CHAPTER 9
The previous chapter described the componentsof our legal system that have been in place forcenturies. Although, valuing precedent as it does,the law is slow to change, the last three decades havewitnessed various innovations that are important anduseful. These will be discussed in the present chapter.The first major area—alternative dispute resolution—has been applied in both criminal and civil contexts.The second major area of discussion is communityalternatives to standard prosecution. Our discussionof this area is framed within the Sequential InterceptModel, which identifies different points at whichcertain groups of individuals can be diverted fromstandard prosecution into an approach that is morerehabilitation oriented. The discussion will includerelevant research findings, which are very importantin considering the effectiveness of interventions atthese different stages.ALTERNATIVE DISPUTE RESOLUTIONIf you watch cable and online news and entertain-ment, you might get the impression that mostlawsuits are resolved by a trial by jury. In fact,most cases are resolved through negotiation or byalternative dispute resolution (ADR), and relativelyfew cases are settled in trials. In a 2001 study of courtsin 46 randomly selected counties in 22 states, theNational Center for State Courts found that thenumber of cases tried had decreased by 50% in10 years (Post, 2004c).The drop-off of trials in the federal courts—particularly civil trials—is even more dramatic. In 1962,11.5% of federal civil cases were decided in a trial, com-pared with 6.1% in 1982, 1.8% in 2002, and only 1.2%in 2009 (Qualters, 2010). On the criminal side, trialsalso decreased, though not as sharply. In 1962, 15.4%of criminal cases went to trial; in 2002 only 4.7%involved a trial (Galanter, 2004).These declines are attributable to several factors,including the perceived cost of litigation—the“trans-action costs,”in economists’language. Lawyers’feesto prepare for and try a case, as well as the fees paid toexpert witnesses, often make a trial economicallyunfeasible. In addition, federal courts pressure litigantsto settle or to plead guilty. The federal sentencingguidelines give criminal defendants an incentive toplead guilty because judges can decrease the length ofa sentence on the basis of“acceptance of responsibility”(which normally requires a guilty plea) (Galanter,2004). Finally, federal trials have decreased becauseit has been some years since Congress has passedsweeping legislation that creates liability for certainactions—legislation such as the Americans withDisabilities Act of 1990 (Qualters, 2010).In civil cases, federal judges are required toattempt to resolve disputes through ADR, and inboth state and federal courts, judges can require liti-gants to try to settle their cases without going to trial.Increasingly, American courts assume that cases willbe settled, not tried, to the point where a trial isviewed“as a failure of the system”(Sanborn, 2002,p. 25). Edmund Ludwig, a judge with over 30 yearsof experience, describes it this way:Litigation represents a breakdown in communi-cation, which consists in the civil area of theinability of the parties to work out a problemfor themselves and in the criminal area, ofineffectively inculcating society’s rules and theconsequences for violating them. Trials are themethod we have ultimately used to deal withthose breakdowns. However, the goal of oursystem is not to try cases. Rather, it is to achievea fair, just, economical, and expeditious result bytrial or otherwise (Ludwig, 2002, p. 217).Many cases are settled bynegotiation, withoutthe assistance of a third party. Negotiation might beformal, as happens when management and unionrepresentatives negotiate a labor contract, or informal,as when attorneys go back and forth in a series ofphone calls to settle a personal injury claim. Anotherinformal mechanism involves collaborative divorce, inwhich lawyers and psychologists work with a divorc-ing couple to finalize all issues without going to court.Typically, there is a heightened sense of trust, open-ness, and disclosure in collaborative divorce (Degoldi,2008). We describe one example in Box 9.1.As in trials, procedural justice considerationsare important in successful negotiations. People careabout both the outcome of negotiations and the fair-ness of the process. In a study in which law studentsrole-played attorneys in a simulated negotiation abouta contract dispute, participants thought negotiationswere fair when they believed that they had beenlistened to and treated with courtesy, and when they perceived the other party as trustworthy (Hollander-Blumoff & Tyler, 2008).ArbitrationOne form of ADR, bindingarbitration, bearsthe closest resemblance to a trial. When the partiesagree to binding arbitration, they agree to accept thedecision of an arbitrator. Salary arbitration in majorleague baseball is a good example of binding arbitra-tion. The contract between the owners and theplayers’union provides that players’salary disputesare settled by binding arbitration, and it furtherprovides that the arbitrator must accept either theowner’s offer or the union’s offer but cannot splitthe difference. The parties have an incentive to makean offer as close as possible to the player’s“value”(their estimate of the arbitrator’s valuation of theplayer’s worth). Although many cases require bindingarbitration, other cases are resolved by nonbindingarbitration. If one of the parties is dissatisfied withthe arbitrator’s decision, that person may ask that thecase be tried before a judge or jury.Arbitration, whether binding or nonbinding, usestrial-like procedures. The parties present evidence andargue the case, and the arbitrator makes a decision.Though initially promoted as a way to avoid the con-tentiousness and expense of a trial, in recent yearsarbitration has been criticized