When Good Intentions are Not Enough: Problem-Solving Courts and the Impending Crisis of Legitimacy

63 Pages Posted: 27 Apr 2005

See all articles by Timothy Casey

Timothy Casey

California Western School of Law

Abstract

Nearly 1700 "problem-solving courts" are currently in planning or operation in the United States. These specialized, alternative courts form at intersections of criminal justice and social policy. While drug courts comprise an overwhelming majority of these courts, specialized courts also address issues of mental health and domestic violence. These courts, collectively known as problem solving courts, share a central principle: endorsement of the use of judicial power to coerce various programs of treatment.

The problem solving courts represent a dramatic change in the function of the criminal courts, incorporating an experimentalist theory of governance, where evolving standards, continuous monitoring and collaboration replace existing structures. The procedural due process protections accorded to criminal defendants and traditional barriers to the use of coercion are eliminated, as the adversarial process is abandoned in favor of a collaborative endeavor involving the judge, prosecutor, defense attorney, probation officer, treatment provider and defendant. Significantly, the judge becomes part of the treatment team, rendering decisions not based on law or fact, but on a program of clinical treatment.

What happens when a judge changes from the traditional role of neutral arbiter to a new role as active participant in an ongoing process? Experimentalist governance offers an attractive and pragmatic solution to vexing social problems; when applied to the criminal justice system, legitimacy becomes critical to both the acceptance and the success of institutional reform. This paper describes the problem-solving court model, outlines the experimentalist features, and notes the similarities between current models and original juvenile courts one hundred years ago. The legitimacy challenges faced by the juvenile courts forecast impending difficulty for the problem solving courts, and an analysis of the legitimacy of problem solving courts questions the long-term viability of the current "problem solving" mutation of the criminal courts. Finally, a case study of a recently implemented problem solving court suggests that the experimentalist structure of these courts can, and should, be utilized to enhance the legitimacy of the problem solving courts.

Keywords: Problem-solving Courts, Specialized Courts, Alternative Courts, Criminal Justice, Social Policy, Coerce Treatment, Experimentalist Governance, Democratic Experimentalism

JEL Classification: K14, K41

Suggested Citation

Casey, Timothy, When Good Intentions are Not Enough: Problem-Solving Courts and the Impending Crisis of Legitimacy. Southern Methodist University Law Review, Vol. 57, No. 4, p. 1459, 2004. Available at SSRN: https://ssrn.com/abstract=711983

Timothy Casey (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States
619 525 1685 (Phone)

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