Problem-Solving Courts in the United States

How a new type of justice purports to resolve social issues

Photo via The Appeal.

The United States justice system is one of the government’s most diverse and multifaceted institutions in terms of its various processes and functions. Many Americans understand the roles courts play in society, such as mediating and mitigating disputes, protecting the rights of individuals and minorities, and resolving social problems. However, the traditional view of how the justice system accomplishes these goals—by punishing those who transgress the law—is not a full and accurate picture of how courts operate. One aspect of the court system in particular can provide unique context into the variety of ways courts can act as agents of positive change in their communities: problem-solving courts.

The term problem-solving court is an umbrella term used to describe courts that are specialized to—you guessed it—solve a problem. On some level, all courts are intended to solve problems, whether the problem is a crime, a contract dispute, or the violation of a constitutional right. However, a court is considered a problem-solving court when it acts as a therapeutic agent in its community, as delineated by Banks’ and O’Brien’s The Judicial Process: Law, Courts, and Judicial Politics.

While there are many kinds of problem-solving courts with a variety of goals and processes, these courts are often characterized by three features intended to help offenders, provide personalized care, and strengthen the community:

• Monitoring offenders throughout their rehabilitation process. This enables the court to track the offender’s treatment to ensure its effectiveness.

• Involving professionals outside of the court. This includes professionals like social workers, psychologists, and therapists in the treatment and rehabilitation of offenders and introduces the therapeutic element for which the courts are known.

• Engaging with community leaders and programs. This enables a stronger connection in the community and prompts active participation in the justice system.

The first courts created under this definition were juvenile courts established in the late 19th century. In response to prison overcrowding and recidivism following the intensification of the war on drugs, a new kind of problem-solving court was created in Florida in 1989: the drug court. Since then, the United States has seen a rise in courts created to address specific social issues, including but not limited to homelessness, prostitution, gambling, addiction, and mental health problems.

Problem-solving courts differ from traditional courts in several ways. Traditional courts operate under the “rational actor model”: the assumption that “people weigh the costs and benefits of following or not following the law and, based upon the outcome of that calculus, deliberately choose a course of action.” By contrast, problem-solving courts recognize that many, if not all, of the offenders being processed have been impacted by a disruptive agent, such as addiction, abuse, mental health problems, or poverty.

Another major distinction between traditional courts and problem-solving courts is the role of the judge. In a traditional court, the judge acts as an unbiased arbitrator; they ‘referee’ the trial, ensuring that all actors in the courtroom follow procedure and admit evidence correctly. They have limited interaction with defendants and rarely interfere with the trial unless procedure is violated. In a problem-solving court, judges act as facilitators. They contravene the adversarial nature of the courtroom and consult professionals in the interest of finding a solution that will help each defendant individually. This drastic reshaping of a judge’s duties is the basis of several arguments against problem-solving courts, which we’ll discuss later in this article.

Possibly the best way to understand problem-solving courts is to look at some examples. There were more than 4000 problem-solving courts in the United States as of 2014, the largest portion of them being drug courts. The following are illustrations of problem-solving courts that highlight the diversity of these courts today.

Drug Court

The first drug court in the United States was founded in Florida in 1989 in response to rising awareness and mass panic around drug use and misuse. Politicians called for harsher penalties and longer incarcerations for the sale of drugs than at any other point in American history. As public concern increased, so did the national prison population. By 1989, it was clear that incarcerating large portions of society did little to cure addiction or lower rates of drug use in America. So the Miami-Dade County Court Circuit developed a new system for handling drug-related crimes.

In the Miami-Dade County Drug Court, defendants are referred to as ‘clients.’ They are connected to resources and treatments, including group therapy, education, and counseling. Additionally, clients make regular appearances in court. They are tested for drug use and asked to give a report on their treatment process. This method is intended to hold clients responsible for following their treatment plan and to give them a sense of autonomy. Since the first drug court was founded, more than 2,600 drug courts have been created in the U.S. An expansive study of of U.S. drug courts has found that, on average, completion of addiction programs reduces recidivism rates by 8%–14% over two years. The most effective drug courts have been found to reduce recidivism by up to 80% over two years.

GRACE Court

GRACE Court was established in Florida in 2015 and is the first human trafficking court in the nation. GRACE Court serves child victims of human trafficking who have entered the court through delinquency or domestic violence. Every individual working in GRACE Court—the judge, the case manager, the defense counsel, the state attorney, investigators, and law enforcement officers, among others—has a common purpose: helping human trafficking victims gain independence and heal. The court partners with dozens of organizations to do so, connecting children with invaluable resources, including but not limited to medical and psychiatric exams, HIV and STI testing, transitional housing, unplanned pregnancy prevention, home visiting programs, mental health services, assistance with GED or vocational training, and domestic violence training and intervention. Within the court, staff are instructed to be mindful and respectful of the victim's situation. For example, the following is a sample list of Do’s and Don’ts for members of the court to engage with victims, as advised by the GRACE Court Benchbook:

Do’s:

• Apply your knowledge of risk factors, pathways to CSEC (commercial sexual exploitation of children), and techniques for victim identification.