for being overly formaland time consuming (Stipanowich, 2010). Othermethods for resolving disputes, such as mediation(which we discuss later), are more streamlined.Summary Jury TrialThesummary jury trialis an interesting variationon arbitration. The concept was created by FederalDistrict Court Judge Thomas Lambros in the early1980s as a result of his difficulty resolving two per-sonal injury cases using other forms of ADR. Theparties in these cases refused to settle, each assumingthat it would get a more favorable verdict from a jury.Judge Lambros reasoned that chances for settlementwould increase if the parties had a sense of whata jury would do. He instituted an abbreviated andexpedited form of a jury trial that he suspectedwould be especially helpful in resolving relativelysimple, lower-value cases.A summary jury trial is much like a conventionaljury trial, though shorter. A jury is empanelled, and thelawyers tell the jurors what the witnesses would say ifthey were present. The lawyers argue the case and tryto answer the jurors’questions about the facts. Thejudge tells the jury what the law is and tries to answerjurors’questions about the law. The jurors then delib-erate and decide the case. In the original conception ofa summary jury trial, the“verdict”did not bind theparties, it was merely advisory. In recent years, verdictshave become binding and enforceable. Regardless ofthese variations, the intent is the same: the processeducates the lawyers and clients on how a conven-tional jury might view the facts and the law. Onceeducated, the lawyers and their clients are moreamenable to settling the case (National Center forState Courts, 2012). TheAmerican Bar Journalhas reported favorablecomments from lawyers and judges who had availedthemselves of this form of ADR (McDonough, 2004).Commenting on the summary jury trial, federal judgeWilliam Bertelsman said,I believe that substantial amounts of time can besaved by using summary jury trial in a few selectcases. Also...the summary jury trial gives theparties a taste of the courtroom and satisfies theirpsychological need for a confrontation with eachother. Any judge or attorney can tell you thatemotional issues play a large part in some cases.When emotions are high, whether betweenattorneys or parties, cases may not settle evenwhen a cost-benefit analysis says they should.A summary jury trial can provide a therapeuticrelease of this emotion at the expenditure ofthree days of the court’s time instead of threeweeks (McKay v. Ashland Oil Inc., 1988, p. 49).MediationAnother form of ADR,mediationinvolves a neutralperson (the mediator) who works with the litigantsand their lawyers to achieve a settlement of thecontroversy. The mediator does not have authority,as an arbitrator does, to decide the controversy. Rather,the mediator acts as a facilitator. Mediation ofteninvolvesshuttle diplomacy, a term associated with formerSecretary of State Henry Kissinger. Much as Kissingerwould“shuttle”between the two sides in internationaldiplomacy, the mediator goes back and forth betweentheparties,meetingfirstwithoneside,thenwiththeother, in an attempt to broker an agreement betweenthe two (Hoffman, 2011).One thinks of lawyers as eager to do battle—to slay their opponents with rhetorical swords.Increasingly though, disputants prefer procedures inwhich a neutral third party helps them to craft a reso-lution of their own; in short, people prefer mediation(Shestowsky, 2004). Why? People arerisk averse;they work to avoid taking risks. They prefer that con-troversies be settledby themrather than decidedforthem. A mediator can assist in facilitating a resolution,and people prefer the certainty of a settlement overthe uncertainty of arbitration or trial.Mediation also has a role in divorce proceedings.An alternative to collaborative divorce (in whichboth parties employ their own lawyers, who agreeto cooperate), a mediated divorce involves a thirdparty who helps the couple to dissolve their marriage.Psychologists have assessed whether a mediated divorceleads to more desirable outcomes than litigation.One remarkable study assessed parent–child contactand co-parenting in families whose custody disputeshad been resolved 12 years earlier by either mediationor litigation (Emery, Laumann-Billings, Waldron,Sbarra, & Dillon, 2001). Families who mediatedcustody showed more cooperation and flexibilitythan families who litigated. In particular, nonresidentialparents who mediated had more contact with their children and were more intimately involved in parent-ing, and fathers who mediated were much moresatisfied with their custody arrangements. Comparedto litigated divorces, mediation apparently encouragesparents to comply with divorce agreements, remainedinvolved in their children’s lives, and renegotiate rela-tionships in a more adaptive way.Beliefs about Alternative DisputeResolutionWhat form of ADR do people tend to favor? Theanswer to this question is important because ADRprocedures will be accepted and used only if theyare respected and considered legitimate. A recentstudy investigated the preferences for different disputeresolution features among people involved in actual dis-putes. They indicated their preferences for a particularprocess and set of rules. The most consistent finding wasthat participants favored options that offered themcontrol (e.g., a neutral third party helping disputantsto arrive attheir ownresolutions, and processes thatallow disputants to controltheir ownpresentation ofevidence) (Shestowsky & Brett, 2008).Should courts force litigants to try ADR beforesetting a case for trial? The reports from courts thatmandate ADR are generally positive. Attorneys likethe process, believing that it is fair and saves clientstime and money (Boersema, Hanson, & Keilitz,1991). The counterargument is that litigants have aconstitutional right to trial by judge or