Good Courts The Case for Problem Solving Justice proves that specialized courts can pay off

Good Courts: The case for Problem Solving Justice
By Greg Berman and John Feinblatt, with Sarah Glazer
New York, The New Press, 237 pages

Winter 2006

During their required course in criminal law, first-year law students study not merely the elements of crimes, but also the purposes of the criminal justice system. They learn that the lawyers who have key roles in the trial courts where criminal- cases are tried—the prosecutor, the defense lawyer, and the judge—all have certain roles they are expected to play.

The loftiest role, they learn, is that of the judge, who sits higher than everyone else in the courtroom and is dressed in a black robe symbolic of authority. In trials with or without a jury, the judge frames the legal principles upon which guilt or innocence will be determined. If there is no jury in the case, the judge will decide the facts as well. If the defendant is found guilty, it is the judge who has the awesome task of deciding what sentence to impose.

Though a towering figure with sweeping authority over what goes on in the courtroom, the judge is passive, responding to requests and motions and deciding whether evidence is admissible only when the opposing attorney objects. While the prosecutor and defense attorney are advocates, pressing their respective sides in the case, the judge is supposedly a neutral arbiter, with no stake in who wins and who loses.

As those students progress through law school, however, their professors prod them to question this traditional pattern. This questioning takes place not only in their criminal law course, but also in electives such as law and social policy, and in clinical programs where students accompany lawyers to the courtroom. Eventually, students discover an ongoing debate over the proper role of judges. They find themselves asking whether the social problems caused by drugs and alcohol, which tear at the fabric of our communities, require that judges be more than neutral decision-makers. The students debate whether judges should take an active role in trying to address these problems, which in the past has been the province of the executive and legislative branches of government. In short, should judges become problem solvers?

In some jurisdictions, not only judges but entire courts have taken on the role of problem solver. In Good Courts, authors Greg Berman and John Feinblatt tell us about three of them, and argue that problem-solving courts are helping to make their communities safer and better places to live. The authors describe the judges of the problem-solving courts as they work with prosecutors and defense lawyers, with social service agencies, and with community officials to find ways to reduce criminal defendants’ dependency on drugs and alcohol—and to improve life for all who reside in communities where drugs and alcohol abound. The positive results described in Good Courts should provide incentive for future law students, here and around the country, to question the traditional role of judges and to lobby for the resources that will allow these experiments to become part of the fabric of the day-to-day functioning of criminal courts in the United States.

n the civil side of the courts, specialized trial courts have long been recognized as serving a valuable function. Specialization allows judges and support personnel to acquire expertise in handling particular types of disputes. For example, divorce and custody cases in Massachusetts are tried in the Probate and Family Court. The Housing Court is available to resolve residential landlord-tenant disputes in many parts of the Bay State. Delinquency hearings and care and protection proceedings are heard in the state’s Juvenile Court.

But only recently has this development of specialized courts spread to the criminal courts in the United States. The authors of Good Courts refer to this development as “a quiet revolution,” one that has occurred not through new legislation but through the initiative and hard work of individual judges, acting with the support of prosecutors, police, and community activists. These judges, tired of overcrowded criminal dockets that lead to an emphasis on plea bargains and moving cases (a system that the authors refer to as “McJustice”), are searching for solutions as much as justice, in the settling-of-accounts sense. They are demanding that individual attention be given to the defendant, the victims of the defendant’s crime, and the effect of crime on the people living in the community. And they are finding significant support for new approaches in a public disillusioned with the criminal-justice system.

Specialization can lead to more expert judges

Out of the chaos has come the idea of “community courts,” where the judge, the prosecutor, and the defense attorney collaborate in an attempt to end the cycle of recidivism. In Massachusetts, District Courts, which handle a variety of civil and criminal cases, have often been described as “community courts” because of their local nature. The authors are using the term more narrowly, however, to describe courts that deal specifically with the type of crimes adversely affecting the quality of life in a city, crimes often associated with drugs, alcohol, prostitution, and domestic violence.

Good Courts focuses on courts in three communities:

Midtown Manhattan. In Times Square in the early 1990s, prostitution, drug use, shoplifting, and vandalism scared away local residents and tourists alike. Not anymore. Though little known, the Midtown Community Court played an invaluable role in reducing criminal activity in the area, particularly prostitution. The court found educational and employment opportunities for women who had been working the streets to earn money that would often be used to purchase illegal drugs. It also offered counseling on the dangers of prostitution. With reduced crime in the area, business development improved, and the Times Square area began to thrive once again.

Red Hook, Brooklyn. Despite its beautiful views of the Statue of Liberty, Red Hook had become the center of a drug trade and street violence that drove away legitimate business and all those residents who could afford to leave. In the mid-1990s, with the support of the chief judge of the state of New York and the local district attorney, a community justice center was established to focus on local criminal matters—drugs, domestic violence, and street crime. Today, residents can walk the streets and feel safe.

