Have Problem Solving Courts Changed the Practice of Law?

Abstract

Drug courts started thirty years ago in the United States. The introduction of these courts brought high hopes that they would refocus our criminal legal system to therapeutic and rehabilitative methods while moving away from an otherwise largely punitive and punishment-oriented approach. Has this happened? Has the problem-solving court movement brought widespread change to how criminal cases are processed and how criminal lawyers, both prosecutors and defense lawyers, approach the practice of law? Have these courts actually been a “monumental change?” The simple answer is no. These courts have changed how some defendants are treated some of the time. But, the numbers impacted by these courts, even as the number of these courts has grown dramatically, remains small. And, the rehabilitative approach within these courts has not led to changes in how other courts work within the larger criminal legal system. Problem-solving courts have remained, for the most part, in their own silo while other courts have continued business as usual focusing on punishment, not rehabilitation.

This article will start with a discussion of mass incarceration and offer some reasons why problem-solving courts did not prevent, or lessen, mass incarceration. Next this article will discuss how problem-solving courts work, focusing on the roles of the professionals, the judges and lawyers, within these courts. This article will then consider the impact, or lack of impact that these courts have had on how the larger criminal legal system works. Finally, this article will suggest five key things that problem-solving courts do that would result in “monumental change” if more widely adopted by mainstream criminal courts.

Keywords: Criminal Procedure, Drug Courts, Problem-Solving Courts, Therapeutic Justice, Criminal Justice Reform, Veterans Court