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SMU Law Review

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SMU Law Review

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    SMU Law Review

    Fall 2004

    Article

    *1459 WHEN GOOD INTENTIONS ARE NOT ENOUGH: PROBLEM-SOLVING COURTS AND THE

    IMPENDING CRISIS OF LEGITIMACY

    Timothy Casey [FNa1]

    Copyright ? 2004 Southern Methodist University; Timothy Casey

     Nearly 1700 "problem-solving courts" are currently in planning or operation in the United States. These specialized, alternative courts form at intersections of criminal justice and social policy. While drug courts comprise an overwhelming majority of these courts, specialized courts also address issues of mental health and domestic violence. These courts, collectively known as problem-solving courts, share a central principle: endorsement of the use of judicial power to coerce various programs of treatment.

     The problem-solving courts represent a dramatic change in the function of the criminal courts, incorporating an experimentalist theory of governance, where evolving standards, continuous monitoring and collaboration replace existing structures. The procedural due process protections accorded to criminal defendants and traditional barriers to the use of coercion are eliminated, as the adversarial process is abandoned in favor of a collaborative endeavor involving the judge, prosecutor, defense attorney, probation officer, treatment provider and defendant. Significantly, the judge becomes part of the

    treatment team, rendering decisions not based on law or fact, but on a program of clinical treatment.

     What happens when a judge changes from the traditional role of neutral arbiter to a new role as active participant in an ongoing

    process? Experimentalist governance offers an attractive and pragmatic solution to vexing social problems; when applied to the criminal justice system, legitimacy becomes critical to both the acceptance and the success of institutional reform. This paper

    describes the problem-solving court model, outlines the experimentalist features, and notes the similarities between current models and original juvenile courts one hundred years ago. The legitimacy challenges faced by the juvenile *1460 courts

    forecast impending difficulty for the problem-solving courts. An analysis of the legitimacy of problem-solving courts questions the long-term viability of the current "problem solving" mutation of the criminal courts. Finally, a case study of a recently implemented problem-solving court suggests that the experimentalist structure of these courts can, and should, be utilized to enhance the legitimacy of the problem-solving courts.

    TABLE OF CONTENTS

I. INTRODUCTION TO THE PROBLEM SOLVING MODEL ......................... 1461

II. DEVELOPMENT OF THE DOMINANT MODELS OF PROBLEM-SOLVING COURTS:

     JUVENILE COURTS AND DRUG COURTS .................................. 1464

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     A. Juvenile Courts ............................................... 1465

     1. The Legal Prehistory ........................................ 1465

     2. The Emergence of Social Science and Sociological Theory ..... 1468

     3. The First Juvenile Court: Chicago, Illinois ................. 1470

     4. Juvenile Court in Operation ................................. 1471

     5. Early Challenges to Legitimacy .............................. 1472

     6. Idealism Lost ............................................... 1473

     7. Resurrection of Rights: The U.S. Supreme Court Cases ........ 1474

     8. Current Trends .............................................. 1475

     B. Drug Courts ................................................... 1477

     1. The Legal Prehistory ........................................ 1477

     2. Developing Social Science ................................... 1478

     3. Theoretical Foundation: Therapeutic Jurisprudence ........... 1479

     4. The First Drug Treatment Court: Dade County, Florida ........ 1480

     5. Drug Courts in Operation .................................... 1480

     6. The Moment of Failure ....................................... 1483

     7. Statistical Measures of Effectiveness ....................... 1484

     8. Initial Challenges to Legitimacy ............................ 1487

     C. The Critical Juncture ......................................... 1488

    III. THE IMPENDING LEGITIMACY CRISIS ................................... 1489

     A. Legitimacy Defined ............................................ 1489

     B. Challenges to the Rational Basis of Legitimacy ................ 1491

     C. Challenges to the Traditional Basis of Legitimacy ............. 1493

     D. Challenges to the Charismatic Basis of Legitimacy ............. 1493

     E. Assessing Legitimacy .......................................... 1493

     1. Fairness .................................................... 1495

     2. Deterioration of Adversarial Process ........................ 1497

     3. Coercion .................................................... 1498

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     4. Neutrality .................................................. 1499

