The Changing Role of the Family Court Judge: New Ways of Stemming the Tide

• Author: Anthony J. Sciolino
• Pages: 395-411

Page 395

Anthony J. Sciolino

Monroe County Family Court Judge, Rochester, NY. Columbia University, B.A. 1967; Cornell Law School, J.D. 1970; St. Bernard's School of Theology and Ministry, M.A. Theology 1998.

"The flood of cases (into the courts) shows no sign of letting up.

We can either bail faster or look for new ways to stem the tide."¹

Hon. Judith S. Kaye

"UNLESS someone like you

cares a whole awful lot,

nothing is going to get better.

It's not."²

Dr. Seuss

The Russian revolutionary leader Vladimir Ilyich Lenin (1870-1924) is reputed to have said: "There are no more reactionary people in the world than judges."³ That sentiment may have accurately described the judiciary in early twentieth-century Czarist Russia but certainly not in early twenty-first century America, particularly in family courts. During the last twenty years, in response to the nature and number of cases overwhelming family court dockets nationwide, the role of family court judges has changed dramatically. Like their colleagues in other states, New York's family court judges are responding in a manner that is neither reactionary nor traditional; to the contrary, they are assuming judicial roles and approaches that are quite unorthodox. Perhaps even Lenin would have approved.

New York State's Chief Judge Judith S. Kaye wrote an article, published in Newsweek in 1999,⁴ that described this revolutionary state of affairs. The article points out that judges today are grappling with ever-Page 396exploding caseloads fueled by drug abuse, domestic violence, and family dysfunction. Traditional judicial approaches to these relatively new issues were yielding unsatisfactory results. Drug addicts engaging in criminal activities to support their habits, for example, keep returning to court again and again, notwithstanding repeated sentences of incarceration. Battered women obtain orders of protection, return to the same home, and are beaten again. Neglectful and abusive parents continue to put their children at risk despite repeated court interventions. Children removed from their parents languish in foster care for intolerably long periods of time. "Every legal right of the litigants is protected," Chief Judge Kaye lamented, "all procedures followed, yet we aren't making a dent in the underlying problem."⁵

More efficient case processing, a traditional measure of judicial performance, she asserted, is not the whole answer. "We also need to take a step back and ask, Is there a better way to do this?"⁶ Answering her own question, she noted that across the country, certain judges are rethinking the business as usual approach, and the same phenomenon is occurring in New York State.⁷ As examples, she cited New York's then existing fifteen adult drug courts, the development of family treatment courts, community courts, and domestic violence courts.⁸ In all these nontraditional courts, judges are active participants in a problem-solving process, as opposed to detached referees making passionless judgment calls.

In the Newsweek article, Judge Kaye described what was different about the approach taken in these innovative courts:

First is the court's belief that we can and should play a role in trying to solve the problems that are fueling our caseloads. Second is the belief that outcomes -not just process and precedents- matter. . . . Third is the recognition that courts' coercive powers can change people's behavior. . . . Finally, we've learned that courts can't carry out this problem-solving role alone. Collaborations with government agencies and community groups are essential.⁹

Page 397

Make no mistake, problem-solving courts are still courts. Technically, they are not new courts but actually court subdivisions established and staffed pursuant to the court system's administrative authority. Problem-solving courts are typically located alongside traditional court divisions, and exercise existing statutory authority.

These innovative courts, like their traditional counterparts, strive to ensure due process, engage in neutral fact-finding, and dispense fair and impartial justice. They differ in that they have developed a new paradigm for accomplishing traditional goals, a paradigm which incorporates new thinking, technology, staffing, linkages, and a collaborative esprit de corps among stakeholders. Success has been redefined and new goals added; for example, the goal of improving the effectiveness of court sanctions in promoting positive behaviors. Their overall approach aims to achieve more constructive interventions than conventional case resolutions.