jury. Judgesare paid to enforce that right; mandating ADR under-mines it. According to Federal Judge G. Thomas Eisele(1991), mandatory ADR can lead to an unintendedeffect: some lawyers (he calls them“piranhas”)filemeritless claims, knowing that their claims will have“settlement value”in mediation.COMMUNITY ALTERNATIVES TOSTANDARD PROSECUTIONWe now move from ADR, which is practiced in bothcivil and criminal law, to community alternatives tostandard prosecution (criminal law only). Have youever wondered whether there was a more effectiveway than conviction and incarceration for our societyto respond to certain kinds of offenders? Drug abusewas once considered an indication of poor motivationand weak character; now it is treated as a disease. Butwhat about the offender who continues to break thelaw by stealing, possessing substances that are illegal,and behaving in a way that reflects being high? Ifsuch an individual were successfully treated fordrug abuse and monitored to ensure that she didnot continue to behave in illegal ways, that wouldbe a far better approach than incarceration. This isa description of the kind of offender who is well-suited for a drug court—aspecializedkindofproblem-solving court, developed to rehabilitateand monitor individuals in the community ratherthan incarcerate. Such problem-solving courts arediscussed in this section.There has been increasing attention over the lastdecade to community-based alternatives to convic-tion and imprisonment for certain individuals. Aswe will discuss, such community-based alternativeshave developed because they are more humane, lessexpensive, and make our society safer (or at least donot increase the risk of crime). Typically these indivi-duals are members of a certain subgroup whose expe-rience or mental health disorder might account fora number of minor offenses committed by membersof this group. For example, individuals with severemental illness—schizophrenia, bipolar disorder, majordepressive disorder, and other psychotic disorders—might have a greater likelihood of being arrested fordomestic disturbances, encounters with police, andinteractions with other citizens when the symptomsof such disorders are active. Individuals with seriousdrug problems may become involved in offenses suchas theft, prostitution, and public intoxication for rea-sons related directly to the need to buy drugs and theconsequences of taking them. Military veterans maybecome involved in offenses such as traffic violations,drug or weapon possession, or problematic interactionswith police, fueled in part by posttraumatic stressdisorder or traumatic brain injury. Each of theseexamples recognizes that some criminal offendinginvolves acting upon symptoms that could be con-tained with targeted treatment and rehabilitation.This is the basic philosophy underlying the devel-opment of community alternatives to standard crimi-nal arrest, prosecution, and incarceration. Three majorjustifications have been offered for the developmentand expansion of such community alternatives. Thefirst is humanitarian. In the words of the U.S. SupremeCourt, the Eighth Amendment (one part of whichstates that“cruel and unusual punishments”may not children and were more intimately involved in parent-ing, and fathers who mediated were much moresatisfied with their custody arrangements. Comparedto litigated divorces, mediation apparently encouragesparents to comply with divorce agreements, remainedinvolved in their children’s lives, and renegotiate rela-tionships in a more adaptive way.Beliefs about Alternative DisputeResolutionWhat form of ADR do people tend to favor? Theanswer to this question is important because ADRprocedures will be accepted and used only if theyare respected and considered legitimate. A recentstudy investigated the preferences for different disputeresolution features among people involved in actual dis-putes. They indicated their preferences for a particularprocess and set of rules. The most consistent finding wasthat participants favored options that offered themcontrol (e.g., a neutral third party helping disputantsto arrive attheir ownresolutions, and processes thatallow disputants to controltheir ownpresentation ofevidence) (Shestowsky & Brett, 2008).Should courts force litigants to try ADR beforesetting a case for trial? The reports from courts thatmandate ADR are generally positive. Attorneys likethe process, believing that it is fair and saves clientstime and money (Boersema, Hanson, & Keilitz,1991). The counterargument is that litigants have aconstitutional right to trial by judge or jury. Judgesare paid to enforce that right; mandating ADR under-mines it. According to Federal Judge G. Thomas Eisele(1991), mandatory ADR can lead to an unintendedeffect: some lawyers (he calls them“piranhas”)filemeritless claims, knowing that their claims will have“settlement value”in mediation.COMMUNITY ALTERNATIVES TOSTANDARD PROSECUTIONWe now move from ADR, which is practiced in bothcivil and criminal law, to community alternatives tostandard prosecution (criminal law only). Have youever wondered whether there was a more effectiveway than conviction and incarceration for our societyto respond to certain kinds of offenders? Drug abusewas once considered an indication of poor motivationand weak character; now it is treated as a disease. Butwhat about the offender who continues to break thelaw by stealing, possessing substances that are illegal,and behaving in a way that reflects being high? Ifsuch an individual were successfully treated fordrug abuse and monitored to ensure that she didnot continue to behave in illegal ways, that wouldbe a far better approach than incarceration. This isa description of the kind of offender who is well-suited for a drug court—aspecializedkindofproblem-solving court, developed to rehabilitateand monitor individuals in the community ratherthan