What the data shows.

• Position: State problem-solving courts - Panel Discussion

THURSDAY, FEBRUARY 28, 2002

AFTERNOON SESSION

PANELISTS

Carl Baar Brock University

Steven Belenko The National Center on Addiction and Substance Abuse

Aubrey Fox Center for Court Innovation

Rachel Porter Vera Institute for Justice

Carl Baar Brock University

It is appropriate that I lead off the panel on what data shows by giving a speech that has no data in it.

I would stand up, except that my colleague here has his PowerPoint all set up there, so I think I will stay and speak to you from here.

What I am actually speaking to, or elaborating on, is a paper that is on the supplementary tables out there, called "The Role of Courts: The Two Faces of Justice," which I have written with Dr. Frieda Solomon, who is here in the room and who is a New York City Criminal Justice Agency person and a political science colleague.

What we wanted to do in this paper was raise some issues about problem-solving courts, actually even before they had the name. By the time the article was published, they were officially christened by the Conference of Chief Justices.

I guess, after listening to Judge Hoffman this morning, I think that we are probably in the agnostic category, and it is probably just as difficult being an agnostic at one of these sessions as being an atheist.

I think one of the problems is that I would actually argue that Judge Hoffman got the order of his criticisms wrong, because the first thing he said is, "We don't have any data. We don't know whether these programs are working or not."

One of the questions that I would raise is: If you knew they were working, would they still be good programs? And whether they are good programs or not depends upon what they are doing, not just in terms of whether crime is being reduced, recidivism is being reduced, people are being helped, but what are they doing in the context of the jurisdiction and the political and social system in which they occur, and how well are they doing? And what social, political, and economic functions are they performing? It is hard to get data on these things. I am going to use my few minutes with you to raise some of these broader questions.

I was reminded of this the other day because when I saw the earlier draft of the program, it indicated that one of the speakers on the first panel was the Judge of the Community Court in Austin, Texas. I heard some critical things about the debate at the time that court was organized, and I had a critical paragraph in the paper. I thought, "Oh my God, somebody is going to be here from there. I better try to update myself." And I contacted someone who was in court administration in that community and heard back. He said, "Oh, the court is really doing well in Austin. This judge is really providing important leadership. They have consulted with the community much more. They really improved their operations."

Then he paused and he said, "Oh course, they are still basically serving the interests of the downtown business community, and the homeless people who are no longer on the street in the central business district are now out on the streets in outlying districts just outside the jurisdiction of the Community Court."

And so I began thinking: Well, that sounds a lot like the same kinds of issues that have been raised both in New York City and elsewhere. They raise the question that even if you have a successful court, what functions is that court performing?

When I started thinking about Denver versus New York City, I thought: Well, we've really got to look at what is going on there, and we have to consider the fact not that Denver suggests there is a failure of the drug court model, but that that drug court model probably was not implemented as effectively as the one in New York.

I am finding myself in the same position, because my most recent work has been implementing delay reduction programs in a relatively hostile environment. It has worked out fairly well. We have an incredibly well-running delay-reduction program in the lower criminal and civil courts in Karachi, Pakistan, where I spent a few days about a week before Daniel Pearl was kidnapped, and it has not been working well at all in Lahore, Pakistan, where all the judges are convinced they have no delay at all.

I finally turned to a friend of mine and said, "This is worse than when I used to go to New York State in the 1980s"--you know, the Judge, "We don't have any problems with delay reduction. We are up to our 1996 cases. Why are you sending some consultant in to bother us?"

So there are lots of local conditions that alter the effectiveness of these programs. The question is: What interests do they serve? I feel fairly comfortable about the interests I am serving in Pakistan, in part, because if we do not get the criminal courts running well, we are going to be left with either military courts trying terrorists or religious courts trying people for criminal offenses when they argue the criminal courts are not doing their job.

The question is: What social functions are being performed by a variety of these problem-solving courts? To what extent are these courts contributing to the purposes for which courts are organized?

So that is part of what we drilled back in looking at the paper that we had written. We really said that there are two basic roles that courts have: the preservation and the maintenance of order; and the preservation of rights.

When you get into countries in Asia, in the third world, very often protection of rights is secondary; preservation of order is primary. One of the things that characterizes courts in democratic societies is their emphasis on the protection of rights. Very often, my fellow political scientists assume that is the only purpose of courts, and we have to point out that no matter what society you are in, courts may protect rights, but they are always preserving order.

When you look at a criminal court, most of what criminal trial courts do is put people in jail, or they at least convict them of crimes. Most people are found guilty; they are not acquitted.

In civil courts, most civil court business, or a great part of it, is the enforcement of debts. The research we have done in Canada, which may be different from what you have in the United States, shows that businesses use courts to sue individuals much more than individuals use courts to sue businesses.

Whenever I hear tort reform advocates in the United States, I often want to say, "Well, we should establish the principle of caveat creditor as well. If businesses do not want the members of the public harassing them with product liability suits, let's just say that the business community cannot harass members of the public by suing them to collect their bad debts. We'll just call it a day and we will have lots of judges to take out of civil parts and put into criminal and family."

Well, the argument here is that the preservation of order is one of the primary functions of court. The argument that we made in this paper is that no matter how innovative problem-solving courts are, they are reinforcing that order-preserving function and not that rights-protection function. That is what they are in business to do.

The difference is that problem-solving courts are trying deliberately to use means that are seen as more humanitarian and less coercive. We can get into a debate about whether they are coercive or not, and a lot of that depends precisely on how coercive the existing criminal justice system is.

And so I am very concerned about the drug courts in New York State because the drug laws are so draconian and the political ability to implement drug courts is directly related to the unwillingness to campaign to modify those laws, which means, in effect, that drug courts can be in a position to do net widening, to actually be more coercive, because they are not reducing the existing coercive criminal penalties.

So we really are in a position--I think that what is going on is this is why you get a split on these issues that is not a liberal/conservative split. I am looking at this saying I am trying to make a sort of left-wing critique of problem-solving courts, and the first place I was asked to address after somebody read this was some judge in Massachusetts who was railing against a whole variety of reforms that have occurred in the last fifty years in the courts, and I was not too comfortable going up and adding any fuel to his fire.

But I think what is happening is, at the same time--a judge this morning said, "Well, our model--here is this progressive, new thing we are doing and it has been adopted by all these conservative states." Well, not a surprise to me, because it is contributing to the emphasis on the preserving of order.

Part of what we argue in the paper is that this is something that no longer is a liberal or a conservative issue. There are just as many people asserting their individual rights on the right, many of whom consider that their most important right is to go and take their guns and live out somewhere in the mountains and start an alternative political system. You know, it is what we used to do when I was in graduate school in the 1960s. You know, now the guys who are doing it are not people like me anymore. It was reminiscent.

I taught at Cornell University. The year I arrived there was right at the time of the Attica Prison rebellion. I can remember at the time some students wanted to organized in support of the prisoners there. They said, "You know, they read all the stuff that we wrote in the 1960s and they think they are political prisoners, and maybe we are in a position where we need to give them some support."

So we have a split politically that does not apply to this anymore. But the main thing is that all these problem-solving courts are there not to protect rights, but to preserve order, to do it in a way that reflects the needs of order in a liberal state, but that have all the limitations on those.

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