offenses; stricter enforcement of school disciplinary codes; reform of the Individuals with Disabilities Education Act to make it easier to expel students for weapons violations; and greater use of alternative schools as placements for students who are charged with weapons violations.
  This article provides a legal and empirical analysis of proposed legislation in these areas as informed by social science research on the patterns of school violence, gun acquisition by juveniles, and the effectiveness of various laws and law enforcement measures. It proposes and discusses recommendations for legal reform. While efforts to reduce school violence will be most effective at the state and local levels, the United States federal government has an important role to play, particularly in federal‐state partnerships aimed at disrupting illegal gun markets, and through the formulation of national standards and guidelines. These standards and guidelines are for the enforcement of existing laws; inter‐agency law enforcement cooperation and information‐sharing (particularly using computer‐based analysis); effective school discipline and alternative educational settings for disruptive youth; and psycho‐educational interventions designed to detect and prevent school violence in the first place.     

ROMANCING THE COURT

Problem‐solving courts, created at the end of the twentieth century, make court‐based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court‐based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem‐solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through the lens of specific examples from family court—the original problem‐solving court—leads to the conclusion that neither the structural issues that courts face, such as overwhelming numbers of cases, nor the momentous societal issues that problem‐solving courts have recently begun to shoulder can be adequately addressed through court‐based solutions. The factors that allegedly distinguish new problem‐solving courts from earlier exemplars, especially the family court, are both less unique and less successful than they have been portrayed by problem‐solving court enthusiasts. These factors alone fail to justify the expansion of problem‐solving courts without further evidence of their effectiveness. Moreover, the potential dangers inherent in problem‐solving courts are not theoretical. By examining illustrative examples from the history of the family court, the dangers become clearly apparent.     

Problem‐Solving Courts: A Brief Primer

This essay traces the history of problem‐solving courts (including drug courts, community courts, domestic violence courts and others), outlines problem‐solving principles, and answers a basic set of questions about these new judicial experiments: Why now? What forces have sparked judges and attorneys across the country to innovate? What results have problem‐solving courts achieved? And what – if any – trade‐offs have been made to accomplish these results?     

Business as Usual? Bail Decision Making and “Micro Politics” in an Australian Magistrates Court

Between the 1970s and 1990s, political scientists in the United States pursued a distinctive research program that employed ethnographic methods to study micro politics in criminal courts. This article considers the relevance of this concept for court researchers today through a case study about bail decision making in a lower criminal court in Australia. It describes business as usual in how decisions are made and the provision of pretrial services. It also looks at how traditionalists and reformers understood business as usual, and uses this as a critical concept to make visible micro politics in this court. The case study raises issues about organizational change in criminal courts since the 1990s, since there are fewer studies about plea bargaining and more about specialist or problem‐solving courts. It is suggested that we need a new international agenda that can address change and continuity in criminal courts.     

Implementing the Key Components of Specialized Drug Treatment Courts: Practice and Policy Considerations

The perceived need for specialized drug courts emerged from the most recent "war on drugs." Courts were no longer able to handle such cases effectively because of an overwhelming volume of drug arrests and prosecutions. The increased emphasis on drug enforcement also revealed that many of the most serious criminally involved drug‐using offenders were undeterred by threats of incarceration, but were amenable to substance abuse treatment. Drug court professionals have identified several "key components" that must be in place for these courts to achieve their goals of reducing drug use and crime. Through the lens of these key drug court components, we examine the development and initiation of specialized drug treatment courts in Cook County (Chicago), Illinois. By exploring and documenting Cook County's experiences, we elucidate several of the basic policy and organizational issues surrounding the implementation and operations of specialized drug treatment courts in the United States.     

Against the Grain: Therapeutic Judging in a Traditional Family Court

The last several decades have seen a proliferation of specialized courts, including within the family court system, that deviate from the adversarial model, and that rely on therapeutic jurisprudence and other problem‐solving techniques. Whether and how traditional family courts can incorporate the best practices of these specialized courts is a largely understudied area. Drawing from ethnographic observations of a traditional urban family court, this study finds that some judges are able to transform nontherapeutic courtrooms into therapeutic ones despite obstacles. These “against the grain” actors, who act contrary to the institution's dominant norms and practices, demonstrate how therapeutic jurisprudence and other problem‐solving techniques can be utilized in traditional courtrooms.     

Homosexuality as Defamation: A Proposal for the Use of the “Right-Thinking Minds” Approach in the Development of Modern Jurisprudence

False imputations of homosexuality have long been considered by courts to be defamatory per se, but many jurisdictions are beginning to revisit the issues surrounding homosexuality and defamation in the wake of a national debate over gay rights. This article examines whether courts should abandon false imputations of homosexuality as per se defamation and concludes that, at a minimum such statements should no longer be defamatory per se and further provides courts with a framework to go a step further and hold that such statements hold no defamatory meaning.     

The Origins of Trade Secrecy Law in England, 1600–1851

This paper examines the origins of trade secrecy law from the beginning of the seventeenth century until Morison v Moat (1851), described by the Oxford History of the Laws of England as ‘foundational’. The paper reveals something of a conundrum. The first part shows that although the prevalence of guild ordinances would have familiarized many with the concept of ‘lawful secrets’, these provisions could no longer be enforced in the guild courts by the late seventeenth century, or within the wider jurisdiction of the courts of the City of London. Instead, as the second half of the paper shows, it was the law courts proper that came to provide succour to those working trade secrets, allowing them to both restrain employees from using secrets for their own benefit and/or to sell secrets to other parties. This was a halting process, but one that had certainly begun prior to Morison.     