     5. Legislative Mandate ......................................... 1500

     F. Counter-Argument: Efficacy .................................... 1502

     G. Conclusion .................................................... 1503

    IV. A CASE STUDY: THE JUVENILE INTERVENTION COURT AT THE HARLEM

     COMMUNITY JUSTICE CENTER ......................................... 1504

     A. Introduction .................................................. 1504

     B. The Baseline: New York Family Court ........................... 1505

     C. The Juvenile Intervention Court ............................... 1509

     1. JIC In Theory ............................................... 1509

     2. JIC In Practice ............................................. 1511

     3. Experimentalist Structures and Solutions: Policy Meetings

     and Back-End Cases ............................................... 1513

     D. Learning from JIC: Practical Reforms .......................... 1515

     1. Separate Adversarial and Collaborative Processes ............ 1515

     2. Sanitize the Appearance of Bias ............................. 1515

     E. The Future of the Problem-Solving Courts ...................... 1516

     1. Lessons from the Juvenile Courts ............................ 1516

     2. The Legitimacy Deficit ...................................... 1517

     3. Experimentalism's Capacity to Adapt ......................... 1517

    V. CONCLUSION ........................................................ 1518

    *1461 I. INTRODUCTION TO THE PROBLEM SOLVING MODEL

     The ideals that keep a social institution alive and functioning are never perceived with complete clarity so that even if there is no failure of good intentions, the existent institution will never be quite what it might have been had it been supported by a

    clearer insight into its guiding principles. [FN1]

     THE problem-solving courts have been described as experimentalist institutions, founded on a "new" theory of

    governance--democratic experimentalism. [FN2] Democratic experimentalism rejects formalist institutions and static

    standards in favor of a system of rolling standards where efficient results are achieved through collaborative monitoring and a schedule of sanctions and rewards. [FN3]

     *1462 Problem-solving courts employ the institution of the judiciary to solve socio-legal or public policy problems through

    the courts. These "alternative" courts have found a toehold where existing social or legal institutions have proven woefully

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inadequate or have failed altogether. [FN4] Problem-solving courts address juvenile delinquency, drug abuse, domestic

    violence, and mental health by promoting programs of treatment designed to address the root causes of criminal behavior. In each of these contexts, treatment presents an attractive alternative to the standard criminal justice system. [FN5] The focus on

    treatment means that these courts rely heavily on social and medical science for guidance in the definition, diagnosis, prognosis,

    treatment, and cure of sickness or disorder. [FN6]

     The problem solving model changes the structure of the court with respect to what is decided and who makes the decision. For

    most problem-solving courts, the relevant issue is not guilt, but rather who is entitled to treatment and whether the treatment is

    "successful." The discretionary authority of the judge expands in problem-solving courts because treatment decisions require the judge to rely on extralegal authorities, such as medical or social science. [FN7] Further, the judge shares decision-making

    responsibilities with the other participants in the court. In many instances, clinical experts and treatment providers play a significant role in determining *1463 whether a program is working and whether a participant is non-compliant. [FN8] The

    expanded discretion and the dilution of power might be of less concern in civil proceedings, but problem-solving courts are tied

    to criminal proceedings, and non-compliance with a treatment plan results in the criminal penalty of loss of liberty. Further, the

    problem-solving courts openly advocate the use of coercion as a permissible, and necessary, component of successful treatment. [FN9]

     By permitting judges to step out of the role of neutral arbiter, problem-solving courts differ from traditional courts in ways that

    arguably define the essential nature of a court. [FN10] Professor Abram Chayes described the difference between the

    traditional roles of a court and the roles that courts assumed in large-scale public law litigations. [FN11] The Chayesian

    description provides a standard against which the problem solving model can be compared. A traditional court includes a retrospective view, an adversarial environment, a reliance on positive law, a static operational model, appellate review, and a

    primarily adjudicative function. [FN12] Problem-solving courts, on the other hand, include a prospective view, collaborative environment, reliance on sociological theory, an adaptive operational model, no appellate review, and a primarily therapeutic function. [FN13]

     Espousing a collaborative approach, problem solving judges actively participate in the recovery process alongside attorneys, social workers and treatment providers. [FN14] These significant differences raise questions *1464 of whether

    problem-solving courts are courts at all, [FN15] and whether the proliferation of this new image of judicial temperament will

    affect perceptions of legitimacy of the courts.

