Shifting the practice of coercive penal care over time in a problem-solving court

Abstract

While problem-solving courts represent one area in which rehabilitative efforts have expanded within correctional settings as “coercive penal care,” still unexplored is how the blend of rehabilitative and punitive practices might evolve over time. By conducting interviews and observing a new reentry court, we explore how the court's navigation of coercive penal care transforms over time. We argue that initially, the introduction of rehabilitative goals was mostly subverted by the court's existing punitive criminal legal system and organizational structure. This occurred through court actors prioritizing internal over external goals and metrics in the program, and articulating self-responsibilization narratives for success. As the court progressed, court actors shifted toward emphasizing individualism. Increased individualism occurred in recognition of the complex barriers that participants faced, but presented a double-edged sword: actors focused more on the individual needs of participants beyond program requirements, but also increased individual accountability by participants. This greater emphasis on individualization also allowed court actors to resolve sometimes competing rehabilitative and punitive goals through increased discretion.

Keywords

Problem-solving court rehabilitation coercive penal care

Introduction

The growth of treatment programs, problem-solving courts, and reentry organizations within correctional and community settings reflect the emergence of hybrid rehabilitative and punitive practices (Hutchinson, 2006; Miller, 2014; Robinson, 2008) in many Western societies. Coined “coercive penal care” in community settings (Phelps and Ruhland, 2022; see also Miller and Stuart, 2017), these efforts have transformed rehabilitation to reflect new forms of penal power (Hannah-Moffat and Maurutto, 2012) and include new techniques and practices (Hutchinson, 2006; Robinson, 2008). In the United States, two areas where coercive penal care has manifested are within the reentry landscape (Miller, 2014) and problem-solving courts. Problem-solving courts have also proliferated both across the United States (Berman and Feinblatt, 2001; Haskins, 2019; Strong, 2012) and around the world (Nolan, 2012). Their increased popularity highlights the tension between these punitive and rehabilitative hybrid practices (Gowan and Whetstone, 2012; Maruna and LeBel, 2003; Miller and Stuart, 2017; Phelps and Ruhland, 2022). The current article focuses on how this blend of practices may change over time, as court actors recognize and respond to obstacles faced by participants. By observing the implementation and growth of a new reentry court in the United States, we explore the following question: how do re-entry court actors’ navigation of coercive penal care transform over time?

Drawing on interviews, observations, and institutional documents with court actors and participants, we found that introducing rehabilitative goals into the reentry program was initially at odds with the existing punitive criminal legal structure and court organizational structure. Rehabilitative goals were also undercut by the bureaucratic landscape that the program required participants to navigate beyond the court. Court actors changed their approaches over time to deal with these sometimes-competing goals. Early in the program, this tension was generally resolved by subsuming rehabilitative goals into punitive ones through two primary practices. First, court actors prioritized internal goals, such as fulfilling volunteer hours or attendance at treatment programs, over external goals and metrics, such as determining optimal employment or childcare scenarios. Second, court actors articulated self-responsibilization narratives for success, which was seemingly at odds with participants’ existing understanding of structural barriers to reentry. As the court progressed and court actors became more aware of the bureaucratic challenges participants faced, they shifted their practices to emphasize greater individualization: they assisted more with individual needs of participants but also increased individual accountability by participants. This emphasis on individualization allowed court actors to resolve competing rehabilitative and punitive goals with increased discretion on a case-by-case basis. In short, even though punitive and rehabilitative goals still clashed, court actors’ techniques for managing these conflicts shifted over time.

We see multiple contributions to the literature. First, because we conducted our research over several years, we are able to explore how a court negotiates and incorporates coercive penal care over time. As the court developed, court actors shifted some of their perspectives and practices, although there were organizational and legal structural limitations to this shift. In doing so, we demonstrate how punishment and treatment are contested (Goodman et al., 2017), especially in community supervision contexts (McNeill, 2018), and show different practices within the same organization over time. Second, we studied these processes in a brand-new court with actors expressing clear openness to reform. Compared to established organizations, or contexts in which reforms are resisted (Lynch, 2023), this setting is well-suited for understanding the initial rhetoric around goals and intentions, as well as how treatment-oriented reforms are “hybridized” with punitive practices on the ground. Finally, we articulate the mechanisms of how coercive penal care operates in this context, where we argue that the negotiation and prioritization of goals and the individualization of responsibility were deployed to resolve the sometimes-conflicting enactment of punishment and rehabilitation.

Coercive penal care and hybrid governance

Rehabilitation and social service provisions are increasingly under the auspices of correctional control. Much of this growth has occurred within reentry (Miller, 2014), where “coercive penal care” (Phelps and Ruhland, 2022) becomes one of the “perverse benefits” for people under criminal legal system control (Miller and Stuart, 2017: 536). Although parole (as the main model of reentry) historically included goals of rehabilitation and reintegration, surveillance and monitoring have become increasingly important functions (Harding et al., 2022; Opsal, 2011; Simon, 1993). As Foucault (1977) suggests, modern disciplinary practices have contained both punitive and “gentler” individual reforms through surveillance. Problem-solving courts, and specifically re-entry courts, represent one type of organization with a mix of rehabilitative and punitive aims (Berman and Feinblatt, 2001; Brydolf-Horwitz and Beckett, 2021). Similar to other forms of coercive penal care, such as probation (Phelps and Ruhland, 2022), parole (Werth, 2013), and court-mandated treatment (McKim, 2017), re-entry and other specialty courts often provide services and treatment paired with intensive supervision and sanctions (Carey et al., 2018). While some argue that carceral logics “pervert any of the other, more therapeutic functions” (Carlen and Tombs, 2006: 340), others suggest that these new forms of rehabilitation within correctional contexts are not necessarily at odds with punishment (Brydolf-Horwitz and Beckett, 2021; Hannah-Moffat, 2005). Scholars generally argue that these programs represent “hybrid” forms of governance over marginalized populations (Brydolf-Horwitz and Beckett, 2021; Hannah-Moffat, 2005; Hutchinson, 2006).

