John Stuart has been the State Public Defender of Minnesota since 1990. In February 2005, Stuart spoke with the Center for Court Innovation’s Carolyn Turgeon about how problem-solving justice initiatives are playing out in Minnesota.
Some defense attorneys, at least initially, have been reluctant to buy into the problem-solving approach. What convinced you of its value?
I became convinced by seeing the justice system become more and more simple-minded and punitive and destructive. The war on drugs in particular seemed to me not only a bad set of policies, but a bad way of thinking about a public health problem within our country. A war means that the good people are on our side, that the other side is the enemy, and that you take harsh measures to try to get rid of the enemy without really respecting his or her human or civil rights. We went through that in Minnesota. Over the last 20 years our state prison population has quadrupled. We’re the third fastest increasing prison population in the United States. We also have the worst racial disparity in incarceration rates of any of the states, as reported by Human Rights Watch. So I’m attracted to the idea that the courts can put together a strategy to solve a problem rather than just sending somebody off to prison.
As a public defender, do you still have concerns about these courts?
Yes, I do. I worked as a lawyer for kids in juvenile court for 10 years. And I’m concerned that problem-solving courts have a tendency to copy the juvenile court style that didn’t properly respect due process and brought us to where we needed In re: Gault. In particular, I’m critical of courts that consider referrals to treatment or rehabilitation to be a substitute for pre-trial litigation on suppression issues. It seems to me that we’ve recognized that racial profiling is a terrible problem in this country. Certainly it’s amazing that with African-American and European-American drug use rates practically equal, 40 percent of the people who are arrested for drugs in this country are African American.
So now let’s say we have a drug court set up and we tell the folks that were arrested for drugs, people who were racially profiled, “We have a special court to help you and all you have to do is give up your right to challenge the search and seizure that brought you here.” To me that’s very troubling. I’m proud to say that in Minneapolis the drug court lets you litigate your suppression issues. You can come into court, you can go into treatment, you can still continue to make motions, and you can even have a trial while you’re in court-referred drug treatment. We have people regularly getting cases dismissed because of suppression and we have people acquitted in drug court. So the local drug court here in Minneapolis is a problem-solving court and it takes a public health approach to drugs, but it also acts like a court and protects people’s rights at a very high level. I’m real proud of that. I think that that’s how courts are to operate. It would be too bad if we needed somebody like Gerald Gault to take the problem-solving courts up to the U.S. Supreme Court for due process violations.
You’ve twice mentioned the Gault case, which established due process rights in juvenile court. Can you talk a bit about In Re: Gault? How do you see the story as a warning for problem-solving courts?
The story was: Gerald Gault was 14 and he was suspected of making obscene phone calls. So one day his parents came home and he wasn’t there. And there was a note from the sheriff that said, basically, “Dear Mr. and Mrs. Gault, Don’t worry about Gerry. We have taken custody of him and we have turned him over to the Arizona Youth Authority. We’ll take good care of him until he’s 21 years old. He’s been making obscene phone calls. Signed, the Sheriff.”
The Arizona Supreme Court said that that was OK, because the juvenile court in Arizona was trying to help Gerald, and if you’re trying to help Gerald, then you don’t have to worry about giving him a lawyer or a trial or even a written notice of the charges against him. And the U.S. Supreme Court said no, just because you’ve got a special court set up to help somebody doesn’t mean that you can run over somebody’s rights. That’s why if you go to juvenile court now you might see lawyers walking around. You might even see a trial. You might even see someone making motions to suppress evidence. The concern is that drug courts will fall into the same well meaning trap, the attitude that “hey we’re just here to solve problems, isn’t this great?” Particularly in a country that tolerates racial profiling at a very high level, particularly in drug cases. It seems to me that that’s an insidious thing and people need to really keep an eye on how decisions are made about due process in problem-solving courts.
What other concerns do you have?
I’m concerned that sometimes when there’s a special court set up, the court gets cases that wouldn’t even have been charged if it didn’t exist. This is what’s called the net-widening effect. If you talk to any of the old-time practitioners in juvenile court, for instance, they’ll say, “Look, in the old days if a kid did such and such at school the principal would call their parents. Now, the principal calls the cops and they end up being petitioned into juvenile court and everybody has to get a lawyer and it takes months.” That’s not necessarily an improvement, when behavior that used to be taken care of in the community is now treated as a court matter.
Are you doing anything in Minnesota to prevent this net-widening effect?