incarcerate. Such problem-solving courts arediscussed in this section.There has been increasing attention over the lastdecade to community-based alternatives to convic-tion and imprisonment for certain individuals. Aswe will discuss, such community-based alternativeshave developed because they are more humane, lessexpensive, and make our society safer (or at least donot increase the risk of crime). Typically these indivi-duals are members of a certain subgroup whose expe-rience or mental health disorder might account fora number of minor offenses committed by membersof this group. For example, individuals with severemental illness—schizophrenia, bipolar disorder, majordepressive disorder, and other psychotic disorders—might have a greater likelihood of being arrested fordomestic disturbances, encounters with police, andinteractions with other citizens when the symptomsof such disorders are active. Individuals with seriousdrug problems may become involved in offenses suchas theft, prostitution, and public intoxication for rea-sons related directly to the need to buy drugs and theconsequences of taking them. Military veterans maybecome involved in offenses such as traffic violations,drug or weapon possession, or problematic interactionswith police, fueled in part by posttraumatic stressdisorder or traumatic brain injury. Each of theseexamples recognizes that some criminal offendinginvolves acting upon symptoms that could be con-tained with targeted treatment and rehabilitation.This is the basic philosophy underlying the devel-opment of community alternatives to standard crimi-nal arrest, prosecution, and incarceration. Three majorjustifications have been offered for the developmentand expansion of such community alternatives. Thefirst is humanitarian. In the words of the U.S. SupremeCourt, the Eighth Amendment (one part of whichstates that“cruel and unusual punishments”may not as well as decreasing the number of incidents in whichthe individuals or the police officers are harmed. Forinstance, an individual with bipolar disorder, off medi-cation and in the midst of a manic episode, might betaken to the local psychiatric emergency room ratherthan arrested for disturbing the peace and battery on anofficer if encountered by CIT-trained police. We sharea representative story in Box 9.2, provided by a CIT-trained officer in Florida, describing the difference thatsuch CIT training can make in correctional facilities aswell as in the community.What is the evidence that CIT is effective indiverting such individuals, resulting in more treatmentdispositions and fewer arrests? Research on this topichas been summarized recently (Heilbrun et al., 2012)on several points related to CIT: characteristics andknowledge of CIT-trained officers; characteristics ofdiverted individuals; and outcomes such as the num-ber of diverted individuals, services delivered to them,and number of arrests following police encounters.CIT-trained police officers reported better prepara-tion for handling interactions with those experienc-ing a behavioral health crisis (Borum, Williams,Deans, Steadman & Morrissey, 1998), were morelikely to help individuals obtain mental healthservices (Compton, Bahora, Watson, & Oliva, 2008),and were less likely to use physical force (Comptonet al., 2008; Skeem & Bibeau, 2008). Jail days werefewer for such individuals, and costs were shiftedfrom criminal justice to treatment sources; divertedparticipants were also more likely to utilize mentalhealth treatment (comply with medication, use hospitalstay and emergency room visits, participate in counsel-ing) and less likely to be treated for substance abuse ona residential basis (Steadman & Naples, 2005). Follow-ing such diversions, those who were diverted did notdiffer from others in their number of arrests overthe next year (Teller, Munetz, Gil, & Ritter, 2006;Watson et al., 2010).Post-Arrest: Initial Detention/Initial Hearing andPre-trial Services (Intercept 2).If an individual isarrested upon first encounter with police or anotherfirst responder, the second intercept identifies thepoint at which that person is brought to“first appear-ance”before a judge. This occurs before the individualenters a plea or proceeds to trial. In some jurisdictions,there is a specialized team that functions as part ofthe court system, identifying defendants who wouldbe appropriate for diversion for behavioral healthreasons. While some specialized problem-solvingcourts (e.g., drug court, mental health court, veterans’court, community court) function at this stage, it ismore typical to have them take referrals at intercept 3.Accordingly, the second intercept is more likely toresult in a diversion directly to treatment, or theassignment of specialized probation.Intercept 2 has a number of studies using effec-tiveness criteria like those employed in studies onIntercept 1. Addressing outcomes for individuals who receive diversion following arrest, investigators haveexamined services use, mental health, substance use,offending, and quality of life (Broner, Lattimore,Cowell, & Schlenger, 2004, Broner, Mayrl, &Landsberg, 2005); they have also employed criteriasuch as whether the individual had housing (NationalGAINS Center, 2002).Almost all the existing research identifies differ-ences between diverted and non-diverted individualsat this stage. It is not necessarily accurate to conclude that such differences areattributableto the diversion; thatwould require the use of experimental designs (usingrandom assignment to condition) that are virtuallyimpossible to implement in a criminal justice context.