Just the (unwieldy, hard to gather, but nonetheless essential) facts, ma'am: what we know and don't know about problem-solving courts.

• Author: Berman, Greg
• Position: Special Series: Problem Solving Courts and Therapeutic Jurisprudence

Policymakers often think, incorrectly, that an evaluation is like an "audit" or trial in which the results arc usually clear cut and definitive. Either the funds were spent or they weren't; either the program served its intended beneficiaries at a reasonable cost per client or it didn't. Such "audit" questions are much easier to answer than the "evaluation" questions of cause and effect, often stretching out over a lifetime of the targets of crime prevention efforts. (1) The expected value of any net impact assessment of any large scale social program is zero. (2)

INTRODUCTION

Robert Martinson's seminal 1974 Public Interest article, What Works? Questions and Answers About Prison Reform offered a bleak assessment of rehabilitative initiatives aimed at criminal offenders. (3) This literary review of prison-based treatment programs--from vocational training to psychotherapy--concluded that, "[w]ith few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism." (4) Martinson determined the failure of treatment programs by demonstrating a failure of research because the more than 200 studies he reviewed gave little evidence that the programs studied were linked to a reduction in crime. (5) Yet, what seems to have most frustrated the author were the studies themselves, many of which left unclear whether the programs had not worked, or whether the system under which they were administered prevented successful implementation. (6)

Martinson's hugely influential article cast a pall over rehabilitative criminal justice programs for years. To this day, reformers in the field find themselves grappling with the suspicion--held by many academics, policymakers, and citizens--that "nothing works." The 1996 report, Preventing Crime: What Works, What Doesn't, What's Promising confronted this mindset head on:

Merely because a program has not been evaluated properly does not mean that it is failing to achieve its goals. Previous reviews of crime prevention programs, especially in prison rehabilitation, have made that error, with devastating consequences for further funding for those efforts. In addressing the unevaluated programs, we must blame the lack of documented effectiveness squarely on the evaluation process, and not on the programs themselves. (7) Sherman attempted to infuse hope into the field by throwing out the "nothing works" conclusion. (8) But the more accurate conclusion he offered in its place--that very little is known about what works (9)--comes with its own set of frustrations.

Problem-solving court research, (10) most of it conducted post-Sherman, faces a political climate that prefers definitive answers over cautious preliminary findings, and is still likely to mistake uncertainty for proof of failure. Yet, at present, cautious preliminary findings are the best tools. The research to date on these new judicial experiments does not offer many definitive conclusions. Projects that fall under the "problem-solving" umbrella have been around for a relatively short time--anywhere from a decade to a few months. It takes time and money to track recidivism over the long term, to meaningfully weigh program costs and benefits, and to compare new practices to one another, as well as to business as usual.

The best research designs use a random assignment model, splitting a single pool of defendants between an experimental track and normal case processing, but in most cases this "gold standard" is not feasible for studies of problem-solving courts. Quasi-experimental comparison groups range from the good (defendants in traditional court with carefully matched characteristics to drug court participants), to the not so good (less rigorously selected groups of defendants undergoing normal prosecution), to the bad (defendants who refused to participate in the problem-solving court).

In truth, many programs are not subject to even a bad quasi-experimental evaluation. While the demand for criminal justice research is high, both among policymakers and practitioners, the financial support lags. (11) Outside of the National Institute of Justice, there are few sources of funding for criminal justice research. (12)

Nevertheless, problem-solving courts have begun to leave a paper trail. Many problem-solving courts have produced, are producing, or plan to produce process evaluations with detailed information about how the programs have been implemented. Sherman noted that newer programs have the advantage of more rigorous standards for evaluation, (13) and in the long history of criminal justice innovation, it is indeed difficult to locate many new ideas that have been better documented or more well-researched than problem-solving courts.

What is known about problem-solving courts? After more than a decade of practice, what conclusions, if any, can be drawn about these judicial experiments? Where are the gaps in the current knowledge and which areas are ripe for further study? This Essay attempts to answer these questions. It is not a piece of original research, but rather an effort to map the territory of this new field, offering for the first time both a review of current problem-solving research and a sketch of a future agenda.

