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Problem-Solving Courts and the Defense Function: The Wisconsin Experience

24 Pages Posted: 13 Jan 2011 Last revised: 1 Feb 2011

Ben Kempinen

University of Wisconsin Law School

Date Written: January 12, 2011


Problem-solving courts have emerged as one of the fastest growing innovations in the criminal justice system. Their growth has not been without controversy, given their dramatic departure from a traditional adversary model in favor of a collaborative approach in dealing with offenders with serious alcohol, substance abuse, or mental health issues. The most outspoken criticism of this approach has come from the defense bar. This paper suggests much of the criticism is misplaced, and, that if care is exercised in separating the roles that defense counsel play in communities with problem-solving courts the promise of this approach for appropriate offenders can be realized without compromising the core duties that counsel owes his client. The template proposed here for reconciling these conflicting interests is based in large part on the work and experiences of shareholders in Wisconsin problem-solving courts. It is further suggested that the proposed ABA Standards for the Defense Function fail to address most, if not all, of the unique defense function issues presented by the problem-solving court model.

Keywords: defense function, problem-solving courts, drug courts

JEL Classification: K14

Suggested Citation

Kempinen, Ben, Problem-Solving Courts and the Defense Function: The Wisconsin Experience (January 12, 2011). Hastings Law Journal, Vol. 62, No. 5, 2011; Univ. of Wisconsin Legal Studies Research Paper No. 1149. Available at SSRN:

Ben Kempinen (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States
608-262-7908 (Phone)

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