Specialized courts: not a cure-all.

• Author: Bamberger, Phylis Skloot
• Position: Special Series: Problem Solving Courts and Therapeutic Jurisprudence

INTRODUCTION

Discussion of judicial problem solving in criminal cases through specialized courts is, in reality, a discussion about alternatives to incarceration and the administration of those alternatives. (1) Judicial efforts to avoid inappropriate incarceration by the use of suitable alternative programs is old stuff. It has been going on at least since the advent of the probation system. The story of how New York added pre-trial and pre-sentence programs to post-conviction imprisonment alternatives, and went from probation to specialized courts is well documented. (2) In the last few years, the focus in many state judicial systems has been on specialized courts to provide the response to societal problems that arise in courts with criminal dockets, including administration of alternatives to incarceration. (3) The most well-known of these problem solving courts having criminal case jurisdiction are drug courts and domestic violence courts. Other courts of specialized jurisdiction have also been suggested or funded. These courts are given unique resources and staffing to administer post-plea sentences that are alternatives to incarceration. They are given access to the professional delivery of diagnosis, screening, and assessment services not generally available to courts of general jurisdiction, as well as to the programs that provide the services. (4) Specialized courts are part of the continuing effort to avoid putting people in jail or prison when something less drastic will work to the advantage of the defendant and the public, satisfying concerns of humane treatment and reducing the costs of punishment.

Traditionally, the courts of general criminal jurisdiction, however, have assumed the role of administering pre-trial and pre-sentence programs, funded both publicly and privately, that provide education, vocational training, counseling, and substance abuse rehabilitation. And historically, when a non-incarceratory sentence is imposed, probation departments have played the administrative role, selecting the appropriate program, supervising compliance, and acting as liaison with the court when problems arise needing judicial intervention. (5)

The focus on specialized courts requires reexamination of funding and staffing of courts of general jurisdiction to administer alternatives to incarceration. General jurisdiction courts have the authority, at any point in the proceeding, to involve probation eligible defendants who do not come within the scope of the work of specialized courts in alternate programs. Thus, despite the shift to specialized courts, the general jurisdiction judges are left with the administrative responsibility for initiating, effectuating, and monitoring alternates to incarceration, and the responsibility of supervising defendants who are in pre-trial programs as alternatives to jail detention and post-conviction/ pre-sentencing alternatives to prison.

Further, in recent years there has been insufficient funding and staffing of probation services, which, in New York State, is mostly the responsibility of the counties. (6) According to a recent report by the New York State Commission on Drugs and the Courts, "[p]robation departments are often underfunded and beset with enormous caseloads which make effective supervision a virtual impossibility. Indeed, in many respects some of the treatment innovations that are described in this Report have arisen to fill the gaps left by the failure of traditional probation supervision." (7) While creation, funding, and support of some specialized courts are appropriate, my view from the bench is that all courts should be provided with the panoply of services, including a properly funded probation department, so that alternatives to jail or prison are equally available to all defendants found eligible for them, regardless of the court before which their cases are pending. While specialized courts, such as drug courts, dealing with defendants charged with crimes are of critical importance, I believe that sole or even primary reliance on specialized courts is not sufficient. Rather, for the reasons that follow, what should be done is to make centralized resources available as necessary to all courts in a county or city in which alternatives to incarceration are possible, although not automatic.

1. THE POPULATION DEPENDENT ON COURTS or GENERAL CRIMINAL JURISDICTION

   There are defendants who, for various reasons, are not serviced by specialized courts. Such defendants must seek probation and jail or prison alternatives from the general jurisdiction judges before whom their cases are pending. The defendants include those seeking pre-plea and pre-sentence alternatives to jail, all those seeking a sentence alternative to prison, but who are not in the target population of a specialized court, and all those who choose not to seek early diversion from the traditional court processes into the specialized court.

   Offenders who are addicted or substance abusers are the most well-known target population of the specialized court system. Taking specialized drug courts as an example, in New York, the target population is defendants, nineteen years old or older, charged with possession or sale of drugs in an amount below the drug weight needed for the most serious felony drug charge, provided the offense did not occur on certain days and times within a thousand feet of a school, and provided the defendants have no prior felony conviction. (8) Defendants in the target group who pass a screening review are placed in substance rehabilitation programs, given intense supervision, and appear regularly before a judge. (9)

   There are, however, many cases in which defendants who are addicts are excluded from specialized courts because they have prior convictions, are charged with crimes other than drug law offenses, have sold drugs within a thousand feet of a school at the requisite time, or who have other disqualifying factors. Many would benefit from participation in a program under strict supervision without posing a danger to the community. Their cases remain pending before judges of general jurisdiction. (10) In addition, there are defendants who are substance abusers or addicts who would be excluded from some, although not all, drug courts because they have problems other than addiction. People addicted to drugs may also have heart conditions, asthma, AIDS, positive results for HIV, learning disabilities, emotional disturbances, mental illness, retardation, syndromes from physical or sexual abuse, illiteracy, infirmities from old age, an absence of any marketable skills, and homelessness. These cases...