Problem-solving courts and separation of powers

This is the second installment in a series offering criticism of problem-solving courts. The first installment pointed out the lack of reliable data supporting problem-solving courts. You can read it here. This piece will cover separation of powers issues related to these courts.

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.