Problem courts

The complete series

Last week, I published the final installment in a series on concerns associated with problem-solving courts. The following is a re-publication of the entire series, so that anyone interested can find the whole thing in one place.

Problem-solving courts have become very popular over the last few decades. They are especially popular in Indiana. The State has created over 150 problem-solving courts in the last ten years. These courts have received almost exclusively positive attention in the popular media and are highly regarded by many judges. There are valid concerns about the courts, however. The empirical evidence demonstrates that they do not work. They raise serious separation of powers issues. They are likely being formed for the wrong reasons, and disturbing financial incentives mar the process. In this article, we will examine each of these issues in turn.

Problem-solving courts do no work

The first problem-solving court, a drug court, was established thirty years ago. Since that time, and particularly over the last ten years, problem-solving courts have vastly proliferated. Today, there are over 4,000 problem-solving courts throughout the country. Indiana, which is amid a problem-solving court expansion, has over one hundred and fifty. Despite the enthusiasm for problem-solving courts, there is no good evidence that they work any better than traditional courts.

A quick google search will find many proclamations that problem-solving courts are effective. Untold numbers of people will give anecdotal accounts of success. Real, empirical studies, however, do not support these claims. University of Richmond School of Law professor, Erin Collins, published a 2021 article in the University of California, Davis Law Review entitled, The Problem with Problem-Solving Courts. In her article, Collins points out the many issues with the data, or lack thereof, on problem-solving courts:

the data regarding drug courts does not actually tell the unmitigated success story their proponents recite. For example, a recent analysis of drug court evaluations found mixed results. Some studies showed drug courts reduced recidivism (at “modest levels”), while others indicated they had no impact on recidivism, and one even found they increased recidivism.”  

Thus, much of the available data about problem-solving court performance undermines or at least tempers the unqualified claims that this is an effective and efficient reform mechanism.”

And retrospective studies often reveal that preliminary, court-created reports observing drastic reduced recidivism are drastically overstated and unfounded. Moreover, despite the fact that the problem-solving court approach has existed for thirty years, the data leaves much to be desired. Notably, with the exception of drug courts, it is widely accepted that problem-solving courts have not been analyzed with rigor sufficient to form a conclusion about their impact.”

While some of the earliest studies of drug courts demonstrated recidivism reductions among their participants, it is now widely acknowledged that these studies were marred by methodological flaws that undermine their findings, such as sample size, lack of a meaningful comparison group, and selection bias.”

In sum, drug court evaluations seem to demonstrate that some drug courts modestly reduce recidivism for some individuals, some of the time. And even for those studies that indicate recidivism reductions, very little is known about which aspect of drug courts lead to these reductions. Moreover, conclusions of efficacy on other metrics—such as cost savings or reducing substance use—are even more tentative.”

Comprehensive reviews of the research literature on problem-solving courts, such as was performed by Collins, reveal that the data on performance is unclear, and cannot be relied upon to support claims that they reduce recidivism. Proponents of problem-solving courts cannot, in good faith, claim that research supports their efficacy.

One of the reasons the research fails to yield reliable conclusions is that problem-solving courts are resistant to empirical study. To meaningfully research problem-solving courts, one must push through the voluminous anecdotal accounts that make up much of the argument for the courts’ existence. While anecdotal stories may sound good, they do not provide actual data. Further, the anecdotal accounts come from “stakeholders” and participants, each of whom have an interest in saying good things about the courts. When asked to show evidence that they work, problem-solving court proponents most commonly resort to feel good stories.   

Even when drug courts have been more systematically studied, however, there are no consistent criteria. The first step in studying any problem is defining the terms. There are no standardized definitions in this area. For instance, the big question is always recidivism rates. However, there is no agreed upon definition of recidivism. Some places define recidivism as re-arrest. Some define it as new convictions. Some use the amorphous term “undesirable outcomes.” There is also no consensus on the relevant length of time following graduation from the program for one to track recidivism. Does an undesirable outcome three years after graduation count as recidivism? Five years?   

