Chief Administrative Judge Jonathan Lippman gives keynote address at Fordham Law School symposium.
The following are the remarks of New York State Chief Administrative Judge Jonathan Lippman delivered at Fordham Law School on Oct. 13, 2006.
Good afternoon. I want to thank Dean Treanor and John Feerick for this wonderful opportunity to be a part of the Center’s first symposium. We are very fortunate in New York to have a law school so clearly committed to promoting the public good and to training lawyers to serve the public interest.
I couldn’t be more excited about the creation of the new Feerick Center for Social Justice and Dispute Resolution. A single phrase caught my eye in the press release announcing the new Center. In it, Dean Feerick said that the Center had, and I quote, “great potential for good works.” I like to think that we in the New York State Court System have this same potential. The challenge we face every day is how best to fulfill this potential in the face of enormous obstacles.
As the Chief Administrative Judge responsible for overseeing a $2.3 billion organization that handles four million new cases each and every year, there is never a shortage of compelling challenges to be addressed. What I want to talk about today are our efforts to re-engineer the courts in New York. And I want to highlight some of the intellectual links that connect my world, the world of the New York Court system, to the world of the Feerick Center, the world of alternative dispute resolution. There is a great deal of overlap between the ADR movement and some of the “problem-solving justice” reforms that New York State Chief Judge Judith S. Kaye and I have championed over the past decade, and which provide innovative solutions for litigants in our civil and criminal courts.
The problems and challenges that we face today in using ADR methods transcend the boundaries between criminal and civil matters in a New York court system that looks to effective outcomes for people rather than merely counting filings and dispositions. Indeed, we have long used ADR in a variety of ways, including:
- our community dispute resolution centers, which in the last fiscal year resolved 36,000 primarily civil and family cases [1]
- court-annexed ADR in our small claims courts
- court-annexed ADR in the Commercial Division of the Supreme Court
- statewide attorney-client fee dispute resolution program, and
- mediation for parenting disputes in Family Courts throughout the State and in matrimonial matters
Lessons from ADR
It might seem ironic that the court system would look to the world of ADR for lessons, given that ADR is premised on some fundamental critiques of traditional court processes—too lengthy, too expensive and, dare I say it, too adversarial and legalistic. However, it’s true that the New York courts have taken to heart some very basic ADR principles,[2] such as: 1) a commitment to rethinking business as usual; 2) an understanding of the importance of cases that are often dismissed as “minor”; and, 3) an emphasis on restoring public trust and engaging citizens in doing justice. I'd like to take just a minute to explore each of these.
Rethinking Business As Usual
The most significant contribution that ADR has made to the courts is a simple one—driving home that change is in fact possible. Courts are, at heart, conservative institutions that rely on the slow and painstaking accumulation of precedent to guide decision making, and on an adversarial contest between two advocates who argue in front of an objective third party. These approaches make good sense and are effective in many contexts. But not always. Not for a dispute between neighbors, or a juvenile accused of vandalism, or a small claims case between two local businesses.
The ADR movement got us in the mode of asking a very basic question: Why can't we test new approaches to make justice swifter, more comprehensible and more meaningful? Well, this is a question that we now ask ourselves as part of our standard operating procedure. It doesn't mean that we're giving license to judges to abandon the Constitution or to make up the law. But it does mean that the courts can and should adapt to changing times and conditions on the ground. It means that we should always ask ourselves if there are better, simpler and faster ways to achieve our goals. All of this is straight out of the ADR playbook.
So-called "minor" cases
Another lesson we have learned from ADR is that there’s no such thing as a minor case. Many ADR programs were created for the very reason that courts dealing with overwhelming caseloads were simply unable to pay enough attention to cases involving neighbors, relatives and acquaintances—charges of harrassment, minor assaults, business disputes and the like. The unintentional message sent to the public was that these kinds of cases didn't matter. But of course we know that they do matter—they matter a lot to the people and the communities who bear the brunt of these offenses.
