In September 2005, the Bureau of Justice Assistance of the U.S. Department of Justice funded ten demonstration projects under its new Community-Based Problem-Solving Criminal Justice Initiative. The following edited excerpt was taken from Lynchburg’s winning proposal.

 

 

The Lynchburg Community-Based Problem Solving Criminal Justice Initiative is built upon the premise that structured interventions with defendants at the early stages of crime can prevent further escalation of violence in even the most distressed community. Lynchburg’s proposal promotes the merits of bringing social services and mediation into the folds of the criminal justice process and strives to integrate the community court model into a traditional general court system in a small city with limited resources. It seeks to utilize the resources already present in the community and the court system in a more effective and community orientated approach.

To accomplish these goals requires inviting non-traditional criminal justice players—community members, social service and non-profit partners—to participate in the design and implementation of this initiative and asks them to work alongside members of law enforcement to repair the disconnect between traditional court sanctions and access to social services, creating community-driven sanctions for those who commit crime in the pilot project neighborhood.

The purpose of the initiative is to restore safety to the city’s most high risk neighborhoods and empower residents to reclaim their communities. The project will focus on Lynchburg’s Greenfield neighborhood, and eventually cover the entire city. Aside from reducing recidivism and crime rates, the inclusion of the community in the criminal justice system process as problem solvers allows them to feel empowered and to view themselves as important stakeholders in the process.

 

In September 2005, the Bureau of Justice Assistance of the U.S. Department of Justice funded ten demonstration projects under its new Community-Based Problem-Solving Criminal Justice Initiative. The following edited excerpt was taken from Atlanta’s winning proposal.

In late 2000, the City of Atlanta’s Municipal Court created a community court, which has evolved into a comprehensive problem-solving court. Currently, the Court is operating two neighborhood Restorative Boards, both in inner-city neighborhoods where poverty rates are high. Under its problem-solving initiative, Atlanta proposes to expand and enhance its Restorative Board program into four additional Atlanta neighborhoods. The Restorative Boards have proven to be especially effective by bringing an offender back to a neighborhood for sanctioning and restoration and giving a meaningful voice to community members in the justice process.

The boards seek to close the gap between the courts and community. Defendants, often young and first-time offenders, are identified by court staff as appropriate candidates for diversion to the boards. Staff recruit board members from the neighborhood where the board is established. After extensive training in the principles of restorative justice and the policies of the board, members are sworn into service by the judge of Community Court. When a defendant appears before the board, together they discuss the nature of the offense and its negative consequences for the victim, community and offender. An agreement is reached on a course of action that the defendant will take to “right the wrong” his/her actions have created. Activities are also identified for the offender to pursue in order to reduce the likelihood that he/she will offend again. Examples include GED completion, job search skills training, anger-management and conflict resolution classes, parenting classes, etc. Board members meet several times with offenders to monitor their progress and offer congratulations upon success.

 

In September 2005, the Bureau of Justice Assistance of the U.S. Department of Justice funded ten demonstration projects under its new Community-Based Problem-Solving Criminal Justice Initiative. The following edited excerpt was taken from the New York’s winning proposal.

Bronx Community Solutions is the next phase in the development of problem-solving justice in New York, an ambitious experiment in going to scale with ideas and practices that have worked in pilot community courts in Midtown Manhattan, Harlem, and Red Hook, Brooklyn. Rather than concentrating resources in a single, specialized court, Bronx Community Solutions seeks to bring problem-solving resources to all of the players in Bronx Criminal Court, which handles 50,000 misdemeanor cases annually. The project aims to re-think business as usual in the local criminal justice system, marshalling the system’s resources towards improving the response to quality-of-life crime and increasing public trust in government. It combines punishment (community service) and help (drug treatment, job training, counseling) for eligible non-violent offenders.

Components include:

Sentencing Options. By creating social service classes and community service projects, the project seeks to provide judges with expanded sentencing options and reduce reliance on expensive and ineffective short-term incarceration.

Accountability. By quickly assigning offenders to alternative sanctions and rigorously monitoring their performance, the project seeks to improve compliance and reduce the number of offenders who receive no sanction whatsoever—sending a message that all crime has consequences.

Community Engagement. By engaging local residents and organizations in selecting community service projects and providing social services, the project seeks to revitalize the relationship between court and community.

Bronx Community Solutions partners include the New York State Court System, the Bronx DA’s Office, the City of New York, the local defense bar and the Center for Court Innovation.

To view a screening tool used to assess ofenders' social service needs click here.

 

Problem-solving courts have generated healthy debate among both proponents and critics. Advocates of problem-solving courts hail improved case outcomes, including reductions in crime, increased sobriety for addicts, safer neighborhoods, fewer probation violations, and enhanced public confidence in justice. Skeptics question whether the new courts are engaged in practices—including monitoring defendants in treatment, listening to community concerns, and forging collaborations with government and non-profit agencies to solve discrete problems—that are inconsistent with the traditional values of the judicial branch.

What is so new about what judges are doing in problem-solving courts? In late 1999, a select group of judges, attorneys, policy makers, and scholars gathered to answer this and other questions. The panel was the first in a series of discussions about problem-solving courts sponsored by the Office of Justice Programs, U.S. Department of Justice, the Open Society Institute (Program in Law and Society), and the Center for Court Innovation. What follows is an edited transcript of this part of the conversation. For the entire transcript, click here.

Moderator Eric Lane, Eric J. Schmertz Professor of Public Law and Public Service, Hofstra Law School: What’s so new about what judges are doing in problem-solving courts?

Cindy Lederman, Administrative Judge, Juvenile Division, 11th Judicial Circuit, Florida: It seems to me that the public is now coming to the courts and asking for solutions to problems like crime, domestic violence, and substance abuse. If we as judges accept this challenge, we’re no longer the referee or the spectator. We’re a participant in the process. We’re not just looking at the offense any more. We’re looking more and more at the best interests, not just of the defendant, but of the defendant’s family and the community as well. This is quite a leap. It’s not traditional. And not every judge can or should do this. It can be a disaster to have the wrong judge sitting in a problem-solving court. It’s much more difficult than sitting in a normal courtroom. You need to read more than the law. You need a lot more courage as well, because you will be subject to tremendous criticism from your colleagues. “Are you being impartial? Do you know too much so that you can no longer be impartial?” I can’t tell you how many times I’ve heard that. Which leads me to one of my favorite quotes, which is “The judiciary is the only profession that exalts ignorance.”