    II. DEVELOPMENT OF THE DOMINANT PROBLEM-SOLVING COURT MODELS: JUVENILE COURTS

    AND DRUG COURTS

     The drug treatment courts increase the discretionary power of the judge. Claims that the shift to a discretionary role for judges

    is a recent phenomenon ignore the history of another system of discretionary, treatment-based judging: the juvenile courts. In

    many ways, the juvenile courts were the original problem-solving courts and any discussion of modern forms of discretionary judging should include reference to the history of the juvenile courts. That history foreshadows the challenges for modern problem-solving courts, and provides a cautionary tale of the pitfalls to a discretionary approach.

     Similar factors contributed to the development of two dominant models of problem-solving courts. The juvenile courts were seen as a way to efficiently handle the increased numbers of cases involving children. The drug courts emerged from a criminal

    system plagued by the collateral damage from a war on drugs. Increases in the number of drug cases coincided with legislatively mandated increases in the sentences imposed for cases and restrictions on plea bargaining, such that cases that previously would have settled were litigated furiously.

     Both juvenile courts and drug courts emerged concurrently with new scientific theories and shifts in jurisprudential thought.

    For juvenile courts, the scientific study of causes of criminality merged with a sense of societal responsibility for children. The

    acceptance of the idea that the state could or should benevolently intervene on behalf of children--that the state should act en

    loco parens--justified separating juveniles from adult offenders. [FN16] The problems of dependent children and delinquent

    children were perceived through the same lens--both required the state to accept responsibility as parens patriae. For drug courts, the disease *1465 theory of addiction, based on the idea that drug addiction is a medical, as opposed to a penological, problem led to the adoption of treatment as an alternative to incarceration. Both models benefited from changing shifts in popular jurisprudential theory, providing judges with a theoretically reasoned justification for their actions. Juvenile courts

    adopted sociological jurisprudence, and the drug courts, therapeutic jurisprudence. [FN17]

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     The development of both models is marked by the extraordinary contributions of a few dynamic individuals who, by virtue of their "charisma," were able to navigate the treacherous waters created by the volatile combination of treatment and punishment theories. Finally, both courts obtained political consensus and financial support from diverse sources.

A. Juvenile Courts

     1. The Legal Prehistory

     A brief exploration of the era preceding the emergence of the juvenile courts evidences the deep philosophical divide over the

    proper interventionary role of the state into the lives of citizens. Antebellum America struggled with the manner in which the

    government could or should intervene in private lives, even where the intrusion was intended to guarantee basic human rights. The legislative and judicial actions in the post-Civil War era highlight the tension between a traditional notion of noninterference and a new recognition of the state as the proper authority to guarantee the welfare and basic rights of its citizens.

    [FN18] State interaction with children echoed wider concerns about balancing individual liberty and social policy, and long before the formal establishment of specialized juvenile courts, the courts played an integral part in demarcating the appropriate

    limits of state intervention.

     In the mid-1800s, problems with juveniles, whether based on dependency or delinquency, were usually resolved with commitment to mandatory reform schools. Commitment proceedings were informal and usually final. Complaints about the lack of procedure and claims of arbitrariness were increasingly taken to the courts. Initially, the decisions reflected a preference

    for the individual liberty interests of the child and the family over the interests of the state. For example, in 1869, the Illinois

    Supreme Court granted sixteen writs of habeas corpus mandating the release of children who had been committed to reformatory *1466 institutions. [FN19]

     In 1870, a landmark Illinois case, Ex rel O'Connell v. Turner, overturned the statute that authorized a child's commitment to

    the reformatory institution for as long as the institution believed the commitment necessary. [FN20] The petition on behalf of

    the committed boy relied on the equal protection provisions of the newly enacted Illinois Constitution. [FN21] The court held

    that the child was an "individual" within the meaning of the constitution, and therefore accrued all of the civil rights and liberties guaranteed thereunder, including the right to be free from indiscriminate detention. [FN22] Both the Turner decision

    and the prevalence of habeas petitions reflected national sentiments regarding the importance of individual liberty. [FN23]

     In the decades that followed the Turner decision, however, new public policies led to a reordering of liberty interests and social goals. The debate over mandatory public education marked a shift in favor of social policy over individual determinism with respect to juveniles, and foreshadowed the idea that the state was responsible for the well-being of its children. [FN24] In

    In re Ferrier, [FN25] the Illinois Supreme Court retreated from the rights-based reasoning in Turner, favoring instead a rationale based on the state as parens patriae. In Ferrier, a nine-year-old girl was found truant and dependent. [FN26] Because the statute

    then in effect called for a trial by six jurors, instead of twelve, the girl contended that her commitment to an "industrial school"

    violated due process. [FN27] The court held that *1467 the state's position "of parens patirae" to the child imposed a duty to

    restrain her liberty interests where "the child's welfare and the good of the community manifestly require." [FN28] While

    Turner had cast juveniles as individuals in the eyes of the state, the importance of developing an educated society meant that the

    state should impinge on the liberty of children for their own and society's future good.