(Judges and clinical administrators are understandablyreluctant to allow random assignment of defendants tocondition, because an unfortunate outcome such as aserious offense committed by an individual in a no-treatment control group is hard to justify after the tragicevent.) However, correlational designs, particularlywhen accompanied by a comparison group, can provideuseful information on the strength (although not thecausal direction) of the relationship between the diver-sion variable and the different outcomes. For example,the studies described later in this paragraph using acomparison group typically derive their groups fromtwo sources—individuals who have been diverted,and those in a standard condition such as probation—and consider how these two groups fare on certainrelevant outcomes. This is sometimes called a quasi-experimental design, but it does not have the genuineexperimental attribute (random assignment to group)that allows the researcher to control all variables exceptthe one of interest—diversion status—and hence drawconclusions about whether diversion causes differencesin outcomes. For this intercept, several investigatorsnoted that diverted individuals had more time in thecommunity (Broner et al., 2005; Hoff, Baranosky,Buchanan, Zonana, & Rosenheck, 1999; Lambertiet al., 2001; Steadman & Naples, 2005), fewer hospitaldays in the community (Lamberti et al., 2001), fewerarrests (National GAINS Center, 2002; Shafer,Arthur, & Franczak, 2004), and less homelessness(National GAINS Center, 2002).Post-Initial Hearings: Jail/Prison, Courts, ForensicEvaluations and Commitments (Intercept 3).Thethird intercept in the Sequential Intercept Model is themost recognized of the five. This is the stage at whichproblem-solving courts (also called specialty courts)such as drug courts, mental health courts, homelesscourts, domestic violence courts, and community courtshave been developed. There have also been courtsdeveloped for other groups, such as veterans and pros-titutes, but these problem-solving courts are sufficientlynew that there has not been research investigatinghow well they work. Specialized problem-solvingcourts are also discussed later in this book in Chapter 15.Problem-Solving Courts.Certain offenders are sum-moned back to court and sent to prison again and again.For them, the criminal justice system has become adumping ground (Wiener, Winick, Georges, & Castro,2010). Fed up with this model of“revolving-door”justice, states and communities increasingly are creat-ing problem-solving courts (also called specialtycourts) that combine the traditional criminal justicesystem with specialized treatment-oriented principlesto address underlying causes of antisocial behavior(Casey & Rottman, 2005).The premise of specialty courts is that the legalsystem should help troubled individuals cope with thechronic problems that brought them into contactwith the criminal justice system in the first place.This collaborative, nonadversarial nature of specialtycourts, in which judges work side by side with mentalhealth professionals, community agencies, and offen-ders themselves, focuses more on meeting the ongo-ing needs of participants than on punishing them.This approach, in which the law is used as avehicle to improve people’s lives, is calledtherapeu-tic jurisprudence. Examples include courts special-ized to deal with issues of drugs, mental health,homelessness, and domestic violence, as well as veter-ans’issues, and courts that integrate these problems,for example, by applying mental health court techni-ques in domestic violence cases (Winick, Wiener, Cas-tro, Emmert, & Georges, 2010). Regardless of theissue, all specialty courts involve a few common ele-ments, including immediate interventions such as drugor alcohol counseling, frequent court appearances in anonadversarial context, an interdisciplinary teamapproach, and a set of clearly defined objectives (Wat-son, Hanrahan, Luchins, & Lurigio, 2001).Working together with mental health providers,attorneys, and probation officers, judges in thesecourts become social workers and cheerleaders asmuch as jurists. Rather than impose punishment,they offer opportunities for people to deal withtheir addictions, violent tendencies, and squabbleswith their landlords (Hartley, 2008). Those whocomply with the judges’orders may have their sen-tences reduced or dismissed.Although some aspects of these courts aretraditional—for instance, judges wear robes—manycharacteristics of specialty courts are unconventional.For example, the people who appear in court are oftencalled clients rather than defendants. These“clients”areable to speak directly to the judge, rather than commu-nicating through their attorneys. Judges often have agreat deal of information about the clients and may interact with them over a number of years. On occasion,a friendly relationship develops, as described in Box 9.3.Drug Courts.The most common form of specialtycourt is drug court, created to deal with offenderswhose crimes are related to addiction. Drug courtsdeveloped in response to an increase in antidrug lawenforcement efforts and stiffer sanctions for drug offen-ders during the 1980s and 1990s. By 2011 there weremore than 2,000 adult drug courts and 500 juveniledrug courts in the 50 states and many more in theplanning phase (Shaffer, 2011).Drug courts were developed to address the abuse ofalcohol and other drugs and criminal activity related toaddictions. Drug courts divert cases from the traditionalcriminal justice system and link drug-addicted offenderswith treatment programs and extensive supervision.In exchange for successful completion of the program,the court may dismiss the original charge, reduce or setaside a sentence, assign some lesser penalty, or make acombination of these adjustments.Theultimategoal,inaddition to improving the lives of drug-addicted indivi-duals, is to reduce the number of drug offenders in prisons.How successful are drug courts in reducing drug-related criminal activity? The findings are encouraging,though some drug courts work better than others.Ameta-analysis—a statistical technique that combinesthe results of