Due process and problem-solving courts.

• Author: Lane, Eric
• Position: Special Series: Problem Solving Courts and Therapeutic Jurisprudence

INTRODUCTION

The rapid proliferation of "problem-solving courts," particularly of drug courts, occasions this Article. These progeny of the 1989 Dade County, Florida drug court (1) can be found throughout the country. According to one report, there are approximately 500 drug courts operating nationwide, with several hundred more coming on line. (2) From these drug courts, a number of other courts have evolved, all under the problem-solving handle. In New York, for example, in addition to drug courts, there are community courts and domestic violence courts. (3) In the State of Washington there is a mental health court. (4) While disparate in their focus, their "problem solving" characterization appears to result from a shared, urgent common goal of judicially addressing problems deemed, usually by the court, as not adequately addressed through the quotidian mills of, at least, the overloaded urban criminal justice system. Chief Justice Kathleen A. Blatz of the Supreme Court of the State of Minnesota has forged a palpable description of this problem-solving stimulus:

I think the innovation that we're seeing now is the 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." (5) This emergence of problem-solving courts as an alternative to "McJustice" has begun to engender debate over the three foundational premises on which problem-solving courts rest: first, courts are appropriate institutions for solving the undertaken problems; second, the resources commanded for this problem-solving do not shortchange the resolution of more important but more complex problems; and third, the problem-solving protocols employed by these courts are effective. (6)

While the outcome of this debate is of enormous importance to the continued existence of problem-solving courts, there is another important question. That question is whether problem-solving courts can be effectively maintained without damage to the individual protections afforded defendants under the due process mantle of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and under similar provisions found in state constitutions.

This question arises primarily in a theoretical and speculative context because little empirical work has been done on the subject. There have been few reported cases challenging problem-solving courts' jurisdiction or procedure, and there is no consistent picture of the procedures necessary for the operation of a problem-solving court generally or for a particular type. The question is engendered by the sense expressed by both advocates and critics that problem-solving courts require a different role for judges, and perhaps lawyers, than that required by traditional courts. This difference is sharply expressed in the following remarks of Judge Cindy Lederman, the first judge in the Dade County drug court, and Professor Richard Cappalli, at the December 3, 1999 forum on problem-solving courts:

Hon. Cindy Lederman: If we as judges accept this challenge, we're no longer the referee or the spectator. We're a participant in the process. We're not just looking at the offense any more. We're looking more and more at the best interests, not just of the defendant, but of the defendant's family and the community as well. (7) Cappalli: When judges move out of the box of the law and into working with individual defendants, transforming them from law-breaking citizens into law-abiding citizens, we have to worry. Because what has always protected the bench has been the law.... If we take the mantle of the law's protections off of the judges and put them into these new roles, we have to worry about judicial neutrality, independence, and impartiality. (8) The broad question then for this Article is whether Judge Lederman's proactive problem-solving judge can judge in a manner consistent with the protection of a defendant's due process rights, or whether there is something in this problem-solving rendering of a judge's function that must undermine those protections.

As noted earlier, there is little evidence on which to form a full, realistic picture of the practices of problem-solving courts. Hence, the analysis and conclusions will be hypothetical. The "facts" for this Article include: first, three case studies, The Stanford Drug Treatment Court ("Drug Court"), The Brownsberg Community Court ("Community Court"), and The West Jackson Domestic Violence Court ("Domestic Violence Court"), each containing several illustrations of typical issues that each court addresses, prepared by the Center for Court Innovation (9) as the "factual" basis for two discussion groups convened by the United States Department of Justice to discuss problem-solving courts; second, the edited, published transcripts of these discussions; (10) and third, the occasional literature on problem-solving courts. As for the case studies, they were not intended to provide a full picture of what was happening in each of the courts from which they were drawn. (11) The goal of each was to highlight and invite discussion on some aspect of each court's procedure, which the Center judged might be considered unique or of concern. (12) Their goal was to provoke a critical exploration "before they enter the mainstream" of whether "problem-solving courts [are] any less protective of individual rights than the typical state court?" (13)

After reviewing this material, this Article takes the view that, with certain cautions, problem-solving judging and lawyering, as described by the case studies and other available material, need not be in conflict with due process standards. The cautions relate to the level of judicial activism pictured in each of the case studies, particularly the ones describing the community court and the domestic violence court. If such level of engagement needs to be maintained for the continuation of these courts, it could raise serious questions about judicial independence and impartiality. Of particular concern is the community advisory board, which seems intended to establish a judicial bias. Also problematic is the requirement that domestic violence defendants attend batterer's programs. Arguably, this is punishment that cannot be constitutionally justified.

1. AN EXCURSUS FOR COMPARISON

   As noted earlier, the spark that charges this due process inquiry results, at least in part, from the rub between Judge Lederman's and Professor Cappalli's competing judicial portraits. Such a comparison casts an unfavorable shadow on problem-solving courts because of the inherent suggestion that, whatever they are, they are lesser judicial institutions than are traditional courts. This, of course, could negatively influence any study of the due process afforded by problem-solving courts. But such a comparison misses the mark. Problem-solving courts should not be measured against the standards of the "traditional" courts, but against the backdrop of Judge Blatz's McJustice courts.

   The Sisyphusian goal of these traditional courts is to clear the chronically over-clogged calendars of urban criminal courts by trading lighter sentences for guilty pleas in a vast number of cases. And these calendars have continued to grow.

   [T]he caseload increase in the state courts has been staggering. Take domestic violence, for example. From 1984 to 1997, the number of domestic violence cases in state courts increased by 77 percent. Or look at drugs: national research reveals that as many as three out of every four defendants in major cities test positive for drugs at the time of arrest. The story is no different for quality-of-life crime. In New York City, for example, over the past decade the number of misdemeanor cases has increased by 85 percent. (14) Chief Judge Judith Kaye of the New York State Court of Appeals describes the judicial role in New York's urban criminal courts as "pleading cases at arraignment," (15) a portrait confirmed by Judge Legrome Davis who described how, in one year, he "had 5,000 felony defendants plead in front of me and get sentenced." (16)

   The image is of a revolving door in which a large percentage of offenders continuously spend a part of their time offending and part of their time in jail, apparently waiting to offend again. As Chief Judge Kaye has noted, "[W]e're recycling the same people through the system. And things get worse. We know from experience that a drug possession or an assault today could be something considerably worse tomorrow." (17)

   The goal of the problem-solving courts is to provide an alternative to this revolving door, assembly line approach to "justice." (18) In the case of the drug court, the defendant is offered a treatment program instead of incarceration. (19) The goal is to rid the offender of her addiction. (20) In the case of the community court, the defendant is punished for low-level crimes that usually fly below the criminal justice radar screen. The punishment is usually some form of community service. The goal is to restore a sense of order to the community, and secondarily, through selected social programs, to restore a sense of order to the offender. In the case of domestic violence courts, the defendant is constantly monitored prior to the case's disposition. The goal of this monitoring is to provide safe harbor to the victim and make an offender accountable for her conduct.

   In each case, the defendant can refuse the alternative treatment. A defendant in a drug court can refuse the treatment, thus subjecting herself to the McJustice system. Similarly, a community court defendant can choose to be processed by the regular system. Finally, a domestic violence court defendant can refuse the monitoring program, which most likely will subject him to pre-trial detention or high bail. This is...