Public Trust
At the end of the day, courts exist to serve the public. Unfortunately, we’ve seen a massive erosion of public trust in justice over the past generation. ADR advocates were among the first to respond to this growing public dissatisfaction. Their search for new ways of resolving disputes, as well as their efforts to engage local residents as mediators, community board members and volunteers, were all driven by a desire to reconnect the justice system to the public and improve the delivery of justice.
Problem-Solving Justice
We have actively sought to translate the lessons of the ADR movement into new court processes that better serve the public.[3] Chief Judge Kaye, who has made New York the national leader in this regard, has named this effort “problem-solving justice.” What is problem-solving justice? Not surprisingly, I think the concept was best articulated by Chief Judge Kaye when she said:
“Outcomes—not just process and precedents—matter. Protecting the rights of an addicted mother is important. So is protecting her children and getting her off drugs.”
In other words, it’s not that process and precedent don't matter. But judges and lawyers should see the forest for the trees. Going to court shouldn't be a series of empty procedural gestures—a lot of sound and fury that achieves nothing lasting or meaningful in terms of solving the problems of victims, defendants and crime-plagued communities.
This is the central insight of problem solving justice. And it is one that many of us working in the courts arrived at the hard way, after years of dealing with the fallout from too many meaningless court appearances and dispositions —dispositions that accomplished little of lasting value, because so much court activity was being driven by people who were addicted, mentally ill, homeless or suffering from other difficulties.
Midtown Community Court
New York’s commitment to problem solving justice dates back to 1993—not coincidentally the year Judith Kaye became Chief Judge—with the creation of the Midtown Community Court, which quickly became the flagship of the early problem solving movement.
In the past, judges confronting drug possession, prostitution, shoplifting and vandalism were forced to choose between a few days of jail time or nothing at all—sentences that failed to impress upon the victim, the community or the defendant that these offenses were being taken seriously by the justice system. By contrast, Midtown ushered in a new paradigm that combined punishment with help by swiftly sentencing these offenders to pay back the neighborhood they harmed through visible community service projects like sweeping streets, painting over graffiti and cleaning local parks. At the same time, offenders were provided with on-site services—drug treatment, mental health counseling, GED classes, job training—that might help them avoid recidivism and all kinds of litigation in our family, housing and other civil courts that eventually results from lives and families that are broken apart by virtue of underlying dysfunctions like addiction. This double-barreled approach—visible restitution combined with a helping hand—quickly made a positive impact in the Midtown area.
Red Hook Community Justice Center
Given the results, it was only natural that we sought to test the community court idea in another setting. We chose Red Hook, Brooklyn—about as far removed from Times Square as you can get in New York City, a physically isolated neighborhood dominated by one of New York’s oldest public housing developments. And we went to the same team that developed the Midtown Community Court—our independent research and development arm, the Center for Court Innovation.
The Red Hook Community Justice Center, which opened in 2000, works closely with community residents, businesses and religious and civic institutions to identify and focus on the problems of greatest concern to their neighborhood—in this case, drugs, housing and juvenile delinquency. The goal is to offer a multidisciplinary, coordinated approach to the community’s problems, with a single judge hearing neighborhood cases that ordinarily would have been heard in different civil and criminal courts.
Red Hook is nothing less than a grand experiment that tests the extent to which a court can engage residents in solving their own problems and serve as the catalyst for an entire community’s revitalization. As anyone who has recently set foot in Red Hook can attest, the neighborhood is a much safer place than it was back in the late 1990s. Once a retail wasteland, Red Hook is starting to enjoy the kinds of services—restaurants, coffee shops, supermarkets—that everyone else takes for granted.
The Midtown and Red Hook stories have attracted the attention of justice innovators across the country and around the globe. If imitation is the sincerest form of flattery, consider that our community courts have been replicated in dozens of cities in the US and the United Kingdom, Canada, South Africa, Australia and Ireland, among others.
