Problem Solving Courts Series #2: The Learning Curve

By: Mark A. Sherman, JD, LLM

In my previous post, I discussed the grassroots movement that birthed federal problem-solving (PS) courts, a shift driven by judges seeking a more just approach to criminal law. However, to fully understand the evolution of these courts, we must acknowledge the complex power dynamics at play, particularly the influence of the Department of Justice and its 94 U.S. Attorney offices.

These offices represent the most significant power center within the federal criminal legal system. Initially, the limited number of PS courts focused on post-conviction "reentry" programs, dealing with individuals already released from prison and at high risk of recidivism. This minimized prosecutorial influence, which is strongest during the pretrial phase. The early adopters of PS courts understood that pushing for pretrial programs would face immense resistance from U.S. Attorney offices. Reentry programs, therefore, offered a safer, more politically and bureaucratically palatable starting point. Moreover, a bipartisan consensus had emerged by the early 2000s, recognizing the public safety benefits of prosecutorial support for reentry efforts.

This strategic focus on reentry programs proved to be a brilliant tactical move. It allowed federal prosecutors to participate in program teams, gradually witnessing the value of PS courts and potentially becoming more receptive to pretrial programs. (Now, nearly a third of current federal PS courts operate at the pretrial stage.) Similarly, federal defenders, while less powerful, were essential stakeholders. Though less skeptical, they too required a gradual introduction, finding reentry programs less threatening to their clients.

This raised a crucial question: how do you educate highly accomplished professionals – judges, probation officers, prosecutors, and defenders – to embrace a radically different approach?

Change means movement, and movement means friction, and friction means heat, and heat means controversy. - Saul Alinsky

To navigate this challenge, we assembled a planning group comprising PS court judges and chief probation officers. Recognizing the inevitability of resistance, we included a National Institute of Drug Abuse (NIDA) expert to explain addiction as a brain disease and demonstrate the efficacy of PS courts in rehabilitation. We then developed a training curriculum to equip stakeholders with the necessary skills for PS court team membership. This included education on addiction, co-occurring disorders, and effective interventions – knowledge largely absent from traditional legal and judicial training. Fortunately, U.S. probation officers, working on the front lines, possessed valuable experience in addressing these issues.

We leveraged several factors to facilitate acceptance. First, attendance was voluntary, attracting judges genuinely interested in change. Second, focusing on reentry allowed us to demonstrate the court's power and resources in supporting individuals on supervised release. Finally, we integrated emerging movements within the judiciary, such as "workforce development" and "evidence-based practices," into our curriculum.

As PS courts proliferated, district teams experimented with variations, adapting to local needs and resources. While substance use disorders remained a primary focus, specialized courts for veterans, individuals with mental illness, and gang-involved individuals emerged. Innovative approaches, like incorporating special education specialists and community advisory boards, further demonstrated the adaptability of the PS court model.

It's important to acknowledge the complex challenges faced by PS court participants. Many struggle with long-term addiction, mental health disorders, trauma, and socioeconomic instability. They often have a history of institutionalization and limited life skills. There is no easy solution. Adult PS courts, like all community supervision programs, are often attempting to address deeply ingrained issues, essentially "shutting the stable door after the horse has bolted."

This understanding of the complex needs of justice-involved individuals, and the necessity of navigating power dynamics within the system, formed the foundation for our next step: embracing quality improvement to ensure the effectiveness and sustainability of these transformative programs.