Within the criminal legal system specifically, the inclusion of rehabilitation in correctional contexts has produced new techniques and a blend of practices (Hutchinson, 2006; Robinson, 2008). One of the more consistent findings is that treatment in criminal legal system settings is coercive. In “strong arm rehab,” (Gowan and Whetstone, 2012), the law can be used as a tool to compel treatment participation (Hannah-Moffat and Maurutto, 2012), where “imprisonment nonetheless looms in the background as the price of failure” (McNeill, 2020: 296; Phelps and Ruhland, 2022; Tiger, 2011; Witkin and Hays, 2019). Because program requirements are often tied to accountability measures, providers employ surveillance to monitor potential failure, increasing the likelihood for punishment. In this way, therapeutic practices are woven together with the state's coercive powers, which expands the “state's penal power through ostensibly non-punitive strategies” (Hannah-Moffat and Maurutto, 2012: 205).

Treatment in problem-solving courts and in other reentry programs also becomes additively burdensome for participants (Cracknell, 2021; Halushka, 2020; Miller and Stuart, 2017; Phelps and Ruhland, 2022). These burdens are both literal and symbolic. Participants must comply with multiple requirements for treatment and supervision in a fragmented and tangled bureaucracy in reentry (Cracknell, 2021; Halushka, 2020), which becomes a full-time occupation and creates a never-ending process of surveillance, requirements, and sanctions (Halushka, 2020). Compliance is complicated by broader circumstances such as transportation challenges, which add to time demands (Witkin and Hays, 2019).

While these studies document how hybrid practices often function in these settings, not all hybrid practices look the same; penal practice is heterogenous, sometimes incoherent, and fragmented (Goodman et al., 2017; McNeill, 2019; O’Malley, 1999). This may especially be the case if there is a new policy or program introduced into a pre-existing organization with different aims, so initial aims may be subverted (Verma, 2015) or create gaps (Steen et al., 2012) in implementation. Additionally, pre-existing organizational practices shape interpretation of new policies (Verma, 2015), suggesting that even if new programs are implemented, broad penal practices often remain stable (Beckett et al., 2018). For example, Lynch (2023) found that reform efforts were undermined by federal prosecutors dedicated to maintaining punitive approaches through charging and plea bargaining under the Trump administration. These studies suggest that examining organizations over time is important for understanding how these practices are not only constantly negotiated in a dynamic way, but also might shift as programs develop.

Individualization of responsibilities and internal metrics

As reentry has expanded to include community organizations (Miller, 2014), welfare and punishment concerns are increasingly recast as individual responsibility both as an ideological project and in practice (De Giorgi, 2017; Hutchinson, 2006; Lynch, 2000; O’Malley, 1999; Wacquant, 2009). In a study of parole agents, Werth (2013) found they often believed that reformation was the job of the parolee and not the agency, reinforcing agents’ views that surveillance and control-oriented approaches were necessary. Similarly, Halushka (2017) found that reentry organizations “responsibilize” clients, making them accountable for their own success through self-discipline, even as policies constrain individuals’ autonomy (Miller and Stuart, 2017; Turnbull and Hannah-Moffat, 2009; Werth, 2011). In this way, parole and other reentry organizations both responsbilize and de-responsibilize clients (Cox, 2011; Rowen, 2020; Turnbull and Hannah-Moffat, 2009; Werth, 2011). Participants must also have a “cooperative, willing attitude” while engaging in these activities to demonstrate that they are productive and civically engaged members of society (Werth, 2011: 332). Individualizing responsibility for treatment, therefore, empowers organizations to provide services in a controlling manner (Cracknell, 2021; Miller, 2014) while abdicating responsibility for failure.

Risk-based instruments are also increasingly used to identify individual treatment needs (Hannah-Moffat, 2005; Hutchinson, 2006; Werth, 2017) and subsequent “evidence-based” programming to target these needs (Goddard and Myers, 2017; Hannah-Moffat, 2005; Turnbull and Hannah-Moffat, 2009). As part of “managerial rehabilitation” (Robinson, 2008), treatment tied to risk frameworks has also re-legitimized rehabilitation (McNeill, 2018; Robinson, 2008). Both risk classifications and “evidence-based” treatment privilege individual factors and short-term interventions over longer-term structural conditions (Goddard and Myers, 2017). Part of this logic occurs by defining “successful reentry” through (lack of) recidivism, rather than measures of socioeconomic, health, or other measures of well-being (De Giorgi, 2017). To the degree that these tools capture structural conditions, such as employment, education, or housing, they are downplayed (Hackett, 2013), recast as individual concerns, and primarily serve as a mechanism for reducing risk (Goddard and Myers, 2017).