While this is impressive, I’m just as proud of the local efforts to adapt the Midtown and Red Hook model—from Babylon, Long Island, to Syracuse and back down to Harlem, jurisdictions across the State are attempting to implement elements of the community court approach.
Harlem Community Justice Center
The Harlem Community Justice Center is a multi-jurisdictional civil and family court that focuses on youth crime, landlord-tenant disputes, and the challenges faced by parolees in the low-income areas of East and Central Harlem. The Justice Center tries to solve housing conflicts before they escalate into litigation by linking landlords and tenants to mediation, benefits assistance, social services and loan-assistance programs. The community setting encourages more informed decision making by the judge as he or she develops an understanding of the neighborhood's problem areas and eyesores.
The Justice Center works intensively with young people, intervening at the first signs of delinquent behavior to avoid further offending by connecting young nonviolent offenders to drug treatment, counseling and education and nontraditional services like parent-teen mediation, family counseling, mentoring, career training and youth courts.[4]
Babylon Community Court
This past June, we announced the opening of the Babylon Community Court, in Suffolk County, Long Island. The project seeks to move the community court approach first pioneered in urban areas to a suburban jurisdiction. The court handles all quality-of-life cases, both civil and criminal, brought by the Town of Babylon. A single judge presides over the court, which is dedicated to handling violations of town ordinances that affect the quality of life of local residents in many suburban communities: cases involving nuisance properties, such as untended yards and abandoned cars; and violations of zoning restrictions, such as unlicensed subdivisions of single family homes and businesses operating out of residential locations. The Babylon Community Court has the potential to be a national model for how to respond to the kinds of blighted, nuisance properties that mar too many neighborhoods across the country.
As you may have gathered, all of our community courts make extensive use of ADR. Each one has an active on-site mediation program that handles hundreds of disputes each year involving noise, landlord-tenant, families and small claims.
Putting Problem Solving Justice in Context
Let me take a moment here to put problem solving courts in greater context. Problem solving justice is about modifying court processes to fit the problems that are driving the activity bringing cases into our different courts. It’s about courts putting the individual front and center, and then fashioning individualized responses designed to change future behavior. The process and rules are still there, but they form the context, not the focus, of the proceeding. In the problem solving model, the judge is not just a detached and distant arbiter who manages the process and then makes a final decision or pronounces guilt or innocence and/or imposes a sentence. Rather, the judge is a proactive, hands-on agent for change who views his or her role as an opportunity for the entire justice system to intervene and not only punish the individual but, just as critically, achieve a better outcome for that litigant and his family, and for our communities and public safety.
There is a danger when talking about problem solving courts that the uninitiated will perceive them to be doing social services work—unbecoming for courts of law. Let’s be clear: the reason these courts work so well is because they emphasize offender accountability and compliance with court orders. Less adversarial? Yes. Re-thinking and re-engineering the way we do business to better serve the public? Yes. Social Work? No.
Offenders’ participation in drug treatment and other mandated services is rigorously monitored by the judge through regular court appearances, and noncompliance is punished swiftly to reinforce the importance of meeting the conditions set by the court and to drive home notions of individual responsibility. Problem solving courts do help people —that is not a bad thing. Problem solving courts do facilitate social services for people who need them—that is not a bad thing. And problem solving courts do change the traditionally passive role of the judge to be more proactive and engaged with the people appearing in their courts—and that is proving to be a very wise thing.
So far, with over 13,000 offenders having graduated from our Drug Courts and another 7,500 presently enrolled,[5] it’s clear that drug courts work much better and cost far less than traditional approaches. Research tells us that offenders in court-ordered drug treatment succeed at twice the rate of those who voluntarily enter treatment. This means that we don’t have to waste scarce resources prosecuting, defending and incarcerating the same people over and over again (in fact one Oregon study has concluded that every dollar we invest in drug treatment courts ultimately yields ten dollars in savings from reduced incarceration, victimization and crime.)[6] And It means that our communities and streets are safer.