     In Chicago, and other industrial centers, children were increasingly relegated to "almshouses," private placement centers, and

    the jails. [FN29] The growing numbers of children in jails, or otherwise detained, became especially problematic in the industrialized urban centers, with immigrant and poor children disproportionately affected. [FN30] A growing progressive

    movement sought change using two policy arguments: first, the state should undertake the education and support of dependent children; and second, the existing, predominantly Protestant, moral order of society should be preserved. In Chicago, Jane Addams, the founder of Hull House and a proponent of education for children, became the dominant voice for education-based reform. The Juvenile Protection Associations, often staffed by the wives of prominent politicians and businessmen, furthered Protestant ideals of morality. [FN31]

     In sum, the juvenile courts emerged from an era characterized by the demarcation of the line of appropriate government intervention into the private lives of its citizens, especially where the intervention was seen as necessary to protect fundamental

    rights or to advance social policy. More specifically, the juvenile courts appeared at a time when sentiments seem to have shifted in favor of the advancement of social goals such as universal education, integration of immigrant populations, and

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    development of a sustainable industrial workforce within the traditional moral and social framework. Finally, the late nineteenth century saw a dramatic increase in the power of the judiciary. [FN32] As large-scale disputes found settlement only

    in the courts, the role of courts as ultimate decision-maker became increasingly socially accepted. These trends converged to create an opportunity for the judiciary to extend its influence into the social fabric of society.

     *1468 2. The Emergence of Social Science and Sociological Theory

     Science provided a rationale for state intervention through the courts. The widespread acceptance of the scientific method as

    the blueprint for rational analysis led to an application of scientific analysis to new and previously untouched fields of study.

    Human behavior became increasingly subjected to study and analysis, and theories of causation developed, particularly in the field of criminal behavior.

     Influenced by social Darwinism and European criminal theory, the idea of predisposition to criminality gained momentum in America. The ideas of Cesare Lombroso--particularly the concept of criminal phenotypes--were seized upon by budding American criminologists to confirm preexisting suspicions of a "criminal class." [FN33] Although Lombroso acknowledged

    the effect of social conditions, the dominant view of his work did not include reference to non-biological factors. [FN34] The

    treatment of criminality as one of biological determinism fit nicely within a larger vision of science as an operation of identification and classification. [FN35] Logical inference permitted leaps from biological determinism to eugenics and then to a policy of neutralization and elimination. [FN36]

     The idea of external causation, whether a natural predisposition or a reflection of social conditions, required a rethinking of

    traditional notions of criminal liability. The system of criminal law developed from a natural law tradition, where it was assumed that people expressed free will and choice. These notions were challenged by biological, social or psychological predispositions. Did criminals choose to break the law, or were they driven by other, discoverable causes? The absence of free

    choice, of course, dramatically altered the theory of deterrence. [FN37] The idea that a criminal act did not result from a free

    choice, but was due to some extrinsic and discoverable force, severed the causal connection necessary to justify some theories of punishment. [FN38]

     *1469 Ultimately, however, social Darwinism failed to capture the entire spectrum of criminological theory in America. This failure can be attributed to three main factors: the influence of professional classes on the development of criminology; the persistence of religious ideals of salvation, particularly as applied to children; and increased attention to the detrimental effects

    of an urban, industrial environment on the human condition, again, particularly as applied to the healthy development of children.

     The professionals with the closest degree of contact with the study of criminals gained advantage by leaning toward a treatment model. The doctors who directed much of the research in criminology found it difficult to abandon the medical treatment paradigm. [FN39] Perhaps as a result of subconscious self-promotion, doctors suggested treatments and cures, even for those whose "illness" was the result of a hereditary condition. [FN40] Another profession, prison guards, organized into

    "correctional associations" and sought to increase their status by undertaking a role as treatment providers as opposed to "custodians of the pariah class." [FN41]

     Echoes of Christian thought infused a belief in the possibility for rehabilitation, especially for children. [FN42] The idea that

    a child could be predisposed to a life of crime was difficult for the religiously inclined to accept, as it precluded salvation and

    active deific intervention. Since it was impossible to imagine a world with these constraints, the deterministic hypothesis was

    rejected, or at least modified, to include the possibility of redemption.

