Archive for January, 2019

Thoughts About Sentencing

posted by Judge_Burke @ 19:24 PM
January 4, 2019

Michael Tonry (University of Minnesota – Twin Cities – School of Law) has posted two articles on SSRN. Professor Tonry is among the nation’s most thoughtful scholars on sentencing.  The first is Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again (Crime and Justice—A Review of Research, Forthcoming). Here is the abstract:

Predictions of dangerousness are more often wrong than right, use information they shouldn’t, and disproportionately damage minority offenders. Forty years ago, two-thirds of people predicted to be violent were not. For every two “true positives,” there were four “false positives.” Contemporary technology is little better: at best, three false positives for every two true positives. The best-informed specialists say that accuracy topped out a decade ago; further improvement is unlikely. All prediction instruments use ethically unjustifiable information. Most include variables such as youth and gender that are as unjust as race or eye color would be. No one can justly be blamed for being blue-eyed, young, male, or dark-skinned. All prediction instruments incorporate socioeconomic status variables that cause black, other minority, and disadvantaged offenders to be treated more harshly than white and privileged offenders. All use criminal history variables that are inflated for black and other minority offenders by deliberate and implicit bias, racially disparate practices, profiling, and drug law enforcement that targets minority individuals and neighborhoods.

The second is Fifty Years of American Sentencing Reform — Nine Lessons (Crime and Justice—A Review of Research, Forthcoming). Here is the abstract:

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice. Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending. Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up. Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime. Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines. Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes. Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.


Civil Therapeutic Courts?

posted by Judge_Burke @ 20:56 PM
January 3, 2019

A Theory of Civil Problem-Solving Courts

by Jessica Steinberg, George Washington University – Law School, New York University Law Review, Vol. 93, 2018, Forthcoming. Here is the abstract:

This article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated civil cases: rental housing and consumer debt.

Three structural conditions in the civil courts—high-volume dockets, systemic lack of counsel, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil justice system predictably ineffective in combatting recurring social issues such as substandard housing and unscrupulous debt collection. The heart of the problem-solving theory in drug courts is the availability of an alternative remedy: treatment over prison. In civil courts, the remedy itself is not necessarily deficient; it is access to the remedy that is compromised. Relying on two years of field research in an experimental court, this Article demonstrates how core drug court principles, such as naming the purpose of the court as solving a social problem, interdisciplinary collaboration, and a strong judicial role, can be manipulated to address process failures in the civil justice system and reimagine the courts as proactive institutions responsible for the pursuit of socially beneficial outcomes.

The Article also argues that a civil problem-solving theory survives many of the valid critiques levied against drug courts. In particular, drug courts have come under fire for playing a moralizing role and using compulsory treatment as a form of social control. A civil problem-solving court, however, would not exacerbate the negative impact of state power on already over-burdened groups. Instead, the targets of monitoring and behavior modification are the more powerful private actors to the litigation, such as property owners and debt buyers, who otherwise have been known to manipulate the courts—an instrument of the state—to evade their legal obligations and suppress individual rights.


A Court by Any Other Name

posted by Judge_Burke @ 0:36 AM
January 2, 2019

Hon. Peggy Hora (Ret.) posted this article to the Justice Speakers Institute:

Drug Treatment Courts (DTC) and those that have a similar outlook have been called “problem-solving, accountability, behavioral justice, therapeutic, problem oriented, collaborative justice, outcome oriented and constructive intervention courts.”1 All rely on therapeutic jurisprudence and non-adversarial justice and all designations refer to a different way of doing business where the focus is on treatment and recovery rather than adjudication and disposition.

Therapeutic Jurisprudence

It all began with the development of Therapeutic Jurisprudence(TJ) in the late 1980s.  The term was first used by Professor David B. Wexler,  Distinguished Research Professor of Law at the James E. Rogers College of Law, Tucson, Arizona, Professor of Law at the University of Puerto Rico and the Director of the International Network on Therapeutic Jurisprudence, in a paper delivered to the National Institute of Mental Health in 1987. Along with the late Professor Bruce Winick, Silvers-Rubenstein Distinguished Professor of Law and Professor of Psychiatry and Behavioral Sciences at the University of Miami in Coral Gables, Florida, they suggested the need for a new perspective, TJ, to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process.

Ten years later, Judges William Schma, Circuit Court in Kalamazoo, Michigan and Peggy Fulton Hora, Superior Court of California, were experienced drug treatment court judges who were interested in finding a jurisprudential basis for the DTC movement.  They found Wexler and Winick’s work, and, after meeting with them, decided it was a good fit.  In 1999 they, along with John T.A. Rosenthal, published the first article linking TJ with DTCs,2 “Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America.”

The Conference of Chief Justices and the Conference of State Court Administrators appointed a Joint Task Force “to consider the policy and administrative implications of the courts and special calendars that utilize the principles of therapeutic jurisprudence and to advance strategies, policies and recommendations on the future of these courts.”3  They were presented with a resolution supporting and encouraging the dissemination of therapeutic jurisprudence theory in the nation’s court system through DTCs. There was an objection to the words “therapeutic jurisprudence” and the body adopted “Problem-Solving Courts” as the appropriate name.  The resolution, passed in August of 2000, said it was “recognizing that courts have always been involved in attempting to resolve disputes and problems in society, but understanding that the collaborative nature of these new efforts deserves recognition.”4

Solution Focused Courts

Another decade or so later, Magistrate Michael King in Australia developed a bench book5 on these types of courts and found “solution-focused” to be a better term.

“The processes the court uses to develop solutions—therapeutic, inclusive of participants and the court team—and in the concept of the solution that is being sought—addressing underlying issues and promoting an ability to lead a constructive, happy and law-abiding life in the community.”6

“…[T]he concept of a ‘problem-solving court’ does not recognize the centrality of participants in bringing about their rehabilitation. Rather, it implies that it is the court that solves the problem. This is not simply an issue with terminology. An examination of the underlying principles of different types of problem-solving courts—with the exception of some mental health courts—suggests they give inadequate weight to or ignore the central importance of participants being involved in decision-making concerning their rehabilitation in order to foster internal sources of motivation to change.”7

Somewhere along the way, the term “problem-oriented courts” was developed in Australia.  However, the Law Reform Commission of Western Australia had a quarrel with that terminology.  The Commission chose to use the term “court intervention programs” instead of the term “problem-oriented courts.”

They Are All the Same Kind of Court

Irrespective of the name such a court is called, the shared principles are:

  • Outcomes are the focus of the process, not traditional adversarial issues.
  • Procedural Justice/Fairness is fundamental to the process.
  • Decisions and procedures are evidence-based, manualized and there is fidelity to the model.
  • Decisions by the judge come after hearing from all the collaborative members of the team.
  • All principals of the Criminal Justice System are part of the team.
  • Focusing on addressing the underlying cause that triggered the current behavior.

Finally, we know that outcomes in these courts are better for the individual, his or her family, the community both through cost savings and reduction of crime and the judge.8

Read the full article with footnotes on the Justice Speakers Institute website.