Other of Our Problem Solving Initiatives Include:
Mental Health Courts: The well-documented closings of so many mental hospitals in the 1980s and the release of thousands of patients into the general population have created new burdens for the courts in the form of thousands of mentally-ill offenders. As lawyers and judges, what are we to do with these defendants? Remain wedded to a tradition-bound system that just continues to lock them up? And what happens when they are released without having gotten effective treatment? They get recycled right back into the system. Everyone loses.
Beginning in Brooklyn with a pilot launched by the Center for Court Innovation, we have attempted to re-engineer how courts respond to mental illness by linking defendants with serious and persistent mental illnesses—schizophrenia, bipolar disorder—to long-term treatment as an alternative to incarceration.
While our mental health courts are still new, preliminary results from Brooklyn suggest that participants experience fewer hospitalizations, reduced substance abuse and, most importantly, fewer re-arrests.
Domestic Violence: Domestic violence cases are among the most difficult, heart-wrenching cases that any judge handles. The chronic nature of abuse, the targeted victim, the realities of children and family finances....it is an extremely complicated web to untangle. In response, we have opened a series of what we call “integrated domestic violence courts” in an effort to streamline the court process. Rather than send domestic violence victims to several different trial courts—Family Court for child custody/visitation, Criminal Court for assault, Supreme Court for divorce—we have grouped all of these cases together before a single judge. Our integrated courts offer a coordinated response, ensuring that no one falls between the cracks.
Child Welfare Permanency Planning Mediation: Like domestic violence cases, child welfare cases are extremely complex, raising difficult issues of child safety and family preservation. Research has repeatedly found that children in foster care are highly vulnerable to a whole host of negative life outcomes, including serious long-term health problems and developmental delays. Since 2003, the court system’s ADR Office and our Permanent Judicial Commission on Justice for Children have been working with the State Office of Children and Family Services to pilot child permanency mediation throughout New York City and many other areas of the State. We in the courts have learned that many child protection issues can be resolved more effectively in a non-adversarial atmosphere that stresses good communication and working relationships among all the parties.[7]
Lessons
One of the most interesting and significant lessons of the problem-solving movement relates to how the judicial role and mind set have changed. Judges and lawyers are trained to respect precedent and tradition and to regard the adversarial system as the great engine of truth, so it has not always been easy to convince them that the structures of the justice system and longstanding judicial processes had to be revamped. Consider what problem solving judges are asked to do:
- Look at each case and each litigant as a problem to be solved and not just another case to be processed
- Look beyond the immediate case in front of them and think about the big picture and larger patterns of behavior.
- Serve as conveners who forge partnerships with social service providers and bring them into the process in the service of achieving better outcomes
- Serve as brokers who coordinate relationships among stake holders
- Stay involved with each case over the long haul and use their judicial authority to promote compliance with treatment plans and strong supervision of the individuals involved.
Lawyers on both sides of the aisle have had to assume new roles as well. This may sound revolutionary, but problem-solving courts actually require that all parts of the system work together on certain cases, agreeing on who is eligible to participate in the court, developing mutually agreeable systems of sanctions and rewards, and figuring out the best way to encourage offenders to succeed in treatment. In the process, we have changed how many lawyers measure success—not by the number of convictions or acquittals, or by which side wins or loses, but whether they were able to change behavior and improve public safety.
This recasting is not without dangers, particularly as to the judicial role. Some see the specter of well-meaning, but misguided, “touchy-feely” judges intent on pursuing rehabilitation and their own personal conceptions of social justice at the expense of punishment and accountability. On the other side of the spectrum is the fear that, without the constraints of the adversarial system, paternalistic judges will use their enormous powers to engage in intrusive and lengthy interventions and effectively manage the lives of poor and powerless citizens for their own good.