Judith S. Kaye, Chief Judge, New York State Court of Appeals: I’ve never understood that. I’ve been an appellate judge for more than 16 years. I’ve decided a lot of Uniform Commercial Code cases. I love the Uniform Commercial Code. I read a lot about it. Am I doing something unethical? Is the domestic violence judge who tries to make himself an informed person on the very difficult issue of domestic violence doing something unethical?

Truman Morrison, III, Judge, District of Columbia Superior Court: I’m puzzled by some of the things that Judge Lederman said. I don’t understand why it is that only a few of her colleagues would be fit to be in one of these special courts. I hope that it isn’t because only a few of them share her ideological view of how you approach domestic violence or how you approach drug abuse, because if that’s true, I think that’s very, very worrisome.

Michael Schrunk, District Attorney, Multnomah County, Oregon: I agree wholeheartedly that not every judge can be a problem-solving court judge. My public defender and I have to go out and recruit judges, literally, with the blessing of our presiding judge, to see if they’d be willing to do a drug court, to do a community court. We get turned down by some of my former deputies, some of my public defender’s former deputies. What we’re looking for is a proactive judge as opposed to a reactive judge, someone who can preserve the core values of the judiciary, but still be a risktaker. I think there needs to be a recognition that this is non-traditional judging, just as I tell my young lawyers fresh out of law school who want to slug felons that this is non-traditional prosecuting. And I suspect deputy public defenders find out when they serve a tour in problem-solving courts that it’s non-traditional defending, too. We’re not preparing people in law schools for this.

Kaye: The suggestion is on the table that there is some sort of ideology that makes a good problem-solving judge. I thought it would be worthwhile hearing from one of the problem-solving judges.

Lederman: I think there’s an ideology. There’s a personality as well. There are many judges who are reluctant to speak human to human to the people that appear before them. Those judges are inappropriate for a problem-solving court. A judge has to feel that it’s the responsibility of the judiciary to engage in this sort of work and have the personality to engage human beings from the bench. Not every judge has these characteristics.

Morrison: I still don’t have a picture yet of who the ideal person for this job is. It strikes me that it ought to be a good judge—someone who is open to other people’s ideas, who listens, who is informed, who is impartial. All of us have colleagues who are brilliant and colleagues who are boors. Obviously, we don’t want bad judges in these courts. If we put aside the real bad people who probably shouldn’t be on the bench anyway, most judges could do this job, many more than do. By way of example, let me tell you about a colleague of mine on the bench. He’s actually the senior judge in our court, who everybody would define as a traditional judge, to the extent we all have a stereotype of that. Years ago, he served as the judge in our local drug court. Yesterday, he absolutely shocked me by saying that his year on the drug court was the single most meaningful experience he’s had in 22 years of being a judge. I said: “Gosh, that surprises me. Why is that?” He said: “Because in many ways I was able, with complete fidelity to all my principles, to do a better job of being a judge in that context than I ever was doing anything else.” I say this just to underline that if we’re doing this right, it shouldn’t be a tiny little fraternity and sorority of select jurists who are up to the task.

Judy Harris Kluger, Administrative Judge, New York City Criminal Court: I don’t think you need a particular ideology. That would be terrible. I do believe that, except for our problem judges, most judges could do this job well. In my experience, once the Midtown Community Court got started in New York, judges said: “Could I sit there?” These judges were very different, but the common denominator was they were tired of having their competence evaluated on how many arraignments they could do. You know, for a long time my claim to fame was that I arraigned 200 cases in one session. That’s ridiculous. When I was arraigning cases, I’d be handed the papers, say the sentence is going to be five days, ten days, whatever, never even looking at the defendant. At a community court, I’m able to look up from the papers and see the person standing in front of me. It takes two or three more minutes, but I think a judge is much more effective that way.

What part of defenders’ wariness about problem-solving courts stem from fears of altering their roles as zealous advocates? This is just one of the questions examined as part of a two-year exploration of problem-solving justice.

Problem-solving courts encourage prosecutors and defenders to get involved in changing the behavior of offenders and ensuring the future well-being of communities. This is a significant departure from business as usual. This wave of experimentation and innovation raises some important questions for court players, and defenders in particular. What part of defenders’ wariness about problem-solving courts stem from fears of altering their roles as zealous advocates? This is just one of the questions examined by the U.S. Department of Justice’s Office of Justice Programs, the Open Society Institute, and the Center for Court Innovation as part of a two-year exploration of problem-solving justice. What follows is an excerpt from a transcript from a roundtable discussion held in March 2000 in Washington, D.C. For the complete transcript, click here.

Francis X. Hartmann, Executive Director, Program in Criminal Justice Policy, John F. Kennedy School of Government, Harvard University: What part of defenders’ wariness about problem-solving courts comes from fears of altering their roles as zealous advocates?

James R. Neuhard, Director, State Appellate Defender’s Office, Detroit, Michigan: The fear I have is losing the ability to say the emperor has no clothes. I think what I hear coming from the defense bar isn’t that these problem-solving courts are a bad idea. I’m not opposed to the idea of having more alternatives for my clients. The thing I find regretful about problem-solving courts is that we have to somehow give up our traditional role in order to make problem-solving courts work effectively. My question about problem-solving courts is why do we have to change anything about what we do?

Robert Weisberg, Edwin E. Huddleson Jr. Professor of Law, Stanford Law School: If defenders’ ethical obligation is limited to “Protect your clients to the maximum extent possible from state coercion,” then what’s attractive about problem-solving courts and the alternatives they offer? When we talked about effective lawyering, we spoke about defense lawyers’ also attaching ethical importance to improving their clients’ lives. Then the question becomes: Are problem-solving courts a good means to fulfill that goal? Just as a little thought experiment, let’s imagine state coercion did not exist. What would be the nature of your ethical obligation to your client? What principles would guide you as you advised your client about the available alternatives to incarceration? Would you use your persuasive powers to the maximum extent possible to get your client into drug rehab, into the mental health system, or into other so-called service systems?

