Could Specialized Criminal Courts Help Contain the Crises of Overcriminalization and Overincarceration?

Abstract

In contrast to the existing scholarly commentary on specialized criminal courts, which is largely trapped in the mode of advocacy — alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts — this article introduces an analytic framework and critical theoretical account of four contending criminal law reformist models at work in specialized criminal courts. These four criminal law reformist models include:

(1) a therapeutic jurisprudence model,

(2) a judicial monitoring model,

(3) an order maintenance model, and

(4) a decarceration model.

Based on a multi-method approach consisting of site visits, and an analysis of archived interviews, the courts’ promotional materials, ongoing empirical monitoring of the courts, and the legal academic and sociological literature on the courts, the author demonstrates how specialized criminal courts, adopting features associated with what she calls a decarceration model, may enable significant transformative change in U.S. criminal law. But if configured primarily in accord with the first three models above, these courts threaten to produce a set of undesirable outcomes — expanding criminal surveillance and possibly even increasing incarceration — despite opposite intended effects.

Keywords: therapeutic jurisprudence, judicial monitoring. order maintenance, decarceration, overcriminalization, overincarceration

JEL Classification: K00, K30, K39