Problem-Solving Courts

by

Eric J. Miller

• LAST REVIEWED: 14 April 2011
• LAST MODIFIED: 14 April 2011
• DOI: 10.1093/obo/9780195396607-0073

Introduction

Problem-solving courts are a recent and increasingly widespread alternative to traditional models of case management in criminal and civil courts. Defying simple definition, such courts encompass a loosely related group of practice areas and styles. Courts range from those addressing criminal justice issues, such as drug courts, mental health courts, reentry courts, domestic violence courts, and juvenile courts, to those less directly connected with traditional criminal justice issues, including family courts, homelessness courts, and community courts, to name just a few. Most courts, however, share some distinctive common features: channeling offenders away from traditional forms of legal regulation or punishment, relying on a more or less lengthy program of supervision and intervention that utilizes the informal or institutional authority of the judge, and a robust toleration of relapse backed by a graduated series of sanctions directed at altering the participants’ problematic conduct. These courts work to stream participants out of the traditional legal system either at the front end, prior to judgment being entered, or at the back end, as a consequence of entry of judgment, but prior to sentencing or other case disposition. Many, but not all, of these courts subscribe to the practice of either therapeutic or restorative justice (or both).

General Overviews

The major texts listed here are mostly book-length treatments and articles that covering issues common to the problem-solving courts in general by focusing on discrete court styles. Nolan 2001; Hora, et al. 1999; and Mackinem and Higgins 2008 discuss drug courts, whereas Berman, et al. 2005; Casey and Rottman 2005; Thompson 2002; and Winick 2003 are principally interested in the neighborhood or quality-of-life courts. Furthermore, the authors provide variable depth of treatment, often determined by the type of analysis. Berman, et al. 2005; Hora, et al. 1999; and Winick 2003 have all played an active role in developing various aspects of problem-solving court practice: they tend to focus on descriptions of court operation and practical impact. Articles written by law professors, social scientists, or anthropologists, such as Thompson 2002, Mackinem and Higgins 2008, and Fagan and Malkin 2003, tend to place problem-solving courts in a more theoretically oriented style of analysis, bringing to bear core legal values, or sociological or cultural critique.

• Berman, Greg, and John Feinblatt, with Sarah Glazer. 2005. Good courts: The case for problem-solving justice. New York: New Press.

  Broad and accessible overview of problem-solving courts, and in particular those addressing quality-of-life issues, against the background of therapeutic jurisprudence and restorative justice. Suitable for undergraduate and graduate students.

• Casey, Pamela M., and David B. Rottman. 2005. Problem-solving courts: Models and trends. Justice System Journal 26.1: 35–56.

  Simple and effective overview of the key elements of different styles of problem-solving courts. Suitable for all levels of study

• Fagan, Jeffrey, and Victoria Malkin. 2003. Theorizing community justice through community courts. Fordham Urban Law Review 30.3: 897–954.

  Seminal examination of the manner in which community courts use the problem-solving method to generate public legitimacy for low-level criminal courts. Suitable for undergraduate and graduate students.

• Hora, Peggy Fulton, William G. Schma, John T. A. Rosenthal. 1999. Therapeutic jurisprudence and the drug-treatment court movement: Revolutionizing the criminal justice system’s response to drug abuse and crime in America. Notre Dame Law Review 74.2: 439–538.

  One of the essential works on the drug court movement and the use of therapeutic justice in the courtroom. Suitable for undergraduates and graduate students.

• Mackinem, Mitchell B., and Paul Higgins. 2008. Drug court: Constructing the moral identity of drug offenders. Springfield, IL: C. C. Thomas.

  A thorough and informative study of all aspects of drug-court operation, paying particular attention to the perspective of drug court participants. Suitable for undergraduates and graduate students.

• Nolan, James L., Jr. 2001. Reinventing justice: The American drug court movement. Princeton Studies in Cultural Sociology. Princeton, NJ: Princeton Univ. Press.

  The most important single work on drug courts, and a seminal study of the problem-solving movement from a sociological perspective. Suitable for undergraduate and graduate students.

• Thompson, Anthony C. 2002. Courting disorder: Some thoughts on community courts. Washington University Journal of Law and Policy 10:63–100.

  Discussing the emergence of the community court movement and the features it shares with other forms of problem-solving courts. Suitable for undergraduate and graduate students.

• Winick, Bruce J. 2003. Therapeutic jurisprudence and problem solving courts. Fordham Urban Law Journal 30.3: 1055–1103.

  Seminal overview of problem-solving courts from the perspective of therapeutic jurisprudence, written by one of the founders of the therapeutic justice movement. Suitable for undergraduate and graduate students.