• Ensure courtroom staff receive training on human trafficking.

• Limit on-the-record discussion of the victim’s personal circumstances to ensure safety (if an exploiter or unsafe person is in the courtroom) and respect.

• Address him/her directly and offer him/her an opportunity to speak during court proceedings.

• Use plain language during court proceedings, especially when speaking to a CSEC victim directly.

Don’ts:

• Don’t rely on stereotypes to identify or engage with CSEC victims.

• Don’t react verbally or physically in a way that communicates disgust, disdain, or shock.

• Don’t use physical contact.

• Don’t expect the child to refer to him- or herself as a victim or recognize their situation as exploitative.

GRACE Court has been operating for almost ten years and has given countless children and adolescents a second chance at a good life. Traditional courts could not be equally as impactful because they are not equipped with the same training, resources, or professional outreach, nor could they afford to give each child processed in the court system the personalized care they require.

Manhattan Misdemeanor Mental Health Court (MMHC)

The MMHC is one of more than 400 mental health courts operating in the United States today. It serves offenders of low-level crimes who have been diagnosed with mental health disorders and have entered the justice system as a result. The court considers an offender’s criminal history, mental health diagnosis, and the consequences to public safety to create a personalized treatment plan for each individual entering the MMHC. To illustrate how the court works, we’ll look at an illustration following a fictional offender, Sam, through the process:

1. Sam, who has been diagnosed with depression and PTSD, is arrested for a misdemeanor offense.

2. At their arraignment hearing in the New York City Criminal Court in Manhattan, Sam is referred to the Manhattan Misdemeanor Mental Health Court. They consent to enter the MMHC.

3. Sam is administered a clinical evaluation by a licensed social worker.

4. The Midtown clinic team, the defense agency, the District Attorney’s office, and the court attorney meet to discuss a personalized plan of treatment for Sam, which could include counseling, substance abuse training, housing assistance, job training, etc.

5. The Justice Center engages with Sam when they first enter the courtroom to ensure that they understand the process and their treatment plan and to give them an opportunity to ask questions.

6. Sam returns to court regularly to report on their progress in their treatment plan.

7. The Midtown clinic team, the defense agency, the District Attorney’s office, and the court attorney continue to meet weekly to discuss Sam’s progress and make adjustments if needed.

8. Sam completes their treatment 33–44 days after entering the court and is presented with a certificate of completion. They now have access to ongoing treatment if they desire and are significantly less likely to recidivate.

The MMHC was launched in 2022 and, in the first two years of its operation, has equipped 245 individuals with valuable skills and resources to exit the revolving door of traditional justice. To put that into perspective, more than 100,000 offenders were processed in New York City courts in 2023. It isn’t possible for traditional courts to give individualized attention to each offender, and likewise, it isn’t possible for courts like the MMHC to process all offenders without several years of backlog.

Veterans Treatment Courts

For those wondering why it might be beneficial to have courts specifically designated for veterans, the following statistics may shed some light on the issue:

• Of the 2.6 million soldiers sent to Iraq and Afghanistan in the last decade, more than half now have a mental health condition.

• 1 in 6 of those veterans suffers from addiction.

• 1 in 5 has post-traumatic stress disorder.

• There are currently 700,000 veterans in the criminal justice system, some of whom are there as a direct result of mental health issues caused by their time in the military.

The first veterans treatment court in the United States was founded in Buffalo, New York, in 2008. Over the course of the next decade, more than 600 such courts have been created across the country. Similar to mental health courts, veterans treatment courts combine rigorous monitoring, positive reinforcement, and personalized treatment to improve the lives of veterans and prevent recidivism. In Los Angeles, veterans are eligible for the program if they “have served in the U.S. military, are entitled to benefits through the Department of Veterans Affairs (VA), and suffer from post-traumatic stress disorder, traumatic brain injury, substance abuse, sexual trauma, and mental health issues related to their military service.” The Court, Public Defender, Alternate Public Defender, District Attorney, the VA, and Public Counsel work together to ensure the efficient and compassionate function of the Veterans Treatment Court in Los Angeles.

Once a veteran has been referred to the program, they are screened for eligibility. The Veterans Court judge and the VA, which covers the cost of the program, collaborate to create an effective treatment plan for each individual veteran, which is a minimum of 18 months. Throughout the process, veterans receive treatment alongside other veterans and are given a veteran mentor. They are treated with dignity and given tools for reintegration into the country they fought for.