individual studies with similar researchhypotheses—of 60 studies that compared a treatment condition to a control condition, and that included atleast one measure of criminal behavior as an outcomemeasure, concluded that drug courts have a significant,though modest, effect on recidivism. Offenders assignedto drug court had a 45.5% recidivism rate, while thecomparison group had a 54.5% recidivism rate (Shaffer,2011). The most successful programs were those thatexcluded violent offenders, worked with and treatedoffenders who had not yet entered a plea, andemployed well-qualified and competent staff whoensured that the program was delivered as designedand who interacted positively with participants.According to Seattle Judge J. Wesley Saint Clair,“Drug courts work, and not because they’re fuzzy—letme tell you, I can be a hard man to deal with.”Oneoffender to appear in Judge Saint Clair’s courtroomwas 36-year-old Jenifer Paris, who, after 22 years ofheroin and cocaine use and stretches of prostitutionand homelessness, was now clean.“You guys are thefirst people to believe in me...I’mfullofgratitudefor the opportunity and for you not kicking me out,”she said, tearfully. Replied Judge Saint Clair with a hintof a smile,“We’re not done yet”(Eckholm, 2008).Problem-solving courts have particular appealwithin communities, as judges often interact withtreatment providers and advocacy groups in a waythat is not usually seen in traditional courts. Judgeslike Judge Saint Clair often play a much more activerole, setting aside judicial restraint and impartiality infavor of more direct involvement in the interventionsand responses of problem-solving court participants.Mental Health Courts.The number of individualshospitalized long term for mental illness has droppedsignificantly in the past several decades. Butdeinstitu-tionalization, the long-term trend of closing mentalhospitals and transferring care to community-based men-tal health treatment facilities, has left many mentally illindividuals without services or medication. As a result,the mentally ill have experienced higher rates of home-lessness, unemployment, alcohol and drug use, and physi-cal and sexual abuse. They also experience high rates ofincarceration: 17% of men and 34% of women in jailssuffer from a serious mental illness or post-traumatic stressdisorder (Steadman, Osher, Clark Robbins, Case, &Samuels, 2009). Unfortunately, most local jails lack treat-ment resources and are highly stressful environments,especially for people suffering severe psychiatric illnesses.According to thecriminalization hypothesis,asubset of mentally ill offenders committed and werearrested for offensescausedby their untreated symptomsof mental illness. Mental health courts were developedfor offenders dealing with serious mental illness andoperate to“decriminalize”this population. By 2011,there were approximately 250 mental health courtsin the United States, with more in the planningstage (Sarteschi, Vaughn, & Kim, 2011).Following the drug court model, the first decisionis whether to divert the offender from the regular crim-inal courts to mental health court–mandated treatmentprograms. This decision, which usually requires theconsent of both the offender and the victim, is madeafter an evaluation of the offender and by consideringthe nature of the offense. If the offender is diverted, themental health team prepares a treatment plan to lead tolong-term psychiatric care and reintegration into soci-ety. Close monitoring is essential. Defendants are oftenassigned to a probation officer who is trained in mentalhealth and who carries a greatly reduced caseload inorder to provide a more intensive level of supervisionand expertise. The charges are dismissed if the offenderfollows the treatment plan (Lurigio, Watson, Luchins, &Hanrahan, 2001).Evaluations of mental health courts suggest thatthey have been moderately effective in linking indi-viduals to treatment services and in reducing recidi-vism (Sarteschi et al., 2011), as long as the“full dose”of treatment is provided. People who completed atreatment program associated with a rural North Car-olina mental health court were 88% less likely to reci-divate than people who did not complete treatment(Hiday & Ray, 2010). Although findings are limited,it appears that mental health courts are also cost effec-tive, reducing the need for services such as psychiatricemergency room visits and other crisis interventions.There are two broad concerns associated withmental health courts, however. First, participantsmay feel coerced into participating. Redlich, Hoover,Summers, and Steadman (2010) interviewed 200 par-ticipants and found that although most said theyagreed to participate, the majority were unawarethat the program was voluntary and did not under-stand many of the nuances of the program, leadingresearchers to question whether diversion to mentalhealth courts is truly voluntary.The second concern involves the selection ofparticipants. Specialty courts, including mental healthcourts, admit only a fraction of the people who areeligible, and admission decisions typically involvemultiple perspectives and parties (e.g., clients, treat-ment providers, judges, prosecutors, defense attor-neys, and victims) (Wolff, Fabrikant, & Belenko, 2011). Recent studies suggest that gender and racialbias may influence the way that potential clients areidentified, recruited, and eventually selected to partic-ipate. Specifically, Caucasian males are overrepre-sented in mental health courts. According to ameta-analysis of 18 studies (Sarteschi et al., 2011),the majority of participants in mental health courtsare Caucasian males in their mid-30s, whereasAfrican-American males constituted the largest demo-graphic group in prisons and jails in 2007 (Sabol &Couture, 2008) and psychiatric diagnoses are moreprevalent among disadvantaged minority