Kim Taylor-Thompson, Professor of Clinical Law, New York University School of Law: If you’re asking whether I would advise somebody who has jumped a turnstile to go into the mental health system, as it now exists, then my answer would be a flat “No.” If you ask whether I would put this person in a program that somebody has investigated, that targets this defendant’s particular needs, and that gives this defendant a second chance if that type of treatment doesn’t work, then I might have a different reaction.

Scott Newman, Marion County Prosecutor, Indianapolis, Indiana: I think defense lawyers want to be sure that whatever program their client is sent to has adequate resources and is sincere—not just window dressing—so that the client has a reasonable prospect of a positive outcome instead of being thrown back in jail.

Michele Maxian, Attorney-in-Charge, Criminal Defense Division, The Legal Aid Society, New York City: I’d like to respond to Professor Weisberg’s question about using our persuasive powers. I never turn the full strength of my persuasive powers on my client. I don’t for two reasons. First, I have no idea what is in my client’s best interests—I’m a nice little white Midwestern girl living in New York City. Second, I believe in the dignity and individuality of my client. It isn’t that I don’t counsel them or that I don’t share my views with them. But I don’t lawyer them the same way I lawyer a judge or the same way I might lawyer a district attorney. This doesn’t mean that my responsibility towards my clients does not extend beyond the courtroom or that I’m not concerned about their lives.

Cliff Keenan, Counsel on Community Prosecution, Office of Justice Programs, U.S. Department of Justice: I’m wondering: Is it the defense attorney’s role in a problem-solving court to basically take on social work? During a break, I asked John Stuart: “What about the cases that aren’t prosecuted, do you have an interest in that person’s problems?” And, I think John’s reply was appropriate: “No, because they’re no longer a client.” When the attorney-client relationship begins, the lawyer assumes responsibility for that client’s legal issues. What is the attorney’s obligation, if any, to address the client’s non-legal problems?

Elizabeth Glazer, Chief, Crime Control Strategies, United States Attorney, Southern District of New York: It’s dangerous to say: “This is what a social service does and this is what lawyers do.” Social service and criminal justice are sort of two halves of the same coin. And if our overall goal is to reduce crime, it’s our responsibility to deal with both sides.

Neuhard: Well, I think it is my responsibility to counsel clients on how to keep their life going on a path that will keep them out of prison or jail. You’re not lawyering them—you’re trying to communicate what’s in their best interest for survival.

Jo-Ann Wallace, Chief Counsel, National Legal Aid and Defender Association: In my mind, attempting to convince your client to take a treatment alternative does not relax the zealousness of your advocacy for that client—whether it takes place at the plea stage or at sentencing. I would use a standard of the client’s “informed choice” to guide my ethical obligation. As a defense attorney, I’m trying to give clients as much information as possible. When the client makes an informed decision, I will then advocate for it, even if it is at odds with what I believe to be the client’s best interest.

Anthony Thompson, Associate Professor of Clinical Law, New York University School of Law: I think you act as both attorney and as counselor for your client. You’re saying to the client: “You have some options here.” My understanding is that client counseling is consistent with client advocacy. You say to the client: “Look at these 20 prior convictions. Let’s talk about whether or not this 90 days in jail is what you want to do or whether you want to do 180 days in drug treatment.”

Neuhard: But if your client says, “A,” can you go into court and say, “Not A” to the judge?

Thompson: There are no circumstances in which you’re going to do that.

Hon. Judy Harris Kluger, Administrative Judge, New York City Criminal Court: I think if you are being asked to do that, then someone is doing something very wrong. Your client should never be in the position where he or she does not want to do something and the lawyer is saying the opposite. I think you should always be zealously representing your client in the best way you know how, but it can be done within the context of other options, like treatment.

John Stuart, Minnesota State Public Defender, Minneapolis, Minnesota: I worry about the effects of collaboration on zealous advocacy. In problem-solving courts, you often have the same prosecutor, the same defender, and the same judge all working together in the same court day after day. Usually, as an advocate, I can tell a certain prosecutor that there is something wrong with his case and then I might not see him again for a week. Or if a particular judge got mad at me because I was making several motions, it wouldn’t matter because I would have eight different judges to go to afterwards. I’m concerned about the impact of telling the judge, the prosecutor, and the defender that they are all in this little boat together and they have to get along out there on the ocean. That, I think, could have a deleterious effect on the zealous advocacy of the defense attorney. We always have tried to avoid “horizontal representation,” where the public defender is assigned to the courtroom rather than the client.

Judge Kluger: I think that’s why it’s important to have aggressive, very capable defense attorneys in problem-solving courts. Lawyers have to be trained that you don’t stop being an advocate in problem-solving courts. I think the problem is that there isn’t enough education or training of the lawyers who are working in these courts about how to do it a little bit differently, but not with less zeal and not with anything less than the client’s best interest.

Maxian: I feel more like a patient advocate than like a lawyer in a problem-solving court. Most of the significant advocacy is done during the process of setting up the court. To be an effective advocate in a problem-solving court, defenders have to be closely involved in setting it up because so much depends on what treatment is mandated and how it is monitored.

Taylor-Thompson: To advocate zealously in a problem-solving court, you need real, long-term training to figure out what kinds of treatment programs actually work, what are an individual’s problems, and how to match that individual’s problem to a particular program. Defense lawyers, prosecutors, and judges are currently not trained to do this.

Cait Clarke, Lecturer, Harvard University, Kennedy School of Government: The training gap could be partly addressed through teaching negotiation skills to criminal lawyers. Lawyers in problem-solving courts are largely engaged in negotiation. But nobody is teaching criminal justice negotiation skills, not one program across the country.

Esther Lardent, President, Pro Bono Institute, Georgetown University Law Center: Can public defenders and prosecutors really be effective lawyers in this kind of system? Do we really think judges are the right people to decide among various treatment modalities?

Glazer: My understanding of problem-solving courts is that it’s not so much the lawyers or the judges that are making these kind of treatment decisions. Rather, the lawyers and judges are relying on trained social service professionals to advise them and tell them what it is that they are seeing in front of them.