Because rehabilitation is amorphous, “success” is often measured through compliance with formal program requirements (Hannah-Moffat and Maurutto, 2012) and informal rules (Werth, 2011) in concrete and sometimes mismatched programs. For example, Gowan and Whetstone (2012) found that even though drug addiction was viewed as a medical condition by treatment providers, treatment focused mainly on moral re-education of the individual person. Even for other markers of reentry success, such as employment, definitions are strongly shaped by internal definitions of what counts as fulfilling the program requirement. As Gurusami (2017: 433) argues in her study of formerly incarcerated Black women, employment is policed by state agents to be seen as “reliable, recognizable, and redemptive” to be accepted as rehabilitated “workers,” which excluded temporary employment or work that was not in a conventional setting. People under supervision see fulfilling these requirements as part of “playing the game” of parole (Werth, 2011: 332).

While prior literature highlights how people under correctional supervision are responsibilized and de-responsibilized, as well as individualized, it is less clear about how these frames operate in a context in which criminal legal system actors become increasingly aware of the structural and complex nature of the challenges that returning citizens face. It is less clear whether or how program requirements of rehabilitative programs are still framed as individual responsibility in an environment of increasing evidence to the contrary, or if there are conflicting notions of state and individual responsibility (Rowen, 2020). Similarly, as criminal legal system actors have a greater understanding of what people under correctional supervision might need to be successful, it is unclear as to how they negotiate these needs to the degree that they mismatch program requirements.

In short, reentry and problem-solving courts are increasingly sites where the dual aims of rehabilitation and punishment are practiced within the criminal legal system. Given the heterogeneity of organizations, it is worth exploring how these hybrid practices are playing out on the ground. We explore how these principles are initiated in a new program, and how these principles and mechanisms may change over time. Although organizational practices are difficult to change (Beckett et al., 2018), practices (especially those with potentially competing aims) may be especially likely to adjust during initial implementation. In particular, as legal actors recognize the complexity of barriers and challenges of meeting program requirements faced by participants, it is less clear how they justify individual frameworks for success. In the present paper, we consider how courtroom actors in a new problem-solving court negotiated the challenges and potential conflicts between rehabilitation and punishment over time.

Methods

Research site and court model

Modeled after similar problem-solving courts, the reentry court was launched in the mid-2010s to help reduce recidivism and aid with reintegration. The core reentry court team included judges, as well as representatives from the prosecutor, public defender, and probation offices, and judicial clerks; we refer to this group as “court actors.” Other individuals also attended some meetings. Many of the court actors had been in their roles for a substantial amount of time and also had pre-established relationships with strong working relationships. Members of the reentry court team met regularly in the year before the court launched to develop the initial program, visited other similar courts, and petitioned the court system for initial program support. Like many problem-solving courts, this court refers to people involved as “participants.” The court provides a combination of increased judicial oversight and intensive supervision to individuals on parole, and helps link them to services, including job skills training, employment, healthcare, and other needs, such as financial management skills and benefits assistance.

The reentry court involved approximately one-hour-long biweekly court sessions with the entire reentry court team, participants, volunteer mentors (often attorneys), and service and treatment providers. Court sessions involved the judge calling each participant to report their progress on the goals set at their last session. If there was a question about resources, the judge would often defer to the other team members for information or connect them with a treatment provider for assistance. After this exchange, the participant and judge set goals for the next session, and the judge awarded points earned by the participant for that week.

Participants were initially required to attend all court sessions in addition to their other requirements, which often included either having or looking for a job, attending school, and/or doing community service, as well as participating in a weekly required 12-step group-based cognitive behavioral therapy program, and in some cases, attending additional mandated treatment, paying fines, or complying with drug tests. Participants received points for attending the therapy program and court sessions, as well as some additional activities such as completing educational training or finding a job. After participants earned a certain number of points, they graduated from the court, and would receive a 1-year reduction from their supervision sentence.

Our study occurred during the early stages of the court's development and through its first two years. The majority of the observational fieldwork and interviews were conducted between Spring 2015 through Summer 2016, with additional interviews and occasional visits to the court through the Summer of 2018.

Court access and researcher role

Members of the court contacted one of the researchers to conduct an evaluation as the court developed. This is important for understanding participants’ and court actors’ responses in interviews (Esterberg, 2002) and how we were perceived in the court. Because this courthouse prevents casual observation through entry screening, our access was facilitated through our role as program evaluators. Negotiating our identities as researchers was slightly different for court actors and participants. For court actors, while they acknowledged that we were independent researchers, we were still likely seen as generally supportive of the court's mission and goals. We communicated with court actors that we were conducting evaluations as well as working on our own research.

For court participants, we took efforts to signal that we were not part of the court actor team. We feel that our success in establishing this was mixed. We were likely not seen as a central part of the court team by participants; we sat apart from the court team along with the family and friends of the participants and did not participate in proceedings. Because at least one of us often sat in on the court sessions, many participants were familiar with us. We conducted interviews with participants during or after the court in private conference rooms adjacent to the courtroom. Although participants may have seen us as not part of the court team, they still likely felt social desirability pressure to report the positive aspects of the court and downplay struggles of the court or in their lives in general.

Data collection

We have multiple sources of data, including fieldnotes from observations, institutional documents such as court minutes and working group minutes, and other demographic factors for participants, as well as interviews with both participants and court actors. Court minutes were taken during the court proceedings, and working group minutes were taken during the meetings that the court actors conducted preceding each court session. Observations included attending team meetings with court actors before the court session where they discussed each participant. We took fieldnotes during both the pre-court working group meetings and during the court sessions, and were thus able to observe how the court actors adjusted to their new roles, started working together as a team, and made changes to the program over time.

