Because it makes the judge happy

This is the third installment in a series on the problems with problem-solving courts. The first installment pointed out that there is no empirical basis for the claim that problem-solving courts work. The next installment explored separation of powers issues involved in the creation and operation of problem-solving courts. This piece explores the ethical and moral implications of the real reasons problem-solving courts are proliferating.

In a previous installment in this series, I pointed out the lack of empirical evidence for the efficacy of problem-solving courts. You can read about that here. In another installment I brought to light the separation of powers issues raised by the creation and operation of problem-solving courts. You can read that piece here. Despite these issues, problem-solving courts continue to proliferate. So, why are so many judges creating problem-solving courts? The answer is because it makes them feel good.

Over the last several decades judges have been making fewer and fewer formal decisions. Today, 97% of all criminal cases resolve by plea agreement. Similarly, only 1% of civil cases ever go to trial. There just are not that many instances where judges these days are called upon to analyze the facts and apply the law. This creates a lot of open docket space.

Judges have filled that space with activistic endeavors such as problem-solving courts (another example would be pre-trial services). In her University of California, Davis Law Review Article entitled, The Problem with Problem-Solving Courts, University of Richmond School of Law professor, Erin Collins, draws on academic models of bureaucratic behavior in making this point. One theory of bureaucratic behavior is the “empire-building” or “self-aggrandizement” hypothesis. This hypothesis states that self-interested bureaucrats will seek to expand the realm of their influence to maximize their power. This is not to say that judges are bad actors. Judges, like all humans, just tend to behave this way. As Collins writes:

Even if problem-solving court judges are neutral as to the outcome of an individual case, it does not follow that they are neutral as to the outcome of the problem-solving court movement. Moreover, the absence of patent economic interest does not mean that judges are without self-interest. In fact, problem-solving court judges stand to benefit professionally and personally in many ways from presiding over these specialized courts. And these benefits may motivate them, like their bureaucratic counterparts, to expand the problem-solving court empire, regardless of whether doing so advances the public interest.    

In what ways do judges benefit professionally and personally from problem-solving courts? Collins notes that:

judges, like other types of legal professionals (and people generally), inevitably care about their professional reputation and will, at times, seek to enhance or maximize their prestige. And presiding over a problem-solving court can increase a judge’s notoriety. The first judge to create a certain kind of court or to open a court in a new jurisdiction is often met with abundant praise in the press and the community.

I would go further and say that since many judges are elected, we cannot discount the political benefit this praise in the press and the community confers.

Judges have been shown to benefit personally as well. A 2009 study found that 96% of problem-solving court judges surveyed reported that the work positively impacted them. This is compared to 81% of traditional judges. Similarly, 83% of problem-solving court judges surveyed believed that their courts are helpful to litigants. This figure is 68% for traditional court judges.

It is undoubtedly a positive good that problem-solving court judges are recognized for their efforts in the community and report high satisfaction with their work. That is not, however, a sound rationale for the existence of problem-solving courts. Problem-solving courts drastically intervene in a defendant’s life. They are also quite costly to the community. With no solid research demonstrating effectiveness, doing these things to make the judge feel good about himself or to get her a favorable article in the local newspaper is ethically and morally dubious. As economist Thomas Sowell has said, “All of us should be on guard against beliefs that flatter ourselves. At the very least, we should check such beliefs against facts.”

Given the lack of evidence that problem-solving courts benefit participants, along with the serious separation of powers issues they raise, we should take a moment to consider whether the tangential, personal benefits to the judge are proper grounds for the continued creation and use of problem-solving courts.