The Problem of Problem-Solving Courts

Abstract

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively – at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing the role of judges in creating and sustaining the problem-solving court movement. It contends problem-solving courts do effectively address a problem – it is just not the one we think. It argues that these courts revive a sense of purpose and authority for judges in an era marked by diminishing judicial power. Moreover, it demonstrates that the courts have developed and proliferated relatively free from objective oversight. Together, these new insights help explain why the problem-solving court model endures. They also reveal a new problem with the model itself – its entrenchment creates resistance to alternatives that might truly reform the system.

Keywords: criminal justice reform, courts, problem-solving courts, drug courts, mental health courts, judges, judging, veterans courts, evidence-based reform, criminal procedure, sentencing, punishment