We conducted interviews with court actors and participants. We conducted semi-structured interviews with 13 current and former court actor team members in the summer of 2018. While we interviewed court actors only once, we reached out to any of the court actors who were involved in the program either at the time of the interview, or had been previously involved. The vast majority of the previously involved court actors were law clerks, who often had less involved roles in the court. These interviews were conducted mostly in-person, although some were conducted over the phone. We asked questions about their history and involvement with the court, as well about their views on reentry. Similar to interviews with court participants, we asked open-ended questions with probes to encourage elaboration where possible. Most interviews for court actors lasted between 30 and 45 min, although some went over an hour.

We also conducted semi-structured, in-person interviews for 18 participants between 2016 and 2018. These interviews lasted from 15 min to over an hour, and we interviewed two participants twice over the course of several years, for a total of 20 interviews. While the court recruited everyone who qualified as medium or high risk according to a risk assessment instrument, only a relatively small number of people agreed to participate in the court because of the time commitment. The court had about 3–5 participants at any given time, and so we approached nearly all of the participants over time to be interviewed. Our questions for participants focused on the court itself as well as their experiences of reentry in general. We asked open-ended questions, followed by probes, to encourage participants to elaborate.

The interviews were not recorded in order to increase trust and rapport, a particular concern when talking with participants who were already highly scrutinized. Interviewers took notes during the interview and documented direct quotations verbatim when possible. Immediately after the interview, the interviewer went back and filled in the interview in more detail, along with writing any notes or observations. To maintain anonymity, we also recorded court actors’ positions but removed other identifying information. All interviewees have pseudonyms in this paper to avoid identification.

Court actors and participants

Participants were recruited to the reentry court upon release from prison. Many participants had been incarcerated for long periods of time, and most had been in and out of prison numerous times. Participants, therefore, had various challenges upon reentry. Because of the lengthy incarceration histories, participants were nearly all in their 30 s or later, including some who were of retirement age. Most of the participants in the court, and thus our interviewees, were men, although there were also a number of women who participated. Nearly all identified as Black or Latinx; 14 out of the 18 participants we interviewed were Black, and an additional 3 were Latinx. Some came from immigrant families, although most were born and raised in the United States. The vast majority had some family or partners, and several had children. Although most did not complete high school, some had obtained their GED.

Court actors were mostly White or Latinx; for example, 9 out of 13 identified as White or Latinx, and the interviews represented all the major agencies in the reentry court team. Most probation officers were women, but many of the other team members from other offices were men. The court actors were nearly all experienced in their jobs, many having spent their entire careers with their respective agencies. They were thus able to reflect on the reentry court in the context of their experiences and traditional practices in their jobs.

Analytic strategy

We analyzed the interviews in a few stages. We engaged in an analytic abduction process, guided by existing theory and research (Tavory and Timmermans, 2014). In this case, we were guided by prior literature and sociolegal research on problem-solving courts and treatment programs. After we transcribed the interviews, we read them to form initial impressions about court actors’ and participants’ experiences in the reentry court as it unfolded. As a team, we discussed common findings and surprising responses. The first author then engaged in an open coding process with a sample of interviews to observe emerging themes, and after discussing and agreeing on themes, re-coded the interviews with a more focused coding process (Esterberg, 2002). She also examined and coded the fieldnotes and institutional documents in a similar manner. The combination of the sources of data also allowed for triangulation (particularly for documenting events that occurred), while illustrating the different viewpoints of the participants and court actors.

Results

Rehabilitative goals within a structure of surveillance and sanctions

Although the reentry court included many program elements intended to aid in rehabilitation and reintegration post-incarceration, sometimes these aims conflicted with more punitive goals of the program or existing criminal legal structures. Even in its proposal, the court first emphasized elements of surveillance and sanctions, but then introduced additional goals based on treatment, education, training, and rehabilitation:

The program adds the following: (1) regular oversight of a defendant by a judge; (2) early judicial intervention to address problems before they develop into violations; and (3) a swift judicial response to each failure by a participant. The program also offers a blend of treatment, education and job skills training, and sanction alternatives to effectively address participant behavior, rehabilitation and the safety of our community (Program Proposal: 3)

The first three elements of the court, therefore, highlighted both additional surveillance and early and swift judicial responses based on reported progress in the court session. Additional treatment and services were listed as a supplementary point, potentially subverting them from the start.

Risk frameworks were also part of the already-existing structure of the court, as a formal risk assessment tool was used to screen potential participants. Although probation officers used the risk tool on all individuals released from prison to sort caseloads, only participants who scored as “moderate” or “high” risk qualified for this reentry court. Thus, the inclusion criteria for the court were primarily driven by the criminal risks participants posed, rather than services and needs that they might require upon reentry. The tool included elements that added up into a risk score, including criminal history, education and employment, substance abuse, social support and networks, and a psychological scale developed to identify criminal thinking qualities. Additional items, including details about the person's housing, finances, transportation, and mental health issues were documented but not included in the official risk score. In this way, this risk assessment instrument emphasized “measurable” outcomes, and prioritized some factors over others by assigning them different weights in the scoresheet.

