Proactive Judging And Specialized Courts

Problem-solving judges, and the paradigm of therapeutic courts, recently emerged as a result of the war on drugs and its effects on the courts (Lipscher, 1999). Drug courts, designed to deal with the overflow of drug cases in the late 1980s, attracted judges who sought 'a treatment-based alternative that also mandated judicially supervised sanctions' (Gebelein, 2000, p. 2). Policy-makers saw an innovative opportunity and established federal funding for drug courts in the 1994 Crime Act (Gebelein, 2000). The key elements include integration of treatment with court processing; use of a non-adversarial approach; early identification and placement; access to a continuum of services; frequent drug and alcohol testing; a coordinated team approach; ongoing judicial interaction and monitoring; continuing interdisciplinary education; and partnerships with community agencies. Proactive judges are an integral part of drug courts (Gebelein, 2000), and the relationship between drug-addicted defendants and the judge may account for a major part of the court's effectiveness (T. Merrigan, personal communication, June 7, 2001).

With drug courts as a precedent, judges have been developing problem-solving courts to test new approaches in other difficult cases (Rottman et al., 2000). Proactive judges have been motivated by frustration with the ineffective traditional judicial response to marginalized yet chronic types of cases that overwhelm the courts with their increasing numbers, high recidivism rates, and needs for social and psychological services (Fritzler and Simon, 2000a, Hora et al., 1999; Lurigio et al., 2001). These courts and judges are often the average citizen's sole point of contact with the justice system, and the experience can determine his or her respect for, or alienation from, the legal system in its entirety (Ross, 1998). By providing needed services and solutions to court users, proactive judges can improve community satisfaction with the courts (Svidiroff et al., 1998).

Specialized courts provide a forum for more individual attention to, and resources for, cases that are inadequately handled in courts of general jurisdiction (Rottman et al., 1998). Typically the catalyst for the development of a specialized court is an individual judge, who has grown deeply dissatisfied with the available diagnostic and treatment services, or with the degree of coordination among service providers for an increasing number of cases (R. Fritzler, personal communication, May 4, 2001). Proactive judges, who create specialized courts, seek out new expertise for themselves and their staff. For example, a unified family court is conducted by a specially trained and interested judge who addresses the legal and accompanying emotional and social issues of the family by coordinating resources and social service agencies (Ross, 1998; Williams, 1995). This contrasts sharply with traditional family court judges who have little or no special expertise. Moreover, the unified family court judge is assisted by every person who works in the court, from clerks to intake personnel to case managers to lawyers, who also have specialized training (Ross, 1998). A unified family court encompasses a single court with comprehensive jurisdiction over all cases involving children and relating to the family that have traditionally been handled by different judges in different courts (Babb, 1998a, 1998b). But even specialized courts differ between jurisdictions. For example, mental health courts may differ in their adaptation of the problem-solving model to their particular local systems. 'These differences include the timing and method of resolving the underlying criminal charges, the responses to non-compliance by participants, and the effect of a defense request for a trial' (Goldkamp and Irons-Guynn, 2000, p. 69). Indeed the variety of specialized courts highlights the importance of understanding how narrowly or broadly to define the subject matter jurisdiction of the court for maximum effectiveness. 'If the specialization is too broad, it is diluted. If the specialization is too narrow, the volume of cases may be too low to warrant a specialized court. And if the court shares jurisdiction of a particular subject matter, the court system becomes more complex for the user' (Rottman and Casey, 1999).

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