Problem Solving Courts: A Measure of Justice
JoAnn Miller & Donald C. Johnson,
Rowman & Littlefield, 2009, 288 pages
Reviewed by Corey S. Shdaimah
Problem Solving Courts: A Measure of Justice draws on the complementary insights of a social scientist and a practitioner. Donald Johnson is a judge who has presided over a problem solving court and, therefore, has first-hand knowledge of how it works on the ground, including the nuances that are often lost on those who study practices from the outside. JoAnn Miller brings a sociologist’s theoretical toolbox and systematic analysis to the text. This book is a good introduction to problem solving courts and an overview of the different roles and perspectives of the problem-solving-court “team” and problem-solving-court participants. The book reflects current policies and opinions of problem solving courts as an important alternative to traditional criminal justice practices. The trend toward problem solving courts is even more prevalent in the absence of broader societal mechanisms that address some of the underlying concerns that practitioners and policy makers believe lead people to offend and reoffend. This book should be read together with some of the critical literature, such as the resources suggested here, for a well-rounded view of the potential promise and pitfalls of problem solving courts.
Miller and Johnson provide a rich array of lenses through which to analyze the problem-solving-court movement that includes literature, the concept of problem solving court as theatre, and a comparative case study of three different kinds of courts with different levels of success. This final comparative lens draws on the experiences of court professionals and participants in their own words through interviews and observations. The rich tapestry presented, however, turns out to be somewhat distracting. The authors spend much time describing the lenses, but there is not enough attention paid to laying each of these out, and the paths end up feeling like paths that are hinted at but not taken. For example, the lens of literature is used to point out the universality of experiences. But literature is not sufficiently applied to the case study material to illuminate the actions and interactions of “players” on the problem-solving-court stage.
The first chapter provides a review of problem solving courts and their origins, which is a helpful introduction for the practitioner, layperson, or scholar new to the problem-solving-court movement. Even though the authors are strong proponents of the problem-solving-court model, they are careful to remind their readers that problem solving courts are squarely situated within the criminal justice system, something that is often absent from presentations that emphasize the therapeutic elements in ways that obscure coercive forces and power relations. The authors also acknowledge some critiques of problem solving courts, although they leave the impression that outstanding criticisms are either negligible or have been addressed despite the persistence of such concerns on the ground, particularly on the part of the defense bar. This raises concerns that the authors minimize potential negative consequences of problem solving courts more generally or in particular instances. These concerns return in the later sections of analysis where disturbing interactions emerge from authors’ field data. One of several such examples is where Johnson and Miller describe an exchange between a judge and a police officer characterizing the immaturity of a court participant named Audrey in weighing her progress in the court program. Johnson and Miller indicate that the judge is not a therapist and that the police officer has never met Audrey. However, the incident is never developed, analyzed, or connected to the literature or critiques. This leaves the readers to gloss over a problem that has implications for decision making in problem solving courts that may have serious ramifications for participants, particularly if the protections of the adversarial process have, de jure or de facto, been lessened or waived entirely.
One of the most interesting concepts that the book introduces to the problem-solving-court literature is the sociological construct of “master status,” which the authors explain and develop in a manner that is simultaneously clear and complex. Successful participants in problem solving courts avail themselves of the judges’ authority to transform their master status from one who is a criminal in the eyes of the law, with all of the stigma and collateral consequences that this entails, into one who is now a participating, or rehabilitated, citizen. In this description, the authors go beyond the potential therapeutic elements that are often touted in praise of problem solving courts to understand and unpack the power and authority that the court holds to reopen the gates of participatory citizenship to offenders. No amount of therapy can change the status of offenders; the therapy or other programs in which offenders participate can be the basis for decisions by judges that impact legal status. This conceptual lens allows us to better understand the societal boundaries and status that law can impose or remove, shifting our focus from the individual psychological state of the offender to the way that society shapes his or her future choices. This opens up greater possibilities for us to discuss whether, in what circumstances, and how we want the court to have this authority in criminal cases above and beyond the authority to punish. It also raises the possibility for us to discuss whether this authority should rest with judges rather than (or in addition to) other societal actors such as social workers, bureaucratic government agents, doctors, peer groups, or the individual herself.