A national study on the effectiveness of veterans treatment courts found that:

• 39.3% of participants who did not have stable housing at the beginning of the program obtained stable housing by its completion.

• 15.2% of veterans who were not employed at the beginning of the program were employed by its completion.

• 28.5% of veterans who did not receive VA benefits at the beginning of the program received them by its completion.

• However, 14% of veterans experienced a new incarceration while in the program.

This is still lower than the average one-year recidivism rate in the United States, which ranges from 23% to 42%. Overall, veterans treatment courts have reported moderate success in treating and rehabilitating those who have sacrificed their well-being for the nation.

The question remains as to whether problem-solving courts pose a practical solution to crime and other social issues. As with any institution, problem-solving courts carry the potential for positive change as well as costly inefficiency. I will cover both potentialities broadly and allow you to decide for yourself whether problem-solving courts are a valuable implement in American justice.

The case for problem-solving courts can be made based on the ineffectual nature of punitive justice in eradicating crime. Traditional courts are often characterized as a revolving door: offenders commit a crime, are arrested, prosecuted, jailed, and released, only to recidivate and become ensnared in a continual cycle. A study following 500,000 state prisoners found that 87% of offenders were rearrested ten years after their release, and on average, these prisoners were rearrested seven times. While advocates for punitive justice might argue that entering and remaining in the cycle is a choice and that incarceration is its consequence, the fact remains that the consequence falls not just on the offender but on society as a whole. The consequence in question totaled $75 billion across federal, state, and local governments in 2008. That figure accounts only for corrections expenditures, not the additional cost of crime on society nor the lost productivity of offenders.

Advocates for problem-solving courts argue that they are less costly over extended periods because they seek to treat the cause of crime, not the symptom. Because of the wide variety of problem-solving courts, methods, and target populations, more research is needed to make a definite conclusion about their overall effect on recidivism. However, research on drug courts and veterans treatment courts in particular has found that offenders are less likely to recidivate. Furthermore, problem-solving courts are more responsive to the needs of each defendant and the needs of the community. They involve more resources and treatment access that offenders would otherwise be unaware of. Additionally, they are linked with an increased sense of agency in defendants; participants in mental health courts report feeling less coerced than in traditional courts. All of these factors can contribute to ending the cycle of recidivism that continues to drain public resources.

However, problem-solving courts are not unanimously supported as the panacea for crime and recidivism. One major criticism is the role of the judge. In traditional courts, the judge is a “referee.” They ensure that evidence is admitted properly and that the rights of the defendant are protected but do not involve themselves personally with the case. Judges are trained to be unbiased mediators, a reflection of the fair and dispassionate nature of the law. However, in problem-solving courts, judges are asked to make decisions about what is best for a defendant. They are required to adopt a facilitating role, a role that judges are not trained for.

A second argument against problem-solving courts is the possibility that they could deny defendants due process rights. Once they have been arrested and charged, an eligible defendant may be offered the attractive prospect of having their charges eliminated if they participate in a problem-solving court program. However, if they fail to meet any one of the court’s expectations while in the program, they would be forced to accept a guilty plea and the resulting sentence. Many would argue that this is a way of psychologically coercing defendants out of their due process rights.

Finally, problem-solving courts are—as demonstrated by the examples above—extremely diverse in the variety of problems they can attempt to solve as well as the methods they use to solve them. Criminal courts have the advantage of being uniform in their application of justice. The process of charging, trying, and sentencing a defendant is the same across the board, regardless of the defendant's personal circumstances. This, critics assert, is the best way to ensure that the law is enforced fairly and equally. Additionally, it is a much quicker and less taxing process than giving each defendant individualized treatment.

To recap, problem-solving courts are a rising trend in the United States justice system. While they purport to solve a wide variety of social problems, they share a similar function in targeting the root cause of crime rather than punishing offenders repeatedly. Institutions like drug courts, veterans treatment courts, and mental health courts act as therapeutic agents in their communities by connecting offenders with resources intended to break them out of the cycle of recidivism. If they function as intended, problem-solving courts have the potential to lower incarceration rates, reduce prison overcrowding, and prevent future acts of crime. However, critics argue that problem-solving courts deviate from traditional justice in potentially harmful ways. In the wrong context, problem-solving courts could be costly and ineffective, erode due process rights, and slow down the justice system. Ultimately, the rising popularity of problem-solving courts indicates a shifting attitude about how to best resolve the problem of crime in America. There is a lot of hope for the future of this new kind of justice, and only time will tell how effective problem-solving courts will be.