groups(Minsky, Vega, Miskimen, Gara & Escobar, 2003).A related concern is the possibility that the selectionprocesses, rather than the interventions provided, accountfor the modest positive outcomes associated with partici-pating in mental health courts. This could happen if onlythose potential clients who accept their mental disorderand who are amenable to treatment are invited to partic-ipate. After evaluating the selection procedures in sixdemographically diverse mental health courts, Wolff etal. (2011) concluded that client selection might explainfindings on the effectiveness of mental health courts.Homeless Courts.People living on the streets arefrequently cited for public nuisance offenses such asdrinking in public and loitering, and often fail toappear when summoned to court. As a result, theyare unable to access vital services such as housing,employment opportunities, and public assistance.Homeless courts were started in southern Califor-nia in the late 1980s. They are designed to reach outto marginalized individuals, address the underlyingproblems that resulted in their homelessness, and rein-tegrate these people into society. Homeless“court”istypically held in shelters or agencies that serve thispopulation. Rather than being fined or taken into cus-tody, participants are given alternative sentencesincluding assignment to programs and activities suchas employment training, counseling, AlcoholicsAnonymous meetings, and volunteer work.New York City has created a variant on thisapproach termed community courts (discussed in moredetail later in this section) in Times Square and the RedHook area of Brooklyn (Post, 2004a). Meeting in arefurbished Catholic school, the judges, prosecutors,and defenders in the Red Hook community court seetheir goal as bettering the quality of life for citizens.Theyknowthepeopleofthecommunityandmakeita point to know the offenders and to make sure theoffenders know them.“The clerk of court hasbeen known to stop her car at street corners and telldefendants the judge has issued a warrant for them andthey’d best get over to court”(Carter, 2004, p. 39). Theresult is a reduction in low-level crime and decreasedrecidivism by offenders. Some courts aim to reduce home-lessness by dealing with landlord and tenant issues andaddressing the underlying causes of homelessness—mental illness, poor job skills, and language barriers.Domestic Violence Courts.Historically, legal res-ponses to domestic violence cases were fragmentedwith different court divisions issuing restrainingorders, prosecuting perpetrators, and protecting chil-dren. Victims have been considered merely“witnesses”and the needs of children have been largely ignored(Casey & Rottman, 2005). In recent years, though,domestic violence courts have coordinated efforts tohold perpetrators accountable, enhance victim andchild safety, and promote informed judicial decisionmaking. Domestic violence court personnel work withcommunity-based agencies to strengthen the entirecommunity’s response to domestic violence (Sack,2002). There are now more than 300 domestic violencecourts in the United States (Casey & Rottman, 2005).Like other specialty courts, domestic violence courtsinvolve judges and staff specially trained in the relevantdomain, coordination among community resources, andclose monitoring of the perpetrator both before andafter case disposition. But domestic violence courts differfrom other specialty courts in important respects. Theystartfromthepremisethatoffenders’behavior is learnedrather than rooted in a treatable addiction or illness.Therefore, court proceedings are primarily adversarialrather than therapeutic. They often involve both victimand offender attempting to reach agreement on protec-tion orders. The needs of children are considered, andco-occurring child abuse and neglect are addressed.Although few studies have evaluated the effective-ness of domestic violence courts, including their ability toreduce recidivism (Wiener et al. 2010), victims, perpe-trators, advocates, and judges have generally reacted pos-itively. Both victims and perpetrators express satisfactionwith the court processes and outcomes. Compared withtraditional courts, domestic violence courts processcases faster and have higher rates of guilty pleas. Inaddition, perpetrators are more likely to comply withjudge-ordered conditions (Casey & Rottman, 2005).Community Courts.In contrast to drug courts andmental health courts, each of which is characterized byjurisdiction over a very specific group, a community courtisneighborhood-focused and designed to addresslocal problems such as vandalism, prostitution, shoplift-ing, vagrancy, and the like. Community courts use prob-lem solving and strive to create relationships with outsidestakeholders such as residents, merchants, churches, andschools (Center for Court Innovation, 2012).Community court participants generally like howthey are treated in this kind of court. Participantssee them as fairer than traditional courts (Frazer,2006), and give them high marks in achieving goalssuch as working productively, assigning usefulcommunity service, and treating participants equally(Justice Education Center, 2002). Perhaps one reasonfor such favorable ratings has been the use of alterna-tive sanctions by community courts; they are less likelyto incarcerate individuals as part of disposition ofcharges (Hakuta et al., 2008). Although such courtsare slightly more expensive when measured by costper case, they are also associated with higher levels ofcompliance with sanctions and greater reduction ofparticular outcomes such as prostitution, illegal vend-ing, and other problems particular to communitycourts (Kralstein, 2005). We provide one example ofa community court in Box 9.4. Veterans’Courts.The newest version of specialtycourt, veterans’courts, was launched in 2008 toaddress the complicated psychological