     As urban centers grew in size and virulence, industrialization and its effect on family life and children was viewed as an important, if not primary, factor in developing criminal behavior. Criminology presented social science with perhaps its most difficult problem in multivariable causation. The complexity of urban society made it impossible to isolate *1470 causal chains

    and test null hypotheses under purely scientific conditions, but it became increasingly clear that social circumstances could not

    be ignored as a cause of criminal behavior.

     As the century drew to a close, theories of sociological jurisprudence expanded. Roscoe Pound led the academic charge, advocating a more active role for judges and courts. [FN43] According to Pound and others, judges should take notice of social

    facts and forces. The era of "mechanical" application of the law had passed forever. [FN44] Significantly, this jurisprudential

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    theory offered a rational explanation for separating juveniles from adult offenders and for embracing a rehabilitative ideal. [FN45]

     3. The First Juvenile Courts: Chicago, Illinois

     A group of Chicagoans conspired to improve the treatment of children in the city through the creation of a specialized juvenile

    court that could supervise all aspects of juvenile delinquency and dependency. This coalition included Julia Lathrop, a newly appointed commissioner for the State Board of Charities; Lucy Flower, a "Gilded Age Patron" with prominent Protestant charity groups (and an orphan herself); Jane Addams, founder of the Hull House, a unique, education-based refuge for children; and Harvey Hurd, a well-known jurist and the author of the original enabling legislation. [FN46] Like a perfect storm, these

    actors brought together the critical forces necessary to create a new judicial institution: a commitment to social change, political

    connections to the power elite, and the promise of financial backing from charitable organizations. [FN47]

     Hurd skillfully crafted the initial legislation so that the new court, though enacted by the state legislature, would only exist in

    Chicago. [FN48] On July 1, 1899, the Illinois legislature enacted the statute creating a new court with original jurisdiction over cases involving dependent, delinquent and neglected children. [FN49] With a specially trained probation staff, the court

    opened with widespread support from prosecutors, the bar association, *1471 and the community at large. [FN50] Although

    the court enjoyed the support of politicians, it received no state funding, and as such, depended on Flower and her associates in

    the Protestant charity world for financial support.

     Many states followed the lead of Illinois and passed legislation authorizing specialized juvenile courts. In New York, however, the juvenile courts were established without legislative fiat. In 1901, a judge in Buffalo decided of his own accord to

    conduct special children's sessions twice each week. [FN51] And although New York City quickly established children's courts,

    legislative authority for these courts did not arrive until twenty years later when, in 1924, the legislature established jurisdiction

    for a children's court. [FN52]

     4. Juvenile Court in Operation

     William Tuthill headed the juvenile court during the first few years, but it was his replacement, Julian Mack, who proved to be

    a visionary leader and who greatly shaped the design and implementation of juvenile courts. As one of the first judges in Chicago's Juvenile Court, Mack implemented many of the characteristic features of juvenile courts. His seminal article, The Juvenile Court, eloquently described the theory of juvenile court: if the state's authority to intervene in the lives of children

    stems from the state's sitting in place of a parent, then the state should seek to replicate the environment that the child would

    enjoy in a family setting. [FN53] The state, in the form of the judge, accepted the role of father and counselor, looking after the needs of the child and preventing a "downward career." [FN54]

     By and large, the court had to develop its own procedures. For example, Judge Mack found the court overwhelmed by a requirement that the court hear every complaint, so he devised a system where probation officers triaged complaints by conducting quick and informal investigations before filing a formal complaint. This greatly increased the efficiency of the court by reducing arbitrary complaints, but it also vested tremendous unchecked authority in probation officers. [FN55]

     The intentions of the framers of juvenile courts were admirable. They sought to remove the juvenile from "[t]he apparent rigidities, technicalities, and harshness . . . observed in both substantive and procedural criminal*1472 law." [FN56] The model

    shifted from punishment to treatment: "The child was to be 'treated' and 'rehabilitated,' and the procedures, from apprehension

    through institutionalization, were to be 'clinical' rather than punitive." [FN57] Accordingly, judges were permitted to exercise

    greater freedom in fashioning individual remedies that were consistent with the treatment goals of the court. Further, early judges altered court processes in order to achieve efficiency. But this increased efficiency permitted a diffusion of judicial

    power: non-judicial officers made decisions, such as the validity of a complaint, that were previously reserved for judges.