1. DRUG COURTS

   Any review of problem-solving court research must begin with drug treatment courts, the first projects to fall under the problem-solving court umbrella, and the most extensively studied. Since 1989, when the first drug court opened, the model has been replicated widely. (14) There are now hundreds of drug courts in operation or in planning. (15) Moreover, these courts have generated a sizeable body of research on their operations and outcomes. Drug courts now have enough of a track record to promote an informed discussion of how they work, how well they work, and why they work.

   1. What We Know

      Steven Belenko's reviews of drug court evaluations are the most authoritative source of information on the what, where, and how of drug court research to date. (16) His Research on Drug Courts: A Critical Review 2001 Update reviewed thirty-seven evaluations from thirty-six different drug courts and only included studies conducted by outside evaluators. (17) Most of the studies included were process evaluations, but some included limited outcome measures and cost analyses as well. (18) Based on Belenko's review and other drug court studies, the following can be stated about drug court programs:

      1. Drug Courts are Popular and Serve a Needy Population

         According to Belenko, "[d]rug courts have achieved considerable local support and have provided intensive, long-term treatment services to offenders with long histories of drug use and criminal justice contacts, previous treatment failures, and high rates of health and social problems." (19)

      2. Court-Mandated Treatment Programs Result in Higher Retention Rates

         The estimated national average one-year retention rate for mandatory treatment is sixty percent. (20) By way of contrast, reported retention rates for voluntary treatment programs range from thirty to sixty percent over a three-month period (one-year rates not available). (21)

      3. The Longer Participants Stay in Treatment, the Better the Outcomes

         A 1978 study of an Oregon program demonstrated that people who dropped out of treatment were less likely to be rearrested if they had stayed in treatment for at least ninety days. (22) This finding pointed to the importance of looking beyond what happens to graduates of drug courts. Outcomes for other participants (even those who "fail" in treatment) can be substantial and are worth studying.

      4. Drug Court Participants had Lower Rates of Recidivism and Drug Use While Still in the Program, than did Comparison Groups Undergoing Normal Prosecution (23)

         Lower in-program recidivism rates demonstrated that offenders in drug court pose a reduced risk to public safety, at least during the multi-year period when they are under drug court supervision. (24)

      5. Even Absent Treatment, Graduated Sanctions Can Have a Statistically Significant Impact on Offenders' Behavior

         An Urban Institute study of the District of Columbia Superior Court suggested that ongoing monitoring and graduated sanctions and rewards could help drug offenders avoid rearrest in the year after sentencing, even if offenders were not linked to treatment. (25) The results point to the value of intensive judicial monitoring. (26)

      6. The Certainty and Severity of Drug Court Sanctions Are Crucial to the Model's Effectiveness

         Criminal justice researchers looked at the effects of punishment in terms of certainty (whether the sanction will be enforced), severity (how harsh the sanction will be), and celerity (how quickly the sanction will be imposed). (27) One recent study surveyed college students about the likelihood that they would drive home from a party drunk, given the possibility of being caught and punished for the crime. (28) Respondents showed less concern for how quickly the punishment would come, and more concern with its certainty and severity in deciding whether to commit the crime. (29) Extralegal consequences were also important factors, but the study's most prominent conclusion was the weakness of a punishment's celerity as a deterrent. (30) Another study by Adele Harrell of the Urban Institute compared the graduated sanctions programs in three drug treatment court settings, and found that the severity of the sanctions had the greatest effect across the board. (31)

      7. Well-Designed Post-Program Studies About the Recidivism of Drug Court Clients are Relatively Sparse

         Of the more than three-dozen evaluations included in Belenko's latest review, only six looked at post-program recidivism rates. (32) Of these, two showed a statistically significant reduction in recidivism. (33) Clearly, there is a need for more information in this area.

      8. Cost Analyses Revealed Cost Savings for Drug Courts Compared to Traditional Adjudication

         ...