Stuart: You don’t need to have a specialty certificate to be a lawyer in a problem-solving court. Lawyering in these courts is plain old sentencing advocacy. For a long time before problem-solving courts existed, the defense attorney’s function has been mostly limited to sentencing advocacy—minimizing the amount of punishment or government intrusion. It’s a rare case that you get to argue that your client is not guilty and go to trial on the merits.

In September 2005, the Bureau of Justice Assistance of the U.S. Department of Justice funded ten demonstration projects and one technical assistance provider under its new Community-Based Problem-Solving Criminal Justice Initiative. The Initiative aims to broaden the scope of problem-solving courts, testing their approach to wider defendant populations and applying key problem-solving principles—links to social services, rigorous judicial monitoring, aggressive community outreach—outside of the specialized court context. 

The Center for Court Innovation was named technical assistance provider for the Initiative, and will assist the ten demonstration sites in implementing their problem-solving initiatives. These grantees are: the Pima County Juvenile Court Center, Arizona; the San Diego City Attorney's Office, California; the City of Atlanta Community Court Division, Georgia; the Sault Tribe of Chippewa Indians, Michigan; Bronx Community Solutions, New York; the Athens County Municipal Court, Ohio; Clackamas County, Oregon; the Fourth Circuit, South Carolina; the Office of the Commonwealth's Attorney, Lynchburg, Virginia; and the City of Seattle, Washington. Click on the names above to read abstracts of each winning proposal.

 

 

The New York State Adult Drug Court Evaluation, which can be read in its entirety here, evaluates adult drug courts in New York State, one of a handful of states that is engaged in a coordinated effort to institutionalize drug courts statewide. With funding from the Bureau of Justice Assistance of the U.S. Department of Justice, the Center for Court Innovation, in collaboration with the New York State Unified Court System, spent three years documenting the policies, participant characteristics, and performance of participants in eleven of the state’s oldest and largest drug courts. Four were from large urban counties of New York City (Bronx, Brooklyn, Manhattan, and Queens); one is suburban (Suffolk); three are from medium-sized cities (Syracuse, Rochester, and Buffalo); and three were from small city/semi-rural areas (Tonawanda, Lackawanna, and Ithaca). At six of these drug courts, impact evaluations were also conducted to determine effects on recidivism as compared with conventional case processing. What follows are some of the main points researchers concluded from the evaluation.

Impact on Recidivism
All six drug courts (Bronx, Brooklyn, Queens, Suffolk, Syracuse, and Rochester) produced recidivism reductions compared with conventional case processing. The six courts represent a mix of geographic areas and policies (e.g., regarding eligibility criteria, screening and assessment protocols, graduation requirements, approach to sanctions, and supplemental services). Since the measurement periods tracked defendants at least three years after the initial arrest and at least one year after program completion, the results indicate that positive drug court impacts are durable over time.

The six drug courts generated an average 29% recidivism reduction over the three-year post-arrest period and an average 32% reduction over the one-year post-program period. Major findings are as follows:

• Reduced post-arrest recidivism: Drug court participation led to a lower probability of
  recidivism three years after the initial arrest (significant in five courts and p < .10 in the
  sixth). Depending on the drug court, recidivism reductions ranged from 13% to 47%
  (average reduction = 29%) relative to the comparison group level.
• Reduced post-program recidivism: Drug court impacts extended beyond the period of
  program participation. Drug court participation led to a lower probability of recidivism at
  one year post-program (significant in three courts, p < .10 in one court, and suggested by
  the numbers but not significant in two). Post-program recidivism reductions ranged from
  19% to 52% (average reduction = 32%).
• Survival over time: When comparing in-program to post-program recidivism rates for drug court participants, recidivism did not rise in the post-program period, but rather declined in three of the six courts. Further, when comparing participant and comparison group recidivism rates after each additional year following the initial arrest (a “survival analysis”), in only one of the six courts was there clear evidence of attenuation of the drug court impact over time. This was contrary to the expectation that the magnitude of the drug court impact would peak immediately following the arrest (when judicial monitoring is most intensive); instead, results in most sites revealed positive long-term impacts persisting beyond the period of active judicial supervision.
• Impact of drug court graduation: Drug court graduates were far less likely than comparison defendants to recidivate in all six courts; however, drug court failures were as likely, if not more so, as comparison defendants to recidivate in four of the six courts. Translation: the benefits of drug court participation largely accrue to those who successfully graduate.
• Impact of arrest charge: In Rochester, participants arrested on drug charges performed better relative to the comparison group than participants arrested on a select number of non-drug charges. Although the analysis is relatively limited in scope and requires future replication, the findings suggest that drug courts may be more successful in curtailing drug-based criminal behavior (indicated by drug charges) than in curtailing criminal behavior driven by other criminal propensities.
• Other predictors of recidivism: Among drug court participants and comparison defendants alike, those with prior misdemeanor convictions and of younger age were generally more likely than others to recidivate across all courts and analyses.

Impact on Case Processing and Case Outcomes
For the same six sites, the impacts of drug courts on criminal case processing and case outcomes were analyzed. Key findings include:

• Initial case processing speed: Drug court cases reach initial disposition more quickly than conventional court cases. Participants in all six drug courts spent significantly less time from arrest to initial disposition/program entry than comparison defendants.
• Total Time Pending: When in-program participation time was included in the calculation, processing time for participants was far longer than for comparison defendants (due to the length of the drug court program). Hence to achieve positive impacts such as lower recidivism, drug courts require a significant up-front investment of court resources.
• Sentencing: Average sentence length stemming from the initial criminal case is sometimes shorter than in conventional prosecution—and sometimes not. Whereas graduates are never sent to jail or prison, drug court failures receive longer incarceration sentences than comparison defendants in five of the six courts. This highlights the importance of drug court graduation in reducing the use of incarceration. When considering initial case outcomes for all participants at once (combining graduates and failures), drug court participants averaged significantly shorter jail or prison sentences in three of six courts; but in one court, drug court participants were sentenced for significantly longer on average and in the remaining two courts, there was no significant difference.

