Tuesday, August 8, 2017

Prof. Miller Presents to Chief Judges on Problem-Solving Courts

By Professor Eric Miller

Professor Miller presented a paper on problem-solving courts to the U.S. Court of Appeals for the Eighth Circuit chief judges on Thursday, August 3, 2017 as part of a panel on specialty courts. Below is an excerpt from the presentation.

The first problem-solving court was founded by Chief Judge Klein of the Florida State Eleventh Judicial Circuit as an alternative to other, "fast-track" drug courts. The single great advantage of offender-supervision courts is that they respond to a failure in the federal sentencing guidelines that recent reforms do nothing to remedy. The guidelines presuppose incarceration as the organizing principle of punishment to the exclusion of non-incarcerative sanctions. The guidelines focused the question of punishment on the moment of sentencing as applied to individual offenders. But the guidelines failed to consider the direct and collateral consequences of imprisonment and reentry for both the offender and his or, increasingly, her family and community. The guidelines effectively channeled individuals into and up the criminal justice system, with little thought about what happens to them in prison, where they become less healthy, less employable, and more antisocial through losing family contacts, and what happens after prison, where often prisoners lose a variety of state and federal benefits as a collateral consequence of imprisonment.

In particular, the offender’s family suffers devastating effects, including loss of income, more dependence on the state, and long-term psychological damage to an offender’s children, that can be avoided at the front end by channeling offenders away from incarceration. Offender-Supervision Courts seek to challenge the guidelines’ over-reliance on incarceration, first, by emphasizing treatment and behavior-modification as a cure for drug addiction, mental health, and other chronic causes of anti-social behavior, and second, by claiming to channel offenders out of the criminal justice system.

Successful problem-solving justice depends upon the coordination of different policies: penal, social, medical. And it requires policy-makers to recognize that each type of social intervention has its own boundaries and competencies. Unfortunately, however, the judicial and criminal justice orientation of the court translates the medical and sociological aspects of treatment into things that the judge can do in court. The hierarchy of the court, which necessarily places the judge at the head of the treatment team, and operates through the language of criminal justice, is poor at maintaining the boundaries between these different types of social intervention. The court adopts a model of individual responsibility for the psychological, medical, or social causes of crime. The court holds individual offenders accountable for “restructuring their lifestyle.” The offender’s failure to take responsibility for his or her treatment, and “get with the program,” often results in short stints in jail. The court thus ignores social or state failures of welfare provision and instead focuses on disciplining the offender.

The court-based model emphasis only on the offender’s responsibility for her success fails to account for the fact that offenders often face significant social and legal obstacles to their health, housing, and employment that are exacerbated rather than ameliorated by intensive scrutiny. Rather than screening offenders out of the criminal justice system, interventionist drug and reentry courts screen offenders back into the system, for longer periods of time than would otherwise be the case, resulting in harsher criminal penalties being imposed. The court model thus replicates central failings of the guidelines say Offender-Supervision Courts grant the government a free pass on the various direct and collateral consequences of incarceration that undermine reentry and reintegration of the offender into society. Interventionists courts are a well-meaning, but flawed exit strategy.

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