There is also no consistent definition of success or failure. If a participant fails every drug screen but the problem-solving court team votes to let him graduate anyway, is that success? As we will see in later installments, incentives align to show “success” despite poor performance, further marring study.

Finally, there are no studies that follow participants for the length of time necessary to demonstrate real results. Logistical concerns and costs prevent such longitudinal studies, which are necessary to properly evaluate outcomes.

Problem-solving courts have multiplied despite a lack of evidence that they work. Those arguing for them point to stories of success rather than data. There are no solid studies showing efficacy, and the studies that exist are plagued by methodological flaws. As public intellectual, Thomas Sowell, wrote in his book, A Vision of the Anointed, “Much of the social history of the Western world over the past three decades has involved replacing what worked with what sounded good.” That is exactly what has happened with the problem-solving court movement.

Problem-solving courts and separation of powers

Problem-solving courts present separation of powers issues, both in how they are formed and in how they are operated. In creating and running problem-solving courts, the judiciary is identifying social problems, creating policies to address those problems, and implementing those policies. Our state and federal constitutions divide power between the three branches and reserve policymaking and implementation to the legislature and the executive branches respectively. These two branches are the most democratically accountable to the people. The judiciary, on the other hand, is the least accountable to the people, designed to be free of popular influence when deciding particular cases. Where the judiciary goes beyond deciding individual cases, as it does with problem-solving courts, it risks the despotic exercise of power.

In discussing the problem of the judiciary usurping the functions of the other branches of government, former U.S. District Court Judge, Morris B. Hoffman, writes in a UNC Law Review article entitled, The Drug Court Scandal, that:

There is no better measure of the institutional impropriety of drug courts than their own proponents’ expressed ideas about their purpose. The chief district attorney assigned to the Denver Drug Court put it as bluntly as anyone by explaining that the purpose of drug courts is “the cost-effective curtailment of drug abuse.” I respectfully submit that no court’s “purpose” should be to curtail a perceived social problem, no matter how lofty the curtailers’ motives or how scurrilous the perceived problem. Our function is to ensure that the rule of law is justly enforced. The job of curtailing a particular crime, or of achieving any other particular social end, is a legislative and executive function, not a judicial one. Only the legislative and executive branches have the imprimatur of public consensus. Judges, no matter the strength nor even the accuracy of our views about policy, have no right to make policy. Yet drug courts are the living embodiment of judge-created policy.

The way problem-solving courts are created impacts the separation of powers. Problem-solving courts are created and operated most frequently by judges or court bureaucracies. They are not, by and large, products of the legislative process. In the instances where legislatures have acted, it has been to formalize what the courts have already done, or to create statutes broadly laying out aspirational goals. This is the case in Indiana. Our statutes, adopted after the Indiana judiciary had already begun creating drug courts, broadly define problem-solving courts and assign the Indiana Office of Court Services with administration and oversight. This is an improper blurring of the lines between the branches of government.

Problem-solving courts also operate in a manner that shields them from the accountability the separation of powers doctrine upholds. Problem-solving courts essentially operate like administrative review boards in the executive branch. There is almost no appellate review of problem-solving court decisions. As University of Richmond School of Law professor, Erin Collins, writes in a University of California, Davis Law Review article entitled, The Problem with Problem-Solving Courts, appellate court review, “is inapplicable to problem-solving courts because, quite simply, they produce no judicial decisions to review. Within these specialty dockets, judicial actions are purely administrative as opposed to adjudicative.”  With no practical legislative or executive framework, realistic oversight, or democratic accountability, the judiciary has essentially carved out a problem-solving court fiefdom. Atop sits the judge as king.

Another problem in their operation is that Problem-solving courts employ a collaborative approach.  A team of “stakeholders” meets to attempt to reach consensus on how to handle a particular defendant’s case. These “stakeholders” are not legislatively or administratively created. They are appointed by the judge. No one voted for them to be deciding cases. In this model, judges are abdicating their authority to the unelected, unaccountable team. It is true that the judge has the ultimate say, but there is a strong bias toward relying on group agreement. As Morris writes in The Drug Court Scandal, “substantive decisions about a felony defendant are being made by some interbranch committee acting more like a support group than a court.”