Portland, Oregon. In 1998, Portland established its community court, which worked with police and prosecutors to focus on anticipating and preventing crime, rather than arresting and prosecuting criminals. With help from judges, who committed the resources of their court and their individual attention, community service jobs were created to provide offenders with a sense of accomplishment. With a reduction in crime, residents of the area could walk the streets after dark and patronize local businesses.

The authors provide a number of success stories involving people “saved” by a problem-solving court. For example, at the age of 20, Kim had been studying accounting for three years in college, but she was unable to find a summer job after her junior year. To earn money, she began work as a stripper, starting down a path that led to 17 years of prostitution on the streets of New York. The fees she earned by selling her body would be spent on alluring clothing and drugs. She gave birth to a son, but could not care for him, and later had her daughter taken away from her. After 18 arrests for prostitution over five years, she showed up in the Midtown Community Court. The judge gave her a choice: six months behind bars or 10 days on the work crew cleaning the courthouse building. She chose the latter. Encouraged by court counselors who saw a spark of hope in her, Kim found the strength to give up drugs and prostitution. She joined a job-training program sponsored by the Midtown Community Court. Showing herself to be a model student, she acquired basic office and computer skills, learned how to interview for jobs, and obtained gainful employment. Kim credits the Manhattan Community Court with turning her life around.

Problem-solving courts target drugs and prostitution.

These crusading courts may be solving problems, but they are also raising eyebrows. In our criminal-justice system, the defendant is presumed innocent, and it is up to the prosecutor to prove guilt beyond a reasonable doubt. If a judge is too quick to jump in with a “solution” to a criminal problem not yet proved by the evidence, that’s not justice. In a problem-solving court, a defendant may feel pressure to give up all of the rights that he or she would have in a criminal trial in order to avoid a possible conviction and jail time.

But the authors remind the reader that the “revolving door” justice that has been practiced in the criminal courts of the US has done little to slow down the cycle of recidivism commonly associated with crimes involving drugs, alcohol, and prostitution. Where a traditional adversarial model of criminal prosecution may be appropriate for major felonies, the authors urge us to consider the problem-solving model as an alternative, particularly for those lesser crimes that so often determine whether a city or location is one where good people are willing to live and work.

Although there are problem-solving courts in Massachusetts whose focus is on problems other than drugs (for example, domestic violence), it is the drug court that is the most prevalent example of the model as described in Good Courts. The state’s District Court, Boston Municipal Court, and Juvenile Court have established drug courts in more than 20 different locations, according to the Web site of the Massachusetts court system ( planning/drugcourtslist.html), with the first one established in 1996. But experimentation with the community court model could be seen prior to that time in Franklin County, where in the mid-1990s a task force of judges, attorneys, government officials, and community leaders sought to increase community involvement in the local courts.

Still, there are no Massachusetts courts that are exclusively devoted to drug cases. In all instances, the drug courts are simply separate sessions scheduled in the court in question. But they are run differently than the typical criminal session. In drug sessions, defendants may avoid jail sentences if they enroll in drug rehabilitation programs and report back to court on a regular basis on their progress. (In an effort to combat the escalating drug problem in downtown Boston, the Central Division of the Boston Municipal Court opened a drug court during the fall of 2005, requiring drug testing and treatment to avoid jail time.)

After the first drug courts proved their utility on a pilot basis, the Massachusetts Trial Court promulgated a policy for the establishment of drug courts, seeking “to allow for innovation and flexibility in the establishment and operation of drug court sessions…while simultaneously providing guidelines for their consistent administration….” The policy notes that the presiding justice of a court considering establishment of a drug court “should evaluate the needs of the community served by the court, the availability of resources within the community and the support for a drug court session….” The policy requires an assessment of the program and the keeping of data and statistics.

Meet the Author
Good Courts concludes by asserting that “problem- solving courts…offer a rare beacon of hope within the criminal-justice system.” It exhorts those interested in justice to pursue the vision of the community courts that has worked so well in Manhattan, Portland, and Brooklyn. This is a message that should be heeded by all who seek to improve the courts here, particularly at a time when the public has become so skeptical of the Massachusetts judicial system. After almost 10 years of experimentation in Massachusetts, the time has come to have a close look at the existing drug courts to learn about their success stories and to determine whether these indeed have a legitimate place in the Massachusetts criminal justice system. At a time when so many have been critical of government, of politicians, and of judges, we could use a few success stories from the courts of Massachusetts.

Marc G. Perlin, Esq., is associate dean and professor of law at Suffolk University Law School.