Another important contribution of this book is the opportunity it presents to compare three different problem-solving-court models. The authors portray three courts that they describe as sitting on a continuum of success. While the authors discuss the different levels of support that the courts have for their work, the comparison is not developed enough for the reader to understand the full array of factors that may actually contribute to success or failure. For example, it is clear that the courts are designed for different populations or different offenses, and this and other possible variations leave the reader wondering whether these factors might also contribute to the potential for success; the authors do not explore the varied permutations, leaving the reader to speculate. To some extent this is moot, as the authors really do not engage in a full-blown comparison but rather focus their attention on the most “successful” court, which is a reentry program for low-level drug offenders. They bring rich dialogue from their interviews and court observations, which provide insight into how different problem-solving-court participants understand and experience the court process. I would recommend this book as a good review or starting point but would caution that it must be read with supplemental material, such as those cited here or James Nolan’s thoughtful and in-depth book on the drug court movement, Reinventing Justice: The American Drug Court Movement, to provide a more balanced picture and greater analytical complexity.
. JoAnn Miller & Donald C. Johnson, Problem Solving Courts: A Measure of Justice (2009).
. Id. at 277.
. See id. (identifying JoAnn Miller’s experience as a professor of sociology and the president of the Society for the Study of Social Problems).
. See generally id. at 166–74 (outlining the team model of problem solving courts, and discussing the roles of team participants).
. See Corey Shdaimah, Taking a Stand in a Not-So-Perfect World: What’s a Critical Supporter of Problem-Solving Courts to Do?, 10 U. Md. J. Race, Religion, Gender & Class 101, 101–11 (2010) (highlighting mechanisms, including “societal dysfunction,” that contribute to the need for problem solving courts).
. See generally Miller & Johnson, supra note 1, at 53–64 (discussing the need for problem solving courts in the context of literary works from Shakespeare to social science scholarship).
. See, e.g., id. at 58, 59 (relating Hamlet’s famous “[t]o be, or not to be” oratory to the struggles of defendants in problem solving courts).
. Id. at 36.
. The authors devote the first four chapters of their text to these lenses and reference this analysis throughout. Id. at 1–64.
. See, e.g., id. at 56–61 (framing a defendant’s crimes in the context of literature but declining to relate the story to problem-solving-court players).
. Id. at 53.
. See id. at 194–97 (identifying the “important functions” of problem solving courts, and acknowledging that some of their problems can be attributed to attempts to meet the demand for them). For examples of additional criticisms, see Richard C. Boldt, The “Tomahawk” and the “Healing Balm”: Drug Treatment Courts in Theory and Practice, 10 U. Md. J. Race, Religion, Gender & Class 45, 48–49 (2010) (summarizing arguments against drug treatment courts); Mae C. Quinn, Revisiting Anna Moscowitz Kross’s Critique of New York City’s Women’s Court: The Continued Problem of Solving the “Problem” of Prostitution with Specialized Criminal Courts, 33 Fordham Urb. L.J. 665, 675–76 (2006) (observing that a rehabilitative modality for prostitutes in New York led to more drastic sentences rather than community-based solutions); and Cynthia Hujar Orr et al., America’s Problem Solving Courts: The Criminal Costs for Treatment and the Case for Reform, Nat’l Ass’n of Crim. Def. Law. 18(Sept. 2009), http://www1.spa.american.edu/justice/ documents/2710.pdf (discussing how eligibility criteria for drug courts tend to exclude indigent and minority defendants).
. Miller & Johnson, supra note 1, at 182.
. See id. at 145 (defining the concept as the “perception [one] holds of who she really is and the same perception that social actors attribute to her”).
. Id. at 159–60.
. See id. at 148 (arguing that only a judge can facilitate the transformation of an offender’s status back to “citizen” or “contributing member of society”).
. Id. at 36.
. Id. at 106 (funding for a state community transition program), 107 (funding for a forensic diversion problem solving court).
. Id. at 36.
. See id. (characterizing the court as an “unmitigated success”).
. See, e.g., Ursula Castellano, Courting Compliance: Case Managers as “Double Agents” in the Mental Health Court, 36 Law & Soc. Inquiry 484, 484 (2011) (describing how mental-health-court “case managers act as ‘double agents’ challenging the state to advocate for clemency while enforcing client rules to uphold the integrity of the court”); Rekha Mirchandani, What’s So Special About Specialized Courts? The State and Social Change in Salt Lake City’s Domestic Violence Court, 39 Law & Soc’y Rev. 379, 393 (2005) (observing the presence of “technocratic values” and openness to the “substantive values and goals of the battered women’s movement” of stakeholders in domestic violence courts).
. James L. Nolan, Jr., Reinventing Justice: The American Drug Court Movement (2001).