A required 12-step cognitive behavioral therapy program was the centerpiece of the rehabilitative element of the court. Definitions of treatment, especially early on, were almost exclusively tied to this program, which focused on changing individual attitudes, “moral reasoning” and decision-making (Cognitive behavioral program website, n.d.). Treatment was also tied to risk frameworks. Progress in treatment was tracked through successful completion of steps in the program and lowering the “criminal thinking styles” section on the risk assessment instrument. In this way, treatment was reformulated into a standardized program focused on changing individual behaviors and attitudes that could be measured through concrete metrics. As Steven, a probation officer mentioned, “changing thinking is very important … services alone can only do so much. [Participants] must change their way of thinking.”

While court actors hinged success in treatment on changing individual participant's thinking patterns through treatment participation and tracked through steps and risk scores, it was less clear what constituted appropriate thinking patterns or progression in thinking patterns. Different assumptions of what constituted appropriate thinking patterns sometimes created conflicts between treatment providers, court actors, and participants, since these expectations were not necessarily communicated to participants. In one interview, participant Ivan recalled he was trying to engage with the cognitive behavioral program material honestly, but was then chastised by the treatment program facilitators:

I was on step 10 of [the cognitive behavioral] program where you have to list your biggest problems. And I put “being promiscuous” and they didn’t like that answer. I wasn’t who they wanted me to be—I gave the wrong answer … they didn’t help to correct the situation, and they should have. I messed up—that's on me. But I wish they would have responded differently.

Perhaps the program facilitators perceived that Ivan was not seriously engaging with the material, or that his thinking patterns were deemed as not far enough along for his stage in the program. In either case, this misunderstanding caused friction with both the treatment program facilitators and the court actors. The court actors attributed Ivan's “lack of progress in [the] court” to his lack of progress in the cognitive behavioral program (Court minutes, May 2017). They decided that Ivan had to achieve a particular step by the following month or he would be removed from the court; the court later discharged him from the program with a technical violation.

In addition to structuring definitions of rehabilitation into a risk framework, the program entailed more intensive supervision and had dedicated probation officers. Probation officers helped connect people to resources but were also accustomed to performing surveillance-oriented tasks, such as administering drug tests, checking to see if people were showing up to their jobs, and conducting home visits. As one court team member Isabelle observed, there needed to be a “shift in the probation approach [because] the previous focus was on enforcement,” and that “probation should be concerned with more than just violations,” especially since “the main benefit [of the program] is connection to services.” Many participants experienced the additional surveillance as intrusive and felt that required elements were somewhat burdensome, but felt that it was the “price” of gaining resources. In one court session, a new participant Damian discussed that he was excited to start the program because he had “heard about the program and [how] it's about support and [he] wanted the help.” A member of the court team responded with emphasis that it would be “a lot of work” (Court observation, August 2016). While both elements were true, court actors often emphasized the “work” of program participation.

In a few instances, especially early on, this increased surveillance worked against participants, especially when they ran into legal limitations. For example, in one court session, the judge questioned Donnell, a participant, about his living situation and discovered he was living with his mother illegally:

After some prodding, Donnell revealed that he was living with his mother in section 8 housing. He was not listed on her lease, however, and because he was under criminal justice supervision, his living there put his mother at risk for eviction. After questioning the participant about living with his mother, the judge subsequently ordered him to find a new living situation promptly with the help of his probation officer. The judge then talked to him “in a stern manner, warning him about the difficulty of change and the importance of being honest with himself and the … team members” (Court observation, April 2016).

This presented the participant with a problem: because of the legal restrictions on housing for people with criminal records (Desmond, 2016), and without a regular income, Donnell had limited options for housing. He ended up having to move from his mother's home into shared transitional housing. Unsurprisingly, Donell was upset about the forced move, and it created conflict between him and the reentry team in subsequent sessions. He would often respond in short sentences to the judge, resulting in back-and-forth questioning. Although the probation officer may have discovered his living situation eventually, attending the reentry court sessions made this discovery more likely. While the reentry court team followed the law to force Donnell to move, living with his mother also likely provided greater housing stability than transitional housing. Despite legal barriers to housing for people with criminal records, the problem was framed by the judge as a matter of individual responsibility.

As the court progressed, many court actors started to better understand the re-entry process from the eyes of the participants and to adjust their practices. Some court team members realized that the “government puts up roadblocks to success,” and that they “need to give more help to people for reentry.” While much of the court program early on focused on the cognitive behavioral program participation, housing, and employment, court actors realized over time that they would need to expand the scope of services to also address greater legal, medical, and family needs. For example, in several cases, court actors and mentors would intervene on behalf of participants’ petitions for child custody or for obtaining drivers’ licenses. This expansion of services in part stemmed from the realization that not only were participants’ needs more complicated than just housing and employment, but were also highly individualized. Reflecting on how the court changed over time, public defender Zach noted that “we’ve become better at [assessing] a person's individual needs. Benefits of the program went from the [cognitive behavioral therapy] program … to a more tailored plan of action.” This was especially the case as some of the actors felt that participants were making substantial efforts but were still struggling to meet them because of barriers facing individuals post-incarceration.

