Theorizing community justice through community courts.

• Author: Fagan, Jeffrey
• Position: Red Hook Community Justice Center, Brooklyn, New York - Special Series: Problem Solving Courts and Therapeutic Jurisprudence

INTRODUCTION

Community justice practitioners argue that the justice system has long ignored its biggest clients--citizens and neighborhoods that suffer the everyday consequences of high crime levels. (1) One response from legal elites has been a package of court innovations and new practices known as "community justice," part of a broader appeal to "community" and "partnership" common now in modern discourse on crime control. (2) This concept incorporates several contemporary visions and expressions of justice within the popular and legal literatures: problem-solving courts (such as drug courts, mental health courts, domestic violence courts, gun courts, and, of course, juvenile courts); the inclusion of victims and communities in the sanction process; community policing; partnerships between citizens and legal institutions; and alternative models of dispute resolution. (3)

For court reformers, the conceptual ground and animating thought for problem-solving courts is that the system is broken, overloaded, and ineffective. (4) Community justice projects go beyond the problem-solving court model to create legal institutions that bring citizens closer to legal processes. (5) What separates community justice from the recent creation of specialized parts is the prospect of mutual accountability between courts and community, and the importance of local space in defining the types of problems that present themselves for socio-legal solution. (6)

Unlike treatment courts or problem-solving courts, community courts seek to fix problems in the courts by developing legal forums that are unique in three ways. First, these institutions bring citizens and defendants closer in a jurisprudential process that is both therapeutic and accountable. Legal responses to families and individuals with multiple legal problems are coordinated, and ideally, unified. Some community courts are multi-jurisdictional courts that link typically separate court parts into one location and under one administrative umbrella. Second, community justice centers and community courts link service providers to the court and, in turn, to families in a way that is responsive to their perceived needs. It brings the court closer--both physically and administratively--to the social and behavioral origins of the problems that it seeks to address, and it seeks to bring services to bear on these problems under the administrative aegis of the court. Third, these justice centers bring the courts and their service adjuncts into a community with limited access to both public and private services. The physical presence of the court in a community signals that the relationships of citizens and communities to courts differ in meaning, tone, and content. These courts are relatively new, and until now, have received neither research attention, nor jurisprudential analysis (7)

This Article reports on research on a community court that is part of the Red Hook Community Justice Center in Brooklyn, New York. (8) Red Hook is a neighborhood in Brooklyn with a long and rich history of both fortune and misfortune. (9) The neighborhood today is an area in transition, challenged by social deficits such as crime and drugs. (10) Red Hook also is a neighborhood with weak services and economic institutions, which are further strained by competing claims for primacy and attention. (11) Furthermore, Red Hook's physical location isolates it socially from other parts of Brooklyn and New York City. (12)

One of the recurring crises in Red Hook, and many socially and economically disadvantaged neighborhoods, is the low rating by citizens of the legitimacy of law and legal institutions. (13) Problems in both distributive and procedural justice, plus the failure of courts and other government programs to provide public safety and material well-being, have created a breach between citizens and government that is reflected in citizens' reactions to legal institutions. In Red Hook, the police and the courts historically have not been citizens' allies in their struggle for safety. (14)

Accordingly, the Red Hook Community Justice Center ("RHCJC" or "the Court") focused its attention on the role of law and legal institutions in public safety. (15) The creation of a court physically closer to the community, more responsive to the problems that give rise to crime, and accountable to the community to reduce crime and deliver remedial services, offers the Court a transformative role that will involve citizens in the processes of social regulation and control that are essential to crime prevention and justice. (16) This is the theoretical challenge for problem-solving courts generally, and decentralized community-based courts in particular.

This Article theorizes the structure and process of community justice, focusing on the model offered by community courts. We examine how the Red Hook Community Justice Center's development and implementation are the products of its immersion in the intersection of social, spatial, and political dynamics within the Red Hook neighborhood. Its creation was also influenced by the broader context of court innovation in New York, and local crime policies and problems in the city. The development of various forms of community justice has been under-theorized, despite the rapid expansion of community justice experiments and the broader acceptance of a new role for courts to attack specific manifestations of crime. Theory matters in this context, offering a causal story about the underlying dynamics of change, and identifying potentially enduring and generalizable lessons that help us predict whether the practices that are promising in one place would be equally effective in another.

This Article begins by reviewing the sociological perspectives that converge in the historical development of "community justice." (17) Community justice developed not just as a response to the concerns about legitimacy facing contemporary legal institutions, but also as part of a changing narrative of social control in areas undergoing rapid social structural change. (18) We set forth a framework of social regulation and control that shapes the internal workings of these new legal institutions, and also influences their relations with the communities that host them. (19) Next, we identify challenges facing community justice centers and community courts in their efforts to reconcile a complex vector of institutional, social, and political dynamics. (20) The Article concludes by revisiting the conceptual frames of these courts, and locating their historical development in broader themes of the role of legal institutions in rapidly changing social contexts. (21)

1. THEORIZING COMMUNITY JUSTICE

   The dissatisfaction of individuals who suffer the consequences of rising crime levels and/or social disorder, which makes their everyday lives unsafe, created a crisis of legitimacy for legal institutions. Much of this discontent centered on the courts. (22) This pressure motivated reformers to create more accessible and effective judicial forums with the aim of solving local problems. (23) Although public dissatisfaction put policy makers and local government on alert, the movement towards a community justice model as the solution originated among leaders within the criminal justice system. These practitioners, especially judges, now see themselves as the champions behind these new legal experiments bracketed under a "community justice model" as they aim to improve the "quality of justice" delivered by the system. (24)

   Community justice practitioners justify these changes through their real experience of a "crisis" (25) in the court system. This crisis is defined by a system that is overloaded and unable to respond efficiently or thoughtfully to its caseloads. Practitioners point to their daily caseloads to infer that the system no longer works. They highlight the high levels of recidivism, the "revolving door," and the increasing levels of incarceration to assert that the "system is broken." (26) The reorganization of the justice system toward a community justice ideal has been animated, therefore, by both the external pressures coming from citizens who want a more accessible and effective legal form, and by internal pressure and dissatisfaction brewing within the courts. Each of these sources of discontent contributed to a crisis of legitimacy, motivating judges, local governments, and other agencies to become more receptive to experimentation within the court system. These circumstances and changes are discussed further below.

   1. Crime, Courts, and Legitimacy

      Over the past two decades, economic, political, and social changes have led the courts onto the frontline of managing policy issues--such as the war on drugs, the crisis of gun violence, and quality of life campaigns--in ways that the legal system has not previously experienced. (27) At the same time, structural issues of size, management, and bureaucracy have affected the system, causing increased inefficiency and inflexibility. (28) This growth occurred in an era when local and national cost cutting have left both courts and police departments badly equipped. (29) Finally, criminal courts are faced with high numbers of offenders who have been adversely affected by social service cuts, such as the mentally ill, the homeless, and those addicted to drugs. (30)

      Community justice reconceptualizes the judicial branch. It is no longer an impartial arbiter of state power, but instead seeks to serve a victimized community that is in need of repair. The judicial branch now becomes an activist pressing for social transformation and neighborhood healing. It pushes for the mobilization of social services under the auspices of the court, and for new forms of deliberative democracy where transparent information becomes an engine for reshaping power relations between citizens and courts. (31)

      From the outside, much of the "community justice model"...