Program Retention Rates
Retention is a key measure of program success. A one-year retention rate indicates the percentage of participants who, exactly one year after entering drug court, had either graduated or remained active in the drug court program. Earlier research finds that retention not only indicates success in treatment but also predicts future success in the form of lower post-program recidivism and drug use. Drug courts generally produce higher retention rates than community-based treatment programs accepting a combination of voluntary and court-mandated treatment
participants. Key findings about program retention and graduation rates across the eleven drug
courts studied here include:

• Retention rates: The one-year retention rate exceeds the national standard of 60% for drug courts in eight of eleven courts studied (five New York State courts exceeded 70%).
• Long-term retention/graduation rates: When the retention period is extended to two and three years, more than half of participants in eight of eleven New York State courts are retained—and the rate exceeds 60% in three courts. The three-year retention rate gives a close approximation of each drug court’s final graduation rate.

Predictors of Success
Across five drug courts (Bronx, Brooklyn, Queens, Suffolk, and Syracuse), several characteristics consistently predicted both drug court graduation and lower recidivism:

• Participant characteristics: Consistent with earlier studies, age predicted success; older defendants were more likely to graduate and less likely to recidivate. A primary drug of heroin made graduation less likely (in two of three courts examined for this effect) and prior criminal convictions were near universally predictive of future recidivism. Also, participants entering on property charges were somewhat more likely to return to criminal activity than those entering on drug charges.
• Immediacy: Immediate engagement in treatment (e.g., avoidance of early warranting) universally and strongly predicted drug court graduation.
• Importance of graduation: Graduation is itself a powerful predictor of avoiding post-program
  recidivism; those who failed drug court were far more likely to recidivate in the post-program period.5 Further, contrary to previous research with non-drug court populations, no benefit was found to spending more total time in treatment only to fail in the end. Among those who failed, more time in the drug court program (measured in four courts) or more days specifically attending treatment (measured in one court) had no impact on post-program recidivism. These results strongly point to drug court graduation as the pivotal indicator of long-term outcomes.

Drug Court Policies and Participant Characteristics
In considering the drug court policies and participant characteristics in eleven courts, the analysis produced four general findings:

• Diversity of approaches: There is no single drug court model. All eleven courts mandate community-based treatment, regular drug testing, case management visits, updates before a dedicated judge, and rewards and sanctions in response to progress or noncompliance. However, policies vary considerably across several domains—legal eligibility criteria, whether a guilty plea is required prior to entry (the pre-plea or post-plea models), approach to treatment and case management, specific sanctioning practices, graduation requirements, legal consequences of graduation (e.g., case dismissal or charge reduction), and legal consequences of failure (e.g., length of resulting jail or prison sentence).
• Drug use patterns: The eleven courts also treat participants with different presenting problems. The median duration of drug use ranges from eight years (Manhattan and Queens) to eighteen (Brooklyn); and while the five most common primary drugs are similar statewide (heroin, crack, cocaine, marijuana, and alcohol), they are used in different proportions in each jurisdiction.
• Socioeconomic disadvantage: In all eleven courts, nearly half of the participants (and a much higher percentage in several) were neither employed nor in school at intake. More than a quarter of participants were currently or formerly homeless in seven courts.
• Female participants: The challenges faced by female drug court participants were particularly acute (including more severe drug use, treatment histories, and socioeconomic disadvantage than males), highlighting the need for supplemental services for this population.

Treatment and Recovery
Major findings about the treatment and recovery process include:

• Treatment capacity: Despite early questions about whether there is sufficient treatment capacity in New York State to serve the increased demand for treatment generated by drug courts, so far participants have been able to enter treatment rapidly. The median time from drug court intake to treatment placement is less than one month in eight of nine courts examined and less than ten days in three courts.
• Treatment modality: Over half of participants begin in an outpatient modality, in all but two courts. When clinically feasible, most courts prefer to begin participants in outpatient treatment and then upgrade to inpatient in response to relapses or other compliance problems. Characteristics generally indicating a higher probability of inpatient care are primary drug of choice (heroin), living situation (homeless), employment status (unemployed) and age (younger defendants).
• Relapse: Relapse and noncompliance are common, even among those who ultimately succeed. In seven of eight courts examined, at least half of all graduates had at least one positive drug test, and many had several positives—usually in the earlier stages of participation. This highlights the value of drug courts according multiple chances to participants experiencing early problems.
• Graduated sanctions: In responding to noncompliance, drug courts apply sanctions, such as writing an essay, observing drug court for several days from the jury box, more frequent court appearances or case management visits, community service, or short jail stays. However, drug courts vary widely in the type and severity of sanctions most frequently used. Across three courts examined in depth (Brooklyn, Queens, and Suffolk), none routinely follow a “graduated sanctions” model, where successive infractions are met with increasingly severe sanctions. Instead, some infractions are always met with a similar sanction response. For example, a warrant or new arrest in Brooklyn nearly always incurs a jail sanction. Also, drug court teams frequently make individualized decisions based on what they believe will be most effective with a particular participant rather than adhering to a rigid schedule of graduated sanctions.
• Achievements beyond substance abuse recovery: Beyond substance abuse recovery, drug
  courts seek to promote further achievements and lifestyle changes in the areas of employment, education, vocational training, housing, and family reunification. Consistent with these goals, across all nine courts examined, graduates were significantly more likely to be employed at graduation than intake. Also, graduates in five of the nine courts were significantly more likely to be in school at graduation than intake.

Conclusion
This study provides strong evidence that drug courts produce lasting changes in their participants, persisting even after the period of active judicial supervision. In general, the study reveals impacts consistent with those detected in other evaluations that covered shorter timeframes and fewer courts. This study also finds that final program status is a critical predictor of subsequent outcomes. Drug court graduates had far lower recidivism rates than comparable defendants not entering the drug court, while drug court failures had similar or, in some courts, higher recidivism rates than the comparison group. Accordingly, future research should seek to pinpoint which policies and practices can help drug courts produce both more graduates and lower recidivism rates. With drug courts demonstrating considerable diversity in their geography, policies, and practices, the next generation of studies should seek to answer why drug courts work and how they can produce positive outcomes for more of their participants.

 

Mental health courts are creating a great deal of discussion and have provoked a surprising variety of responses from stakeholders in the criminal justice system and the mental health system. Here are some of the challenges, questions and tensions under discussion.