We must always be conscious of these concerns, but the bottom line is that these courts are proving to be both effective and fair, and they are using the skills of lawyers and judges in ways that are meaningful and positive for our society.
Conclusion
I am honored by the invitation to speak at this, the first symposium sponsored by the Feerick Center for Social Justice and Dispute Resolution. Our society is crying out for more John Feericks, for more lawyers who see themselves as consensus builders, problem solvers, preventive peacemakers and dispute settlers. The legal academy and the legal profession have an obligation to reexamine how lawyers are being trained to deal with the great issues of our time—including crime, poverty and family dysfunction . . . just as we in the courts have begun reexamining how well we are fulfilling our constitutional mission in the face of these plagues of modern-day life. If we are to remain relevant and responsive to the public’s needs and expectations, we have to engage these cases and the societal problems they reflect, with all their complexities and, for us, the nontraditional challenges they present.
The lesson of the problem solving revolution is that the judiciary’s accountability to the public extends beyond counting how many cases we’ve disposed of, and how quickly we’ve processed them. Our communities expect much more from the courts. By helping to solve the problems that we confront in our courthouses, we help to solve the problems we face as a society. Fortunately, with each passing year, the evidence grows stronger that these nontraditional legal and judicial approaches are producing better outcomes and helping to break the cycle of hopelessness that ravages countless lives, families and communities.
Thank you very much.
[1]. Annual Report of the Community Dispute Resolution Centers Program for Fiscal Year 2005-2006.
[2]. Greg Berman and John Feinblatt, Good Courts, at 39-42, The New Press (2005). For those interested in the origins and philosophical underpinnings – as well as future directions -- of the problem solving justice movement, I can recommend no better resource than Good Courts, coauthored by two of the criminal justice entrepreneurs I alluded to: John Feinblatt, New York City Criminal Justice Coordinator and the original Director of our Center for Court Innovation, and his successor at the Center, Greg Berman.
[3]. Problem solving courts also owe a debt to the victim’s movement, which introduced concepts of “restorative justice” or victim-centered responses such as enhancing the safety of crime victims and community restitution programs. The movement’s emphasis on collaborating with multiple justice system stakeholders was also an important foundational principle. At the same time, there also arose a new “broken windows” theory of law enforcement and of dealing with crime which hypothesized that tolerance of so-called petty crime ultimately led to an epidemic of more serious crime because of a societal culture that did not take criminal conduct seriously enough, particularly lower level offenses. These and other innovative approaches that were percolating up in the 1970s and 80s encouraged judges and lawyers to start thinking outside the box of their conventional legal training and to start looking for creative and multidisciplinary alternatives to resolving legal disputes and problems.
[4]. See Michele Sviridoff, David Rottman, Brian Ostrom and Richard Curtis, Dispensing Justice Locally: The Implementation and Effects of the Midtown Community Court (1997).
[5]. Information obtained from the Office of Hon. Judy Harris Kluger, Deputy Chief Administrative Judge for Court Operations and Planning (as of June 2006).
[6]. A growing body of research indicates that treatment, rather than incarceration, is more effective at addressing drug abuse. An investment in drug treatment can save billions of taxpayer dollars a year in prison, health care, child care, transportation, and public safety costs. An analysis of California’s diversion program—which offers treatment instead of prison to nonviolent drug offenders—showed that for each dollar spent, the state enjoyed seven dollars in savings on future costs. A study of Multnomah County, Oregon found that drug court there saved $5,071 per participant per month—more than $1.5 million in annual savings for taxpayers. See NPC Research, Inc., A Detailed Cost Analysis in a Mature Drug Court Setting: A Cost-Benefit Evaluation of the Multnomah County Drug Court (July 2003).
[7]. National Council of Juvenile and Family Court Judges, Introducing Child Permanency Mediation in New York State: Planning and Implementing a Multi-Site Pilot Project (2006), available at www.ncjfcj.org/images/stories/dept/ppcd/pdf/nysmediationbrief.pdf.