I think we need to have good dialogue with the people creating new approaches. Let me give you an example. There’s a neighborhood that comes to community court that is concerned about people urinating in the alley. There are several bars around and people come out and urinate in the alley. So the court sets up a procedure where people who get caught doing this can have their cases dismissed if they go to a series of community meetings and write letters about how they understand how bad it was to urinate in the alley. And that sounds like a pretty good response. The only problem is that the traditional sentence for urinating in the alley is to have your case dismissed immediately. So if I had a client in one of these courts I could say, “Well Joe, how about this, you can write a letter of apology and you can go to several constructive meetings that will help you understand how the community feels about your conduct, or we can just get your case dismissed right now and you can go home. Which do you want to do?”
I use this illustration because to me it’s an example of net-widening. It’s an example of the “broken windows” theory of law enforcement being taken to the point where constructive community-based solutions are helping to solve problems the courts have traditionally considered beneath their notice. And it creates a point where it’s not worth it for the offender to participate. Now if they were going to have community mediation and letters of apology as a consequence for guys breaking into parked cars, that’s at a level where a person might find the traditional approach punitive enough to make it seem worthwhile to the offender to get involved in problem solving.
What else is on the horizon as far as the drug court model is concerned in Minnesota?
We’re just on the threshold of developing family substance abuse courts here. We have a lot of cases of children in need of protection where the real problem is that the parents are using alcohol and drugs. The traditional approach has been to send mom off to treatment over at the mom treatment center and send dad off to treatment at the dad treatment center and put the child in a foster home. Hopefully we can create something here where people will work with the family together, so that you’ll end up with a stronger family rather than a broken one.
Another thing that interests me is that our rural areas have huge problems with methamphetamines. Prisons and jails are really not very effective in dealing with methamphetamine offenders, who have a ton of health problems ranging from mental health to dental health and everything in between. So I’m interested in rural courts. I think this is going to be the story you’ll see here in Minnesota over the next five years: rural courts working with meth offenders in a more health-oriented way and with less of an emphasis on punishment. I hope so, anyway; I think that would be really constructive. I think what they’re doing now is not working very well. I sat in court in Northern Minnesota with a judge about a month ago who had a meth addict on probation. The guy came back with a dirty urinanalysis and the judge had told him that if he came back with a dirty urine analysis he was going to put him in jail for six months and that’s what happened. But the judge was frustrated. For one thing, the guy had to go to a jail 200 miles away because the local jail was already full of people with drug problems. Second, sending the man to jail was much more expensive than putting him through a treatment program. And third, the judge knew full well that six months in jail was not going to solve this guy’s problem in any way. So it seems that that traditional court system is on the verge of crying out to start doing something different.
Do you think problem-solving principles could be applied effectively in other court settings?
I see more restorative justice measures being brought into traffic court. And let me give you an example of a very common situation we have. We have people that get stopped for a moving violation and the sentence is always pay a fine and if you don’t pay the fine your license gets suspended, and then you get caught driving after suspension which is a more serious crime, you can be sent to jail. Pretty soon the person who’s living on the edge of poverty is just spiraling down deeper and deeper. They end up losing a job or losing housing or having their license actually revoked or canceled. And really, what would have helped—and some of the courts in Southern Minnesota are working on pilot projects to address this right now—would be a diversion program where a person would take some time to do what they need to do to get their license valid again. And perhaps do some community service instead of being punished with more fines. Some of these folks get so many fines piled up for this and that in traffic court that you might as well tie concrete blocks on them and throw them into the lake. It’s just not going to help them or their families to succeed.
We also have a number of immigrant cultures in Minnesota where people have trouble with the language issues that are involved with getting a driver’s license. So it’s been very constructive that some of these rural courts have been able to run multi-lingual driver’s license diversion programs as an alternative to just slamming these folks with more and more fines.
We have a judge who’s been a big advocate of something in DWI cases called staggered sentencing, where you serve a portion of your sentence and then you come back to court for a review, to see if you’re maintaining sobriety and staying out of trouble and so on. That’s kind of a crossbreed between traditional traffic court and problem-solving traffic court. So I’m hopeful that these kinds of approaches will take hold.
What advice can you give to other defenders interested in developing or participating in problem-solving courts?
I’d say that it’s something that is well worth getting involved with as an alternative to destructive courts or problem-creating courts that just slam the client over and over again with jail or fines or more and more punishment. Problem-solving courts offer the possibility to break the cycle. They are very worthwhile in that respect and very worthwhile in helping the public defender be more community-based and understand the issues that actually affect people in that community. On the other hand, there’s a need to be vigilant about issues of due process and fairness, so I guess what I recommend is critical support of problem-solving courts. We should support them, but we should reserve the right to be critical.