Such an approach is at odds with the adversarial system that has prevailed in English and American jurisprudence for centuries. We have built up hundreds of years of tradition, rules, procedures, and practices around the adversarial process. Morris, again, states, “[T]he very instance this “cooperation” is achieved, the protections inherent in the adversary nature of our system are put at risk.”

This aligning of the roles of prosecutor, defense attorney and judge obliterates the separation of powers at the individual case level. The mixing-in of executive branch agency personnel such as social workers further dilutes the separation of powers.

And perhaps worst of all, the hands-on approach by the judge reduces the traditional role of the judge as neutral, detached magistrate to that of a case worker. Morris again:

…there is real institutional harm in this kind of social tinkering. Judges have the right to exercise only those powers necessary to dispose of the cases before us. When we succumb to the very human temptation to do more—to fill the void that is so achingly apparent in so many of the dysfunctional people we see every day—we not only risk being wrong, but we risk being imperial. I cannot imagine a more dangerous branch than an unrestrained judiciary full of amateur psychiatrists poised to “do good” rather than apply the law.

Problem-solving courts pose serious problems for the separation of powers. At the systemic level, the judiciary has acted outside of its lane to create these courts. Such a radical and risky change in policy for our court systems should have been made, if at all, by the legislature. The separated powers are mixed at the individual case level as well, doing damage to the adversarial system, and elevating despotism over due process. The separation of powers is fundamental to our system of governance. By professing to “do good” we are doing damage. 

Because it makes the judge happy

There is a lack of empirical evidence for the efficacy of problem-solving courts. There are also separation of powers issues raised by the creation and operation of problem-solving courts. 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.”

The compassion-industrial complex

With the rapid growth of problem-solving courts, a whole industry has sprung up around them. You might call it the compassion-industrial complex. This leads to interests and incentives that raise concerns.

On the front lines of the compassion-industrial complex are the “stakeholders.” Problem-solving courts employ a collaborative approach where a team of stakeholders meets to attempt to reach consensus on how to handle a particular defendant’s case. The team generally has a prosecutor, defense attorney, and a judge as members, but the bulk of the membership is made up of various types of social workers. There are case workers, licensed clinical social workers, therapists, drug counsellors, program coordinators, peer mentors, and others. Rarely do teams include psychiatrists or other highly qualified personnel. The jobs of these people are all reliant, at least in part, on the problem-solving court’s continued existence. The organizations they belong to rely on grants, occasionally from non-profits, but primarily from the state or federal government. To get and keep the grants, the organization must put up numbers. If you are not careful, the need for numbers can become the end itself. The overriding goal of a problem-solving court can become feeding the problem-solving court.

This “feeding” occurs when otherwise unqualified individuals are accepted into the program because the numbers are getting low, or when unsuccessful participants are not discharged because to do so would hurt the numbers. These allowances are made in the name of compassion, but it is far from compassionate to allow defendants to self-immolate to pad the end-of-year report.      

The next level of the compassion-industrial complex is the national-corporate apparatus. The main hub of this is the National Association of Drug Court Professionals (NADCP). The NADCP is the “premier training, membership, and advocacy organization for the treatment court model,” according to their website. Judges are the primary members of the NADCP, but it is tightly woven with corporate interests. The NADCP suffers from the same negative tendencies as the local teams. 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 points out some disturbing issues with NADCP.

NADCP proudly declares on its website that treatment courts “save considerable money for taxpayers,” and specifies that the courts “produce benefits of $6,208 per participant, returning up to $2 for every $1 invested.” In support of this claim, the website links to the National Institution of Justice’s 2011 Multi-State Adult Drug Court Evaluation (MADCE). The [MADCE] study did find that the “net benefit of drug courts is an average of $5,680 to $6,208 per participant, returning $2 for every $1 of cost.” Crucially, however, the MADCE researchers specify, “these findings are not statistically significant.” Yet, NADCP fails to mention this qualification of the research findings, as well as the researchers’ ultimate conclusion that, while drug courts reduce “costly criminal offending,” the courts are also expensive enough to offset those costs.”