 

Use of Jail
Many mental health court practitioners struggle with the issue of whether it is ever appropriate to use jail as a sanction for defendants who fail to take their medications or participate in treatment. In drug court, there’s a certain logic to sending offenders to jail for dirty urine because they’re violating the law—there’s a clear connection between the incarceration and the violation. When a mentally ill defendant stops taking his medications, he may have violated the court’s order but no law has been broken. What kinds of sanctions are appropriate in this case? And apart from appropriateness, there are questions about the effectiveness of jail for offenders with mental illness. For instance, the King County Mental Health Court in Seattle, Washington, tries to avoid using jail sanctions because offenders’ mental condition often deteriorates in jail, making it harder for them to re-engage in treatment upon release (Cayce, 2000). The San Bernardino, California Mental Health Court also seeks to avoid the use of jail, but for a different reason. Interestingly, they found that offenders with mental illness were simply not motivated by the threat of jail. Many regarded a stay in jail as a welcome relief from the difficulties of life in treatment or in the community (Morris, 2000). As a result, San Bernardino has aggressively employed community service sanctions instead.

Beyond Legal Competency
Legal competency statutes and rulings set a very low standard for participation in criminal proceedings. Even if defendants meet the standard for legal competency to stand trial, their mental disorders may impair their abilities to make effective treatment decisions (Grisso & Applebaum, 1998). Given this, what expectations of competency should mental health courts adopt? One approach to this difficult question is offered by King County, which permits defendants to enter treatment for a short period of time pre-plea to stabilize their condition and maximize their ability to make competent decisions about their legal and treatment options.

Treatment Availability/Effectiveness
Mental illnesses are various and complicated. Are certain mental illnesses less susceptible to treatment than others? How do you handle defendants for whom medication simply has no effect? Are there some illnesses for which treatment will have no impact on recidivism? Is there enough “integrated” treatment available for defendants with co-occurring disorders?

Public Safety
A single sensational story about a participant committing a violent act could be enough to sink the entire mental health court movement. Courts must always balance the desire to rehabilitate with the need to preserve public safety. How can mental health courts quickly and effectively assess the public safety risks posed by defendants with mental illness? How reliable are the available risk assessment instruments? How should they be used?

Stigma and Confidentiality
Do mental health courts run the danger of stigmatizing defendants with mental illness? What happens if a defendant decides not to opt in to mental health court and the case is transferred to a conventional court? What information should the new judge and prosecutor receive about that defendant’s mental illness, if any? And would this information have the potential to prejudice the way that the prosecutor and judge treated the defendant in subsequent proceedings? More generally, what kinds of confidentiality protections are appropriate for the information that defendants reveal as part of their involvement with mental health court?

Housing
Many defendants with mental illness are homeless—they need housing in addition to treatment. And the effectiveness of treatment may be seriously compromised without adequate housing (Ades, 2001). How will mental health courts ensure access to housing for those defendants who require it?

Public Benefits
The vast majority of participants in mental health courts will require public benefits—Medicaid, Social Security Insurance or Social Security Disability Insurance—for their subsistence and treatment. These federal benefits are often terminated or suspended when a person is jailed. As a result, when defendants are released, they must re-apply for benefits. It often takes several weeks before benefits applications are processed and payments begin. This leaves many defendants with mental illness in limbo, unable to meet their basic support and health needs (GAINS Center, 1999). What, if anything, can mental health courts do to address this problem?

The Role of the Courts
Many individuals who end up in mental health courts have already been in the mental health system at some point in their lives. What evidence is there that courts can bring about different results? What do they bring to the table that’s unique? Is it simply coercion? Or is it something else? Can courts promote enhanced system integration, bringing together criminal justice, mental health and drug treatment agencies?

Answering these questions will go a long way toward coming to terms with a more fundamental question: Are mental health courts a good thing or a bad thing? This is a question that can only be answered over time, with the help of solid, independent research and more practice on the ground.

While mental health courts have raised difficult legal, ethical, practical and therapeutic concerns, it is important to note that many of these issues are not entirely new. Drug courts, community courts, domestic violence courts and other problem-solving courts have been grappling with these issues for years. And the record has shown that on a local level, many problem-solving courts have managed to figure out answers to thorny issues of confidentiality, proportionality, case targeting and public safety. Mental health courts must figure out how to build on the best of the existing problem-solving courts while formulating new responses to issues that are unique to the mental health field.

Works Cited
Ades, Y. (2001). Interview with Yves Ades, Director, Mental Health Programs, Center for Alternative Sentences and Employment Services, New York, NY.

Cayce, J. (2000). Interview with Hon. James D. Cayce, Presiding Judge of the King County District Court, who planned and presided over the King County Mental Health Court located in Seattle, WA.

GAINS Center (1999). Medicaid Benefits for Jail Detainees with Co-Occurring Mental Health and Substance Use Disorders. Prepared by Sherman, R. Delmar, NY: The National GAINS Center for People with Co-Occurring Disorders in the Criminal Justice System. Available: http://www.prainc.com/gains/publications/medicaid.htm

Grisso, T. & Applebaum, P. (1998). Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals. New York: Oxford University Press.

Morris, P. (2000). Interview with Hon. Patrick Morris of the Superior Court in the City of San Bernadino, California about the Mental Health Comprehensive Offender Umbrella for Release and Treatment program.

 

Today, there are mental health courts in a number of U.S. cities, and many more mental health courts are in the planning stages. A recent study by the Crime and Justice Research Institute documented the practices of the first four mental health courts, highlighting a set of common procedures and goals that typify the mental health court approach.
Based on the success of the drug court model, a handful of jurisdictions across the country have developed specialized courts to address mental illness. Like drug courts, the central goal of mental health courts is to reduce the recidivism of defendants by providing them with court-monitored treatment. The first of these courts opened in June 1997 in Broward County, Florida.

