Are Problem-Solving Courts Impeding Progress?

“When New York State created a network of 12 Human Trafficking Intervention Courts, criminal justice professionals hailed it as an innovation,” writes Christina Goldbaum for the New York Times. “The courts send people into counseling sessions to help them leave the multibillion-dollar sex trade while dismissing their charges and sealing their records.” New York’s court isn’t alone. Courts like these, which address specific issues and try to offer a more understanding, less punitive experience than ordinary criminal court, have proliferated nationwide. But New York’s “have come under increasing criticism, six years into their operation, that they are not living up to their promise.”

“The creation of a specialized, ‘problem-solving’ court is a ubiquitous response to the issues that plague our criminal legal system,” writes law professor Erin Collins in the forthcoming academic article “The Problem of Problem-Solving Courts.” “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.”

The drug court, which Collins calls the “prototypical problem-solving court,” opened 30 years ago and since then, various courts have modeled themselves on it. “Treatment courts, such as mental health courts, drug courts, and homelessness courts, attempt to address an issue that is believed to be criminogenic. Accountability courts, such as domestic violence courts and community courts, stress the need to enhance accountability for certain kinds of offenses. And status courts, such as veterans courts and girls courts, aim to address the purportedly ‘unique needs’ of certain populations.” All of them claim to “solve a problem that would otherwise lead to repeated interaction with the criminal legal system.” Proponents say they do so effectively. “But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking.” Despite that, these courts continue to operate, and their numbers continue to increase.

“While much of the data about problem-solving court efficacy is ambiguous or inconsistent, one metric of success seems clear: judges like them,” Collins writes. She contends that problem-solving courts “do effectively address a problem—it is just not the one we think.” These courts “revive a sense of purpose and authority for judges in an era marked by diminishing judicial power.” Judges describe their experiences presiding over problem-solving courts as the most rewarding and satisfying of their careers. Indeed, the origin of many of these specialized courts is the same: “A pioneering judge notices a problem with the way the criminal justice system treats a certain kind of offense or offender and creates a specialized court to address that problem.”

This is indeed the origin story of the New York trafficking courts. In the early 2000s, Queens Criminal Court Judge Fernando M. Camacho began noticing that many of the people who came before him were trapped in a cycle: “Soliciting sex led to arrests that landed them in his courtroom, and then earned them criminal records that made it hard to find work outside the sex trade,” reports Goldbaum. “My gut told me they were not criminals,” Camacho said. “They were not doing this voluntarily.” He then began informally connecting people he believed to be sex-trafficking victims to volunteer service providers. His experiment became the Human Trafficking Intervention Courts in 2013. Next year, a 13th court will be added in Schenectady County.

This judge-centered dynamic isn’t inherently troubling, Collins writes, but it becomes so considering that problem-solving courts are largely unregulated. Collins demonstrates that judges themselves “often wield tremendous power over these courts, deciding whether they will open in the first place and how they will operate. Thus, those who find much satisfaction in this court process also play a central role in creating and sustaining these institutions. As a result, they have become self-reinforcing institutions that are protected from meaningful external scrutiny.”

One problem-solving court, in Austin, Texas, exemplifies the dangers of this lack of regulation. It is a court devoted to domestic violence charges. According to Krista Chacona, a criminal defense attorney who has practiced in that court part, the judge who presided over the courtroom for many years, and recently retired, was not impartial. He allowed victims advocate groups to assume a prominent support role in the court. The recently retired judge’s wife served on the board of a prominent domestic violence advocacy group while he was on the bench.

“The Constitution says we’re supposed to be protecting the rights of the accused,” Chacona told the Daily Appeal in a phone interview. But “there’s an advocacy group here that runs a shelter for domestic violence victims, and they have a [conspicuously branded] van parked right in front of the court entrance so all potential jurors have to walk past it.” The advocates “sit in jury box during protective order hearings and work closely with prosecutors. They were an integral part of the court and the culture. It doesn’t give you a sense that you’re going to get a fair shot when you walk in the door, as the defendant.” It all contributes to what Chacona describes as a “savior complex” on behalf of the complainants. Chacona said the judge also dragged cases out by granting continuances, which artificially bumped the caseload up in what she believed was an attempt to get an additional domestic violence courtroom.

In a letter to the incoming judge that Chacona wrote as presiding director of the Austin Criminal Defense Lawyers Association, she expressed concern about “the lack of even the appearance of impartiality by the court. … The previous judge had strong personal and professional ties to many of these [advocacy] groups and frequently referenced literature and studies advanced by these advocates, that was not admitted into evidence, when ruling on motions or making findings in hearings. There is deep concern that you will continue this practice, as you too are a long-time prosecutor of family violence cases with connections to the same groups, lecturing about intimate partner violence as recently as 2 weeks ago (after your appointment as judge).”

Does Chacona think we should give up on specialized courts, or at least this one? “There’s probably something of value, something to be said for the particularized experience” gained from handling the same kind of cases, she said. “But people get lost in the idea of ‘were saving victims,’ and they have to remember that this is still an adversarial system and you’re still not guilty just from an accusation.”

This comment resonates with this writer’s experience practicing in the human trafficking court in the Bronx. The judge seemed determined to take a kind, nonadversarial stance toward my clients, but throughout, they were acutely aware that there were criminal charges pending against them and that they were still within an adversarial system that could turn on them at any time. This was a power imbalance that my clients could not ignore, and it left them little room to contest their charges, as was their constitutional right. If they did, they were told they were in denial or penalized. The best option for them was to conform to the judge’s idea of what they were likely experiencing and take whatever program or plan they were offered. Many of them told me that it was not empowering. It was condescending.

Collins concludes her article by warning that the entrenchment of the problem-solving court model “creates resistance to alternatives that might truly reform the system.” Indeed, in New York, the human trafficking courts have become part of a larger debate over whether sex work should be considered a crime in the first place. “Some point to the courts’ flaws as proof that problems with exploitation in the sex trade cannot be solved by law enforcement,” writes Goldbaum. “Others say the courts have opened the minds of law enforcement officials to the idea of decriminalizing prostitution, while serving as an entry point for people who might otherwise get no services at all.” But if Judge Camacho is correct that sex workers are “not criminals” and should not be treated as such, why should they be in a criminal court, facing criminal charges, in the first place? It is possible that problem-solving courts do a decent job at identifying problems in the way we prosecute people, but provide a profoundly inappropriate solution.