     5. Early Challenges to Legitimacy

     Alteration of procedural process and diffusion of judicial power led to challenges to the legitimacy of the juvenile courts.

    After the Illinois Supreme Court upheld the state's authority to intervene in the child's life even where the child's liberty interests were compromised, the constitutionality of the juvenile courts' authority was repeatedly challenged, both in Illinois

    and in other jurisdictions. [FN58] The Ferrier case marked a transition from an era focused on individual liberty to one marked

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    by social progress. But arbitrary exercise of authority and deprivation of liberty without due process were still subject to constitutional challenge.

     Early challenges examined whether the statutes provided sufficient procedural protections to satisfy due process concerns. The California Supreme Court found unconstitutional a statute that authorized removal of any case from the criminal court to the juvenile court where the accused was under eighteen, and permitted commitment of the juvenile where the court was "satisfied from the evidence that such commitment ought to be made." [FN59] Significantly, the California court did not

    distinguish juvenile commitment from criminal imprisonment with respect to the deprivation of liberty. Further, the court recognized a liberty interest of the parents in holding that the child cannot be taken from their custody without due process. [FN60] The court found the commitment of a fourteen-year-old boy to the Whittier State School until the age of majority unconstitutional as a "judgment of imprisonment" without a jury trial. [FN61] The court also noted that the judgment was

    equally void as an "award of guardianship" because the boy's parents were not parties to the action, and there was no finding that they were unfit. [FN62]

     *1473 Later cases focused on the capricious exercise of power by the juvenile courts. In the highly publicized case of Lindsay v. Lindsay, a boy was removed from his mother during a visit to Chicago from another state. [FN63] The state based its

    intervention on the allegation that the boy's mother was an improper guardian due to her affiliation with a religious organization

    and the leader of that organization. [FN64] The lower courts agreed with the state and upheld the removal of the boy to state facilities. [FN65] In a sharp rebuke, the Illinois Supreme Court reversed the decision, finding that there was no evidentiary basis to support removal. [FN66] The Lindsay decision was widely reported in the press and had a great impact on the

    legitimacy of the juvenile court.

     In later years, critics of the juvenile courts argued that the high degree of intervention into the family was nothing more than an

    attempt to control and assimilate an immigrant population. In The Child Savers, Anthony Platt questioned the benevolent intentions of the early juvenile court reformers. [FN67] Instead, he argued, the juvenile courts were instruments of Protestant

    evangelism directed to controlling the morality of immigrants. An unprecedented degree of access into the intimate details of family life and broad grants of judicial discretion combined to allow the state to dictate normative social behavior, with the threat of separating children from parents as a powerful enforcement tool. [FN68] Moreover, the power of the state intruded

    into the most fundamental of relationships in a manner designed to coerce or restrict certain behaviors and morals among a targeted group of people. Platt's critique of the exercise of authority undermined not only the practical result of the juvenile

    courts, but also their legitimacy.

     6. Idealism Lost

     The experience of Chicago was by no means unique. By the 1920s, most states had developed a form of juvenile courts to resolve the difficulty presented by juvenile delinquents and dependents. These attempts led to frequent challenges to the statutes and their implementation. [FN69]

     The juvenile courts in the 1930s and 1940s seemed to operate under the radar. By the 1950s, however, researchers noted the dramatic failures of the juvenile justice system. Mack's ideal of a "foster" home was replaced with overcrowded houses of detention, complete with bars on the windows and locked doors. Job training resembled forced labor and discipline *1474 was

    harsh and frequently administered. Instead of rehabilitating and healing, juvenile courts were, in fact, punishing.