Court actors also started to rely less on risk scores and standardized programmatic requirements over time, and more on tailoring the program services to fit individual needs. As Winston, a court team member from the prosecutor's office mentioned, the “team members have stopped lumping defendants together.” For example, Ray had several outstanding traffic violations, and his license was suspended. He was subsequently fired from his job at a fast-food restaurant due to absences. Over the course of 4 months, the court attempted to help get his license reinstated. They first connected him with a ticket clinic staffed with volunteer law students, but after he was advised that the charges were criminal and beyond the services of the clinic, the court connected him with a pro bono attorney to get his traffic fines waived, take a class, and pay $125 in fees to get his license reinstated. While having a license was not captured by the risk assessment instrument, nor necessarily a primary component of the court's design, it was deemed by the court actors as a priority.

Prioritization of internal metrics and individual responsibility

The blending of punitive and rehabilitative elements of the court was reflected in how court actors measured progress in the program. To track progress, the court team initially developed a point system to award points for a variety of achievements, including showing up to the court session and attending the mandated cognitive behavioral therapy sessions, as well as getting a job or completing a training or educational course. Some of these achievements were more standardized and tied to compliance with its program elements, such as attending court meetings and completing mandated treatment sessions, and so were more “internal” to the reentry court. Other, broader “external” benchmarks, such as getting a job, petitioning for custody, or completing an educational degree, varied more by individual.

These challenges of capturing program points resulted in a prioritization of internal elements over external ones early on in the program, largely because they were easy to track and were required for all participants. Some internal metrics, such as attending court sessions and passing particular steps in the cognitive behavioral therapy program, resulted in repeated awarding of points. In contrast, rewarding points for external requirements was more difficult because demonstrating progress depended on the individual context, and generally resulted in a one-time point gain. In one example in the court's earlier days, Donnell reported that he was able to complete the first step of Occupational Safety and Health Administration certification, was working at a barber shop part-time, and was interviewing for an additional job. He was also able to successfully open a bank account and finished a stage of the cognitive behavioral therapy program. While the court team commended him for his progress, Donnell was awarded points for his court attendance only, because none of the other accomplishments met the criteria for points (Court observation and court minutes, June 2016). As some participants noted, the court often prioritized its own internal requirements over ones that were important and necessary to them. For example, as Quinton, who left the program, mentioned:

I wasn’t getting the help I needed. Maybe I was being overzealous. They did help me get a job, but felt that they did not help me with the issue that is most important – my immigration status. I haven’t gotten anywhere with that.

While it is not clear if the court could ultimately help with the immigration issues, his immigration status presented a huge barrier. For this participant, the court seemingly subverted the participant's primarily legal needs in order to prioritize programmatic requirements.

One additional challenge early in the program was determining whether certain external criteria “counted” as fulfilling an internal program requirement. Unless retired or unable to work, participants were required to work, be actively looking for jobs, or volunteer in community service for a certain number of hours per week. In one instance, participant Brianna wanted to start her own business but came into conflict with the court about whether this constituted employment. As Brianna stated:

I didn’t want to do it [the reentry court] at the beginning because the program didn’t seem flexible, because I wanted to start my own business and was told that it might not be considered a job. So maybe make sure [the program] is flexible and caters to people's plans up front. That way they can work together on problems, not just fulfill the requirements of the program.

Employment requirements, in other words, were subject to definitions of acceptability by the court actors. Ultimately, the court actors agreed with Brianna that starting her own business constituted employment, but she had to advocate to do so. As Brianna suggested in an interview, participants like her “have a responsibility to your family that contradicts with [the court] requirements,” and having her own business also allowed her to balance caring for her children. In this sense, the court's requirements were perceived to be conflicting with her family needs.

As the court progressed, the court team revisited the points system to accommodate individual circumstances, increase points awarded for external accomplishments, and decrease court attendance to every 2 weeks after participants had gained enough points. The loosening of attendance requirements was in recognition that the time commitment potentially conflicted with other activities deemed beneficial to participants. As Victor, a team member from the public defender's office reported, people didn’t want to participate because of “the time commitment; some people have jobs and can’t leave during the day.” The court team also assigned points for finishing each step of the treatment program, rather than only after finishing the middle and end stages (November 2016 working group minutes). They allowed points for completing work-related training certifications but limited the number of points a person could gain, reasoning that “extensive training programs may result in too many points for a single participant” (February 2017 working group minutes). Consequently, even after reforms to the points system, internal system benchmarks were still more strongly rewarded than external ones.

Moreover, individual goals were undercut by the complexity of bureaucratic barriers participants were required to navigate. Navigating one bureaucracy sometimes required credentialing, documentation, or qualifications from another system that the participant did not have. For example, petitions for custody of children generally required permanent housing. Even simpler transactions often required identification, which was sometimes challenging for participants to obtain. As one probation officer Evelyn acknowledged, “a driver's license—going to get one could mean two hour bus drive, waiting in line, missing documentation, then you have to come back. That would be enough to send you over if you can’t even get a driver's license.” In one instance during the early stages of the court, the reentry team took for granted that a participant would have the required identification to cash a check:

The judge asks where Diego [the participant] has been getting money from. Diego presents an envelope, indicating that inside are documents confirming that he has started receiving disability. When asked where he cashed the check, Diego says he went to a check cashing store. The judge suggests he could have gone to a bank; Diego claims he did, but because he only had one form of identification, they would not cash it. The judge lectures him about check cashing fees as well as his lack of communication with his mentor (Court observation, June 2016).

Although the judge noted this challenge of having two forms of identification, they still framed the problem as the participant's responsibility to resolve it in a particular way—through accessing an institution that presents barriers for Diego. Many poor neighborhoods of color, such as where Diego lived, have fewer banks, leaving payday lenders and check cashers as the primary financial institutions (Small et al., 2021).