 

Shortly after Broward opened its doors, several other municipalities began to plan mental health courts. Today, there are mental health courts in Seattle and Vancouver, Washington; San Bernardino, Santa Barbara and Santa Clara, California; Brooklyn, New York; Anchorage, Alaska; Marion County, Indiana; St. Louis, Missouri; Akron, Ohio; and Jefferson County, Alabama. A number of other mental health courts are in the planning stages. A recent study by the Crime and Justice Research Institute documented the practices of the first four mental health courts—Broward, King County (Seattle), San Bernardino and Anchorage (Goldkamp & Irons-Guynn, 2000). While each mental health court is unique, this study—and independent research on the other mental health courts—highlighted a set of common procedures and goals that typify the mental health court approach:

Problem Solving
Mental health courts mark an attempt by court systems to address a systemic problem, taking a critical look at the issues that defendants with mental illness pose for the courts and crafting a new set of responses. Put simply, these courts are not satisfied with continuing with business as usual—standard case processing or out-sourcing the solution to some other agency. (Finkelstein & Brawley, 1997).

Public Safety
By responding to widespread concerns about how courts deal with defendants with mental illness, mental health courts attempt to shore up public trust and confidence in the justice system. Indeed, many mental health courts have been created in response to a specific local crisis involving mentally ill defendants—for instance, the murder of a retired firefighter in Seattle, Washington by a person with mental illness (Goldkamp & Irons-Guynn, 2000).

Therapeutic Jurisprudence
In linking defendants with mental illness to treatment alternatives, many mental health courts see themselves as practicing “therapeutic jurisprudence” (Lurigio et al., 2001; Lerner-Wren, 2001; Wexler & Winnick, 1996). In one way or another, mental health courts are testing the extent to which the law can be a therapeutic agent—a social force producing positive life changes for defendants.

Screening 
Mental health courts develop new systems to identify defendants with mental illness. The point in the criminal justice process at which this intervention occurs varies by jurisdiction. Usually, identification takes place within 24 hours of arrest while defendants are still in custody. The primary sources of identification are jail staff, family members and defense attorneys.

Eligibility Criteria
After identification, each court has created eligibility criteria that target a certain type of defendant. Almost all programs require that defendants have symptoms of severe mental illness and face non-violent, misdemeanor charges. San Bernardino’s court has handled some non-violent felonies on a case-by-case basis. In general, mental health courts specify that the defendants’ mental illnesses must be “Axis I disorders” as designated in the Diagnostic Statistics Manual IV (American Psychiatric Association, 1994).

Dedicated Staff
Each mental health court has a dedicated judge and some additional specialized staff. The specialized staff are usually mental health clinicians who screen cases for eligibility, prepare treatment plans, and report to the judge on defendants’ progress in treatment. In some cases, this staff is hired by the court system using new funding sources. In other cases, this staff is assigned from a collaborative government agency or from a local treatment provider. In general, mental health courts have been planned and overseen by interdisciplinary teams composed of a variety of criminal justice and behavioral health stakeholders. For instance, the Santa Clara Mental Health Court “team” includes the judge, district attorney, public defender, and mental health caseworkers (Santa Clara Bar Association, 2001). The team meets to discuss every case, with each representative providing input from their unique institutional perspective.

Non-Traditional Roles
Mental health courts—like drug courts before them—have altered the dynamics of the courtroom, including, at times, certain features of the adversarial process. For example, in some courts defenders and prosecutors come together to discuss their common goals for each defendant. Mental health courts may engage judges in unfamiliar roles as well, asking them to convene meetings and broker relationships with service providers.

Voluntariness
Participation in mental health court is voluntary—defendants must affirmatively “opt-in” to receive treatment. For instance, the King County Mental Health Court in Washington gives defendants two weeks in a treatment placement to help them decide whether to participate in the program or not (during this time, their attorneys can also investigate the strength of the case against their client) (Goldkamp & Irons-Guynn, 2000).

Plea Structure
Once a defendant opts into a mental health court, one of two things happens: either prosecution is “frozen” and charges are dropped after the defendant successfully completes treatment, or a plea is taken and later vacated (or charges reduced) after treatment is completed. All of the mental health courts require a longer period of time in treatment than the defendant would have served in jail or prison if they had plead guilty to the crime charged, and most courts require participating defendants to spend a minimum of one year in treatment. The rationale behind this is two-fold. First, mandated treatment involves many fewer restrictions than being incarcerated (many defendants are even released to their own residences). Second, mental health courts are willing to invest in treatment only if there is real promise of reducing symptom severity (and thereby reducing recidivism). Experience indicates that it takes at least a year to successfully engage people with mental illness in treatment. Accordingly, many mental health courts reserve the right to extend offenders’ period of treatment in the event of non-compliance.

Judicial Monitoring
Mental health courts require participants to return frequently to court to enable the judge to monitor the progress of treatment. Court appearances are made less frequently as participants demonstrate consistent compliance over a sustained period of time.

System Integration
Mental health courts seek to promote reform with partners outside of the courthouse as well as within. For instance, mental health courts have encouraged mental health and drug treatment providers to come together to improve service delivery for offenders.

Works Cited
American Psychiatric Association (1994). Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Washington, D.C.

Finkelstein, H. & Brawley, D. (1997). Introduction. Broward County Mental Health Court Status Report, 1(1). Ft. Lauderdale, FL: Broward County Public Defender. (Both authors are Chief Assistant Public Defenders). Available: http://www.browarddefender.com/mhealth/volume_i_mental_health.htm#Vol I, No. 1

Goldkamp, J. & Irons-Guynn, S. (2000). Judicial Strategies for the Mentally Ill in the Criminal Caseload: Mental Health Courts in Fort Lauderdale, Seattle, San Bernardino, and Anchorage. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Drug Courts Program Office. Available: http://www.ncjrs.org/html/bja/mentalhealth/contents.html

Lerner-Wren, G. (2001). Letter from the Mental Health Court Judge. Third Annual Mental Health Court Progress Report. Ft. Lauderdale, FL: 17th Judicial Circuit, Broward County, Florida. Available: http://www.co.broward.fl.us/ojss/jsi00500.html

Lurigio, A., Watson, A., Luchins, D., Hanrahan, P. (2001). Therapeutic Jurisprudence in Action: Specialized Courts and the Mentally Ill. Judicature, 84(4), 184-189.

Santa Clara Bar Association (2001). Time for a Change: The Mental Health Court of the County of Santa Clara (Press Release of April 3, 2001) reprinted in Santa Clara Bar Association Legal Links. Santa Clara, CA: Superior Court of California, County of Santa Clara.