     The transition from a treatment-based ideology to a punishment-based system turned the formative ideology inside out. Children received neither the procedural and substantive due process rights accorded to defendants in criminal court, nor the benefits of a treatment protocol. [FN70] Children caught in the system did not improve their prospects for gainful employment. Moreover, dependent children drew the same lot as delinquents, for under the treatment philosophy, it mattered little whether the child had committed an offense or not. Just as the asymptomatic should be treated along with the symptomatic, the operative inquiry was whether the child needed treatment, either because of his actions or his status, and not whether he had actually committed an offense. [FN71] When the treatment model turned punitive, the juvenile courts failed not only as

    treatment providers, but critically, and more devastating to the judicial institution, they also failed as courts.

     Indeed, the argument can be made that the juvenile courts were never designed as courts, but rather, as social control and welfare institutions that took instrumental advantage of the coercive power of the judicial system. The question, which is equally applicable to the drug courts and other forms of problem-solving courts, is what happens when the veil is lifted, and we

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discover that the institution is not behaving like a court at all? With the juvenile courts, the answer was to mandate procedural

    rules and to make these courts act more like the judicial institution they professed to be.

     7. Resurrection of Rights: The U.S. Supreme Court Cases

     Until the late 1960s, the juvenile courts functioned in a land of their own. The broad discretion deemed necessary to provide

    individual solutions for individual children effectively shielded the courts from scrutiny and accountability. What began as authority to deviate from the procedures in criminal court in order to meet the best interests of the child devolved into a system

    of inequity and arbitrariness, as the juvenile justice system appeared more and more like the criminal justice system from which

    it originally sought separation. In the early 1950s, a spike in the number of children placed in detention facilities--essentially

    jails for children--magnified the problem. [FN72] Worse still, the constitutional due process guarantees of the criminal justice system were noticeably absent from juvenile courts. The system was not working.

     *1475 In a series of cases in the late 1960s, the U.S. Supreme Court put a spotlight on the failed juvenile court system. While in theory the courts were supposed to be acting in the best interests of the child, in fact, the courts were using their wide discretion to deprive children of liberty without due process. [FN73] Kent v. United States involved the prosecution of a

    juvenile in adult court. [FN74] The juvenile was arrested and processed through the juvenile court system, which had none of the procedural protections granted in criminal court. Further, the decision to transfer the case to criminal court was completely

    discretionary for the judge. The Supreme Court reversed the conviction of the juvenile, holding that procedural safeguards must be imposed to bridge the gap between the juvenile and adult criminal courts. In In re Gault, a juvenile was removed from his family and mandated to a state institution without being informed of the charges against him. [FN75] The Court held that

    juveniles were entitled to due process rights-- specifically the right to notice of the charges, [FN76] the right to counsel, [FN77]

    the right to confrontation and cross-examination, [FN78] and the privilege against self incrimination. [FN79] In In re Winship,

    the Court held that delinquents were entitled to the same "beyond a reasonable doubt" standard of proof required in criminal trials. [FN80] The Court stopped short of complete assimilation, however, and, in McKiever v. Pennsylvania, declined to extend the right to a jury trial to delinquency cases. [FN81]

     While the grant of some of the due process rights traditionally reserved for criminal defendants ameliorated unchecked abuses

    of discretion, the additional procedural protections connoted a shift toward the criminalization of delinquency. Further, the imposition of procedural requirements on the discretionary decisions of juvenile judges removed the very element that distinguished the juvenile courts from the criminal courts. Gault and its progeny radically altered the landscape of the juvenile

    courts, and probably foreclosed forever a return to a pure rehabilitative ideal.

     8. Current Trends

     In the specialized courts dealing with juvenile delinquency, dependency and other legal issues related to the family, [FN82]

    judges enjoy wide discretion *1476 to fashion individual remedies that generally comport with a rehabilitative ideal. Courts hear not only juvenile delinquency cases, but also abuse and neglect proceedings, status offenses, and, in many jurisdictions, divorce, adoption and custody filings. [FN83] The juvenile courts depend on all of the interested parties to supply input to the court. Parents, probation officers, treatment providers, social workers, state attorneys, and attorneys for the children and parents

    convene in a typical juvenile court proceeding. Juvenile courts continue to struggle with the monumental task of monitoring the

    well-being of the children within their jurisdictions. News accounts of the missed case of abuse or neglect are too common, and

    often the cases that begin with a child as the victim frequently progress to instances of the child as victimizer. [FN84]