As the court evolved, the team became increasingly understanding of the complex bureaucracies and individual needs facing participants. As court actor Xavier later reflected, “we thought we had a handle on reentry issues, but [there are] so many more things we’ve found were needed, such as state court traffic tickets and child support. We knew housing, jobs [were important], but we didn’t know that those other things were just as important.” Massive bureaucracies or lacking necessary financial resources made it difficult for participants to fulfill goals the “right way.” In one example, the judge asked Eduardo, a participant, about a required medication immediately that he could not afford:

[Eduardo] is diabetic, and went to a doctor's appointment, [where he] was found to have high blood pressure and on the verge of having a stroke. Eduardo was sent directly to the hospital. He was told he needs to take medication regularly, but he cannot afford it, and needs to apply to Medicaid in order to pay for it. The judge looks concerned at this story and asks, “how can we help?” A probation officer suggests he go back to the hospital and ask for a [discount] card which will allow him to qualify for discount treatment. Eduardo explains he does not qualify for the card since he does not live at the halfway house anymore (February 2018 court observation).

The judge later called a local nonprofit in order to help Eduardo receive treatment for his blood pressure (February 2018 court minutes). In some cases, court actors had to step in, using their connections and influence, to help participants resolve these intractable situations. This scenario illustrates an occasion when the court not only explicitly stepped in to circumnavigate bureaucracy on behalf of a participant, but also prioritized the participant's broader health needs more than internal program criteria.

The court team realized that intervention was often critical for keeping participants in the court because otherwise, small errors magnified into larger consequences due to multiple systems interacting with each other. Court actors were especially keen to intervene if participants appeared to display a commitment to the program. This differentiation of who was or was not individually committed to the program was based largely on court compliance and regular participant communication with probation officers. For example, Eric driver's license was suspended because of unpaid traffic tickets and outstanding child support that had collected while he was incarcerated (August 2016 court minutes). The license suspension limited his employment options, however, and he could not make regular payments for his fines. He also kept driving, and eventually received another traffic citation for driving with a suspended license. Despite this violation and lack of paying his fines, his probation officer Alicia noted that Eric was her “most positive supervisee” and seemed committed to changing (August 2016 court observations). With the help of Alicia and the court team, Eric was connected with a pro bono attorney, and he obtained his driver's license and submitted paperwork to reduce his fines.

Despite the increasing advocacy and assistance beyond housing and employment in individual cases over time, increasing individualization was still a double-edged sword, as court actors also increasingly held participants accountable for navigating these bureaucracies. Most court actors reported that the court became better over time at “holding people accountable and not playing the violin for them,” as one Probation officer Jamie put it. Court actors were willing to help connect participants with services, but they also reported that the lack of success was ultimately due to a lack of individual motivation. Both participants and court actors tended to subscribe to this view, with many participants also reporting that individual motivation and personal responsibility played a big part in a person's success. As participant Nicholas reported, “I hit my head against a wall and hit my head against a wall, and I realized it was time to change.” Even in the face of bureaucracy, participants were still expected to be individually responsible and motivated to change.

Discussion and conclusion

The configuration of problem-solving courts represents a hybrid of treatment and punitive practices (Brydolf-Horwitz and Beckett, 2021; Hannah-Moffat and Maurutto, 2012; Miller and Stuart, 2017; Phelps and Ruhland, 2022), where services are provided hand-in-hand with sanctions and surveillance. With the present paper, we contribute to the growing body of literature by understanding how “coercive penal care” (Phelps and Ruhland, 2022) may change over time in a new problem-solving court. We find that penal interventions shift over time in changing the particular mix of punitive and rehabilitative practices by court actors. While court actors intended to implement rehabilitative goals in the program design, these efforts were structured by the existing punitive and surveillance-oriented criminal legal structure and the organization of the court. As such, court actors made more standardized decisions about participant requirements, often favoring existing punitive and surveillance-oriented goals. Over time, court actors expanded their understanding of the difficulties associated with reentry and made adjustments to the program, which also changed the configuration of hybrid practices to become more varied across individual participants. Increasing individualization gave court actors the discretion to stray from these frameworks to prioritize rehabilitative or other types of aims on a case-by-case basis, but also increased individual accountability.

The structuring of rehabilitation within a risk framework was inherent from the court's selection criteria. The use of a risk assessment tool to identify participants illustrates how risk frameworks do not always necessarily function in opposition to rehabilitative programming (Maurutto and Hannah-Moffat, 2006). Rather, it reflects the assumption that treatment and services would be structured in a particular way—in service of reducing the risk of recidivism by lowering a participant's risk assessment score. By prioritizing risk assessment scores, the court was able to provide evidence of its effectiveness. While Kemshall et al. (1997: 227) argue that the “rationality and rhetoric” of probation has shifted “from need to risk,” in this case, needs were reformulated into risk-oriented ones. A primary way this process manifested was through the understanding of rehabilitation as a measurable goal. This has the consequence of ignoring longer-term or broader interventions (Goddard and Myers, 2017). In this way, “practitioners have molded … the reentry concept to fit comfortably within the existing punitive discourse by focusing on recidivism reduction rather than reintegration” (Steen et al., 2012: 46).