Expert testimony in historical perspective

The ethical problems surrounding expert testimony depend directly on the historically specific relationship between science and scientists, on the one hand, and society on the other. In the seventeenth century, when modern experimental science was beginning to emerge, it drew upon legal experience to bolster its methodological arguments. In the eighteenth century, after the successes of Sir Isaac Newton, science gained in authority, and even in law courts the epistemological authority of science went unchallenged. In the nineteenth century, the more empirical sciences, such as chemistry and physics, entered the courts, and juries found the testimony of experimental chemists and physicists useful for their decisions. In the twentieth century, experimental psychology entered the courts. Pushed by Hugo Munsterburg, who saw in legal recognition a way of advancing psychology as a scientific profession, experimental psychology in the courtroom raised ethical problems at the beginning of the century that are still matters of controversy.     

Context and Change: The Evolution of Pioneering Drug Courts in Portland and Las Vegas (1991–1998)

Drug courts in the United States are still relatively young, but they have proliferated dramatically since the first innovation in Miami in 1989. Research focusing on drug courts is now beginning to gain momentum, though it still lags considerably behind the growth of the movement itself. This article describes findings from a first "longitudinal" examination of two of the nation's first and longest operating courts in Portland and Las Vegas, focusing on the dynamic nature of the evolution of the model as adapted in each site. In particular, the research considers the impact of contextual factors – laws, administrative policies, and federal court orders – on the growth of drug court models in each jurisdiction as measured through their screening and enrolling mechanisms over time. The time series analyses suggest that several contextual factors played an important role in shaping these courts and affecting their impact on the target populations and the results they produced. The longitudinal findings illustrate the importance of context in making sense of "normal" evaluation findings and emphasize the dynamic nature of the change process in implementing innovative policy in the criminal courts.     

What's So Special about Specialized Courts? The State and Social Change in Salt Lake City's Domestic Violence Court

The nationwide growth in specialized or problem‐solving courts, including drug courts, community courts, mental health courts, and domestic violence courts, among others, raises questions about the role of the state with respect to social change. According to social control theories of the state, especially theories of technocratic or rationalized justice, law is increasingly about efficiency, speed, and effectiveness. Specialized courts, however, take on a social problem approach to crime, seeking to address crime's “root causes” within the individual, the society, and the larger culture in ways more characteristic of social movements. Are specialized courts about social control or social change? This study examines state action in a specialized court in domestic violence in order to examine this question. I focus on a domestic violence court that arose in February 1997 and four years later employed full‐time judges, prosecuting and defense attorneys, and numerous other staff to handle all misdemeanor domestic violence cases in Salt Lake County, Utah. I ask how legal, political, and community officials justify the court and its operation in order to examine some important issues about the role of the state and social change. Ultimately, I suggest that my findings about the complementary roles of social control and social change within domestic violence courts have implications not only for critical theories of technocratic justice and for the battered women's movement but also for democratic theories of the state.     

民事判决中的证据失权:案例与分析

以证据失权为核心的举证时限是《证据规定》设立的一项新制度,也是其实施过程中遇到最大阻力的一项制度。我国法院的审判实务表明,在《证据规定》颁布之初,一些法院对逾期举证采取严格的失权措施,但随着时间的推移,法院对证据失权采取了越来越慎重的态度。当逾期举证的当事人并无故意或重大过失时;或会造成一方当事人实体权益的重大损失时;或会使裁判结果与实体公正严重冲突时,即使按照《证据规定》应当失权,法院也会做出不失权的选择。     

Judicial Monitoring of Compliance: Introducing 'Problem Solving' Approaches to Domestic Violence Courts in England and Wales

This article examines the development of specialist domesticviolence courts. It overviews the features of ‘problemsolving’ courts and considers the extent to which thefledgling domestic violence courts in England and Wales areadopting the problem solving approaches found in some specialistcourts in the United States of America. Whilst noting some ofthe successes of the first seven domestic violence courts inEngland and Wales, the article concludes that more effectiveinterventions in domestic violence cases can be achieved throughgreater involvement of the judiciary in ongoing monitoring ofthe defendant’s compliance with court ordered perpetratorprogrammes.     

A qualitative analysis and eleven-factor typology of hypothesized factors encouraging or discouraging the development of problem solving courts in various countries

Journal of Experimental Criminology - Whereas the USA has numerous problem solving courts (e.g., drug courts, mental health courts), other countries do not have such courts, have altered versions...     

Recovering from the Effects of Domestic Violence: Implications for Welfare Reform Policy

This article highlights the importance of understanding how the impact of domestic violence renders participation in welfare‐to‐work programs highly problematic since the symptoms of post‐traumatic stress disorder (a not uncommon outcome of domestic violence experience) can undermine the victim's best efforts to benefit from training and return to work programs. A short history of PTSD is provided with the cautionary note that definitions of PTSD remain in flux. Sub‐categories of PTSD, such as Battered Women's Syndrome, are also reviewed. Recovery from PTSD is not described in psychotherapeutic terms, but in rehabilitative terms with an emphasis on those recovery processes which facilitate restoration of psychological and functional capacities, leading to participation in welfare‐to‐work or retraining programs with labor market participation as the goal.