 

In order to sanction offenders who commit certain low-level offenses and educate them about the effects of their actions, planners at Midtown Community Court came up with the idea of Community Impact Panels: mediated sessions in which community members meet with offenders to discuss the impact of their offenses on the community.

 

Problem
The Midtown Community Court was established in 1993 to combat quality-of-life offenses such as shoplifting, turnstile jumping and graffiti. The Court, the first of its kind in the nation, is based on the philosophy that meaningful and visible sanctions for low-level crimes, combined with access to services, can restore a community's sense of safety as well as prevent future offending. Typical sanctions include one to 10 days of community service, such as painting over graffiti or cleaning up local parks. Services, which can either be mandated by the court or accessed voluntarily, include on-site counseling, drug treatment and job training.

For some offenses, however, Court planners had difficulty finding a sanction to match the crime. Some low-level offenses, such as public drinking or public urination, were too minor to warrant a full day of community service, but too serious to let go with a fine. In addition to calibrating the punishment with the crime, the Court wanted to find a way to make the sanction meaningful to both the community and the offender.

"For a lot of [low-level] offenders, paying a fine is too easy," says Judge Eileen Koretz, who presides at the Midtown Community Court. "They just pay and get out. They don't really understand why the police are bothering to pick them up; that police don't just arrest people, they respond to the community's concerns."

Solution
In order to sanction offenders who commit certain low-level offenses and educate them about the effects of their actions, court planners came up with the idea of Community Impact Panels. This sanction requires more of the offender than a fine, but is not as time-consuming as community service, thus matching the seriousness of the crime to its punishment. Community Impact Panels are mediated sessions in which community members meet with offenders to discuss the impact of their offenses on the community. The goal is to show offenders that their crimes harm the neighborhood and to keep them from offending again.

Each Community Impact Panel is composed of community representatives, a facilitator, and offenders. The community representatives are volunteers, recruited by the Court from the neighborhood. They include people who live and work in the area: merchants, citizens, social service providers, the police and representatives of the faith community. The facilitator is a trained mediator. The role of the mediator is to help the two groups stay focused and maintain respect for each other over the course of the discussion.

Planners decided that it was vital for participation in the Panels to be mandatory for offenders. Compelling offenders of low-level offenses to go to Court and attend an Impact Panel is a form of punishment that expresses the community's disapproval.

Implementation
In January 1999, with funding from the U.S. Department of Justice, Community Impact Panels made their formal debut as a sanction at the Court. In the courtroom, the judge makes a determination about whether an Impact Panel is an appropriate sanction for a given offender as part of the standard plea bargain process. Typically, those linked to the Impact Panels are offenders with no previous record. If sanctioned, participation in the Impact Panels is mandatory.

On the day the Impact Panel has been scheduled, offenders receive a basic, one-hour training and orientation from a Court mediator. Community members also receive a one-hour training to help them prepare for the unpredictable nature of the conversations. In addition to explaining the basic purpose of the Impact Panels, the Court provides volunteers with tips for defusing anger and using non-judgmental language.

The Impact Panel discussion lasts one hour and usually includes four offenders, four community members and a Court mediator. All of the participants sit together around a table, with community members on one side and offenders on the other. The mediator initiates the discussion and then facilitates, making sure that everyone is allowed an opportunity to share his or her perspective. Discussion often covers a wide range of issues, from the causes of the crimes committed to possible solutions. Brief surveys are administered both before and after Impact Panels to gauge their effectiveness. After offenders complete the requirement, their cases are dismissed after six months so long as they aren't re-arrested.

Challenges
Finding the appropriate tone: Panel participation is intended to be a positive experience for everyone involved, which is why skilled facilitators are essential to ensure that both sides maintain an attitude of respect. "If what you want is respect for your neighborhood, you can help that process out by giving some respect up front," says Stuart Sears, a mediator who originally helped coordinate the project.

Sears, who facilitated many of the Panels and who also helped attract community volunteers, learned that offenders say more when the process is not overly judgmental of them. Community representatives are also uncomfortable with the process when they feel they need to judge the offenders. This distinction had not been made clear at one early Panel in which all the offenders were johns. "They felt they were being asked to judge the people sitting across the table from them, and they reacted against that," Sears recalls. "That really made us rethink what we were doing in terms of training participants. We don't want the community representatives to do something that two hours later they feel badly about."

Integrating police into the panel: Soon after the program began, the Police Department representative on the Court's advisory board suggested that a police officer would be able to contribute an important perspective to the conversation, allowing offenders and community members to understand how police make decisions related to the topic at hand. Others feared, however, that a police officer would intimidate offenders and inhibit their candor. And some also worried that a police officer's presence would be a distraction, turning the Panel into a cop-bashing session. As it turned out, the police perspective was integrated into the sessions without sabotaging the spirit of trust and honesty or diverting conversation.

Recruiting volunteers: Panels are sometimes difficult to arrange. The Court tries not to use community members more than once or twice in order to keep the voices fresh and to involve over time as many community members as possible. Finding new community members and scheduling the Impact Panels at a mutually convenient time, however, kept the number of Panels relatively small—16 over the course of the programs's first year, involving 44 community members and 59 defendants. This represents only a small fraction of the Court's annual caseload of over 15,000 cases. Recruiting community members has gotten a little easier over time as word of mouth about the Panels has grown.

Results
Nearly 70 percent of participants—both offenders and community members—reported that the Impact Panels were "worthwhile" or "very worthwhile." All 59 offenders surveyed answered affirmatively when asked whether they felt the community members had treated them with respect. When asked what they learned from the process, answers included: "It enlightened me that people live in this area," "It drives home the point of personal responsibility very effectively," and "I learned that specific acts can have a ripple effect." These responses are particularly significant given the offenders' attitudes toward their offenses prior to the Panels: 60 percent had said that they thought their actions were "not harmful."

As for community participants, 96 percent felt that the Impact Panels had given them the opportunity to present their point of view. And 84 percent felt that the offenders who participated had learned that their actions had a negative effect on the surrounding community. This response was typical: "It's an opportunity for the offenders to see the faces of the people they have affected. It makes it real."