Subversion of rehabilitation most clearly occurred when rehabilitative goals conflicted either with internal program goals developed by the court or with legal requirements. This happened most often early in the court's inception. The example of Donnell, who was illegally living with his mother in Section 8 housing, illustrates one way that the law itself subverts stability in reentry. Moreover, the judge and court team enforcing these housing laws illustrates the conflict that court actors had to weigh when assessing the needs for participants. While this is not a unique problem, other research suggests that criminal justice actors in other places have worked to circumvent restrictions on public housing precisely because they know it provides stable addresses for people (Bonnet, 2019). Our results also provide an interesting comparison to Lynch's (2023) findings around prosecutorial resistance to reforms. In this case, court actors largely embraced reforms but were still stymied by the legal structure and organizational practices of the court, especially early on. Both comparisons suggest that the localized organizational culture is important to understanding how laws are embraced or subverted.

One way that rehabilitative goals were subverted was through the prioritization of internal goals or legal requirements over the broader needs of participants. Even though opportunities to earn points eventually expanded, the court continued to disproportionately reward internal metrics over external ones, and external goals were subject to evaluation for acceptability (Gurusami, 2017). Tying success to measurable metrics meant that intended reforms were inevitably limited because they were anchored to program compliance. Though the intention of this court was to support those leaving prison, many elements incorporated punitive practices as they sought to reform individuals (Aiello, 2013; Gowan and Whetstone, 2012; Hannah-Moffat and Maurutto, 2012; Phelps and Ruhland, 2022).

Our findings also point to how court actors, similar to the individuals they supervise, can also sometimes subvert rules or even reject them at their discretion while still being dedicated to the broader ideals of “going straight” (McNeill, 2018; Opsal, 2011; Werth, 2011). The example of how Alicia characterized Eric illustrates that court actors also perceive this ideal of commitment to personal transformation in some of their participants despite his violation and lack of fine payments. This perceived commitment by the court actors is reflected in how they responded to Eric, helping him with his fines and traffic violation, rather than inviting a more punitive response. Court actors intervened on behalf of participants, even circumventing organizations’ bureaucratic requirements, such as when the judge intervened to get necessary medicine in Eduardo's case. These findings align with how ideas of deservingness in participants are constructed and prompt when actors intervene (Rowen, 2020).

These contrasting examples of how the court team responded to Donnell and Eric also speak to the increasing individualization that court actors embraced as time went on. As the court team became more aware of challenges faced by people re-entering society, they also adjusted their practices. Individualization allows court actors to not only help participants with their unique barriers, but it also increases monitoring, control, and accountability over an increasing number of individual requirements. In this way, it also increased court actor discretion to resolve rehabilitative and punitive tensions differently in individual cases. These findings on personal responsibility are also identified in other work (Gowan and Whetstone, 2012; Hackett, 2013; Halushka, 2017; Werth, 2017). This focus on personal responsibility as the driving force behind “success” de-emphasizes the structural barriers for re-entry (Goddard and Myers, 2017) and places more responsibility and moral judgments on participants for not being committed to their own success (Gowan and Whetstone, 2012; Hackett, 2013; Halushka, 2017; Werth, 2013).

Our study also has some limitations. Because there were a relatively small number of court actors, and enrollment of participants in the court was relatively low, we were limited in the number of people to interview. Thus, finding patterns in common problems that participants faced, as well as practices of the court actors, especially as the court evolved, took substantial time. On the other hand, we were able to observe and attend court sessions regularly, so we observed how the court team came to agreement and established norms and practices. Additionally, while the practices of this court do not necessarily generalize to other problem-solving courts, the struggles in balancing surveillance and sanctions—and how courts resolve these tensions—are faced by an increasing number of problem-solving courts and in other settings with hybrid practices. Future work might examine how various contexts, regions, and even levels of government might matter for how these courts balance hybrid practices. Finally, while we observed court actors moving from greater standardization to greater individualization in practices over time, it seems likely that these practices may later become more solidified as the court becomes even more established. Our observations are based on the initial stages of a new program, and future research might address whether these too become a set of entrenched and patterned practices as the court continues.

This raises a broader question for reforms around rehabilitation within the criminal legal system more broadly: What do programs with hybrid practices functioning under the reach of the criminal legal system accomplish? Despite good intentions, implementing rehabilitative reforms may be limited when they are done so within an already-existing organizational and structure designed for punishment, and undercut by fragmented services in the reentry landscape. The structure of such programs not only necessarily limits them to providing a limited set of services tied to punishment, privileging successes measured internally, and articulated in individual ways, but may do so at the cost of providing broader supports given by the welfare state. This is particularly important as problem-solving courts, community-based treatment programs, and other hybrid forms of rehabilitation and surveillance continue to proliferate through the criminal legal system.

Footnotes

Declaration of conflicting interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Marisa Omori

Marisa Omori is an Associate Professor in the department of Criminology and Criminal Justice at the University of Missouri—St. Louis. Her research focuses on racial inequality in the criminal legal system, courts and sentencing, and punishment and social control.

Jacqueline Lee is an Associate Professor at Boise State University. She earned her PhD from the University of Maryland and has also earned a J.D. from the University of Oklahoma. Her research interests include courts and sentencing, the female experience of violence, offending, and punishment, and the integration of social science and legal research.

Rachel Lautenschlager is an assistant professor of sociology and criminology at the University of Denver. Her research focuses on identifying sources of inequity in the criminal legal system.

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