Abstract
Problem Solving Courts: A Measure of Justice is a recent contribution to the growing literature on what has become an important and rapidly expanding legal movement. JoAnn Miller and Donald Johnson focus on three individual problem solving courts in a midwestern city of the United States: a re-entry court, a forensic diversion court for felony drug offenders, and a re-entry court for sex offenders. The title of the book is slightly misleading in that while a wide variety of problem solving courts have emerged over the past two decades (drug courts, community courts, mental health courts, domestic violence courts, and prostitution courts among them), the book focuses primarily on re-entry courts, court-based programs that monitor newly released prisoners as they attempt to re-enter the community.
The strength of the book lies in its sustained and informative attention to the three local courts where the authors conducted three years of ethnographic research. While the book is a mostly favorable account of the movement (the authors call problem solving courts “a dramatically successful sociolegal phenomenon,” [p. 67]), it is not an unqualified panegyric. Indeed, the authors conclude with the modest contention that “problem solving courts should be used carefully and sparingly” (p. 197). Miller and Johnson focus exclusively on courts in the United States, though they note the international expansion of the movement and view their work as relevant to audiences in “the United States, Canada, Great Britain, Australia, and New Zealand” (p. 3), places where the movement is most advanced. A look abroad, however, reveals that “carefully and sparingly” aptly characterize the manner in which problem solving courts have been developed outside of the United States, a comparative development that represents an instructive contrast to the more bold, enthusiastic, and rapid spread of problem solving courts in the United States.
In keeping with their balanced assessment, Miller and Johnson view one of their three featured courts as very successful, one as moderately successful, and one as a complete failure. The textured ethnographic observations are particularly helpful in revealing the attitudes, struggles, and perspectives of program participants, a dimension of problem solving courts not typically featured in the literature. While these ethnographic accounts are probably the strongest part of the book, the authors are less successful in their effort to frame the research theoretically. Miller and Johnson argue that legal pragmatism, law and economics, and law-and-literature are among the “highly regarded” perspectives that inform problem solving jurisprudence (p. 36). Yet the authors do not demonstrate how these perspectives have influenced the movement, much less how legal practitioners invoke the theories to guide their work. The authors also assert, in an apparent contradiction to the purported salience of these legal models, that “there is no prevailing theory or jurisprudence to guide problem solving courts” (p. 41).
Discussions with problem solving court advocates, however, reveal that two important legal theories—therapeutic jurisprudence (or TJ as proponents prefer) and restorative justice—have played an important role in the development of problem solving courts both in the United States and abroad. The authors make much of the law-and-literature perspective and introduce a number of interesting literary references (to Shakespeare and Dickens in particular) to illustrate features of problem solving courts. However, there is little evidence that this model informs the actions and perspectives of practitioners themselves. Problem solving court professionals, instead, often invoke therapeutic jurisprudence and restorative justice as directly relevant to problem solving courts, though legal actors’ substantive knowledge of the defining tenets of these theories varies considerably. Had the authors given any consideration to restorative justice, it would have been interesting to see how they would reconcile one of its key features—what John Braithwaite calls “reintegrative shaming”—with the law-and-literature perspective that ostensibly “reject[s] shame and disgust resolutely” (p. 52).
The authors’ treatment of the main philosophical justifications for punishment (deterrence, incapacitation, rehabilitation, and retribution) also presents some difficulties. Apart from making the implausible claim that “rehabilitation is the first and oldest” of the four purposes of punishment, they treat retribution or just desserts dismissively, emphasizing only the affirmative or retaliatory dimension of retribution rather than the more salient limiting dimension (i.e., persons should not be punished for more than they deserve). The latter is of particular relevance to problem solving courts in that program participants, as the authors acknowledge, are sometimes subject to forms of social control even more onerous than those imposed in traditional criminal justice processes. Miller and Johnson go so far as to observe that problem solving courts can function as “virtual imprisonment.”
The international contrast is instructive on this point. Legal actors in other places—especially in Australia and Scotland—are more concerned about the potential hazards of giving judges the increased power and discretion afforded in the problem solving court context. Cognizant of this power, and the concomitant potential for abuse, judicial actors in Australia and Scotland hold that the judge’s actions should be checked in deference to considerations of due process, the protection of individual rights, and commitments to the ideals of fittingness and proportionality. Miller and Johnson describe at least some instances where checks on judicial power, as such, might be in order. During one court appearance, a participant named Audrey was handcuffed and sent to jail for two weeks (though it was meant to be one week) because of a “bad attitude”; and she was later reprimanded in open court and sent back to work release because she did her laundry at her mother’s house rather than at a commercial laundry mat, though she was never told that her three-hour laundry pass specified or precluded a particular location for the activity.
The heavy-handedness of problem solving court judges is also revealed in the following instructions by a judge to a participant named Dan who had just spoken of his wish to reconcile with his family:
Do you know how many times I’ve heard this story? Everybody coming in to my court tells me that they are going to reunite. And you know how many do? [Holding his thumb and index finger together to signify a zero] None. That’s right. Not a single one. Everyone wants to reunite, but I tell them to focus on their real problems. (P. 190)
In spite of this judge’s “encouragement,” Dan did eventually reconcile and move back in with his wife and kids. The judge’s more active and engaged participation in judicial proceedings, as revealed in these interactions, is indicative of the transformed courtroom roles fostered by problem solving courts. Also altered are the roles of lawyers who, instead of acting in an adversarial manner, work cooperatively as members of the same team. In spite of the authors’ assertion that legal actors are no longer concerned about these role reversals, defense lawyers and those writing from a defense perspective remain among the most forceful critics of problem solving courts.
Miller and Johnson acknowledge some of these criticisms even while they also highlight and endorse what they see as the positive features of problem solving courts. Readers will appreciate their balanced and even-handed approach, and readers will learn much from the individual stories and struggles of problem solving court participants depicted in the book. Problem Solving Courts will be of interest to both criminal justice practitioners and those studying in the related fields of criminology, law and society, criminal justice, and sociology of law. The book will also work in a complementary fashion alongside comparative accounts of problem solving courts and related legal innovations.