Nor does the NADCP highlight other less favorable findings of the MADCE study, such as the researchers’ conclusions that “it now appears doubtful that drug courts produce a consistent reduction in incarceration” on the case that led to the individual’s participation in drug court.

In a separately published summary of their findings, the researchers explained, “drug courts do not appear to operate as a reliable alternative to incarceration on the precipitating case.”

These claims by the NADCP are amplified by state and local organizations promoting problem-solving courts and are used to support the growth of the courts.

In addition to the shaky empirical support for problem-solving courts and the claims the NADCP makes about them, financial interests further taint the process. Every year, the NADCP hosts a national conference. Problem-solving court team members from around the country descend on an attractive locale to absorb breakfast buffets and PowerPoint slides. It is a good conference, I’m told. Good speakers. National speakers, even. Plane tickets, hotel rooms, and conference fees are paid by local problem-solving court budgets, which are funded primarily by tax dollars with some non-profit contributions. A substantial portion of local problem-solving court budgets go to sending team members to the national conference. Perhaps not the highest and best use of resources. 

The real money, however, comes from the sponsors. The NADPC website unblushingly lists the corporate sponsors. Each one is a company that profits from providing services to problem-solving courts. I will append the full list to the bottom of this article, but it is primarily large companies that provide drug testing and electronic monitoring services. Their interest, of course, is in getting and keeping people in problem-solving courts.  

Within this context, the whole thing starts to feel a little creepy. Like the defendant is just a conduit directing taxpayer dollars to corporate profits and problem-solving court team members’ paychecks and pseudo-vacations. It reminds me of the way the machines in the Matrix movie put humans in battery pods to generate power for the robots. With the same rationale, too: “This is better for you.”   

Given these concerning conflicts and financial incentives, the continued use and expansion of problem-solving courts should be questioned. At a minimum, there should be stricter vigilance of actions taken in the name of compassion.

Conclusion

Problem-solving courts have grown and continue to grow rapidly across the nation, including here in Indiana. Despite anecdotal acclaim, empirical data does not show them to be effective. Even the studies that have been performed are marred by inconsistencies endemic to the operation of the courts. This means that there will likely never be reliable empirical data.

Nevertheless, new problem-solving courts are created all the time. It appears that the main driver of this is that they give judges something to do that many of them like to do. It provides internal and external rewards to the judges. A clear-eyed recognition of these facts, that evidence shows defendants do not benefit but the judges do, should make us uncomfortable.

Add to that discomfort the financial incentives surrounding “stakeholders” at the local and national level. While the financial interest is not overt, it certainly exists, and anyone claiming otherwise is being willfully blind or disingenuous.

Given these issues with problem-solving courts, we should pause their expansion so that we may think honestly and critically about whether they are the right approach. 

 

Appendix

NADCP CONFERENCE SPONSORS

Platinum Sponsors

Abbott Labs- toxicology testing

Invidior- pharmaceutical company

ThermoFisher Scientific- drug testing supplies

Gold Sponsors

Averhealth- drug testing supply company

RePath- product provides text message reminders to defendants and GPS monitoring

Silver Sponsors

Corrisoft- electronic monitoring

DTPM- drug testing company

Pharmchem- drug testing company

Reconnect- electronic communications between courts and defendants

Scram- digital equipment for community monitoring of defendants

Siemens- pharmaceutical company

Smartstart- ignition interlock devices

The Change Companies- curriculum for service providers

Bronze Sponsors

ACT- drug testing company

Children and Family Futures- research and training company

Equivant- software company for supervision management

Fivepoint Solutions- case management technology

Intoxalock- ignition interlock devices

Meetingmaker- digital case management

Qlabs- drug testing company

Roadguard- ignition interlock company

Seabrook- drug rehab facilities