Chief Judge Kaye concluded her article by noting that not everyone, judges and lawyers alike, agree with this nontraditional judicial approach. "Some may argue that such hands-on involvement clashes with our branch's traditional dignity and reserve. But what's the alternative? The flood of cases shows no sign of letting up. We can either bail faster or look for new ways to stem the tide."¹⁰

New York's experience with twenty-first century judicial reality is similar to that of other states. For instance, Chief Justice Kathleen Blatz has commented that in Minnesota's busy trial courts

[J]udges are very frustrated. ... I think the innovation that we're seeing now is a result of judges processing cases like a vegetable factory. Instead of cans of peas, you've got cases. You just move 'em, move 'em, move 'em. One of my colleagues on the bench said: "You know, I feel like I work for McJustice: we sure aren't good for you, but we are fast."¹¹

Conventional case processing may dispose of the legal issues inundating courtrooms in all fifty states, but in certain types of cases, particularly family court cases, it does little to address the underlying problems that result in parties returning to court again and again. In too many cases, judges miss the opportunity to help change the harmful behaviors ofPage 398 people appearing repeatedly before them. There is a saying that insanity is "doing the same thing over and over again and expecting a different result." To escape the absurdity of such insanity, judges began to ask themselves how court interventions could be more productive, and what could be done differently to achieve better outcomes.

Drug Courts

New York's first adult drug court opened in my home town of Rochester, New York (Monroe County), in 1995.¹² My colleague, City Court Judge John Schwartz decided to try a different approach after years of presiding over a busy urban criminal court where drug defendants appeared trapped in a revolving door in and out of the courthouse. He put together a team of reform-minded stakeholders including prosecutors, defense lawyers, treatment providers, and probation officers. Following a lengthy, and sometimes contentious gestational process, the Rochester City Drug Court was born. In certain segments of our local community, the initial public reaction was cool to downright hostile; "soft on crime" was the favored criticism. After more than ten years of operation, however, the impressive results achieved by drug courts with numerous participants have made converts of many early detractors. Today, almost a decade later, there are more than 120 drug courts spread across New York State, and about one thousand nationwide.¹³

The Office of Court Administration and the Center for Court Innovation recently documented the efficacy of New York's drug courts by analyzing eleven drug courts, including courts in Buffalo, Ithaca, Lackawanna, Rochester, Syracuse, and Tonawanda.¹⁴ The study found that New York's drug courts reduced recidivism by an average of nearly thirty-two percent in the twelve-month post-program period and an average of twenty-nine percent over a three-year post-arrest period.¹⁵ ThePage 399 evaluation is the first in the nation to demonstrate a meaningful reduction in recidivism consistently across a large number of sites over a long-term tracking period. It is also the most comprehensive statewide evaluation ever published.

In the pre-drug court era, when ordering defendants into drug treatment as a condition of sentencing or probation, judges were largely uninvolved with monitoring compliance with treatment conditions. In fact, it was typical for defendants to be terminated from treatment without the judge's knowledge. Overwhelming caseloads (with an increasing number of addicts committing crimes to feed their addiction) had caused the prior practice of hands-on judicial monitoring of a defendant's progress to be replaced with an expedited case management model, which relied on segmented case management, sentencing guidelines, negotiated pleas, and other strategies to speed up the process.¹⁶

The results were both predictable and unacceptable. Judges, probation officers, prosecutors, and defense counsel accepted responsibility for only a small segment of a defendant's case. Often, numerous judicial system personnel saw the defendant over the course of a single case but because of piecemeal authority, none were able to monitor a single case in its entirety. The defendant quickly learned how to manipulate the situation to thwart rehabilitation and beat the system -recidivism became rampant.

Drug courts, on the other hand, are a significant departure from that former system, as the process has been transformed by involving judges directly in the treatment and supervision of defendants. During regularly scheduled status hearings, which take place in open court, the judge holds the defendant publicly accountable for progress in treatment and attaining related goals. The judge uses progressive incentives to reward success and progressive sanctions to discourage undesirable conduct. Sanctions closely follow violations and are designed as incentives for compliance. To...