and legal pro-blems of members of the U.S. military who havereturned from war. There are now dozens of suchcourts across the country.More than 2 million Americans have served in thewars in Iraq and Afghanistan,making these the largestdeployments since the Vietnam War. Approximatelyone-third of them suffer from posttraumatic stress dis-order (PTSD), traumatic brain injury, depression, orother mental illness, and one-fifth are addicted to drugsor alcohol (Marvasti, 2010). Sadly, only about half ofthe veterans with PTSD or depression have soughthelp, and of those, only about half received satisfactorycare (Tanielian & Jayco, 2008). Given their trainingin the military to react immediately to any perceivedthreat, it is not surprising that thousands of returningveterans have reacted impulsively and violently inheated situations. Sometimes, as a result, they havebeen arrested and charged with serious criminal offenses,including child abuse, sexual assault, and homicide.In a typical veterans’court, a district attorneymay opt to defer prosecution or offer a plea bargainto a reduced charge if it is clear that the offense wasrelated to the veteran’s disability and the veteranagrees to seek treatment. Veterans who plead guiltyto a nonviolent felony or misdemeanor are teamedwith volunteer veteran mentors who ensure that theoffender adheres to a strict regimen of counseling,personalized rehabilitation programs, and courtappearances. Judges may issue alternative sentencesthat require offenders to seek psychological treat-ment. By completing the required program, anoffender may avoid going to prison. Whether theseprovisions should be made available to veteranscharged with felonies is a matter of ongoing debate.Because these programs are so new, there are very few studies of their effectiveness, though the sparsedata that exist suggest that offenders who arediverted to veterans’court are less likely to reoffendthan those whose cases go through the traditionalcriminal justice system (Mador, 2010).Criticisms of Problem-Solving Courts.Despite theapparent successes of problem-solving courts, theyhave also been criticized. One concern is that regard-less of the type of specialty court, they are presidedover by middle-class judges who inevitably reflecttheir own middle-class values and who may becomeinappropriately paternalistic in what they require ofpeople (Eaton & Kaufman, 2005). Some have arguedthat problem-solving courts lack legitimacy becausethreatening punishment to coerce rehabilitation isunfair and because guilt or innocence is not deter-mined by a trial (Casey, 2004). Prosecutors and publicdefenders have expressed concern over the“socialworker”roles inherent in drug court philosophy; pro-secutors feel pressured to favor rehabilitation of theoffender over protection of society, and defendersfeel pressured to plead their clients guilty and to informthe court of clients’failure to comply with the terms ofprobation (Feinblatt & Berman, 2001). Finally, socialscientists worry about the lack of rigorous, empiricalstudies that assesshowspecialty courts influence (or failto influence) offenders’conduct and what impact theyhave on the underlying social and psychologicalproblems of offenders (Wiener et al., 2010).In spite of these criticisms, problem-solvingcourts have shown remarkable growth and the abilityto address some of the contributors to criminaloffending that respond to interventions. As a result,they have the potential to reduce recidivism rates andto improve the lives of participants and their families.Problem-solving courts will very likely continue todevelop and evolve, focusing on the reasons whypeople are in court in the first place.Research on Intercept 3 of the Sequential Inter-cept Model is the most mature and consistent of theintercepts described thus far. Specialty courts ofdifferent kinds have been studied, with the generalfocus on the particular characteristics of participants,the perceptions of favorability on the part of suchparticipants, and outcomes such as cost, the natureof appropriate services delivered, and change injustice-relevant outcomes such as rearrest and subse-quent incarceration. The evidence on the delivery ofappropriate services, the perception of favorability onthe part of participants, and the reduction of the inci-dence of subsequent arrest and incarceration seemslargely favorable for drug courts, community courts,and mental health courts.The Sequential Intercept Model describes twoother points at which specialized interventions canoccur for offenders in the community: during the tran-sition from incarceration back to the community (thereentry process) and while on parole following releasefrom incarceration. These are both discussed later inthis book, in Chapter 15.The Future of Community-BasedAlternatives to ProsecutionThe alternatives to traditional prosecution describedin this chapter have grown substantially during thelast two decades. Part of their appeal is their bipartisannature. For conservative legislators who focus on pub-lic safety and cost, there is growing evidence that alter-native approaches such as specialized police respondingand problem-solving courts reduce the risk of criminaloffending and also cost the criminal justice system less(although they may shift costs to systems that deliverrehabilitation services). For liberal legislators who mightbe inclined to emphasize rehabilitation, there is morespecific treatment and rehabilitation associated withsuch alternative approaches. But such approaches havegrown partly because the original areas of rehabilitationneed (e.g., substance abuse, mental health) have beenexpanded to include a number of areas as well.Will this trend continue? Will we see thedevelopment of“trauma courts”or other similarproblem-solving courts? If so, we hope that research
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