     The juvenile courts continue to search for creative answers. One example of innovation can be found in New York's Family Treatment Court. [FN85] Aimed at reuniting families ravaged by drug abuse, the court uses family reunion as a motivational tool for assisting parents with the struggle to overcome their addictions. The Family Treatment Court has enjoyed success in reuniting families much more rapidly than traditional juvenile court. [FN86] Like the drug courts discussed in the next section,

    Family Treatment Court uses a system of graduated rewards and sanctions in response to treatment progress, and like the drug courts, reports a high degree of success. [FN87]

     Operating in the shadow of Gault, however, most juvenile courts treat delinquency matters separately from dependency matters. Legislation over the last twenty years has drastically increased criminal liability for children: minimum ages for transfer to adult court have been lowered, and the number and type of offenses that require removal to adult court has increased,

    [FN88] and, in the ultimate rejection of the formative ideology of juvenile courts, the U.S. Supreme Court upheld the death

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penalty for juveniles. [FN89] Thus, the legal treatment of children, at least in the area of *1477 delinquency, has increasingly

    mirrored the treatment of adult offenders. [FN90]

B. Drug Courts

     Drug courts are not the only form of problem-solving court, but they are by far the most common, and their sixteen-year history allows a longitudinal analysis not yet available for other problem-solving court models. Moreover the drug courts, and

    their claims of success, provided the impetus for application of the model to other areas. For these reasons, the discussion of

    problem-solving courts here focuses on drug courts.

     1. The Legal Prehistory

     Beginning in the mid-1970s, legislatures started to pass statutes that dramatically increased the penalties for substance abuse.

    [FN91] New York's Rockefeller Drug Laws were some of the first, and remain among the harshest, of these new statutory structures. [FN92] At roughly the same time, many states enacted legislation that limited plea bargaining to curb what were perceived as abuses in judicial discretion that created inequity. [FN93]

     Ten years later, in the mid-1980s, the federal sentencing guidelines were enacted. [FN94] In an effort to restrict the discretion

    of individual judges, the guidelines sought to nationalize sentences imposed for violation of federal laws, generally by increasing the mandatory minimum sentences and providing judges with a mechanical chart to assess mitigating and aggravating factors to consider. [FN95]

     As new criminal legislation gained popularity, the law enforcement effort directed at drug crime increased tremendously. Federal funds subsidized local efforts to enforce drug laws. [FN96] Law enforcement budgets ballooned, and the number of

    drug cases increased dramatically as well. [FN97] Though the budget increases may have originally been intended as

    temporary, the additional money soon resembled a production contract: *1478 funding was justified only as long as arrest

    numbers remained high, thus justifying more spending. [FN98] It is no surprise then, given the incentives, that drug arrests

    continued to climb at an alarming rate, dramatically increasing through the 1990s. [FN99]

     These forces created an inevitable bottleneck. Drug cases that were once minor offenses now required intensive litigation efforts. Limits on plea bargaining and mandatory sentences meant that judges, prosecutors and defense attorneys could not ease

    the burden on the system through negotiation. The overwhelming majority of cases in the criminal justice system were drug related. [FN100]

     2. Developing Social Science

     A robust, interdisciplinary debate fueled deep concerns about the pathology of drug addiction. Traditional concepts of drug use as criminal behavior meriting punishment were challenged by a view of addiction as a disease, supporting the notion that addicts should be treated, not punished. The question of whether to treat or punish revived an ancient theoretical schism between a treatment-based model and a punishment-based system of criminal justice.

     On a theoretical level, treatment and punishment appear mutually exclusive. One punishes as a last resort, only when all other

    incentives have failed to achieve the desired result. Treatment, on the other hand, should be initiated at the earliest possible

    moment. Punishment should only be inflicted on the guilty, [FN101] but treatment should be applied in both the

    post-symptomatic phase and for the sake of prevention. Moreover, at least in the public health context, coerced treatment and deprivations of liberty, such as monitored medication and quarantines, are justified by the benefits to the individual and to society. [FN102]

     In Robinson v. California, the Supreme Court found unconstitutional a statute criminalizing the status of addiction. [FN103]

    The Court reasoned that because addiction represents a status, and not an action, it falls outside *1479 the ambit of areas

    appropriate for criminal penalty. [FN104] Several years later, however, in Powell v. Texas, the Court upheld a statute banning public drunkenness. [FN105] Thus, while being addicted cannot be punished, the natural effects of addiction could be.

     3. Theoretical Foundations: Therapeutic Jurisprudence

    ? 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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